FedSoc Blog

Ex-Blackwater Guard Wins Challenge of Manslaughter Indictment

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by Publius
Posted April 08, 2014, 12:33 PM

BLT: The Blog of Legal Times reports:

A federal appeals court in Washington handed the U.S. Department of Justice a loss Monday in its revived prosecution of former private security guards charged with killing Iraqi civilians in 2007.

The U.S. Court of Appeals for the D.C. Circuit ruled a trial judge was wrong to allow the government to bring a new indictment against one of ex-Blackwater guards, Nicholas Slatten. The appeals court said a previous opinion from 2011 that allowed the government to renew its prosecution of other guards didn't apply to Slatten.

The ruling means prosecutors can't proceed with the current slate of manslaughter charges against Slatten. The five-year statute of limitations expired in 2012, according to court documents.

The government initially charged five ex-Blackwater guards in a shooting in Nisour Square in Baghdad that left 14 Iraqi civilians dead. U.S. District Judge Ricardo Urbina dismissed the entire prosecution in 2009, citing prosecutors' improper use of protected statements made by the guards. The D.C. Circuit reversed Urbina in 2011 and gave the government another chance to bring the case.

The government brought a new round of charges last year against four of the five guards originally indicted, including Slatten. Slatten's lawyers argued the D.C. Circuit's 2011 ruling didn’t apply to him, and petitioned the appeals court after U.S. District Senior Judge Royce Lamberth, the judge currently assigned to the case, sided with the government.

Prosecutors had acknowledged the original indictment against Slatten was tainted and moved to dismiss it. Urbina dismissed the entire case after finding prosecutors relied on protected statements, however, making the separate motion to dismiss Slatten's indictment moot. The government later argued that the D.C. Circuit's 2011 order reviving the case applied to Slatten because it involved the broader issues addressed in Urbina's opinion, regardless of problems specific to Slatten's indictment.

But the three-judge appellate panel said Monday that the court's 2011 decision "clearly applied only to Slatten's four co-defendants." Chief Judge Merrick Garland and senior judges Stephen Williams and Douglas Ginsburg jointly issued the order. . . .

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Podcast: Do State Attorneys General Have a Duty to Defend State Laws?

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by Publius
Posted April 08, 2014, 8:41 AM

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.

Listen to the podcast here.

 

Judge Tosses Lawsuit over Drone Deaths of Americans

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by Publius
Posted April 07, 2014, 6:12 PM

Josh Gerstein reports for Politico:

Representatives of three Americans killed in drone strikes in Yemen in 2011—including Al Qaeda in the Arabian Peninsula leader Anwar Al-Awlaki—cannot pursue a lawsuit alleging that the killings violated their constitutional rights, a federal judge ruled Friday.

U.S. District Court Judge Rosemary Collyer dismissed a suit brought on behalf of Al-Awlaki, his 16-year-old son Abdulrahman and alleged AQAP propagandist Samir Khan. Civil liberties groups filed the litigation on behalf of family members of the dead Americans, arguing that they were unconstitutionally deprived of life without due process of law and that the Obama Administration illegally maintained a so-called "kill list" of Americans targeted for death at the hands of U.S. government operations overseas.

"The persons holding the jobs of the named Defendants must be trusted and expected to act in accordance with the U.S. Constitution when they intentionally target a U.S. citizen abroad at the direction of the President and with the concurrence of Congress. They cannot be held personally responsible in monetary damages for conducting war," Collyer wrote.

In a flight of legal nuance, Collyer rejected the Obama Administration's arguments that she lacked authority to delve into the case because it presented a "political question" not suited to the courts. But she ultimately concluded that the elder Al-Awlaki's claim should not go forward because it would require the courts to recognize a new remedy for Americans killed in U.S. government action abroad and at least three appeals courts have indicated it is inadvisable for judges to allow claims of that sort without explicit authorization from Congress.

"In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to question, and does not make a finding concerning, Defendants’ actions in dealing with AQAP generally or Anwar Al-Aulaqi in particular," Collyer declared. "Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief," she added, referring to a line of cases discussing when courts should allow damage lawsuits against government officials.

In her 41-page ruling (posted here), Collyer expressed no sympathy whatsoever for the elder Al-Awlaki, whom she unequivocally branded as a nefarious Al Qaeda leader.

