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Westlake Legal Group > Supreme Court

The Lewis Carroll Queen’s Speech

“Alice looked round her in great surprise. ‘Why, I do believe we’ve been under this tree the whole time! Everything’s just as it was!’”

We have a Speaker who makes up the rules to suit himself – and thwart Brexit.  A real Prime Minister, Oliver Letwin, who seizes control of the Order Paper when it suits him, but is not questioned at the despatch box, nor subject to any accountability mechanism.  A Bill with major constitutional implications – the Benn Act – rammed through Parliament in a few days.  A Supreme Court that believes Parliament to be synonymous with the legislature.  And MPs who are unwilling to submit themselves to the verdict of the people.

Given this Lewis Carroll-like Westminster, we should not be at all surprised by a Queen’s Speech with Bills that almost certainly will never be considered and not become law – at least, not this side of a general election.

Which is what we have today, and in a sense those sympathetic to the Government and Boris Johnson should not complain.  The 22 Bills that the Queen will describe today with have the upside of publicity without the downside, from Ministers’ point of view, of scrutiny – a little of which for them goes a very long away indeed.

A Government can stay in office for a very long time without much of a majority at all.  Harold Wilson won a majority of only three in 1974.  Nonetheless, his administration lasted the best part of five years.  But what governments in such a position cannot do is pass much legislation of any real significance.  There are currently 288 MPs in receipt of the Conservative whip.  Add ten DUP ones and you have 298 votes at the Government’s disposal.  That is not the basis for passing very much at all.

Consider, for example, the sensible and overdue plan to ensure that those who cast votes can actually prove who they are.  (Hats off to Peter Golds for hammering away at this issue on ConservativeHome.)

And credit too to Eric Pickles for his 2016 report, which explored ways of tackling electoral fraud.  All the same, the Government doesn’t have the kind of stable majority which would guarantee getting the proposal through.  So too with Priti Patel’s flagship law and order bills, or Grant Shapps’ reforms of rail franchising – or almost anything else.

What Boris Johnson and his team have set out at home – as his Brexit negotiating proposals apparently hang in the balance abroad – is a Dominic Cummings-type programme with a strong emphasis on the NHS, an Australian-style points-based immigration system, and tougher sentencing, seasoned with a dash of Johnsonian greenery.

Voters tend to hate elections, but the place to put these proposals to the test is at the ballot box, where they can be endorsed or rejected – not to a Parliament apparently determined to do little other than delay Brexit, while continuing to draw its salaries and expenses.

The final twist in this Through the Looking Glass tale would be were the speech to be defeated….and MPs to carry on as though nothing at all had happened, with a Government yearning to be no confidenced and an Opposition refusing to oblige.

Now, here, you see, it takes all the running you can do, to keep in the same place. If you want to get somewhere else, you must run at least twice as fast as that!’

Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

Another Federal Judge Spits In the Face of the Supreme Court

Westlake Legal Group Untitled-1-620x414 Another Federal Judge Spits In the Face of the Supreme Court Supreme Court Politics partisan immigration Front Page Stories Front Page federal judge Featured Story Emergency Delcaration El Paso donald trump democrats Clinton appointee Border wall bias Allow Media Exception

In this Saturday, Jan. 6, 2018, photo, Texas Democratic Congressman Beto O’Rourke, right, passes a “No Border Wall” sign during a visit to the National Butterfly Center in Mission, Texas, a possible location for a border wall. O’Rourke is forsaking a safe seat in Congress and a rising-star career for the longest of odds in an attempt to unseat Texas Republican Sen. Ted Cruz. O’Rourke says that after Donald Trump was elected president, he decided he had to do more in politics than stay put in the House. (AP Photo/Eric Gay)

Stop me if you’ve seen this movie before.

Another federal judge has decided that Trump building a border wall through his emergency declaration is illegal. This came from Judge David Briones, a Clinton appointee (shocked face). His reasoning is as specious as the first judge that tried this.

Another federal judge ruled against President Trump’s use of a “national emergency” declaration to divert funds for the construction of a border wall on Friday, finding the use of an emergency proclamation “unlawful” because it violated a Congressional budgeting measure from January.

“The Congressional language in the [bill] reveals Congress’s intent to limit the border barrier funding,” wrote Judge David Briones, who was appointed to the federal District Court for the Western District of Texas by former President Bill Clinton.

There’s so much wrong when you drill down into this.

First, how does El Paso County and an activist group (who are the plaintiffs here) have standing to challenge federal agencies using federal funds on federal land? The simple answer is that there’s no legal reason they have standing. Yet, this judge decided they did based on the laughable notion that El Paso County would suffer “damage to their reputation.” By such a standard, anyone could have standing in any lawsuit against the federal government. It’s just ludicrous.

The Supreme Court has already slapped down a judge earlier this summer for an equally ridiculous ruling, which bounced back and forth between the 9th circuit originally. In it, the issue of standing came up, as it was yet another activist group doing the suing. The highest court has already ruled that Trump’s use of the emergency declaration is lawful and the gyrations of this judge don’t change that.

