Tax Day Rant

When people tell me, "taxes are the price we pay to live in a civilized society," do you mean the society where:

• the President, without even consulting with Congress, much less getting authorization from them, launches 66 Tomahawk cruise missiles and 19 JASSM-ER's at a cost of $119M at a country that does not threaten the national security of the United States?
• the government uses civil asset forfeiture to seize property of people who are never convicted or even charged with a crime?
• the government continues to lock people up for minor drug offenses, then prevents them from getting a job or from voting because they have a felony on their record?
• the government is projected to spend a TRILLION more dollars than it collects just this year?
• unelected bureaucrats in administrative agencies write regulations, enforce those regulations, and then rule on those same regulations?
• the government (through the Federal Reserve) steals from you every day through inflation of the currency--a dollar in 1913 has lost over 96% of its value?

This is the same government that enforced the Fugitive Slave Act until the Civil War. This is the same government that rounded up Japanese American citizens during WW2 and a Supreme Court of the same government who said it was constitutional. A Supreme Court who also legitimized compulsory sterilization with the most infamous of words, "Three generations of imbeciles are enough."

When you tell me taxes pay for a "civilized society," those are the things I think of. What about you? I don't want any part of it. I'm sure you can come up with a list of all the great things government does for you. But if you want to claim those things you also get the baggage of mine.

Research Papers, Spring 2016

The Short Life and Quick Death of Cyber Deterrence (How I Learned to Stop Worrying and Love Cyber)

In 2015, the United States took three significant steps to developing a cyber deterrence policy. In April, the Department of Defense released the DoD Cyber Strategy. At the same time, President Obama issued an Executive Order authorizing sanctions against cyber actors. And in December, the White House released its long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts, but it ill-suited to cybersecurity. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. Third, insomuch as deterrence is a public relations communications strategy and psychological game backed by capability and credibility, the United States has a poor track record of deterring cyber-attacks.

To understand this problem, my research begins with a brief historical review of the development of deterrence theory, in particular as it relates to conventional war and the Cold War. Next, I turn to the development of cyber deterrence as a strategy of the American government, and in particular, recent efforts by the United States to define a cyber deterrence policy. In that light, I examine the White House cyber deterrence policy from a historical and critical perspective, and especially given the distinct characteristics that distinguish cyber deterrence from traditional deterrence. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.

Ultimately, this paper concludes that the current synthesis of cyber deterrence is unworkable and ought to be scrapped. As a result, cyber deterrence as an overall public relations strategy should be de-emphasized as part of an aggressive cyberspace strategy that acknowledges both defensive and offensive capabilities. To be sure, sub-components of the current policy, like strengthening networks to reducing the incentive to conduct cyber-attacks, are laudable goals that the United States should continue to pursue. However, relying on deterrence by denial as a publicly communicated strategy to discourage attacks has failed, and continues to fail with each new attack. Instead, American efforts should focus on improving attribution, not as a deterrent measure, but to allow policy makers the ability to respond to attacks with offensive cyber capabilities.

All the Laws But One: Civil Liberties in National Emergencies

Former Chief Justice William Rehnquist’s book "All the Laws But One" is an account of the history of civil liberties during times of war and examines cases where presidents have suspended the law in the name of national security. Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,” Rehnquist’s work discusses wartime powers, focusing on cases involving the Civil War, World War I, and World War II. On the other hand, events of the last century, including threats of severe economic collapse, natural disasters such as earthquakes, destructive hurricanes, and tsunamis, outbreaks of infectious diseases or other public health emergencies, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through confiscation of property, arbitrary detentions, mandatory evacuations, mandatory vaccinations, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these abuses have made a mockery of the rule of law. We should not be surprised when it happens again.

Western Sparks: The Constitutionality of Federal Land Management from the Founding to the Civil War

The constitutional basis for federal land ownership has not been seriously questioned in modern times. As early as 1840, the Supreme Court declared that Congress’ constitutional power over public lands was without limitation. The Court affirmed the federal government’s police power over public lands repeatedly, and as recently as 1976.

