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Westlake Legal Group > Posts tagged "Supreme Court"

John Bald: Children are being indoctrinated about the legal system

John Bald is a former Ofsted inspector and has written two books on the history of writing and spelling. He is Chairman of the Conservative Education Society.

Policy Exchange’s panel debate on the Supreme Court’s (SC’s)  prorogation judgment co-incided with the publication of a children’s book,”Judge Brenda and the Supreme Court”, describing the career of its President, Lady Hale, and written with her co-operation. Both had as much to say about educational, as legal, issues.

The main attraction at the panel debate was former Supreme Court Justice, barrister and historian Lord Sumption (Eton and Oxford).  Lord Sumption, a former adviser to Sir Keith Joseph, is a long-standing opponent of judicial expansion.  His conclusion, that the 11-0 prorogation was correct, accepted the SC’s argument that prorogation was not a proceeding in parliament, but an attempt to prevent parliament from proceeding. As Ministers were now responsible to parliament, and the Queen was bound by their advice, to allow this prorogation would leave Ministers responsible to no-one, and so was unacceptable.

Sumption’s clarity, logic and ease of delivery made his six-minute slot sound as if he had all the time in the world. The same could not be said of his co-panellists, QCs John Larkin (Attorney General for Northern Ireland),  Helen Moutfield, ( Matrix Chambers and Mansfield College Oxford), and Patrick Laurence. John Larkin recounted a series of criminal cases during the troubles that had little obvious relevance to prorogation. Helen Mountfield said little more than that the judgment was “of course” correct.  If this seems harsh, check the link above. John Larkin overran his time, but argued that the judgment was likely to lead to legislation by litigation, with cases fast-tracked, putting judges under pressure and leading to exactly the kind of judicial expansion that Policy Exchange’s Judicial Power Project is trying to check.

It is hard to know if this is correct. Lord Sumption thought not, and cited the first paragraph of the judgment.  The 11-0 result, indicating the assent of some justices who are known to be opposed to judicial expansion, suggests he may be right, and that the underlying axis of the Human Rights Act and expansionist justices is a separate issue. Helen Moutfield is certainly an authority on the issue, as editor of Blackstone on the HRA and a senior member of Matrix, whose activities, I suggested, are the main thrust of judicial expansion and not conducive to the public good.

Lord Sumption also said that there was no difference between the procedures of the SC and those of the House of Lords Judicial Committee which preceded it, “except for its £26m budget.”  There lies the rub, and “Judge Brenda”  illustrates it to perfection. The SC and the HRA are a radical attempt to establish the judiciary as the senior partner in the legislative process, and this book, distributed free to all children in Derbyshire by the Legal Action Group, of which Lady Hale is a long-term supporter, is another step in this direction. Lady Hale makes decisions, writes new law, and is pictured socking a male judge on the jaw, albeit under a statement that disagreements between judges “are not the same as having a fight.”

The Mail described the book as “something out of the Soviet Union”, though it’s hard to see Lady Hale presiding over a gulag. The outsize spider brooch she wore while delivering her judgment, and her appearance at the Girls School Association, had an element of gloating, but most of us would gloat if we’d just won 11-0, and I’m happy to join her in standing up for swots, as I’m a bit of a swot myself. Wearing her Doctor’s bonnet with the judicial robes is another matter – if the court has no headgear for judges, that should apply to her too, and she is pictured without it on the team photograph at the end of the book.

Lady Hale encourages children to work as hard as they can at school, and the book’s author, Afua Hirsch, tones down the feminist angle in the interactions between children – girls are not always perfect, and “Class 3 boys” – from a visiting school party – “are on our side.” Still, the idea that the judges “decide our laws”, with no mention of parliament, and the presentation of the President as a person of infinite benevolence, goes beyond the favourable presentation we can expect in an authorised biography, and into the realm of propaganda.

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

Expedited illegal alien removal heading to SCOTUS

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Earlier this year, the Trump administration made another change to immigration policy wherein migrants who cross the border to make an asylum claim could be sent back to wait in Mexico more quickly under an expedited review process. The usual list of suspects immediately challenged it in court and, predictably, the Ninth Circuit sided with them, claiming that the policy violated their constitutional rights. On Friday, the Supreme Court agreed to hear the appeal and render a final decision. (USA Today)

One of President Donald Trump’s many efforts to crack down on asylum-seekers at the border is headed to the Supreme Court.

The justices agreed Friday to consider the administration’s effort to speed the removal of thousands of migrants without allowing them federal court hearings.

A federal appeals court in California ruled earlier this year that efforts to remove asylum-seekers under “expedited review” procedures violated their constitutional rights. The Justice Department argues that extending the streamlined process could add years of court wrangling.

We’ll get to the prospects for this case in a moment, but first I wanted to take a look at the type of coverage this case is once again receiving in the mainstream press. The USA Today reporter depicts this policy the way we hear it portrayed on cable news and in the nation’s larger newspapers on a regular basis.

First of all, saying that we’re “cracking down on asylum-seekers” is intentionally disingenuous. People who apply for asylum from their home country or even show up at an approved border crossing to submit a claim are still handled in the usual fashion. There may be unfortunately long delays because of the massive backlog in our courts, but their case will be head without penalty.