In the end, this will make it’s way up the change and be overturned. But until Chief Justice John Roberts stops sitting on his hands, lower court judges will continue to spit in his face and gum up the judicial system with unsupported rulings such as this. Allowing this ruling to stand for even a day is an affront to our system. It’s not enough to let this spend months going through the system. The Supreme Court should immediately overrule this and then take away the ability for district court judges to make national injunctions.

Meanwhile, the wall keeps going up, whether these rogue judges like it or not.

————————————————

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The post Another Federal Judge Spits In the Face of the Supreme Court appeared first on RedState.

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Beto vs Booker, Who Will Drop Out First After Religious Bigotry Statements?

Westlake Legal Group Freedom-of-religion-stand-up-300x164 Beto vs Booker, Who Will Drop Out First After Religious Bigotry Statements? white house washington D.C. Supreme Court Social Media religion progressives polls Politics Media journalism Human Rights Front Page Stories Front Page Featured Story Featured Post entitlements Entertainment donald trump democrats Courts Cory Booker Constitution Conservatives collusion CNN catholic news agency Campaigns anti-semitism Allow Media Exception Academia Abuse of Power 2019

What a week in truly finding out where some of the Democrats running for President feel about the separation of Church and State.

The topic of the Beto Bomb that was dropped in a CNN forum has been covered extensively all over the interwebs by others and right here at Red State by Bonchie and Joe Cunningham.

However, something that did not garner much attention was that Sen. Corey Booker from New Jersey essentially said the same thing. He just didn’t go all SPARTACUS about it.

The Catholic News Agency picks it up…

On Thursday night, during and Equality Townhall hosted and broadcast on CNN, Robert Francis O’Rourke, a former congressman, was asked by CNN anchor Don Lemon if he thought that “religious institutions like colleges, churches, charities, should they lose their tax exempt status if they oppose same sex marriage?”

O’Rourke answered “yes,” and after applause and cheers from the crowd, added, “there can be no reward, no benefit, no tax break, for anyone or any institution, any organization in America that denies the full human rights and the full civil rights of every single one of us. And so, as president, we’re going to make that a priority, and we are going to stop those who are infringing upon the human rights of our fellow Americans.”

That’s the part we already know. Here is the part most people have not seen.

Sen. Cory Booker (D-NJ), another presidential candidate, was asked earlier in the night if he would strip the tax-exempt status of churches who were opposed to same-sex marriage. Booker said that such a move would entail a “long legal battle,” but signaled his sympathy with the idea.

“I’m saying I believe fundamentally that discrimination is discrimination,” he said. “And if you are using your position to try to discriminate others, there must be consequences to that. And I will make sure to hold them accountable using the DOJ or whatever investigatory [body].”

So here we have in the year 2019, two major candidates for President of the United States saying that they want the United States government to FORCE religious institutions to abide by the modern-day #WOKENESS that has gripped the Feelings over Facts crowd.

That should scare you.

Now it is no coincidence that both Beto and Booker are both circling the drain at just around 2% in the latest polling I have read. This is obviously a desperate attempt to shoot up to over 4% and steal the nomination from Biden.

Will it work? No, not for this cycle.

The way these things work though is those two candidates floated an idea and now the top tier candidates will do polling to see if it works with the base. My guess is those churches in the deep south and the mosques in Minnesota will be equally opposed to being singled out for being called bigots and losing any sort of tax-exempt status they have.

The idea though, now having been introduced will be debated among the progressive left and will gain steam. Bernie Sander candidacy in 2016 and this time around has shown that the actual ideas do not matter. Just the feelings that surround those ideas. If it makes you feel warm and fuzzy than roll with it.

We should all be about the discussion of ideas and have vigorous national debates on it. These things usually turn into a discussion on your feelings though and that is just irrelevant and that is just a damn shame.

The only thing left to do for Beto and Booker after agreeing that this horrible idea is worth exploring is to guess which one of these “serious” candidates will be the first to call it quits in their futile race.

My money is on Beto. Anyone who is scared to use their real name that DOESNT work in Hollywood is too timid to be President.

Place your bets.

Check out my other posts here on Red State and my podcast Bourbon On The Rocks plus like Bourbon On The Rocks on Facebook and follow me on the twitters at IRISHDUKE2 

The post Beto vs Booker, Who Will Drop Out First After Religious Bigotry Statements? appeared first on RedState.

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SCOTUS, here we come: Trump loses appeal on tax records

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This hasn’t been a good week for Donald Trump in court when it comes to keeping his income tax returns private. On Monday, a federal judge rejected Trump’s challenge to a Manhattan DA’s subpoena for his tax records, blasting Trump’s “repugnant” claim of absolute immunity while in office. The DC Court of Appeals bookended Trump’s week by ruling that his accounting firm must comply with a House Oversight Committee subpoena for the records, although the ruling left time for Trump and Mazars to appeal:

A federal appeals court ruled Friday that President Donald Trump’s accounting firm must turn over financial records requested by a House committee, a legal blow to the administration’s efforts to block congressional investigations of his finances.