This paper does not dispute that classic property clause doctrine is at odds with the contemporary jurisprudence regarding federal land ownership and management as adjudicated by the courts. Rather, this research focuses on exploring the original understanding of federal land ownership as seen through three parallel tracks: first, political doctrines, including dual federalism, compact theory, and nullification; second, federal land principles and policies, including acquisition and disposition; and third, early Supreme Court decisions. Moreover, this paper seeks to examine whether classic property clause doctrine and other constitutional origins of power regarding federal lands were consistent with historical events and developments that occurred along these tracks from the founding through the Civil War. 

This paper concludes that political doctrines that supported the classic property doctrine were live at least until the early 20th century. These doctrines were seriously undermined by the Civil War, Reconstruction amendments, and finally by the New Deal. While federalism saw a minor revival in the 1990s by the Supreme Court, these political doctrines are now largely regarded as antebellum relics. Furthermore, federal land acquisition and disposition policies generally supported the classic property theory, at least until Withdrawal and Reservation at the beginning of the 20th century. Finally, Supreme Court decisions provided support for both the classic and police power theories. However, the full-fledged police power theory embraced in Kleppe was not fully articulated until the 20th century.

Research in progress, Spring 2016

Originalism and the Constitutionality of Federal Land Management

The federal government derives its power over federal lands from three clauses in the Constitution: the Article I Enclave Clause; the Article IV New States Clause; and the Article IV Property Clause. Additionally, the Article II Treaty Clause has been used to justify the acquisition of new lands. This research focuses on exploring the original understanding of federal land ownership as seen through colonial land policies, debates during the drafting and ratification of the Constitution, 19th-century American land acquisition, and early Supreme Court decisions. Moreover, this paper seeks to examine whether the constitutional origins of power regarding federal lands are consistent with these historical events and developments. This paper concludes that the political doctrines in support of classic and protective property theories were live at least until the mid-1800s. However, these doctrines were undermined by the Civil War, the Reconstruction amendments, and the New Deal. In addition, federal land policies regarding the acquisition and disposition of land supported the protective property theory, until the withdrawal and reservation of lands began at the onset of the 20th century. A parallel development in the courts, beginning in 1840, provided support for both the protective and police power theories. And by the early 20th century, the police power theory was fully embraced. Ultimately, the historical evidence is mixed. Nevertheless, this evidence does demonstrate that the prescribed role for the federal government in regards to its constitutional authority over federal lands was not clear for a considerable time after the nation's founding. 

All the Laws but One: Civil Liberties in National Emergencies

Former Chief Justice William Rehnquist’s book All the Laws but One is an account of the history of civil liberties during wartime and examines cases where presidents have suspended the law in the name of national security.  Since the Constitution’s Suspension Clause only applies “when in cases of rebellion or invasion,”  Rehnquist’s work discusses wartime powers, primarily focusing on cases involving the Civil War and World War II. On the other hand, events of the last few decades, including destructive hurricanes and tsunamis, outbreaks of infectious diseases, or threats of severe economic collapse, suggest that governments may need to exert wartime-style powers to manage these potential disasters. Thus, state and federal governments may be confronted with the need to curtail civil liberties through mandatory evacuations, mandatory vaccinations, arbitrary detentions, or other forced measures. This paper seeks to examine the constitutionality of such measures in the absence of direct rebellion or invasion. Through a review of relevant history, including Supreme Court and other judicial opinions, executive actions, and policy decisions, this paper ultimately concludes that weighty precedents already exist for abuse of civil liberties outside of wartime. Furthermore, the state and federal governments would not likely hesitate to use—and abuse—these precedents in an attempt to exert control in the midst of such emergency situations. Ultimately, these potential abuses threaten to make a mockery of the rule of law.

Is Cyber Deterrence an Effective Strategy?

