WPC: Coming SCOTUS decision could be big for Eastern Washington

The Washington Policy Center discusses US Supreme Court case Sackett vs EPA on the extend of the EPA’s power to regulate land that gets wet.

The Sackett family has spent the past 15 years in the courts disputing the Environmental Protection Agency’s blocking their right to build a home on land they own near Priest Lake, Idaho.

This past October, the U.S. Supreme Court opened its doors for the public to listen in on oral arguments for the first time in 21/2 years since the original COVID lockdown in March 2020. The first case on the docket was theirs, Sackett v. EPA, the outcome of which will have profound implications for the future of rural communities in Eastern Washington and across the country.

The EPA alleges the Sackett’s residential lot is a federally protected wetland under EPA jurisdiction. Sackett v. EPA asks the Supreme Court to clarify the scope of the EPA’s regulatory authority under the Clean Water Act. The court’s decision should of course be the final say on whether the Sacketts can build their proposed home, but it will also have sweeping implications on whether the EPA can expand the definition of “navigable waters” to include any semi-soggy lowland, ditch or parcel of land across the country.

Many will remember the saga of the Obama administration’s disastrous Waters of the United States – or WOTUS – rule. As a young staffer on Capitol Hill at the time, seared into my memory is how serious the regulatory uncertainty was for the agricultural community under the proposed rule, threatening to turn every ditch, puddle, or creek into a federally protected “navigable waterway.” The drastic expansion of the EPA’s jurisdiction in the rule was characterized as one of the most egregious oversteps by the federal government in history. Fortunately, the courts agreed and blocked its implementation.

Yet predictably the federal government continues to do its best to exert its regulatory might. Even as we await the court’s decision on Sackett, the Biden administration has barreled forward with their own rulemaking – essentially, WOTUS 2.0 – by introducing a new rule on the last business day of 2022 to expand the definition of navigable waters and again threaten rural America’s way of life.

While the Obama WOTUS rule was blocked by the courts, the Biden administration has now sought to codify a serpentine rule that avoids the legal landmines of the original WOTUS.

There was simply no reason for the Biden administration to move forward on this exercise when they knew the court would be issuing a ruling on this very matter. It only serves to cause further uncertainty for the American farmer and rancher.

Unfortunately, it’s not just bad ideas at the federal-level that are rearing their ugly heads to come after our water and threaten our agricultural lands. Legislation similar to the riparian “buffer bill” introduced during the last legislative session in Olympia has been reintroduced this week. The bill (HB 1838) – which would have exponentially cut off productive farmlands across the state while exempting urban areas – faced overwhelming public outcry and eventually did not receive a vote. Yet, it’s back again.

As Washington Policy Center’s new Eastern Washington director, it is my charge to help tell of the impacts of these misguided measures and to ensure the communities east of the Cascades have a voice in Olympia. Why is it that those who decry “big agriculture” and so-called “factory farms” are the same people who do everything they can to put the family farmer out of business?

At the core of Eastern Washington’s economy and identity is agriculture – our region’s farmers feed the country and the world. Our elected leaders in Olympia and Washington, D.C., must recognize that.

I was proud to work on efforts supporting the Sacketts’ case and was humbled to hear the arguments made before the Supreme Court in person this past October. It is my hope the court will finally provide the certainty rural America has long deserved and the victory the Sackett family has waited too long for.

Mises Wire: To Avoid Civil War, Learn to Tolerate Different Laws in Different States

Ryan McMaken at the Mises Institute discusses limits on federal power in relation to the Supreme Court’s Dobbs decision, overturning Roe v Wade. To Avoid Civil War, Learn to Tolerate Different Laws in Different States

Most commentary on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization—which overturns Roe v. Wade—has focused on the decision’s effect on the legality of abortion in various states. That’s an important issue. It may be, however, that the Dobbs decision’s effect on political decentralization in the United States is a far bigger deal.

After all, the ruling isn’t so much about abortion as it is about the federal government’s role in abortion. State governments are free to make abortion 100 percent legal within their own borders. Some states have already done so. The court’s ruling limits only the federal government’s prerogatives over abortion law, and this has the potential to lead to many other limitations on federal power as well. In this way, Dobbs is a victory for those seeking to limit federal power. 

The decentralization is all to the good, and there’s nothing novel about it. Historically, state laws in the US have varied broadly on a variety of topics from alcohol consumption to divorce. This was also true of abortion before Roe v. Wade

Moreover, decentralizing abortion policy in this way actually works to defuse national conflict. This is becoming even more important as cultural divides in the United States are clearly accelerating and become more entrenched. Rather than fight with increasing alarm and aggression over who controls the federal government—and thus who imposes the winner’s preferences on everyone else—people in different states will have more choices in choosing whether to live under proabortion or antiabortion regimes. In other words, decentralization forces policymakers to behave as they should in a confederation of states: they must tolerate people doing things differently across state lines.  This will be essential in avoiding disaster, and laissez-faire liberals (i.e., “classical liberals”) have long supported decentralization as a key in avoiding dangerous political conflicts. Ludwig von Mises, for example, supported decentralization because, as he put it, it “is the only feasible and effective way of preventing revolutions and civil … wars.”

The Impulse to Use Federal Power to Force Policy on Everyone

Law has never been uniform across state lines in the United States, although this was not for a lack of trying on the part of the federal government. As the power of the federal government grew throughout the twentieth century, the central government repeatedly sought to make policy uniform and put it under the control of federal courts and regulatory agencies. Prior to Roe v. Wade, abortion was a state and local matter only. Before the drug war, the federal government did not dictate to states what plants they should let their citizens consume. Before the Volstead Act, “dry” states and “wet” states had far different policies on alcohol sales. Some states had lenient divorce laws. Some did not. Some states allowed gambling. Even immigration was once the domain of state government. Although some federal law enforcement agents existed in the nineteenth century, “law and order” was overwhelmingly a state and local matter prior to the rise of agencies like the FBI. 

The cumulative effect of making all these areas the prerogative of federal regulators, agents, and courts has been to convince many Americans that the United States government ought to federalize most areas of daily life. In the modern way of thinking, only less important or trivial matters are to be left up to the state and local governments. For many Americans, they learned to just think that it was abnormal for the state next door to have different gun policies or drug policies than one’s home state. 

