Constitution | Le·gal In·sur·rec·tion - Part 12
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Posted by Amy Miller on August 13, 2014 27 Comments
What happens in Courtroom 478, located within the bowels of City Hall in Philadelphia, Pennsylvania, is the stuff of dystopian nightmares. Using a legal device called "civil forfeiture," government prosecutors confiscate property under the guise of "cracking down on crime." In a nutshell, civil forfeiture is a legal device that prosecutors use to confiscate property associated (however tenuously) with a crime under the fiction that the property itself is guilty of a crime. Even if the property owners themselves are never accused or convicted of a crime, or have no knowledge of a crime, they're required to attend a series of hearings to prove their innocence. If the property owners lose, the government gets to keep the property---and the profits. From the Institute for Justice's "End Forfeiture" site:
Philadelphia’s automated, machine-like forfeiture scheme is unprecedented in size. From 2002 to 2012, Philadelphia took in over $64 million in forfeiture funds—or almost $6 million per year. In 2011 alone, the city’s prosecutors filed 6,560 forfeiture petitions to take cash, cars, homes and other property. The Philadelphia District Attorney’s office used over $25 million of that $64 million to pay salaries, including the salaries of the very prosecutors who brought the forfeiture actions. This is almost twice as much as what all other Pennsylvania counties spent on salaries combined.
This is why the Institute for Justice is helping families in Philadelphia file a class action lawsuit against the city on behalf of all Philadelphians whose property is currently threatened by civil forfeiture. IJ is challenging several aspects of Philadelphia's civil forfeiture law, including:
  • "Seize and seal" without notice,
  • The requirement that citizens to give up the right to challenge the forfeiture if they want to "unseal" their home,
  • Lack of prompt post-seizure hearings,
  • Policy allowing prosecutors and police to use all of the cash and property seized to pad their budgets, and
  • Lack of judicial oversight
IJ put together a great video explaining the ins and outs of fighting a civil forfeiture claim, and I highly recommend watching it:

Posted by Mike LaChance on July 07, 2014 3 Comments
Tracy Oppenheimer of Reason TV recently interviewed Frank Buckley, an author and law professor at George Mason University. Buckley contends that the power of the presidency has strayed from what the framers intended:
Presidential Power and the Rise of American Monarchy: Q&A with Author Frank Buckley "America is dropping like a stone in rankings of freedom. As power accumulates in one person, expect that to continue," says Frank Buckley, George Mason University law professor and author of the new book, The Once and Future King: The Rise of Crown Government in America. Buckley sat down with Reason TV's Tracy Oppenheimer to discuss how the U.S. presidency has evolved into what he calls "something like an elective monarch." He says that this is not what the framers of the Constitution had intended, nor did they conceive of the modern version of the separation of powers. "A parliamentary regime was more or less what the framers wanted...as far as the separation of powers is concerned," says Buckley "instead of a device to constrain a president, it's one which immunizes him from criticism by Congress."
Here's the video:
With all that in mind, John Daniel Davidson of The Federalist has a recommendation for you and your family this holiday weekend.

Posted by William A. Jacobson on June 10, 2014 36 Comments
Well this is an interesting development, Calif. court rules teacher tenure creates unequal conditions:
A Los Angeles Superior Court judge ruled Tuesday that tenure, seniority and other job protections for teachers have created unequal conditions in public schools and deprive poor children of the best teachers. In a case that could have national implications for the future of teacher tenure, Judge Rolf Treu sided with a Silicon Valley mogul against some of the most powerful labor unions in the country. In a 16-page ruling, in the case of Vergara v. California, Treu struck down three state laws as unconstitutional. The laws grant tenure to teachers after two years, require layoffs by seniority, and call for a complex and lengthy process before a teacher can be fired. David F. Welch, founder of an optical telecommunications manufacturing firm, charged that job protections allow the state’s worst educators to continue teaching and that those ineffective teachers are concentrated in high-poverty, minority schools, amounting to a civil rights violation.
The full decision is embedded below. The court stayed its injunction pending appeal, so no changes will take place immediately. The sound of the teachers' union screaming and crying is ringing in my ears and I can't focus:

