Kavanaugh's Post-9/11 Decisions Prove His Commitment to the Rule of Law

RNLA Executive Director Michael Thielen wrote today in the Daily Caller about how Judge Brett Kavanaugh's personal experiences on and after 9/11 and his subsequent actions demonstrate his independence and his respect for the rule of law:

In response to questions from Senators Lindsay Graham and John Cornyn, Brett Kavanaugh described how he was at the White House that Tuesday morning, in the West Wing, when the second World Trade Center Tower was hit and the world realized that this was not an accident but a deliberate act of terrorism. . . . Kavanaugh recounted how . . . the focus of President George W. Bush on September 12 was that this sort of attack would not happen again, and how he was with Bush every day from 2003 to his confirmation in 2006, seeing firsthand the former president’s commitment to preventing another terrorist attack.

Brett Kavanaugh favored a race-neutral approach to protecting Americans against a future terrorist attack and specifically rejected racial profiling just four months after 9/11:

Security measures that might seem unthinkable to us now, including racial profiling, enjoyed widespread support among people, politicians and government staff alike. Brett Kavanaugh had the integrity and moral courage to stand against the popular fervor to provide security at almost any cost and only support security measures that were correct both legally and morally.

After joining the D.C. Circuit, Judge Kavanaugh overturned the conviction of Osama Bin Laden's bodyguard and driving because the conviction violated the Constitution's prohibition on ex post facto laws (in Hamdan v. US):

When Sen. Cornyn wondered how Judge Kavanaugh could possibly do that, he responded, “The rule of law applies to all who come before the courts of the United States.” He said even enemy combatants and non-citizens are entitled to “equal justice under law.”

Mr. Thielen concluded:

As we pause this week to remember the horrific terrorist attacks of 9/11, the lives lost and the heroic sacrifices of many Americans on that morning seventeen years ago and in the years since, let us not forget that respect for the rule of law is what sets us apart from so many other places where terrorism flourishes and what makes us a target for violent extremists in the first place. . . . America is great because a judge who experienced the effects of and response to terrorism firsthand can follow the Constitution, even when it compels an unpopular result in favor of a terrorist.

On this day and every day, let us remember that the "rule of law and respect for the Constitution creates the freedom that protects us all."  By protecting that freedom, we honor the memory and sacrifice of those who died on September 11, 2001, and all who have given their lives since to protect us from the threat of terrorism.

Judge Kavanaugh Will Help Restore Our Government to the Way the Framers Intended

In drafting the United States Constitution, the framers intended a nation with three equal branches. In large part due to judicial and executive ‘activism,’ America has lost its way and the effectiveness of the legislative branch has suffered as a result. As Peter Wallison explains, the nomination of Judge Kavanaugh to the Supreme Court will go a long way in restoring the framer’s initial aim. 

Brett Kavanaugh—President Trump’s most recent nominee for the Supreme Court—could return legislative authority [to] Congress. His confirmation will add a fifth vote to a conservative group in the Court that seeks to take power away from the agencies of the administrative state and put it back where it belongs, in the legislative branch. 

In the past seventy years the liberal movement in the United States has done everything it can to decrease individual liberty and increase the size and scope of government.

The reason for Congress’s weakness today is a failure of the courts over many years to carry out a role that the Framers expected them to perform: to keep the elected branches within their assigned responsibilities. 

The Framers designed a system of separated powers—a Congress to make the laws; a president and executive branch to enforce or execute the laws; and a judiciary to interpret the laws—because they believed that was the only way to preserve the peoples’ liberty against the encroachments of government.

In his recent op-ed, Wallison details exactly when the progressive left began its assault on the constitution.

The Framers’ structure remained in balance for almost 150 years, but everything began to change during FDR’s New Deal. In 1935, the Supreme Court declared two congressional actions unconstitutional because they violated the separation of powers by delegating legislative power to the executive branch. But after his landslide election in 1936, FDR retaliated with a proposal to increase the size of the Court to 16, allowing him to appoint seven new members.

This opened a wide field for both the creation of new administrative agencies and empowering them with wide-ranging rule-making authority.

Completing the Court’s surrender to the executive was the 1984 unanimous decision in Chevron v. National Resources Defense Council. In this case, the Court directed lower federal courts to defer to administrative interpretations of their own authorities, if that interpretation was “reasonable.” This allowed administrative agencies to reinterpret existing statutory authority in new ways and again substantially increased administrative power.

The confirmation of the highly qualified Judge Brett Kavanaugh would reverse the massive growth of bloated government agencies and overreaching executive power. Judge Kavanaugh would cement an ‘originalist’ view of the Constitution and restore our republic to its initial ideals centered on liberty and freedom from government.

Supreme Court Upholds Ohio Voter Registration List Maintenance Procedure

This morning, the Supreme Court decided Husted v. Philip Randolph Institute, overturning 5 to 4 the Sixth Circuit decision that invalidated one of Ohio's voter registration list maintenance procedures.  Justice Alito wrote for the Court, starting by clearing stating the facts at issue, which have been politicized into slogans like "Ohio's voter purge" by the left throughout this case:

At issue in today’s case is an Ohio law that aims to keep the State’s voting lists up to date by removing the names of those who have moved out of the district where they are registered. Ohio uses the failure to vote for two years as a rough way of identifying voters who may have moved, and it then sends a preaddressed, postage prepaid card to these individuals asking them to verify that they still reside at the same address. Voters who do not return this card and fail to vote in any election for four more years are presumed to have moved and are removed from the rolls. We are asked to decide whether this program complies with federal law.

The Court found that Ohio's practice is in compliance with the National Voter Registration Act (NVRA) (internal citations omitted): 

Respondents argue (and the Sixth Circuit held) that, even if Ohio’s process complies with subsection (d), it nevertheless violates the Failure-to-Vote Clause—the clause that generally prohibits States from removing people from the rolls “by reason of [a] person’s failure to vote.” Respondents point out that Ohio’s Supplemental Process uses a person’s failure to vote twice: once as the trigger for sending return cards and again as one of the requirements for removal. Respondents conclude that this use of nonvoting is illegal.  

