Category: Cline on the Constitution

Privacy and Property

Privacy and Property

This week’s segment of Cline on the Constitution

 

Privacy and Property

 

One momentous decision of the Supreme Court’s last term involved cell-phone privacy.

 

In Carpenter vs. U.S., penned by Chief Justice Roberts, the Court found that data collected from a cell phone that pinpointed a suspected robber’s movements over 127 days involving 12,898 location points violated the target’s privacy rights.  It found that he had “an expectation of privacy” in the data on his cell phone.

 

While most of us assume the information on our cell phones is private, legally it has been far from clear that the protection from governmental intrusion is of constitutional dimension. The Court regularly employs an “expectation of privacy” test. Essentially, a person must have a “objectively reasonable” expectation of privacy in the area to be searched.

 

The “expectation of privacy” test was derived from the landmark case Katz vs. U.S. The court found it that case that a listening device attached to the outside of a telephone booth violated the Fourth Amendment. (Most of my students have never seen a telephone booth. I show them a picture) The court ruled that the Fourth Amendment prohibition against unreasonable search and seizure was violated since the occupant of the phone booth had a “reasonable expectation of privacy.”

 

In order to reach the holding in Carpenter, however, the Roberts court had to ignore two of its own precedents that held there was no “expectation of privacy” in records held by a third party.  In United States v Miller, the court held there was no expectation of privacy in financial records held by a bank and in United States vs. Smith it held there was no expectation of privacy in records of telephone numbers conveyed to the telephone company.  So, can we reasonably say we have an expectation of privacy when our cell phone data is held by a third party, i.e. the entities that operate the servers over which the data flows or is stored.

 

The Carpenter case had to stretch the rationale for the decision to fit the Expectation of Privacy doctrine. And the way it did so gives us a potential roadmap for how the law will develop in the future.  Given the interdependence of modern technology, the Expectation of Privacy test is either going to have be refined or replaced.

 

I will go into more detail on the Carpenter case in my next blog, but I thought it might be worthwhile to explore how the Court was able to arrive at the decision it did.  It gives us a hint of where the jurisprudence might go.

 

One of the cases the Roberts court cited repeatedly was a decision written by the brilliant Justice Antonin Scalia. The case was actually discussed by the nominee in the Kavanaugh hearings though it went over every senator’s head with exception of Senator Lee from Utah.

 

The case was U.S. vs, Jones. The government attached a GPS device to a car and left it on beyond the time authorized by a warrant.  Scalia, to the consternation of the justices in the minority found it was unnecessary to consider the Katz “Expectation of Privacy” test because the government’s action was a trespass against the Property rights of the car owner.

 

And here we pause. Property Rights?  Are they important anymore?  We might want to pay attention since the Far Left has unleased the dogs of socialism.

 

The Fourth Amendment protects “The right of the People to be secure in their persons, houses, papers and effects against unreasonable search and seizure.”  Note it says nothing about privacy rights; what it does talk about are property rights: “houses, papers and effects.” In Scalia’s historical analysis he argued that the framers plainly included this language to protect against the trespass of these property rights by the government.

 

One more example:  The Fifth Amendment provides that no person shall be “deprived of life, liberty, orproperty, without Due Process of Law”. As originally written the provision was a restriction on only the Federal Government.  The Fourteenth Amendment, passed after the Civil War, made it applicable to the States.  “Nor shall any State deprive any person of life, liberty, or property without Due Process of Law.”

 

Were property rights put on a par with rights to life and liberty by the drafters of the Constitution?  In contemporary society, a premium is put on protecting individual rights and liberties.  Okay.  But did the framers, in their wise and prudent efforts to protect us from governmental oppression, know something we have lost sight of regarding the rights to property?

 

Let’s drill down just a little further.

 

John Locke and the natural rights theory, that is that our rights are given us by our maker not granted to us by a government, led to the explicit protection of unenumerated rights in the Ninth Amendment.  And one of those unenumerated rights is the Right of Privacy which we hold so dear today. Privacy encompasses a broad range of “rights” such as abortion, marriage and, now, Cell phone privacy.  Though we traditionally trace the right of privacy to decisions written by the likes of Justice Douglas in the sixties, ironically, the first time the term was used by the Supreme Court was a business/contract case circa 1938.

 

Besides John Locke there were actually two other early influencers on Hamilton, Jefferson, Madison, and John Adams.

 

And now for some concepts I brazenly lifted from studies on the philosophical underpinnings of the Constitution.  Go ahead and read it.  It won’t hurt.

 

Thomas Hobbes (1588-1679) believed Man is most actuated by self-preservation and, therefore, seeks power in all its forms.  Yet Man is not a beast in the jungle and realizes in anarchy only brute force prevails. Man, therefore, surrenders some of his rights to government, in return for protection and order. He, thereby, insures himself a society where cunning rather than strength is the essence.

 

Hobbes’s attitude toward the nature of Man coincided with the old Puritan doctrine of Man’s depravity and justified the “property consciousness of an acquisitive young society.”  Those same utterances can be traced to the Federalism constructs of Alexander Hamilton.

 

John Locke (1632-1704) differed with Hobbes on many things, though they shared the view of the perverse and predatory nature of Man and agreed that government was necessary to prevent anarchy. The form the government should take was where they differed. Like Hobbes, Locke believed that to curb man’s perversity of his own nature, man creates government and in so doing willingly surrenders some measure of his natural rights in return for security for person and property.  However, man does not sign over a blank check.  To Locke, government is a function of the governed, existing by their consent and responsible to them for its actions.  Government is not a Sovereign but rather a Fiduciary, a property concept.

 

All men, Locke said, have a natural instinct for life, liberty, and property.  The first two of those Man holds in common with beasts, but the third, property, is peculiar to man alone. It is in the view of Locke and others justified by the Bible.  “God has given the earth to the Children of men.”

 

He concludes that the rights of life and liberty can to a large degree be obtained in the state of nature, but the right to property is insured only under government.

 

“The great and chief end,” he says, “therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property.”  He felt the right of property was inviolable and that government is bound by social contract to protect that right and may never abrogate it without the consent of the property owner.  He felt that in times of war and emergency, the government can conscript the life and limit the freedom of the individual, but may never arbitrarily remove his possessions.

 

Locke in exalting the three virtues of life, liberty, and property, argued the greatest of these is property.