Posted by Bryan Jacoutot on May 06, 2014 8 Comments
We noted yesterday the Supreme Court's ruling in a case allowing for sectarian prayer at town council meetings. In a 5-4 decision, the court narrowly reversed a lower court ruling that prohibited the use of Christian-specific prayer on the grounds it "conveyed the message that [the town of] Greece was endorsing Christianity." Ultimately, the Supreme Court held legislative prayer in the context of an invocation prior to the conducting of regular legislative business did not violate the Establishment Clause of the first amendment. It did so by drawing on several cases form the past that essentially concluded the exact same thing, citing hundreds years of the existence of prayer in legislative bodies throughout the nation. More persuasive than this "tradition" argument, though possibly more constitutionally problematic in the long run, was the court's recognition of what would occur as a result of courts inquiring into the specific content of a prayer. [Emphasis Added]
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the court that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing or approving prayers in advance nor criticizing their content after the fact... Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy.
Because the plaintiffs in this case only wanted the Christian-specific aspect of the prayer removed from the town council, the above line of reasoning was invoked to buoy the more basic "tradition" argument also employed by the majority. But what about a constitutional challenge seeking a ban of prayer altogether? That would alleviate the need to inquire into the content of the prayer, thus freeing courts and governments from entangling themselves in the process of picking and choosing deities and faiths to pray to.
Outside the courts, people are already gravitating towards this method of religious restriction in the public sphere. As reported by the Daily Caller, one East Carolina University Professor recently instructed his students specifically not to mention God in their graduation ceremony speeches.

Posted by Bryan Jacoutot on March 15, 2014 14 Comments
Remember what Ezra Klein said about our old Constitution?
"The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done."
The internet remembers. Proving that "great minds" think alike, Rep. Sheila Jackson Lee (D-TX) proclaimed the Constitution has guided our nation for "some 400 years." (h/t HotAir):

Posted by Bryan Jacoutot on March 03, 2014 3 Comments
You may have heard about the upcoming Supreme Court case of Sebellius v. Hobby Lobby Stores, Inc.
On November 26, 2013, the U.S. Supreme Court agreed to hear Sebelius v. Hobby Lobby Stores Inc., a case arising out of commitment of the Green family, the sole owners of Hobby Lobby Stores Inc., to live out their deeply held religious convictions by “operating their company in a manner consistent with biblical principles.” These principles were put to the test when the federal government mandated that the Greens and their family businesses provide four specific potentially life-terminating drugs and devices through their employee health plan in conflict with their deeply held religious convictions. While the Green family has no moral objection to providing 16 of the 20 FDA-approved drugs and devices that are part of the federal mandate, providing drugs or devices that have the potential to terminate a life conflicts with their faith. Accordingly, the Greens and their family businesses filed suit in September 2012 to defend their right to religious freedom under the Constitution and federal law. Throughout, the Greens have been assisted and represented in the legal case by the Becket Fund for Religious Liberty, a non-profit, public-interest legal and educational institute with a mission to protect the free expression of all faiths.
The case is scheduled to be decided by the Supreme Court by the end of the June term. Apart from the legal work being done on Hobby Lobby’s behalf, the company has also engaged in a fairly strong public relations campaign. They’ve created a number a videos, featured on YouTube and their website, including this one. http://www.youtube.com/watch?v=k4pL32qQ_3k Hobby Lobby also appears to be engaging in a very active Twitter campaign to help control the narrative — to the extent possible — about their impending case.

Posted by Mandy Nagy on February 27, 2014 20 Comments

Jonathan Turley, a law professor at George Washington University, testified Wednesday before the House Judiciary Committee on the topic of “Enforcing the President’s Constitutional Duty to Faithfully Execute the Laws.” Turley expressed concern that “We are in the midst of a constitutional crisis with sweeping implications...

