Initially, Justice Antonin Scalia supported the doctrine (Auer/Seminole Rock) by which courts defer to administrative agencies in interpreting the scope of their regulations. Toward the end of his life, however, he changed his mind. And in that change lies a lesson about the tension between the dangers of arbitrariness and abdication in the judiciary, and how the Constitution goes about addressing that tension [Evan Bernick; earlier]
The National Archives mounts an exhibition of proposed constitutional amendments over the years. To understate matters, not all of them were great ideas [Michael Ruane, Washington Post]
On the idea of an Article V convention to propose constitutional amendments, of which I have been critical lately, you can watch a presentation I gave to the Common Cause national “Blueprint for a Great Democracy” conference held last week.
In a case raising some of the same issues as the dispute over forcing Apple to unlock the San Bernardino killer’s iPhone, a federal magistrate judge in New York has ruled that the All Writs Act does not empower courts to order the unlocking of an alleged drug dealer’s phone. The legal issues are complex, but — I argue in a short piece at Ricochet — belie the notion that originalism in judicial interpretation is going to fade away with Justice Scalia no longer on the Supreme Court. More background: Sarah Jeong.
- Constitutional right to teach children in a foreign language: the story of Meyer v. Nebraska, 1922 [Dave Kopel]
- Court to address Indian law issues in three cases this term: right of counsel in tribal courts, conditions of removal from tribal to federal courts, tax authority on former tribal land [Daniel Fisher]
- As constitutional conservatives go, Rand Paul and Ted Cruz are at odds on Lochner. Why that’s important [Roger Pilon]
- 2013 Kiobel v. Royal Dutch Shell decision hasn’t killed off Alien Tort cases, especially not in Ninth Circuit [Julian Ku/Opinio Juris on rejection of certiorari in Doe v. Nestle, background John Bellinger/Lawfare]
- Textbook-resale case from 2013 term, Kirtsaeng v. John Wiley & Sons, is coming back for a ruling on fee award standards in copyright cases [ArsTechnica]
- High court will review federal court’s jurisdiction to resuscitate denied class certification [Microsoft v. Baker, Ninth Circuit ruling; Fisher]
- “Maryland Attorney General Brian Frosh: If You Don’t Want To Be Tracked, Turn Off Your Phone” [Motherboard/Vice on stingray surveillance]
The more you know about the early 20th Century progressive movement, the less you will probably love it. My colleague Trevor Burrus explores the story of Buck v. Bell, the 1927 case in which a eugenics-influenced U.S. Supreme Court approved a Virginia compulsory sterilization law.
- More views on Article V convention to propose constitutional amendments [Glenn Reynolds/USA Today, Mark Pulliam/Liberty and Law, Ashley Balcerzak, Center for Public Integrity with emphasis on conservative-vs.-conservative battles; my take]. I may be debating the idea in St. Louis March 22, watch for more details;
- As part of wrongheaded efforts at tribalization of native Hawaiians, state of Hawaii keeps trying to hold racially discriminatory elections [Ilya Shapiro/Cato, earlier here, etc.]
- Taking drug preemption case would enable Court to clarify application of Wyeth v. Levine [WLF]
- “The Rise of Judicial Review for Economic Liberty” [John McGinnis]
- “Supreme Court To Rule on ‘Implied Certification’ False Claims Act Theory” [Beck quoting James Martin, Colin Wrabley, M. Patrick Yingling of Reed Smith on Universal Health Services, Inc. v. United States ex rel. Escobar]
- Court should review Oklahoma license plate case in which Tenth Circuit applied less protective “symbolic speech” standard [Ilya Shapiro and Jayme Weber, Cato]
- “The Tetzlaff Aftermath: Discharging Student Loans In Bankruptcy Might Be Easier Than We Thought” [Shannon Achimalbe, Above the Law]
Les Saitz in The Oregonian examines the constitutional land and sovereignty claims of the Malheur occupiers, which tend to sound in what I have previously called folk law. Many in the group were arrested last night. One final point: the Bundy group can call itself a militia if it likes, but only in the same sense that Dorothy Parker could call herself the Queen of Rumania. Earlier here.
Some serious constitutional conservatives, such as Texas Gov. Greg Abbott and Rob Natelson for the American Legislative Exchange Council, have been promoting the idea of getting two-thirds of the states to call for an Article V convention to propose amendments to the U.S. Constitution. Florida senator and presidential candidate Marco Rubio recently made headlines by endorsing the notion. But I don’t think it’s a good one, as I argue in this new piece for the Daily Beast (the clickbait headline is theirs, not mine). It begins:
In his quest to catch the Road Runner, the Coyote in the old Warner Brothers cartoons would always order supplies from the ACME Corporation, but they never performed as advertised. Either they didn’t work at all, or they blew up in his face.
Which brings us to the idea of a so-called Article V convention assembled for the purpose of proposing amendments to the U.S. Constitution, an idea currently enjoying some vogue at both ends of the political spectrum.
Jacob Sullum at Reason offers a quick tour of some of the better and worse planks in Abbott’s “Texas Plan” (as distinct from the question of whether a convention is the best way of pursuing them). Much more: Thomas Neale, Congressional Research Service report, 2014. (cross-posted, with some additions, at Cato at Liberty).
December 15 marked Bill of Rights Day, and Tim Lynch rounds up ways in which most of the constituent amendments in the Bill of Rights are under pressure from government today. And in a Cato Daily Podcast, Caleb Brown interviews Georgetown Law’s Laura Donohue of Georgetown Law School on the history of general warrants, important in the development of the Fourth Amendment, which many assumed we abolished but may be making a comeback.
“Fearing a civil liberties backlash and ‘bad public relations’ for the Obama administration, Homeland Security Secretary Jeh Johnson refused in early 2014 to end a secret U.S. policy that prohibited immigration officials from reviewing the social media messages of all foreign citizens applying for U.S. visas, a former senior department official said.” According to former acting DHS undersecretary John Cohen, political “optics” inhibited U.S. officials from the fully legal course of checking the social media posts of visa applicants. The process came under scrutiny after the granting of a fiance visa to Tashfeen Malik, a resident of high-terror-risk Pakistan who had extensively discussed jihad and martyrdom online. [ABC News; but see below updates/corrections, which correct significant errors in the early reporting]
It’s important to keep straight that our Constitution restricts what the U.S. government can do to U.S. persons, but imposes little if any constraint on what it can ask of those seeking to enter.
P.S. Alex Nowrasteh talks with several immigration lawyers who say they know of instances in which social media postings by persons under U.S. immigration scrutiny got vetted. More: James Taranto (quoting New York Times’s statement that “immigration officials do not routinely review social media as part of their background checks,” with “pilot programs” to do so in place since the fall of last year).
Update: contradicting widespread reports in the press, FBI Director James Comey now describes the couple as having expressed jihadist sentiment in private but not in public messages on social media [Washington Post] And the New York Times now apologizes for early, erroneous reporting based on anonymous sources which misled much of the press and commentariat into believing Malik’s extremist sentiments were in plain sight.