 

The third philosophical influence, Jacques Rousseau (1712-1778) was a disciple of Locke, but a far more sanguine believer in the natural goodness of Man. He bemoaned Man’s acquisitive nature and discoursed on his belief that in a state of nature where the fruits of the earth are available to all, Man is “a noble savage” ignorant, satisfied, and perfectly free.  When private property is introduced, Man begins to lose his natural goodness.  Government is there, he believed, to protect private property, and therefore is corrupting. A significant concession.  He therefore, advocated for a pure democratic form of government, in which sovereignty rests in the people.

 

Our founders, however, viewed Rousseau’s views dimly and his view that the general good is more important than personal possessions had no appeal to them though his ideas about universal education and the virtues of agrarian life, were later reflected in the views of Jefferson and ultimately, Andrew Jackson.

 

Heavy stuff.

 

But, it does establish that property rights to the framers of the Constitution were extremely important. And to maintain true freedom, they felt, the government should be restricted in interference with an individual’s property rights.  Something we should keep in mind when we contemplate the schemes the government in Sacramento is contemplating.  They have many grand schemes, including universal health care for citizen and non-citizen alike.  They have to pay for many of these grand schemes, not with their money, but with ours. There is no other funding source. And for the average citizens, whose major possessions are their automobiles and homes, one might be concerned that their property rights being whittle away by a government who wants to decide how they are to live, how they are to drive, and how they are to enjoy the property they own.

 

In my next segment I will try to connect this up to how the Supreme Court is going to handle this crossroad.  And how Constitutional law is headed for a collision between Privacy and Property.

 

For more articles on the Constitution and other writings  by Phil Cline, visit philcline.com

 

Cline on the Constitution

Cline on the Constitution

Justice Kavanaugh and Letting Sleeping Dogs Lie

 

Tuesday morning the Senate will open hearings on the confirmation of Justice Brett Kavanaugh’s nomination to the Supreme Court.   The candidate has lived an honorable life, is well liked, enjoys a reputation as a good and decent man, and is an experienced and imminently qualified jurist who has served a decade on the most important Court of Appeals in the land.

 

So, what can we expect of the hearing?

 

We can expect the hearing to be interrupted by vulgar screaming demonstrators in mass produced t-shirts, we can expect Justice Kavanaugh and his family to be subjected to sustained scurrilous attacks by self-serving, self-promoting, shameless Senators who have already made up their mind but see theatrical opportunity for personal advancement in permanently damaging the man’s good character.

 

Okay.  We live with that.

 

But hidden among the garbage, we can also expect a few nuggets of Constitutional law worthy of discussion.  Much of it will center on past case decisions of the Supreme Court.  In those discussions, we will probably hear phrases like “Case Precedent” and “Stare Decisis”.  Important concepts.  What do they actually mean? And why are they important?

 

One example relevant to the hearings:  Lines of questioning about Roe v Wade promise to be repetitive. Roe v Wade is the case which first held the Right to Privacy encompasses the right of a woman to terminate a pregnancy under certain circumstances.  The inquiries will concern the nominee’s commitment to Roe v Wade as “Case Precedent” and whether he may or may not vote to overrule the decision. This is where the rules of “Stare decisis” come into play.

 

The words are, obviously, Latin. They mean “standing by the decision.” The term is actually derived the from the Latin phrase, “stare decisis et non quieta movere,”or “stand by matters that have been decided and do not disturb what is tranquil.”

 

A lot of wisdom in that. As Geoffrey Chaucer said in 1380, “it is nought good a slepying hound to wake.” Or as us country boys would say “Let sleeping dogs lie.” But of course, we lawyers have to dress it up a tinge. We say, “It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue.”

 

Makes sense when you think about it.  To the extent possible we want our law to be predictable, stable and secure. We want it to be uniform, efficient and we want courts to act with a modicum of constraint in changing what has become accepted law.

 

One Supreme Court Justice put it thus, “(u)nless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

 

And as the famous Justice Benjamin Cardozo said, “(t)he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.”

 

All fine sentiments, but is the worry that changing the make-up of the Supreme Court could endanger established case precedent real?  After all, Chief Justice Charles Evans Hughes once said, “We are under a Constitution, but the Constitution is what the judges say it is, . . .”

 

In fact, the Court has reversed itself over two hundred times and three quarters of those were Constitutional decisions. The most famous example is the landmark decision of Brown v Board of Education which reversed previous court’s decision which had sanctioned “Separate but Equal” in the field of education.

 

I recently read an article in a legal journal about a book I knew about, but which I’ve never read and don’t intend to.  The book is an 800-page tome named “The Law of Judicial Precedent.” As Justice Neil Gorsuch stated during his confirmation hearings, “It makes an excellent doorstop.”

Interestingly enough, not only was Justice Gorsuch among many other legal scholars a contributing author, but so was Justice Kavanaugh.

 

The book (I choose to rely on the article’s summary in the legal journal than to read such a monstrosity), theorizes the doctrine of stare decisis applies less rigidly in constitutional cases than it does in statutory cases because the correction of an erroneous constitutional decision by the legislature is well-nigh impossible.  For example, the Congress can more easily pass a law correcting a Court decision about a Coal mine than one interpreting Free Speech.

 

On the other hand, the treatise states, “If at least five members of the Court are sufficiently convinced that the law has gone gravely wrong, then the Court will exercise its prerogative to overrule the earlier case and put things aright.”

 

But like legal matters, even Judges (although local ones especially have to be frequently reminded of this) are not free to willy-nilly rule one way or the other.  The values of reliable precedent must be upheld so the court uses factors in analyzing when a prior case should be overruled.  Because of space concerns I won’t go over all of the factors, but it is well to note that the Court used such an approach in its recent decision to overrule case precedents involving “union closed shops.” After weighing the value and reliability of these case precedents, they found it was unconstitutional to require all government employees to pay union dues whether they belonged to the Union or not.

 

The vote was 5-4.  Gorsuch (and Kennedy) was in the majority.

 

For more Cline on the Constitution and other writings by Phil Cline visit philcline.com

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Cake Baking case

The Cake Baking case

This week’s segment of Cline on the Constitution.

 

“We Reserve the Right to Refuse Service to Anyone.”

 

When Americans think of Civil Rights, they often think of the Constitution.  That is okay.  But it is inaccurate.

 

Our most fundamental rights are enshrined in the Constitution and Bill of Rights.  There is, however, a distinction between the Bill of Rights and Civil Rights legislation. The Protections contained in the Bill of Rights are directed against Government Action. Civil Rights laws, on the other hand, regulate Private Conduct.  For example, being denied access to a government building may violate the Bill of Rights.  Being denied accommodations at a privately owned inn or restaurant involves Civil Rights law not the Constitution.

