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How Often Has the U.S. Supreme Court Struck Down a Federal Law?

Everybody knows that the American courts exercise the power to evaluate the constitutionality of legislation and declare those laws that violate the Constitution to be legally void and of no effect. To a surprising degree, it has been unclear how often the courts have exercised that power.

The problem started at the beginning. The U.S. Constitution is clear about such basic governance issues as whether the president has the power to veto bills, whether Congress can override that veto, and how bills become law. The Constitution famously does not say that the federal courts have the power of judicial review; it merely says that the “judicial Power of the United States” shall be vested in the Supreme Court and any inferior courts that Congress might create.

It is a myth that Chief Justice John Marshall invented, created or established the power of judicial review in his 1803 opinion in the case of Marbury v. Madison. Such a power was widely recognized in the years after the American Revolution and had been exercised by numerous courts, including the U.S. Supreme Court, prior to 1803. But Marshall did provide a compelling account of that power, and his opinion eventually became a touchstone for those seeking to explain, justify or criticize such a power.

Because the Constitution does not explicitly set out the power of judicial review, it has been far more contested and far less systematically accounted for than other such basic features of the American constitutional system as the presidential veto. Even the name “judicial review” is a modern invention, coined by the young Princeton constitutional scholar Edward Corwin at the beginning of the twentieth century to provide a shorthand description for the increasingly prominent activity of the courts in scrutinizing the constitutionality of duly enacted statutes. Corwin coined the term in the midst of a scholarly and popular debate over the origins, scope and legitimacy of the power of judicial review.

Among the issues in that debate was how often the U.S. Supreme Court had actually exercised the power of judicial review. The answers were surprisingly diverse. Since the Constitution did not specify that there was such a power of judicial review, it also did not specify the form by which it should be exercised. The Constitution specified that presidential vetoes should be recorded in the journal of each legislative chamber. The number of vetoes could be numbered and counted. There is no such requirement when the courts strike down a law as unconstitutional.

When, in 1792, the 2nd Congress first heard the news from a constituent that a federal judge had declared a federal statutory provision unconstitutional, there was a brief debate over what kind of response might be appropriate and whether a system needed to be put in place so that the legislature would be promptly informed when such actions were taken. But nothing was done. The courts made decisions and issued opinions, but no one designated instances of judicial review, reported such events to Congress, or put them down in an official record.

After the constitutional centennial, the Supreme Court’s reporter, Bancroft Davis, took it upon himself to compile a list of cases in which the Court had struck down an act of Congress as unconstitutional and included it in a historical appendix to a volume of the Court’s opinions in 1889. The Davis list proved to be controversial, and the historical debate over the incidence of judicial review was politicized. Populists and Progressives argued that the Court had rarely exercised the power of judicial review – and thus should rarely exercise it in the future since it was of dubious legitimacy. Conservatives argued that the Court had exercised the power of judicial review more often – and should keep on exercising it in the future to temper the passions of popular majorities. Some argued that John Marshall created the power of judicial review out of whole cloth and that the Court rarely dared exercise the power afterwards. Some went further and denied that even Marbury itself could properly be understood as an example of judicial invalidation of a federal law. Others argued that Marbury was just one of many instances of judicial review and was just one example of a venerable judicial practice.

Near the end of his career Edward Corwin played a big role in putting that debate to rest by compiling a now-canonical list of cases in which the Court invalidated a federal law. But Corwin’s list is wrong.

You’ll really know the rest of the story if you read Repugnant Laws. You’ll get another taste in a future blog post.

from Latest – Reason.com http://bit.ly/2X5C7cz
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New Julian Assange Indictment Crushes the Hopes of Journalists Who Thought Their Press Passes Would Save Them

Any hope that professional journalists may have had that the Justice Department’s prosecution of WikiLeaks founder Julian Assange would leave them and the First Amendment unscathed was decisively crushed by the indictment unsealed yesterday. While DOJ officials are still trying to assure reporters that the Trump administration values and respects their work (I know), it is now abundantly clear that the case against Assange is an unprecedented, sweeping, and deeply dangerous assault on freedom of the press.