In December 2015, the White House released its own long-anticipated cyber deterrence policy. Specifically, the White House policy is built on a two-element strategy of deterrence by denial; and deterrence through cost imposition. Unfortunately, the White House policy does little to address or answer the thorny legal questions raised by the reality of today's cybersecurity environment. First, the policy relies on traditional notions of deterrence that may have been effective in prior nuclear and non-nuclear contexts. Second, the policy focuses primarily on defensive strategies and does not confront the reality and likelihood of offensive counter-operations. This paper will examine the White House cyber deterrence policy from a historical and critical perspective, as well as address the impacts on international law. Finally, this paper will discuss whether deterrence is even a reasonable strategy in the cyber environment.

Conflicts between the federal government and the states: who wins?

My good friend Joshua Marpet asked me on Facebook to compare the following two situations: 

Medical Marijuana is legal to states, but federally illegal. On the other hand, he cited an article where a state Representative in Texas was attempting to pass a state law which would seek to criminalize the public recording of police, or otherwise exempt only a defined set of news media from such criminalization.

These two issues are both related and different. Let's tackle the marijuana issue. Marijuana is a Schedule I drug under the Controlled Substances Act; and its manufacture, importation, possession, use and distribution is illegal by federal law. That some states have legalized marijuana for medical uses (or for recreational uses) does not change this fact. This is a Supremacy Clause issue. That clause reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

What this means is that when federal and state laws conflict, the federal law wins.  So the federal government could go into every state that has legalized marijuana in any way, and shut down their operations. People who otherwise would be permitted to use marijuana by their states could still be subject to federal criminal penalties for those uses.  Such actions would be fully consistent with the Supremacy Clause and the Constitution. The only difference here is that the federal government has largely chosen to acquiesce to the states on this issue (probably as a result of growing public acceptance). But this doesn't prevent the federal government from changing its mind regarding the enforcement of federal laws in the future. Another administration less tolerant of state marijuana laws could, consistent with the Supremacy Clause and the Constitution, enforce federal law in states that have otherwise legalized marijuana.

A good example of a proposed law that would likely fail on Supremacy Clause grounds (and for other reasons, such as separation of powers) is a proposed Utah law to cut off water to the new NSA facility in Bluffdale, Utah. Proposed laws like these, and others under the category of nullification (a long-ago discredited doctrine), simply don't pass muster.

The second issue involves whether a state can proscribe (or prohibit) conduct which is presumably legal under federal law. A short aside: the cited article suggests that criminalizing the recording of police "could be considered an act of defiance to mountains of legal precedent set forth by the Supreme Court of the United States." To be sure, the Supreme Court has never ruled on the specific issue of whether citizens have a legal right to film the police. The case that the article cites is Glik v. Cunniffe, which is a First Circuit case. The holding in this case only applies to the First Circuit; but for the purposes of this post, let's assume that indeed, the Supreme Court had affirmed the Glik decision.

In the area of individual rights, the federal government (or more precisely, the federal courts) set the minimum standard as to what is permitted. The states can provide more protection to individual rights, but not less; so long as those rights do not infringe on any federal constitutional rights. Here are two examples. First, in Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court held that DUI checkpoints were reasonable under the Fourth Amendment. Nonetheless, a number of states have found such checkpoints to violate the state constitutions or have otherwise outlawed them. Here, the states are providing more protection to individual rights of its citizens than the federal government, and as a result, this is permissible. Second, the Supreme Court has held that people generally do not have freedom of speech in private shopping centers; but on the other hand, California's constitution provides greater protection to speech than the First Amendment. So in California, people can exercise free speech even in a privately-owned shopping center. This too is permissible.

The proposed legislation in the cited article appears to do expressly the opposite: it purports to provide less protection to individual rights than is already permitted by federal law (again, assuming that Glik had been affirmed by the Supreme Court). When states attempt to restrict the rights of its people more than the federal government does, this rules afoul of--you guessed it--the Supremacy Clause. Even now--when there is no Supreme Court ruling affirming the right of people to film the police--I suspect a state law like the one proposed above would violate the First Amendment.

