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Category Archives: Judicial
Waiting for the Other Shoe to Drop
There have been signs, including a posting on his Twitter-alternative website from the Crook-in-Chief that an arrest was supposed to be about to occur, that Donald Trump may soon be the prisoner in the dock. Obviously, until charges are filed, any discussion of potential charges are just speculation. But here is what seems to be in the wind. And I did postpone writing this to see what might get filed this past week, but, since there is no guarantee about when these charges will come, I decided to go ahead with this post.
Right now, the case that appears on the eve of being filed is from Manhattan County in New York. These charges arise out of something which is, unfortunately, somewhat common with closely-held corporations — an inability to keep the corporation separate from the person. Legally, a corporation is a separate legal person from its owners, officers, and employees. The corporation is legally responsible for paying its own expenses and liabilities. The personal expenses and liabilities of the employees are supposed to be paid by the employees out of their personal funds. If the employer covers those expenses, that is considered to be compensation to the employee (or dividends to the owner) which has to be reported to the IRS and state taxing authorities as income for the employee (or income to the owner). This situation is what got the Trump Organization charged and convicted for benefits that it provided to some of the executives which were included as business expenses (and employee compensation is a business expense) on the corporate returns but not reported as income to the executives.
In Trump’s case, the issue is sexual misconduct by the CEO of the company. Now, if the company is being sued for sexual harassment of its female employees under Title VII, that is a legitimate business expense. If the CEO is sued for sexual misconduct in his personal ife, that is not a legitimate business expense, and he should be paying the settlement and the legal expenses out of his personal account. Complicating the matter for Trump is that these issues arose while Trump was running for office. That raises the issue of whether the settlements and non-disclosure agreements were for personal reasons — to avoid his spouse learning about his infidelity — or for political reasons — to avoid the public learning that the candidate is a liar and cheat who can’t even keep his wedding vows much less any other promise. It is clear that there are some fraudulent business records here as Michael Cohen and the women should not have been paid from Trump Organization accounts but whether the offense is a felony or misdemeanor depends upon whether that improper use of corporate funds where for other criminal purposes — namely avoiding tax liability on the part of Donald Trump (if Trump had paid the bills and then taken a draw from the company that would have been income to Trump and the expense would not have been tax deductible) and the Trump Organization (distribution of income by a company is not tax deductible but legal expenses are) or to avoid reporting a campaign expense (if the settlement was designed to avoid the political consequences, it would be considered to be a campaign expense).
Also posted in Donald Trump, Elections
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Student Loans — A look at the issues in the Supreme Court Cases
This past week, the United States Supreme Court heard challenges to President Biden’s program giving partial student loan forgiveness. There are two separate cases (one brought primarily by Republican states and one brought by individuals), but the issues in the two case are relatively similar.
The first issue in both cases is standing. For those unfamilar with standing, it derives from the Constitution’s language giving federal courts authority to decide cases and controversies. Traditionally, courts have viewed this language as barring the ability of parties from requesting “advisory opinions” about how courts would rule if the parties did X. As such, the courts require a real dispute. More importantly, standing is concerned about who brings the dispute. In simplest terms, a party can’t bring a case merely because they don’t like what the other party is doing. The party bringing the case must be injured by the opposiing party’s actions in a way that can be fixed by the court. Under the federal system, the state governments do not have the right to challenge the acts of the federal government merely because a given state disagrees with the federal government’s decisions. They have to show that the federal government’s acts injure that state.
For the state challenge, the lower court found standing based on the impact of loan forgiveness of MOHELA. To understand the issue, one needs to know what MOHELA is. Several of the states over the years have gotten heavily involved in the processing and handling of student loans. I remember that when I was in law school, my student loans were handled by the Pennsylvania equivalent of MOHELA. While I do not know the structural details of all of these agencies, MOHELA is somewhat equivalent to Fannie Mae. Like Fannie Mae, MOHELA is a separate entity from the state government. MOHELA is not a party to the case. The question for the Supreme Court is whether Missouri has the right to speak for MOHELA. If there is a decision in favor of the student loan forgiveness program, it is likely to be based on the theory that Missouri is not MOHELA and Missouri has not shown that it will be harmed if MOHELA is harmed. If Missouri does not have the right to sue on behalf of MOHELA, it is unclear how any of the state governments has standing on any other theory.
