Eric Segall : The Year Originalism Became a Four-Letter Word - Dorf on Law

The conservative attack on expansive readings of constitutional rights - began, roughly, with Brown v. Board of Education in 1954.  The semi-sovereignty of the "states rights" slogan enabled the formerly slave states to enact a comprehensive system of racial apartheid.  Not only were schools segregated but movie theatres, water fountains, buses and trains.

The law as written was the rallying cry of the conservative attack on the expansive rights-jurisprudence of the Supreme Court when led by former California Governor Earl Warren,

But a key aide to another - a conservative - Governor of California in 1985 switched rhetorical horses.  As Ronald Reagan's Attorney General Meese railed against pornography and called for judges to adopt a "jurisprudence of original intent".  Originalism was taken up by the nascent conservative Federalist Society.  It has dominated conservative rhetoric about the las since then.  But now the conservatives are in the drivers seat, with a 6-3 majority of the Supreme Court.

A prominent Harvard law professor Adrian Vermeule has call for a "common good constitutionalism".  Drawn to Catholicism - like many other prominent conservatives - he has parted ways with his usual allies.  He is a defender of the administrative state (in Law & Leviathan with Obama's administrative law czar Cass Sunstein).  And more recently he has turned his fire on originalism, writing in The Atlantic that it is time to move Beyond Originalism:

The hostile environment that made originalism a useful rhetorical and political expedient is now gone. Outside the legal academy, at least, legal conservatism is no longer besieged. If President Donald Trump is reelected, some version of legal conservatism will become the law’s animating spirit for a generation or more; and even if he is not, the reconstruction of the judiciary has proceeded far enough that legal conservatism will remain a potent force, not a beleaguered and eccentric view.

 Long time scourge of originalism Eric Segall takes a different approach after the landmark Dobbs decision returning abortion to the states, and more pointedly the New York State Rifle and Pistol Clubs case which overturned a 120 year old state gun licensing law.  In Segall's view the Scotus majority has already moved beyond originalism, asserting that ambiguous Constitutional provisions are to be construed by their text and their history post-adoption. 

And - like Neil Gorsuch has argued elsewhere - it is not for the Court to calculate the public interest.  Text and history are now called upon to solve originalism's problems.

- GWC 12/13/22

Dorf on Law: The Year Originalism Became a Four-Letter Word

 By Eric Segall

The Justices are done hearing cases until January so it is time to take stock in what has been a  monumentally important year at the Supreme Court. There's a lot to talk about but this post focuses on one significant point: this was the year originalism became a four-letter word. 

In June of this year, the Supreme Court of the United States issued four landmark decisions, all decided by 6-3 partisan votes. The Justices returned the issue of abortion to the states (and potentially Congress), dramatically enlarged gun rights, and weaponized the free exercise clause to require Maine to support parents of children in religious schools and to forbid a school district to punish a public-school football coach who on several occasions prayed at the fifty-yard line while he was still responsible for his students. All four Justices who identify as originalists joined (or authored) each decision, including Justice Alito, who used to mock originalism but now seems to embrace it.

The first two decisions canvassed history while the third and fourth barely mentioned the topic. None of the decisions, however, was originalist.

In October of this year, during the oral arguments in the Court’s two affirmative action cases it will decide this term, the so-called originalists seemed barely interested in the original meaning of the Constitution, and it is likely the June decision will barely mention it. Similarly, in December, there was not a single question about the first amendment’s original meaning in a huge case involving a wedding web designer’s refusal to sell those services to same-sex couples.

The Justices say they are originalists, but they simply are not. They should stop trying to deceive the public.

Let’s start with the Second Amendment case New York Pistol & Rifle, Ass’n v. Bruen, which may well be the least originalist Supreme Court opinion in history (a bold claim but bear with me). There is a substantial discussion of history in the opinion, but the Court’s actual mode of analysis could not be less originalist.

Justice Thomas said that the only legitimate methods of constitutional interpretation for judges to use are text and history and that courts should not balance public policy concerns against the weight of asserted rights. The founding fathers, however, simply did not treat rights that way. Constitutional rights were subject to restrictions if policy concerns were substantial enough. As Professor Jud Campbell has written, almost everyone at the Founding (and before) thought “rights were not a set of determinate legal privileges or immunities that the government  could not abridge. … Rights…could be restricted by law to promote the good of the society.”