“Some say that Assange is a journalist and that he should be immune from prosecution for these actions,” John Demers, the head of the Justice Department’s National Security Division, told reporters yesterday. “The department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the department’s policy to target them for reporting.” There is no need to worry, Demers suggested, because Assange is “no journalist.”

That distinction is not only debatable but constitutionally irrelevant, since “freedom of the press” refers to a method of mass communication, not a professional guild. It belongs to all of us, not just to people employed by respectable news organizations. Yet some of those people have endorsed this bogus distinction because they despise Assange, think they are entitled to special privileges because of their professional status and standards, and vainly hope their press passes will save them.

Assange, CNN contributor Frida Ghitis wrote last month, “is not a journalist and therefore not entitled to the protections that the law—and democracy—demand for legitimate journalists.” Washington Post columnist Kathleen Parker echoed that sentiment, endorsing the view that Assange is “a sociopathic interloper operating under the protection of free speech.” Real journalists, she said, go through “a lot of worry and process” before they publish embarrassing information that the government wants to keep under wraps. Assange, by contrast, “is not…a journalist, despite his claiming to be, because he isn’t accountable to anyone.”

The indictment highlights details that reinforce this view, noting that WikiLeaks published unredacted versions of Pentagon war documents and State Department cables that included names of informants who foreseeably could be arrested or killed once their identities were revealed. That kind of unethical sloppiness is indeed troubling, but it is not a necessary element of the charges Assange faces.

Counts 9 through 17 involve “disclosure of national defense information,” a felony punishable by up 10 years in prison. That penalty applies to anyone who “willfully communicates, delivers, transmits or causes to be communicated” such information to “any person not entitled to receive it.” This felony is the bread and butter of any journalist who covers national security issues and publishes information that the government would prefer to keep secret.

As First Amendment scholars have noted, that statute squarely applies to indisputably valuable journalism such as publication of the Pentagon Papers, the secret history of the Vietnam war that gave rise to the landmark 1971 Supreme Court case New York Times v. United States. In that decision, the Court unanimously ruled that the government could not prevent publication of stories based on the Pentagon Papers. But it did not address the question of whether publishers, editors, and reporters could be prosecuted after the fact. That is the question posed by the Assange indictment, no matter how much the Justice Department wants to pretend otherwise.

Count 1 alleges that Assange conspired to receive national defense information, and Counts 2 through 8 allege that he obtained it, all of which are likewise felonies punishable by up to 10 years in prison. Again, the indictment plays up conduct that most professional journalists avoid, such as publicly soliciting classified material (on the WikiLeaks website), asking for specific documents, and offering to help a source conceal his identity by cracking a government password. But these crimes do not require such unusual tactics. Any reporter who talks to a source with access to classified information, arranges to receive that information, and promises the source confidentiality is guilty of violating those provisions.

New York Times reporter Charlie Savage, who covers national security issues, understands all of that. “For the purposes of press freedoms,” he notes, “what matters is not who counts as a journalist, but whether journalistic activities— whether performed by a ‘journalist’ or anyone else—can be crimes in America.” Savage quotes Jameel Jaffer, director of Columbia University’s Knight First Amendment Institute. “The charges rely almost entirely on conduct that investigative journalists engage in every day,” Jaffer says. “The indictment should be understood as a frontal attack on press freedom.”

The Justice Department is hoping to blunt the backlash against that attack by picking a widely reviled figure as a test case. But anyone who actually believes in civil liberties understands that they mean nothing if they can be violated when the target happens to be unpopular. Just as the ACLU is not endorsing the views of Nazis or Klansmen when it defends their First Amendment rights, you don’t have to like Assange (or believe he is a real journalist) to recognize the importance of the principle at stake in his case.

from Latest – Reason.com http://bit.ly/2YKQ2oT
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Boeing Shares Slide On Reports Of SEC Investigation

Since the aviation authorities around the world grounded the 737 MAX 8 following a second suspicious crash, the scrutiny facing Boeing has been intensifying. Over the past two months, the DoJ has opened a criminal probe, the FAA is looking into whether Boeing mislead regulators during the certification process, and a smattering of Congressional investigations are also ongoing – not to mention the flurry of lawsuits stemming from the two deadly crashes in Ethiopia and Indonesia.