Drugs, Alcohol, and Guns

In the past decade, this impulse to intervene in neighboring states has been highlighted by the de factoend of nationwide marijuana prohibition in the United States. Beginning in 2012 with Colorado and Washington State, recreational marijuana use has become essentially legal in nearly two dozen US states. This means a resident of one state can travel to a neighboring state to consume a drug that is illegal in his or her home state. Some state governments have a hard time dealing with this. Politicians in antimarijuana states complained that their citizens had too much access to prohibited substances. Not surprisingly, attorneys general in Nebraska and Oklahoma sued Colorado in federal court in an attempt to force Colorado to reimpose marijuana prohibition on its citizens. Fortunately, these lawsuits—which if successful would have greatly expanded federal power over states—failed. 

Alcohol prohibition grew out of the same desire to force some states’ preferences on all other states. In 1917, only twenty-seven states embraced statewide prohibition. It took a constitutional amendment to impose prohibition on all the rest. 

Moreover, laws governing the purchase and carry of firearms vary broadly from state to state, with “constitutional carry” allowing permitless carry in some states. Some states allow for private gun sales without any background checks. Other states greatly restrict these activities. Naturally, policy makers who oppose the freedom to carry firearms have sought for many decades to impose uniform gun policy nationwide. 

Federal Centralization Run Amok: The Fugitive Slave Acts 

The most notorious case of using the federal government to impose nationwide uniformity is likely the Fugitive Slave Acts (passed in 1793 and 1850). Contrary to the myth that slave owners hated a strong federal government and wanted only local control, slave drivers enthusiastically and repeatedly invoked the federal fugitive slave laws. This was done in order to force Northern governments to cooperate with Southern states in kidnapping runaway slaves and returning them to their “owners.” The Dred Scott decision extended federal protections of slavery even further, and the ruling allowed many slave owners to argue they could even take their slaves into nonslave states and territories, regardless of state and local laws prohibiting slavery.

Many abolitionists refused to acknowledge federal prerogatives and actively opposed federal agents who attempted to enforce federal laws extending slavery beyond the slave states. Some Northern governments explicitly refused to cooperate with the Fugitive Slave Acts. So successful were these efforts to undermine federal law that South Carolina secessionists listed the failure of federal slave laws as a reason for secession in 1860. Slavery advocates were enraged by the idea that their neighbors in other states weren’t being forced to help prop up the slave system. 

After Roe, States Are Quickly Decentralizing American Abortion Law

In all of these cases, the perceived “answer” offered by proponents of legal uniformity was to bring in the federal government to force people in state A to do the bidding of people in state B. Thanks to the overturning of Roe, however, many states are moving in exactly the opposite direction. 

Some states have moved toward prohibiting abortion within their own borders. But proabortion states are also taking some key legal steps toward further decentralizing policy. Policy makers in Massachusetts have moved to protect the state’s citizens from extradition to antiabortion states for abortion-related crimes. The state’s governor also signed an executive order prohibiting the state’s agencies “from assisting another state’s investigation into a person or entity” for abortion-related activities. New York’s governor has signed legislation “that shields [abortion] providers and patients from civil liability” in abortion-related claims. The message here: “Those laws in antiabortion states have no power here.”

Centralization Breeds Conflict

This is the way the system was designed to work. People can choose to live in state A, where abortion is illegal. But should some of those people travel to state B to get an abortion, state B ought to be under no obligation to help state A enforce its laws either inside or outside the state. To demand anything more than this inevitably ends up involving the federal government to impose new obligations on every state. (This strategy of centralizing power should not be confused with trying to directly change laws within those states. It is, of course, a good thing to pressure governments to end unjust laws from within, but such efforts are totally different than calling in the federal government to end abortion by federal fiat.)

As we have seen with abortion, slavery, drugs, and guns, when the feds are involved, every national election ends up being a referendum on whatever issue is deemed so important that the federal government must impose one way of doing things on everyone. This only makes national politics even more nasty.

The end of Roe v. Wade may end up emphasizing the political and cultural divisions in America by forcing many Americans to recognize that the United States is not one place. It is many places. This is not a problem, however, if we relearn that rather than employ federal coercion to “solve” the world’s problems, it’s perhaps better to tolerate others doing things differently in other parts of the world. On the other hand, if Americans can’t shake the idea that the regime must force one way of life on everyone, we can expect national political divides to grow ever more bitter. 

ABC: Supreme Court says several gun cases deserve a new look

The Supreme Court has remanded several cases back to lower courts to decide in light of their recent decision in Bruen. As you’ll see below, two of the cases involve bans on standard-capacity magazines — magazines that hold more than ten rounds — which could impact the Washington state ban that goes into effect today (July 1st, 2022).

ABC reports:

The Supreme Court said Thursday that gun cases involving restrictions in Hawaii, California, New Jersey and Maryland deserve a new look following its major decision in a gun case last week.

In light of last week’s ruling — which said that Americans have a right to carry a gun outside the home — lower courts should take another look at several cases that had been awaiting action by the high court, the court said. Those cases include ones about high-capacity magazines, an assault weapons ban and a state law that limits who can carry a gun outside the home.

The justices, in a 6-3 decision, last week struck down a New York law that required people to show “proper cause,” a specific need to carry a gun, if they wanted to carry a gun in public. Half a dozen states have similar laws that were called into question by the ruling.

In the New York case, the court’s conservative majority gave lower courts new guidance about how to evaluate gun restrictions. The justices rejected a two-step approach appeals courts had previously used as having one step too many. They said courts assessing modern firearms regulations should just ask whether they are “consistent with the Second Amendment’s text and historical understanding.”

Sending other gun cases back to lower courts gives them the opportunity to apply that new guidance.

One of the cases the justices sent back to a lower court Thursday involved a Hawaii statute similar to New York’s. In that case, a panel of 11 judges on the 9th U.S. Circuit Court of Appeals had ruled in 2021 that the right to “keep and bear arms” in the Constitution’s Second Amendment “does not guarantee an unfettered, general right to openly carry arms in public for individual self-defense.” But the high court said in its latest gun case that the Constitution protects “an individual’s right to carry a handgun for self-defense outside the home.” A lower court will now have to revisit the Hawaii ruling.

