Quotulatiousness

September 2, 2018

Amtrak service and the “takings” clause

Filed under: Business, Economics, Law, Railways, USA — Tags: , , , — Nicholas @ 03:00

Back in August, Fred Frailey reluctantly came to the conclusion that at some point American freight railways are going to have to challenge in court Amtrak’s legislated ability to pre-empt freight traffic on their networks:

Amtrak’s
Eastbound Empire Builder crossing Two Medicine Trestle at East Glacier MT on 20 July 2011.
Photo by Steve Wilson via Wikimedia Commons.

We all know about “taking the Fifth.” It’s our right under the Fifth Amendment to the U.S. Constitution not to be compelled to testify against ourselves. In other words, a court cannot force us to admit to driving 60 mph in a 45-mph zone (or something worse). That amendment has another, less-well-known clause, which says government cannot take away our property without just compensation. Lawyers know this as the “Takings Clause.” The Fifth came to mind the other day as I rode Amtrak’s Empire Builder from Seattle to Chicago. I’ll get to my point, but first the experience.

[…]

All of this did terrible things to our schedule-keeping. By the third morning, as the train approached Devils Lake, N.D., we were more than eight hours late (the next day’s eastbound Builder was even later). But imagine what the Empire Builder does to BNSF’s freights every day. The Amtrak Improvement Act of 1973 reads: “Except in an emergency, intercity passenger trains operated by or on behalf of [Amtrak] shall be accorded preference over freight trains in the use of any given line of track, junction, or crossing.”

BNSF appears totally committed to obedience of this law but doing so devours the capacity of this route. It’s not just that freights give way; whizzing along at a 79 mph versus 55 or 60 for the freights, the Empire Builder eats capacity as if it were two or three freights, Six high-priority Z trains prowl the northern Transcon every day, and I don’t think a single one of them that I observed was moving as we went by. One Z train was sandwiched between two stopped manifest trains, all making way for our Builder.

Obviously, Amtrak pays BNSF for the right to run trains over the freight railroad. But whatever it pays is but a fraction of the cost in delays to its own trains incurred by BNSF. Were the northern Transcon double-tracked all the way, these delays would obviously be minimized. But at $3 million or more a mile, double tracking consumes capital like a dry sponge, and it’s not Amtrak’s capital, either.

So now to my point: Isn’t it fair to say that Amtrak, which the U.S. Supreme Court in 2015 decreed to be an arm of government, is confiscating the property (track capacity) of host railroads? And if it is, shouldn’t the freight railroads be fairly compensated for the delays to their freights caused by the loss of this capacity? Try as I might to say otherwise, I am forced to answer “yes” to both questions.

July 9, 2018

Nominating Amy Barrett “would be a tactical masterpiece on the level of Napoleon’s conduct of the Battle of Austerlitz, or Hannibal at Cannae”

Filed under: Law, Media, Politics, Religion, USA — Tags: , , , , — Nicholas @ 05:00

I have no idea who President Trump will announce later today as his nominee for the vacancy on the US Supreme Court, but Conrad Black is plumping for one particular candidate:

The desperation of the Democrats to stop the apparently inexorable rise of a president they so completely discounted and despised, and assumed they could remove or emasculate just by turning up the volume and activity of their media organ monkeys, may drive them to accidental suicide over the latest Supreme Court vacancy. I have no standing at all to intuit whom the president may nominate. But if, as I suspect, it is Judge Amy Barrett, it would be a tactical masterpiece on the level of Napoleon’s conduct of the Battle of Austerlitz, or Hannibal at Cannae.

The U.S. Senate confirmed Barrett to the Seventh U.S. Circuit Court of Appeals on October 31, by a 55-43 vote. Three Democrats voted for her and two did not vote. It would not be easy to justify changing their votes now, as she has served unexceptionably. At her confirmation hearings, Senator Dianne Feinstein, the Judiciary Committee’s aged ranking Democrat, asked Barrett about her religious views, and the nominee responded that no judge should allow personal views, whether based on faith or anything else, to influence the imposition of the law. “The dogma lives loudly within you, and that is a concern,” Feinstein said infamously. This was an outrageous comment; Feinstein doesn’t know anything about the dogma of the Roman Catholic Church, and she has no idea what privately motivates Judge Barrett.

The fury and haste of the Democrats once the starting gun went off with the announcement of the retirement of Justice Anthony Kennedy from the Supreme Court, expressed their blind panic that their entire protracted regime of encroachments and embellishments on the Constitution — buttressing their centralized and authoritarian notion of administrative juridical governance with pretense to defending the rights of women, affirmative action, and the legislative role of the judiciary generally — was now under mortal assault.