To this growing list, we can add one more investigation: The SEC is reportedly looking into whether Boeing properly disclosed issues related to the 737 MAX 8.

Young People Are Increasingly Blaming “Climate Change” For Not Saving For Retirement

Authored by Mac Slavo via SHTFplan.com,

An increasing number of younger Americans are blaming climate change for not putting away money for their own retirement. They say that because the world won’t exist when they retire (because of climate change) there’s no need to save any money.

But if we apply that logic to everything, there is never a need to prepare for the future of anything and the liberal ideology crumbles upon itself.

Market Watch used a young professional as an example of this flawed thinking. Lori Rodriguez, a 27-year-old communications professional in New York City, is not saving for retirement, and it isn’t necessarily because she can’t afford to, but because she doesn’t expect it to matter. Like many people her age, Rodriguez has bought into the propaganda and religiously believes that climate change will have catastrophic effects on our planet. Some 88% of millennials (a higher percentage than any other age group) believe in the climate change religion and 69% say it will impact them in their lifetimes.

“I want to hope for the best and plan for a future that is stable and secure, but, when I look at current events and at the world we are predicting, I do not see how things could not be chaotic in 50 years,” Rodriguez says.

“The weather systems are already off, and I don’t think it’s hyperbolic to be a little apocalyptic.”

The mainstream media isn’t helping either. Using manipulation techniques, the media engulfs people in a constant barrage of depressing and hate-filled news stories. So much so, that many young people are skeptical about saving for a future they are constantly being told won’t exist.

Just to clarify for these younger people, in 2008 liberal hero Al Gore predicted that there would be no polar ice caps in three to five years because of global warming. However, the “inconvenient truth” is that the ice caps are still there today (over ten years later).

Interestingly enough, right after stating that younger Americans don’t save for retirement because they believe climate change will destroy the world, Market Watchclarified that mental health could be an issue.

Mental-health issues affecting young adults and adolescents in the U.S. have increased significantly in the past decade, a study published in March in the Journal of Abnormal Psychology found. The number of individuals between the ages of 18 and 25 reporting symptoms of major depression increased 52% from 2005 to 2017, while older adults did not experience any increase in psychological stress at this time, and some age groups even saw decreases. –Market Watch

Jean Twenge, who authored the study cited by Market Watch, says this spike in mental health issues may be attributed to the increased use of digital media. Technology has changed modes of indoctrination just enough to impact social lives and communication. Millennials are also said to suffer from “eco-anxiety,” according to a 2018 report from the American Psychological Association, with 72% saying their emotional well-being is affected by the inevitability of climate change, compared with just 57% of people over the age of 45.

Two-thirds of millennials (defined by Pew as the generation born between 1981 and 1996) have nothing saved for retirement, according to the National Institute on Retirement Security. And now we know why some aren’t saving. The religion of climate change has a death grip on their mental stability.

It isn’t that we don’t want to take the planet. Those who don’t subscribe to the climate change religion of hysteria simply believe that people should care for the Earth the best way they can. Putting the Earth’s salvation in the hands of a few bureaucrats isn’t going to solve anything. After all, government officials can’t even clean up a trash pile in the Democrat’s paradise of Los Angeles. If climate change was really a problem, there’s no way authoritarians could solve it nor would they want too. There’s just too much money to be made off the gullible masses.

Some people just want to watch the world burn.

via ZeroHedge News http://bit.ly/2YP9ReV Tyler Durden

The Border Patrol Is Being Sued for $100 Million After an Agent Killed a Young Woman

The American Civil Liberties Union (ACLU) of Texas is suing the federal government for $100 million over the death of Claudia Patricia Gómez González.