We reject this argument because the Failure-to-Vote Clause, both as originally enacted in the NVRA and as amended by HAVA, simply forbids the use of nonvoting as the sole criterion for removing a registrant, and Ohio does not use it that way. Instead, as permitted by subsection (d), Ohio removes registrants only if they have failed to vote and have failed to respond to a notice.

While the decision is largely one of statutory construction, it is also one that respects the proper role of the court and defers to the lawful policy judgments made by legislatures (internal citations omitted):

Requiring additional evidence not only second-guesses the congressional judgment embodied in subsection (d)’s removal process, but it also second-guesses the judgment of the Ohio Legislature as expressed in the State’s Supplemental Process. The Constitution gives States the authority to set the qualifications for voting in congressional elections,  as well as the authority to set the “Times, Places and Manner” to conduct such elections in the absence of contrary congressional direction. We have no authority to dismiss the considered judgment of Congress and the Ohio Legislature regarding the probative value of a registrant’s failure to send back a return card. . . .

It is not our prerogative to judge the reasonableness of that congressional judgment . . . . The dissents have a policy disagreement, not just with Ohio, but with Congress. But this case presents a question of statutory interpretation, not a question of policy. We have no authority to second-guess Congress or to decide whether Ohio’s Supplemental Process is the ideal method for keeping its voting rolls up to date. The only question before us is whether it violates federal law. It does not.

Justice Thomas wrote a concurrence to raise constitutional concerns with the respondents' view of the NVRA (internal citations omitted):

I join the Court’s opinion in full.  I write separately to add that respondents’ proposed interpretation of the National Voter Registration Act (NVRA) should also be rejected because it would raise significant constitutional concerns. . . . As I have previously explained, constitutional text and history both “confirm that States have the exclusive authority to set voter qualifications and to determine whether those qualifications are satisfied.” . . . Respondents’ reading of the NVRA would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications.

While the left will hyperbolically decry this decision as promoting voter suppression, Ohio's process has many protections to prevent voters who still live in the state and wish to remain on the voter registration rolls from being removed.  That is why the Court correctly upheld the practice under the NVRA.  As Justice Alito noted, difficult policy judgments about the best ways to administer elections, protect the integrity of elections, and ensure that every eligible voter is able to vote should be made by legislatures, not by unelected judges.

Senate Democrats Again Attack Judicial Nominees for Not Sharing Personal Views

Perhaps realizing that their ahistorical and inaccurate laments over the death of the blue slip tradition last week were ineffective, during today's Senate Judiciary Committee meeting, Democrats returned to attacking President Trump's judicial nominees' qualifications.  Today is the 64th anniversary of Brown v. Board of Education of Topeka, so the Democrats chose that as their preferred mode of attack.

Texas Senator and Majority Whip John Cornyn identified the root of their weak arguments - justification for their blind opposition to all of President Trump's nominees (beginning at 50:00):

I agree with Senator Kennedy that many of the nominees have become overly cautious and unwilling to discuss substantive legal arguments that would be entirely appropriate to ask about.  But I understand why they've become so cautious.  Because a comment made in a political campaign like Mr. Truncale or by Wendy Vitter as sort of a throwaway line when she recognized the binding nature of the Brown decision -- all these are used as excuses and fodder to oppose, uniformly almost, the President's nominees.  And so, perhaps they have become overly cautious and unwilling to have a fulsome discussion.  If in fact this were what I would call [an] unbiased forum for discussion of these issues, I think you would find a different sort of outcome.   

But the idea that the witnesses somehow don't recognize the binding nature of Brown v. Board of Education is ludicrous.  It's a phony, made-up issue.  Everybody recognizes that Brown v. Board of Education as being binding precedent of the United States Supreme Court.  So the idea that somehow these witnesses are unwilling to commit to it or agree to it because of their concern about their ethical  obligations and to suggest that that implies that somehow they would not apply it as the binding precedent of the United States Supreme Court is a ruse.  It's a made-up issue.   

So, Mr. Oldham is too young to be confirmed to the United States Court of Appeals to the Fifth Circuit.  He's 39 years old.  And I guess I don't know what age limit our Democratic colleagues would consider people eligible for the Court of Appeals.  It sounds like some form of age discrimination to me, to say arbitrarily if you're 39 years old, you're too young.  Notwithstanding his incredible academic and legal background, which is really impressive.  And then the suggestion that Mr. Oldham is somehow disqualified because he has represented, zealously represented, his client in court and to somehow say that because he's an advocate, he must therefore share those views personally, when he said his personal views will not dictate his legal judgment -- those are two separate things -- I think again is really pretext for uniformly opposing this President's nominees. 

We know that almost all of these are going to voted on on party line, and I guess there has to be some reason to object to these nominees.  But the idea that somebody is too young, or disqualified because they represented a client in court and those views may be unpopular with our Democratic colleagues, or that somehow personal views are more important than your fidelity to the law, when in fact I think uniformly the nominees have said they would not impose their personal views but would enforce the law: this makes no sense to me.

Tom Jipping, who has newly joined the Heritage Foundation and National Review's Bench Memos after being Senator Orrin Hatch's nominations counsel for many years, reminded us in his first Bench Memos post that our entire system of the rule of law relies on judges interpreting the law without imposing their personal views:

Today, in the Judiciary Committee’s business meeting, Chairman Charles Grassley addressed efforts to force judicial nominees to express personal views on issues or cases in their confirmation hearings. . . . Grassley was correct to oppose this approach. The push for nominees to express personal views undermines not only the impartiality on which the legitimacy of our judicial system depends, but the confidence of our fellow citizens in that system. . . .

America’s Founders established a system of government designed to maximize ordered liberty by limiting government. . . . And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible.

Thanks to Chairman Grassley, Senator Cornyn, and many other Republican senators on the committee who strongly defended the nominees against the Democrats "phony, made-up" objections (see Utah Senator Mike Lee's statement beginning at 1:05:28). 