[…]

I believe the president will nominate Barrett, that the Democrats will take definitive leave of their depleted senses, apostrophize the judge as a Trojan Horse of female submission, that she will clear her hearings with flying colors while the president’s formidable battery of social media and talk show supporters roast the Democrats for attacking an exemplary female achiever and a fine jurist whose only offense is to be a member of the Roman Catholic Church, by far the largest in the country with more than 70 million adherents. Remember, too, the Supreme Court in the final days of its term ruled that crisis pregnancy centers need not advertise the virtues of abortion with Planned Parenthood, and in 2016 said the Little Sisters of the Poor could not be compelled to pay for birth control and sterilization.

As at Cannae and at Austerlitz, the center of the defending force (Democrats), will crumble and President Trump will sweep the field. The Democratic playbook of endless ear-splitting allegations of serial outrages by the president, will not, finally, bring him down. On this issue, of mobilizing unfounded sexist paranoia against a flawless nominee, thereby insulting tens of millions of American women and U.S. Roman Catholics, before raising the objections of fair-minded non-Catholic men, at least another 20 percent of the population, the Democrats will immolate themselves in an unprecedentedly spectacular launch of their midterm election campaign.

Of course, no matter who is put forward, that person will immediately become the target of a supersized version of the “two-minute hate” that will literally last for months, or until the nominee is driven to decline the nomination, at which point the hate will be directed at the next nominee. Pedantically, however, Black’s use of Cannae and Austerlitz is only metaphorical: at Austerlitz, the allied centre did crumble, but at Cannae, it was the Roman cavalry on the flanks that crumbled, allowing the Carthaginians to envelop the rear of the main Roman army. Two very different battles.

July 5, 2018

The soon-to-be-announced target of the two-minute unceasing hate

Filed under: Law, Politics, USA — Tags: , , , , — Nicholas @ 05:00

At Reason, Jacob Sullum says Trump did well with his first Supreme Court pick, and the unwillingness of Trump’s opponents to acknowledge that shows how much blind partisanship has gripped the left:

Anthony M. Kennedy, Associate Justice of the Supreme Court of the United States, swears in Supreme Court Justice Neil M. Gorsuch on Monday, April 10, 2017, in the Rose Garden of the White House in Washington, D.C. Also shown, Gorsuch’s wife Louise stands on stage holding a family Bible. Justice Gorsuch is the Supreme Court’s 113th justice.
White House photo via Wikimedia Commons.

“We have to STOP the next Trump nominee!” says a pop-up solicitation on People for the American Way’s website. Before you rush to “donate now,” you might want to consider the organization’s assessment of Trump’s last Supreme Court nominee.

“Far from being a fair-minded constitutionalist,” PFAW says, Neil Gorsuch “has proven to be a narrow-minded elitist who consistently votes in favor of corporations and the powerful.” The gap between that description and Gorsuch’s actual performance on the Court speaks volumes about the blind partisanship of Trump critics who care more about scoring political points than defending civil liberties.

PFAW is echoing the criticism of Democratic senators who worried, before Gorsuch was confirmed in April 2017, that he was not inclined to stand up for “the little guy.” Gorsuch’s record during a decade on the U.S. Court of Appeals for the 10th Circuit belied that claim, and his 15 months on the Supreme Court provide further evidence that he is not shy about defending the principles that protect politically disfavored individuals from the whims of the powerful.

In sharp contrast with the man who nominated him, Gorsuch worries about abuses of the government’s power to take people’s property “for public use.” In June 2017, when the Court declined to hear a case that raised the question of whether a state can impose limits on the “just compensation” it owes for takings under the Fifth Amendment, Gorsuch, joined by Clarence Thomas, urged his colleagues to address that issue at the “next opportunity.”

That pairing was notable because Gorsuch is on record as admiring Thomas’s passionate dissent from the widely condemned 2005 decision in which the Court approved the use of eminent domain to transfer property from one private owner to another in the name of economic development. Big businesses routinely use such arrangements to override the wishes of little people who get in the way of their plans.

July 4, 2018

It’s never a good idea to expand the power of the state

Filed under: Government, Liberty, Politics, USA — Tags: , , , , , , — Nicholas @ 05:00

Francis Porretto on the problem of giving the state yet another tool for its already overflowing toolbox:

    The party in power is smug and arrogant. The party out of power is insane.” – Megan McArdle, a.k.a. “Jane Galt”

Among the older maxims of politics is to beware handing the State a new power without first reflecting on how your opponents could use it against you. For as sure as the Sun rises in the East, your opponents will return to dominance someday, and whatever powers you awarded the State will be in their hands.

Just now, the focus is on President Trump’s choice of a replacement for retiring Supreme Court Associate Justice Anthony Kennedy. The Democrats are tearing their collective hair out over this, as now that the filibuster is a dead letter for judicial appointees, their minority status in the Senate leaves them no way to block his selection. Yet it was Senate Democrats during the Obama Administration who first attacked the filibuster – when they were in the majority and sought to confirm Obama appointees. Coulda told ‘em then, but they weren’t in a mood to listen.