In May 2018, an unnamed Border Patrol agent in the Laredo sector shot and killed González, a 20-year-old woman from Guatemala. The agency’s initial statement said that the agent fired his weapon in response to multiple “assailants” hitting him with “blunt objects.” The agency then updated its statement, saying that the 15-year veteran had ordered the group to the ground, then fired one round from his gun after they “ignored his verbal commands and instead rushed him.”

The ACLU’s lawsuit, which was filed on behalf of González’s family, accuses the Department of Homeland Security and U.S. Customs and Border Protection of battery, negligence, recklessness, and wrongful death.

As Reason has previously reported, the Laredo sector has seen the highest numbers of employee misconduct and disciplinary actions. In 2017, 13 percent of the sector’s Office of Field Operations and 42 percent of the U.S. Border Patrol were involved in some kind of disciplinary incident. These include drug- and alcohol-related crimes, domestic incidents, and abuses of power.

González’s death wasn’t the only time last year that a border agent in the Laredo sector made national news in connection with a killing. In April, agent Ronald Anthony Burgos-Aviles stood accused of slaying both his lover and their child. And in September, another agent—Juan David Ortiz—confessed to murdering at least four sex workers.

from Latest – Reason.com http://bit.ly/2YKZ4Cq
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The Border Patrol Is Being Sued for $100 Million After an Agent Killed a Young Woman

The American Civil Liberties Union (ACLU) of Texas is suing the federal government for $100 million over the death of Claudia Patricia Gómez González.

from Latest – Reason.com http://bit.ly/2YKZ4Cq
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What Is The Market’s “Worst Case” Scenario In All-Out Trade War: Goldman’s Take

After confidently denying for months that there is a chance of an aggressive escalation in the US-China trade war, Goldman finally moved toward joining what has now become a virtual sellside consensus call that the feud between China and the US will become worse before its get better, when on Monday the bank said that “additional trade-related actions taken over the last several days further raise the risk of additional US tariffs on imports from China and further reduce the chances of a formal agreement at the June G20 meeting”, yet even then adding that “while there is substantial uncertainty, we believe the odds are slightly greater that further US-China tariff escalation is avoided. That said, this is a close call and without additional signs of progress over the next few weeks, implementation of the next round of tariffs on $300bn of imports from China (“List 4”) could easily become the base case.”

In light of the latest developments, which have seen the bilateral trade war mutate into a global tech war targeting various key Chinese companies, with Australia, New Zealand, the UK and Japan all siding with the US in refusing to supply Huawei with critical components effectively jeopardizing the continued existence of the Chinese telecom giant, it now appears that implementation of the 4th round of tariffs is virtually certain.

This, in turn, prompted Goldman last week to warn that a burst in US inflation is likely in the near future, since the final tranche of tariffs would affect mostly consumer goods…

… and the result would be higher prices for a wide range of goods for two reasons: i) the costs of US tariffs have fallen entirely on US businesses and households, with no clear reduction in the prices charged by Chinese exporters; ii) the effects of the tariffs have spilled over noticeably to the prices charged by US producers competing with tariff-affected goods.

In other words, if the trade war escalates further from here, the inflation impact could become quite large, and Goldman calculates that imposing 25% tariffs on roughly $300bn of remaining Chinese imports would have a peak effect of 0.5pp on core PCE, while auto tariffs would have a roughly 0.3pp peak effect. These considerably larger effects reflect the much larger share of consumer goods that would be affected. If all proposed tariffs were implemented within a year, the total impact on core PCE would peak at around 0.9pp.

But what about the impact of escalating trade war, and the imposition of “Tranch 4” tariffs on markets?

That’s the topic that Goldman’s economists discussed in a note published overnight, in which the bank tries to estimate “the impact of trade tensions on key asset markets and the FCI, and simulate the impact of different policy scenarios.”