Also posted in COVID-19, Student Loan Debt
Tagged Heroes Act, major questions doctrlne, standing, Student Loan Forgiveness, Supreme Court
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Supreme Court Mid-Term Update
As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions. This term is already shaping up as a weird term. By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred. While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits. It is not unusual for these cases to be resolved by unanimous opinions. Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.
At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).
The January session should be relatively quiet. There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer.
Tagged Affirmative Action, civil rights, Free Speech, Independent State Legislature, Indian Child Welfare Act, Supreme Court, Voting Right Act
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Supreme Court — October Term 2022 Preview (Part 2)
The Supreme Court begins its annual term this upcoming Monday, October 3. Unofficially, the term begins later today when the Supreme Court holds its opening conference (at which it will start selecting the cases that will start to fill out its January and February argument sessions). In Part 1, we covered the cases that have been scheduled for argument in October and November. In this post, we will cover the cases that were previously accepted for argument back in the Spring but which have yet to be assigned to an argument docket (as of yesterday). Any day now, we should have a list of the December cases (which will actually begin on November 28 and be half in November and half in December).
Percoco vs. United States and Ciminelli vs. United States are related cases involving bidding fraud and government contracting. One aspect of the cases is whether a lobbyist with political connections (here a former campaign manager) can be found guilty for “honest services fraud” (a means of holding elected officials liable for their part in going along with fraud).
Moore vs. Harper may be the biggest election law case of the term. The Constitution grants initial power over federal elections to state legislatures. The two elections clauses — one for congressional elections and one for the choosing of presidential elections — have typically been interpreted as referring to the state legislative power rather than specific bodies (recognizing that, even in the 1780s, there were differences between the states in how they structured their governments). This traditional interpretation recognized that the people of the states had the authority to enact restrictions on election laws in their state constitutions. In recent years, conservatives have come up with the “independent state legislature” theory. Under this theory, the federal elections clauses granted power to the state legislatures that are beyond the control of state constitutions and state laws and rules. In relevant part, absent an express grant in the state election laws, this theory contends that state courts may not invalidate state elections laws related to federal elections based on state constitutions and that state executive branch officials may not deviate from the express commands in those state elections laws. This case arises in the context of congressional redistricting, but the theory of the North Carolina legislature would open up a convoluted mess of when a court or an election authority is merely interpreting the relevant state statues and when they are altering it.
Tagged Adminsitrative Procedure Act, Chevron deference, civil rights, Free Exercise Clause, Immigration, Independent State Legislature, Second Amendment, Supreme Court, term limits
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Supreme Court — October Term 2022 Preview (Part 1)
It’s that time of year again. After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.
A quick refresher. From October through late April/Early May., the Supreme Court will have seven two-week argument sessions. With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess. In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious). On argument days, the Supreme Court will usually hear two cases in the morning. (That “usual” is very flexible. With the declining number of cases granted in recent years, we have been seeing more single argument days. Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case. Rarer is having enough cases that they also schedule an afternoon argument.) They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari). They also meet in a conference on the Friday before the argument session to consider petitions for review. Orders on the petitions for review are released on the Monday after the conference. In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.
The October argument session (and the term) officially begins on the first Monday in October (October 3, this year). They will meet in the “long conference” to kick off the term on September 28. (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.)