Today’s critical battles are over freedom of expression and “deplatforming.”

Some folks of sound mind and generally good will are exercised about how Silicon Valley giants such as Facebook and Twitter regulate their immensely popular social-media platforms to disfavor conservatives. The complaints have been many, and a great many of them are both accurate (i.e., the things complained about really happened) and valid (i.e., only persons of conservative or libertarian bent were silenced). However, they come up against a barrier that’s proved impassable to date: the right of private property.

So a lot of those folks have embraced the notion that those platforms could be regulated by the federal government as public accommodations. That’s the conception under which the Civil Rights Acts were deemed to hold legitimate authority over restaurants, hotels, movie theaters, and other nominally private properties. If you present your facility as “open to the public,” the logic runs, then you can be forbidden to discriminate – i.e., to provide your services to some members of the “public” but not others.

(For those who remember the “nationwide Bell System,” the phrase common carrier might rise to mind. The concept is essentially the same, as was the federal government’s assertion of authority over it. However, in that particular case, the rationale was that the Bell System was a monopoly, protected by that same federal government. Telecom deregulation and the breakup of the Bell System put paid to that scheme, thank God.)

Those in the Right who favor this notion are asking for trouble. Someday the balance of power will shift leftward once again. What would the Democrats – an increasingly totalitarian bunch who’ve never seen a law, a regulation, or a tax it didn’t love – do with the precedent that an Internet platform can be regulated as a public accommodation, despite being private property?

H/T to Bill St. Clair for the link.

June 28, 2018

US Supreme Court rules on the Janus case

Filed under: Law, Liberty, Politics, USA — Tags: , , , , — Nicholas @ 05:00

Eric Boehm reported soon after the decision was announced on Wednesday morning:

More than four decades after the Supreme Court ruled that public sector workers could be required to pay dues to unions even if they do not join one, a 5–4 majority on the high court overturned that precedent in a closely watched case that could have major ramifications for the future of public sector unions.

“Under Illinois law, public employees are forced to subsi­dize a union, even if they choose not to join and strongly object to the positions the union takes in collective bar­gaining and related activities,” Justice Samuel Alito wrote in the majority opinion. “We conclude that this arrangement violates the free speech rights of nonmem­bers by compelling them to subsidize private speech on matters of substantial public concern.”

In the short-term, the ruling in Janus v. American Federation of State, County and Municipal Employees means that plaintiff Mark Janus was successful in his decade-long fight to prevent the union from taking $50 out of his paycheck every two weeks. Over the years, Janus estimates, he’s contributed more than $6,000 to the union.

More broadly, Wednesday’s ruling could end the automatic deduction of union dues from millions of public employees’ paychecks, forcing unions like AFSCME to convince workers to voluntarily contribute dues — something workers would do, presumably, only if they have a reason to do so.

“So many of us have been forced to pay for political speech and policy positions with which we disagree, just so we can keep our jobs. This is a victory for all of us,” said Janus in a statement. “The right to say ‘no’ to a union is just as important as the right to say ‘yes.’ Finally our rights have been restored.”

The ruling is “a landmark victory for rights of public-sector employees,” said Mark Mix, president of the National Right to Work Legal Defense Foundation, which supported Janus’ lawsuit.

While today’s ruling certainly shifts the balance towards worker freedom, groups like the National Right to Work Legal Defense Foundation, which represented Janus, say they are already prepared for additional rounds of litigation. In states that previously have embraced right-to-work policies, unions have often tried to make it as difficult as possible for workers to renounce their membership.

At Hot Air, Jazz Shaw highlights a few of the key points:

Justice Alito wrote the decision and it followed along with the expectations of those who watched the case play out before the court. Also as expected, this was a 5-4 decision, split along partisan lines. At the heart of Janus was the question of whether or not unions can forcibly extract dues from workers’ paychecks without the worker proactively volunteering to contribute. In parallel to that, the court had to determine whether or not those extracted fees, being put toward lobbying efforts, constituted involuntary political speech on the part of the worker. The ruling answers both questions definitively.

You can read the full decision here [PDF] but I’ve extracted a couple of the key points from the syllabus. First is the issue of whether the previous ruling in Abood (which went in the unions’ favor) erred in allowing the forcible extraction of dues. Alito leaves no room for doubt.

    The State’s extraction of agency fees from nonconsenting public sector employees violates the First Amendment. Abood erred in concluding otherwise, and stare decisis cannot support it. Abood is therefore overruled.

The second question was the one about subsidizing the speech of others when it runs contrary to your personal beliefs. Again, Alito is definitive.

    Forcing free and independent individuals to endorse ideas they find objectionable raises serious First Amendment concerns. E.g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 633. That includes compelling a person to subsidize the speech of other private speakers.