At the very least, the framers understood that judges always had to balance the reason for the law at issue with the strength of the asserted claim. Yet, Justice Thomas, writing for all the originalists, specifically rejected this mode of analysis universally accepted when the people ratified our Constitution. As I said above, Bruen may well be the most anti-originalist opinion in history.

Dobbs...

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Supreme Court sets up doubleheader on Biden’s student loan forgiveness plan | Courthouse News Service

Supreme Court sets up doubleheader on Biden’s student loan forgiveness plan | Courthouse News Service

By Kelsey Reichmann

WASHINGTON (CN) — The Supreme Court on Monday padded its docket with a second challenge to President Joe Biden’s student debt relief plan. 

Earlier this month the court agreed to hear arguments between Biden and red states that sued to stop debt relief from millions of Americans. This second challenge comes from student loan borrowers ineligible for the program. As with the states’ challenge, the justices will hear the case in February. So far, the court has no plans to consolidate the two cases.

Biden asked the justices for emergency relief to block a court ruling of Texas that vacated the program in November.

The suit was brought by Myra Brown and Alexander Taylor — two student loan borrowers who do not meet the qualifications for Biden’s plan. Brown falls short of the benefit because she took out private loans, not federal loans as covered by the program. While Taylor qualifies for some relief, she will not receive the full amount because of income qualifications on the types of loans under Biden’s forgiveness plan. 

Under the Higher Education and Opportunities Act — nicknamed the Heroes Act — Biden claims he can instruct the education secretary to forgive federal student loans so that borrowers do not fall into financial peril because of the Covid-19 pandemic. The law was adopted a couple of years after the 9/11 terrorist attacks, allowing for student debt forgiveness in cases of a national emergency. 

Biden’s plan forgives up to $10,000 for borrowers under a certain income threshold and up to $20,000 for students who qualified for low-income loans meeting the same income standard. Brown and Taylor claim Biden should have allowed more borrowers to qualify for the program, and that the government denied them the opportunity to tell the education secretary this by foregoing the standard notice-and-comment period. 

A federal judge threw out the procedural question presented by the precluded notice-and-comment period because the Heroes Act exempts the secretary from following those procedures. While the borrowers did not make claims on Biden overextending his authority by using the Heroes Act in this manner, the judge said Brown and Taylor had still been harmed by the program and threw it out anyway. 

At the Supreme Court, the justices will consider if Brown and Taylor had standing to bring their suit and if the plan was lawful and adopted in an appropriate manner. 

The Respect for Marriage Act HR 8404 repeals the so-called Defense of Marriage Act.  DOMA.  The new law - signing of which is imminent - compels states to give full faith and credit to a marriage lawfully entered in any other state or the District of Columbia, Puerto Rico, etc.  It does not compel states to themselves recognize same sex marriage, and it declares the national government will respect so-call freedom of conscience laws.

One wonders what is the Constitutional basis for this law and if it is subject to effective attack.  I suppose that since the 14th Amendment makes no reference to gender originalism will be little help to the proponents.  Similarly Brown v. Board of Education could not claim support in contemporary understanding since D.C. public schools were segregated by race.

The sponsors cite as Constitutional support for H.R. 8404. The Bill's sponsors declare "Congress has the power to enact this legislation pursuant
to the following:
Article IV, Section 1 Full faith and credit
Fifth Amendment, Section 5 Due Process
Fourteenth Amendment, Section 5 Equal protection of the laws - Enforcement
Article I, Section 8, Clause 18 Necessary and proper

But we remain entrapped by the enumerated powers doctrine - with a national government which adheres to the founding fiction of state sovereignty.  That notion should have died with the post-Civil War Amendments.  They set the terms for restoration of secessionist state governments.  Of course the southern states promptly moved to render the 14th and 15th Amendments - promising equal protection and voting rights - a nullity.

What the Respect for Marriage Act does Not do is codify Obergefell v. Hodges - the 2015 decision compelling states to  allow same sex marriage.  So Clarence Thomas's dissent in Dobbs v. Jackson Women's Health - threatened even the recognition of the right to use contraceptives.  The Court majority could undermine the new Act by freeing states to repeal laws respecting same sex marriage.  But that scenario seems unlikely to me - since ever at this moment a dozen Republican Senators supported it.  Decrying marriage is a losing proposition.