ICYMI: 5th Circuit Upholds Amended Texas Voter ID Law

Last Friday, the Fifth Circuit upheld Texas' voter ID law, which it had amended in 2017 in response to an earlier en banc Fifth Circuit decision.  Judge Edith Jones wrote for the three-judge panel in Veasey v. Abbott, noting the irony that the plaintiffs were challenging, and the district court found invalid, the very interim remedy that both the plaintiffs and the district court had agreed to in 2016 (internal citations omitted): 

In the face of these obvious improvements over SB 14, Plaintiffs neither allude to nor adduce any proof that SB 5 has a discriminatory effect on indigent minority voters. To a large extent, SB 5 replicates the terms to which both parties agreed as an interim measure to cure SB 14’s Section 2 deficiencies in advance of the national 2016 election. Although the interim remedy was without prejudice to any party’s asserting its legal rights at a later date, one must wonder why the features the Plaintiffs agreed to only a year ago yielded an insufficient remedy when enacted into law. No explanation is forthcoming in their briefs. . . . 

That Plaintiffs’ factual critique boils down to speculation demonstrates the prematurity of the court’s decision to invalidate SB 5 in 2017, well before the law took effect in 2018. Nothing we conclude today disposes of any potential challenges to SB 5 in the future. Plaintiffs may file a new lawsuit, and bear the burden of proof, if the promise of the law to remedy disparate impact on indigent minority voters is not fulfilled. They did not challenge SB 14, for instance, for several years after its effective date. As a remedy for the deficiencies found by this court in Veasey II, however, there is no evidentiary or legal basis for rejecting SB 5, and the district court was bound not to take the drastic step of enjoining it. Further, because SB 5 constitutes an effective remedy for the only deficiencies testified to in SB 14, and it essentially mirrors an agreed interim order for the same purpose, the State has acted promptly following this court’s mandate, and there is no equitable basis for subjecting Texas to ongoing federal election scrutiny under Section 3(c) [of the Voting Rights Act].

Jason Snead and Hans von Spakovsky of The Heritage Foundation point out that the decision, while important for election integrity reasons, also has major implications for the rule of law:

It was on this flimsy legal basis that [District Court Judge Nelva Gonzales] Ramos supported her decision to jettison the entire Texas voter-ID law. This judgment was made despite the fact that “all of the evidence supports that SB 5 was designed to remedy every defect” in the earlier law and “to supply indigent voter protections” recommended by the Fifth Circuit. . . . 

It’d hard to disagree with Judge Jones’s reasoning here. Texas made, by all rights, a good-faith attempt to rectify problems with its election laws while preserving an essential, commonsense tool for fighting fraudulent votes. The solution it settled on was largely based on Ramos’s own 2016 remedy, and it offers a broader set of alternatives “to producing compliant photo voter ID” than the Indiana statute the Supreme Court upheld as constitutional in 2008. Its “reasonable impediment” exemption is also virtually identical to South Carolina’s voter-ID law. South Carolina’s law was upheld by a three-judge federal court in the District of Columbia in 2012 and has caused no problems. 

Judge Ramos may have a personal bias against voter-ID laws, but as a federal judge she is not entitled to substitute her own policy preferences for those of elected lawmakers. As Judge Jones reminded us, “Courts must defer to [the government’s proposed remedy] unless the newly enacted plan is itself unconstitutional or violates federal law.” 

Neither condition applies here, and Jones rightly reversed Ramos’s decision. Judge Jones has delivered a victory not only for the integrity of the ballot box, but for the rule of law itself.

While the plaintiffs will likely appeal to the en banc Fifth Circuit and the Supreme Court, the efforts of Chairman Chuck Grassley and Leader Mitch McConnell to confirm President Trump's excellent judicial nominees have changed the composition of both of those courts since this case was last on appeal in 2016 and 2017.  

On Law Day: Highlighting Acosta’s Speech to RNLA on the Rule of Law and Liberty

Last week, RNLA hosted its 19th annual National Policy Conference. The Conference was a huge success. Today, on Law Day, we choose to highlight one of those addresses: R. Alexander Acosta, current Secretary of Labor and former U.S. Attorney for the Southern District of Florida and Dean of the Florida International University College of Law. (emphasis mine)

I can think of no topic that is more important than the rule of law. . . .

That is deregulation to preserve liberty. [applause] The word liberty appears in the Declaration of Independence, the Constitution and the Pledge of Allegiance. But here's a question for all the lawyers in the room: how many times have you seen the word liberty appear in the Federal Register? . . .

Liberty is part of what makes America different and exceptional. If liberty is sufficient to form the foundation of our nation than liberty should be sufficient to form the basis for changing or rescinding a regulation period. [applause]. If we go back to our founding documents, back to first principles, we see that our Founders strongly believed in this.  The Declaration of Independence could be read this way: It asserted America's intent to eliminate regulations that impinged on mankind's inalienable rights of life liberty and the pursuit of happiness. What follows those words, if you read it, is a long list of grievances that justified our Revolution. And certainly these grievances complain of Britain’s economic regulations, if you think back to our history. What are they doing to regulate our economic prosperity? How are they maltreating our economies through regulation. But they also indict British regulation of and interference with the liberty of Americans. The ability of both individuals and the colonies as a whole to govern themselves. And it is that is at the heart of our American experiment. Citizens sit on juries. Voters elect their representatives to Washington. So by the same token, Americans should be trusted to exercise individual choice. At a practical level, this means that Washington should regulate only, only when necessary and that limiting the scope of government protects space for people to make these judgments for themselves.

Mr. Acosta goes on to give a concrete example of how liberty and the rule of law is applied now and how it was abused in the last Administration.  He focuses on a topic of interest to all lawyers, attorney-client privilege.