The high court also told federal appeals courts to revisit cases involving laws in California and New Jersey that limit the number of bullets a gun magazine can hold. A 2018 New Jersey law limits most gun owners to magazines that hold up to 10 rounds of ammunition instead of the 15-round limit in place since 1990. A lower court upheld the law.

California law also bans magazines holding more than 10 bullets. A panel of 11 judges on the 9th U.S. Circuit Court of Appeals ruled 7-4 last year to uphold California’s ban.

The justices also sent back for further review a case from Maryland that challenged the state’s 2013 ban on 45 kinds of assault weapons. The high court had in 2017 turned away a previous challenge to the law.

US Supreme Court Rules in Favor of Bremerton Coach on Prayer

Then-Bremerton assistant football coach Joseph Kennedy, obscured at center in blue, is surrounded by Centralia players after they took a knee with him and prayed after their game against Bremerton, in Bremerton, Wash., on Oct. 16, 2015.Meegan M. Reid / Kitsap Sun via AP file

From The Deseret News, Supreme Court sides with football coach in school prayer case:

The Supreme Court on Monday sided with a praying football coach in a ruling that will add fuel to decades-old conflict over prayer in school. Conservative justices in the 6-3 majority said efforts to stop the coach from praying on the 50-yard line after games violated the free speech and free exercise clauses of the First Amendment.

“The Constitution and the best of our traditions counsel mutual respect and tolerance, not censorship and suppression, for religious and nonreligious views alike,” wrote Justice Neil Gorsuch in the majority opinion.

Justices Sonia Sotomayor, Elena Kagan and Stephen Breyer decried the ruling in their dissent, arguing that the majority was disregarding the school district’s significant concerns over how the coach’s actions affected his players.

“Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents,” they wrote.

The case, Kennedy v. Bremerton, pitted Bremerton High School in Washington state against its former assistant football coach, Joe Kennedy. The two sides didn’t agree on whether the coach’s prayers after games violated previous Supreme Court rulings stating that schools could not coerce students into participating in group prayers or Bible reading.

Lower courts sided with the school, arguing that Kennedy’s prayer represented government speech rather than private speech and could, therefore, be regulated. The Supreme Court on Monday overturned those rulings.

“Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” the majority opinion said.

In a statement released Monday morning, the coach’s law firm, First Liberty Institute, celebrated the ruling and said it would benefit all people of faith.

“This is a tremendous victory for coach Kennedy and religious liberty for all Americans,” said Kelly Shackelford, president, CEO and chief counsel for First Liberty. “Our Constitution protects the right of every American to engage in private religious expression, including praying in public, without fear of getting fired.”

Other faith leaders and religious freedom advocates issued similar statements, praising the court for drawing a distinction between private expressions of faith that take place in public and official expressions of faith that potentially harm students…(story continues)

US Supreme Court Overturns Roe v Wade

Wall Street Journal reports:

A deeply divided Supreme Court eliminated the constitutional right to an abortion, overruling the 1973 Roe v. Wade decision and leaving the question of abortion’s legality to the states.

The court’s decision in Dobbs v. Jackson Women’s Health Organization upheld a law from Mississippi that bans abortion after 15 weeks of pregnancy, roughly two months earlier than what has been allowed under Supreme Court precedent dating back to Roe.

In siding with Mississippi, the court’s conservative majority said the Roe decision was egregiously wrong in recognizing a constitutional right to an abortion, an error the court perpetuated in the decades since.

Even before the ruling, the DHS was warning of specific threats again pro-life organizations. ZeroHedge reports:

An internal document obtained by Newsweek outlines intelligence shared by the Department of Homeland Security with the Catholic Church of a planned “Night of Rage,” targeting churches and pregnancy centers over their opposition to abortion rights. The document sheds light on how law enforcement and the church are bracing for backlash after a leaked opinion showed the Supreme Court preparing to rescind federal abortion rights.

Two days ago, we detailed an initiative by the pro-abortion group “Jane’s Revenge” to widely distribute flyers in the D.C. are after recently declaring “open season” on pro-life groups and crisis pregnancy centers.

It appears there’s similar “planning” across various cities and states, particularly California, according to Newsweek, which details more from the DHS memo:

Labeled an “urgent memo,” the document is from the Diocese of Stockton, California, and is directed to all clergy, as well as parish and pastoral staff. The memo states that Jesse Rangel, a DHS agent, told the diocese that federal law enforcement has discovered a manifesto from an “extremist group” calling for attacks on churches beginning at 8 p.m. the evening the court issues its opinion.

The memo instructs churches which have active services during the eve and days following the Supreme Court decision to “Make sure you have ushers and or security available during your services and perhaps identify who among your volunteers and parishioners are law enforcement.”

Some national pro-life organizations have reported this week that they have been contacted by federal government officials, warning them to take steps amid threats of “extreme violence”

US Supreme Court Upholds Right to Carry Outside the Home

In a 6-3 ruling, the US Supreme Court holds that the Second and Fourteenth Amendments safeguard Americans’ right to carry a handgun for self-defense outside the home.

From Reuters, US Supreme Court expands gun rights, strikes down New York law

The U.S. Supreme Court on Thursday declared for the first time that the U.S. Constitution protects an individual’s right to carry a handgun in public for self-defense, handing a landmark victory to gun rights advocates in a nation deeply divided over how to address firearms violence.

The 6-3 ruling, with the court’s conservative justices in the majority and liberal justices in dissent, struck down New York state’s limits on carrying concealed handguns outside the home. The court found that the law, enacted in 1913, violated a person’s right to “keep and bear arms” under the U.S. Constitution’s Second Amendment.

The ruling, authored by Justice Clarence Thomas, declared that the Constitution protects “an individual’s right to carry a handgun for self-defense outside the home.”

Democrat New York Governor Kathy Hochul, in an act of typically statist hysteria, that it is “absolutely shocking” that the court would take away states’ “right to reasonable restrictions”. The statement shows an astonishing lack of understanding of Constitutional concepts. Only individuals are acknowledged to have rights in the Constitution whereas states have powers.

Meanwhile President Biden claims the ruling “contradicts both common sense and the Constitution”.

