FedSoc Blog

Unaccompanied Minor Crisis Moves from the Border to the Courts

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by Publius
Posted October 16, 2014, 8:44 AM

The Unaccompanied Minor Crisis Has Moved From The Border To The CourtsFiveThirtyEight reports:

Stories about the influx of unaccompanied minors from Mexico and Central America into the United States have all but disappeared from the news. After dedicating “historic levels of personnel, technology, and resources to the Southwest border,” the White House reported last month that the border was “more secure than it has been in decades,” and that a sharp decrease in unaccompanied minors attempting to cross the border was recorded in July and August.

But the crisis is still causing havoc. The backlog of cases in immigration courts is the biggest it has been in 20 years and has been growing steadily since 2000 (including an uptick after the increased allocation of resources for border protection).

“Policies aimed at enforcing the removal of these immigrants have been funded to the tune of billions and billions of dollars,” said Vanessa Allyn, the managing attorney for refugee representation at Human Rights First. “But the courts haven’t been equally funded. There’s absolutely no parity in the resources for removal versus the resources for actually adjudicating these cases.”

There are 260 immigration judges in the United States, and each judge decides about 1,500 cases per year, Allyn said. But even at that rate, the judges can’t keep up with the number of cases.

Read the full article.

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Supreme Court Blocks Enforcement of Texas Abortion Law

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by Publius
Posted October 15, 2014, 8:39 AM

Supreme Court Blocks Enforcement of Texas Abortion LawPolitico reports:

The Supreme Court late Tuesday blocked enforcement, at least temporarily, of some of the controversial Texas abortion law that had shuttered most of the state’s remaining abortion clinics.

The Center for Reproductive Rights, which is leading the legal fight, said the clinics would be able to reopen as soon as Wednesday.

The court, in a 6-3 decision, said that Texas cannot immediately enforce the part of the law that requires the clinics to meet the standards of ambulatory surgical centers across the state. Texas argued that the upgrades were needed to protect women’s health. The abortion providers said that the requirements warranted costly upgrades that they felt were unnecessary and were aimed less at enhancing safety than limiting women’s access to abortion.

The Court of Appeals for the 5th Circuit on Oct. 2 had said that the provision could be enforced immediately. That led to the swift closure of more than a dozen clinics across the state.

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Falsely Shouting “Ebola!” on a Crowded Bus

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by Publius
Posted October 14, 2014, 1:41 PM

Photo by m_ke (Flickr)At the Volokh Conspiracy, Eugene Volokh comments on a Los Angeles bus driver shouting, “Don’t mess with me, I have Ebola!” He writes:

The shouting is pretty clearly constitutionally unprotected, because it’s a knowing falsehood that has the potential to cause direct and substantial harm (seriously emotionally distressing fear of injury, the interference with daily activities caused by a quarantine, the cost needed to disinfect the bus, and so on). As I read United States v. Alvarez (2012), most knowing falsehoods can be restricted if the restriction passes “intermediate scrutiny,” and in this case a suitably crafted restriction on lies about communicable diseases would indeed pass such scrutiny.

But it would be interesting to see just which California statute would be used to punish such speech. . . .

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Wisconsin and Texas Voter ID Laws Blocked by Courts

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by Publius
Posted October 10, 2014, 8:48 AM

Wisconsin and Texas Voter ID Laws Blocked by CourtsThe Los Angeles Times reports:

The U.S. Supreme Court late Thursday blocked Wisconsin from enforcing its strict voter identification law in November’s election.

By a 6-3 vote, the justices granted an emergency appeal from civil rights lawyers, who argued it was too late to put the rule into effect this year.

Lawyers for the ACLU noted that the state had already sent out thousands of absentee ballots without mentioning the need for voters to return a copy of their photo identification.

It would be “chaos,” they said, for Wisconsin to have to decide whether to count such ballots now because voters had failed to comply with the new law.

Justices Samuel A. Alito Jr., Antonin Scalia and Clarence Thomas dissented. The six justices in the majority did not issue a written opinion to accompany the decision to lift an order by a lower court that would have allowed the law to take effect.

At nearly the same time, a federal judge in Texas struck down that state's new voter ID law on the grounds that it violated the constitutional right to vote and discriminated against racial minorities.

Texas Atty. Gen. Gregg Abbott said the state would appeal.