So I'd like to offer a few examples of how some of this works in practice. One of the clearest examples I think is a regulation that was enacted by my predecessor called the "persuader rule". . . . Issued last year required individuals to disclose when they provided legal advice to employers in a union organizing election. The effect of the rule was to discourage employers from consulting with counsel.  As everyone in this room knows the freedom to consult counsel of choice has been sacrosanct in the American tradition.   And for good reason, even the American Bar Association came out in opposition to the rule. They did so based on the concerns that it improperly infringed on attorney-client privilege. Yet the rule was published.  Now we at the Department have now published a new rule to rescind that rule. And here's the thing, the issue there is not the cost of compliance. The cost of the paperwork to report. The issue there is one of principle. Do we believe that that attorney-client privilege should be sacrosanct?  

While Department of Labor uses such quantitative tools as cost-benefit analysis, it is important to note as Secretary Acosta states, sometimes it comes down to the basic principles of the rule of law and liberty.  

Secretary Acosta’s speech can be viewed here. It is important to note that Secretary Acosta addressed the RNLA in his personal capacity, not in his official role.  We apologize for any transcription errors. 

FCC Chairman Ajit Pai to Address National Policy Conference on April 27

The RNLA is pleased to announce that Federal Communications Commission Chairman Ajit Pai will speak at the National Policy Conference next Friday.

Chairman Pai joined the FCC as a Commissioner in 2012 and was designated as Chairman by President Trump in January 2017.  He has been a leader in the effort to restore the rule of law to federal communications regulation.

Last November, Chairman Pai gave remarks explaining the "Restoring Internet Freedom" order, which undid the FCC's unprecedented overreach in 2015 that created the so-called "net neutrality" policy:

First: what will the plan do? When you cut through the legal terms and technical jargon, it’s very simple. The plan to restore Internet freedom will bring back the same legal framework that was governing the Internet three years ago today and that has governed the Internet for most of its existence. . . . Until 2015, the FCC treated high-speed Internet access as a lightly-regulated “information service” under Title I of the Communications Act. A few years ago, the Obama Administration instructed the FCC to change course. And it did, on a party-line vote in 2015; it classified Internet access as a heavily-regulated “telecommunications service” under Title II of the Communications Act. If the plan is adopted on December 14, we’ll simply reverse the FCC’s 2015 decision and go back to the pre-2015 Title I framework. . . . 

Much of the problem stems from the vague Internet conduct standard that the Commission adopted in 2015—a standard that I’m proposing to repeal. Under this standard, the FCC didn’t say specifically what conduct was prohibited. Instead, it gave itself a roving mandate to second-guess new service offerings, new features, and new business models. Understandably, businesses asked for clarity on how this standard would be applied. My predecessor’s answer, and I quote: “We don’t know, we’ll have to see where things go.” That’s the very definition of regulatory uncertainty. . . . 

Many critics don’t seem to understand that we are moving from heavy-handed regulation to lighttouch regulation, not a completely hands-off approach. We aren’t giving anybody a free pass. We are simply shifting from one-size-fits-all pre-emptive regulation to targeted enforcement based on actual market failure or anticompetitive conduct. . . . By turning back time, so to speak, and returning Internet regulation to the pre-2015 era, we will expand broadband networks and bring high-speed Internet access to more Americans, not fewer. . . . 

This reminds me of another point, one that’s been brought home to me the past few days. This debate needs, our culture needs, a more informed discussion about public policy. We need quality information, not hysteria, because hysteria takes us to unpleasant, if not dangerous places. We can disagree on policy. But we shouldn’t demonize, especially when all of us share the same goal of a free and open Internet. . . . So when you get past the wild accusations, fearmongering, and hysteria, here’s the boring bottom line: the plan to restore Internet freedom would return us to the light touch, market-based approach under which the Internet thrived.

We are grateful to Chairman Pai for his leadership, his commitment to the rule of law, and his steadfast support for freedom from regulatory overreach in the face of harsh and violent criticism.  We are honored for to address the RNLA next Friday, and we invite you to join us.   

Destroying a Political Attack on Justice Scalia and Originalism

Ed Whelan, President of the Ethics and Public Policy Center, is the latest legal scholar to destroy the Democrat Party’s unofficial election law professor Rick Hasen. (See Professor Brad Smith's recent rebuke here.) The problem for Hasen is that he seems to have given up on efforts at scholarship and is focusing on advancing Democrat Party agenda and liberal political ideology. Hasen’s latest attack is on conservative icon, the deceased Justice Antonin Scalia.

Whelan obliterates Hasen’s arguments in three posts.  First, Whelan describes the absurdity in Hasen’s overall argument against the philosophy of originalism:

Scalia “wrote that his ideas could increase the legitimacy of judicial decision making, yet his attacks on his opponent may have undermined it.” On page 7, Hasen similarly asserts: “For someone who cared so much about the legitimacy of the Court, much of what he said about the work of other justices seemed aimed at delegitimizing them as judges.” 

There is no contradiction at all here. Scalia believed that the Court earns its legitimacy by soundly exercising reasoned judgment — and that it undermines its legitimacy by acting in an unprincipled manner. So it’s entirely consistent for him to discredit, or delegitimize, bad judging.

This should be obvious.  If it were true a Court has legitimacy simply because it makes decisions, then a Kangaroo Court of a third world dictator would have as much currency as the U.S. Supreme Court. 

Hasen also attacks Scalia for trying to trying to undermine American jurisprudence:

Hasen contends that Justice Scalia was “seeking to undermine common approaches to American jurisprudence with new and revamped theories of interpretation.” (P. x.) But unless we are to imagine that “American jurisprudence” began with the Warren Court, Hasen has things entirely backwards: Scalia was seeking to restore traditional methods of interpretation.   

Indeed, Hasen himself ends up obliquely confirming my point. On statutory interpretation, he initially acknowledges that Scalia’s textualism “hearkens back to ‘formalist’ judicial philosophy of eighteenth-century legal thinkers such as William Blackstone.” He then makes the odd claims that “[t]extualism is different” from Blackstone’s formalism and that “Scalian formalism [which Hasen equates with textualism] puts its faith not in an immutable law of nature but in linguistic analysis.” (Pp. 26-27.) So the reader is supposed to take from this passage that Blackstone wasn’t a textualist but instead somehow derived the meaning of texts from the “immutable law of nature.” Yet ten pages later, Hasen refers to “Blackstone’s notion of a statutory truth that can be ‘found’ by sufficiently careful textual analysis.” (P. 37 (emphasis added).) (I will not maintain that Blackstone’s textualism is in all respects identical to Scalia’s, but, as Hasen appears to concede, the two are much closer than Blackstone’s is to purposivism or pragmatism or Hasen’s other “more eclectic theories of interpretation.”)