- GWC  12/11/2022

Baude and Sachs:_Common Good Manifesto - reviewing Vermeule's Common Good Constitutionalism

William Baude & Stephen Sachs"_A Common Good Manifesto

Review of 

COMMON GOOD CONSTITUTIONALISM. By Adrian Vermeule. 

Medford, MA: Polity Press. 2022. Pp. viii, 270. $59.95. 

In Common Good Constitutionalism, Adrian Vermeule expounds a constitutional vision that might “direct persons, associations, and society generally toward the common good.” The book must be taken seriously as an intellectual challenge, particularly to leading theories of originalism. That said, the challenge fails. The book fails to support its hostility toward originalism, to motivate its surprising claims about outcomes, or even to o'er an account of constitutionalism at all. Its chief objections to originalism are unpersuasive and already answered in the literature it cites. The book does highlight important points of history and jurisprudence, of which originalists and others might need to take account; yet those points remain underdeveloped. In the end, the book might be best understood as what Vermeule once called a “constitutional manifesto”: a work of “movement jurisprudence” whose political aims come into con(ict with theoretical rigor.

3.1 History 

Like other apparent challenges to originalism,134 Common Good Constitutionalism nonetheless takes pains to establish its own originalist pedigree, as “the fundamental matrix for the thinking of the whole founding generation” (p. 2). Certainly natural law ideas were circulating in some fashion at the time of the Founding and for a long while a/er. The book usefully incorporates the arguments of other scholars on this point, such as Professors Richard Helmholz 135 and Stuart Banner,136 and it will likely draw further attention to this history. And we certainly agree with Vermeule about the laws of the “revolution led by Justice Holmes around World War I” (p. 202 n.132), which sought to reduce unwritten law to “decision by judge-made precedent” (p. 203 n.136).137 

Unfortunately, Vermeule overplays this hand, exaggerating the centrality to American jurisprudence of his own vision of the common good. On Vermeule’s account, the Preamble’s reference to “the Blessings of Liberty” must be understood, not as aimed “to maximize individual choice,” but as “teleological and ordered to the ends of the good” (p. 39). In this respect it resembles “the classical tradition of ragion di stato, specifying the substantive aims and purposes of government” (p. 39). Given “the backdrop of the classical tradition,” the U.S. Constitution must be read “so as to promote,” not liberty in the colloquial sense, but “the classical trinity of peace, justice, and abundance” (p. 39).

 134. See, e.g., STEPHEN G. BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005). 135. RICHARD HELMHOLZ, NATURAL LAW IN COURT: A HISTORY OF LEGAL THEORY IN PRACTICE (2015) (cited pp. 44, 55, 56, 153, 185 n.2, 200–04 nn. 108, 110, 135, 142, 144, 148, 150). 136. STUART BANNER, THE DECLINE OF NATURAL LAW: HOW AMERICAN LAWYERS ONCE USED NATURAL LAW AND WHY THEY STOPPED (2021) (cited pp. 55, 203 n.137, 204 n.145). 137. The hostility to unwritten law of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), and its progeny le/ an unwritten-law-shaped hole in modern legal landscape. This hole is sometimes patched by overreading written law, see Baude & Sachs, supra note 49, at 1085–93, or by the raw judicial revision of unwritten law, see Sachs, supra note 104, at 579–81—e+orts that carry precisely the sorts of dangers which Vermeule attributes to originalism and progressivism, respectively. The main text of Common Good Constitutionalism doesn’t address Erie or Swi" v. Tyson, 41 U.S. (16 Pet.) 1 (1842) (cited p. 202 n.132), despite their potential centrality to the project. Yet careful attention to the distinction our legal tradition draws between general and local law might shed light on Vermeule’s use of these concepts (pp. 8, 18), or even vice versa. See generally Swi", 41 U.S. at 18–19; Caleb Nelson, The Persistence of General Law, 106 COLUM. L. REV. 503 (2006); Caleb Nelson, A Critical Guide to Erie Railroad Co. v. Tompkins, 54 WM. & MARY L. REV. 921, 924–49 (2013); William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513 (1984).

Vermeule's Common Good: Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory. - POLITICO

Adrian Vermeule, Harvard Law Professor 

shaking up even fellow conservatives

Adrian Vermeule is an intriguing character. He rejects originalism and defends as a moral necessity the administrative state. I take this as a convert's embrace of the Catholic social tradition which is actually to the left of the Democratic Party by a pretty wide margin.

