Tag: posts

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficiking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress’s powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called “substantial effects” test. (In fact, the “substantial effects” test is an application of Congress’s Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch show a careful grasp of Raich:

Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA’s application to the defendants’ extraterritorial conduct is a permissible exercise of Congress’s authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress’s power to regulate commerce “among the states,” which undoubtedly presents a different question than Congress’s power to regulate commerce “with foreign nations,” and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the “commerce with foreign nations” context.

She nailed it. Lopez identified three specific requirements to trigger the substantial effects test: (1) activity, that is (2) intrastate and (3) economic in nature. Leading up to NFIB, most critics only focused on factors 2 and 3; they disregarded the first factor. But we cannot forget the second factor.

The MDLEA has more problems. The statute lacked any congressional findings about how the regulated activity would affect foreign commerce. The statute also lacked a “jurisdictional hook.” Finally, the Court found that the government’s capacious reading of federal power lacks any limiting principle (sound familiar?):

Indeed, under the government’s reasoning, nothing would prevent Congress from globally policing wholly foreign drug trafficking commerce, potentially intruding on the sovereignty of other Nations, and bringing foreign nationals into the United States for prosecution based solely on extra-territorial conduct when the United States was neither a party to, nor a target of, the commerce.

Give that this panel was unanimous, en banc review is unlikely. This case may be headed to the Supreme Court.

from Latest – Reason.com https://ift.tt/35uvmID
via IFTTT

Yesterday, the Eleventh Circuit decided Jones v. DeSantis. This en banc decision held that Amendment 4 to the Florida Constitution did not violate the Federal Constitution. The Amendment could condition the payment of any fines as a prerequisite to the restoration of voting rights. The Court split 6-4. You may recall that there was an effort to get Judges Lagoa and Luck to recuse (See here and here). They did not recuse. Ultimately, their participation broke what have otherwise would have been a tie that affirmed the district court’s permanent injunction.

Chief Judge Bill Pryor wrote the majority opinion. But here, I flag Chief Judge Pryor’s separate concurrence, which Judge Lagoa joined. Pryor responds to a claim made by Judge Jordan in dissent. Judge Jordan wrote:

Our predecessor, the former Fifth Circuit, has been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s. See generally Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality 259–77 (1981). I doubt that today’s decision—which blesses Florida’s neutering of Amendment 4—will be viewed as kindly by history.

Pryor forcefully rejected this claim:

I write separately to explain a difficult truth about the nature of the judicial role. Our dissenting colleagues predict that our decision will not be “viewed as kindly by history” as the voting-rights decisions of our heroic predecessors. Jordan Dissent at 189 (citing Jack Bass, Unlikely Heroes: The Dramatic Story of the Southern Judges Who Translated the Supreme Court’s Brown Decision Into a Revolution for Equality (1981)). But the “heroism” that the Constitution demands of judges—modeled so well by our predecessors—is that of “devotion to the rule of law and basic morality.” Patrick E. Higginbotham, Conceptual Rigor: A Cabin for the Rhetoric of Heroism, 59 Tex. L. Rev. 1329, 1332 (1981) (reviewing Bass, Unlikely Heroes, supra). As a distinguished colleague presciently warned decades ago, there is a “genuine risk” that later judges will “easily misunderstand” this lesson. Id. Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. The Constitution instead tasks us with “administering the rule of law in courts of limited jurisdiction,” id. at 1343, which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of our Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.

Yes, Pryor is referring to “the Supreme Judge of the world.” No, not John Roberts. The judicial oath provides:

“I ___ do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as lll under the Constitution and laws of the United States. So help me God.”

In Trump v. Hawaii, Chief Justice Roberts purported to overrule Kormematsu in the “court of history.”

The dissent’s reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—”has no place in law under the Constitution.” 323 U. S., at 248 (Jackson, J., dissenting).

This line was pathetic virtue signaling. The Supreme Court cannot overrule a case in an imaginary court, where the question isn’t even presented. In general, when I hear the phrase “court of history” or “arc of history,” I simply presume that a liberal is trying to shame a conservative into reaching a liberal result. These phrases no longer have any meaning for me. Alas, the Chief bought into this mythology.