"Had he been captured alive, Anwar Al-Aulaqi might have been charged with treason....The fact is that Anwar Al-Aulaqi was an active and exceedingly dangerous enemy of the United States, irrespective of his distance, location, and citizenship," she wrote, tying him in particular to the attempted bombing of a Northwest Airlines fight headed to Detroit on Christmas Day in 2009. . . .

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Public Lands and the Federal Government’s Compact-Based “Duty to Dispose”

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by Publius
Posted April 07, 2014, 1:16 PM

Donald J. Kochan, professor at Chapman University School of Law, published an article in the BYU Law Review titled "Public Lands and the Federal Government's Compact-Based 'Duty to Dispose': A Case Study of Utah's H.B. 148 — The Transfer of Public Lands Act." It is a development of his Federalist Society white paper on the subject [PDF here]. According to the article's abstract:

Recent legislation passed in March 2012 in the State of Utah — the “Transfer of Public Lands Act and Related Study,” (“TPLA”) also commonly referred to as House Bill 148 (“H.B. 148”) — has demanded that the federal government, by December 31, 2014, “extinguish title” to certain public lands that the federal government currently holds (totaling an estimated more than 20 million acres). It also calls for the transfer of such acreage to the State and establishes procedures for the development of a management regime for this increased state portfolio of land holdings resulting from the transfer. The State of Utah claims that the federal government made promises to it (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State.

Utah’s TPLA presents fascinating issues for the areas of public lands, natural resources, federalism, contracts, and constitutional law. It represents a new chapter in the long book of wrangling between states in the West and the federal government over natural resources and public lands ownership, control, and management. The impact is potentially considerable — thirty-one percent of our nation’s lands are owned by the federal government, and 63.9% of the lands in Utah are owned by the federal government.

This Article provides an overview of the legal arguments on both sides of the TPLA debate. In the end, there is a credible case that rules of construction support an interpretation of the Utah Enabling Act that includes some form of a duty to dispose on the part of the federal government. At a minimum, the legal arguments in favor of the TPLA are serious and, if taken seriously, the TPLA presents an opportunity for further clarification of public lands law and the relationship between the states and the federal government regarding those lands. Moreover, other states are exploring similar avenues to assert their claims vis-à-vis the federal government and are in various stages of developing land transfer strategies that will model or learn from the TPLA. That fact further underscores the need for a renewed serious and informed legal discussion on the issues related to disposal obligations of the federal government. This Article takes a first step into that discussion.

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Floyd Abrams Finds McCutcheon Dissent “Disturbing”

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by Publius
Posted April 07, 2014, 9:40 AM

Floyd Abrams, partner at Cahill Gordon & Reindel LLP, comments at SCOTUSblog:

The McCutcheon v. FEC ruling and the identity of the Justices aligned in it on one side or the other should surely have come as no surprise to Court-watchers.  The case is both an easier one than Citizens United and a far less far-reaching one, both in theory and potential political impact.  There was never any reason to expect those members of the Court who joined the Citizens United majority to vote to sustain a provision of law that, at least on some readings, would have trouble passing a reasonable basis test – i.e., if a $2600 contribution by Shaun McCutcheon to sixteen candidates did not corrupt them, why would similar contributions corrupt the twelve other candidates he wished to support? 

What seems to me most surprising and disturbing about the ruling, though, is not to be found in the predictably much assaulted (and I believe sound) majority opinion but in the dissent.  For there, for the first time, Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan join with Justice Stephen Breyer’s minimization of long-recognized  and well-established First Amendment interests by maintaining that, after all, the side seeking to overcome those interests had at least as strong a First Amendment argument on its side.  In McCutcheon, that argument is based on the notion that the avoidance of whatever is defined as “corruption” strengthens the First Amendment.  With the First Amendment thus placed in some sort of supposed equipoise (since “First Amendment interests lie on both sides of the legal equation”) the case becomes an easy one.  It is, in my view, but in a different direction.