Vermeule is hostile to same sex marriage, and defense of the right of a woman to elect to terminate a pregnancy.  He might line up with John Finnis and Robert George on fetal personhood protected by the 14th Amendment.  I actually agree with that principle - but limit it to accept a woman's right to choose - like Italian law!

Vermeule co-authored Law & Leviathan with Cass Sunstein - Obama's Director of  Office of Information and Regulatory Affairs*  The book was the subject of a symposium at Balkinization.  Basically Vermeule and Sunstein use Lon Fuller's list of factors regarding the morality of law to defend the administrative state.   I discuss the Republican judges and Justices pose to the structure of government HERE and supply links to Vermeule and Sunstein's Law & Leviathan.

I also reviewed Common good Constitutionalism  HERE  and moderated a panel discussion HERE.

A central irony is that in this era of declining presence of  religion the Catholic Church is divided along all too familiar lines.   See, for example Massimo Borghesi's Catholic Discordance - Neo-conservatism vs. the Field Hospital Church of Pope Francis which we discussed in another panel.. 

- GWC 12.10.2022

Critics Call It Theocratic and Authoritarian. Young Conservatives Call It an Exciting New Legal Theory. - POLITICO

By Ian Ward

December 9, 2022

CAMBRIDGE, Mass. — It was half past two in the Revolution Room when Georgetown University law professor Randy Barnett stepped up to the podium to introduce the final panel of the day. By that point in the afternoon, the symposium’s audience — composed of about 100 legal scholars, law students and a smattering of federal judges — had sat through six consecutive hours of abstract legal theorizing, and more than a few pairs of eyes were beginning to glaze over. Sensing, perhaps, the room’s flagging energy, Barnett impressed upon the crowd the momentous nature of what they were witnessing.

“For those of you who are students, you might think that this is what all academic conferences are like,” Barnett said. “But let me just tell you: This is not what they’re like. You will tell your students or your progeny someday that you were at this conference, and that you got to see what was happening here.”


Barnett was right that the gathering taking place at the Sheraton Commander Hotel on the Saturday before Halloween wasn’t your average law school symposium. The event was serving as a much-anticipated referendum on one of the most contentious ideas to emerge from the legal academy in recent years, and many of the biggest names in American constitutional law had come to Cambridge to join the debate.

At the center of this debate was Harvard law professor Adrian Vermeule, whose latest book served as the ostensible subject of the symposium. In conservative legal circles, Vermeule has become the most prominent proponent of “common good constitutionalism,” a controversial new theory that challenges many of the fundamental premises and principles of the conservative legal movement. The cornerstone of Vermeule’s theory is the claim that “the central aim of the constitutional order is to promote good rule, not to ‘protect liberty’ as an end in itself” — or, in layman’s terms, that the Constitution empowers the government to pursue conservative political ends, even when those ends conflict with individual rights as most Americans understand them. In practice, Vermeule’s theory lends support to an idiosyncratic but far-reaching set of far-right objectives: outright bans on abortion and same-sex marriage, sweeping limits on freedom of expression and expanded authorities for the government to do everything from protecting the natural environment to prohibiting the sale of porn.

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* (OIRA) is a statutory part of the Office of Management and Budget within the Executive Office of the President. OIRA is the United States Government’s central authority for the review of Executive Branch regulations, approval of Government information collections, establishment of Government statistical practices, and coordination of Federal privacy policy. The office is comprised of six subject matter branches and is led by the OIRA Administrator, who is appointed by the President and confirmed by the United States Senate..

Annett's 'Cathonomics' should be required reading in Catholic business schools | National Catholic Reporter

Anthony Annett is a Gabelli Fellow at Fordham's Gabelli School of Business.

Annett's 'Cathonomics' should be required reading in Catholic business schools | National Catholic Reporter

by Michael Sean Winters // NCR

Economist Anthony Annett has delivered a book that should be required reading not only for those of us who have long been interested in Catholic social doctrine, but for anyone who is serious about bringing their Catholic faith to bear on decisions relating to public life. Cathonomics: How Catholic Tradition Can Create a More Just Economy should especially find its way onto the required reading list at every Catholic business school.

