Justice Scalia on statutory interpretation, dissenting in Aereo [via Legal Ethics Forum]:
It is not the role of this Court to identify and plug loopholes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today.
Don’t call it quotas, call it “statistical proportionality” [Christina Hoff Sommers, Time; earlier on Title IX]
“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of [a wallet or purse] … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.” — Chief Justice Roberts, writing for the Court in Riley v. California, in which the Justices unanimously disallowed warrantless police searches of arrestees’ cell phones.
California legislature does something sensible! [L.A. Times; earlier on this regulation, widely protested by bartenders, sushi chefs and other food and drink professionals] Next headlines to come: blue moon, month of Sundays, and the unexpected freezing over of Hell.
Wurst-case scenario comes true: “The Missouri Supreme Court has ruled on behalf of a baseball fan who says he was hit in the eye with a hot dog thrown by Sluggerrr, the Kansas City Royals mascot.” The court overruled a trial judge who had instructed jurors that they could find the flying foodstuff to be an assumed risk of attending a Royals game. [Debra Cassens Weiss, ABA Journal; earlier]
Upland, Calif.: “A California family is stumped about what to do with a live-in nanny they say refuses to work, refuses to be fired and refuses to leave. In fact, Marcella Bracamonte claims that the nanny, Diane Stretton, has threatened to sue the family for wrongful firing and elder abuse.” Stretton’s hiring agreement with the Bracamontes entitles her to room and board as part of her compensation, but she now indicates that she is suffering a disability and stays mostly in her room, the couple says. After the dispute arose the Bracamontes discovered that Stretton is on the state vexatious-litigants list and has been involved in at least 36 lawsuits; police say because Stretton is in residence it is a civil matter, but a judge threw out the couple’s initial eviction attempt, saying they had not filled out a quit notice correctly. [ABC News, auto-plays video ad; CBS Los Angeles] In September of last year, whether coincidentally or not, California Gov. Jerry Brown signed into law the so-called California Domestic Workers’ Bill of Rights, affording domestic workers substantially more legal leverage in disputes with their employers. [SCPR] (& Scott Greenfield, with commenters)
As the war on musical instruments continues [The Jazz Line; earlier here, etc.]
Some figures on the left have aggressively sought to dismiss the seriousness of the renewed IRS scandal. Rep. Lloyd Doggett (D-Tex.) captured this mood at one recent Capitol Hill hearing when he suggested that after voicing suspicions that the loss of emails might not be accidental, his GOP colleagues might go on next to quiz the Service’s leadership about the president’s birth certificate and space aliens in Roswell, N.M. It’s not a “serious inquiry,” Rep. Doggett said: “I believe it’s an endless conspiracy theory here.”
And yet many Americans who do not believe in space aliens do question the IRS’s account of what has happened. While we covered the story a year ago as well as more recently, this might make a good time to recapitulate why.
The IRS grants 501 (c)(4) nonprofit status (less favorable than (c)(3) status, which affords charitable tax deductibility to donors) to a wide array of “social welfare” organizations, many, like the ACLU, with a definite ideological valence. In recent years the status has been sought and obtained by groups whose missions are closely related to campaign and electoral politics, most notably Organizing for America, whose role on the national scene is to support President Obama’s messaging. Not surprisingly this has excited controversy about whether the eligibility rules for (c)(4) status are being drawn in the right place. Most advocates however profess to believe that whatever the right set of rules, they should apply alike to both sides in our political life.
By March 2012 the Associated Press was reporting on a flurry of bizarre and seemingly unprecedented IRS demands that some (c)(4) applicants of a right-of-center valence provide extraordinarily burdensome and intrusive documentation of their activities — things like copies of all books and literature distributed to participants, transcripts of leaders’ radio appearances and live speeches, printouts of all Facebook and Twitter output, and so forth, along with donor lists and names of family members. The Service was also delaying groups’ approval for long periods, in fact seemingly indefinitely, without explanation or a firm denial that could be appealed to a court. Defenders of the agency subsequently put out a search for left-of-center groups that might have run into similar treatment, and although they did manage to turn up a few tales of bureaucratic red tape and rigmarole, they were unable to come up with anything remotely comparable.