I hope this adequately answers the question!

Law in Plain English: Department of Transportation v. Association of American Railroads

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Department of Transportation v. Association of American Railroads

Argument: Dec 3 2014 (Aud.)

Background: Section 207 of the Passenger Rail Investment and Improvement Act of 2008 empowers Amtrak and the Federal Railroad Administration (FRA) to jointly develop performance measures to enhance enforcement of the statutory priority Amtrak's passenger service has over other trains. The Association of American Railroads, a trade association who members include the largest freight railroads, challenged the statutory scheme as unconstitutional. The district court rejected these claims, but the D.C. Circuit reversed. The panel found that Amtrak was a private corporation with respect to Congress's power to delegate regulatory authority, and as such § 207 constituted an unlawful delegation of regulatory power to a private entity.

Issue: The question before the Court is whether Section 207 of the Passenger Rail Investment and Improvement Act of 2008, which requires the Federal Railroad Administration (FRA) and Amtrak to “jointly...develop” the metrics and standards for Amtrak’s performance that will be used in part to determine whether the Surface Transportation Board (STB) will investigate a freight railroad for failing to provide the preference for Amtrak’s passenger trains that is required by federal law, and provides for the STB to appoint an arbitrator if the FRA and Amtrak cannot agree on the metrics and standards within 180 days, effects an unconstitutional delegation of legislative power to a private entity.

Holding: In a 9-0 decision, the Supreme Court ruled that for purposes of determining the validity of the metrics and standards, Amtrak is a governmental entity. The Court found that congressional pronouncements are not dispositive of Amtrak’s status as a governmental entity for purposes of separation of powers analysis under the Constitution, and as a result, the Court remanded the case  for determination of substantial questions respecting the lawfulness of the metrics and standards—including questions implicating the Constitution’s structural separation of powers and the Appointments Clause.

Law in Plain English: McCullen v. Coakley

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Planned Parenthood's clinic in Boston, MA. The
yellow line on the sidewalk and street marks the
35-feet buffer zone. Image from Google Street View.

SCOTUSblog: McCullen v. Coakley

Argument: Jan 15 2014 (Aud.)

Discussion: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed.

Planned Parenthood's Springfield, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Issue: The questions before the Court are (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Massachusetts law which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility violates the First Amendment.

Planned Parenthood's Worcester, MA clinic has
white arcs painted on the street to represent the
buffer zone. Image from Google Street View.

Law in Plain English: National Labor Relations Board v. Noel Canning

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: National Labor Relations Board v. Noel Canning

Photo from
Noel Corporation.

Argument: Jan 13 2014 (Aud.)

Background: The National Labor Relations Board (NLRB or Board) found that Noel Canning violated section 8(a)(1) and (5) of the National Labor Relations Act (NLRA) by refusing to reduce to writing and execute a collective bargaining agreement reached with Teamsters Local 760 (the Union). Noel Canning appealed, alleging that the Board lacked authority to act for want of a quorum, as three members of the five-member Board were never validly appointed because they took office under recess appointments which were made when the Senate was not in recess. Second, it asserts that the vacancies these three members purportedly filled did not "happen during the Recess of the Senate," as required for recess appointments by the Constitution. The D.C. Circuit ruled that the Board issuing the findings and order could not lawfully act, as it did not have a quorum.

Issue: The questions before the Court are (1) whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate, and (2) whether the President’s recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

Holding:  In a 9-0 decision, the Supreme Court ruled that the Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. For purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.

Law in Plain English: Executive Benefits Insurance Agency v. Arkison

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Executive Benefits Insurance Agency v. Arkison

Argument: Jan 14 2013 (Aud.)