Chief Justice Roberts could learn a lesson from Chief Judge Pryor. Regrettably, Pryor is still on the not-so-short list, and not on the Supreme Court.

from Latest – Reason.com https://ift.tt/33pvoyL
via IFTTT

For our 1Ls at St. John’s this year, my colleague Marc DeGirolami and I recorded a Legal Spirits podcast on the 1966 film, “A Man for All Seasons.” The film, an adaptation of Robert Bolt’s play, tells the story of Sir Thomas More’s conflict with King Henry VIII over papal supremacy. It’s an anachronistic portrayal. Bolt depicts More as a classical liberal who is dying for individual conscience–”What matters to me is not whether it’s true or not but that I believe it to be true, or rather, not that I believe it, but that I believe it”–when in fact More was a Catholic martyr. And the film is a little too earnest at times, though it has a great cast, including Paul Scofield, Wendy Hiller, John Hurt, Orson Wells, and Leo McKern, who steals the show as More’s nemesis, Thomas Cromwell.

The film and the story it reflects is especially appropriate for lawyers, even the non-theist kind. Marc and I use the film to explore topics such as the lawyer’s obligation to submerge his own beliefs to advance his client’s goals, the legal system’s dependence on the sort of people who administer it, and the ultimate unreliability of law in a totalitarian state. Listen in!

from Latest – Reason.com https://ift.tt/3bQqgHC
via IFTTT

The Washington Post reports that Immigration and Customs Enforcement initiated the transfer of 74 detainees from Florida and Arizona to an immigration jail in Farmville, Virginia, to provide cover for the mobilization of Homeland Security tactical teams during the anti-police brutality protests in Washington, D.C.

As the Post explains, restrictions prevent ICE employees from taking chartered flights unless detainees are also onboard, meaning that moving tactical teams via these flights is also prohibited. To justify their movement, ICE claimed that it needed to move the prisoners to avoid overcrowding, a proposal that drew an objection from ICE officials in the Washington, D.C. field office. The objections were reportedly overruled by ICE headquarters and the transfers were carried out.

Last month, The Richmond Times-Dispatch reported that 51 of the 74 transfers tested positive for COVID-19 by the end of June. Soon, the outbreak spread to 97 percent of detainees in Farmville and became the largest recorded outbreak in any immigration jail at the time. One detainee, a 72-year-old Canadian national named James Thomas Hill, died after being hospitalized with the virus.

Following the death of George Floyd at the hands of Minneapolis police officers in late May, protests occurred across the nation. Anti-brutality protesters in multiple cities were met with aggressive policing and further brutality. These demonstrations took a turn when, on June 1, U.S. Park police tear-gassed and clubbed protesters and journalists in front of the White House to clear the square just before President Trump crossed the area to take his infamous Bible picture in front of St. John’s Church.

Soon after, Trump called for soldiers and law enforcement to deal with the protests and enforce a 7 p.m. curfew.

“In light of civil unrest taking place across the country, ICE personnel and Special Response Teams have been deployed to protect agency facilities and assets in support of the Federal Protective Service and assist local, state and federal law enforcement partners, as needed,” ICE spokesperson Danielle Bennett told Roll Call that same day.

According to reports, as many as 400 border patrol agents were deployed in the protests, some of which were documented by Reason‘s Christian Britschgi. The presence of federal law enforcement led to allegations of civil liberties abuses.

from Latest – Reason.com https://ift.tt/2FcscP1
via IFTTT

I wanted to follow up on this story briefly by linking to some news accounts of the matter—CNN (Jessie Yeung), BBC (Kerry Allen), and the New Zealand Herald; the first two add some material on international reactions, e.g. (from CNN):

The controversy has even made waves on social media across Asia; many in Hong Kong, Taiwan and mainland China responded with disbelief, sympathy for Patton, and a fair bit of ridicule.

Numerous comments on the Chinese social media site Weibo pointed to the Chinese song “Sunshine Rainbow Little White Horse” by Wowkie Zhang, in which nei ge is repeated throughout the chorus. [I listened to it, and it does have an absurd bizarro rap quality to it. -EV]

Other Weibo users echoed American criticisms that this may be an example of cultural sensitivity gone wrong, with a few comments likening the incident to “literary inquisition,” the historical Chinese persecution of intellectuals for their writings.