As Annett relates, after the mountains of evidence of financial wrongdoings that led to the 2008 economic meltdown, economist Luigi Zingales asked, pointedly "whether business schools incubated criminals." The approach to economics Annett advocates in this book would keep such an incubation from happening in the first place.

Full disclosure: Back when I lived in Washington, Annett and I were both parishioners at St. Matthew's Cathedral and we became friends. He also knows I would never agree to review a book I was not prepared to criticize.

The opening chapters will be familiar to regular readers of NCR. Annett surveys the great encyclicals that form the building blocks of Catholic social teaching, but first he looks to the roots of Catholic social doctrine in both the Scriptures and the intellectual traditions of the church. This is a step that too many advocates of Catholic social teaching neglect. Catholic social doctrine did not drop out of the sky in 1891 when Pope Leo XIII issued Rerum Novarum. It is rooted in notions of justice drawn from the Hebrew Scriptures, Aristotle's conceptualization of the common good, the Gospel's concern for the poor, and the great theological synthesis of Aristotelian ethics and Catholic doctrine achieved by St. Thomas Aquinas. Annett brings all these threads together masterfully.

KEEP READING

303 Creative, LLC

303 Creative v. Elenis  is about complicity. It is an extreme argument that creating a website is the website designer's speech, not that of the couple seeking to marry.

Who is inviting people to the wedding? Who is celebrating the wedding? There is no website, or wedding. It's a pure hypothetical. The purpose of the case is to find a still spot that wasn't discriminating under Colorado;s oedinance

At oral argument this morning the petitioner's counsel's response is "the Pulitzer Prize goes to the photographer, not the subject of the photograph."

Justice Ketanji Jackson asks can the photographer refuse to photograph black children with Santa.

Samuel Alito: Obergefell said "decent and honorable people" differ regarding marriage.

A cake maker, photographer, web designer is free to refuse to serve the gay, the black and white, the disabled, Elena Kagan argues.

Scotus stays loan forgiveness, sets oral argument

 The Higher Education Relief Opportunities Act of 2003 [HEROES] gives the Secretary of Education authority to waive student loan obligations so as not to leave student debtors in a "worse position" because of a national emergency. Teh Department of Justice so argued in its response to the petition for certiorari.

e22-506 BIDEN, PRESIDENT OF U.S., ET AL. V. NEBRASKA, ET AL. (22A444) Consideration of the application to vacate injunction presented to Justice Kavanaugh and by him referred to the Court is deferred pending oral argument. The application to vacate injunction is also treated as a petition for a writ of certiorari before judgment, and the petition is granted on the questions presented in the application. The Clerk is directed to establish a briefing schedule that will allow the case to be argued in the February 2023 argument session. 

The Philosophers Football Match

 Thanks to John Cleese

In case you missed the Philosophers’ Football Match… #FIFAWorldCup #ENGSEN #WorldcupQatar2022 #FIFAWorldCup2022 #montypython pic.twitter.com/4JwdrFELsZ

— John Cleese (@JohnCleese) December 4, 2022

Jackson dissents: Kevin Johnson dies despite probable win on merits

Kevin Johnson was executed in Missouri yesterday.  Yet the prosecutor had moved to reconsider the case on the ground that there was significant doubt on the defendant's guide past his tummy.First, a prosecutor can file a motion to vacate if she “has information that a convicted person . . . may have been erroneously convicted.” §547.031.1.

But the prosecuto did not get to have the hearing  that the statute calls for.  The Supreme Court of the former slave state did not have enough prove Roos

22A463 Johnson v. Missouri (11/30/22)

In short, a State cannot provide a process for postconviction review (like that outlined in §547.031) and then arbitrarily refuse to follow the prescribed procedures

Where we stand on the major questions doctrine (my unvarnished take) - Adminwannabe Com

Where we stand on the major questions doctrine (my unvarnished take) - Adminwannabe Com

***

The Many MQDs

Anybody telling you that there’s just one MQD is probably selling you something. There’s still a ton of disagreement about what the MQD is, what purpose it serves, and whether it’s properly within the Chevron framework. I think between Daniel Deacon, Leah Litman, and myself, you have an accurate description of how the MQD was deployed last term: as a super-charged rule of interpretation that requires a showing of clarity over and above plain meaning. But that doesn’t mean those other MQDs up and disappeared. They are still out there anytime a lower court judge or one of the associate justice wants to pick them up.