The House Oversight and Reform Committee sent a subpoena to Mazars USA, in April asking for documents related to Trump’s accounts going back to January 2009. His lawyers sued to block the subpoena, arguing that Congress had no legitimate legislative purpose for getting the materials.

But in a 2-1 ruling, a three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia said the committee “possesses authority under both the House rules and the Constitution to issue the subpoena, and Mazars must comply.”

The appeals court put a seven-day hold on the legal effect of its ruling, which will give Trump’s lawyers time to appeal. The president’s lawyers will undoubtedly fight the ruling, either before the full appeals court or by going directly to the Supreme Court.

Expect to hear quite a bit about the partisan split in this ruling, especially when it comes to confirming later appointments by Trump to appellate courts. The dissenting judge, Neomi Rao, was recently confirmed to the bench after her appointment by Trump. The two that ruled in favor of the House, David Tatel and Patricia Millet, got appointed by Bill Clinton and Barack Obama, respectively.

In this case, let’s start with the dissent. Rao argued that the House does not have the authority to act in a judicial manner unless and until they have formally authorized an impeachment inquiry. She accused the other two jurists of blurring that line without any precedent in support:

The majority breaks new ground when it determines Congress is investigating allegations of illegal conduct against the President, yet nonetheless upholds the subpoena as part of the legislative power. The Committee on Oversight and Reform has consistently maintained that it seeks to determine whether the President broke the law, but it has not invoked Congress’s impeachment power to support this subpoena. When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power. Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government. I respectfully dissent.

The majority disagrees, insisting that requiring financial disclosure is a valid legislative purpose:

In sum, we detect no inherent constitutional flaw in laws requiring Presidents to publicly disclose certain financial information. And that is enough. Without treading onto any other potentially fertile grounds from which constitutional legislation could flower, we conclude that given the constitutionally permissible options open to Congress in the field of financial disclosure, the challenged subpoena seeks “information about a subject on which legislation may be had.” Eastland, 421 U.S. at 508.

To the dissent, however, this makes no difference. Although acknowledging that the Committee is pursuing a “valid legislative inquiry,” the dissent insists that the Mazars subpoena is nonetheless invalid because it “seeks to investigate individual suspicions of criminality against the President,” an inquiry that “may be pursued only through impeachment.” Dissenting Op. at 44. In support, the dissent claims to rely on the “text and structure of the Constitution, its original meaning and longstanding practice.”

The purpose behind the demand, however, isn’t to craft legislation; as Rao points out, it’s to pursue impeachment, which is not a legislative function. The House has made that point increasingly explicit even as it attempts to avoid making it formal. If the House wants to require presidents to disclose their tax returns while in office, their first step should be to propose that in legislation, or at least pretend that’s the purpose of the demand for evidence. That would seem to be more the case when demanding subpoenas for private tax records for years when a president wasn’t in any elective office at all.

Of course, this is far from over. Pete Williams does a good job of breaking down the dispute for NBC and notes that Trump now has two choices. He can either appeal this to the full DC Circuit for an en banc ruling, or he can take it to the Supreme Court — where the balance at least appears to favor him. That appearance is precisely why the Supreme Court would rather rehash Roe than get involved in any way, but it seems highly likely that Trump would get the requisite four votes for a grant of cert when he appeals this ruling. At that point, the court might as well take all of the Trump tax-return actions and consolidate them, if for no other reason than to only have to do this once.

Prediction: For Christmas, John Roberts will ask Santa a six-month supply of Pepcid and Excedrin.

The post SCOTUS, here we come: Trump loses appeal on tax records appeared first on Hot Air.

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Julian Brazier: Let’s resist a written constitution – and restore the Law Lords

Sir Julian Brazier is a former Defence Minister, and was MP for Canterbury from 1987-2017. He is Chairman of a security company.

When the Supreme Court delivered its judgments on the Miller and Cherry cases, the Prime Minister commented:

 “… if judges are to pronounce on political questions in this way, then there is at least an argument that there should be some form of accountability. The lessons of America are relevant.”

Let’s examine this.

Britain has, famously, an unwritten constitution. Our constitution does have some important statutory elements, including the Bill of Rights, the Representation of the Peoples Act and the Parliaments Act but, for most purposes, it is driven by convention, policed by Parliament itself and, crucially, by the wider court of public opinion.

Our flexible constitution has served us well in peace and war, as shown by the astonishing lack of constitutional crises, since the 17th Century. Our nearest neighbour, France, by contrast, is on its Fifth Republic since 1789 with interludes of monarchic rule. No British political leader has defied the courts since the Bill of Rights in 1688, unlike the USA where several presidents have rejected court rulings, including most famously Abraham Lincoln, who did so repeatedly, starting with the notorious Dred Scott verdict.