Tagged Affirmative Action, Appointments Clause, Civil Rights Act, Clean Waters Act, Dormant Commerce Clause, Equal Protection Clause, Indian Child Welfare Act, Navigable Waters, redistricting, Supreme Court, Tenth Amendment, Voting Rights Act
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The Most Dangerous Branch — End of Term Reflections
In the Federalist Papers, the Judiciary was called the “Least Dangerous Branch.” The thought was that the Supreme Court relied on the other branches to follow through on court orders. However, in our legal system, court orders are usually obeyed. And, between gerrymandering, filibusters, and the equality of the states in the Senate, it is very hard to get the types of majorities that allow real change in the “political” branches. Courts, however, simply require a majority to act. And the relentless campaign of the far right has left us with a Supreme Court that borders on being as political as any other branch of government. That is not to say that every decision is political. There are lots of legal issues that are not partisan in nature. And there are some issues that split conservatives. However, on this Court, when there is a clear partisan divide over an issue, the result is a foregone conclusion regardless of what the true facts and precedent dictate. The last week of the term gave us three cases in which Senator Mitch McConnell’s abuse of Senate rules resulted in rulings that we would not have gotten in 2015.
The first case is Kennedy v. Bremerton School District. What makes this case significant is that this case is ultimately about what version of the facts one chooses to belief. The normal rule is that appellate courts take the facts as found by the lower courts or in the light most favorable to the lower court. In this case, however, a major conflict between the two opinions is their characterization of the facts. The majority sees the practice of the petitioner — a public high school coach kneeling on the football field at the end or the game — as a private act of worship. The dissent (and the lower courts) saw the act as a public display by a government employee in the course of his employment. The normal practice when the case is this fact-dependent and the facts are unclear is to “dismiss as improvidently granted.” Instead, the majority picks and chooses the disputed evidence that supports the legal rules that it wishes to establish notwithstanding compelling evidence supporting a contrary reading of what happened. In doing so, the Supreme Court announces that the Lemon test for the Establishment Clause has been discarded (as well as other tests for an Establishment Clause violation) and replaced by (wait for it) a historical analysis of what would have been considered an establishment of religion. It should shock nobody that this approach means that very little will be a violation of the Establishment Clause. With the Establishment Clause neutered, that just leaves the Free Exercise Clause and the Free Speech Clause. Given the fact that the Supreme Court has greatly expanded the impact of these two clauses, the end result for the forces of protecting the rights of Christian Theocrats over the rights of everybody else is a foregone conclusion.
The second case Oklahoma v. Castro=Huerta. This case involves criminal jurisdiction on tribal lands in Oklahoma. Several years ago, in a 5-4 decision (with Justice Ginsburg) on the Supreme Court, Justice Gorsuch and the four liberal justices ruled that no treaty or act by Congress ever formally disestablished the native reservations in Eastern Oklahoma even as non-Natives bought the land on the reservation. As such, the lands were still legally part of those reservations. Under federal statute, crimes by natives against natives on reservations have to be tried in tribal court or federal court (depending on the offense). The new case involved crimes against natives by non-natives. With Justice Barrett instead of Justice Ginsburg, there were five votes against tribal authority and in favor of state authority. As such, the majority — thanks to a rushed confirmation by Senator McConnell in the fall of 2020 — found that Oklahoma also had the authority to try such cases in state court. Now, both this decision and the earlier decision are based on statutes. In theory, Congress could fix the laws related to the relationship between tribal authority and state authority to fix the issues brought out by cases (or actually appropriate the money to hire enough prosecutors, public defenders, and judges to handle a large number of cases on tribal lands in Oklahoma), but the deadlock in Congress makes this highly unlikely.
Also posted in Climate Change, Elections
Tagged 2020 Redistricting, Alabama, Chevron deference, Environmental Protection Agency, Establishment Clause, Free Exercise Clause, Free Speech Clause, Independent State Legislature doctrine, Justice Ginsburg, Justice Gorsuch, Justice Jackson, Louisiana, major questions doctrlne, Mitch McConnell, North Carolina, Voting Rights Act
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The Supreme Court — Faux Originalism and the Reactionary Ascendency
This is a hard week to post about. There were three opinion days this week. And each one featured a new decision that ripped at the fabric of modern society and featured a rewriting of history in the service of originalism to allow the reactionary members of the court to push through an agenda that lacks electoral support based on a misreading of the Constitution.