A union official, Paul Shearon, the IFPTE Secretary-Treasurer, put out an immediate statement saying that this was based on, “a bogus free speech argument.” He went on to say that the justices voting in the majority “are little better than political hacks.” That was followed up by a threat to take it to the streets.

    In the short run, the Janus decision may hurt some unions financially, but in the long run it will serve to make unions and their members more militant and force a stronger culture of internal organizing. The recent statewide teacher strikes demonstrate that when public sector workers face limitations on their bargaining rights they take their case to the streets.

This is going to send shockwaves through not just the unions, but the Democratic Party at large. The amount of money that the unions flush into Democratic coffers every year is likely more than most of you imagine.

Steven Malanga in City Journal provides some rough figures on how much money was at stake for the unions and their political activities:

With the appointment of Justice Neil Gorsuch, unions feared the outcome of the Janus case. After all, many union members have stated that they would give up their memberships if the court ruled that compulsory fees were illegal. An officer of the Communications Workers of America, which represents government employees in New Jersey, told an AFL-CIO convention last fall that only 54 percent of its 60,000 members said that they would remain in the union if they could opt out of paying fees. The California Teachers Association, meanwhile, crafted a 2019 budget that anticipated that as many as 23,000 members would leave if the court overturned the Illinois law. The union will also suffer from the loss of revenues from 28,000 nonmembers who’ve been paying agency fees, and will presumably stop doing so now that they’re no longer compelled. The union, according to a published report, estimated it could suffer a loss of some $20 million annually as a result.

Even before the ruling, government unions were reeling. Their membership has declined from a peak of 7.9 million in 2009 to 7.2 million today — a drop of nearly 9 percent. The portion of government workers in unions, which peaked in the mid-1990s at 38.7 percent, is now down to 34.4 percent, according to unionstats.com. Some of the decline is due to a significant reduction in the number of government workers after the 2008 financial crisis; even today, nine years into a recovery, the total number of government workers remains 10 percent lower than before the recession — a loss of 233,000 positions. But unions have suffered an even bigger falloff, because when government employment began trending back upward in 2014, union membership stayed flat. Many of the gains in government jobs since then have been in nonunion positions.

Unions have suffered big losses in Wisconsin, which banned compulsory unionization in the public sector in 2011. Some 140,000 union positions have dried up as workers chose not to retain their memberships. But other states that continued to compel workers to join a union or pay agency fees have also seen major losses, including New York, where union membership has fallen by 150,000, Illinois (down 88,000), Pennsylvania (down 54,000), and New Jersey (down 50,000). Those declines are reflected in union numbers, too. The National Education Association, the largest teachers’ union, has lost nearly 250,000 members, or about 8 percent of its membership, since 2009. AFSCME’s national membership has shrunk by 200,000, or 13 percent.

May 16, 2018

QotD: The presidency and the Supreme Court

Filed under: Law, Liberty, Quotations, USA — Tags: , , , , , , — Nicholas @ 01:00

… I also like Jerry Jeff Walker, the Scofflaw King of New Orleans and a lot of other people I don’t necessarily believe should be president of the United States. The immense concentration of power in that office is just too goddamn heavy for anybody with good sense to turn his back on. Or her back. Or its back…. At least not as long as whatever lives in the White House has the power to fill vacancies on the U.S. Supreme Court; because anybody with that kind of power can use it – like Nixon did – to pack-crowd the Court of Final Appeal in this country with the same kind of lame, vindictive yo-yos who recently voted to sustain the commonwealth of Virginia’s antisodomy statutes……. And anybody who thinks that 6-3 vote against “sodomy” is some kind of abstract legal gibberish that doesn’t really affect them had better hope they never get busted for anything the Bible or any local vice-squad cop calls an “unnatural sex act.” Because “unnatural” is defined by the laws of almost every state in the Union as anything but a quick and dutiful hump in the classic missionary position, for purposes of procreation only. Anything else is a felony crime, and people who commit felony crimes go to prison.

Hunter S. Thompson, “Fear and Loathing on the Campaign Trail ’76: Third-rate romance, low-rent rendezvous — hanging with Ted Kennedy, Jimmy Carter, and a bottle of Wild Turkey”, Rolling Stone, 1976-06-03.

March 18, 2018

Border privacy issue should (eventually) get to the US Supreme Court

Filed under: Law, Liberty, USA — Tags: , , , — Nicholas @ 03:00

In Reason, Damon Root reports on two duelling precedents about US citizens’ right to privacy and the government’s interest in what’s on your smartphone when you re-enter the United States:

In its 2014 decision in Riley v. California [PDF], the U.S. Supreme Court held that law enforcement officials violated the Fourth Amendment when they searched an arrestee’s cell phone without a warrant. “Modern cell phones are not just another technological convenience,” Chief Justice John Roberts wrote for the majority. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

But what about when an American citizen is returning home from abroad and U.S. border officials want to thoroughly search the contents of that person’s cell phone? Does the Fourth Amendment require the government to get a warrant before searching cell phones at the border? According to a decision issued this week by the U.S. Court of Appeals for the 11th Circuit, the answer to that question is no.