After Britain’s civil wars in the 17th Century, pitting the Crown against much of Parliament and the parliamentary coup known as the ‘Glorious Revolution’, the Bill of Rights (1688) was our founding constitutional compromise. It established that sovereignty lay with ‘The Crown in Parliament’. It also, crucially, prescribed

“That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”

This means inter alia that the courts cannot challenge the legitimacy of legislation on the basis of parliamentary process. Such process is subject only to the standing orders of the two houses of Parliament and the rulings of the Speaker and Lord Speaker.

Sovereignty of the Crown in Parliament, in practice, has meant that the government (signified by ‘The Crown’) has governed, while requiring explicit parliamentary sanction to raise taxes and make laws – and having to answer to Parliament for its actions. Crucially, Parliament has the power to dismiss a government through a no confidence vote.

A number of important factors have distorted this; joining the EU and the European Convention of Human rights made us subject to directives from abroad and allows courts to strike down legislation where it conflicts with the former and register formal protests under the latter. The other critical change is David Cameron’s Fixed Term Parliament Act which prevents a Prime Minister from calling an election, without Parliamentary action.

Nevertheless, the basic structure of rule by the Crown in Parliament remained in place. At its heart was the arrangement that, to allow a government to govern, legislation could only be initiated with the agreement of the government. All bills were government bills, except those like Private Members Bills whose arrangements depend on government.

This arrangement has recently been stood on its head by John Bercow, by allowing an ad hoc majority in the Commons to table and pass legislation – directing the government in its duties.

Constitutional authorities in this country are few – precisely because we have so few constitutional issues – and are mostly not lawyers. Probably the best known of them is Vernon Bogdanor. He comments:

‘The truth is that 650 MPs cannot make policy. Only the government can do that. The role of parliament is not to govern but to scrutinise those who do. That is especially the case with the treaty-making power… And parliament is in no position to renegotiate a treaty… MPs have rejected the government’s flagship policy without providing any alternative. It is enabled to pursue this course because of the wretched Fixed-term Parliaments Act.’

In other words, this group, answerable to nobody – until election time – are blocking an election to enable their rule to continue

In response, the government decided to use the ‘Crown prerogative’ to prorogue Parliament leading to the court case which sparked this article. Some Brexit supporters like myself felt that this was a political mistake, but courts are not supposed to rule on politics. What was at stake in that case was the simple question of whether or not the Crown prerogative to prorogue Parliament was justiciable or not.

The view of most senior lawyers, before the Supreme Court considered the case, was that it was not. Indeed a very senior panel of English judges, including the Lord Chief Justice, ruled that is was not, but their counterparts in Scotland disagreed and the Supreme Court decided that this was a matter it could rule on – and did so against the government.

Students will study this judgment for generations. Two things stand out: first the dearth of constitutional precedents. Apart from its own ruling on the putative Brexit Treaty just three years ago, the court is forced to rummage around for cases on local authority budgets, criminal injuries compensation and employment tribunal fees. It it can find only one unmistakably constitutional case, the Case of Proclamations (1611), which ruled that altering the law of the land by the use of the Crown’s prerogative powers was unlawful. To this one case, last month’s judgment returns again and again.

That should send alarm bells ringing. British law looks back (occasionally) to the reign of Richard II but, on constitutional matters, 1688 has always, hitherto, been regarded as a watershed. We simply weren’t governed in a near-universally agreed way before that, so leaning heavily on a case from earlier is extraordinary. That is especially so here as the judgment also dismisses the provision of the Bill of Rights itself quoted above (on the unprecedented grounds that prorogation happens in Parliament without its consent and so is not a parliamentary proceeding).

Equally, the judgment talks about Parliamentary sovereignty but assumes a distorted doctrine of what that actually means. The judgment never formally defines Parliament but, in paragraph 55, implies that it consists only of the House of Commons and the House of Lords. One does not have to read Dicey to know that Parliament has a crucial third element, the Crown.

The Government was hog-tied. It could not defend its actions by setting out how today’s temporary majority in Parliament had trashed the conventional interaction between government and Parliament. This was because doing so so would have invited the Court to trespass still further behind the screen on parliamentary proceedings erected by the Bill Of Rights. We have indeed witnessed a judicial coup.

So what to do? The worst option would be to move to a written constitution – such an arrangement would increase the powers of the courts because, once codified, all constitutional matters would be justiciable.

Restoring the power to the Lord Chancellor (put back in the Lords) to appoint – but not sack – judges would be helpful. Most governments wish to discourage activism, but it is difficult to see how hearings would help, as MPs would take different views. Secondly, the FTPA should be repealed, allowing government to proceed with its business – or resign and call an election.

The other key measure to heal this breach would be to disband this new court with its beguiling name – and restore Parliament as the highest court of the land by re-introducing the judicial committee of the Lords (the Law Lords) to replace the Supreme Court. While the current Supreme Court judges are members of the Lords too, bringing their institution back into Parliament would surely improve mutual understanding.