Posted by William A. Jacobson on February 13, 2014 37 Comments

who like Obama using executive orders to go around Congress? "The Enablers"...

Posted by William A. Jacobson on January 18, 2014 25 Comments
I recently was referred to disparagingly as a mere "blogger," by an attorney in a matter I was reporting about, in an email in which "reply to all" was mistakenly selected. It was disappointing at many levels, particularly given the person the attorney was representing, but not really surprising. Well, buddy, I got rights. Via Eugene Volokh, Bloggers = Media for First Amendment Libel Law Purposes:
So holds today’s Obsidian Finance Group v. Cox (9th Cir. Jan. 17, 2014) (in which I represented the defendant). To be precise, the Ninth Circuit concludes that all who speak to the public, whether or not they are members of the institutional press, are equally protected by the First Amendment. To quote the court,
The protections of the First Amendment do not turn on whether the defendant was a trained journalist, formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went beyond just assembling others’ writings, or tried to get both sides of a story. As the Supreme Court has accurately warned, a First Amendment distinction between the institutional press and other speakers is unworkable: “With the advent of the Internet and the decline of print and broadcast media … the line between the media and others who wish to comment on political and social issues becomes far more blurred.” Citizens United, 558 U.S. at 352. In defamation cases, the public-figure status of a plaintiff and the public importance of the statement at issue — not the identity of the speaker — provide the First Amendment touchstones.
I think that’s right, not just as a matter of First Amendment principle but also as a matter of history and precedent.... The specific legal issue that the Ninth Circuit was confronting in this passage, by the way, is whether all who speak to the public are equally protected by the Gertz v. Robert Welch, Inc. rules, which are that

Posted by William A. Jacobson on December 27, 2013 11 Comments

We reported last week on how Judge Leon in the District of Columbia ruled against the government, preliminarily, on NSA mass data surveillance. I cautioned against the media assumption that the ruling would survive: The judge issued a preliminary injunction, but stayed his decision pending appeal....

Posted by William A. Jacobson on December 16, 2013 14 Comments

Sorry, but I have too many other things on my plate right now to dig into this, even though it's clearly an important decision which may eventually make its way to the U.S. Supreme Court. A federal judge in D.C. has found parts of the NSA...

Posted by Andrew Branca on December 06, 2013 9 Comments
“Dumbing Down the Courts: How Politics Keeps the Smartest Judges Off the Bench” (2013) is the most recent of Dr. John Lott Jr.’s excellent books applying economics to better understand the societal dynamics around controversial issues. Gun owners will be most familiar with his past work on the defensive uses of force by lawfully armed citizens (“More Guns, Less Crime”). In “Dumbing Down the Courts” Dr. Lott examines how political forces are increasingly driving the federal courts to be staffed by judges (and justices) who are less intellectually capable than their predecessors. In short, his hypothesis — supported by data on more than 1,500 federal court nominees — is that the smarter, more respected (by their legal peers), and more academically talented a candidate for a federal court, the longer the confirmation process and the less likely confirmation will be successful. Indeed, this reality has become so widely accepted on an anecdotal level that many of the most promising candidates for federal judgeships simply decline to accept even consideration for such an appointment. Dr. Lott uses rigorously analyzed data to move this discussion beyond mere anecdote.

Growing Stakes, Increased Left-Wing Radicalization

Being nominated and confirmed to a federal judicial appointment was not always the arduous process it is today, nor was it always geared towards rejection of the most talented candidates.

Posted by William A. Jacobson on December 03, 2013 47 Comments

A follow up to An increasingly dangerous presidency and More on Obama lawlessness. You can read the full testimonies at the links. The key thing is that there may be no remedy -- other than at the ballot box in 2014 -- to Obama's lawlessness. There...