 

Civil Rights laws are not part of the Constitution.  They are laws which, like other laws, are passed by the Congress and State Legislatures or, increasingly, local government entities such as city councils or school boards. And as such, unlike the Bill of Rights they can be changed by the same governmental body that passed the law in the first place.

 

When in conflict with the United States Constitution, Civil Rights laws are invalid.  The reason being because the United States Constitution has a Supremacy clause.  It is the Supreme Law of the land. No federal, state or local ordinance, even if it is in the nature of Civil Rights legislation, may violate the United States Constitution nor a citizen’s rights enshrined in our Bill of Rights.

 

The primary Federal Civil Rights Laws were passed by Congress in 1964.  The authority to pass the laws is based upon the Constitutional grant to Congress of the power to regulate Interstate Commerce.

 

What this means is that if it can be rationally argued that conduct by a private business “affects” Interstate Commerce then Civil Rights laws that regulate the conduct is constitutional.

 

Two examples may help clarify. We all remember that during the civil rights movement, one of the tactics used to end segregation in transportation was to have teams of Black people ride buses throughout the South.   State enforced public-accommodations laws restricting where Blacks were allowed to ride in buses were thereby challenged.  Because the private business of busing could be directly shown to “affect” interstate commerce even if the bus never crossed state lines the Civil Rights legislation prohibiting the discrimination by private bus companies was constitutional. On the other hand, attempts by States to regulate gun possession by enforcing gun free zones near schools could not be justified as “affecting” interstate commerce and were struck down by the Supreme Court as violative of the Second Amendment.

 

Besides the Federal Civil Rights laws, there is a whole other layer of Civil Rights laws which have grown up over the last several decades.  The first level is at the State level.  Though some of the States have long histories of acting to prohibit discrimination, their laws were generally limited to discrimination based on “race, color or previous condition of servitude.”

 

Modernly, there are not only State Civil Rights laws, there are County Civil Rights laws and even City Civil Rights laws.  Almost all are directed toward outlawing discrimination by private businesses against groups of persons.

 

And the list of groups has expanded over the last several decades.

 

Among others, modern civil rights laws address discrimination as applied to race, gender, creed, ethnic origins, religious minorities, sexual orientation, marital status, ancestry, disability, illegitimacy and the newest category, gender identity.

 

The list expands or contracts depending on the jurisdiction.

 

And the frontier is being pushed even further.  California’s legislature is in the process of passing a new Civil Rights law requiring half of all corporate board of directors of private business be women. Of course, if they can require such a quota for women, how long will it be before other groups demand equal representation on corporations doing business in the State?

 

What makes for interesting juxtapositions of this tome of Civil Rights legislation at the state and local level is the Constitution of the United States. Actions to enforce civil rights laws, be it by court or commission, is Government Action and, therefore, if the enforcement action impinges on an individual’s rights under the Bill of Rights, the matter is brought full circle.  The question is joined.  Does the Civil Rights law violate the Constitution?

 

This is where a man by the name of Jack Phillips found himself.  Mr. Phillips owns and operates a bakery. He is a devout Christian.  He operates his business according to Christian principles even if it means forgoing income.  He is closed on Sundays, he pays his employees higher than minimum wage, he gives them loans of money in time of need, he refuses to bake cakes containing alcohol, he refuses to bake cakes with racist or homophobic messages or cakes criticizing God and refuses to bake cakes celebrating Halloween even though Halloween is one of the most lucrative seasons for bakeries.

 

Two men asked him to prepare a wedding cake in celebration of their marriage.  He declined.  He offered to prepare and sell them any other baked goods they desired, including birthday cakes, but to create the cake celebrating a marriage of a same sex couple violated his religious beliefs that marriage is a sacred union between one man and one woman. To create such a cake celebrating the opposite of what he believed, he argued, violated his First Amendment rights, both as to the First Amendment guarantee of the Free Exercise of one’s religion and Freedom of Expression.

 

His argument brought to the fore, two rights that are superior to any state or local civil rights ordinance: Freedom of Religion and Free Speech.

 

The State of Colorado made short shrift of the Mr. Phillip’s religious beliefs and ruled he violated the couple’s rights by not baking the cake. One commissioner went so far as to equate Mr. Phillips refusal to bake a cake to debunked justifications for slavery and the holocaust. He said, “and to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”

 

The Colorado commission’s reprehensible treatment of Phillips gave Justice Kennedy a gift.

 

Justice Kennedy is the author of the most important gay rights cases of the era, including the Obergefell case banning restrictions on Gay Marriage.

 

And on his way off the court, he needed to find a way to uphold Phillips without endangering the progress in jurisprudence regarding gay rights he had led the way in engendering.

 

In a 7-2 decision written by Kennedy, the court found for Mr. Phillips.  However, as I said in my last blog entry, they essentially punted. They didn’t find that Mr. Phillips rights were violated by requiring he bake the cake or be fined.

 

Rather, in his majority opinion Kennedy found that the Colorado commission’s treatment of Phillips demonstrated an “unconstitutional hostility to his religious beliefs.”  He went on to fashion some new rules, which may or may not survive the test of time.  But he did not address the Free Exercise or Freedom of Speech issues.  He essentially kicked the can on those issues down the road to be decided by a future Supreme Court.

 

As to the Free Exercise clause, the court is walking a tight rope of their own making.  On the one hand, they fear that if they allow people to assert their religious beliefs in denying service to identifiable groups it would undermine all civil rights laws that seek to govern private conduct. A return to the back of the bus as it were. On the other hand, does government get to make the decisions on what is a valid religious belief and tell citizens they are not free to exercise their religion as they choose? The Constitution explicitly says No.

 

What is most interesting about the case and what has not received a lot of public discussion, but which was very much on the minds of many of the Justices as reflected in the concurring opinions penned by Alito, Gorsuch, and Thomas is what I believe is a major freedom of expression issue and what the court will have to address in the near future. And that is “Compelled Speech.”  It has import in many areas.  From college campuses enforcing speech codes as if they were “re-education camps” to the large internet companies policing points of view.

 

As applied to the Baker, the court acknowledged that Mr. Phillips considered the cakes he made as works of art.  As such they were “expressive conduct” which is protected under the First Amendment.

 

Additionally, as I outlined in my last blog, requiring speech approved by the government is just as violative of the first amendment as restricting protected speech.

 

For example, the court referenced a previous case in which the Court struck down an ordinance requiring the organizers of a Saint Patrick’s Day parade to include a unit celebrating gays and bisexuals.