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The Court Is in Session – Part II

Westlake Legal Group AP_17174023673327 The Court Is in Session – Part II transgender Title VII Supreme Court SCOTUS LGBT law Judicial Guns gun control Gender Issues gay rights Front Page Stories Front Page employment discrimination Courts Constitution Allow Media Exception Abortion 2019

FILE – This Jan. 25, 2012, file photo, shows the U.S. Supreme Court Building in Washington. The Supreme Court enters its final week of work before a long summer hiatus with action expected on the Trump administration’s travel ban and a decision due in a separation of church and state case that arises from a Missouri church playground. (AP Photo/J. Scott Applewhite, File)

Earlier, we highlighted the cases heard by the Supreme Court on Monday of this week (as well as the many delights of October!) Three more cases were heard by the Court yesterday, all on very “hot button” issues.  (READ: The Court Is in Session – Part I.)

First up was Bostock v. Clayton County, Georgia. This case examines the applicability of Title VII of the Civil Rights Act to claims of employment discrimination based on sexual orientation.  The pertinent portion of the Act prohibits discrimination in the employment context “because of [an] individual’s race, color, religion, sex, or national origin.”  The law was first passed in 1964 and has not, to date, been construed (by SCOTUS) to encompass sexual orientation or transgenderism. Plaintiff Gerald Bostock was a coordinator for child welfare services in Clayton County, Georgia, for a number of years.  In 2013, he joined a gay recreational softball league and, according to Bostock, “from that point on, my life changed, ” he says. “Within months, I was fired for being gay. I lost my livelihood. I lost my medical insurance and at the time I was fighting prostate cancer. It was devastating.” Bostock filed suit in federal court in Georgia, alleging that his termination violated Title VII, in that his termination (ostensibly for being gay) was prohibited by the “because of sex” provision.

Bostock’s case was consolidated for oral argument with Altitude Express v. Zarda, a case filed in federal court in New York by Donald Zarda following his 2010 termination by his skydiving company employer.  Zarda had informed a customer that he was gay in order to allay her concerns about being strapped together with him during the jump.  The customer complained and Zarda was terminated. He asserted this was due to the customer’s homophobia (though the customer also contended that he had touched her inappropriately during the jump.) Zarda died in a base jumping accident in Switzerland in 2014 and his family continued the litigation in his name.  Similar to BostockZarda involves the question of whether discrimination based on sexual orientation is encompassed within the language of Title VII.

The consolidated cases were then followed by the case of Harris Funeral Homes v. EEOC. This was another employment discrimination case, only Harris involves the question of whether the provisions of Title VII also prohibit discrimination based on an individual being transgender. In that case, Aimee Stephens, a Michigan funeral director, was terminated following her declaration in 2013 that she intended to live and dress as a woman. (Prior to 2013, Stephens was known as “Anthony” and dressed and lived as a man.) Stephens made a claim for discrimination with the EEOC, which then sued the funeral home, asserting that firing Stephens for being transgender violated Title VII.

ACLU attorney David Cole presented an interesting argument on behalf of Stephens:

Cole described the case in simple terms. Stephens is being treated differently because of the sex she was assigned at birth. If she had been assigned a female sex at birth, he argued, she would not have been fired for wanting to come to work dressed as a woman. But instead she was assigned a male sex, Cole continued, and so she was fired because she failed to conform to the sex stereotypes of her employer. It can’t be the case, Cole asserted, that Ann Hopkins – the plaintiff in the Supreme Court’s original case on sex stereotyping – couldn’t be fired or denied a promotion for being insufficiently feminine, but Stephens could be fired for being insufficiently masculine.

Once again, SCOTUSblog’s Amy Howe provides an excellent analysis of Tuesday’s arguments.  The transcripts of the arguments can be found here and here.

We’ll provide additional overviews as to upcoming arguments, as well as some in-depth analysis, in the coming days. However, I also want to point out that the Court granted certiorari this past Friday on several more cases of interest: June Medical Serv., et al. v. Gee, Sec., LA Dept. of Health (consolidated with) Gee, Sec., LA Dept. of Healthv. June Medical Serv., et al. – cases involving a challenge to the Louisiana law which requires admitting privileges for doctors who perform abortions; United States v. Sineneng-Smith (reviewing a 9th Circuit decision which found a federal law making it a felony to encourage or induce illegal immigration for financial gain unconstitutionally broad).  Look for these cases to be heard early in 2020. Additionally, on Monday, the Court opted to move forward with oral argument in the case of New York State Rifle & Pistol Association, Inc. v. City of New York, New York, a case involving New York City’s since-repealed ban on transporting guns outside the city limits, despite the fact that the ban was subsequently changed.  This one is now scheduled to be heard in December.

 


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The post The Court Is in Session – Part II appeared first on RedState.

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Will The Supreme Court Get Involved in an Electoral College Issue From 2016?

