Among the wackier claims put forth in four of the lawsuits challenging governor’s virus shutdown orders is that the measures violate the U.S. Constitution by depriving states of a republican form of government. That’s a rhetorical gesture more than a serious legal argument, both because the orders haven’t deprived states of such a form of government, and because the federal courts in any event long ago made clear that the so-called Guarantee Clause can’t be sued over — it’s a political question and not “justiciable.” I’ve got a new piece at The Bulwark looking at the history of attempts to breathe life into the Guarantee Clause and what might happen if courts ever decided to entertain lawsuits under it.
I wrote the cover story in this weekend’s Washington Examiner magazine, about why the Northeast continues to elect Republicans as governor (and not to many posts other than that). The cast of characters includes newly elected governors Larry Hogan of Maryland and Charlie Baker of Massachusetts, Thomas Dewey, Chris Christie, Rudy Giuliani, William Weld, George Pataki, Mitt Romney, and Christine Todd Whitman.
It’s a particular honor that political analyst Michael Barone wrote a piece riffing on my article and going into more detail about the reformist origins of the GOP tradition in states like New York, and its continued importance as a brake on both self-dealing and fiscal profusion:
Why have Northeastern electorates, so heavily Democratic in presidential and congressional elections, been willing to elect Republican governors so often? Because that’s the only way to prevent their heavily Democratic legislatures from taxing and spending their states onto the road to bankruptcy for the benefit of the public employee unions. That’s something that Thomas Dewey, a light spender unlike Rockefeller, would approve and understand.
Most of my essay is about politics and policy, but here’s a bit related to law:
Northwestern law professor and Federalist Society member John McGinnis says [New York Gov. George] Pataki’s “most impressive act” was one that was hardly noticed at the time and yielded no electoral benefits, namely his appointment to the state’s highest court of Robert Smith, who “became one of the great state court jurists of his time.”
- Sooooo glad to be an American: that’s how Patrick at Popehat feels following latest Canadian-libel-law outrage directed at conservative blogger Ezra Levant (& see comments for alternate view);
- Obama has pardoned more turkeys than people. Why? [Dan Froomkin, HuffPo]
- “Reforming medical malpractice liability through contract” [Michael F. Cannon, Cato Institute working paper, PDF]
- Memoir of jury foreman in criminal case [Tux Life]
- Not too sharp: Massachusetts school district disavows policy of not letting students bring pencils to school [Slashdot]
- State governors have big plans for liability reform. Maybe even loser-pays? [Carter at PoL, more; Florida, Indiana, Tennessee, Texas]
- Parent who sent buzzworthy demand letter to Kansas City school board is a jazz musician [Wayward Blog, earlier]
- From comic books to violent videogames: “Our puritanical progressives” [George Will]
Arnold Schwarzenegger’s acrostic veto [TechCrunch, language].
Mark Steyn on the youngster charged with sexual harassment in suburban Washington, D.C.:
Randy Castro is in the first grade. But, at the ripe old age of 6, he’s been declared a sex offender by Potomac View Elementary School. He’s guilty of sexual harassment, and the incident report will remain on his record for the rest of his school days – and maybe beyond.
Maybe it’ll be one of those things that just keeps turning up on background checks forever and ever: Perhaps 34-year-old Randy Castro will apply for a job, and at his prospective employer’s computer up will pop his sexual-harasser status yet again. Or maybe he’ll be able to keep it hushed up until he’s 57 and runs for governor of Virginia, and suddenly his political career self-detonates when the sordid details of his Spitzeresque sexual pathologies are revealed.
(“Attack of the preschool perverts”, syndicated/Orange County Register, Apr. 12; Brigid Schulte, “For Little Children, Grown-Up Labels As Sexual Harassers”, Washington Post, Apr. 3). A contrary view (letter to the editor from Cynthia Terrell of Takoma Park, Md., WaPo, Apr. 5): “The Post showed appalling insensitivity to the inappropriate nature of Randy Castro’s act. …our culture remains largely indifferent to privacy and harassment issues involving gender.”
- Well, at least he cleaned up Wall Street; so runs one common valedictory to Spitzer, but Prof. Bainbridge begs to differ (Mar. 13)(and see links at my Point of Law roundup last week).
- “Should Spitzer really go to jail because of the way he took his own cash out of the bank?” asks Larry Ribstein (Mar. 11). And indeed bank “Know Your Customer” regulations, of which I’ve been critical for a good long time, might now come in for much needed scrutiny (Jack Balkin, Balkinization, Mar. 13; see also). One public figure who likewise faced the prospect of a “money laundering” indictment when personal weaknesses led him into surreptitious payments was ideological antipode Rush Limbaugh, Megan McArdle reminds us (Nov. 24, 2003).