Zero Hedge: After Questioning The Constitution’s Absolutism, Biden Creates Commission To Study Supreme ‘Court-Packing’

Zero Hedge writes After Questioning The Constitution’s Absolutism, Biden Creates Commission To Study Supreme ‘Court-Packing’

Having refused to answer the question of whether a Biden administration would expand the Supreme Court (so-called ‘court-packing’) in mid-October, “we, the people” are perhaps closer to knowing the answer as to what happens next to the nation.

As a reminder, when presidential candidate Joe Biden was asked by a reporter “will you stack the courts?” – he replied that voters “don’t deserve” to know his stance until after the election

But now, as The New York Times reports, The White House is taking action after progressives pushed to add seats to the court to balance the conservative stamp put on it by President Trump.

“There’s growing recognition that the Supreme Court poses a danger to the health and well-being of the nation and even to democracy itself,” said Aaron Belkin, director of the group Take Back the Court.

“A White House judicial reform commission has a historic opportunity to explain the gravity of the threat and to help contain it by urging Congress to add seats, which is the only way to restore balance to the court.”

President Biden on Friday will order a 180-day study of adding seats to the Supreme Court, making good on a campaign-year promise to establish a bipartisan commission to examine the potentially explosive subjects of expanding the court or setting term limits for justices, White House officials said.

In his executive order on Friday, the president will create a 36-member commission charged with examining the history of the court, past changes to the process of nominating justices, and the potential consequences to altering the size of the nation’s highest court.

The panel will be led by Bob Bauer, who served as White House counsel for former President Barack Obama, and Cristina Rodriguez, a Yale Law School professor who served as deputy assistant attorney general in the Office of Legal Counsel under Mr. Obama.

The issue of whether to alter the size of the court, which has been set at nine members since just after the Civil War, is highly charged, particularly at a moment when Congress is almost evenly divided between the two parties. An attempt by Mr. Biden to increase the number of justices would require approval of Congress and would be met by fierce opposition.

The New York Times admits that activists who say a larger court would give Mr. Biden the chance to appoint a number of liberal justices may be disappointed by his commission. Additionally, Justice Breyer, 82, is the oldest member of the court and the senior member of its three-justice liberal wing, warned this week that efforts to expand the court for political reasons could undermine the trust that the public has in the court and the decisions that it makes on important issues.

“I hope and expect that the court will retain its authority,” Justice Breyer said.

“But that authority, like the rule of law, depends on trust, a trust that the court is guided by legal principle, not politics. Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust.”

As a reminder, this comes after President Biden said yesterday that “no amendment to the Constitution is absolute” when discussing his plans for gun control.

But, in theory, we already know Joe’s “opinion” on packing the courts – he thinks it’s a “bonehead idea.”

“But it was a bonehead idea. It was a terrible, terrible mistake to make, and it put in question, for an entire decade, the independence of the most significant body—including the Congress in my view—the most significant body in this country, the Supreme Court of the United States of America.”

You cannot make this up! Have we reached peak-gaslighting yet?

Forbes: Biden Administration Urges Supreme Court To Let Cops Enter Homes And Seize Guns Without A Warrant

From Forbes, Biden Administration Urges Supreme Court To Let Cops Enter Homes And Seize Guns Without A Warrant

The U.S. Supreme Court on Wednesday will hear oral argument in Caniglia v. Strom, a case that could have sweeping consequences for policing, due process, and mental health, with the Biden Administration and attorneys general from nine states urging the High Court to uphold warrantless gun confiscation. But what would ultimately become a major Fourth Amendment case began with an elderly couple’s spat over a coffee mug. 

Capitol Breach
People view the Supreme Court building from behind security fencing on Capitol Hill in Washington, … [+] ASSOCIATED PRESS

In August 2015, 68-year-old Edward Caniglia joked to Kim, his wife of 22 years, that he didn’t use a certain coffee mug after his brother-in-law had used it because he “might catch a case of dishonesty.” That quip quickly spiraled into an hour-long argument. Growing exhausted from the bickering, Edward stormed into his bedroom, grabbed an unloaded handgun, and put it on the kitchen table in front of his wife. With a flair for the dramatic, he then asked: “Why don’t you just shoot me and get me out of my misery?”

Perhaps unsurprisingly, the tactic backfired and the two continued to argue. Eventually, Edward took a drive to cool off. But when he returned, their argument flared up once again. This time, Kim decided to leave the house and spend the night at a motel. The next day, Kim phoned home. No answer.

Worried, she called the police in Cranston, Rhode Island and asked them to perform a “well check” on her husband and to escort her home. When they arrived, officers spoke with Edward on the back deck. According to an incident report, he “seemed normal,” “was calm for the most part,” and even said “he would never commit suicide.” 

However, none of the officers had asked Edward any questions about the factors relating to his risk of suicide, risk of violence, or prior misuse of firearms. (Edward had no criminal record and no history of violence or self-harm.) In fact, one of the officers later admitted he “did not consult any specific psychological or psychiatric criteria” or medical professionals for his decisions that day.

Still, police were convinced that Edward could hurt himself and insisted he head to a local hospital for a psychiatric evaluation. After refusing and insisting that his mental health wasn’t their business, Edward agreed only after police (falsely) promised they wouldn’t seize his guns while he was gone. 

Compounding the dishonesty, police then told Kim that Edward had consented to the confiscation. Believing the seizures were approved by her husband, Kim led the officers to the two handguns the couple owned, which were promptly seized. Even though Edward was immediately discharged from the hospital, police only returned the firearms after he filed a civil rights lawsuit against them.

Critically, when police seized the guns, they didn’t claim it was an emergency or to prevent imminent danger. Instead, the officers argued their actions were a form of “community caretaking,” a narrow exception to the Fourth Amendment’s warrant requirement.

Supreme Court
UNITED STATES – JANUARY 7: The U.S. Supreme Court is seen on Thursday, January 7, 2021. (Photo By … [+] CQ-Roll Call, Inc via Getty Images

First created by the Supreme Court nearly 50 years ago, the community caretaking exception was designed for cases involving impounded cars and highway safety, on the grounds that police are often called to car accidents to remove nuisances like inoperable vehicles on public roads. 