Westlake Legal Group electoral-college-300x221 Will The Supreme Court Get Involved in an Electoral College Issue From 2016? washington state washington D.C. Supreme Court SCOTUS Politics News Morning Briefing Impeachment of President Trump impeachment Government Front Page Stories Front Page Featured Story Featured Post faithless electors elections donald trump democrats Constitution Conservatives Congress Colorado Campaigns Bill Clinton Allow Media Exception Academia 2019

The year 2016 was a doozy of an election on the national level. Donald Trump surprised a lot of people ( including myself) when he won the Presidency and made Hillary a two-time loser in POTUS runs. The reason why Trump was able to pull off this feat was because of two simple words.

Electoral College.

I have written here at Red State before about this…READ  Yuck: Colorado Decides To Bypass The Electoral College With National Popular Vote and the reason why it needs to be preserved.

Now a new challenge is possibly facing a showdown in the United States Supreme Court and it could radically alter how we have done elections in this country for over 240 years.

According to…CNN

Three presidential electors in Washington state who voted for Colin Powell in 2016 rather than Hillary Clinton and were fined under state law, are asking the US Supreme Court to take up their appeal and decide whether a state can bind an elector to vote for the state’s popular vote winner.

“The original text of the Constitution,” their lawyers argued in court papers filed Monday afternoon, “secures to electors the freedom to vote as they choose.”

If the Supreme Court agrees to hear the appeal of the so-called “faithless electors,” it could thrust the justices into yet another high-passion political fight in the heat of the 2020 presidential election. It comes as some predict that the volatile political atmosphere and disputes over redistricting could further emphasize the role of the Electoral College in the upcoming election.

The states have always run federal elections. However, with this new wrinkle, the states would pick people who then do not have to abide by the state’s very own rules if the faithless electors are ruled constitutional on a federal level.

The 10th amendment to the United States Consitution declares that…

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Even though people have argued that the 12th amendment was passed to deal with some complications in the process of federal elections it does not specifically say how states were to deal with the rules for selecting electors. That, at least in my mind would mean that the states get to pick the process.

However, can you imagine a scenario where 10 or 12 states have a different processes to pick and allow electors to do what they want? That would be an epic mess.

I am fascinated about this whole process and will keep an eye on what SCOTUS decides to do. I don’t think they have much choice to take it up and we will see soon enough.

Check out my other posts here on Red State and my podcast Bourbon On The Rocks plus like Bourbon On The Rocks on Facebook and follow me on the twitters at IRISHDUKE2 

The post Will The Supreme Court Get Involved in an Electoral College Issue From 2016? appeared first on RedState.

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The Court Is in Session – Part I

October brings with it so many good things: Playoff baseball (go, Cards!), hockey (go, Blues!), football (go, Packers!), brilliant fall colors, pumpkin everything…and for SCOTUS geeks like me, the beginning of a new term for the Court. Oral arguments for the October sitting began Monday and continued yesterday, with eight more slated to be heard next week. This term promises to include some controversial topics and fascinating decisions, both in terms of outcome and alignments among the justices. Following is a quick rundown of the cases heard Monday. We’ll have a separate rundown of Tuesday’s cases and follow that with an overview of what we can expect to see going forward.

On Monday, the Court heard oral argument in Kahler v. Kansas, a case involving the insanity defense. In 1995, Kansas abolished insanity as an affirmative defense, enacting a law that, instead, allows for a criminal defendant to assert that he was unable to form the requisite intent to commit the crime due to mental illness.  James Kahler shot and killed his estranged wife, her grandmother, and his two teenage daughters in 2009. Kahler was convicted of first-degree murder and sentenced to death. His sentence was upheld by the Kansas Supreme Court. Kahler contends that the Kansas law which prevented him from raising an insanity defense violated the due process clause of the Fourteenth Amendment and the Eighth Amendment’s prohibition on cruel and unusual punishment. Amy Howe over at SCOTUSblog (an invaluable resource for SCOTUS junkies) provided a thorough post-argument analysis here.  The transcript of the argument can be found here.

Next up was Ramos v. Louisiana, a case involving the question of whether the Sixth Amendment a) requires a unanimous verdict in a criminal case; and b) is incorporated to the states via the Fourteenth Amendment. This might not seem like an earth-shattering sort of thing. However, this case could shape up to be a game-changer.  At the heart of the dispute is the 1972 Supreme Court Case of Apodaca v. Oregon, which involved a divided court decision: four of the justices took the position that the Sixth Amendment does not guarantee the right to a unanimous verdict at all, while four others contended it guaranteed it both at the federal and the state level. Justice Lewis Powell split the difference and asserted that the Sixth Amendment guarantees a unanimous verdict in federal criminal cases but not in state cases.  Ramos, the defendant in the current case, was convicted of second-degree murder by a 10-2 jury verdict.  Louisiana is one of only two states that, prior to 2019, that followed the non-unanimity rule (Oregon being the other one.) That rule was repealed by Louisiana voters in 2018 and the unanimity requirement went into effect for all crimes committed on or after January 1, 2019. (The crime for which Ramos was convicted occurred in 2014.) What is truly fascinating about this case is that during the argument the liberal wing of the Court appeared to be pushing back the hardest against the defense position (which would require overruling Apodaca – possibly signaling concern about disregard for stare decisis and the “sanctity” of Roe v. Wade, particularly in light of Louisiana abortion cases looming.)  Catch a full analysis of the argument here and the transcript here.