- Last week’s New York Times article laying out Spitzer’s big crusade against the sex trade, and his successful push for a law lengthening sentences for “johns”, was powerful enough on its own terms. But isn’t it curious that the Times exclusively and at length quoted the feminist and legal-services groups who worked as Spitzer’s allies in that crusade, while not quoting a single source critical of the harsher penalties? Stephen Chapman has one corrective view [syndicated/Chicago Tribune, Mar. 13].
- Toronto law blogger Garry Wise says that unless Spitzer was diverting public moneys his fall constitutes “just another political lynching by the Monica brigade”, a sentiment I find sufficiently wrong-headed that I’m provoked to jump in with a comment [Wise Law Blog]. P.S. Wise says he was referring not to the governor’s downfall, but to his potential overcharging.
- How’d the press find out that “Client #9” was the governor of New York? All signs point to a prosecution leak — the sort of underhanded tactic that should be left to the likes of, well, the departing governor himself [Frum, National Post]. Plus: Don’t assume that all the ill-advised leaks came from the prosecution side [Beldar]
- Should “Kristen” sue AP and other press outlets for swiping her MySpace pics, she might prove formidable in court: “It’s not often you get a case where there’s someone in the room with a higher hourly rate than the lawyers.” [Steyn @ NRO “Corner”].
- One reader said he had to check Overlawyered to see whether a certain story was true or a parody, so please rest assured: it’s only a parody (Jason Roth, “Spitzer Sues Prostitute Over Sex Addiction”, Save the Humans, Mar. 11).
Client #9, also known as Eliot Spitzer, enthusiastically enlisted in a crusade for tougher anti-prostitution laws and specifically for steps to raise the penalties for “johns” who patronized the women involved. The campaign bore fruit, and in his first months as Governor Spitzer signed into law what advocates call “the toughest and most comprehensive anti-sex-trade law in the nation”. Among other provisions, the law “lays the groundwork for a more aggressive crackdown on demand, by increasing the penalty for patronizing a prostitute, a misdemeanor, to up to a year in jail, from a maximum of three months.” (Nina Bernstein, “Foes of Sex Trade Are Stung by the Fall of an Ally”, New York Times, Mar. 12).
The Money Laundering Control Act of 1986 was meant to criminalize the practice of “smurfing”, or evading reporting requirements on the transfer of large sums of cash by breaking the sums down into transactions below the threshold. (“Smurfs” were low-level operatives who agreed to go into banks repeatedly making deposits slightly below the trigger amount.) Who’d’ve imagined the law would trip up the best-known white collar crime prosecutor of our era? Newsday has the story, which has a Long Island angle:
Spitzer last year had wanted to wire transfer more than $10,000 from his branch to what turned out to be the front for the prostitution ring, QAT Consulting Group, which also uses a number of other names, in New Jersey, the sources said.
But Spitzer had the money broken down into several smaller amounts of less than $10,000 each, apparently to avoid federal regulations requiring the reporting of the transfer of $10,000 or more, the sources said. …
Apparently, having second thoughts about even sending the total amount in this manner, Spitzer then asked that the bank take his name off the wires, the sources said.
Bank officials declined, however, saying that it was improper to do so and in any event, it was too late to do so, because the money already had been sent, the sources said.
The bank, as is required by law, filed an SAR, or Suspicious Activity Report, with the Internal Revenue Service….
Millions of SARs are generated each week and flow into the Internal Revenue Service nationwide, but an analyst at the regional IRS office in Hauppauge [L.I.] noted Spitzer’s particular SAR and singled it out for attention to criminal investigators, the sources said.
The assumption, the sources said, was that Spitzer was being victimized either by a blackmailer or an impostor. The agents also speculated that perhaps the governor was involved in some sort of political corruption, the sources said.
If there were no other organized crime connections, that’s the kind of crime that might well result in a no-prison time recommendation and sentencing calculation for a first offender pleading guilty and cooperating.
AP also covers the smurfing charges, while Scott Greenfield has thoughts on the gradual erosion of financial privacy; I opined on some related matters in Reason a while back. WSJ law blog and Andrew McCarthy @ NRO discuss other charges that prosecutors might conceivably deploy against the governor. McCarthy, incidentally, contends that “innocent people in legitimate cash businesses have no concern” from the reporting requirements, which is not what I’ve heard.
More details from Wednesday’s NYT: It appears bank Suspicious Activities Reports separately directed investigators’ interest to Spitzer’s transactions and to the escort service front, QAT Consulting, and then the two investigations converged. “When he was New York State’s attorney general, Mr. Spitzer himself used the reports [SARs] to make his cases.”