What this policy is primarily doing is dealing with people who cross the border illegally and then, when apprehended, immediately try to make an asylum claim. That’s not how the system is supposed to work.

The reporter goes on to state that the applicants are being removed more quickly without a federal court hearing. They’re still going to get a hearing, albeit an “expedited” one. And after they return to wait in Mexico, a normal court hearing date will be scheduled. But I suppose it doesn’t sound as good for your target audience when it’s described accurately.

As to the White House’s prospects in this one, that’s tough to say. The current Supreme Court justices have been rather hit and miss on immigration issues, though Trump has won several victories. Earlier this year the court agreed to uphold the policy where migrants would wait in Mexico for their court dates. But in 2018, a stricter policy that would flatly deny asylum to anyone crossing the border illegally was shot down.

This case seems far more similar to the former than the latter. The policy in question doesn’t seek to flatly and preemptively deny asylum to an entire class of people. It simply seeks to ease some of the congestion in our detention facilities and ease the backlog in the courts. With that in mind, I wouldn’t be at all surprised to see the Ninth Circuit be overturned yet again and hand the Trump administration another win.

The post Expedited illegal alien removal heading to SCOTUS appeared first on Hot Air.

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Leftist Group is DEMANDING That Democrats Name Who They Would Appoint To Supreme Court

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The Left wants a list of who POTUS candidates would put in this building. 

Imitation is the sincerest form of flattery, even if it involves progressives copying Donald Trump.

Ripping a page right out of Donald Trump’s election playbook from 2016, the group Demand Justice has called for all the Democrats running for President declare publicly who that would nominate out of the handy dandy list they provided.

How convenient and very copy cat-ish of Trump 3 years ago.

According to The Washington Post

Democratic presidential contenders are coming under increased pressure from their base to take a page from Donald Trump’s 2016 playbook and release a shortlist of potential Supreme Court nominees — one part of a larger strategy from party activists to make the courts a central issue in the 2020 race.

Demand Justice, a group founded to counteract the conservative wing’s decades-long advantage over liberals in judicial fights, will release a list of 32 suggested Supreme Court nominees for any future Democratic president as they ramp up their push for the 2020 contenders to do the same.

The slate of potential high court picks includes current and former members of Congress, top litigators battling the Trump administration’s initiatives in court, professors at the nation’s top law schools and public defenders. Eight are sitting judges. They have established track records in liberal causes that Demand Justice hopes will energize the liberal base.

Seems like the progressives have FINALLY learned the lesson of paying some attention to the third branch of the government.

Now you can go ahead and take a look at that list and if you are like me, be absolutely puzzled by who all those people are. Lucky for us commoners, Carrie Severino from the Judicial Crisis Network just yesterday wrote a piece over at National Review called Demand Justice’s SCOTUS List Is Too Extreme Even for Obama that helps give us an idea of the backgrounds of these folks.

From the article…

Demand Justice’s list has 32 names on it. Only four of those are Obama-nominated judges. Shockingly, only eight have any judicial experience at all! While President Trump’s list of Supreme Court nominees currently includes 24 individuals, of whom 23 are experienced federal or state judges, the extremists at Demand Justice have clearly taken a different tack. Their list — which they are lobbying Democratic candidates to adopt — is wholly consumed by far-left activism and identity politics.

They see the courts as their ticket to implementing their radical policy agenda, which includes gutting the First and Second Amendments, establishing a right to illegal immigration and abortion on demand straight through birth, and destroying our economy by imposing burdensome regulations on everyone from Main Street to Wall Street.

When I first read this I thought, well maybe the Obama nominated judges that were confirmed don’t have enough seasoning yet. Then further on reading, I find out that 24 of them don’t have ANY JUDICIAL EXPERIENCE at all.

Did no one pay attention during the Harriet Miers fiasco under Bush 43?

So the left has put together a list of people that they want on the court that the vast majority have ZERO experience on the bench. They are straight-up activists. I actually admire Demand Justice brazen truthfulness here in trying to push this on the Dems.

Severino commented on twitter about how the candidates when finally asked ran from the subject and tried to change the subject like it was the plague.

What this tells me is that the left is organizing to do the same thing conservatives have done but the candidates are not focused on this at the stage of the game they are currently in. This might change after a nominee is picked but for now, it looks like they are more interested in impeachment than who they would put onto the court.

That works for me.

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 Leftist Group is DEMANDING That Democrats Name Who They Would Appoint To Supreme Court appeared first on RedState.

Westlake Legal Group SCOTUS-300x200 Leftist Group is DEMANDING That Democrats Name Who They Would Appoint To Supreme Court white house washington D.C. the washington post Supreme Court Special Counsel Social Media Social Justice SCOTUS republicans progressives President Trump Politics Policy Morning Briefing Media Liberal Elitism law Impeachment of President Trump Front Page Stories Front Page Featured Story Featured Post elections donald trump democrats Culture & Faith Criminal Justice Reform Courts Constitution Conservatives Congress Bipartisanship Allow Media Exception Academia Abortion 2019   Real Estate, and Personal Injury Lawyers. Contact us at: https://westlakelegal.com 

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

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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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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.

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