Posts Tagged ‘constitutional law’

“Supreme Court Nixes Sentencing Law as Unconstitutionally Vague”

Crossing to join his four liberal colleagues, Justice Neil Gorsuch wrote the opinion in yesterday’s Davis v. U.S., finding unconstitutionally vague a federal sentence-enhancement provision prescribing “harsher penalties for those who use guns ‘in connection with certain other federal crimes.'” [Jack Rodgers, Courthouse News] His opinion begins:

In our constitutional order, a vague law is no law at all. Only the people’s elected representatives in Congress have the power to write new federal criminal laws. And when Congress exercises that power, it has to write statutes that give ordinary people fair warning about what the law demands of them. Vague laws transgress both of those constitutional requirements. They hand off the legislature’s responsibility for defining criminal behavior to unelected prosecutors and judges, and they leave people with no sure way to know what consequences will attach to their conduct. When Congress passes a vague law, the role of courts under our Constitution is not to fashion a new, clearer law to take its place, but to treat the law as a nullity and invite Congress to try again.

It was the third rights-of-the-accused case this term in which Gorsuch took the liberal side, and put him at odds once again with Justice Brett Kavanaugh. In his dissent yesterday, after crediting tougher federal laws with at least partial responsibility for the drop in crime since the 1980s, Kavanaugh noted that the sentence enhancement has been applied without seeming difficulty in thousands of cases of violent offenses since its enactment:

The Constitution’s separation of powers authorizes this Court to declare Acts of Congress unconstitutional. That is an awesome power. We exercise that power of judicial review in justiciable cases to, among other things, ensure that Congress acts within constitutional limits and abides by the separation of powers. But when we overstep our role in the name of enforcing limits on Congress, we do not uphold the separation of powers, we transgress the separation of powers….

The Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.

While both were appointed by President Trump, Gorsuch and Kavanaugh have been anything but in lockstep.

Religious establishment and improper delegation at the Supreme Court

Yesterday’s biggest news from the Supreme Court was not its 7-2 upholding of the Bladensburg, Md. Peace Cross (American Legion et al. v. American Humanist Association et al.; earlier). That outcome could readily have been foreseen given the result in earlier cases: Justices Stephen Breyer and Elena Kagan, to say nothing of the five conservatives, are prepared to uphold “longstanding monuments, symbols, and practices” that may include religious content but do not impose any significant harms on those of other faiths or none. This World War I memorial qualifies.

Instead, the big news is the outcome in Gundy v. U.S. (earlier), a case over whether Congress can delegate to the Department of Justice the power to decide how severe the penalties will be in one application of the sex offender registration law. While the critique of excessive delegation did not carry the day this time (the vote was 4-3-1 with Justice Brett Kavanaugh not participating), Justice Samuel Alito indicated that he would be inclined to look at the issue in a future case, and Kavanaugh is thought (from his D.C. Circuit jurisprudence) to be similarly minded. If so, then a future case could establish the important principle that Congress must spell out penalties and prohibitions in law itself, rather than punt such issues to executive agencies, at least in criminal matters and perhaps also in some regulatory ones. That’s huge, since the Court has rejected improper-delegation theories since the New Deal.
Gorsuch dissent in Gundy v. U.S.
Justice Neil Gorsuch’s dissent in Gundy, together with his scalding dissent (earlier) in the double jeopardy/dual sovereignty case Gamble v. U.S. on Monday, makes him the libertarian hero of the week.
Gorsuch dissent in Gamble v. U.S.

May 22 roundup

  • My comment on the House-passed H.R. 5: “Proposed Equality Act would 1) massively expand federal liability in areas unrelated to sex, gender, or orientation; 2) turn 1000s of routine customer gripes into federal public-accommodations cases; 3) squeeze conscience exemptions hard. All are good reasons to oppose.” More: Scott Shackford, Elizabeth Nolan Brown, Hans Bader, and earlier here and here;
  • America is not in a constitutional crisis: “Politicians have become incentivized to declare constitutional crises because it enhances their own importance as saviors and demonizes their opponents as illegitimate.” [Keith Whittington; Vox mini-symposium with Ilya Somin and others] Mike McConnell vs. Josh Chafetz on whether the current Congressional subpoena fights are really that different from politics of the past [Jonathan Adler] Calm, down-the-middle analysis of the issues raised by the Mueller report [Cato Institute chairman Bob Levy]
  • “Mercedes Goes To Court To Get Background Use Of Public Murals In Promotional Pics Deemed Fair Use” [Timothy Geigner]
  • Bizarro sovereign-citizen notions are found in the background of more than a few serious financial fraud cases [Ashley Powers, New York Times]
  • Divestment and sanctions by state governments aimed at other U.S. states is a bad idea that never seems to go away. Now it’s being floated in Maryland, against Alabama [my Free State Notes post]
  • “A federal judge in Texas wants you to know she’s sick and tired of whiny lawyers” [Justin Rohrlich, Quartz from December, Brad Heath on Twitter; Align Technology v. ClearCorrect, Judge Vanessa D. Gilmore]

Constitutional law roundup

Timbs v. Indiana: state forfeiture can violate Excessive Fines Clause

A unanimous Supreme Court ruling in Timbs v. Indiana confirms that state governments, like their federal counterpart, may not impose excessive fines. The ruling also holds that “at least some state civil asset forfeitures” violate the Excessive Fines Clause. “As a result, the ruling could help curb abusive asset forfeitures, which enable law enforcement agencies to seize property that they suspect might have been used in a crime – including in many cases where the owner has never been convicted of anything, or even charged. Abusive forfeitures are a a widespread problem that often victimizes innocent people and particularly harms the poor.” [Ilya Somin; ABA Journal]

