Monthly Archives: June 2019

The Supreme Court and Republican Lies

By tmess2 | Published June 29, 2019

As we approach Independence Day, I tend to listen to my version of patriotic songs.  One of those songs is a Crosby, Stills, Nash, and Young track that they labeled as “49 Bye-Byes/America’s Children” (basically a modified live version of the Buffalo Springfield song “For What It Is Worth” a/k/a “There’s Something Happening Here” with an intro.)  Thursday’s Supreme Court Opinions brought to mind that intro — “Forty-nine reasons all in a line.  All of them good ones.  All of them lies.”

The most prominent example of this concept is the decision in the Commerce Department case concerning the census question.  The ultimate decision in this case was a 4-1-4 split.  On the one side, you had the four most conservative members of the Supreme Court.  These four did not care to look at the truthfulness of the reasons given for asking a citizenship question on the 2020 census.  It was enough that they thought that it was possible to make an argument with a sort of straight face that those reasons would justify adding the question to the census.  The four most liberal members thought that it was clear that the Administration had a solution designed to achieve a political end and went searching for a problem that would justify their proposal.  The deciding vote was Chief Justice Roberts who continued a history of occasionally throwing liberals a bone while pushing a conservative agenda.  Because he had the four conservative justices joining him on the conservative part of the opinion and the liberal justices joining him on the liberal part of the opinion, the Chief Justice’s opinion is an opinion of the “Court” (i.e. it had five votes, so it is precedent for lower courts).

The Chief Justice’s opinion first gives this Administration broad authority to act.  It finds few if any limits on the Census Bureau’s ability to place questions on the census in the statutes governing the census.  It also recognizes that the Census Bureau is entitled to use the census to obtain whatever information the Census Bureau (or the Commerce Secretary) deems is useful.  It also gives broad authority to the Commerce Secretary to determine what weight to put on the information developed by the experts in evaluating the potential questions.  So even though the best characterization of the record is that the question is likely to interfere with the primary goal of the census (an accurate enumeration of all people in the United States), the Commerce Secretary has the power to disregard that evidence as “speculative.”  Continue Reading...

Posted in Elections, Judicial | Tagged , , | Comments Off on The Supreme Court and Republican Lies

Supreme Court — The Final Push

By tmess2 | Published June 25, 2019

We are down to the last two (probably) opinion days of the term.  We know that the Supreme Court will be issuing opinions tomorrow (Wednesday).  More likely than not, the last opinion day will be Thursday, but there is still a possibility that it might be on Friday or there could be opinion days on both Thursday and Friday.  For the past several opinion days, there have been four opinions per day which would imply only two opinion days but things could change.

Besides continuing the pace of four opinions per day, Monday was a day of follow-up cases with the two biggest opinions being Brunetti and Davis.  Brunetti involved the law on registering trademarks, in particular a provision barring the registration of immoral or scandalous trademarks.  Following up on Tam which had struck down a provision barring the registration of disparaging trademarks, the Supreme Court unanimously struck down the bar on immoral trademarks and by a 6-3 vote struck down the bar on scandalous trademarks (although some justices suggested Congress might be able to adopt a narrower bar on profane trademarks that might survive review).  Davis involved the “residual clause” — a clause placed in several criminal and immigration laws as a catch-all to the definition of violent crimes which includes crimes that by their nature involve a substantial risk of the use of physical force.  In several previous cases, the Supreme Court has found that particular versions of this clause were “void for vagueness.”  In Davis, the Supreme Court struck down the residual clause in the statute barring the use of firearms in a violent crime.

With eight cases left, the tea leaves are becoming clearer.  And that is generally not good news.  We have one case left from each of the December, January, and February argument sessions.  There are three cases left from March (although it is possible that the two partisan gerrymandering cases will be consolidated).  Finally, there are two cases left from April.  Continue Reading...