In his book Active Liberty: Interpreting Our Democratic Constitution (2006), Justice Breyer offered an overview of the First Amendment which posited that its primary purpose was not to protect speech from government control or limitation but “to encourage the exchange of information and ideas necessary for citizens themselves to shape that ‘public opinion which is the final source of government in a democratic state.’”  A statute limiting independent spending on political speech is thus defensible against a First Amendment challenge and indeed serves First Amendment interests since it “facilitate[s] a conversation among ordinary citizens that will encourage their informed participation.”   In his dissenting opinion in McCutcheon, Breyer takes that a step further, concluding that “the First Amendment advances not only the individual’s right to engage in political speech, but also the public’s interest in preserving a democratic order in which collective speech matters.”  (emphasis in original).  The First Amendment, he maintains, must be understood as promoting “a government where the laws reflect the very thoughts, views, ideas and sentiments, the expression of which the First Amendment protects.”

These statements are not totally at odds with the First Amendment. But they are deeply disquieting.  It is true that by restricting the ability of the government to control, let alone limit, speech, the First Amendment surely assists in preserving “democratic order.”  But giving the government, in the name of advancing democracy, significant power to limit the amount of speech about who to vote for risks much that the First Amendment was adopted to protect.  And what, after all, does Justice Breyer mean by “collective speech?” In his opinion, Chief Justice John Roberts persuasively objects to relying on the “generalized conception of the public good” set forth in the Breyer dissent, taking issue with the very notion of “collective speech” as being contrary to “the whole point of the First Amendment” of not permitting the will of the majority to carry the day by preventing speech of which it disapproved. . . .

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At Yale, Scalia Talks About Christianity, Law, and Life on the Supreme Court

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by Publius
Posted April 07, 2014, 8:12 AM

The New Haven Register reports:

In a philosophical give-and-take at Yale University Wednesday, U.S. Supreme Court Justice Antonin Scalia reflected on religion, law and his reputation as the high court’s most vocal member.

“It is not true I am the most vocal,” Scalia, 78, told a crowd of roughly 300 people at Saint Thomas More Chapel, Yale’s Catholic cultural center.

However, he did take credit for setting a tone that allows for more questions during open court. “I make no apologies for changing the court in that regard,” he said.

On a day when the court made a landmark ruling on campaign finance limits, Scalia discussed the interplay between religion and law with Judge Guido Calabresi, a former Yale Law School dean. The audience included Bishop Peter A. Rosazza.

Scalia also will be in New Haven on Thursday, speaking at the law school.

By turns insightful, sarcastic, charming and straightforward, Scalia began with a historical look at how society’s sophisticates view traditional Christians.

From ancient Athens to today’s Washington, D.C., beltway, Scalia said, “wise” people consider it silly to believe in miracles, vows of chastity or the virgin birth.

“My point is not that reason and intellect must be set aside where religion is concerned,” he said. “It is not irrational, however, to accept the testament of eyewitnesses that the Resurrection occurred.”

Calabresi countered with remarks that he subtitled, “God Gave Us Brains To Avoid Martyrdom.” He said the job of Christians is to own their faith without defensiveness and to support it in rational terms.

The job of a Christian judge, Calabresi said, is to find a legal philosophy that allows you to follow your conscience.

Scalia interpreted that another way.

“I thought he said you have to bend the law to conform to your conscience,” Scalia said, to hearty laughter from the crowd. “I’m not there to make the law come out the way I want to.”

Later in the event, Scalia shared his thoughts on various aspects of the court.

He said the most disappointing moment of his early years on the court came during a conversation with the late Chief Justice William Rehnquist. Scalia said Rehnquist advised him, “Just make sure the result is right. To tell you the truth, we’re not going to follow the same reasoning in the next case, anyway.”

Yet for Scalia, the reasoning behind a ruling is the most important thing. “It was depressing,” he said. “But he may have been right.”

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Gallup Poll: Illinois Last When it Comes to Trusting State Government

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by Publius
Posted April 04, 2014, 6:22 PM

The Chicago Tribune reports:

By a wide margin, Illinois residents have less trust in their state government than residents in any state in the nation, according to results of a Gallup politics poll released Friday.

Just 28 percent of residents polled said they trust Illinois state government “a great deal” or “a fair amount”, according to Gallup. That put Illinois 50th in terms of trusting their state government, with the next closest Rhode Island and Maine with 40 percent.

Illinois’ “exceptionally low trust level” and dead-last spot isn’t surprising, Gallup said, considering two of its last three governors – Rod Blagojevich and George Ryan – were sent to prison for crimes committed while in office.

“Additionally, the Illinois economy remains shaky and the state government continues to struggle to balance the budget, even after a significant income tax increase a few years ago,” the polling agency said.