Second, there’s significant disagreement about what purpose the major questions doctrine serves, and this problem makes for odd bedfellows. So Capozzi argues that the MQD is basically a constitutional canon that gets at the same impulses as the nondelegation doctrine. Pg. 5 (“Indeed, history shows the Court has long—if inconsistently—enforced Article I’s lawmaking requirements through the major-questions doctrine and its doctrinal sibling: the nondelegation doctrine.”). But both Deacon and Litman on the one hand, and Jonathan Adler on the other, have convincingly argued that the MQD has little at all to do with nondelegation per se. Adler recently wrote:

All legislative powers are vested in Congress. Although such powers may be delegated to the executive branch, there is no question where they begin. Put another way, the constitutional allocation of powers embodies a nondelegation baseline: Absent legislative action, all legislative power is in the legislature’s hands, and none is in the hands of any administrative agency or part of the executive branch. This is not a nondelegation doctrine, so much as a delegation doctrine; a doctrine that recognizes that delegations are necessary for agencies to have regulatory power

I think the Deacon-Litman-Adler view is winning a lot of adherents. I’m betting people slowly come to realize that the MQD isn’t really getting at the same issue as the nondelegation doctrine or, by extension, the avoidance canon. I think the Gorsuch view of things loses currency by the day.

 The Pro-MQD Literature

Eleanor Jackson Piel (1920-2022) – The Jackson List

Eleanor Jackson Piel (1920-2022) – The Jackson List

11th Circuit vacates Trump Mar a Lago Special master

The United States District Courts are courts of limited, not general  jurisdiction. When as a lawyer you find yourself writing that the judge should assert "anomalous jurisdiction" it is time to stop writing.  But like many around Donald Trump, his lawyers come to feel that normal doesn't matter.  Sometimes they are right.  Not today. Not even with the conservative Chief Judge William Pryor on the bench.

- GWC

 Donald J. Trump v. United States of America

***The FBI executed the search warrant on August 8. Agents seized approximately 13,000 documents and a number of other items, totaling more than 22,000 pages of material. Despite the certification from Plaintiff that “[a]ny and all” documents bearing classification markings had been produced, fifteen of the thirtythree seized boxes, containers, or groups of papers contained documents with classification markings, including three such documents found in desks in Plaintiff’s office. All told, the search uncovered over one hundred documents marked confidential, secret, or top secret.

**

Plaintiff requested a copy of the warrant affidavit, an opportunity to inspect the seized property, a detailed list of what was taken from the residence and where it was found, and consent to the appointment of a special master “to protect the integrity of privileged documents.” The government denied those requests shortly after the search. A few weeks later, Plaintiff filed a new action in the United States District Court for the Southern District of Florida, which he styled as a “Motion For Judicial Oversight And Additional Relief.” 

The motion asked the court to (1) appoint a special master; (2) enjoin review of the seized materials until a special master was appointed; (3) require the United States to supply a more detailed list of the items seized; and (4) order the United States to return any item seized that was not within the scope of the search warrant. 

The motion was a civil filing and did not explain how the district court had jurisdiction to act on all of its requests. It did, however, claim to be a precursor to an eventual motion under Federal Rule of Criminal Procedure 41(g). That rule permits a “person aggrieved by an unlawful search and seizure of property or by the deprivation of property” to “move for the property’s return.” Fed. R. Crim. P. 41(g). The district court could not identify a sufficient jurisdictional basis for the filing, so it requested a jurisdictional brief. Days later, Plaintiff responded that the district court had “equitable and ancillary jurisdiction,” as well as “anomalous jurisdiction,” to enjoin the government and appoint a special master.

***

The law is clear. We cannot write a rule that allows any subject of a search warrant to block government investigations after the execution of the warrant. Nor can we write a rule that allows only former presidents to do so. Either approach would be a radical reordering of our caselaw limiting the federal courts’ involvement in criminal investigations. And both would violate bedrock separation-of-powers limitations. Accordingly, we agree with the government that the district court improperly exercised equitable jurisdiction, and that dismissal of the entire proceeding is required. 

 The district court improperly exercised equitable jurisdiction in this case. For that reason, we VACATE the September 5 order on appeal and REMAND with instructions for the district court to DISMISS the underlying civil action.  