Both a district and appellate court upheld the seizures as “reasonable” under the community caretaking exception. In deciding Caniglia’s case, the First Circuit U.S. Court of Appeals acknowledged that “the doctrine’s reach outside the motor vehicle context is ill-defined.” Nevertheless, the court decided to extend that doctrine to cover private homes, ruling that the officers “did not exceed the proper province of their community caretaking responsibilities.”

Siding with law enforcement, the First Circuit noted that a police officer “must act as a master of all emergencies, who is ‘expected to…provide an infinite variety of services to preserve and protect community safety.’” By letting police operate without a warrant, the community caretaking exception is “designed to give police elbow room to take appropriate action,” the court added.

In their opening brief for the Supreme Court, attorneys for Caniglia warned that “extending the community caretaking exception to homes would be anathema to the Fourth Amendment” because it “would grant police a blank check to intrude upon the home.”

That fear is not unwarranted. In jurisdictions that have extended the community caretaking exception to homes, “everything from loud music to leaky pipes have been used to justify warrantless invasion of the home,” a joint amicus brief by the ACLU, the Cato Institute, and the American Conservative Union revealed.

This expansion could also have perverse effects and disincentivize people from calling for help. As that brief noted, “When every interaction with police or request for help can become an invitation for police to invade the home, the willingness of individuals to seek assistance when it is most needed will suffer.”

But in its first amicus brief before the High Court, the Biden Administration glossed over these concerns and called on the justices to uphold the First Circuit’s ruling. Noting that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’” the Justice Department argued that warrants should not be “presumptively required when a government official’s action is objectively grounded in a non-investigatory public interest, such as health or safety.”

“The ultimate question in this case is therefore not whether the respondent officers’ actions fit within some narrow warrant exception,” their brief stated, “but instead whether those actions were reasonable,” actions the Justice Department felt were “justified” in Caniglia’s case.

As a fail-safe, the Justice Department also urged the Supreme Court to uphold the lower court ruling on qualified immunity grounds, arguing that the officers’ “actions did not violate any clearly established law so as to render the officers individually liable in a damages action.”

But the Biden Administration, along with the courts that have extended the community caretaking exception, overlook a key component of the Fourth Amendment: the Security Clause. After all, the Fourth Amendment opens with the phrase, “the right of the people to be secure.”

In an amicus brief, the Institute for Justice noted that “to the Founding generation, ‘secure’ did not simply mean the right to be ‘spared’ an unreasonable search or seizure” but also involved “harms attributable to the potential for unreasonable searches and seizures.” Expanding the community caretaking exception to “allow warrantless entries into peoples’ homes on a whim,” argued the IJ brief, “invokes the arbitrary, looming threat of general writs that so incited the Framers” and would undermine “the right of the people to be secure” in their homes.

The IJ brief further argued that extending the “community caretaking” exception to the home would “flatly contradict” the Supreme Court’s prior rulings, which “has only discussed community caretaking in the context of vehicle searches and seizures.” In those cases, “the animating purpose for the exception [was] to allow officers to remove damaged or abandoned vehicles that pose a risk to public safety.” By contrast, the IJ amicus asserted,  “that justification is entirely absent” when it comes to homes.

“The Fourth Amendment protects our right to be secure in our property, which means the right to be free from fear that the police will enter your house without warning or authorization,” said Institute for Justice Attorney Joshua Windham. “A rule that allows police to burst into your home without a warrant whenever they feel they are acting as ‘community caretakers’ is a threat to everyone’s security.”

Cato Institute: Supreme Court Doesn’t Need Fixing, Everything Else Does

In Supreme Court Doesn’t Need Fixing, Everything Else Does the Cato Institute gives their opinion on current issues.

The Supreme Court has been in a political crosshairs recently, and various reforms have been proposed to “fix” the court. But the court, especially in recent months, has proven it does not need to be fixed. What should be fixed is our continued focus on addressing our problems in Washington, D.C., rather than locally.

True federalism is one of the only ways we can begin to heal our fractured nation, and the Supreme Court can help with that provided we don’t pass reforms that break what isn’t broken.

President Joe Biden has proposed a commission that will look at various reforms to the court. While many significant reforms would require a constitutional amendment to pass — something that seems unlikely given our closely divided country — there are other reforms that could receive attention. Court packing, which can be done via simple legislation, has received the most attention, with Democrats threatening to increase the number of justices on the court to counteract the conservative majority.

Court packing is an unquestionably horrible idea that would permanently damage the court in a way that might be unfixable. Our independent judiciary is essential to our democracy, and the Constitution has ably protected our judges from political control by establishing lifetime tenure for good behavior and preventing judges’ pay from being altered. Once confirmed, a judge has no reason to supplicate himself or herself to the president that appointed them or to any other political actor.

But court packing would irrevocably politicize the court and force justices to think not just about the law but also about the political reaction to their decisions. And, of course, court packing now may benefit Democrats, but it in no way is guaranteed to always do so. Republicans would pack the court in response when given the chance, leading to an arms race with the only outcome being the destruction of the court as an effective institution.

Our independent judiciary has proven to be one of the most effective parts of our Constitution, and that was put on display over the last two months. A Supreme Court with three Trump appointees denied the administration’s attempt to have the court intervene in the election. On the 3rd Circuit, Judge Stephanos Bibas, another Trump appointee, wrote the opinion in another case denying an election challenge.

Others have called for judicial term limits, the most popular proposal being 18‐​year terms staggered so a nomination comes up every two years. This would require amending the Constitution, and while it’s not nearly as bad as court packing, it’s unlikely to do much to better the image of the court. Eighteen years is a long time, and justices will still be perceived by many as applying the partisan biases of the president who appointed them. The stakes would remain high for any nominee, whether the vacancy is the product of term limits or not. And if a Republican Senate wishes to block the nominee of a Democratic president and leave the seat open, there’s really nothing to stop them.

True, term limits could make each open seat seem a little less important given that the post‐​1970 average tenure for a justice is 25 years, but it is hard to imagine term limits returning the court to an “era of good feelings.” It’s better to ask how we got to the era of bad feelings in the first place.

In a country of 50 diverse states and 330 million people, Americans have increasingly looked to Washington to solve their problems rather than state and local governments. While there are some things the federal government should have control over, questions concerning health care, education and other basic values should be given to local and state control as much as possible. California can choose its path and Alabama can do likewise.

