CalExit Will Never Happen

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After the election of Donald Trump, many people got irrational, particularly Governor Jerry Brown, and the people of California (who ironically opened an embassy in Moscow in protest). Since then, many people, both in California and across the country, have pushed for the Golden State’s secession. Last Tuesday, California’s Attorney General decided to humor the #CalExit organizers.

Last Tuesday, California Attorney General  Xavier Becerra apparently finished his scotch, said “what the hell,” and gave his stamp of approval for a group of people to begin gathering the more than 585,000 signatures needed to allow a ballot initiative that would allow a ballot initiative calling for secession to be put on the 2018 ballot. If the ballot measure were to somehow pass, a commission would form to explore how the state could secede from the United States, unfortunately, this will never happen. calexit dos.jpg

Secession isn’t a new idea, outside the Civil War, the idea pops up every couple of years, normally in Texas, and at that time realists endlessly mock these attempts, and for good reason, the fact remains that there is no way to secede from the Union written in the Constitution.  Article IV Section 3 of the Constitution deals with how to admit a new state into the country, but the reverse is never discussed, and has been dismissed outright by plenty of respectable legal scholars.

In 2006, former Supreme Court Justice Antonin Scalia was asked by screenwriter Dan Turkewitz if a group of people suing the government for the right to secede would be a good plot point. Scalia responded saying that state’s do not have the right to secede. In his letter back to Turkewitz, Scalia said that such an issue would never even reach the Supreme Court:

“To begin with, the answer is clear. If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede. … Secondly, I find it difficult to envision who the parties to this lawsuit might be. Is the State suing the United States for a declaratory judgment? But the United States cannot be sued without its consent, and it has not consented to this sort of suit.”

Scalia.jpgWhat Justice Scalia pointed out in that first line is something most people don’t realize.  In the eyes of the United States government, there no such thing as the “Confederate States of America.” The southern states, in their mind, were just occupied by hostile citizens. This line of thinking was pointed out in the 1869 Supreme Court case Texas v. White.  This case argued that Texas’s Confederate state legislature had illegally sold bonds that were owned by Texas, and issued by the United States government as part of the compromise of 1850. While ruling on this case, the justices wrote;

“The Constitution, in all its provisions… looks to an indestructible Union composed of indestructible States.”

So while Jefferson Davis and his friends may have seen themselves as an independent country, the United States hadn’t given them the go-ahead to secede, so they had no sovereignty. The Civil War was a war for independence, much like the American Revolution was a war for independence. We had to defeat the British before getting the go-ahead to secede; if we had lost, we’d have socialized medicine and a government that doesn’t respect individual rights, and do we really want that?

While it amuses us to think that a state that disagrees with our own core ideologies could soon be gone, it is unlikely to happen. So unfortunately it looks as though referring to San Francisco as a “foreign country” will remain hyperbole.

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Is History Repeating Itself?

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In 1973, former Attorney General Elliott Richardson was assigned a task; appoint a special prosecutor to oversee the investigation into the Watergate Scandal. Richardson turned to his former Harvard Law Professor, Archibald Cox. Appointing Cox as special prosecutor, as it turns out, was the beginning of the end for President Nixon.

Drunk on power, Nixon saw himself as untouchable, he felt as though he had the support of his party, and that he had loyal men working to clear his name. As he started to doubt that loyalty, it all came crashing down on October 23, 1973. On what later became known as the “Saturday Night Massacre,” the White House announced the dismissals, and resignations of special prosecutor Cox, Attorney General Richardson, and Deputy Attorney General William Ruckelshaus, abolishing the office of special prosecutor all together, and handing the investigation over to the Justice Department.

The entire ordeal unfolded because Nixon thought he was untouchable, he refused to turn over documents and tapes related to the investigation, and when challenged he demanded that Richardson fire Cox. When Richardson refused, Nixon pressured Richardson to resign. Upon the resignation of Elliott Richardson, William Ruckelshaus was promoted to acting Attorney General and given the same orders, when Ruckelshaus refused, Nixon forced him to resign.  The law states that when there is no Attorney General, the Solicitor General – in this case Robert Bork – becomes the acting Attorney General. Unlike his predecessors, Bork followed Nixon’s orders and fired Archibald Cox. As if that wasn’t enough bad PR, the scene got even uglier when word got out that the FBI, at the request of the White House, had sealed off access to the offices of those that had been forced out.

Soon after the “Saturday Night Massacre” support for Nixon within Congress began to erode. The House Judiciary Committee announced they would move ahead with impeachment proceedings, and the Supreme Court ordered the White House to turn over all the tapes and documents they had in relation to Watergate.