Hasen not only defeats his own arguments in his book but also doesn't even properly read the specific cases for which he is attacking Justice Scalia. Whelan’s analysis exposes how in the second “Obamacare” dissent, Scalia answered in great detail Hasen’s alleged contradiction, which Hasen completely omitted.

Hasen’s primary claim is that Scalia’s dissent in the second Obamacare case, King v. Burwell (2015) — in which Scalia opined that the statutory phrase “Exchange established by the State” does not mean “Exchange established by the State or the Federal Government” — “was not mandated by his own methods of interpretation.” In support of his claim, Hasen spends some ten pages setting up Scalia’s brief separate opinion in Green v. Bock Laundry Machine Co. (1989). The question in that case was whether the term “defendant” in the then-existing version of Rule 609(a)(1) of the Federal Rules of Evidence applied to civil defendants as well as criminal defendants. In his separate opinion, Scalia observed that the text of Rule 609(a)(1), “if interpreted literally, produces an absurd, and perhaps unconstitutional, result,” and he concluded that, of the two alternatives available, interpreting “defendant” to mean “criminal defendant” would do “least violence to the text.”

Why, then, asks Hasen in a flurry of rhetorical questions, does Scalia adopt a “relentlessly literal reading” of “Exchange established by the State” in King v. Burwell? How is his position in King compatible with his position in Green? “[I]s it any less absurd to read a single clause [sic] in a twenty-seven-hundred-page law … to contain the seeds of [the law’s] own destruction?”   

Amazingly, Hasen nowhere informs his trusting readers that Scalia actually supplies an answer. In his dissent in King v. Burwell, Scalia writes (citations omitted; emphasis added):

Only when it is patently obvious to a reasonable reader that a drafting mistake has occurred may a court correct the mistake. The occurrence of a misprint may be apparent from the face of the law, as it is where the Affordable Care Act “creates three separate Section 1563s.” … The occurrence of a misprint may also be apparent because a provision decrees an absurd result — a consequence “so monstrous, that all mankind would, without hesitation, unite in rejecting the application.” But §36B does not come remotely close to satisfying that demanding standard. It is entirely plausible that tax credits were restricted to state Exchanges deliberately — for example, in order to encourage States to establish their own Exchanges. We therefore have no authority to dismiss the terms of the law as a drafting fumble.  

Let us not forget that the term “Exchange established by the State” appears twice in §36B and five more times in other parts of the Act that mention tax credits. What are the odds, do you think, that the same slip of the pen occurred in seven separate places? No provision of the Act — none at all — contradicts the limitation of tax credits to state Exchanges. And as I have already explained, uses of the term “Exchange established by the State” beyond the context of tax credits look anything but accidental. If there was a mistake here, context suggests it was a substantive mistake in designing this part of the law, not a technical mistake in transcribing it.

Hasen no doubt has earned his seat at a good table at liberal and Democrat Party dinners. However, Hasen’s book shows the very important difference between the political and politicians on one side and the rule of law and judges on the other. One is better off reading Whelan’s Scalia Speaks rather than Hasen’s Justice of Contradictions. 

Former AG Mukasey to Speak at National Policy Conference on 4/27

The RNLA is pleased to announce that former U.S. Attorney General Michael Mukasey will speak at the National Policy Conference on Friday, April 27.  Tickets and more information are available here.  Unlike previous years, walk-up registration will not be available this year.

Judge Mukasey has had a distinguished career of public service and private practice, supporting the rule of law for many years:

Michael B. Mukasey, of counsel to [Debevoise & Plimpton LLP], recently served as Attorney General of the United States, the nation’s chief law enforcement officer. As Attorney General from November 2007 to January 2009, he oversaw the U.S. Department of Justice and advised on critical issues of domestic and international law. Judge Mukasey joined Debevoise as a partner in the litigation practice in New York in February 2009, focusing his practice primarily on internal investigations, independent board reviews and corporate governance. 

From 1988 to 2006, Judge Mukasey served as a district judge in the United States District Court for the Southern District of New York, becoming Chief Judge in 2000. 

From 1972 to 1976, Judge Mukasey served as an Assistant United States Attorney for the Southern District of New York, and as Chief of the Official Corruption Unit from 1975 to 1976. His practice consisted of criminal litigation on behalf of the government, including investigation and prosecution of narcotics, bank robbery, interstate theft, securities fraud, fraud on the government and bribery. From 1976 to 1987 and from 2006 to 2007 he was in private practice.

Judge Mukasey wrote a few years ago in defense and praise of the exceptional nature of our system of separation of powers and federalism established by the Constitution:

Ours is the only nation on earth to define itself and the rights of its citizens based not on blood or land, but rather on adherence to a document: the Constitution.  Moreover, that document was architected in large measure to protect those rights. Here I emphatically do not refer to the Bill of Rights – the first ten amendments – but rather to the structure of the government defined in the body of the Constitution, with powers of governance divided among the three branches, and, as to legislative powers, between the two Houses of Congress, so as to assure that interests would always be pitted against competing interests. That structure was put in place with explicit awareness, as Madison famously wrote in Federalist 51, that neither men outside government nor those inside it are angels, and thus governments are necessary to govern the former, and limits on government are necessary to control the latter; but as between the two, government is bottom up, not top down. . . .  

What protects our rights as Americans is not their recitation in the first ten amendments to the Constitution, but rather the structure put in place in the body of the Constitution -- with specifically enumerated legislative powers lest the legislature overreach; and a president given “the executive power” – all of it – but compelled to swear allegiance to the Constitution and to “take Care that the Laws be faithfully executed” lest he overreach. . . .  