[…] a divided panel of the 11th Circuit took a different view. “The forensic searches of Vergara’s cell phones occurred at the border, not as searches incident to arrest,” declared the majority opinion of Judge William H. Pryor. “And border searches never require a warrant or probable cause.”

Writing in dissent, Judge Jill Pryor wrote that while she agrees “with the majority that the government’s interest in protecting the nation is at its peak at the border,” she disagrees “with the majority’s dismissal of the significant privacy interests implicated in cell phone searches.” In Riley, she noted, the Supreme Court recognized “the significant privacy interests that individuals hold in the contents of their cell phones.” And in her view, “the privacy interests implicated in forensic searches are even greater than those involved in the manual searches at issue in Riley.” If it were up to her, “a forensic search of a cell phone at the border [should require] a warrant supported by probable cause.”

One thing is clear: We have not heard the last of this debate. Either this case, or one very much like it, is almost certainly headed for the Supreme Court.

December 16, 2017

Why not try a truly independent “independent counsel”?

Filed under: Cancon, Law, Politics, USA — Tags: , , , — Nicholas @ 03:00

Jay Currie suggests someone the US government could bring in to investigate the whole “deep state” mess who would not be in any way tainted by past contacts or entanglements:

The American mess is deep and sordid and, frankly, needs to be cleaned up. But by who?

The fact is that virtually any special counsel appointed by the DOJ will be tainted one way or another. And so, apparently, will investigators drawn from the FBI. It is a mess but it also needs to be resolved.

So, a friendly suggestion from Canada.

Our deeply respected, longest serving, Chief Justice of the Supreme Court of Canada is retiring at the end of the year. Beverly McLaughlin, while I disagree with some of her opinions, is tough, fair-minded and very, very, smart. By the nature of her position, she is “read in” on intelligence and security cleared. She’ll be bombarded with job offers but, if asked nicely, might be willing to lead an investigation into the whole ball of wax which the 2016 American election created. Russians, Hilly’s server and how it was dealt with by the FBI, Lynch on the tarmac with Bill, Mueller, Comely: the whole thing.

But Bev is not enough. Sending a small detachment of the RCMP – white collar and intelligence – with her, with really serious investigative powers, would get the whole mess cleared up in six months. (The scarlet tunics would be optional but would make great tv as they raided offices and homes of the swamp creatures.) McLaughlin would not proffer charges, rather she would write a report and recommend such charges as arise.

Better still, the Chief Justice and the Horsemen would be paid for – independently – by the Canadian government with a bill to be presented to our American cousins at the end of the investigation.

Sometimes the mess is so big you need an independent professional to clean it up. This is one of those times.

August 26, 2017

QotD: The American Constitution

Filed under: History, Politics, Quotations, USA — Tags: , , , , — Nicholas @ 01:00

All things considered, this New Republic piece on Randy Barnett and the libertarian constitutional movement is really pretty good. But I thought this part was revealing:

    Barnett believes the Constitution exists to secure inalienable property and contract rights for individuals. This may sound like a bland and inconsequential opinion, but if widely adopted by our courts and political systems it would prohibit or call into question basic governmental protections — minimum wages, food-safety regulations, child-labor laws — that most of us take for granted. For nearly a century now, a legal counterculture has insisted that the whole New Deal project was a big, unconstitutional error, and Barnett is a big part of that movement today.

If your entire program is called into question by the notion that individuals have property and contract rights, maybe the problem is with your program.

And to the extent that, as believed by many, the Supreme Court’s eventual accommodation to the New Deal was the product of duress in the form of FDR’s court-packing scheme, then isn’t that accommodation, in fact, illegitimate?

Glenn Reynolds, Instapundit, 2015-08-31.

August 9, 2017

Ernst Zündel, “the Zelig of Holocaust denial”

Filed under: Cancon, Germany, History, Media, Politics, WW2 — Tags: , , , , — Nicholas @ 05:00

In the National Post, Colby Cosh tells the tale of Canada’s “favourite” holocaust denial specialist:

Ernst Zündel in 1992 on the day of his legal victory in R. v. Zündel (via Wikipedia)

Ernst Zündel, the Zelig of Holocaust denial, died suddenly this weekend at his ancestral home in the Black Forest of Germany. If he had died sooner, before his 2005 deportation from this country, I am afraid he would have been widely described in obituaries as “German-Canadian.” He lived here from 1958 to 2000, unsuccessfully trying a couple of times to obtain official citizenship, and was visible for years as a self-styled opponent of Germanophobic stereotypes in the popular media.