Respect for Marriage Act passes Senate

 The Respect for Marriage Act - securing  by statute the right of same-sex couples to marry - has passed the U.S. Senate.  House approval in the lame-duck session is presumed, as is Joe Biden's signature.  Passage will render moot Clarence Thomas's concurrence in Dobs v. Jackson Women's Health.  The senior Associate Justice there cast doubt on the substantive due process concept underlying rights of privacy and personal autonomy. - GWC

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.

Justice Anthony Kennedy - for the majority in Obergefell v. Hodges  (2015)view of marriage as between 

The Respect for Marriage Act  H.R. 8404 - 117th Congress

§ 7. Marriage

“(a) For the purposes of any Federal law, rule, or regulation in which marital status is a factor, an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into or, in the case of a marriage entered into outside any State, if the marriage is valid in the place where entered into and the marriage could have been entered into in a State.

“(b) In this section, the term ‘State’ means a State, the District of Columbia, the Commonwealth of Puerto Rico, or any other territory or possession of the United States.

“(c) For purposes of subsection (a), in determining whether a marriage is valid in a State or the place where entered into, if outside of any State, only the law of the jurisdiction applicable at the time the marriage was entered into may be considered.”.

 But today - in a sign of growing acceptance of same-sex marriage twelve Republican Senators joined the Democrats and passed the Defense of Marriage Act.

This will pose a major challenge for the US Catholic bishops who have adhered to a conservative culture war attitude.   

 

In U.S. v. Texas, broad questions over immigration enforcement and states’ ability to challenge federal policies - SCOTUSblog

In U.S. v. Texas, broad questions over immigration enforcement and states’ ability to challenge federal policies - SCOTUSblog

by Amy Howe

The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy. Texas and Louisiana are challenging a federal policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation, arguing that it violates federal law. But the Biden administration and its supporters counter that a ruling for the states would have sweeping implications – not only for immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.

The policy at the heart of United States v. Texas is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border. Mayorkas’ memo resembles immigration-enforcement policies enacted under President Barack Obama and other prior administrations, though not Donald Trump, who sought to limit the role of discretion in immigration enforcement.

Texas and Louisiana went to federal court in Texas to challenge the Biden administration’s policy, arguing that federal law requires the government to detain and deport many more noncitizens than those identified by Mayorkas as high prioritizes. The federal government, the states argued, does not have the authority to prioritize some unauthorized immigrants for deportation while downplaying others. U.S. District Judge Drew Tipton agreed, and he vacated the policy nationwide in June. The U.S. Court of Appeals for the 5th Circuit declined to put Tipton’s ruling on hold while the government appealed.

The Biden administration came to the Supreme Court in July, asking the justices to The Supreme Court will hear oral argument on Tuesday in a dispute over the Biden administration’s authority to set immigration policy. Texas and Louisiana are challenging a federal policy that prioritizes certain groups of unauthorized immigrants for arrest and deportation, arguing that it violates federal law. But the Biden administration and its supporters counter that a ruling for the states would have sweeping implications – not only for immigration policy but also for states’ ability to sue the federal government when they disagree with its actions.

The policy at the heart of United States v. Texas is outlined in a September 2021 memorandum by Secretary of Homeland Security Alejandro Mayorkas on the federal government’s priorities for immigration enforcement. Explaining that there are over 11 million noncitizens currently in the United States who could be subject to deportation, but that the Department of Homeland Security does not have the resources to apprehend and deport all of them, the memorandum instructed immigration officials to prioritize the apprehension and deportation of three groups of noncitizens: suspected terrorists, people who have committed crimes, and those caught recently at the border. Mayorkas’ memo resembles immigration-enforcement policies enacted under President Barack Obama and other prior administrations, though not Donald Trump, who sought to limit the role of discretion in immigration enforcement.

More guns, more gun violence - two graphs.

 As the NRA says --guns don't kill people, people do.

i.e. people with guns kill people.

Elon Musk and the Narcissism/Radicalization Maelstrom

That Elon Musk retweeted and endorsed the tweet below tells you that he is waist deep in the swamp.