If Congress isn’t passing massive laws of dubious constitutionality, such as the Affordable Care Act, it’s mostly doing nothing. Over the past decade, Presidents Donald Trump and Barack Obama increasingly tried to use executive power to get around Congress’s recalcitrance. That trend will continue.

The Supreme Court is too often called in to answer questions like whether the entire ACA is unconstitutional and whether a president’s massive executive order is tantamount to them passing laws by themselves. Putting the court in those situations inevitably politicizes its decisions beyond the framers’ intentions. Rather than reforming the Supreme Court, we should look to how to reform the other branches.

If it ain’t broke, don’t fix it.

Epoch Times: Justice Clarence Thomas Dissents From Supreme Court on Election Case

The Epoch Times reports on the Supreme Court’s decision not to review election results in Justice Clarence Thomas Dissents From Supreme Court on Election Case: ‘We Need to Make It Clear’

Supreme Court Justice Clarence Thomas issued a dissenting opinion regarding the high court’s decision not to take up a case challenging the Pennsylvania Nov. 3 election results.

The court on Monday announced it won’t take up lawsuits challenging a Pennsylvania state court decision that relaxed ballot-integrity measures, including a move to extend the ballot-receipt deadline during the November election by three days due to the CCP (Chinese Communist Party) virus. Former President Donald Trump and Pennsylvania’s GOP urged the court to take up a review of the Pennsylvania Supreme Court ruling.

“This is not a prescription for confidence,” Thomas wrote on Monday, adding that “changing the rules in the middle of the game is bad enough.” Thomas, considered by many to be the most conservative justice, said the court should have granted a review.

“That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” Thomas wrote (pdf). “These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

Other than Thomas, Justices Samuel Alito and Neil Gorsuch also dissented.

“If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic,” Thomas, an appointee of former President George H.W. Bush, also wrote.

Thomas also appeared to make a reference to allegations of fraud and irregularities during the Nov. 3 election.

“We are fortunate that many of the cases we have seen alleged only improper rule changes, not fraud,” Thomas wrote. “But that observation provides only small comfort. An election free from strong evidence of systemic fraud is not alone sufficient for election confidence. Also important is the assurance that fraud will not go undetected.”

The Supreme Court on Monday also declined to review a bid by Rep. Mike Kelly (R-Pa.) and others who asked the court to strike down a policy that expanded mail-in ballots.

A lawyer for Kelly, Greg Teufel, told the Pittsburgh Post-Gazette last week that “it’s important the court should take an interest in whether Pennsylvania’s election laws are administered constitutionally or not, and in accordance with the Pennsylvania constitution and with the federal constitution.” Teufel noted that before the court’s decision on Monday, there was a slim chance of the justices taking it up.

Trump still has a request on the Supreme Court docket regarding his challenge to changes that the Wisconsin Election Commission ordered last year.

Breitbart: Texas Sues Georgia, Michigan, Pennsylvania, and Wisconsin at Supreme Court over Election Rules

From Breitbart, Texas Sues Georgia, Michigan, Pennsylvania, and Wisconsin at Supreme Court over Election Rules. Texas argues that the defendant states “usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes. They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity.”

The State of Texas filed a lawsuit directly with the U.S. Supreme Court shortly before midnight on Monday challenging the election procedures in Georgia, Michigan, Pennsylvania, and Wisconsin on the grounds that they violate the Constitution.

Texas argues that these states violated the Electors Clause of the Constitution because they made changes to voting rules and procedures through the courts or through executive actions, but not through the state legislatures. Additionally, Texas argues that there were differences in voting rules and procedures in different counties within the states, violating the Constitution’s Equal Protection Clause. Finally, Texas argues that there were “voting irregularities” in these states as a result of the above.

Texas is asking the Supreme Court to order the states to allow their legislatures to appoint their electors. The lawsuit says:

Certain officials in the Defendant States presented the pandemic as the justification for ignoring state laws regarding absentee and mail-in voting. The Defendant States flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls as to how they are lawfully received, evaluated, and counted. Whether well intentioned or not, these unconstitutional acts had the same uniform effect—they made the 2020 election less secure in the Defendant States. Those changes are inconsistent with relevant state laws and were made by non-legislative entities, without any consent by the state legislatures. The acts of these officials thus directly violated the Constitution.

This case presents a question of law: Did the Defendant States violate the Electors Clause by taking non-legislative actions to change the election rules that would govern the appointment of presidential electors? These non-legislative changes to the Defendant States’ election laws facilitated the casting and counting of ballots in violation of state law, which, in turn, violated the Electors Clause of Article II, Section 1, Clause 2 of the U.S. Constitution. By these unlawful acts, the Defendant States have not only tainted the integrity of their own citizens’ vote, but their actions have also debased the votes of citizens in Plaintiff State and other States that remained loyal to the Constitution.

Texas approached the Supreme Court directly because Article III provides that it is the court of first impression on subjects where it has original jurisdiction, such as disputes between two or more states…

Link to motion at Scribd

 

WA Policy Center: WA State Supreme Court Rules Dairy Overtime Exemption Is Unconstitutional

From the Washington Policy Center, Dairy workers could face layoffs after State Supreme Court ruling on overtime pay – court petitioned for reconsideration.

The Washington State Supreme Court ruled the overtime exemption for dairy workers was unconstitutional Nov. 5. Since then, it has been a scramble for dairy farmers and their employees to figure out what to do in the aftermath of a decision that could cost dairy farms up to $120 million for following what was the law at the time.

As previously discussed, the negative effects of this court decision will be felt most sharply by dairy workers themselves as their employers grapple with the potential costs of overtime pay moving forward, including layoffs and a reduction of hours.

The intervenors in the case, the Washington State Dairy Federation and the Washington Farm Bureau, have indicated they are petitioning the court for a reconsideration of their 5-4 ruling. The reconsideration puts the judgment on hold until that request is settled by the court.

However, dairy farmers are being advised to begin paying their employees overtime pay immediately.

Dairy farmers have been in an economic downturn for at least five years. This year was supposed to be a bright spot in an otherwise bleak market. However, with the onset of COVID restrictions and restaurant and school closures, milk prices have remained poor.