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Elliott Richardson and Richard Nixon

Within 10 months of the entire ordeal Nixon resigned.

It is impossible to look at President Trump, and the way he has handled himself, and not draw comparisons to Nixon. Like Nixon, Trump is being investigated by a special counselor, Robert Mueller, who is looking into possible Russian involvement into the 2016 Presidential election. Like Nixon, Trump has demanded absolute loyalty from those he works with. Former FBI director James Comey has testified to this. Comey testified that Trump had demanded loyalty from him, then ordered him to drop an investigation into former National Security Advisor Michael Flynn’s ties to Russia.  When he refused to comply, James Comey was fired. Like Nixon, Trump is frustrated with his Attorney General, publicly humiliating him on numerous occasions. President Trump probably sees the fact that Attorney General Jeff Sessions has recused himself from any investigation into Russia as a personal betrayal. After all, being named Attorney General was a reward to Sessions for his early support as he sought the presidency.

The recusal of Sessions has left Deputy Attorney General Rod Rosenstein in charge of the investigation into possible Russian meddling, and for over a month now, it has been widely reported that Trump wants to fire Mueller. The problem is, he doesn’t have that power, only the Attorney General does, and since Sessions has recused himself from this investigation, that means only Rosenstein has that power. What Trump can do, however, is pull a Nixon; request that Rosenstein fires Mueller or face the consequences, which would probably mean he would be fired.

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Attorney General Jeff Sessions

In my mind it seems that Trumps public temper tantrum against Jeff Sessions is his way of acting out in frustration. Trump probably believes that if Sessions hadn’t recused himself, he would be willing to fire Mueller and put an end to this investigation. Instead he is stuck with a Deputy Attorney General that isn’t as loyal to Trump as Sessions had been.

Power corrupts. In both the Watergate scandal, and the Russia investigation, a paranoid President that demands absolute loyalty has gone out of his way to control an outcome. Sally Yates, Michael Flynn, Preet Bharara, Katie Walsh, James Comey, Michael Dubke, Walter Shaub, Sean Spicer, and Michael Short have all either been fired or resigned since Trump took office on January 20th. The Trump administration has gone out of their way to prove that loyalty is the only thing that matters. While it’s impossible to know what Trump’s legacy will ultimately be, it’s hard not to see that history may be repeating itself.

It Costs Money To Infringe on Your Rights

 

June is a great month for many reasons, least of which is because it marks the time of year when the Supreme Court issues decisions on the cases they heard earlier in the year. While cases like Murr v. Wisconsin and Gill v. Whitford made waves this past month, headlines like  the disappointing Philando Castile verdict, and the “Back the Blue Act” have the chance to further enhance police power. The expansion of the “police state” is nothing new, and reminds me of an interesting Supreme Court case from last June; Utah v. Strieff.

In that case, Utah detective Douglas Fackrell suspected that a Salt Lake City residence may be selling drugs, so he decided to monitor the property. One day, Fackrell saw Edward Strieff leaving the residence. Seeing the opportunity he had been waiting for, Fackrell stopped Strieff for questioning.  During that questioning, Fackrell discovered that there was an arrest warrant out for Strieff, so he searched him without obtaining a warrant. Upon that search, they found some meth, and arrested him.

Lower courts found that even though the initial questioning was illegal, the evidence discovered during the stop still could be used at trial because it was proof of a crime, the Utah Supreme Court disagreed. The Utah Supreme Court ruled that the evidence found during the stop needed to be suppressed in court since the search of Edward Strieff violated the fourth amendment, therefore any evidence found during the stop should be ruled inadmissible.

The case made its way to the United States Supreme Court, where the justices had to decide if evidence obtained during an illegal search is enough to arrest someone on an outstanding arrest warrant. In a 5-3 decision, SCOTUS sided with law enforcement. In his 5-3 majority opinion, Justice Clarence Thomas stated that evidence obtained during the violation of your fourth amendment rights should not be excluded if the “costs of its conclusion outweigh the benefits.” 

Essentially, what this means is when a valid warrant is discovered after an unconstitutional stop, the connection between the unconstitutional conduct and the discovery of evidence incident to a lawful arrest based on the warrant is sufficient. The ruling essentially nullifies the fourth amendment.