Tuesday started off the week with Carson vs. Makin, the Maine school voucher case. Traditionally, there have been two prongs to the Free Exercise Clause — one prong involves the power to follow one’s religious beliefs without penalty and the other prong involves discrimination based on religion. Posed against the Free Exercise Clause is the Establishment Clause which forbids the government from establishing an official religion or religions. Traditionally, the big fights have been in the “no penalty” prong.
On the penalizing religion prong, the battle has always been the reasonableness of the proposed accommodations measured against the significance of the government interest. And in the late 1980s, after one of the low points of religious freedom in which Justice Scalia basically limited this prong to the right to have beliefs without penalty for those beliefs (but no right to act on those beliefs), Congress overreacted by enacting the Religious Freedom Restoration Act which went to the other extreme. The RFRA and the Free Exercise Clause are on the verge of being interpreted as allowing people to claim religious exemptions from civil rights laws. And we are likely to see another case in this prong later this week allowing a coach at a public school to pray publicly while on the job at a school function.
Also posted in Civil Rights
Tagged Abortion, Free Exercise Clause, Originalism, same-sex marriage, Second Amendment, Supreme Court
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Supreme Court Update
The last week was both busy and quiet on the Supreme Court front. The Supreme Court handed down eleven decisions reducing the number of pending cases to eighteen with two weeks to go. Only two of the cases were medium big, and the really big cases will be decided in the last two weeks. With the Juneteenth holiday, the Supreme Court will be releasing opinions tomorrow (Tuesday) and Thursday. For the last week of June, Monday will be an opinion day. Depending on how many opinions are left after June 27, there will probably be additional opinions on June 29 and, maybe, June 30. Expect Dodds and New York State Rifle to come the week of June 27.
This week, the two big decisions were in American Hospital Association v. Becerra and Arizona v. City and County of San Francisco. Both of these are bigger for what they did not say than for what they actually held.
American Hospital Association involves the rules for hospital reimbursements for Medicare. For years, conservatives have been challenging a judge-made rule (Chevron deference) which dictates that courts should uphold reasonable rules implemented by administrative agencies based on a reasonable interpretation of statutes. So far, the U.S. Supreme Court has not officially overruled Chevron. Instead, they are whittling it away through decisions like American Hospital Association. The courts are doing this by narrowing the field of what is a reasonable interpretation of statutes.
Tagged Chevron deference, Election clauses, Independent State Legislature, North Carolina, Pennsylvania, Supreme Court
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Supreme Court — End of Term Preview 2022
Normally, by this time of the year, the Supreme Court term is coming into focus. With three weeks to go, typically, there is one or two cases left from the Fall. While there are always question marks, it is possible to try to figure out results in the key case by who is in the running for getting the remaining opinions from a month.
This year is different. There are still 29 opinions outstanding out of 62 cases. While there have been years with more opinions outstanding heading into the last three weeks, those years were back when the Supreme Court was hearing a lot more cases per year.
To date, almost all of the opinions have been in cases that (other than the parties) mostly interested those practicing in that field. The biggest attention getting case was the decision reinstating (at least for now) the death penalty against the surviving Boston Marathon bomber. The legally biggest case of the year so far also came from Boston in a Free Exercise/Free Speech case involving Boston’s refusal to let a Christian group use one of the city’s flagpoles in connection with an event even though it routinely gave such permission to nonreligious groups. That decision may be an indicator of the likely result in some of the remaining cases, but it was merely a continuation of the recent trend in Free Exercise cases.
Tagged Abortion, EPA, Establishment Clause, Free Exercise Clause, Free Speech, Second Amendment, Supreme Court
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The Supreme Leak
Last night an unprecedented leak revealed an unprecedented bombshell.
Most courts are rather tight-lipped about cases that have been heard but not decided. Judges and the support staff that works for them understand that, for multiple reasons, they should not talk about a decision until it is officially released.
Now, no system is perfect, and periodically, there are leaks about the internal operations of the court. But, to the best of my knowledge, there has never been a leak of a draft opinion prior to the official release of the official opinion.
Tagged Abortion Rights, Supreme Court
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