“I’ve watched the video of the professor’s class, and read the email letter his students sent, and the statement from the school,” one person wrote on Weibo. “I only want to say, this is ridiculous. It’s just too ridiculous.”

I also wanted to mention an e-mail that I’ve been sending since Monday, in various versions, to various people. I haven’t gotten any substantive answer, but I thought I’d flag the question:

One thing that nags me about the Patton matter is that all the news accounts report just that the complaint came in an e-mail by “Black MBA Candidates c/o 2022.” Is there any information on how many students signed on to the e-mail, or confirmation that they were indeed black MBA candidates in the class of 2022? At least the counterletter from the 100+ students has names, and a few searches on the more unusual names suggest they check out. I just wonder whether this might have been either a prank that the Dean fell for [I assume not, but who knows?], or perhaps a reaction of a very small and unrepresentative group of black students who managed to be seen as speaking for black students generally just by dint of their signature.

Of course, it’s also possible that this did come from all, most, or many of the class of 2022 black MBA candidates; and of course my substantive view on the matter doesn’t turn on that. But I’m always interested, just as a student of organizational politics, in how these things develop (especially in a situation where a school should recognize that either of the obvious options can create possibly bad publicity, indeed possibly bad worldwide publicity).

If anyone does know the answer, please let me know!

from Latest – Reason.com https://ift.tt/3bRqn60
via IFTTT

David Peterson is an art professor at Skidmore College, a private liberal arts college in Saratoga Springs, New York. In late July, the professor and his wife, Andrea Peterson, attended a “Back the Blue” rally—not as supporters of the cause, they say, but as curious spectators.

“Given the painful events that continue to unfold across this nation, I guess we just felt compelled to see first-hand how all of this was playing out in our own community,” he later told the student newspaper.

They stood on the edges of event, watching pro- and anti-law enforcement demonstrators argue with each other. After 20 minutes, the Petersons left to eat dinner.

But unbeknownst to Peterson, the couple’s attendance at the rally was noticed. Now Skidmore students are demanding that both Peterson be fired for “engaging in hateful conduct that threatens Black Skidmore students,” according to Times-Union columnist Chris Churchill, who wrote about the controversy.

Andrea Peterson is not an employee of the college, according to Churchill.

“The Petersons weren’t wearing pro-police T-shirts,” notes Churchill. “They weren’t carrying a banner, holding a sign or waving a black-and-blue flag. They appear to just be listening. But merely listening to an opinion that some Skidmore students find objectionable is apparently enough to get a professor in hot water.”

Students have circulated their demands on social media, and even taped a note to the door of Peterson’s classroom advising his students that they are “crossing a campus-wide picket line and breaking the boycott against Professor David Peterson.” Peterson has attempted to make it clear that his presence at the rally did not constitute an endorsement of it; this matters very little to the students. An opinion piece in the student newspaper included his explanation, but still accused him of failing to “reconcile with his behavior.” That piece also claimed that “there have been many claims of Mr. Peterson making students of color and queer students feel uncomfortable and unheard in his art classes prior to this,” but did not elaborate.

“I still have no indication of how [David and Andrea Peterson] plan to take accountability for their actions and make their classrooms a safe space for our communities of color,” wrote the student.

In any case, the boycott is evidently succeeding: Peterson said that most of his students have dropped his classes: Those who think the boycott is ridiculous are afraid to speak up, one student told Churchill. Skidmore’s administration defended his free speech rights in a statement, but is nevertheless investigating the accusations of bias in the classroom.

If this is how they treat a professor who is insufficiently committed to their causes, one wonders how progressive students would treat a professor who holds ardently conservative views—or whether they could peacefully engage with another student, administrator, or any human being who disagrees with them. One gets the sense that a certain kind of liberal arts education is, for some extremely sensitive far-left students, no longer preparing them for the real world, or at least not in the sense this was traditionally intended. Indeed, the real world had better be prepared for them.

from Latest – Reason.com https://ift.tt/3bRjd1s
via IFTTT