Posted in Judicial | Tagged , , , | Comments Off on Supreme Court — The Final Push

Supreme Court — Eight Down, Twelve to Go

By tmess2 | Published June 22, 2019

On Thursday and Friday, the Supreme Court issued eight opinions in cases.  That leaves twelve cases still pending (including the two partisan gerrymander cases from March and the census case from April) heading into the last week.  Given that the Supreme Court has been issuing four opinions per day, it is likely that they will be adding two more opinion days to Monday’s opinion/order day.

The big story of this term continues to be that know precedent is safe from reconsideration by the “conservative” majority.  In four separate cases, there was a suggestion that the governing case be overruled or, at least, substantially modified. 

Gundy involved a provision of the Sex Offender Registration and Notification Act.  The provision occurs in the section governing when individuals subject to the Act need to register.  The other provisions in this section dictate when new offenders have to register.  The questioned provision leaves it up to the Attorney General to establish the rules for when prior offenders have to register.  For the first time in decades, the Supreme Court was considering whether such a delegation violated the non-delegation doctrine (barring giving legislative power to an executive official).  Prior to 1940, this doctrine was used to undermine the early regulatory agencies.  Currently, the rule is that — as long as the statute granting the power to adopt regulations contains some “intelligible principle” — the delegation is merely about how to implement the legislative scheme and is valid.  This case resulted in a 4-1-3 split (as it was argued in the first week of October before Justice Kavanaugh joined the Supreme Court).  The four in the majority found — given the rest of the act and the rest of the section — that the Act had the goal of eventually requiring all sex offenders to register and that the delegation to the Attorney General was merely to establish the timing of when prior offenders would have to register.  The three in the dissent declined to infer such a principle — broadly reaffirming the validity of the non-delegation doctrine and strictly reading the requirement for an “intelligible principle.”  The fifth vote in the majority came from Justice Alito who indicated that he wanted to reconsider the last eighty years of cases on the non-delegation doctrine and only voted in the majority because there are worse examples than the Act.  (Basically a dissenting opinion styled as concurring in the judgment because a 4-4 vote would have resulted in an order showing the lower court affirmed by an equally divided court without opinions setting the stage for a drastic revision of the non-delegation doctrine once Justice Kavanaugh is able to sit on one of these cases (which may take some time as many of the regulatory cases come from the D.C. Circuit).  Only time will tell what these revisions might mean for the Securities Exchange Commission, the Environmental Protection Agency, the Food and Drug Agency, and the Equal Employment Opportunity Commission. Continue Reading...

Posted in Judicial | Tagged , , , , | Comments Off on Supreme Court — Eight Down, Twelve to Go

The Supreme Court — Unsettled Law

By tmess2 | Published June 17, 2019

As the October 2018 Term is nearing it’s conclusion, we are about to hit a string of big news days from the U.S. Supreme Court.  (There are twenty cases to go with definite opinion days on this Thursday and one week from today and likely two or three more days between next Tuesday and next Friday.)  All four cases today have some legal significance for the issues that impact this website.

The least significant of the decisions came in Manhattan Community Access Corp. vs. Halleck and Virginia Uranium Inc. vs. Warren.  Halleck was a First Amendment case involving whether a private company running a community access channel on cable TV was a state actor such that any rules that the company set up for who could get access had to comply with the First Amendment.  In a 5-4 opinion written by Justice Kavanaugh that followed the conservative-liberal split, the Supreme Court found that the company was not a state actor.  So the justice most likely to have grown up watching Wayne’s World (a skit about a cable access show) ruled that the company could have denied access to potential programming.  Virginia Uranium was a weird 3-3-3 split (officially written by Justice Gorsuch) in which the majority found that the federal law governing uranium processing did not preempt a state law governing uranium mining.

In a case that would normally be very significant for this site, the Supreme Court found a way to avoid addressing the merits in a racial gerrymandering case.  In a 5-4 opinion written by Justice Ginsburg in which Justice Thomas and Justice Gorsuch joined the majority opinion and Justice Breyer joined the dissent, the Supreme Court in Virginia House of Delegates vs. Bethune found that one house of a state legislature did not have the right to appeal a trial court decision rejecting district lines when the rest of state government declined to continue the fight.  In reality, with the primary for Virginia’s districts having just occurred under the new lines and redistricting barely two years away, this decision is more of a punt of the underlying issues to the next cycle.  Continue Reading...