Neither judicial-legislative symbiosis, nor judicial parasitism, was foreseen by the Founders. In Federalist No. 78, Hamilton portrayed the judiciary as “the least dangerous to the political rights of the Constitution,” and possessed of a “natural feebleness” that left it in constant jeopardy from the other branches, at least so long as it remained separated from legislative and executive powers. 

No rules, even those contained in the splendidly crafted Constitution, can determine their own application. The Constitution, even though it is responsible for so much of our exceptionalism, and for keeping our rights safe from infringement, is virtually never itself the subject of serious study in schools. It appears, at least to me, that more people are familiar with cases decided under the Constitution than with the Constitution itself. If what so defines us and sets us apart is to continue to do so, that is going to have to change. Failing such change, we may wake up to find that, like those who reside in the countries of the European Union, we are governed not from the bottom up, but from the top down.   

We are honored for Judge Mukasey to address the RNLA at the end of April, and we invite you to join us. 

Justices Thomas and Gorsuch Question Deference to Agency Interpretations in Dissent

Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer.  They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled.  Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):

Seminole Rock and Auer require courts to give “controlling weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be “the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or inconsistent with the regulation.” Although Seminole Rock deference was initially applied exclusively “in the price control context and only to official agency interpretations,” this Court has since expanded it to many contexts and to informal interpretations.  

Seminole Rock deference is constitutionally suspect. It transfers “the judge’s exercise of interpretive judgment to the agency,” which is “not properly constituted to exercise the judicial power.” It also undermines “the judicial ‘check’ on the political branches” by ceding the courts’ authority to independently interpret and apply legal texts. And it results in an “accumulation of governmental powers” by allowing the same agency that promulgated a regulation to “change the meaning” of that regulation “at [its] discretion.” This Court has never “put forward a persuasive justification” for Seminole Rock deference.  

By all accounts, Seminole Rock deference is “on its last gasp.” Several Members of this Court have said that it merits reconsideration in an appropriate case. Even the author of Auer came to doubt its correctness.  

This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates. . . . Because this Court has passed up another opportunity to remedy “precisely the accumulation of governmental powers that the Framers warned against,” I respectfully dissent from the denial of certiorari.  

Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies.  We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government. 

FEC Republicans Allow Public a Chance to Comment on Free Speech on the Internet

Wednesday, the Federal Election Commission approved a draft Notice of Proposed Rulemaking on Internet Communication Disclaimers and the Definition of "Public Communication":

The Commission approved a Draft Notice of Proposed Rulemaking requesting comment on two alternative proposals to amend its regulations concerning disclaimers on public communications on the internet that contain express advocacy, solicit contributions, or are made by political committees. The approved draft notice also requests comment on proposed changes to the definition of “public communication.” Comments must be received on or before 60 days after the date of publication in the Federal Register. The Commission will hold a public hearing on this notice on June 27, 2018.

Thanks to the steadfast defense of the First Amendment and the rule of law by the Republican FEC commissioners, the Democrat commissioners have not be successful in their efforts to expand and change the rules regarding Internet advertising ex post, in response to complaints about Internet activities that are clearly legal and/or unregulated under the FEC's current regulations and policies.    The FEC Democrats have, at times, also supported unrealistic requirements that would make disclaimers take up the entirety of small Internet ads (such as those on Twitter or mobile devices).  

Through the efforts of the Republican commissioners, the FEC is going about regulating this important area in the correct way, through notice and comment rule making with ample opportunity for the regulated community and interested parties to speak on the issue and with plenty of notice to the regulated community on any changes in the rules.  All along, the Republican commissioners have supported a reasonable, common-sense approach to regulating Internet communications that protects the public's interests and comports with the goals of campaign finance regulation while taking into account the constraints and opportunities provided by changes in technology, all while protecting the political speech rights of Americans.

The RNLA will provide in-depth analysis of the proposals in this NPRM in the coming weeks.  But its very existence is a testament to the leadership of Chair Caroline Hunter, Commissioner Matthew Petersen, former Commissioner Lee Goodman, and the many Republican FEC commissioners who have gone before them.

RNLA Honors Prof. Ron Rotunda on His Passing

Professor Ron Rotunda, a stalwart leader of the conservative and Republican legal movements, has unexpectedly passed away.  A consummate scholar, he was an expert on constitutional law, federalism, free speech, professional responsibility, legal history, and many other areas of law.  His legal and political analysis was always insightful and witty, enabling non-lawyers and lawyers alike to easily understand complicated concepts and making him a sought-after commentator on many issues.  

RNLA President Elliot Berke said: "When I was in law school, Ron became a legal giant to me as a Constitutional Law scholar. He had worked on Watergate with my Con Law professor so I then only knew him by reputation. Within a few years of graduating, I was fortunate to work with him in the Independent Counsel's office and to become his friend. He leaves behind a tremendous legacy in the law and will be greatly missed." 

Here are some recent highlights from his prolific writing and speeches:

John Marshall and the Cases That United the States of America - published in January, this critically acclaimed book contains Prof. Rotunda's rewritten and condensed version of Beveridge's biography of John Marshall.  It is a fascinating read for scholars of legal history and constitutional law.

"Facebook, Russian Interference and the Monsters on Maple Street" - Verdict, Dec. 18, 2017:

There is nothing new under the sun and there is nothing new about Russian interference. The Russians (and the Soviets before them) spread agitation-propaganda, or “agitprop,” a Russian blend of agitatsiya (agitation) and propaganda (propaganda). Its purpose is to sow discord, fan hatred. . . . 

Non-democracies spread fake news to undermine democracy and manipulate people. . . . There is nothing unusual, or even new, in all of this. When we express surprise, we emulate French Captain Renault in Casablanca who said, “I am shocked—shocked—to find that gambling is going on in here!” (Right after that, an employee says to him, “Your winnings, sir.”) 

What we know of Russian interference tells us much about Putin, the former KGB operative, and much about ourselves. Russia used Facebook and other social media in the year or so preceding the 2016 presidential election, and the period following, to sow discord and mayhem. The point is to amplify social divisions . . . by promoting opposite sides of the political spectrum . . . .