IRS nonprofit chief Lois Lerner at first denied any targeting, then sought to blame rogue employees at the IRS Cincinnati office for it. But emails soon emerged clearly indicating guidance by high-level IRS managers in Washington. Lerner then declined to testify, asserting her Fifth Amendment privilege against admissions exposing herself to criminal liability.
Through the ensuing scandal, there was little hard proof that Lerner and other IRS insiders had coordinated the targeting with political actors outside the agency — on Capitol Hill, say, or in party organizations, or the White House — although a number of details on the record, such as frequent White House visits by agency insiders and coordination with outside figures on press messaging, made for suggestive circumstantial evidence. To establish that political operatives or officials outside the agency were aware of targeting at the time, or even perhaps instigated or directed it, would be to blow the scandal wide-open, perhaps threatening the careers of well-known public figures. If any email documentation of such coordination is to be found, it would most likely be in the “external” (outside the agency) emails of Lois Lerner and other key players in the IRS targeting effort.
Those are the same emails that have now mysteriously vanished due to a reported crash of Lerner’s computer, a crash that happened ten days after the House Ways & Means Committee wrote her to inquire about (c)(4) tax exemption denials*. Emails of six other key IRS employees are also said to have vanished in a series of coincidental crashes.
This week, as if to confirm that shabby treatment of politically disliked adversaries was not unheard-of at the Lerner-era IRS, the agency agreed to pay $50,000 to the National Organization for Marriage over an episode in which persons unknown leaked its confidential return and donor list to its ideological adversary, the Human Rights Campaign, which proceeded to have it published. And the Ways & Means Committee has just released an email indicating that when an invitation intended for a Congressional opponent wound up by mistake in the hands of Lois Lerner, her immediate reaction was to wonder whether it might be used to generate an IRS investigation embarrassing to him.
After all these revelations, is it really those who distrust the agency’s leadership whose gullibility should be compared to that of flying saucer cultists? Or is are the credulous true believers the ones who insist that the latest jaw-dropping revelations from the Service are sure to have an innocent explanation, though the earlier ones did not? (cross-posted, with minor changes, at Cato at Liberty)
*An earlier version of this post described the letter to Lerner as being about targeting; Glenn Kessler at the Washington Post has disputed whether that is an accurate way to describe the contents of the letter, which concerned a plan to audit conservative (c)(4) donors. Ian Tuttle responds to Kessler here.
“A woman using a Grand Central Terminal stairwell fell and broke her ankle last year because a spooky advertisement for the [Showtime serial-killer] series startled her, a new lawsuit charges. Ajanaffy Njewadda and her husband, a former Gambian ambassador, are suing the MTA and the cable network, accusing them of placing the ad in a dangerous spot for pedestrians.” [James Fanelli, DNAInfo New York]
In a 4-2 decision, New York’s highest court agreed with two lower courts that New York City’s attempted ban on sugary drink portions over 16 ounces exceeded the powers of the city’s Department of Health. [Bloomberg News coverage]
That’s exactly in line with what I wrote at earlier stages of the case. At the time, some national commentators did not seem to have checked out the actual reasoning of Judge Milton Tingling’s decision, which rested squarely on a distinctive 1987 New York precedent called Boreali v. Axelrod which had struck down the state health department’s attempt to regulate smoking in public places as beyond its properly delegated authority. The soda case was (as they say) on all fours with Boreali, and although the Court of Appeals could have overturned Boreali, as some academics urged, or found grounds to dodge its effect, as the two dissenters did, the court instead chose to apply the precedent as it stood. That confirms that the Bloomberg-appointed Board of Health, in its eagerness to assert powers not rightly its own, had casually broken the law.
One of the two dissenters was Chief Judge Jonathan Lippman, the latest of many indications that he is inclined to pull the Court of Appeals away from many of the positions and habits that have given it a centrist reputation among state courts.