Posted in Judicial | Tagged , | Comments Off on The Supreme Court — Unsettled Law

June Debates — First Look

By tmess2 | Published June 16, 2019

In any cycle, a large number of people file paperwork with the Federal Election Committee to run for President or file paperwork with state election officials to get on a state ballot.  In 2016, eighty-three people filed to run for President as a Democrat and one hundred twenty filed to run for President as a Republican.  Most of these people, by any definition, are not “serious” candidates — they have no name recognition; they do not file in a significant number of states; and they do not raise the type of money needed to run a national campaign.   It is literally impossible to have all of these people participate in a “debate”  unless by debate, you mean simply having each candidate give a three or four minute stump speech introducing themselves or a multi-day endurance test that nobody would watch (other than to periodically check-in to see which candidates are making gaffes due to exhaustion).

Before most candidates had filed, the Democratic National Committee decided on certain ground rules for participation in its June and July debate.  First, and most significant, the DNC decided to hold its debate over two evenings with a maximum of ten candidates per evening.  (While, perhaps, three or evenings with a maximum of six to eight candidates would have been better, getting networks to agree to a two-day debate was an accomplishment.)  Second, the DNC established a series of objective standards to determine who would qualify.  These standards were facially neutral and did not have the DNC making a judgment call on whom they wanted to have in the debates.

Of course, when you go with “neutral” criteria, there will always be at least one surprise candidate who is able to meet them.  And, there will always be one candidate who surprisingly does not qualify who has a reason why those neutral rules actually are not fair.   By the end of May, twenty-four candidates who claimed to be serious candidates had filed to run for the Democratic nomination.  The field included (by highest office held):  one Vice-President; one former cabinet member; eight present or former Senators; three governors; six present or former U.S. Representatives; three mayors; and two who have never held elective office.  Each of these individuals can make an argument as to why they belong on the debate stage, but putting more candidates on the stage reduces the amount of time that each candidate has to make their points which in turn reduces the usefulness of the debate in providing meaningful information to prospective primary voters (and activists and donors) trying to pick a candidate.  It is difficult to pick any objective criteria based on the success of the campaigns to date that would not favor the candidates who announced earliest.  On the other hand, while you could use objective criteria that considered what candidates had done in past elections, any such criteria would clearly appear to be stacking the deck in favor of the DNC’s preferred model of a candidate.  So we have four candidates who missed qualifying for the June debate now having to play catch-up and hope to bump one of the other candidates from the July debate. Continue Reading...

Posted in Debates | Tagged | Comments Off on June Debates — First Look

Well, fine

By Matt | Published June 13, 2019

I said if Marianne Williamson made the debate stage, we would count her. Well, she did. Gravel and Messam didn’t, so they dont make it onto the DCW list. We have 22 candidates. All made the first debate except Bullock and Moulton. Not that anyone’s asking, but I don’t think the nominee will be Biden or Sanders. I think it will be one of Harris, Warren, Booker, Klobuchar or Buttigieg. Everything will start to change after the debates get going. Should be a fun few months.

  1. Rep. John Delaney
  2. Sec. Julian Castro
  3. Gov. Jay Inslee
  4. Sen. Elizabeth Warren
  5. Rep. Tulsi Gabbard
  6. Sen. Kirsten Gillibrand
  7. Mayor Pete Buttigieg
  8. Sen. Kamala Harris
  9. Sen. Cory Booker
  10. Sen. Any Klobuchar
  11. Andrew Yang
  12. Sen. Bernie Sanders
  13. Gov. John Hickenlooper
  14. Rep. Beto O’Rourke
  15. Rep. Tim Ryan
  16. Rep. Eric Swalwell
  17. Rep. Seth Moulton
  18. Sen. Michael Bennet
  19. VP Joe Biden
  20. Gov. Steve Bullock
  21. Mayor Bill De Blasio
  22. Marianne Williamson