Foreseeably, Zündel turned out to be the ultimate German stereotype himself: a war baby who used Canada as a refuge from conscription and anti-Nazi laws back home, all while obsessively re-litigating the Second World War in pseudonymous anti-Semitic pamphlets and books. Most ethnic Germans abroad wouldn’t deny the Holocaust or complain of a worldwide Jewish conspiracy, as Zündel did, but… well, if you have studied German history seriously enough to talk about it socially, you will have run into folks who have funny ideas and tiny chips on their shoulder about, say, First World War reparations or the bombing of Dresden.

[…]

It should be remembered that by 1986 Zündel was already well on his way to establishing his place in Canadian legal history. He had already been convicted once under the Criminal Code’s “spreading false news” section, eventually struck down by the Supreme Court in 1992’s R. v. Zündel. Free speech absolutists argued then that the legal and social pursuit of Zündel merely served to increase his notoriety.

As a purely empirical question of history, this is hard to resolve. But we know that protests and the exertions of the police failed to stop Zündel from winning over Irving, and thus acquiring international influence. It may have done nothing but enhance his credentials as a pseudo-intellectual grappler, defying social scorn and the force of law.

The authorities were eventually able to bundle Zündel off to Germany through a legal door that has since closed. He was deported as an undesirable alien on the basis of a ministerial “security certificate” — not long before the Supreme Court denounced the use of secret evidence in deportation proceedings, and made such certificates harder to obtain. After Zündel’s deportation, an apparatus of progressive opposition to security certificates was quick to materialize. One cannot help wondering: if he were still alive in Canada in 2017, and the state tried to banish him, who might be out marching on his behalf, defending him as an “undocumented Canadian”?

July 30, 2017

The Greenback cases

Filed under: Government, History, Law, USA — Tags: , , , , — Nicholas @ 03:00

At Samizdata, Paul Marks discusses why it is so difficult to prevent governments from expanding their powers far beyond what the constitution may allow:

… a Constitution is only as good as the enforcement mechanisms to make sure it is obeyed – and as Luther Martin warned at the Constitutional Convention in Philadelphia, trusting government appointed judges to limit the powers of the very government that appointed them is a fatally flawed idea.

This is not a recent problem. Even in the 19th century the Supreme Court often ruled that the Federal Government has powers that the Constitution does NOT give it. For example the infamous “Second Greenback Case” where the Supreme Court, with newly appointed “justices” (appointed, in part, for this corrupt purpose) overturned the “First Greenback Case” where the court had declared, quite correctly, that the Federal Government has no power to print (or have printed) money – only to “coin money” (Article One, Section Eight of the Constitution of the United States) and that only gold or silver coin (not paper money) may be “legal tender” in any State (Article One, Section Ten of the Constitution of the United States). Nothing could be plainer than that paper money is unconstitutional – indeed the very reason the United States Constitution was written in the first place was to prevent the “not worth a Continental” paper money issued by the Continental Congress to finance its government – those who support the Articles of Confederation system forget that one of its fundamental flaws was that it allowed the government to print money, as it gave no reliable source of taxation to finance the United States Armed Forces. Without a large scale and professional armed forces there is no point in having a United States of America at all – and each State might as well go its own way till conquered by European powers in the 18th century or by the People’s Republic of China in the 21st century.

[…]

To return to the Greenback Cases… – Chief Justice Salmon P. Chase (the former “slaves lawyer” famous for his anti slavery legal work before the Civil War) de facto ruled that the Treasury Secretary during the Civil War had acted unconstitutionally in having money printed, even though the the Treasury Secretary of the time was Salmon P. Chase (himself). It is not necessary to recuse yourself if you intend, de facto, to find yourself guilty. However, more “justices” were added to the court – and the judgement (and the Constitution) was overturned. The argument being that no more paper money was being printed – it would gradually go over time, so there was no need to make a fuss… still less to declare that the “United States Dollars” in the pockets of people were just bits of paper with ink on them (not “money”).

In 1935 the Supreme Court de facto ruled (by five votes to four) that the Federal Government could steal all monetary gold and void all private and public contracts that had gold (or silver) clauses in the contracts. There was no Constitutional basis for this decision (none whatever – just “lawyer’s cant”) and the Federal Reserve notes declared valid money came from an organisation (the Federal Reserve system created in 1913) that the Congress had no Constitutional power to create. The Supreme Court, led by the Chief Justice, might as well have chanted “Death to America!” and “Hail Satan!” as they announced their judgement – as some of the dissenting judges pointed out. Thus the unconstitutional Credit Bubble financial system was pushed forward. The doubts of Luther Martin at the Constitutional Convention were vindicated – government appointed judges sitting without a jury can not be trusted.