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Supreme Court Upholds North Carolina’s Voting Rules

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by Publius
Posted October 09, 2014, 8:25 AM

Supreme Court Upholds North Carolina's Voting RulesUSA Today reports:

For the second time in two weeks, the Supreme Court on Wednesday upheld a state law restricting voters' access to the polls.

The latest ruling affects North Carolina, scene of a tight Senate race that could help decide which party wins control of that chamber for the final two years of President Obama's term.

The justices reversed a federal appeals court's decision that would have allowed same-day registration and counted votes cast mistakenly in the wrong precincts. Those were among several other procedures eliminated by the state Legislature last year in what critics called the most restrictive voting law in the nation.

Two justices — Ruth Bader Ginsburg and Sonia Sotomayor — dissented from the decision. They wrote that the two voting restrictions "likely would not have survived federal preclearance" under the Voting Rights Act before a key section was struck down in a 5-4 decision by Chief Justice John Roberts last year.

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Twitter Sues the Government for Violating Its First Amendment Rights

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by Publius
Posted October 08, 2014, 8:24 AM

Photo by mkhmarketing (Flickr). Wired reports:

For months, Twitter has tried to negotiate with the government to expand the kind of information that it and other companies are allowed to disclose. But it failed. Today, Twitter asserts in its suit that preventing the company from telling users how often the government submits national security requests for user data is a violation of the First Amendment.

The move goes a step beyond a challenge filed by Google and other companies last year that also sought permission on First Amendment grounds to disclose how often it receives national security requests for data. In the wake of the Edward Snowden leaks about government spying and the so-called PRISM program, the companies sought to add statistics about national security requests to transparency reports that some of them were already publishing. Up to that point, the reports had revealed only the number of general law enforcement requests for data that the companies received each year, not so-called National Security Letters the companies received for data or other national security requests submitted with a court order from the Foreign Intelligence Surveillance Act Court.

The companies asserted that without the ability to disclose more details about the data requests they received, the public was left to speculate wildly that they were providing unfettered access to user data or giving the government information in bulk. If the public knew how few requests for data they actually received, they argued, people would be re-assured that this was not the case.

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Airbnb Legal Debate Heats Up in San Francisco

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by Publius
Posted October 07, 2014, 2:45 PM

Airbnb Legal Debate Heats Up in San Francisco The Wall Street Journal Law Blog reports:

A coalition of local community leaders gathered on the steps of City Hall on Friday afternoon to voice their concerns with a proposal being put before the city’s board of supervisors Tuesday. The proposal would formally legalize short-term rentals – a practice that still exists in a legal gray area – while imposing limits on who is allowed to list apartment rentals online.

In a letter to Supervisor David Chiu, the coalition requested the proposal put stricter limits on short-term rentals. No property should be rented for more than 90 days, they said, and buildings developed by the city for low-income housing should be barred from online listings.

The group also proposed that tenants should have the right to sue their neighbors over potential violations.

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Same-Sex Marriage Petitions Denied

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by Publius
Posted October 06, 2014, 9:06 AM

Same-Sex Marriage Petitions DeniedSCOTUSblog reports:

Last month Justice Ruth Bader Ginsburg had suggested that the Court might not step into the [same-sex marriage] controversy at this point, because there was no disagreement among the lower courts on that issue.

Today her prediction proved true, with the Court denying review (without any comment) of the seven petitions:  Bogan v. Baskin (Indiana); Walker v. Wolf (Wisconsin); Herbert v. Kitchen (Utah); McQuigg v. Bostic (Virginia); Rainey v. Bostic (Virginia); Schaefer v. Bostic (Virginia); and Smith v. Bishop (Oklahoma).

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Epstein: WSJ’s Improbable Defense of Judge Lamberth’s Indefensible Decision in Perry Capital

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by Publius
Posted October 03, 2014, 9:07 AM

Epstein: WSJ's Improbable Defense of Judge Lamberth's Indefensible Decision in Perry CapitalIn Forbes, Richard Epstein comments:

My recent post on Forbes.com expressed my deep dissatisfaction with the thunderbolt that Judge Royce Lamberth launched (without argument or discovery no less) in Perry Capital LLC v. Lew  against the private shareholders of Fannie Mae and Freddie Mac when he sustained the 2012 full dividend sweep under the Third Amendment to the original 2008 Senior Preferred Stock Purchase Agreement. This morning, Judge Lamberth’s decision received a full-throated defense that reads as if it was published in Revolution Magazine, but which in fact appeared on the normally level-headed editorial page of the Wall Street Journal.  Ominously entitled, Godzilla Defeats the Thing, the Journal heaps lavish praise on Judge Lamberth for exposing the shareholder “scam” that in its words “combined dubious legal reasoning with junk economics.”