Also on Monday, the Court heard argument in Peter v. NantKwest, Inc., a case involving the award of attorney fees for appeals of patent application denials. This one’s a bit on the drier side, but interesting nonetheless, since it involves a close look at the “American Rule,” which presumes that losing litigants should not be compelled to pay the winning side’s attorney’s fees. What’s unusual about this case is that it involves a process under Section 145 of the Patent Act which compels the party appealing the patent application denial to pay for the other side’s (i.e., the Patent & Trademark Office’s) “expenses” regardless of whether the appeal is successful or fails.  Until recently, “expenses” were thought to include only out-of-pocket expenses, such as copying fees and travel. The PTO has now interpreted that to include attorney fees and other attendant expenses. Ronald Mann’s analysis of the argument can be found here. The transcript is here.

Stay tuned for our next installment – a review of the cases heard by the Court yesterday.  (Talk about controversial!)

 


Follow me on Twitter @SmoosieQ

Find my RedState archive here.

 

The post The Court Is in Session – Part I appeared first on RedState.

Westlake Legal Group SupremeCourtSCOTUS-300x153 The Court Is in Session – Part I Supreme Court SCOTUS Judicial Front Page Stories Front Page Fourteenth Amendment Criminal Justice Reform crime Courts Constitution Allow Media Exception 2019   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

The Court Is in Session – Part I

October brings with it so many good things: Playoff baseball (go, Cards!), hockey (go, Blues!), football (go, Packers!), brilliant fall colors, pumpkin everything…and for SCOTUS geeks like me, the beginning of a new term for the Court. Oral arguments for the October sitting began Monday and continued yesterday, with eight more slated to be heard next week. This term promises to include some controversial topics and fascinating decisions, both in terms of outcome and alignments among the justices. Following is a quick rundown of the cases heard Monday. We’ll have a separate rundown of Tuesday’s cases and follow that with an overview of what we can expect to see going forward.

On Monday, the Court heard oral argument in Kahler v. Kansas, a case involving the insanity defense. In 1995, Kansas abolished insanity as an affirmative defense, enacting a law that, instead, allows for a criminal defendant to assert that he was unable to form the requisite intent to commit the crime due to mental illness.  James Kahler shot and killed his estranged wife, her grandmother, and his two teenage daughters in 2009. Kahler was convicted of first-degree murder and sentenced to death. His sentence was upheld by the Kansas Supreme Court. Kahler contends that the Kansas law which prevented him from raising an insanity defense violated the due process clause of the Fourteenth Amendment and the Eighth Amendment’s prohibition on cruel and unusual punishment. Amy Howe over at SCOTUSblog (an invaluable resource for SCOTUS junkies) provided a thorough post-argument analysis here.  The transcript of the argument can be found here.

Next up was Ramos v. Louisiana, a case involving the question of whether the Sixth Amendment a) requires a unanimous verdict in a criminal case; and b) is incorporated to the states via the Fourteenth Amendment. This might not seem like an earth-shattering sort of thing. However, this case could shape up to be a game-changer.  At the heart of the dispute is the 1972 Supreme Court Case of Apodaca v. Oregon, which involved a divided court decision: four of the justices took the position that the Sixth Amendment does not guarantee the right to a unanimous verdict at all, while four others contended it guaranteed it both at the federal and the state level. Justice Lewis Powell split the difference and asserted that the Sixth Amendment guarantees a unanimous verdict in federal criminal cases but not in state cases.  Ramos, the defendant in the current case, was convicted of second-degree murder by a 10-2 jury verdict.  Louisiana is one of only two states that, prior to 2019, that followed the non-unanimity rule (Oregon being the other one.) That rule was repealed by Louisiana voters in 2018 and the unanimity requirement went into effect for all crimes committed on or after January 1, 2019. (The crime for which Ramos was convicted occurred in 2014.) What is truly fascinating about this case is that during the argument the liberal wing of the Court appeared to be pushing back the hardest against the defense position (which would require overruling Apodaca – possibly signaling concern about disregard for stare decisis and the “sanctity” of Roe v. Wade, particularly in light of Louisiana abortion cases looming.)  Catch a full analysis of the argument here and the transcript here.

Also on Monday, the Court heard argument in Peter v. NantKwest, Inc., a case involving the award of attorney fees for appeals of patent application denials. This one’s a bit on the drier side, but interesting nonetheless, since it involves a close look at the “American Rule,” which presumes that losing litigants should not be compelled to pay the winning side’s attorney’s fees. What’s unusual about this case is that it involves a process under Section 145 of the Patent Act which compels the party appealing the patent application denial to pay for the other side’s (i.e., the Patent & Trademark Office’s) “expenses” regardless of whether the appeal is successful or fails.  Until recently, “expenses” were thought to include only out-of-pocket expenses, such as copying fees and travel. The PTO has now interpreted that to include attorney fees and other attendant expenses. Ronald Mann’s analysis of the argument can be found here. The transcript is here.