The highest trust in state government belonged to residents in North Dakota, with 77 percent, followed closely by Wyoming, Utah, South Dakota and Nebraska.

Gallup said its results are based on a 50-state poll conducted from June to December of last year, which included interviews with a random sample of 600 residents in each state.

In addition to Illinois, Rhode Island and Maine, less than 50 percent of residents expressed trust in state government in, Pennsylvania, Louisiana, California and Maryland.

“Many of these less-trusting states have had poor economies in recent years,” Gallup said. “Louisiana, like Illinois, has a history of corruption among its elected leaders.”

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The Volokh Conspiracy Is Out To Get You—And Everyone in America

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by Publius
Posted April 04, 2014, 1:39 PM

According to Tablet magazine:

Last week, when the Supreme Court heard arguments over whether religiously owned corporations like Hobby Lobby should be exempt from providing contraception coverage to their employees, the government’s reply brief cited dozens of cases and statutes—and one blog with a weird name, The Volokh Conspiracy.

It wasn’t the first time the site made itself heard before the nation’s highest court. In the wake of the passage, in 2010, of the Affordable Care Act—the cornerstone of President Obama’s domestic agenda—libertarian writers for The Volokh Conspiracy were instrumental in building the constitutional challenge to the law’s individual mandate. “When the Affordable Care Act was going through the legislative process, most law professors agreed that the ACA was constitutional,” said South Texas College of Law’s Josh Blackman, who wrote the definitive scholarly account of the challenge.

Then The Volokh Conspiracy entered the fray, and everything changed. “Usually these kinds of legal arguments develop over the course of many years in law reviews, in conferences and symposiums,” Blackman continued, “but this was on warp speed. You had blog posts on the day where you could actually see the arguments shaping before you.” Soon the challenge was being hotly debated among law professors and was adopted by state attorneys general across the United States. What the legal establishment once considered an open-and-shut laugher turned into a 5-4 Supreme Court nail-biter.

It was, perhaps, the first time that a highly technical legal debate on a matter of national policy importance—the sort of discussion usually confined to law reviews, academic panels, and conference rooms at the Justice Department—played out in real time for the consumption of lay readers as well as professionals, and it cemented the site’s role as a public clearinghouse for cutting-edge legal debate. As Paul Clement, the former U.S. solicitor general who represented the 26 states opposing Obamacare, put it, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had The Volokh Conspiracy.”

Founded as a solo operation in April 2002, the site is now one of the Internet’s most-read legal blogs, boasting a diverse readership of scholars and policymakers—as well as Supreme Court Justices—across the ideological spectrum. (Justice Elena Kagan has said she reads it daily.) In January, The Volokh Conspiracy moved to the Washington Post, giving it an even more prominent role in the national conversation—and more power to shape the discourse surrounding issues currently being decided in the courts, from religious freedom to gay marriage.

How did a center-right blog written by libertarian-leaning professors become the most influential in American legal circles? The story begins with its founder and namesake, a Soviet Jewish refugee named Eugene Volokh. . . .

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Breyer’s Dangerous Dissent in the McCutcheon Campaign Finance Case

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by Publius
Posted April 04, 2014, 9:26 AM

David Bernstein, Foundation Professor at George Mason University School of Law, comments at the Volokh Conspiracy:

. . . Justice Breyer’s dissent today . . . revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s ”essential to effective democracy.” 

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure ”public opinion could be channeled into effective governmental action.” As Tim Sandefur points out, “Actually, the framers devised the constitutional structure to prevent public opinion from being channeled into effective government action. One cannot honestly read The Federalist without understanding that the system was designed in order to ensure that public opinion would only be translated into government action when it had been sufficiently challenged, weighed, and considered for its correspondence to principles of justice.”

In any event, Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, ”derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

The danger of this argument is that analogous reasoning could be used to censor major media corporations such as the New York Times, Hollywood, and so on . . . .

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Former Attorney General Alberto Gonzales Named Belmont Law School Dean

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by Publius
Posted April 03, 2014, 12:40 PM

The Tennessean reports:

Alberto Gonzales, former U.S. attorney general in President George W. Bush’s administration, has been named dean of Belmont University’s nearly 3-year-old law school.

Gonzales, U.S. attorney general from 2005 to 2007, joined Belmont in 2012 as a chairman of the new school shortly after it opened in fall 2011. He has taught constitutional law courses while also serving as counsel at Nashville’s Waller law firm.