 

The court explained that they rejected the notion that governments can mandate thoughts and statements acceptable to some groups or indeed all people, as the “antithesis of free speech.” As one of the concurring opinions stated, “One important manifestation of the principle of free speech is that one who chooses to speak may decide what NOT to say and tailor the content of his message as he sees fit.”

 

Colorado attempted to justify requiring the creation of the cake as compelling Phillip’s speech to prevent him from “denigrating the dignity” of same sex couples, “asserting their inferiority” and subjecting them to “humiliation, frustration, and embarrassment.”

 

One justice wrote, “These justifications are completely foreign to our free-speech jurisprudence.” He went on to say, “States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.” And further, “it is not the role of the State or its officials to prescribe what shall be offensive.”

 

The Justice hit the nail on the head when he quoted an earlier case, “If the only reason a public-accommodations law regulates speech is “to produce a society free of biases against protected groups, that purpose is decidedly fatal to the law’s constitutionality, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

 

I foresee many other instances where the Bill of Rights is going to come into conflict with the increasingly aggressive use of State and local ordinances to say nothing of school rules designed to stifle unwelcome opinions by requiring a rote declaration of allegiance to principles dictated by those in authority.

 

Ultimately, such laws harm rather help the cause of gay rights as well as other civil rights by oppressing those who may disagree with what we believe.

 

Stay tuned.

 

But about those signs “reserving the right to refuse service to anyone.”?

 

Forget it.

 

For other articles on the Constitution as well as writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

Speech Issues on Abortion

Speech Issues on Abortion

This week’s segment of Cline on the Constitution continues the review of major cases decided by the Supreme Court in the last term.

 

The court issued opinions on two cases involving Freedom of Speech and Association.

 

In one case the Court affirmed an important principle regarding Free Speech.  In the other they punted.

 

As to the first case, California’s steady drift toward becoming a complete “Nanny State” resulted in a law directly targeting, appropriately enough, anti-abortion pregnancy Centers.

 

In National Institute etc. v Becerra, operators of Pro-Life clinics challenged a State Law requiring that they post information on how to get no cost state funded abortions. The law compelled these clinics to speak against, indeed advertise, the very thing they abhor. It is rather Kafkaesque to, by force of law, require people to advertise for a state funded procedure that is anathema to their core beliefs on religion, health and morality.

 

And that is aside from the fact we were given yet another law, which assumes a free people, are inept and incompetent. In a state like California where obtaining an abortion is literally free on demand, and the State puts out endless reams of materials about to how and where to get an abortion, the “ninny nannies” in the legislature and Governor’s mansion harbor the inchoate suspicion that a woman who wants one might not be able to figure it out how to get one.

 

The second case is the infamous “Masterpiece Cakeshop” case which presented the issue whether the Court would be willing to uphold a governmental decision that someone’s religious beliefs and practices must be cast aside in service to an ever-increasing alphabet of offended persons who can’t be expected to walk across the street to another merchant to buy a damn wedding cake.  The case centers on the intersection of both Freedom of Religion and Freedom of Speech.  I will have more to say about this case next week.

 

Now, back to the California abortion advertiser case.  In an attempt to uphold the law the Ninth Circuit Court of Appeals, those legendary masters of legal legerdemain, attempted to invent a new category of speech. They called it “professional speech.”  This new category would give federal courts the means to ignore the usual requirements that “content based” laws that target speech based upon content have to pass strict scrutiny tests.  It would mean government would be free to regulate such speech as they see fit, ban the speech or, like in this case, even require it.

 

The Supreme Court rightly told them there was no such thing as “Professional Speech” and ruled they couldn’t do that.

 

Justice Clarence Thomas wrote the majority opinion, but it was Justice Kennedy who succinctly stated the trenchant issue.

 

“This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.”

 

“For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions.”

 

“This compels individuals to contradict their most deeply held beliefs, grounded in basic philosophical, ethical, or religious precepts . . . “

 

The minority opinion written by Justice Stephen Breyer worried that the majority’s opinion might lead to challenges of “informed consent” rules and regulations.  For example, by endangering laws requiring medical professionals to give enough information that the person consenting to a procedure is doing so with full knowledge of the risks and benefits.  That, however, is more of a civil liability avoidance procedure than a constitutional principle.

 

The basic Free Speech principle is that if government cannot restrict a person’s freedom of speech, can they require a people to say something they disagree with simply because the government has decided it might be necessary to protect someone it assumes lacks the intelligence or responsibility to get out and get what they want themselves.

 

The opinion rightly points out that if government determines that a message needs to get to out and they have a rational basis for doing so, then, they have a number of way of disseminating the information, including advertising, themselves.  What they can’t do, is required others to communicate that message for them.

 

Lastly, one can be supportive of the landmark Casey case that recognizes a woman’s right to choose to a terminate a pregnancy under certain circumstances without the government unfairly burdening that choice yet be concerned when the government passes laws as it did here.  When it becomes so involved in advocacy of a position that it violates constitutional principles put in place to protect one’s freedom to follow sincerely held beliefs, government has gone where they may not go.

 

For other writings and articles by Phil Cline, visit philcline.com

 

Cline on the Constitution-Danger of One Person Rule

Cline on the Constitution-Danger of One Person Rule

This Week’s segment of Cline on the Constitution.

 

The Danger of One Person Rule

 

Justice Brett Kavanaugh’s nomination is currently being navigated through the shark infested waters of the United States Senate populated with man eaters hungry to attack, chew up and dismember someone who, by all accounts, is a good and honorable family man with impeccable legal credentials.

 

As usual the “Chicken Little” corps on the left predict the end of civilization as we know it should he be confirmed. That isn’t true.  However, can we expect an impact an on direction of the court?  Sure.  And it is prudent to consider how it may affect the direction of the Court, but without all the folderol.

 

As I contemplate potential changes in the jurisprudence of the Supreme Court, I begin with of the warnings deceased Justice Antonin Scalia gave about how modernly the Supreme Court and the entire federal judiciary is moving the country away from democratic rule. Although it can be seen in rulings and orders of Federal Judges across the country, the Supreme Court’s just competed term provides the most visible example.

 

It is plain from reviewing the cases that the Supreme Court is severely split along ideological lines. It’s may be the worse it been since the Great Depression.  This isn’t the fault of either Justice Kavanaugh nor President Trump.  It has existed for some time. And though historians might disagree, most lawyers with any sense of political realities know why.  It is the result of the Federal Judiciary throwing off the bonds of traditional judicial restraint.

 

I will in future blogs analyze each of the major cases decided in the last term, but I first wanted to take an Eagle’s eye view especially in light of the unbridled rage and hate speech directed at the latest nominee to the Supreme Court.