Now, dairy farmers must weigh one of three options: restrict all shifts to 40 hours or less, let some of their employees go, or cut the pay of their employees to offset the cost of paying time-and-a-half when their schedules eclipse 40 hours a week.

Dairy farmers have been advised by agriculture groups the fairest approach is to allow their employees to work their full schedule – approximately 55 hours a week on average – at an adjusted base rate. By maintaining the full work schedule, adjusting base hourly wages down (but not below the state minimum wage), and paying overtime at time-and-a-half, dairy employees will end up making slightly more money over the long-term.

The larger question mark for both dairy farmers, and the larger agricultural community, is the potential for retroactive compensation for dairy employees. Retroactive compensation opens dairy farmers up to be required to issue backpay to their employees for up to three years.

The key point of the retroactive compensation question is that it would punish dairy farmers for following the state’s constitution. The new figures for what retroactive compensation would look like in dollars is approximately $120 million, if assessed for three years, according to the Washington Dairy Federation. You can hear more from the Washington Dairy Federation here.

The bottom line is dairy workers and dairy farmers are put at risk by this lawsuit. Dairy farmers are being asked to make late-in-the-year budget shifts to cover the cost of overtime pay and, as a result, some dairy employees may find themselves looking for work as the holidays begin.

Rutherford Institute: Case of Student Arrested for Disorderly Conduct for Distributing Religious Literature in a Free Speech Zone Goes Before Supreme Court

In 2016 a Georgia Gwinett College student was arrested for distributing religious literature from a designated free speech zone because someone had complained about his speech. He sued the university and the case was eventually dismissed because the College said that it had changed its free speech zone rules. The student appealed to the Supreme Court. Here is an update from the Rutherford Institute which recently filed an amicus brief in the case.

The Rutherford Institute has weighed in before the U.S. Supreme Court on a case in which campus police, citing “disorderly conduct,” prevented a college student from speaking about his Christian faith and distributing religious literature from a small free speech zone on a 260-acre campus. In an amicus brief filed in Uzuegbunam v. Preczewski, Rutherford Institute attorneys are asking the Supreme Court to hold officials at Georgia Gwinnett College liable for violating college student Chike Uzuegbunam’s free speech rights and ensure that campus policies adhere to the First Amendment…

“This case reminds us that there is no room for trust in the relationship between the citizenry and the government,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “Trust the government to police itself, and it will sidestep the law at every turn. The only way to ensure that government officials obey the law and respect the rights of the citizenry, as Thomas Jefferson recognized, is to bind them with ‘the chains of the Constitution.’”

Chike Uzuegbunam is a Christian and was a student at Georgia Gwinnett College, which has a 260-acre campus in Lawrenceville, Ga. Chike’s faith requires that he share his religious beliefs with others. He sought to do so in 2016 by passing out literature and speaking to students from a spacious concrete plaza near the college’s library. A campus security officer stopped him and warned that Chike could not distribute written materials there because he was not in one of two “speech zones” the college had established. Under the college’s policies, students were required to reserve times for one of the two “speech zones,” which consisted of one patio and one sidewalk that amounted to 0.0015% of total area of the campus. The policies also required students apply for a reservation at least three days in advance and gave college officials unbridled discretion to decide who could speak, when they could speak, and what materials they could give out. Although Chike properly reserved a time for sharing his faith from one of the zones, he was again stopped from speaking by a campus security officer. The officer told him that because someone had complained about his speech, he was engaged in “disorderly conduct” under college policies. Chike then brought a lawsuit against the college alleging that its policies and their application to prevent him from engaging in religious speech violated the First Amendment. After months of litigation, the college moved to dismiss the case as moot because it had changed its “speech zone” policies and the trial court granted the motion. Chike appealed, arguing his case was not moot because he was entitled to nominal damages for the interference with his First Amendment rights, but the appeals court upheld the dismissal. Chike sought and was granted review by the U.S. Supreme Court. In its amicus brief supporting Chike, The Rutherford Institute argues that dismissal of the lawsuit violates long-established court precedent affirming the right of citizens to obtain an award of nominal damages against the government officials when they violate a person’s constitutional rights. 

The Rutherford Institute, a nonprofit civil liberties organization, defends individuals whose constitutional rights have been violated and educates the public about threats to their freedoms.

Zero Hedge: Trump to Nominate Judge Amy Coney Barrett To Supreme Court

Zero Hedge, citing the NY Times, opines on the likely nomination of Judge Amy Coney Barrett to the Supreme Court and likely opposition to her because of her religious beliefs.

Trump’s likely nominees to replace RBG on The US Supreme Court – 7th Circuit Judge Amy Coney Barrett, 11th Circuit Judge Barbara Lagoa, and 4th Circuit Judge Allison Jones Rushing – have, according to sources who have leaked their information to The New York Times, been narrowed down to Judge Amy Coney Barrett:

President Trump has selected Judge Amy Coney Barrett, the favorite candidate of conservatives, to succeed Justice Ruth Bader Ginsburg and will try to force Senate confirmation before Election Day in a move that would significantly alter the ideological makeup of the Supreme Court for years.

Mr. Trump plans to announce on Saturday that she is his choice, according to people close to the process who asked not to be identified disclosing the decision in advance. The president met with Judge Barrett at the White House this week and came away impressed with a jurist that leading conservatives told him would be a female Antonin Scalia, referring to the justice who died in 2016 and for whom Judge Barrett clerked.

Barrett is the most feared by liberals, some of whom concede that she hasa topnotch legal mind.”

Many have focused on Judge Barrett’s devout catholicism – and therefore the abortion debate…

“She is the perfect combination of brilliant jurist and a woman who brings the argument to the court that is potentially the contrary to the views of the sitting women justices,” said Marjorie Dannenfelser, the president of the Susan B. Anthony List, an anti-abortion political group, who has praised Mr. Trump’s entire shortlist.

Additionally, as NYT noted earlier in the week, liberal groups have been sounding the alarm over Judge Barrett for two years because of concerns over how she might rule on abortion and the Affordable Care Act.

“Amy Coney Barrett meets Donald Trump’s two main litmus tests: She has made clear she would invalidate the A.C.A. and take health care away from millions of people and undermine a woman’s reproductive freedom,” said Nan Aron, the president of Alliance for Justice, a liberal group.