Really? The gist of the Journal’s argument was that both Fannie and Freddie would have been dead in the water without the $188 billion bailout that they received from the United States Treasury. The real question is what follows next.  In the eyes of the Journal, once the original bailout was given, the government could have, and should have, have taken over the entire operation lock, stock and barrel. Yet that was exactly what the Government decided not to do at the time when it opted for a conservatorship that let the Treasury take two pieces out of the Fannie and Freddie pie. The first was its senior preferred that carried with it a 10 percent dividend rate, which increased to 12 percent if Fannie and Freddie deferred payments on their obligations. The second was an option to purchase some 79.9 percent of the common stock for a nominal price of $0.00001 per share.

Most notably, the SPSPA did not contain any provision that said, “In the event that this infusion of cash rescues Fannie and Freddie, the United States Treasury reserves the right to modify this agreement so as to claim all the profits that the business generates at any future time.” It does not take an advanced degree in finance to explain why this provision was conspicuously absent from the 2008 deal.  Put it in and all of a sudden the two previous clauses are irrelevant to the terms of the deal. 10/12 percent is no longer the dividend rate, and the warrant to purchase the common stock at a nominal price is equally worthless.  Why should the government pay even a dollar to get common stock that with a stroke of the pen it could acquire for free? And why should anyone bother to trade in shares which the government has announced in advance will be worthless to them no matter how valuable the company? . . .

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District Judge Blocks ACA Rule for Non-Exchange States

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by Publius
Posted October 01, 2014, 8:39 AM

Image by Flickr user Images_of_MoneyBloomberg reports:

An Oklahoma federal judge dealt a blow to President Barack Obama’s health-care law, invalidating IRS rules aimed at making policies affordable for consumers around the country.

U.S. District Judge Ronald White in Muskogee ruled today that subsidies, in the form of tax credits, apply only to consumers in the 14 states that have set up insurance marketplaces and not to individuals who buy insurance on the federal marketplace, as in Oklahoma. An Internal Revenue Service rule says needy customers in both the federal and state marketplaces are eligible for subsidies.

“The court is upholding the act as written,” White said, citing language in the law that limits subsidies to those in states with their own exchanges. He called the IRS regulations “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law.”

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Whistleblowers Under Threat in Supreme Court Case, Lawmakers Warn

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by Publius
Posted September 30, 2014, 3:17 PM

Whistleblowers Under Threat in Supreme Court Case, Lawmakers WarnThe Wall Street Journal Law Blog reports:

A former air marshal’s whistleblower case against the Transportation Security Administration is getting support from a bipartisan group of lawmakers, who say the Obama administration’s legal position would “grant agencies unprecedented power to decide when employees may expose misconduct.”

The Supreme Court is deciding whether a fired air marshal, Robert MacLean, should receive federal whistleblower protections for telling the press in 2003 about a TSA decision to use fewer air marshals on long-distance flights despite warnings of possible hijacking threats. The Supreme Court agreed to hear the case in May with arguments set for Nov. 4.

The case involves a clash between two sets of federal laws — one protecting the rights of whistleblowers and the other limiting disclosure of sensitive but unclassified information about transportation security.

The Department of Homeland Security’s interpretation of the Whistleblower Protection Act “would allow agency regulations to erode the statutory protections Congress created for whistleblowers,” states a friend-of-the-court brief signed by six lawmakers. “It would deter disclosure of government misconduct and impair Congress’s oversight role.” . . .

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Salon & Donna Brazile Call for New Constitution to “Save American Democracy”

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by Publius
Posted September 29, 2014, 8:26 AM

Salon & Donna Brazile Call for New Constitution to In a recent tweet, Donna Brazile expressed support for a Salon article laying the groundwork for a new Constitution. The article comments:

Though they haven’t articulated it as such, Americans want a new constitution that actually does what the original Constitution was supposed to do: serve the public good.

So, what would that document ideally look like?

It would surely reject outright the decadent, cowardly impulse to fashion a body of laws with special perks designed to prop up the few and wealthy while more or less throwing crumbs to the poor and powerless. Its overall function would be to improve the quality of life across the country, in places big and small. Let’s put it in all caps, and maybe stick it in the Preamble: TO CALL ITSELF A REPRESENTATIVE DEMOCRACY, A NATION MUST BE REASONABLE AND EQUITABLE IN THE DIVISION OF POWER.