The bank’s big picture prediction is that a $100bn increase in annual expected tariff revenue for two years tightens the bank’s Financial Conditions Index by 50bp, “mostly driven by a decline in equity prices with dollar appreciation and credit spread widening playing a smaller role. A decline in Treasury yields provides only a partial offset.”

To drill down the impact of this wholesale tightening in financial conditions on various asset classes, Goldman then looks at the recent escalation from Trump’s tweets, which Goldman economist David Choi describes as “the cleanest ‘out of the blue’ surprise of the trade war.” Specifically, the bank estimates that expected tariff revenue over the next two years “:increased by around $40bn in the days surrounding President Trump’s tweet, with the chances of 25% tariffs on $200bn worth of imports increasing from roughly 0% to 100% over the next quarter, from 0% to 30% from 2019Q4 and after, and the chances of further escalation rising as well.”

How about market impact?

First, Goldman calculates the impact of its bullish, baseline case which consists of “a deal and a staggered reduction of the tariffs in place now”, and estimates a roughly 4% increase in the stock market, with an overall FCI easing of 20bp boosting the FCI growth impulse by 0.2%. However, now that further escalation appears virtually assured, the bank also projects that the imposition of tariffs on the remaining $300bn of imports from China would lead to a roughly 4% additional decline in equity prices and a 25bp FCI tightening. Goldman also sees a 15bps decline in 10Y yields under this scenario.

Finally, in the worst case scenario, which adds auto tariffs (which would increase the expected tariff revenue by a cumulative $75 billion), Goldman predicts a total 7% decline in equity prices, a 40bp FCI tightening and a 0.4% deterioration in the FCI growth impulse. Furthermore, in this scenario, Goldman would also expect a 20-25bp decline in yields, and 1-2% appreciation in the dollar.

The impact on Financial Conditions from these three scenarios relative actual, is shown in the chart below, and is summarized as follows: “Further escalation resulting in tariffs on the remaining imports from China would lead to an additional 0.25pp FCI drag on growth, while auto tariffs on top of that would lead to a 0.4pp deterioration in the FCI growth impulse for a peak net drag of almost 1pp”

In an amusing footnote, Goldman states that it sees “the risks as skewed toward larger market impacts in the escalation cases , if non-tariff measures are implemented as well”, a list of which was provided earlier by Barclays and noted here, while the worst market impact would occur “if sentiment deteriorates nonlinearly”, in other words if the market responds even more adversely in a way that Goldman can’t predict. Which, of course, means that Goldman’s entire attempt to model the impact of trade war is an exercise in futility as there will always be a “nonlinear deterioration” in sentiment.

Yet here a bigger problem emerges: assuming that even Goldman’s relatively rose “worst case” scenario is correct, it would only hit stocks by 7%, resulting in a drawdown of only 200 S&P points, and leaving the S&P 500 comfortably above 2,600. That in itself presents a circular problem, because as Deutsche Bank’s Jim Reid noted today, echoing what we said earlier this week, “Falling asset prices might be the only way for markets to get the [trade war] resolution they desperately want.“

And while we know that JPM’s Marko Kolanovic was wrong, predicting that Trump would only suffer a 4% drop in the S&P before he returned to the negotiating table, the question is what is Trump’s breaking point. In December, the S&P dropped as low as 2,350, which is roughly when Trump and Xi reached a trade war truce. This also means that Trump’s breaking point may be as low as 2,350 on the S&P, some 500 points, or almost 20% lower.

In which case, Goldman’s prediction of a modest, 7% pullback in a “worst case” scenario is impossible by definition, as it means that there would be nothing adverse about the market to force trade war to end, and instead it would continue indefinitely, resulting in sharply lower corporate earnings, a sharp hit to the US, Chinese and global economy, and ultimately, a global recession, in the process creating a feedback loop where the longer trade war drags on, the bigger the market drop. Then again, this may be precisely how Goldman hedges by warning that the risk is skewed toward larger market impacts due to a “nonlinear deterioration in sentiment.”