Justices Sonia Sotomayor and Elena Kagan both wrote dissenting opinions, with Ruth Bader Ginsburg joining in for parts of both. In Sotomayor’s dissent, she recognizes just how much power law enforcement wields in this country;

“Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more”

It’s incredibly easy to get pulled over for speeding, only to have an ambitious law enforcement official “discover” some minor issue that would result in an arrest.  While most law enforcement officials are good men and women, the general public needs to be able to hold the small minority accountable for their actions. With the Strieff ruling, Sotomayor points out, the Supreme Court has given law enforcement a great deal of power;

“This Court has allowed an officer to stop you for whatever reason he wants — so long as he can point to a pretextual justification after the fact.”

“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time”

“It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

Sotomayor makes an incredibly valid point, it has become increasingly clear that the “Prison Industrial Complex,” has gained enough power that even though crime has dropped 40% in the last 20 years there are currently over 2.5 million people in jail.  

The prison population isn’t just exorbitant, it is incredibly expensive.  At a cost of $30,619.85 per federal inmate, per year, it seems a bit irresponsible to lock up nearly 188,000 people, of which nearly 95,000 are serving time for ridiculous drug offenses.

The cost per inmate is much higher in major cities. In New York City, for example, it costs $167,731 to incarcerate one person for a year. With 8.5 million people in NYC, that means each resident of NYC is spending $242.46 a year to lock up residents, and that number is based off of population alone. If you only count taxpayers, that cost per person would be much higher. And while $243/year seems like a small price to pay to lock up rapists and murderers, is that money really worth locking up an 18 year old with an ounce of pot?

Even if you don’t necessarily care about  other people, you have to realize that if you’re paying $243 a year to lock someone, what other government programs are recklessly spending money? Maybe you’re spending $20 a year to ensure that kids have the necessary permits to cut their neighbors grass, or $80 a year subsidizing research for a corporation owned by billionaires.  At some point in time society needs to realize that the government bleeds taxpayer dollars.

When you combine the overwhelming power of law enforcement, with a large amount of bureaucracy and a crackdown on victim-less crimes, criminal justice reform is necessary to not only wrestle back control of our civil liberties, but to  help save our economy as well.

Government Can Destroy Your Property Value, Supreme Court Rules

 

One of the core principles of libertarian thought is the concept of “private property.” Libertarians, and Classical Liberals; like John Locke, Thomas Paine, and Thomas Jefferson all believed in an individual’s right to own property.  Last week, in a 5-3 ruling, the Supreme Court ruled that bureaucrats don’t have to compensate property owners for imposed regulations that destroy the value of your property.  

The Murr family contends that regulations prevent them from selling their land on the St. Croix River.

At issue were two islands along the St. Croix River in Troy, Wisconsin.  The petitioner, Donna Murr, tried to sell one of the islands she owned in 2004, only to be blocked by local, state, and federal ordinances enacted under the “Wild and Scenic Rivers Act of 1976.” In writing the court’s majority opinion, Justice Kennedy outlined the regulations preventing the sale.

 

“Under the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal protection. §3(a)(6), 82 Stat. 908, 16 U. S. C. §1274(a)(6) (designating Upper St. Croix River); Lower Saint Croix River Act of 1972, §2, 86 Stat. 1174, 16 U. S. C. §1274(a)(9) (adding Lower St. Croix River). The law required the States of Wisconsin and Minnesota to develop “a management and development program” for the river area. 41 Fed. Reg. 26237 (1976). In compliance, Wisconsin authorized the State Department of Natural Resources to promulgate rules limiting development in order to “guarantee the protection of the wild, scenic and recreational qualities of the river for present and future generations.” Wis. Stat. §30.27(l) (1973). “

 

“For the area where petitioners’ property is located, the Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development. Wis. Admin. Code §§ NR 118.04(4), 118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grandfather clause relaxes this restriction for substandard lots which were “in separate ownership from abutting lands” on January 1, 1976, the effective date of the regulation. § NR 118.08(4)(a)(1). The clause permits the use of qualifying lots as separate building sites. The rules also include a merger provision, however, which provides that adjacent lots under common ownership may not be “sold or developed as separate lots” if they do not meet the size requirement. § NR 118.08(4)(a)(2). The Wisconsin rules require localities to adopt parallel provisions, see § NR 118.02(3), so the St. Croix County zoning ordinance contains identical restrictions, see St. Croix County, Wis., Ordinance §17.36I.4.a (2005). The Wisconsin rules also authorize the local zoning authority to grant variances from the regulations where enforcement would create “unnecessary hardship.” § NR 118.09(4)(b); St. Croix County Ordinance §17.09.232. “

The two adjacent islands are both 1.25 acres, one of them has a small cabin and a dock, which the Murr family had intended to keep, the other island was completely vacant.  Since the “Wild and Scenic River Act” forced states to impose regulations protecting the river, the Murr’s two islands were required to be regulated as one piece of property, as opposed to each island being considered its own individual piece of property. This means that the Murr’s cannot sell just one island. Upon realizing this, the Murr family approached St. Croix County seeking compensation.  