July 22, 2017

Civil asset forfeiture is “an unconstitutional abuse of government power”

Filed under: Government, Law, Liberty, USA — Tags: , , , , — Nicholas @ 03:00

At the Hit & Run blog, Damon Root reports on at least one US Supreme Court justice’s strong views on civil asset forfeiture:

Attorney General Jeff Sessions announced this week that the Justice Department will increase the use of civil asset forfeiture, the practice that allows law enforcement officials to seize property from persons who have been neither charged with nor convicted of any crime. “Civil asset forfeiture is a key tool,” Sessions declared. “President Trump has directed this Department of Justice to reduce crime in this country, and we will use every lawful tool that we have to do that.”

But civil asset forfeiture is not a “lawful tool.” It is an unconstitutional abuse of government power. The Fifth Amendment forbids the government from depriving any person of life, liberty, or property without due process of law. Civil asset forfeiture turns that venerable principle on its head, allowing government agents to take what they want without the bother of bringing charges, presenting clear and convincing evidence, and obtaining a conviction in a court of law. It is the antithesis of due process.

By ordering the expansion of this unconstitutional practice, Sessions has placed himself on a collision course with Supreme Court Justice Clarence Thomas. As Thomas recently explained in a statement respecting the denial of certiorari in the case of Leonard v. Texas, not only has civil asset forfeiture “led to egregious and well-chronicled abuses” by law enforcement agencies around the country, but the practice is fundamentally incompatible with the Constitution.

As I described Sessions’ attitude in a post on Gab: “Asset forfeiture now, asset forfeiture tomorrow, asset forfeiture forever!” http://minx.cc:1080/?post=370736. The victims of asset forfeiture tend not to be the druglords or property tycoons … the majority are relatively poor and the asset being taken from them is often their primary financial possession. Druglords and tycoons can easily afford high-powered lawyers … poor people whose life savings have just been seized have no recourse at all in most states. As Senator Rand Paul said: “People who are victims of civil forfeiture are often poor, African American or Hispanic, and people who can’t afford an attorney to try to get the money that’s taken from them by the government”.

Megan McArdle points out that “civil asset forfeiture is […] almost the literal embodiment of that hoary old socialist proverb: ‘Property is theft’:”

Now, this may not seem unreasonable to you. Why should criminals be allowed to keep their ill-gotten gains? And fair enough, except for one small thing: They can take your stuff without charging or convicting you.

Law enforcement agencies have often been able to keep the seized assets for their own use, which has given them a keen interest in generating new civil asset forfeiture cases. As Justice Clarence Thomas remarked, while rebuking his colleagues for failing to hear a case on this topic, “this system — where police can seize property with limited judicial oversight and retain it for their own use — has led to egregious and well-chronicled abuses.” (And indeed, abuse is rampant.)

Because of those well-chronicled abuses, the Obama administration in 2015 ended what was known as the Equitable Sharing program, which allowed local law enforcement to seize assets and then transfer them to the federal government, with the federal government passing back part of the proceeds to the local department. This proved an excellent way to get around state laws, including those intended to funnel seized assets into state coffers. The Obama administration very sensibly decided that it didn’t want to help law enforcement become a sort of freelance tax authority, and shut this practice down.

Now Sessions has revived it. “How is this conservative?” demanded an earnest liberal of my acquaintance. And all I could reply was that that is a very good question.

May 6, 2017

Supreme Court to review Prohibition-era inter-provincial alcohol regulations

Filed under: Cancon, Law, Liberty — Tags: , , , , — Nicholas @ 04:00

Alan White reports that the Supreme Court of Canada has agreed to hearing an appeal of a New Brunswick court decision:

The Supreme Court of Canada has agreed to hear an appeal of a New Brunswick court ruling that declared it unconstitutional to limit the amount of alcohol someone can bring into the province.

At the centre of the case is Gerard Comeau of Tracadie, N.B. He was acquitted by a provincial court judge of exceeding provincial importation limits on beer and liquor that can be brought into New Brunswick.

Comeau was charged in 2012. RCMP had stopped him after he entered New Brunswick from Quebec with 14 cases of beer and three bottles of liquor. New Brunswick’s Liquor Control Act sets a personal importation limit of 12 pints of beer or one bottle of alcohol or wine.

Provincial court Judge Ronald LeBlanc ruled the liquor restriction was unconstitutional because Sec. 121 of the 1867 Constitution states products from any province “shall … be admitted free into each of the other provinces.”

Lawyer Ian Blue, who acted as part of Comeau’s defence team on behalf of the Canadian Constitution Foundation, says the case stands to have major implications.

Blue said the federal and provincial governments are currently discussing trade matters pertaining to NAFTA, milk marketing boards, softwood lumber tariffs, but “they’re not looking at this Comeau case.”

“This Comeau case, with the Supreme Court decision, could have more profound effects on interprovincial trade barriers than President Trump could,” said Blue. “That’s how important this case is.”