Discussion: Nicholas Paleveda and his wife, Marjorie Ewing, operated Aegis Retirement Income Services, Inc. ("ARIS") and the Bellingham Insurance Agency, Inc. ("BIA"). ARIS designed and administered defined-benefit pension plans, and BIA sold insurance and annuity products that funded those plans. BIA became insolvent, and Paleveda used BIA funds to incorporate the Executive Benefits Insurance Agency, Inc. ("EBIA"). In the meantime, BIA filed a voluntary Chapter 7 bankruptcy petition. The Trustee, Peter Arkison, filed a complaint against EBIA and ARIS to recover the commissions deposited into the EBIA/ARIS account, which the Trustee alleged to be property of the estate. The complaint alleged fraudulent transfer claims and a claim that EBIA was a successor corporation of BIA and therefore liable for its debts. The bankruptcy court granted summary judgment in favor of the Trustee, concluding that the deposits into the EBIA/ARIS account were fraudulent conveyances of BIA assets and that EBIA was a "mere successor" of BIA. The bankruptcy court entered a final judgment for $373,291.28. EBIA appealed to the federal district court, which affirmed the judgment. EBIA appealed again, and now for the first time claimed that the bankruptcy judge was constitutionally proscribed from entering final judgment on the Trustee's claims. The Ninth Circuit concluded Article III bars bankruptcy courts from entering final judgments in actions brought by a noncreditor absent the parties' consent, but that EBIA consented to the bankruptcy court's jurisdiction. As a result, that court's entry of summarj' judgment in favor of the Trustee was acceptable.

Issue: The questions before the Court are  (1) whether Article III permits the exercise of the judicial power of the United States by bankruptcy courts on the basis of litigant consent, and, if so, whether "implied consent" based on a litigant’s conduct, where the statutory scheme provides the litigant no notice that its consent is required, is sufficient to satisfy Article III; and (2) whether a bankruptcy judge may submit proposed findings of fact and conclusions of law for de novo review by a district court in a “core” proceeding under 28 U.S.C. 157(b).

Holding: In a unanimous decision, the Supreme Court ruled that under Stern v. Marshall, a bankruptcy court may not enter final judgment but may issue findings of fact and conclusions of law to be reviewed de novo by a district court.

Law in Plain English: Bond v. United States

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

SCOTUSblog: Bond v. United States

Argument: Nov 5 2013 (Aud.)

Did you know? Bond v. United States is one of very
few cases that have been to the Supreme Court twice.

Background: Bond, an employee of the chemical manufacturer Rohm and Haas, learned that her friend Myrlinda Haynes was pregnant and that Bond's own husband was the baby's father. Bond stole chemicals from work and bought others over the Internet and then applied them to Haynes's mailbox, car door handles, and house doorknob. She was charged and convicted of violating the Chemical Weapons Convention Implementation Act of 1998, which implements the 1993 Chemical Weapons Convention. The Third Circuit affirmed.

Issue: The questions before the Court are 1) whether the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations; and (2) whether the provisions of the Chemical Weapons Convention Implementation Act can be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland ("If the treaty is valid there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government").

Holding: In a 9-0 decision, the Supreme Court ruled that Section 229 of the Act does not reach Bond's simple assault. The Court did not interpret the scope of the international weapons treaty at issue. State laws are sufficient to prosecute an assault like the one in this case. There is no indication in the federal law that Congress intended to abandon its traditional reluctance to define as a federal crime conduct controlled as criminal by the states.

Here are my ShmooCon submissions

I made two submissions to ShmooCon this year. The first is a full-fledged talk and the second is a "One Track Mind" 20-minute talk. Here are the abstracts, and wish me luck!