 

In the just completed term there were 19 split decisions by the United States Supreme Court.  In each case the vote was divided 5 to 4.  These cases involved momentous blockbuster issues. Cases on Immigration, National Security, Voting Rights, Gay Rights, Religious Freedom, Compelled Speech, Abortion, Union Shops, Cell Phone Privacy, and Taxation of Internet Companies like Amazon were all decided 5 to 4. Pause here a moment and consider if the vote is 5 to 4, then the vote of one person decided each of these issues for the rest of us, all 350 million, give or take.  Not a representative Congress, not a nationally elected President. Rather, one person. And an unelected one at that.

 

Of those 19 cases, Justice Kennedy whom Justice Kavanaugh will be replacing was a deciding vote or in the majority in all 19.

 

To be fair, some of the majorities in the 5-4 decisions had surprising alliances.  Justice Gorsuch, the newest justice and one who is identified with the conservative wing of the Court joined his more liberal colleagues to strike down a deportation order because the law written by Congress was unconstitutionally overbroad.  Similarly, Chief Justice Roberts joined the liberal wing while liberal Justice Ginsberg voted with the conservative wing in rewriting the state taxation powers over internet companies like Imperial Amazon.  But those few exceptions aside, by in large, the conservative/liberal split was maintained throughout the term.

 

The number of 5-4 decisions on the important issues of the time, is an indicator that there may something wrong with our democracy.  If the vote of the most learned of our men and women of the law is so evenly split, then the law is not crystal clear.  However, because the Court has set itself up as Regal arbiter, the great issues are decided by one person’s vote.

 

The legal media like to call it a “swing vote.” And that one vote by one person decides who wins and who loses on issues which once were debated in the Congress and the state legislatures.  Instead, we wait on court decisions like an athletic event that has gone down to the wire. And upon announcement cheers or moans go across the land depending on whether your team won or lost.

 

The problem is that democracies are not supposed to be run like this.  One-person rule is anathema to democracy.  It matters little that the swing person may rotate among the same nine persons rather like the presidency of the local rotary club. It’s the wrong institution to attend.

 

Established Constitutional principles of Judicial Restraint compel the Supreme Court to defer certain issues to the political branches, the democratically elected Congress and President. We may soon see the results of the Court’s moving away from this basic principle.

 

First Congress is damaged. We no longer ever have reason to cheer the success of Congress, our elected representatives facing difficult issues, taking testimony from expert witnesses, respecting and considering the regional implications of a law, debating vigorously and then formulating a policy to be applied in all future instances and having processes in place to modify the policy even as its being implemented. And the Congress is damaged in other ways.  It is a basic political axiom that if you can maneuver a hot political issue over to someone else to take the heat, you do so.  And knowing the Supreme Court is all too willing to intervene, Congress has gotten use to abdicating their responsibility.  It is exceedingly easy to attack persons, even good people like Justice Kavanaugh.  It is hard work to actually propose, work with the other party, and pass legislation to address policy issues.

 

And the Presidency is undermined.  We have little time to judge and improve the Executive Branch’s actions.  Even though the expertise might be with the Administration and the framers of the Constitution intended a President to be able to take swift action, modernly every move, every change, a President makes is immediately challenged in federal courts and a lone arrogant federal judge somewhere will most likely issue injunctions and orders on how the policy is to be implemented or prevent it from being implemented at all. And again, the ultimate arbiter the body we seem to have granted the power of pre-approval, is that “One Supreme Court” of nine persons, all educated the same way at the same Eastern schools who can’t even agree among themselves.

 

The process has been further corrupted by calls for lightening quick decisions. The unwise and historically novel approach of the Court requiring pre-approval of all acts of the other two co-equal branches of government has perverted the system of appeals. Briefing schedules are expedited. We do not insist on the time to develop and explore the legal rules, precedents and implications of decisions. There is no time to review numerous amicus briefs from interested groups nor to hear well prepared, skilled oral advocacy.  Now we demand our legal decisions, like everything else happen in the blink of a news cycle. It’s not a good way to apply Constitutional Law and it’s not a good way to run a large powerful country.

 

Have we devolved to one-person rule?  Is that why there is so much animosity against someone of Justice Kavanaugh’s character and credentials?  Is it because we know we are now ruled as Justice Scalia says by a majority of nine persons?  And is it because that person, whether a Supreme Court justice or a federal judge on the lowest rung of the judicial ladder, is an unelected, unaccountable individual with little or no expertise in the subject area and who is poorly equipped to address the complexity of most issues?

 

There is a real danger here. And it is more than a gradual weakening of our democratic institutions.

 

A dangerous consequence may occur in the not too distant future.  The other branches may say No and defy the orders of the Judiciary. Then what?    The Court has no police force, no military, no control of the purse strings. The judiciary under the Constitution has only the power of persuasion. And that was done by the framers intentionally.

 

If the Court continues to fail to adhere to principles of Judicial Restraint which earlier Supreme Courts wisely and prudently followed; if they continue to undermine and supersede the other democratically elected branches of government, the Congress and the President, they may find themselves in a confrontation.  And if on that particular issue they don’t have overwhelming support from the entire public they will surely lose.

 

And if they lose just one Constitutional confrontation of that sort, we all lose for all time.

 

For other postings of Cline on the Constitution visit philcline.com

Cline on the Constitution – Universal Injunctions

Cline on the Constitution – Universal Injunctions

Just back from a few days at the coast, but in time for a new segment of Cline on the Constitution. In reading though some of the Supreme Court’s recent decisions, I came across an interesting issue which I’m sometimes asked about.

 

Universal Injunctions.

 

The situation is this. Congress passes a law or the President attempts to implement a new policy. An advocacy group such as the ACLU finds a client, picks a friendly federal district court and files suit.  The Judge then issues an injunction stopping the implementation of the law, not just as to the person before the court, but applies it to everybody nationwide.  And of late, it happens over and over virtually paralyzing the political branches of government.

 

Does the Constitution provide district courts with that kind of power?

 

Justice Clarence Thomas has seldom received the same accolades as his brothers and sisters on the bench.   But then he doesn’t seek the level of attention as some of them seem to crave and cultivate.  However, he has offered many intelligent, insightful and courageous opinions, often as concurring or dissenting opinions.

 

In a recent opinion he took up a very important issue the federal judiciary is reluctant to address because it goes to their own power and conduct.  Justice Thomas posited the question of whether local District Court Judges, who occupy the lowest rung on the Federal Judicial ladder, can constitutionally issue orders on cases before them and then apply those orders to the entire nation affecting millions of citizens and non-citizens who are not before them.   And can they restrain the entire federal government from acting everywhere.