They were right in seeking compensation, the fifth amendment has a provision in it called “The Takings Clause” which states:

“private property [shall not] be taken for public use, without just compensation.”

Chief Justice Roberts worries about the effect Murr v. Wisconsin will have on property rights going forward.

The Murr’s contend that the imposed regulations have effectively “taken” their private property for “public use.” Therefore they approached St. Croix County requesting that they be compensated $400,000, which is what the property had been appraised at, for their trouble. The county responded with an offer of $40,000, which the Murr’s contend is not “just compensation.”

In his scathing dissent, Chief Justice John Roberts fears that the ruling could have a negative effect on property rights going forward.

“Put simply, today’s decision knocks the definition of ‘private property’ loose from its foundation on stable state law rules.”

His dissent centers around the how the majority’s decision adds a layer of uncertainty to private property rights, alluding to the fact that last week’s opinion may give the government more leeway in taking private property in the future.

You Can Say Whatever The Hell You Want, SCOTUS Rules

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The first amendment states;

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Seems pretty straightforward to me. Which is why I find it baffling that there is a major free-speech case coming up every couple of years.  One of this years cases, Matal v. Tam centered around Asian-American rock band, “The Slants,” being denied a trademark by the US Patent Office in 2011.  This week the Supreme Court upheld an Appellate Court’s decision 8-0, that rules on the side of “The Slants.”free speech cartoon.png

 

The Case

At issue is the 2011 decision by the United States Patent Office to deny the band the right to trademark their name.  The Patent Office claimed that the band’s name, “The Slants,” was offensive, and therefore wasn’t allowed under what is called the “Disparagement Clause.”

The  “Lanham Act” of 1946 is the federal statute that governs trademarks in the United States. As part of that act, the “Disparagement Clause” allows the Patent and Trademark Office to cancel trademarks that;

“ disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.”

Among the arguments made by the government as a way of defending their case, they stated that; trademarks are government speech, not private speech, trademarks are a form of government subsidy, and that the constitutionality of the disparagement clause

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Apparently “The Slants,” an all Asian rock band, may offend Asians

should be tested under a new “government-program” doctrine.

Despite the government’s argument that the name “The Slants” was offensive, the all Asian band disagrees. They chose the name as a way to challenge established stereotypes. Simon Tam told Reason back in April;

“When I found out what the government was doing and how they were doing it, how they were using it to suppress speech and how they were trying to take rights away from my own community, I decided that was not right. So all of a sudden it became about principle. When I believe they are violating the values of our country and violating my own values, I decided that had to be stopped, no matter the cost.”

The Outcome

The government got bitch slapped by the first amendment.  

Although there were three separate opinions, they all agreed that the government has no right to outlaw offensive speech. Writing for the court, Justice Samuel Alito wrote

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His “victory” smile

“It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend.”

Alito continued on to criticize the government’s argument;

“The Government has an interest in preventing speech expressing ideas that offend.” ..”that idea strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.'”

The court continued to re-iterate the point, stating;

“If private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints. For this reason, we must exercise great caution before extending our government-speech precedents.”

What Does This Mean?

It means the “Disparagement Clause” of the Lanham Act has been declared unconstitutional.  Matal v. Tam  reaffirms the right to offend other people. It states that just because you do not like what is being said, does not mean it is illegal. The court hammered in the point that disparaging trademarks could not be prohibited under such broad terms;

A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive out trademarks that support invidious discrimination. The clause reaches any trademark that disparages any person, group, or institution. It applies to trademarks like the following: “Down with racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.

The clause is far too broad in other ways as well. The clause protects every person living or dead as well as every institution.

A real world example would be the NFL’s Washington Redskins, who in 2014 had their trademark cancelled under the “Disparagement Clause.”  It now seems likely that the redskinsRedskins will be able to retain their trademark.  

Hopefully, one of these days, people will actually read the first amendment and stop bringing forward such idiotic cases.

Supreme Court Case Could Shake Up Congress

 

For the first time since 2004, the Supreme Court will be taking up a partisan gerrymandering case. Gerrymandering is a practice used by political parties to give one party a specific political advantage over another, and for the last several decades, it has been used by both political parties as a way to manipulate voting districts.  