"Using the Licensing Power of the Administrative State: Model Rule 8.4(g)" - The Federalist Society's National Lawyers Convention, Nov. 18, 2017: Prof. Rotunda provided a chilling, yet amusing, analysis of free speech implications of the American Bar Association's new Model Rule of Professional Conduct 8.4(g).

"George Wallace at Harvard—The Good Old Days of Campus Free Speech" - Verdict, May 8, 2017: 

Every generation must relearn the lessons of free speech. It is no accident that Eastern European Communists suppressed speech and art as well as politics and religion. And when the people overturned the Communist dictators of Eastern Europe, they regarded freedom of expression as a premier right. The Czech revolution began in the theatres, and that country’s first freely elected president since World War II was a playwright.

"An English Teacher Corrects Shakespeare" - Verdict, Apr. 10, 2017:

There is also the problem of free speech. People have a right to use ordinary English. Perhaps because we have passed 1984 unscathed, we often ignore the significance of George Orwell’s “Newspeak”. Words both reflect and mold the way that people think, which is why they are so powerful and why the First Amendment is so important. [Northern Arizona University's] Dr. [Anne] Scott is using her power of grading as a way to control how people talk. . . . 

There are limits to the power of words, but there is also a magic in them: not the magic of “abracadabra,” but magic nonetheless. Words have the ability to confuse and to clarify, to help legitimate policies, to generate loyalty, to give the appearance of action, to mold people’s perceptions of the world, to affect the way they approach a problem, and to reflect their innermost thoughts. When people argue about “mere words,” they are talking about fundamentals, about infrastructure, not superstructure. 

When Dr. Scott and Northern Arizona University force students to use certain words and shun others, they are tapping into this power—a power easy to abuse. That is why we have the First Amendment. The government should not punish people for using words that our dictionary blesses.

"The Electoral College Works Fine, Just as It Is" - Verdict, Dec. 5, 2016:

Our Electoral College system prevents candidates with only regional appeal from winning. Statistically, a rule requiring the winner to prevail in a number of sub-elections produces a better result for the country. For the same reason we count the number of games won in the World Series (rather than the total number of runs, which would be heavily influenced by an anomalous game). After all, if Clinton in 2016, won 100% of the popular vote in her home State of New York, thereby prevailing in the nationwide popular vote, those extra votes would not show she had more support nationwide, only that she is a candidate popular in one very populous state. 

The Electoral College penalizes political parties that have only regional strength. In the 2016 election, the Democrats had regional appeal. If you look at a map of the vote for president based on counties, with counties colored red (for Republican), you will see the country painted with a sea of red except, primarily, at the seashores. This regional influence extends in congressional races as well. In the House of Representatives, just three coastal states, California, Massachusetts and New York, now account for a third of all House Democrats. 

The Framers of our Constitution built for the long term and created a system to last for generations. They established a democracy while protecting the rights of the minority. . . . 

The structural limits do not stop here. They created the Electoral College to protect the residents of the smaller states, and they rejected government by simple majority because plebiscites historically have been the tool of dictators, such as Hitler & Benito Mussolini. In modern form, plebiscites arose out of the French Revolution. Madison feared what he called “tyranny by the majority.”

"The ABA Decision to Control What Lawyers Say: Supporting 'Diversity' But Not Diversity of Thought" - The Heritage Foundation Legal Memorandum, Oct. 6, 2016: 

These changes show that the ABA is very much concerned with what lawyers say and who teaches them. The only thing that does not concern the ABA is diversity of thought. The language that the ABA uses to promote its latest foray into political correctness makes this all too clear. Moreover, what the ABA does affects all of us, even if we are not lawyers, because of its governmental power. . . . 

Even when a court does not enforce this rule by disbarring or otherwise disciplining the lawyer, the effect will still be to chill lawyers’ speech, because good lawyers do not want to face any nonfrivolous accusation that they are violating the rules. The ABA as well as state and local bar associations routinely issue ethics opinions advising lawyers what to do or avoid, and most lawyers follow this advice. . . . 

Is it the best use of scarce bar resources to discipline lawyers who may violate a vague rule that prohibits speech because that speech violates the new Rule 8.4(g)? It is not as if the disciplinary authorities are looking for things to do. There are plenty of lawyers who are incompetent, who commingle trust funds, or who cheat third parties. 

The purpose of the new Rule 8.4(g) is to promote a “cultural shift” in the United States. Until now, that was not within the job description of the ABA or of the Rules Governing Professional Conduct.

Rest in peace, Professor Rotunda.

The Supreme Court in Crisis: A Good Read, But No Crisis

RNLA Member Donald Daugherty recently conducted a book review published by the Federalist Society on American Justice 2017: The Supreme Court in Crisis by Kimberly Robinson.

Ms. Robinson's book offers a summary and background insight into the 2016 Term of the Supreme Court by describing various themes from the term, while highlighting various "crises" that allegedly arose--largely referencing the impact of an eight-person bench, with the absence of Justice Scalia for the majority of the term, prior to the swearing in of Justice Gorsuch.

Mr. Daugherty explains:

Robinson reviews controversial cases that the Court delayed deciding or sidestepped altogether. Most notable is Trinity Lutheran Church of Columbia v. Comer, for which certiorari was granted a month before Justice Scalia passed in February 2016, but oral argument not held until April 19, 2017—nine days after Neil Gorsuch was sworn in. Robinson also points to the Court declining to review cases involving changes to voting requirements in Texas and North Carolina in the wake of 2013’s Voting Rights Act decision, Shelby County v. Holder. Chief Justice Roberts took the unusual step of explaining why the Court denied certiorari in those cases, which Robinson interprets as protesting too much in anticipation of criticism that the Court was trying to avoid difficult decisions. . . 