His appointment as dean, effective June 1, comes after founding dean Jeff Kinsler opted to return to a full-time faculty position.

“I look forward to being a part of this,” Gonzales said during his speech Wednesday, noting the enthusiastic faculty and staff at the college, “but most of all I look forward to continuing to interact with the students as we all work together collectively to make Belmont the greatest law school that it can be.”

The law school’s first graduating class will be celebrated in May. Attending a newly established college “was a bit of a gamble,” said law student Alex Mills, who will graduate next month, “but we could just tell it would be a success.”

Gonzales has taught courses in constitutional law, separation of powers, national security law and First Amendment law. As dean, Gonzales will serve as the chief academic and executive officer for Belmont’s College of Law and will be responsible for the program’s leadership, financial management, personnel administration, and planning and development for the college.

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Shaun McCutcheon: I Fought the Law and I Won: Why the SCOTUS Ruling Is a Victory for Free Speech

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by Publius
Posted April 03, 2014, 10:31 AM

Shaun McCutcheon, the plaintiff in the McCutcheon vs. FEC campaign finance case, comments for Politico:

I have been repairing things since I was a kid. When I was in high school, I fixed many motorcycles, electronics and cars. My next-door neighbor was a man named Honest John. He was a used-car dealer in downtown Birmingham. I was low-cost help for him. And I got the work done. Since then, I have been getting things done in workshops and production operations all over the United States and around the world. Now I’m an electrical engineer, and I run a successful small business near Birmingham, Alabama.

That engineer’s mindset has guided my political activity, including the decision to take my First Amendment challenge to the Supreme Court. It all began during the 2011-12 election cycle, when I was donating money to various candidates for federal office and to some political party committees. To my surprise, one of the party committees informed me that I was nearing the limit of how much I could give to them or to anybody else.

I had never heard of such limits. Somebody—I don’t remember who—showed me a chart on the federal rules of campaign giving that was so complicated I could barely make any sense of it. On the advice of their lawyers, most people simply comply with these rules and don’t raise questions. As an American engineer in the land of the free, I wanted to understand just exactly why my First Amendment rights were being limited.

I decided I needed to fix it. So I filed a lawsuit, which was argued before the United States Supreme Court on Oct. 8, 2013. And on Wednesday, the court agreed with me: Federal campaign contribution aggregate limits were indeed restricting my constitutional right to free speech. “There is no right in our democracy more basic,” Chief Justice John Roberts wrote, “than the right to participate in electing our political leaders.” . . .

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Another Campaign Restriction Falls Because First Amendment Strongly Protects Political Speech

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by Publius
Posted April 02, 2014, 5:45 PM

Ilya Shapiro, senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, comments for Cato at Liberty:

Despite the 5-4 split among the justices, McCutcheon is an easy case if you apply well-settled law: Restrictions on the total amount an individual may donate to candidates and party committees—as opposed to how much he can donate to any one candidate—violate the First Amendment because they do not prevent quid pro quo corruption or the appearance thereof. That corruption-prevention rationale is the only government interest that the Supreme Court accepts as a valid one for restricting political-campaign activities. As Chief Justice Roberts wrote for the majority (and it is a majority because Justice Thomas concurs in the judgment): “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

With Justice Thomas, however, I would go beyond that simple point and overrule Buckley v. Valeo (1976) altogether because “[c]ontributions and expenditures are simply ‘two sides of the same First Amendment coin’” and the Court’s “efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law” (quoting Chief Justice Burger’s partial dissent in Buckley). Buckley rewrote the speech-restrictive post-Watergate campaign-finance law into something no Congress would’ve passed, also inventing legal standards such that one type of political speech has greater First Amendment protection than another. Nearly 20 years later, the Supreme Court rewrote another congressional attempt (McCain-Feingold) to “reform” the rules by which people run for office, shying away from striking down Buckley and producing a convoluted mish-mash opinion that serves nobody’s interest. Enough! The drip-drip of campaign-finance rulings over the last decade has shown, existing campaign-finance law is as unworkable as it is unconstitutional.

As Cato argued in its amicus brief, in a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. The Supreme Court today correctly struck down the biennial campaign contribution limits and gave those who contribute money to candidates and parties as much freedom as those who spend independently to promote campaigns and causes. But it should have gone further.