In a 2017 law review article written before she joined the appeals court, Judge Barrett was critical of Chief Justice John G. Roberts Jr.’s 2012 opinion sustaining a central provision of the Affordable Care Act, saying he had betrayed the commands of textualism. “Chief Justice Roberts pushed the Affordable Care Act beyond its plausible meaning to save the statute,” she wrote.

The court will again hear arguments on the fate of the law in November, and Judge Barrett’s article suggested that she would give its challengers a sympathetic hearing.

However, in one of her most revealing opinions, Barrett took an expansive view of the Second Amendment – dissenting to the right of two colleagues who were appointed by President Ronald Reagan.

In the world of conservative judges, she has particularly strong credentials. Judge Barrett began clerking for Justice Antonin Scalia 22 years ago, and her fellow clerks are quick to say she was his favorite. She graduated summa cum laude from Notre Dame Law School and joined the faculty in 2002, earning praise from colleagues as an astute scholar and jurist even if they did not always agree on her jurisprudential premises.

But, as a reminder, Alan Dershowitz notes that when Judge Barrett came before the Senate Committee on the Judiciary for her nomination to the Court of Appeals for the Seventh Circuit, Senator Diane Feinstein generated considerable controversy when she said to Barrett:

“The dogma lives loudly in you.”

This was a reference to Barrett’s deep Catholic faith. Under our Constitution, Senator Feinstein’s statement crossed the line. Ours was the first Constitution in history to provide that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Although Feinstein did not explicitly impose a religious test, she suggested that personal religious views — which she called dogma — might disqualify a nominee from being confirmed.

That would clearly be unconstitutional.

But then again… when did pursuing anything ethically or legally challenged ever stop the current suite of Dem leaders from pursuing their task of ‘Never-Trump’ and ‘Never-anyone-Trump-wants’.

However, in this case, barring some unforeseen disaster, there appears little Democrats can do – despite the threats – to delay a vote on Barrett, solidifying a right-leaning shift to the court for a generation.

Daily Caller: Dems Threaten To Expand Court If R’s Vote On Supreme Ct Nominee This Year

From Daily Caller, Democrats Threaten To Pack Court If Republicans Vote On Ginsburg Replacement This Year.

  • Democrats are threatening to pack the Supreme Court if Republicans fill the vacancy left by liberal Supreme Court Justice Ruth Bader Ginsburg’s death on Friday. 
  • “Congress would have to act and expanding the court would be the right place to start,” House Judiciary Chairman Jerry Nadler wrote on Twitter. 
  • Ginsburg herself pushed back against the idea of packing the court when asked about it last year. 

Prominent Democrats are threatening to expand the size of the Supreme Court to cancel out President Donald Trump’s court picks if Republicans vote on late Justice Ruth Bader Ginsburg’s replacement this year.

Left-wing activists have been pushing Democratic politicians to endorse court-packing since Justice Anthony Kennedy’s 2018 retirement cleared the way for Justice Brett Kavanaugh to join the high court. Some congressional Democrats embraced the idea following Ginsburg’s death Friday night.

“If Sen. McConnell and @SenateGOP were to force through a nominee during the lame duck session—before a new Senate and President can take office—then the incoming Senate should immediately move to expand the Supreme Court,” House Judiciary Chairman Jerry Nadler wrote on Twitter Saturday.

“Filling the SCOTUS vacancy during a lame duck session, after the American people have voted for new leadership, is undemocratic and a clear violation of the public trust in elected officials,” added Nadler, a Democrat from New York.

“Congress would have to act and expanding the court would be the right place to start,” he said. (RELATED: Prominent Democrats Keep Destroying Norms To Go After Trump)

“If he holds a vote in 2020, we pack the court in 2021,” Democratic Mass. Rep. Joe Kennedy tweeted on Saturday. “It’s that simple.”

Democratic Mass. Sen. Ed Markey asserted in a tweet Friday night that if Republicans fill the Supreme Court vacancy, then “when Democrats control the Senate in the next Congress, we must abolish the filibuster and expand the Supreme Court.”

Senate Minority Leader Chuck Schumer told his fellow Senate Democrats on Saturday that “nothing is off the table for next year” if Republicans move to fill the vacant seat, CBS News reported.

Democratic Connecticut Sen. Richard Blumenthal echoed Schumer’s rhetoric, tweeting Saturday: “If Republicans recklessly & reprehensibly force a SCOTUS vote before the election—nothing is off the table.”

Trump promised Saturday morning to nominate a new justice “without delay.”

Conservatives on Saturday pushed back on the idea of expanding and packing the Supreme Court.

Republican Tennessee Rep. Chuck Fleischmann warned that packing the court would be “dangerous” and undermine the court as an institution.

“Court packing is a dangerous and shortsighted idea that will delegitimize our institutions — and that’s what the Dems are threatening to do if they don’t get their way,” Fleischmann wrote in a tweet.

“Packing the court would be a greater blow to norms, legitimacy, and our system of government than *anything* Trump has said or done,” National Review editor Rich Lowry wrote on Twitter.

Some liberal voices in the media have expressed support for packing the court.

“So Democrats should threaten to pack the court,” left-wing writer Jill Filopovic argued in a Washington Post op-ed Saturday. “And, if McConnell pushes through a new justice and then Joe Biden wins, they should follow through,” she added.

“One way for Democrats to make clear they will not tolerate Republicans trying to fill this seat in advance of the election would be for them to pledge that, if they take the White House and Senate in November, they will increase the size of the Supreme Court to 13 justices,” University of California, Berkeley School of Law Dean Erwin Chemerinsky wrote in a Los Angeles Times op-ed Saturday.

“Democrats have no choice but to implement structural reforms to the judiciary if they hope to prevent decades of rule by the alt-right in America,” HuffPost reporter Zach Carter wrote in a June 2018 piece following Kennedy’s retirement.

“At a minimum, that will mean expanding the Supreme Court bench to 11 justices under the next Democratic president. Other reforms, including term limits to remove aging conservatives, may well be appropriate,” he added.

But Ginsburg herself rejected packing the court when asked about it last year.

“Nine seems to be a good number. It’s been that way for a long time,” she told NPR in July 2019. “I think it was a bad idea when President Franklin Roosevelt tried to pack the court.”