Posted in Debates, Democrats | Comments Off on Well, fine

Choosing a Prime Minister — UK Style

By tmess2 | Published June 9, 2019

While we are looking forward to the first Democratic Debates later this month, the “official” start of the 2020 nomination process — which will not end until 13 months later at the Democratic National Convention — the United Kingdom is looking at a rather different process for choosing its next prime minister.  Technically, the United Kingdom does not have elections for prime minister.  Instead, the United Kingdom (and most western democracies) have elections for party leadership.  The prime minister is technically chosen by the Queen (or, in many other commonwealth countries, by the Governor-General — the official representative of the Queen for that country — or in other monarchies by that country’s king or queen or republics, like Germany, Israel, Greece, and Italy, by the president).  However, the tradition is that the leader of the majority party is selected as prime minister or — if no party individually has a majority — the person chosen as prime minister by the coalition that has a majority or — if no party or coalition has a majority — by the leader of the largest grouping in the legislature.

Those elections for party leadership can occur at any time.  Often, an election will occur shortly after a general election with the losing parties looking for new leadership for the next election.  However, in the middle of parliament, even the winning party can look at the tea leaves for the next election and decide that the best strategy for winning the next election is to kick out the person who seems to be leading the party to sure defeat. 

One of the things that makes the United Kingdom (or Canada or Australia) interesting is that in a paraphrase of the old saw, we are two countries united by a shared but diverging history.  At the time of the American Revolution, the United Kingdom was in the middle of a long evolution from a strong monarchy with a parliamentary check in the 1500s to the supremacy of the House of Commons by 1850.  And, in the 1770, there were flaws in the selection and composition of the House of Commons.  Coming from that shared point, the United States and the commonwealth countries have taken entirely different approaches to selecting a party leader. Continue Reading...

Posted in Elections, Politics | Tagged , , , , | Comments Off on Choosing a Prime Minister — UK Style

June and the Supreme Court

By tmess2 | Published June 1, 2019

As the calendar flips to June, the Supreme Court tends to move to center stage of political life in America.  While, technically, the annual term of the Supreme Court runs from October to September, the Supreme Court tries to finish issuing opinions in its cases by the end of June.  As a result, June has most of the opinions on the most divisive and politically important cases. 

At this point, we have some information on what to expect for this month.  We know the cases that were argued (as the last argument was on April 24). We also know which cases have been decided and which cases remain to be decided and when those cases were argued.  That is a key fact because of how the Supreme Court usually operates.  At the Supreme Court, cases are argued in a two-week argument session (followed by a period of at least two weeks without argument).  In each argument week, the cases are discussed at a weekly conference (typically on Friday) and a tentative vote is taken.  After that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) assigns a justice to write the case.  (With the current splits on the court, in most cases, the senior justice will be either Chief Justice Roberts or Justice Ginsburg.)  Regardless of who assigns the cases, the assigning justice tries to keep the assignments balanced within the argument session (no more than two per argument session) and over the term as a whole.  This year, the argument sessions ranged from six cases to thirteen cases.  When all of the argument sessions are combined, there were sixty-nine argued cases (actually seventy, but one was quickly dismissed without opinion) for which an opinion either has been or will be issued.  Thus, we expect each justice to have seven or eight opinions for the entire term. 

At this point in time, we have the most information on the first four argument sessions.  Typically, opinions are issued between three and five months after the argument; so the Supreme Court has issued opinions in most of the “early” cases.  In October, there were nine cases argued (technically ten, but one of the cases was argued during the first week before Justice Kavanaugh was on the court and was quickly set for reargument in January implying a 4-4 split).  Of those nine cases, eight have an opinion.  In November, there were twelve cases argued; and opinions have been issued in eleven cases.  In December, there were ten cases argued; and opinions have been issued in eight cases.  Finally, in January, there were eleven cases argued; and opinions have been issued in eight cases.  On the opposite side, we only have a total of three opinions from the cases argued in February and March and none from the April arguments. Continue Reading...

Posted in Judicial | Tagged , , , , , , , | Comments Off on June and the Supreme Court