 

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SCOTUSBlog Analysis of McCutcheon Campaign Finance Decision

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by Publius
Posted April 02, 2014, 1:13 PM

Lyle Denniston comments at SCOTUSblog:

The Supreme Court pressed ahead on Wednesday with the majority’s constitutional view that more money flowing into politics is a good thing — even if much of it comes from rich donors.  By a five-to-four vote, the Court struck down the two-year ceilings that Congress has imposed on donations by individuals to presidential and congressional candidates, parties and some — but not all — political action groups.The main opinion delivered by Chief Justice John G. Roberts, Jr., said confidently that corruption in politics will be kept in check by caps — left intact — on how much each single donation can be.  Removing the ceilings on the total amounts that may given in each election cycle will not undermine those limits, Roberts predicted.

The decision was not as sweeping as the Court’s ruling four years ago, removing all restrictions on what corporations and labor unions can spend of their own money in federal campaigns (Citizens United v. Federal Election Commission), which has led to billions of dollars spent on politics through financing that is supposed to be independent of candidates or parties.  The new ruling leaves that option open if a donor does not want to directly support a candidate or a party committee and stay within the per-donation caps.

Even so, the practical result of the new ruling is almost sure to be that wealthy individuals favoring specific candidates or party positions will be able to spread their money around among more candidates and political groups.

Donors will get into legal trouble, the ruling emphasized, only if they demand a specific favor in policy or legislation in a direct exchange for the money they give.  That is the only kind of corruption that the First Amendment will allow the government to attack, the decision stressed.

The Chief Justice’s opinion said that other recent changes in campaign finance law will work to reduce the risks of abuse, and it offered several other ideas for new limits that it implied might be constitutional. Whether the votes are there in Congress to pass any of those suggestions is problematic.

Although the Roberts opinion spoke only for himself and three other Justices, Justice Clarence Thomas said he agreed with the result, making a majority for eliminating the two-year ceilings.  Thomas said he would have gone even further to free up even more donations in federal campaigns.  He would have overruled a 1976 decision (Buckley v. Valeo) that gives contributions less constitutional protection than spending during campaigns.  He added, though, that the Roberts opinion “continues to chip away” at the 1976 decision’s foundations.

The Roberts opinion was supported in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, and Antonin Scalia.  Justice Stephen G. Breyer wrote for the dissenters, and orally announced the dissenters’ reasoning in a presentation that ran longer than the Chief Justice’s announcement of the ruling.  Breyer’s opinion was joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. . . .

In October 2013, the Federalist Society producted a post-argument SCOTUScast on the case with Derek Muller, Associate Professor of Law at the Pepperdine University School of Law. You can listen to it here.

Eric Holder Says NYC Terror Verdict Vindicates Call for Civilian Trials

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by Publius
Posted April 02, 2014, 10:12 AM

According to the Los Angeles Times:

Atty. Gen. Eric H. Holder Jr., who for five years has advocated trying terrorism suspects in U.S. civilian court only to be slapped down by Congress, took a victory lap in New York on Tuesday, proclaiming that last week's conviction of Sulaiman abu Ghaith in Manhattan federal court proves he was right all along.

"This verdict has proven beyond any doubt that proceedings such as these can safely occur in the city I am proud to call home, as in other locations across our nation," Holder, a native New Yorker, said after meeting with the lawyers who prosecuted Abu Ghaith.

Abu Ghaith, Osama bin Laden's son-in-law and spokesman, was convicted in U.S. District Court of conspiring to kill Americans and faces a possible life sentence.

Holder's first years in office were plagued by controversy over the decision to move Khalid Shaikh Mohammed and his alleged accomplices in the Sept. 11 conspiracy from Guantanamo Bay, Cuba, to face trial in New York federal court.

Republicans pounced on the plan as a threat to security and a huge expense, and soon were joined by New York Democrats. But Holder stubbornly refused to yield until Congress in January 2011 made it illegal to transfer prisoners from Guantanamo to the U.S.

In recent months he has brought up the issue repeatedly, noting that there has been little progress in getting Mohammed to trial before a military commission at Guantanamo. Another in a series of pretrial hearings is scheduled in two weeks.

"If we had been allowed to follow the decision that I made, Khalid Shaikh Mohammed and his confederates would be on death row right now instead of awaiting trial in a military commission," Holder said at the University of Virginia in February. "I was right on that one and I think right on a number of other things that I've been criticized for."