Gerrymandering, in one picture.

The case, Gill v. Whitford, marks the first time since Vieth v. Jubelirer in 2004 that the Supreme Court will hear arguments centering on the idea of “partisan gerrymandering.” In that case, Justice Anthony Kennedy was the fifth, and deciding vote in the case that allowed partisan gerrymandering to continue. At the time, Justice Kennedy had made it clear that he would be willing to readdress the issue at a later date, if future plaintiffs could come up with a case that quantified a “workable standard” in which to base partisan gerrymandering off of.

Last year a panel of 3 federal judges determined that the Wisconsin electoral map violated both the first and fourteenth amendments, and on June 19th the Supreme Court announced that they will hear arguments in the case. This isn’t the first time partisan gerrymandering has been challenged since 2004, but the Supreme Court sees the case as unique.

Why SCOTUS is Hearing These Arguments

On NPR’s “All Things Considered” Shawn Johnson explains why Gill v. Whitford is unique:

“this case is unique among other redistricting cases in the way that it went after Wisconsin’s Republican-drawn legislative map. So it’s not unheard of for a court to strike down legislative maps on other grounds – diluting the voices of minority voters, for example. But this case really sets out a challenge. It says you can actually have a redistricting plan that’s so partisan that it’s unconstitutional, that it’s a political gerrymander… “

“what these plaintiffs were trying to do is go back and look at the results in Wisconsin in 2012, for example. President Obama did very well here. It was a decent democratic year. And yet Democrats gained no seats in the legislature, remained deeply in the minority. And even in 2016, even though it wasn’t part of this lawsuit, you look at Wisconsin – it was essentially a 50-50 year for races at the top of the ticket, like in the race for president or U.S. Senate. And yet Republicans actually added seats in the legislature to the point that even though Wisconsin is a 50-50 state, they have almost two-thirds of the seats in the legislature”

The case seems to be designed to entice Justice Kennedy.  In his 2004 decision, he alluded to the fact that he would be open to hearing future arguments on gerrymandering if the plaintiffs had come up with some workable standard to determine a level of partisanship.  In this case, the plaintiffs have come up with something they call the “efficiency gap.”

According to NPR, the “efficiency gap” measures”

“ what they call wasted votes. Let’s say you have a strongly Democratic district. And if a Democrat got a lot of votes there, but they only get one seat, they’re saying that they wasted a lot of votes to get those seats. If Democrats come up just short in a lot of other districts, they’re saying they wasted those votes as well.

So they compare that district-by-district to the statewide total, and that gives them this efficiency gap measure. And by that metric, plaintiffs looked back at redistricting plans throughout the U.S., going back to 1972, and Wisconsin’s redistricting plan was one of the most strongly political gerrymandered in history. “

The Brennan Center for Justice further points out that the Wisconsin gerrymandering is among the worst gerrymandering cases seen in decades.  

In 2012 Republicans won 60 of the states 99 legislative seats, despite only winning 48.6% of the popular vote.  In 2014 Republicans won 63 of the 99 legislative seats, with 52% of the vote.  The outcomes suggest that federal rules may have been violated.

Generally there are two federal rules surrounding redistricting.

  1.  Equal Population: for congressional districts that means districts need to be “as nearly as is practicable.” This means that states must make a good-faith effort to create districts with an equal population. For local districts the threshold is lower, they must be “substantially equal” meaning largest and smallest districts generally must be within 10% of each other population wise. At the local level, legislatures have a lot more flexibility to manipulate outcomes.
  2. Race and Ethnicity: the “Voting Rights Act of 1965” was designed to reverse tactics like “cracking;” a redistricting tactic designed to draw each district so that there are as few minorities as possible in each district, and “packing” which is concentrating as many minorities as possible into as few districts as possible.  Section 2 and section 5 of the “Voting Rights Act” are meant to protect the voting rights of minorities, ensuring that they get fair representation.

Why is This Important?

Gill v. Whitford has implications for congressional races in Florida, Michigan, Wisconsin, Ohio, North Carolina, and Pennsylvania.  If SCOTUS rules on the side of the plaintiff, the “efficiency gap” standard could be applied as a barometer for the active lawsuits in the above states. This means congressional districts could be redrawn, and favored parties could face a real challenge, possibly even giving some legislatures a tough election for the first time in years.

More importantly, the case could seriously affect redistricting efforts after the 2020 census.  Applying a new standard to redraw districts could put incumbents in a position of defending their seat against other incumbents, or, more likely than not, take away any unfair advantage they may have had entering the election.