April 29, 2017

100 Days of Trump: Three Best and Worst Moments of Presidency So Far

Filed under: Liberty, Politics, USA — Tags: , , , , , — Nicholas @ 04:00

Published on 28 Apr 2017

Reason presents the three worst—and the three best—achievements of President Trump’s first 100 days.
____________________________________________

Third Worst Moment: Replace and Repeal FAIL.

Along with his pledge to build a wall on the southern border and deport illegal immigrants en masse, Trump’s campaign was all about ramming through the “Repeal and Replace Obamacare Act,” which would have cut red tape, gotten rid of the individual mandate, and created a true marketplace for medical insurance. Instead, thanks to the president’s own lack of savvy and GOP dithering, it didn’t even get a proper vote in Congress.

Third Best Moment: The nomination and confirmation of Neil Gorsuch.

The nomination of an intellectually powerful and highly respected jurist to replace the late Antonin Scalia on the Supreme Court demonstrated that President Trump isn’t the flake that many critics figured him to be. Neil Gorsuch might not be libertarian, but he is, in the estimation of Georgetown Law’s Randy Barnett, a serious thinker who believes that government power is and should be limited.

Second Worst Moment: The Country That Bombs Together.

The one action for which President Trump has received bipartisan praise was the bombing of a Syrian government air base to protest the alleged use of chemical weapons by the Assad regime. Even opposition leaders such as Nancy Pelosi and Chuck Schumer signed on to a starkly humanitarian intervention that served no greater purpose than rallying voters here in America.

Second Best Moment: Deregulatory appointees at the FDA, FCC, and EPA.

There’s no question that Trump has picked some terrible cabinet members—Attorney General Jeff Sessions has openly talked about ramping up the war on pot in states where it’s legal, for instance. He also defends asset-forfeiture abuse and has hinted at reviving federal porn prosecutions, too. But picks such as Ajit Pai at the Federal Communications Commission, Scott Gottlieb at the Food and Drug Administration, and Scott Pruitt at the Environmental Protection Agency are serious deregulators who are already starting to prune back regulations that accomplish little but cost taxpayers and innovators lots of time, money, and resources.

Worst Moment: Muslim Travel Ban.

The president has issued two executive decrees calling for a moratorium on travel from several majority-Muslim countries and the suspension of America’s refugee program. Both have been stayed by federal courts and it remains unclear if one will ever become the law of the land. Regardless it’s anti-American to effectively establish a religious test for travelers and migrants here—and it also undermines attempts to reach out to the vast majority of Muslims who are the primary targets of Islamic fundamentalism.

Best Moment: He’s Getting Real.

Every new president enters office thinking they can direct the course of human history via his pen or, in the case of Trump, his Twitter feed. For all his bluster and lack of self-awareness, he’s also learning that the world is more complicated than he reckoned. He’s pushed back deadines for all sorts of projects, from funding for his stupid and useless immigration wall to a timeline for tax reform, which shows that he is living in the real world at least. To the extent he realizes that his best path forward is in cutting economic regulations rather than vilifying immigrants, renegotiating trade deals, and starting new wars, he’ll not only be a better president—he’ll create a better America too.

Written by Nick Gillespie. Produced by Paul Detrick and Alexis Garcia.

February 12, 2017

“Never Go Full Ninth Circuit”

Filed under: Humour, Law, Media — Tags: , — Nicholas @ 05:00

In this week’s “G-File” “news”letter, Jonah Goldberg harks back to a scene from one of his favourite movies:

One of my favorite scenes of any comedy — and it’s very un-PC — is in Tropic Thunder when Robert Downey Jr. (in blackface!) explains to Ben Stiller that you “never go full retard.” The conversation is about film roles. Well, if you haven’t seen it, watch:

Now, I don’t like the term “retard” — and I really don’t like it in political debates. We aim for something loftier here.

Still, the scene came to mind because there should be a similar rule in legal circles: “Never Go Full Ninth Circuit.” Personally, I think it sounds better in Latin: Nolite umquam ire plenus nona circuit (and if any of you Latin pedants send me an e-mail correcting my translation, I will come to your house and scatter your Dungeons and Dragons figurines off the kitchen table).

The other day I noted on Special Report that Antonin Scalia had a rubber stamp on his desk with one of his favorite phrases: “Stupid but Constitutional.” I hope that one day, a Supreme Court justice will have a stamp on his desk that says, Numquam Plenus Nona Circuit.

Anyway, I understand that the case against the Ninth Circuit can be exaggerated. Yes, the West Coast’s federal appellate court has the highest rate of cases that have been overturned by the Supreme Court, but the vast majority of its cases don’t get appealed to the Supreme Court. Hence the qualifier “Full Ninth Circuit.” Going Full Ninth Circuit is when you claim that that the Pledge of Allegiance is unconstitutional. That’s a Simple Jack move, not a Rain Man or even a Forrest Gump move.

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