Holder said Tuesday that the Abu Ghaith verdict "has vindicated the government's approach to terrorism-related cases." He sounded a defiant note, saying the Justice Department will continue to rely on the civilian system.

"Abu Ghaith was not the first individual to be convicted in a federal court for his role in terrorist activities, and he will not be the last," Holder said.

Abu Ghaith's civilian trial was possible because he was never in Guantanamo. After his arrest in Jordan, he was flown directly to New York.

Although Holder said he hoped the verdict had put the debate to rest, his chief congressional critics have not changed their positions.

Sen. Lindsey Graham (R-S.C.) said he was pleased by the conviction but worried that opportunities to gather intelligence had been lost by trying him in civilian courts.

"If the Obama administration continues down this road of criminalizing the war against radical Islam, we will continue to lose valuable intelligence and one day will pay a heavy price," Graham said in a statement. "Intelligence is the key to disrupting and stopping future plots against our nation and our allies." . . .

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Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration

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by Publius
Posted April 02, 2014, 9:13 AM

Ralph Rossum, Salvatori Professor of Political Philosophy & American Constitutionalism at Claremont McKenna College, comments at Liberty Fund's Liberty Law Site:

When, on July 1, 1991, President George H. W. Bush nominated Clarence Thomas to serve as Associate Justice of the United States Supreme Court, predicting that he would be “a great Justice,” calling him “the best person for this position,” and denying that Thomas’s race had entered into his nomination, many Americans were skeptical. They doubted Bush’s claims, as they doubted his nominee. Among those doubting Thomas were individuals from the civil rights community, convinced that he would abandon the life-long campaign for racial justice undertaken by Thurgood Marshall, the first black justice and whose seat he was to fill. Other doubters included feminists, convinced that Thomas would vote in favor of overturning Roe v. Wade, and members of the political left, certain that he was a partisan conservative of mediocre abilities whose originalist approach to constitutional interpretation was simply a cloak for his policy preferences. Those doubting Thomas even came from the political Right, especially those worried that his unequivocal commitment to the principles of the Declaration of Independence would make him a judicial activist.

During his confirmation hearing, those doubting Thomas were quick to believe Anita Hill’s unsubstantiated claims that he had sexually harassed her. As a result of their doubts, Thomas was confirmed by a razor-thin margin of fifty-two to forty-eight votes.

Even after his confirmation, his critics continued to doubt him; they doubted his intelligence and independence, dismissing him as Justice Scalia’s “sock puppet,” mindlessly agreeing with and repeating Scalia’s arguments, and labeling him, in racially-charged language, Scalia’s “lawn jockey” and “shoe-shine boy.” They went so far as to doubt his very humanity, with the New York Times branding him “the Court’s Cruelest Justice” during his first year on the bench. Left-wing law professors doubted his legitimacy, attempting to rescind invitations to speak that their law schools had extended to him and, if failing at that, boycotting his visits. One went so far as to argue that any five-to-four Supreme Court decision in which Thomas was in the majority should be regarded as nonbinding.

Thomas is now approaching a quarter of a century of service on the High Bench, during which time he has written over 475 majority, concurring, and dissenting opinions. In Understanding Clarence Thomas: The Jurisprudence of Constitutional Restoration, I undertake a detailed analysis of these opinions as well as of his speeches and law review articles, and provide, thereby, overwhelming evidence that there never was any reason to doubt Clarence Thomas or what President Bush said about him. In them, Thomas has articulated a clear and consistent jurisprudence of constitutional restoration that seeks to restore the original general meaning of the Constitution.

During his nearly quarter of a century on the Supreme Court, Justice Clarence Thomas has pursued an original general meaning approach to constitutional interpretation; he has been unswayed by the claims of precedent – by the gradual build-up of interpretations that, over time, can distort the original meaning of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. As with too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent – focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means – hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood – to the original general meaning of the Constitution.

The two Supreme Court justices who unabashedly identify themselves as originalists are Antonin Scalia and Clarence Thomas. While their approaches have much in common, Scalia has a narrower view of originalism than Thomas – Thomas fundamentally accepts Scalia’s original public meaning approach to constitutional and statutory texts, but then adds to it his original general meaning approach.

Professor Gregory E. Maggs has usefully identified three approaches to originalism. . . .

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