Now keep your eye on the Privileges and Immunities Clause, advises Ilya Shapiro; Justice Gorsuch used a concurrence to signal that he is interested in revitalizing it, a position already held by Justice Clarence Thomas [Cato; see also Josh Blackman on Twitter]

Consent decrees: an exchange

My piece of two weeks ago for National Review about consent decrees, police, and the Jeff Sessions memo (briefly summarized here) drew a detailed response from Radley Balko in the Washington Post, whose writings on police misconduct I often link here. I’ve now responded in a second NR piece, arguing that while there is much common ground to be found on the issues here, I will stick with seeing the memo as generally on the right track in articulating proper limits to the feds’ constitutional role (especially under the post-Civil War Amendments) in restraining misconduct by lower levels of government. “The very real and sometimes dire failings of local governments do not change the most important fact about our federal government, which is that it is one of limited powers.”

Constitutional law roundup

  • Kansas Supreme Court rules 4-3 that cops can conduct warrantless search of private homes if they say they smell marijuana. Practical difference between this and “…whenever they please” is not clear [Tim Carpenter, Topeka Capital-Journal] More: Jacob Sullum;
  • At Timbs v. Indiana oral argument, Court seems sympathetic to idea of applying Excessive Fines clause to the states [Robby Soave, Jacob Sullum, Ilya Somin, earlier here, here, and here] Notwithstanding Justice Gorsuch and Kavanaugh’s interjections, there is and has been no uniform incorporation of the entire Bill of Rights against the states [Rory Little]
  • Arizona Supreme Court should recognize that First Amendment protects right of calligraphic art studio not to be forced to draw invitations and vows for wedding ceremony of which owner/artists disapprove on religious grounds [Ilya Shapiro and Patrick Moran on Cato Institute amicus brief in Brush & Nib Studio v. City of Phoenix]
  • Claim: notwithstanding SCOTUS precedent to the contrary, U.S. Constitution contains no general federal power to restrict immigration [Ilya Somin and others, Cato Unbound symposium, more]
  • “The Supreme Court Really Needs to Start Defining the Scope of the Second Amendment” [Ilya Shapiro and Matthew Larosiere on Cato amicus brief in Mance v. Whitaker, interstate sales by gun dealers] “Bump Stock Rule Bumps Up Against the Constitution” [Shapiro and Larosiere] “The Most Common Firearm in America is Not a ‘Weapon of War’” [same on Cato amicus brief in Worman v. Healey, Massachusetts ban on “assault weapons”] Federal court strikes down as unconstitutional New York’s ban on nunchaku [AP, Lowering the Bar with previous coverage of lawyer’s quest]
  • “An individual’s right to live free from governmental intrusion in private or personal information is natural, essential, and inherent.” That’s a recently adopted provision of the New Hampshire constitution. Now what does it mean? [David Post]

On coercion and plea bargaining

This fall the Cato Institute held a policy forum on plea bargaining featuring Clark Neily, vice president for criminal justice at Cato, Scott Hechinger of Brooklyn Defender Services, Bonnie Hoffman of the National Association of Criminal Defense Lawyers, and Somil Trivedi of the ACLU. Description:

Supreme Court Justice Anthony Kennedy has observed that “criminal justice today is for the most part a system of pleas, not a system of trials.”

Although nowhere mentioned in the text of the Constitution, plea bargaining has become the default mechanism for resolving criminal charges in the United States. Indeed, some 95 percent of criminal convictions today are obtained through plea bargains, which raises a number of serious concerns, including why so few people choose to exercise their hallowed and hard-won right to a jury trial. When one considers the many tools available to prosecutors to encourage defendants to accept plea offers, together with the incentive to resolve as many cases as efficiently as possible, one cannot help but ask how many plea agreements are truly voluntary and how many are the result of irresistible coercion. Are there constitutional or ethical limits on coercive plea bargaining, and if so, are they being properly enforced? And what should we make of an institution that has practically eliminated the criminal jury trial and with it the Framers’ painstaking efforts to ensure citizen participation in the administration of justice?

The Federalist Society also held a recent panel on the subject of plea bargaining, which David Lat covers here. More here and here.

December 12 roundup

  • “Scott Gottlieb’s FDA Is Moving Toward a Stealth Ban on Cigarettes and Cigars” [Jacob Grier, Reason]
  • Supreme Court should take Melissa and Aaron Klein cake-refusal case from Oregon and resolve the issues of free expression it dodged in Masterpiece [Ilya Shapiro and Patrick Moran, ABA Journal, earlier on Melissa and Aaron Klein cake-refusal case including oppressive $135,000 fine levied by Oregon BOLI (Bureau of Labor and Industries)]
  • “Administrative Law Is Bunk. We Need a Bundesverwaltungsgericht” [Michael Greve, responses from Mike Rappaport, Philip Wallach, and Ilan Wurman, and rejoinder from Greve]
  • New York’s family court system is failing children and their families [Naomi Riley/City Journal, thanks for quote]
  • “The Emmys People Are Opposing A Pet Products Company Named After A Dog Named ‘Emmy'” [Tim Geigner, TechDirt]
  • Metaphor alert: “Lawmaker Injured by Flying Constitution” [Kevin Underhill, Lowering the Bar, and funny throughout]