Due in large part to its cautious approach, the 2016 Term was marked by an unusually high degree of consensus and a greater-than-usual number of unanimous decisions, with only two dissents read from the bench. Along with the absence of divisive, blockbuster cases, the relative consensus among the justices makes it hard to agree that the Supreme Court was in “crisis.”. . . The Court wisely and prudently chose to put off some of the biggest cases until it returned to full strength. This is not a weakness or shortcoming, as Robinson seem[s] to imply, but reflects a humility that is less often seen in the two political branches. Wisdom and prudence do not necessarily make for an interesting read, however, so the book instead repeatedly refers to various “crises.”. . .

Mr. Daugherty also explains that Robinson's book offers the insight that the U.S. Supreme Court operates in the current political climate, even if it chooses not to wield political power forcefully:

The book’s most interesting chapter is “Courting Politics,” which discusses the Roberts Court’s so-called “one last chance” doctrine for resolving tough constitutional issues on narrow grounds in order to avoid wreaking immediate, widespread havoc; in such decisions, the Court often warns in dicta that without some legislative or other non-judicial fix, the outcome could be different the next time it is faced with the issue. Robinson argues that decisions causing momentous, social disruption risk exposing the Court to criticism that it is merely another political actor. Beginning with Justice Owen Roberts “switch in time” that mooted FDR’s court-packing plan and ended the Lochner era, Robinson cites other possible examples of a politicized Court—Bush v. Gore, National Federation of Independent Business v. Sebelius, Obergefell v. Hodges, and Citizens United v. Federal Elections Commission. At the same time, although the Court is sometimes fairly accused of deciding issues better left to the political branches or the states, this was not a problem in the 2016 Term, and this chapter has little to do with the term specifically. Further emphasizing the anti-climactic nature of the term . . . .

Robinson's book, in closing, offers a preview of what to expect this year as the 2017 Term begins to wind down, but it contrasts one of her themes of the book. Mr. Daugherty notes:

[T]he final chapter’s title—“The Calm Before the Storm”—is at odds with Robinson’s contention that the Court was in crisis during the 2016 Term. Looking ahead, Robinson describes the many high profile cases currently before the Court. Besides Janus and challenges to the third version of the temporary travel ban, the Court is now considering important post-Obergefell issues arising under the First Amendment in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, as well as the political blockbuster Gill v. Whitford, which could curb partisan gerrymandering and drastically change how states approach redistricting. Although there is no dispute that the 2017 Term will exceed its predecessor in excitement and controversy, however, Robinson succeeds in turning a sleepy term into an interesting read, even without any real crisis.

Of course, the RNLA will continue to highlight major cases of interest as they come down from now through June. Recently, we have highlighted a few cases we foresee as being highlights of the 2017 Term as well as the redistricting case (Gill v. Whitford) and the recent oral arguments of Janus (union dues v. free speech).

Sessions DOJ to Release Documents Related to Fast and Furious

Today, the Trump-Sessions Department of Justice announced that it will release documents related to the Obama-Holder DOJ's disastrous "Fast and Furious" program:

Today, the Department of Justice entered into a conditional settlement agreement with the House Committee on Oversight and Government Reform and will begin to produce additional documents related to Operation Fast and Furious. The conditional settlement agreement, filed in federal court in Washington D.C., would end six years of litigation arising out of the previous administration’s refusal to produce documents requested by the Committee. 

In announcing the settlement, Attorney General Sessions said: 

“The Department of Justice under my watch is committed to transparency and the rule of law. This settlement agreement is an important step to make sure that the public finally receives all the facts related to Operation Fast and Furious.”

Katie Pavlich reminds us of the unfortunate and tragic history of these documents:

The documents were previously withheld by Attorney General Eric Holder, who was voted in civil and criminal contempt of Congress for refusing to turn them over. President Obama invoked executive privilege in June 2012 to prevent their release just hours before the contempt vote was held. . . . 

Operation Fast and Furious was a secret ATF program, overseen heavily at the highest levels at the Department of Justice, which took place between September 2009 and December 2010. ATF agents repeatedly and knowingly allowed individuals working for Mexican cartels to traffic thousands of AK-47s, .50 caliber rifles and handguns into Mexico. The operation ended in 2010 when [Border Patrol] Agent [Brian] Terry was murdered and years of coverups surrounding his death and the extent of the operation ensued. Hundreds, if not thousands of Mexican citizens have been murdered as a result of the U.S. government putting guns into the hands of narco-terrorists and a number of firearms trafficked during the operation have been found at additional crime scenes in the United States.

Yet, according to former President Obama, his administration had no embarrassing scandals and was the "most transparent administration in history."  How refreshing it is to have an Attorney General and DOJ that are actually committed to transparency and respecting Congress' role of oversight over the Executive Branch, instead of only paying lip service to these values while trying to cover their misdeeds.

Is the ACLU Looking to Politicize Local DA Races in 2018?

The American Civil Liberties Union (ACLU) is focusing on district attorney races this year:

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014. . . . 

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice. More than 1,000 local prosecutors are up for election in November, according to the group. . . . 

As the article points out, many on both the right and the left, Republicans and Democrats, are calling for criminal justice reform, but there is a great deal of debate over the proper changes, the economic considerations, and what the practical effects of any legal changes will be.  Many law enforcement organizations warn that ill-considered changes could drastically increase crime rates and decrease public safety.  The number and murkiness of the considerations in this area make it important that a vibrant public debate is held over law enforcement and criminal justice issues and that the people's elected legislators collectively make the hard decisions about policy matters.   

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas. A former state district judge, Frizell has called for special prosecutors to investigate shootings by police. She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court. . . .

With great discretion about whether to charge and how severely to punish defendants, district attorneys hold immense power over the way justice is dispensed, advocates for similar reforms agree. . . .

While prosecutors exercise immense discretion as an important facet of our adversarial system, we have seen all too often how politically motivated prosecutors will selectively enforce the law to serve their progressive political goals, not to serve the greater public interest.  Unfortunately with the ACLU's track record in selectively supporting free speech rights (anarchists - yes, religious groups - no), we are not optimistic that the candidates supported by the ACLU will be ones who will use their discretion with respect for the rule of law instead of using it to politicize justice on the local level.  And when justice is politicized, it is the most vulnerable of our citizens who suffer the greatest consequences.