 

The legal procedures used to exercise such great power are called “Universal Injunctions.”

 

A Universal Injunction was used by a district court in Hawaii to prevent the President from implementing orders banning certain non-citizens from traveling to the United States from foreign lands.  The Supreme Court overturned the actions of the Hawaii court and dissolved the injunction.

 

Justice Thomas in his concurring opinion in that case confronted the issue of Universal Injunctions and their constitutionality.

 

It is important to understand how the judicial power is being used when universal injunctions like the one found improper by the Supreme Court are used.

 

This is not a situation where an appellate court reviews the results of a trial in a lower court, i.e. a District Court, and rules something was done wrong in the lower court and issues an opinion.  This is not a situation where a case of national import is ruled on by the Supreme Court.

 

This is a situation where over six hundred local lower court judges have asserted the power to take a local case and rule nationally.

 

First of all, there is nothing more noble or intelligent about federal judicial officers than any other occupation or profession.  They have the same foibles and biases as the rest of us. Some have less.  Some have more.  They are largely political appointees, and too few leave their political views behind.

 

Yet, these six hundred individuals, when they issue Universal Injunctions, are in effect acting as an unelected, unaccountable super legislature.

 

Not exactly what our founders envisioned.

 

It is well to remember that all federal courts with the exception of the Supreme Court are creations of Congress and under the Constitution their jurisdiction is subject to restrictions and exceptions placed upon them by Congress.  The constitution provides only for One Supreme Court and “such other courts as Congress may from time to time ordain and establish.”  The lower federal courts were mostly established by the Judiciary Act of 1789.

 

Issuing a Universal Injunction is not a power expressly given to federal district court judges by the Constitution or act of Congress.  It is an extraordinary power the courts must carve out of the general judicial power based upon historically recognized principles.

 

In his opinion, Justice Thomas examined the history of a court’s power to use extraordinary remedies such as injunctions.

 

He traced its history to the ancient equity courts in England.  There the power was vested in the Exchequer of the Chancery to fashion remedies where the strictures of the common law could not find a way to deliver justice in unusual cases. However, the power was always severely limited, and it actually originated as an aspect of the “divine” power of the Kings.  Interestedly, it could not be used to restrain the Crown because that was the source of the power.

 

Justice Thomas went on and reviewed the debates over extraordinary equity powers at the time of our nations’ founding.  And he emphasized that In the federalist and anti-federalist papers the accepted wisdom was that there was a need for judicial restraint less the whole idea of functioning democracy be undermined.

 

Sounds familiar.

 

And finally, he noted that the use of “universal” injunctions did not debut in America until the 1960s. It first appeared in a case dealing with worker’s wages.  The constitutional basis for the power was never really considered in any depth.  Mainly because it was used rarely used.  At least until recently.

 

And it does seem that the unprecedented increase in their use was concurrent with the politicization of the federal judiciary. A politicization facilitated by the judiciary’s willingness even at their lowest level to intervene in affairs traditionally the responsibility of the other co-equal branches of government and to exercise power or millions of citizens who are not parties to the cases before them.

 

As Justice Thomas opined:

 

“American court’s tradition of providing equitable relief only to parties was consistent with their view of the nature of judicial power.  For most of our history, courts understood judicial power as “fundamentally the power to render judgements in individual cases.” Historically, Court’s only provided equitable relief to the parties to the suit.  They never ventured outside the case they were call upon to decide which is exactly what is done when a universal injunction is issued.

 

It is a fundamental rule of Standing that the Constitution limits the Courts as to who can sue to vindicate certain rights.  A person cannot bring suit to vindicate “public rights”, that is rights held by the community at large without showing of some specific injury to himself.  And a plaintiff cannot sue to vindicate the private rights of someone else, a third party.  Such claims have historically been considered beyond the authority of the courts. Otherwise the courts end up setting policy which they are not supposed to do.  The framers reserved public policy question to the legislative process.

 

The argument in the favor of the use of universal injunctions is that they give the judiciary a powerful tool to check the Executive Branch.  But the argument does not explain where the power comes from. As Justice Thomas explains,

 

“But these arguments do not explain how these injunctions are consistent with the historical limits on equity and judicial power.  They at best “boil down to a policy judgement” about how powers ought to be allocated among our three branches of government, but the people already made that choice when they ratified the constitution.”

 

Justice Thomas concludes by stating “in sum, universal injunctions are legally and historically dubious.  If federal courts continue to issue them, this Court is duty-bound to adjudicate their authority to do so.”

 

Indeed.

 

For other writings by Phil Cline on the Constitution, visit philcline.com

 

 

Cline on the Constitution-New Segment

Cline on the Constitution-New Segment

Roe v Wade

 

I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions.  It was as if they were engaged in a holding action.   Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement.  That explained a lot about the tentativeness of the Court in taking a firm position.

 

As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic.  To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic.  Batten down the hatches.  The fear of the change borders on the irrational.  Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.

 

Will the seating of a new justice bring some changes to Constitutional Jurisprudence?  Sure.  Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.

 

Does it spell the end? Of course not.

 

I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses.  I’ll get back to the new cases in the coming weeks.   Lots of good stuff there, but it can wait a little while.

 

Two issues will receive a lot of discussion.  The first is Gay Rights.  Justice Kennedy penned a series of leading decisions in the area.  His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court.  More 5-4 decisions.

 

I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.

 

Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal.  It would mean that under our federalist system the issue would fall back to the states.  And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:

 

“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

 

Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.

 

I’ve written in prior blogs about the origins of the Right to Privacy.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.

 

In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials.  In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

 

The next year Roe v Wade came along.  It was a difficult decision for the justices.  It was actually heard once, including oral argument and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.

 

One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.

 

Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and where the fight has actually been.  At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.

 

In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.

 

Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.

 

She wrote the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also made it clear that Roe v Wade had established a woman’s right to choose.

 

O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”

 

These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.

 

The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.

 

In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”

 

Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.

 

It would seem to indicate a change was very possible.  However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld.  That central holding is not going to change.

 

 

 

 

 

 

 

 

 

 

 

 

Executive Discretion

Executive Discretion

I took a little hiatus from Cline on the Constitution to recharge the old batteries.  Lots happening at Supreme Court and elsewhere. Will try to catch my readers up over the next few weeks.

 

Executive Power

 

Out of the overheated debates on the situation at the border, lost among the shrieking and gnashing of teeth, is the question of the President’s responsibility for enforcing the laws of the United States.