- GWC

Elon Musk and the Narcissism/Radicalization Maelstrom

By Josh Marshall//Talking Points Memo

A Memoir of Prison Time, Delivered With A Note Of Apology – John J. Lennon

There are a lot of roads to ruin and, sometimes, redemption.  John J. Lennon, who just served his 21st Thanksgiving in prison for murder, has taken one. Here - in a piece first published in New York magazine he tells the story of another:  Keri Blakinger. - GWC

A Memoir of Prison Time, Delivered With A Note Of Apology – John J. Lennon

When you hear snippets of Keri Blakinger’s story — white girl, Cornell student, busted with a huge amount of heroin, spends under two years in prison, gets out, graduates — you may say, “This is what happens to privileged white girls who ‘misbehave.’” Or even, “a nauseating example of white privilege.” These were among the tweets that followed a 2014 Ithaca Voice story about Blakinger with this headline: “Cornell senior arrested with $50K of heroin graduates after 21 months behind bars.”. 

In Blakinger’s memoir, Corrections in Ink, she reflects on those mean-spirited tweets. “I realized they were not wrong about the privilege,” she writes. “I thought back on all my interactions with the system over the years, the moments that could have gone differently if I were Black, or did not have money … Everybody should get the second chances I got, but most people do not.” That Voice story was published before Blakinger made her return, before she became an investigative journalist whose reporting created real change for people in prison. Over the years, Blakinger — now a staff writer for the Marshall Project — has told her personal story in bits and pieces, in personal essays and radio interviews. In 2020, she talked to me for an episode of This Is a Collect Call From Sing Sing, a podcast I hosted over the phone in prison, where I’m serving a 28-years-to-life sentence. I remember thinking, Wow! This woman has got to write a book. And now she has.

Legislative and Administrative Constitutional Political Economy | C-SPAN.org

Legislative and Administrative Constitutional Political Economy | C-SPAN.org

Legislative and Administrative Constitutional Political Economy Video

Legal scholars and academics discussed how the Constitution can and has informed administrative and legislative policy decisions. They also touched on the perceived politicization of the judicial system, primarily the Supreme Court, and suggestions on how to limit judicial overreach. The discussion was part of Georgetown Law Center’s and the American Constitution Society’s “Reviving Progressive Constitutional Political Economy” conference in Washington, D.C. 

Josh Chafetz (Georgetown)

Ryan Doerfler (Harvard)

Victoria Nourse (Georgetown)

Ganesh Sitaram (Vanderbilt)

US bishops' decline into irrelevance will continue | National Catholic Reporter

US bishops' decline into irrelevance will continue | National Catholic Reporter

By Michael Sean Winters

I suppose it was fitting, in a depressing kind of way, that the U.S. bishops' conference plenary coincided with former President Donald Trump's announcement he is seeking the presidency in 2024. In both church and state, the future will be dominated by divisiveness and a culture war ethic for the next few years, a result that contradicts the founding mission of both. The future is grim.

The church understands its most essential mission to be proclaiming Christ as "Lumen gentium," the "Light of nations" in the words of the Second Vatican Council. "Since the Church is in Christ like a sacrament or as a sign and instrument both of a very closely knit union with God and of the unity of the whole human race, it desires now to unfold more fully to the faithful of the Church and to the whole world its own inner nature and universal mission,” the Dogmatic Constitution on the Church states.

Alas, the "unity of the whole human race" is not likely going to be part of the U.S. bishops' agenda during the tenure of Archbishop Timothy Broglio as president of the conference. As Cardinal Angelo Sodano's right-hand man during the 1990s, he not only witnessed the willful credulity extended to serial pedophiles like then-Fr. Marciel Maciel, founder of the Legionaries of Christ, but the utter lack of sympathy and solidarity extended to the victims of clergy sex abuse. The 1990s was the era in which Rome shot down any and all efforts by U.S. bishops to confront the crisis. Ask the bishops who were trying to deal with pedophiles in their ranks back then and they will tell you: Rome would not budge; you could not laicize these monsters.

At the press conference after his election, when asked about those years and specifically about the Maciel case, the best the new president could offer was the banal observation that "hindsight is always 20/20." To be clear, Broglio worked with Sodano until 2001. It was in 1997 that the Hartford Courant first published an expose of Maciel's depredations. You did not need hindsight to smell the corruption. Sodano, instead, facilitated the corruption. Broglio did nothing.

To be sure, Broglio worked for Sodano, not the other way round, but in the face of moral enormity, there is a moral obligation to avoid collaboration. He could have resigned. He could have become a whistleblower. Instead, he became, at best, a bystander.

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