What systemic changes would take place under this new, more sensible, and decidedly just Constitution?

It would limit the number of terms a representative or senator could serve, so as to introduce fresh blood from a pool of more visible talent. (Does 12 years sound reasonable?) It would not allow ex-congressmen to trade on their insider connections for at least five years–which might then produce fewer power-engrossing lawyer-politicians and more–let’s be really optimistic here–systems engineer- or bioethicist-politicians, i.e., problem solvers with a useful trade to fall back on after public service.

Next, let’s reform the debased Supreme Court by reducing tenure from life to 10 years. (Honestly, who’s not tired of Scalia?)

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Full 7th Circuit Denies Request to Rehear Wisconsin Voter ID Case

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by Publius
Posted September 26, 2014, 2:39 PM

Full 7th Circuit Denies Request to Rehear Wisconsin Voter ID CaseThe Milwaukee Journal Sentinel reports:

Opponents of Wisconsin's voter ID law fell just short Friday of getting a full federal appeals court to reconsider their recent loss in the case before a panel of judges.

On Sept. 12, a three-judge panel of the 7th Circuit U.S. Court of Appeals in Chicago ruled that Wisconsin could implement the law for this Nov. 4 election. The law requires voters to show a photo ID in order to vote.

Those suing over the law asked the full, 10-member court to reverse that decision and came just one vote shy of getting the full 7th Circuit to hold a hearing on the case. The members of the court split 5-5 on whether to hold the hearing, which means that the request did not get a majority of votes and fails as a result.

"In the coming days, members of the court may file opinions explaining their votes," the order from the 7th Circuit reads.

Friday's order marked only the latest in a series of legal hurdles cleared — though at times narrowly — by the state's voter ID law. The law was also upheld by the Wisconsin Supreme Court in a pair of rulings last month.

There is a chance that the U.S. Supreme Court could yet consider the matter.

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NC Teeth-Whitening Case Could Have Sweeping Implications

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by Publius
Posted September 26, 2014, 8:40 AM

Photo by HealthGauge (Flickr)The News Observer reports:

What started as an attempt by the N.C. Board of Dental Examiners to kick teeth-whitening services out of mall kiosks, spas and other retail spaces has morphed into a major legal battle with the potential to transform the makeup and reach of similar licensing boards across the country.

The U.S. Supreme Court is scheduled on Oct. 14 to take up a case brought by the dental examiners board against the Federal Trade Commission.

At issue is whether the North Carolina board, made up of dentists, overstepped its regulatory bounds when starting to send cease-and-desist letters seven years ago to teeth-whitening businesses unaffiliated with dental offices. The FTC ruled several years ago that the board engaged in unfair trade practices, and the board has challenged that up to the U.S. Supreme Court.

The high court’s decision could have sweeping repercussions for how states regulate varied fields – from dentistry to health care to law.

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The International Law Framework for Strikes in Syria

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by Publius
Posted September 24, 2014, 8:33 AM

The International Law Framework for Strikes in SyriaAt the Just Security blog, Jennifer Daskal, Ashley Deeks and Ryan Goodman discuss the international law framework for America's strikes in Syria. They comment:

According to a letter submitted by the United States to the United Nations on Tuesday, the Administration is justifying the strikes against ISIL as a lawful exercise of collective self-defense of Iraq.  The letter then goes on to state that the strikes against the Khorasan Group “address terrorist threats that they pose to the United States and our partners and allies.”

As the letter suggests, the legal justification for strikes against ISIL is presumably not the same as that for strikes against Khorasan. The following unpacks some of the key differences. . . .

The U.S. government received a letter from the Iraqi government explicitly asking for U.S. help in the fight against ISIL, thus supporting a claim of collective self-defense.  According to the U.S. notification to the United Nations, Iraq has specifically requested that the United States lead international efforts to strike ISIL sites inside Syria to suppress continuing attacks on Iraq and protect Iraqi citizens.  Under a theory of collective self-defense, the United States is assisting Iraq in responding to the direct and ongoing threat posed by ISIL; the threat stems in part from ISIL forces in Syria; and Syria is either unable or unwilling to quell the threat, thereby justifying an incursion into Syria’s territory. . . .

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