 

There is little question that adults with children in tow have traveled from Central America across Mexico either with assistance of the Mexican government and the human trafficking cartels the leaders of Mexico allow to operate in their country. Arriving at the border, these people intentionally violated federal statues by illegally entering the United States.

 

Some claim they require asylum, some of the claims are legitimate, some fraudulent.  In order to properly evaluate asylum claims, federal law requires the persons making the claim to appear at designated Ports of Entry and not illegally sneak across the border attempting to avoid apprehension.

 

This administration recently announced a “Zero Tolerance” policy.  That is, they will arrest, detain, and prosecute the adults for violating the criminal statues of the United States without exception.  Because of federal laws, federal court decisions and consent decrees administered by the federal courts with the arrest of the lawbreakers, the separation of the adults from the children occurs. Some of the children belong to the adults.  Some don’t.

 

The President has demanded corrective legislation from Congress.  Members of Congress respond that he should simply order federal officers not to enforce the law.  The latter is consistent with past practice.  In the past the adults were released after solemnly, under oath promising to return for court proceedings. They of course lied.  After breaking the law and swearing to return, the vast majority absconded.

 

That sets the Constitutional issue.  May the President refuse to enforce the law?

 

Article 2, section 1, clause 1 of the Constitution vests all Executive Power in the President of the United States.  And Article 1, section 3, provides that the President shall, “take Care that the Laws be Faithfully executed.”  He is explicitly charged with the responsibility to “Faithfully Execute the Law.”

 

On the face of it there would be no choice.  The law is the law and the President is required to carry it out.  Right?  That would appear to be the meaning of “faithfully executed.”  However, it’s just not that simple.  The Supreme Court has long recognized that there is an element of discretion that is granted the Chief Executive.  It is the same discretion that is granted locally elected District Attorneys across the nation.  In fact, as applied to the Presidency the Court even used the term “Prosecutorial Discretion” interchangeably with “Executive Discretion.”

 

Having served over three decades as a prosecutor, two of those decades as the elected District Attorney, it’s a subject I know something about. When I teach about the subject I use the phrase “The Power of No.”

 

To appreciate the phrase a little history is useful.  The evolution of the “independent” prosecutor developed during the flowering of Jacksoninan Democracy. Andrew Jackson lead the movement of having local office holders freely elected instead of being appointed by Governors or legislatures. District Attorneys across the nation during his term started breaking away from being an arm of the judiciary until by the time of the Civil War, most were being independently elected. As that evolution occurred, one of most hotly debated issues was prosecutorial discretion, “The power to say No.”  That is, it didn’t matter who wanted a case filed, or prosecuted, the discretion of the local prosecutor meant they could refuse to proceed with the case and no one could make them do so.  The thoughtful legal scholars of the time thought that too much power.

 

Over the decades, the discretion to not proceed with a prosecution has been justified in numerous ways. As a means for saving resources, for being able to tailor justice in exceptional cases and other reasons.  And it continues to this day.  President Obama’s administration decided not to enforce the federal marijuana laws and refused to enforce the Defense of Marriage Act (DOMA) that defined marriage as being between one woman and one man for purposes of federal law. The present administration, like past administrations has indicated they may not spend the money allocated by Congress in the budget just passed, in effect impounding the funds.

 

On the other-hand some legal scholars have also argued that a President refusing to enforce the law is unconstitutional.  They point out that it constitutes an interference with Article 1’s delegation of all legislative power to the Congress.  If the President refuses to enforce the laws passed by Congress, does that not transfer the legislative power to the President, in effect giving him a super veto power over legislation that can’t be overridden by Congress?

 

In those situations where holder of the executive power refuses to enforce the law, what is the remedy? What can be done about it legally?

 

It’s not a “Congressional Oversight” question.  Congressmen like that term, but in reality, though they share some powers, they don’t have constitutional oversight of a co-equal branch of government.

 

The remedy usually recognized is a democratic one.   The elected executive/prosecutor can be replaced through the process of an election. If the voters don’t like that the laws are not being enforced, they can replace the official.  One could argue, I suppose, that that occurred when President Trump was elected ostensibly in part to enforce the immigration laws that had been benignly neglected by past Presidents.

 

What is clear, however, is that the Court would most probably recognize the President does have discretion not to enforce the laws requiring the arrest of individuals illegally entering our country.  He does have the power to say No.

 

Whether this would be heartwarming in the short term by reuniting the child with the adult or heartbreaking in the long term by encouraging endless lawlessness on our border, is a difficult question.  “Executive Discretion”, the power to decide when to go forward or when to say “No” is real power.  Knowing when and how to apply it is not that easy.

 

For more article and writing by Phil Cline, you are invited to visit philcline.com

 

 

 

Fresno State

Fresno State

I have followed with interest the discussions regarding hateful tweets concerning Barbara Bush by a Fresno State college professor.  As expected the President of the College declined to do anything.  College presidents across the nation are not exactly distinguishing themselves with displays of courage and leadership no matter how embarrassing the conduct of their staff or students.  If you expect them to take a stand don’t wait outside in the rain.  You will expire of pneumonia before they take any definitive action.  Today a college presidency is more about public relations and fundraising than leadership.  Not sure “President” is a descriptive term for their role anymore.

 

Now to the tweets and the Constitution.

 

The first question is simple.  Was this a freedom of speech issue?  The First Amendment, as interpreted by the Supreme Court, provides that no action of the government may “abridge freedom of speech.”  Nothing was done to her by the government.  Could there have been?

 

She is an employee of a public university that operates with public funding. It was something of a cop out to maintain she did this privately. There is no doubt she was speaking as a college professor.  She knows she is speaking as an employee of the college and even brags about the six-figure salary she is paid from the public treasury.  She even adds that tenure makes her untouchable.  She, therefore, according to her lights, can say what she wants to say, no matter how vulgar or hateful.  It is striking that she has so little regard for the hard-working people who pay the highest state taxes in the nation, people trying to make ends meet and feed their families, so she can lounge around lobbing F bombs.

 

Were Fresno State to proceed against her, because of its public status, it would constitute state action and, therefore, the protections of the First Amendment apply.

 

The next question is how far does the First Amendment go in protecting her as a public employee?

 

In 1892 the famous jurist Oliver Wendel Holmes, in addressing whether the speech of public employees could be restricted without violating the First Amendment said, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.  There are few employments for hire in which the servant does not agree to suspend his constitutional right of free speech, as well of idleness, by the implied terms of his contract. The servant cannot complain, as he takes the employment on the terms which are offered him.”