Goldman’s conclusion: “while the direct growth effects of the trade war are likely manageable, our findings show that the impact of financial conditions poses significant downside risks to growth.” Which also happens to be the most bearish Goldman has been on the potential impact of the escalating trade war between the two superpowers.

via ZeroHedge News http://bit.ly/2JYqKiW Tyler Durden

White House To Send Another 2,000 Troops To Counter “Credible” Iranian Threat

Yesterday, Secretary of State Mike Pompeo assured his interviewers on Fox News that the threat from Iran is totally “real” and “credible” – though he once again refused to get into specifics. But whatever the threat might be, American troops in the region will soon be able to sleep a little easier, because the White House and Pentagon have reportedly agreed to send “roughly 2,000” additional troops to the Middle East…to help protect American forces in the region.

The US will also send additional Patriot missile defense capabilities and surveillance and reconnaissance units, according to the Washington Post, which broke the story.

Though Washington has been vague about the exact nature of the immediate threat from Iran that prompted the evacuation of diplomatic personnel from nearby Iraq, Iran has certainly been getting more belligerent by the day, reiterating its threats to seize control of the Strait of Hormuz – which could damage the global oil trade – while promising to start stockpiling enriched uranium again.

Developing…

via ZeroHedge News http://bit.ly/2HClxvT Tyler Durden

CIA Whistleblower: Assange Is Going To Get Railroaded By “Hanging” Judge

A former CIA analyst-turned-whistleblower says that an extradited Julian Assange would have no chance of a fair trial in front of a federal judge who “reserves every national security case for herself.”

John Kiriakou, who was sentenced to 30 months in prison by Eastern District of Virginia Judge Leonie Brinkema for telling ABC News about CIA waterboarding, told Russian state-sponsored RT “They are going to try to make an example of Julian,” adding “He’s been charged in the Eastern District of Virginia. His judge was also my judge and ex-Snowden’s judge and [CIA whistleblower] Jeffry Sterling’s judge who reserves every national security case for herself.”

“She is a hanging judge. She will not give him a fair trial. It’s impossible for Julian to receive a fair trial in the Eastern District of Virginia,” addid Kiriakou.

A fair trial in the Eastern District of Virginia, under Judge Leonie Brinkema, is utterly impossible. They don’t call EDVA the “Espionage Court” for nothing. https://t.co/U6gVq2FpcB

— John Kiriakou (@JohnKiriakou) April 11, 2019

Speaking from his own experience with the same district court, Kiriakou argued that it “gonna try to give him as many years as they can,” which means a “sentence of 30-40 years” if served concurrently.

The only avenue worth taking a shot on is to protest the constitutionality of the Espionage Act, notorious for its vague language, to the US Supreme Court, Kiriakou said.

“He’ll have immediate standing to appeal on the basis that the Espionage Act is unconstitutionally vague,” he said. “The Supreme Court has never ruled on this issue. That may be the way to go.” –RT

via ZeroHedge News http://bit.ly/2VZ53GS Tyler Durden

A New History of Judicial Review

I’m thrilled to announce that my new book, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present, is now available for purchase. From the jacket copy:

The court, Repugnant Laws suggests, is a political institution operating in a political environment to advance controversial principles, often with the aid of political leaders who sometimes encourage and generally tolerate the judicial nullification of federal laws because it serves their own interests to do so. In the midst of heated battles over partisan and activist Supreme Court justices, Keith Whittington’s work reminds us that, for better or for worse, the court reflects the politics of its time.

This project took a long time to bring to fruition, in no small part because I realized our conventional understandings of the history of judicial review are wrong. The book makes use of a new comprehensive catalog of all the cases in which the U.S. Supreme Court substantively reviewed the constitutional validity of an application of a federal statutory provision from the founding of the Court through the retirement of Justice Anthony Kennedy. The Court has been more active in enforcing limits on congressional power, as well as in upholding and extending congressional power, than we have generally recognized. Whose ox have been gored in the process? Dig in to see.

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