Stay tuned for our next installment – a review of the cases heard by the Court yesterday.  (Talk about controversial!)

 


Follow me on Twitter @SmoosieQ

Find my RedState archive here.

 

The post The Court Is in Session – Part I appeared first on RedState.

Westlake Legal Group SupremeCourtSCOTUS-300x153 The Court Is in Session – Part I Supreme Court Sixth Amendment SCOTUS Patent Law october Judicial Incorporation Doctrine Front Page Stories Front Page Fourteenth Amendment Criminal Justice Reform crime Courts Constitution Allow Media Exception 2019   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

The Court Is in Session – Part I

October brings with it so many good things: Playoff baseball (go, Cards!), hockey (go, Blues!), football (go, Packers!), brilliant fall colors, pumpkin everything…and for SCOTUS geeks like me, the beginning of a new term for the Court. Oral arguments for the October sitting began Monday and continued yesterday, with eight more slated to be heard next week. This term promises to include some controversial topics and fascinating decisions, both in terms of outcome and alignments among the justices. Following is a quick rundown of the cases heard Monday. We’ll have a separate rundown of Tuesday’s cases and follow that with an overview of what we can expect to see going forward.

On Monday, the Court heard oral argument in Kahler v. Kansas, a case involving the insanity defense. In 1995, Kansas abolished insanity as an affirmative defense, enacting a law that, instead, allows for a criminal defendant to assert that he was unable to form the requisite intent to commit the crime due to mental illness.  James Kahler shot and killed his estranged wife, her grandmother, and his two teenage daughters in 2009. Kahler was convicted of first-degree murder and sentenced to death. His sentence was upheld by the Kansas Supreme Court. Kahler contends that the Kansas law which prevented him from raising an insanity defense violated the due process clause of the Fourteenth Amendment and the Eighth Amendment’s prohibition on cruel and unusual punishment. Amy Howe over at SCOTUSblog (an invaluable resource for SCOTUS junkies) provided a thorough post-argument analysis here.  The transcript of the argument can be found here.

Next up was Ramos v. Louisiana, a case involving the question of whether the Sixth Amendment a) requires a unanimous verdict in a criminal case; and b) is incorporated to the states via the Fourteenth Amendment. This might not seem like an earth-shattering sort of thing. However, this case could shape up to be a game-changer.  At the heart of the dispute is the 1972 Supreme Court Case of Apodaca v. Oregon, which involved a divided court decision: four of the justices took the position that the Sixth Amendment does not guarantee the right to a unanimous verdict at all, while four others contended it guaranteed it both at the federal and the state level. Justice Lewis Powell split the difference and asserted that the Sixth Amendment guarantees a unanimous verdict in federal criminal cases but not in state cases.  Ramos, the defendant in the current case, was convicted of second-degree murder by a 10-2 jury verdict.  Louisiana is one of only two states that, prior to 2019, that followed the non-unanimity rule (Oregon being the other one.) That rule was repealed by Louisiana voters in 2018 and the unanimity requirement went into effect for all crimes committed on or after January 1, 2019. (The crime for which Ramos was convicted occurred in 2014.) What is truly fascinating about this case is that during the argument the liberal wing of the Court appeared to be pushing back the hardest against the defense position (which would require overruling Apodaca – possibly signaling concern about disregard for stare decisis and the “sanctity” of Roe v. Wade, particularly in light of Louisiana abortion cases looming.)  Catch a full analysis of the argument here and the transcript here.

Also on Monday, the Court heard argument in Peter v. NantKwest, Inc., a case involving the award of attorney fees for appeals of patent application denials. This one’s a bit on the drier side, but interesting nonetheless, since it involves a close look at the “American Rule,” which presumes that losing litigants should not be compelled to pay the winning side’s attorney’s fees. What’s unusual about this case is that it involves a process under Section 145 of the Patent Act which compels the party appealing the patent application denial to pay for the other side’s (i.e., the Patent & Trademark Office’s) “expenses” regardless of whether the appeal is successful or fails.  Until recently, “expenses” were thought to include only out-of-pocket expenses, such as copying fees and travel. The PTO has now interpreted that to include attorney fees and other attendant expenses. Ronald Mann’s analysis of the argument can be found here. The transcript is here.

Stay tuned for our next installment – a review of the cases heard by the Court yesterday.  (Talk about controversial!)

 


Follow me on Twitter @SmoosieQ

Find my RedState archive here.

 

The post The Court Is in Session – Part I appeared first on RedState.

Westlake Legal Group SupremeCourtSCOTUS-300x153 The Court Is in Session – Part I Supreme Court Sixth Amendment SCOTUS Patent Law october Judicial Incorporation Doctrine Front Page Stories Front Page Fourteenth Amendment Criminal Justice Reform crime Courts Constitution Allow Media Exception 2019   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com