 

Holmes was a great legal mind, but his view, did not prevail.  Over the next century, the Supreme court sought to find a balance between the interests of the public employer in promoting the efficiency of the public services it performs through its employees and the interests of the employee as a citizen. Generally, they upheld the right of the employee to speak out on matters of public interest.

 

In 1983, a little over a hundred years after Holmes pronouncement, in the case of Connick v Myers, the court upheld an employer’s right to dismiss an employee who engaged in speech activity that interfered with the operation of the public office.  But emphasized the speech activity did not rise to a matter of public concern. The case involved a deputy district attorney who was fired for attempting to organize a group of employees to complain about work assignments.  Justice White wrote, “When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the [First Amendment].”

 

He went on the state that the “…. balance requires full consideration of the government’s interest in the effective and efficient fulfillment of its responsibilities to the public.”

 

This line of cases reached its fulfillment in Rankin v. McPhersonin 1987 which has similarities to the present situation.  In that case, A clerical employee was fired for remarking after hearing of the attempted assassination of President Reagan, “if they go for him again, I hope they get him.”

 

Justice Marshall wrote the opinion of the court. In a close 5 to 4 ruling, the court held that the employee’s remarks were protected.  The majority determined the remark did concern a matter of public concern and in balancing the interests of the state in the “effective functioning” of the office against the employee’s interest in free expression, they came down on the side of the free expression. However, they found it important that this was a single off-hand comment to a co-worker.   Not sure what we heard from the professor was a single off-hand comment.

 

Justice Scalia wrote for the four justices who dissented from the ruling.  He said, “no law enforcement agency is required by the First Amendment to permit one of its employees to ride with the cops and cheer for the robbers.”

 

One further consideration in this area has not gotten a lot of discussion.  California has a mini “Hatch Act.”  A Hatch act prohibits active political campaigning by public employees under certain circumstances, especially while on duty.  The Supreme court has repeatedly upheld Hatch Act prosecutions.

 

Do we really believe that this is a private expression, that these same sentiments and worse have not been propounded in a classroom to a captive audience of public college students?

If so, (and it would be easy to find out and prove if there was a sincere interest on the part of the college administration to prevent such reprehensible conduct), the courts might not be so solicitous of her expressions.

 

 

The second major issue involves the evident encouragement and actual threats of violence the woman made. The leading case in the area comes from the Brandenburg case decided in 1969.   Brandenburg was a Klan leader who inartfully encouraged his followers to use guns to exact what he termed, “revengeance.”  I must say, from what I read, the college professor’s language skills appear to be about on a par with Mr. Brandenburg.

 

In Brandenburg, the court revised rules from a half century of supreme court decisions to form what is known as the Brandenburg rule.  It states that government may not suppress speech unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

 

There doesn’t appear to be an incitement to “imminent” lawless action by the professor. The timing is ambiguous.  Beyond that one has difficulty over the “likely” element.  After all, can we really imagine this disgusting woman waddling out in front of an army of insurrectionists marching forward to spark a revolution? The only entity one can imagine being in actual danger would be a Dunkin’ Donuts shop along the way.

 

One of the underlying values of the First Amendment is to allow the venting of even the most awful expressions of the lowest of society.  The utterances of this person are on a level with Louis Farrakhan, the Klan, and the virulent anti-Semitism of the Fascist regimes of World War II.  Their raw expressions are protected by the First Amendment.  The difference is this person’s hateful racist comments emerge from behind the protective curtain of a public university.

Due Process

Due Process

Due Process

 

The President of the United States recently questioned whether some people’s reputations and lives are being unfairly destroyed by public charges of misconduct, including allegations of domestic violence.  He wondered withal Due Process?

 

The persons he was referring to may indeed be guilty of what they are alleged to have done, but what is this reference to Due Process all about?

 

In my profession we always started off any case of spousal abuse assuming the victim was being truthful, and insuring an environment was created for the safe reporting of the crime and the preservation and presentation of evidence.  As the understanding of the dynamics of domestic violence increased over the years we even adopted a policy of removing the discretion of whether to proceed with the case from the victim.  Doing so insured they could not be pressured either by the abuser or the abuser’s lawyer to drop the case.

 

But those measure aside, we were also mindful of our duty regarding the Due Process rights of the person being accused. Due Process isn’t just a legal nicety.  It is a fundamental tenet of our system of laws. We might have railed against the exclusionary rule which could lead to the unreasonable suppression of probative evidence, but never Due Process.  Due Process is foundational.

 

The Bill of Rights has two different amendments concerning Due Process.  The Fifth Amendment protects persons from a deprivation of life, liberty or property without Due Process of Law.  It applies to the Federal Government.  The Fourteenth Amendment, passed after the civil war, provides the same protection from State governments and their political subdivisions.

 

Taken together, at every level of government, local, state or federal, when someone is deprived of life, liberty or property they are entitled to Due Process.  And, yes, Jobs and reputation are recognized as property interests protected by the Due Process clause.

 

As the Supreme Court has interpreted and developed the jurisprudence surrounding the clauses they have concentrated on two different dimensions of Due Process.

 

The first is “Procedural Due Process” or what one can refer to as the “How. ”How” is life, liberty or property to be taken away?   The second is “Substantive Do Process” which is concerned with the “What.” That is, “What” rights and interests and liberties are protected?  In other words the deprivation must adhere to standards in “How” it takes place and the deprivation must be of something recognized as a fundamental liberty, “the What”.

 

The later deserves detailed treatment since it is ultimately the means by which other rights or “liberties” including implied rights such as Privacy, are protected. But the Reference the President made really was really about Procedural Due Process, that is the “How.”

 

Procedural Due Process is about “Fairness.”  A person must be afforded adequate notice of what exactly he is being charged with, he must be given an opportunity to respond to allegations, the ultimate decision must be made by a neutral fact finder and there should be a right to appeal an erroneous decision. It’s the ultimate guard against anyone being rode roughshod to destitution or prison for that matter. And as regards our system of laws, indeed our Constitution, it is fundamental.

 

It is striking that a President referring to this deep seated American value is met with such rabid, virulent, vehement responses, both by certain members of the press and those who should know better.   No doubt, he should have expressed concern for the victims but, in truth his question about Procedural Due Process, about punishment visited on an accused without a full and fair hearing, was apropos.  It was wholly consistent with principles that form the foundation of our Democracy.

 

And contrary to some commentary, Principles like Due Process are not limited to the Courtroom.  They apply in the workplace and everywhere else where life, liberty and property interests are involved. As described by the Supreme Court, these principles are “implicit in the concept of ordered liberty” and are “so rooted in the traditions and conscience of our people as to be ranked as fundamental.”