©opyright Gone Wrong: Our Broken System and How We Can Fix It

The Constitution grants the Congress the power to enact intellectual property laws "[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Since the founding of our country, protection of intellectual property has undergone several systematic changes that have extended the time rights are protected. Additionally, protections have gotten increasingly aggressive and oppressive. This presentation will briefly discuss the history and development of IP law, and then focus on the more recent and onerous provisions that have become embroiled in controversy. Along the way, we'll talk about the Digital Millennium Copyright Act,  copyright and patent trolls, and other methods of intellectual property abuse. Lastly, we will take a look at some of the ways we can reform our broken system to free consumers from burdensome restraints, while at the same time protecting the intellectual property of the creators.

Having Your Cake and Eating It Too: FOIA, Surveillance, and Privacy

In Washington, DC, the federal government is arguing against a prolific Freedom of Information Act (FOIA) requester that his multitudinous requests, taken together, constitute a "mosaic" of information whose release could "significantly and irreparably damage national security" and would have "significant deleterious effects" on the bureau's "ongoing efforts to investigate and combat domestic terrorism." In the District of Columbia, the federal government is defending the legality of the intelligence community's surveillance programs under a 1979 Supreme Court case, Smith v. Maryland, that found constitutional use of a “pen register” device to gather information on numbers called by a criminal suspect. So, yes: the government is simultaneously arguing to that too much otherwise-legitimate FOIA data creates a mosaic that threatens national security--but large scale metadata collection, far beyond anything contemplated by a simple pen register device in 1979--is perfectly legitimate. Is this a problematic dichotomy? And if so, what can we do about it?

No, AT&T is not charging customers a Lawful Interception Recovery Fee

For more information, follow me on Twitter.

I guess they don't tap my phone because this isn't on my AT&T statement (I just checked). What is $0.61 for? It's not even lined up correctly. Five line items, six charges? Bad math? Also, why is everyone across the entire Internet posting the same image? If they're doing this to everyone, why isn't everyone posting their own respective phone bills? Looks like bad photoshop to me. If there is evidence out there to prove me wrong, please share and I'll be the first one to admit I was wrong. Until then, I call fake.

Edited to add (8/11/13): Even if this is a legitimate, CALEA-based lawful intercept fee, that doesn't make it "NSA"-related. Two very different things.

Update (8/12/13): Nearly 10,000 people have viewed this post in the last 24 hours!

Update (8/12/13): Snopes has now this as false. They contacted AT&T who confirmed as much.

"I dare you to step over this line!"

Remember this one?

When Bugs Buggy dared Yosemite Sam to step over the line, I suspect he didn't think it would turn out to be a federal case. Nonetheless, two cases in the upcoming Supreme Court term quite literally involve lines in the sand, er, ground.

United States v. Apel: Dennis Apel is a frequent protester at the front gate of  Vandenberg Air Force Base. He was as subject to a pre-existing order barring him from the base, and was convicted of trespassing under 18 U.S.C. § 1382. After his conviction, the Ninth Circuit ruled in another case that a stretch of highway running through the base was subject to an easement "granted to the State of California, which later relinquished it to the County of Santa Barbara," and as a result the federal government lacked the exclusive right of possession of the area on which the trespass allegedly occurred. Therefore, a trespassing conviction under § 1382 was not valid. In a per curiam decision, the Ninth Circuit reversed Apel's conviction. The Supreme Court will decide whether a federal law which prohibits a person from reentering a military installation after a commanding officer has ordered him not to reenter, may be enforced on a portion of a military installation that is subject to a public roadway easement. The protest area outside the front gate of the base is represented by the green line painted on the road in the image below.

McCullen v. Coakley: The Massachusetts legislature passed a law that created fixed and floating buffer zones around abortion clinics. In 2007, the legislature amended the statute to create a fixed thirty-five-foot buffer zone around the entrances, exits, and driveways of abortion clinics. McCullen and other plaintiffs regularly engage in "sidewalk counseling" at abortion clinics, but argue that the buffer zones prevent close personal contact with their intended audience and, thus, impede their ability to communicate effectively. The District Court ruled that the statute is a content-neutral, narrowly tailored time-place-manner regulation that protects the rights of prospective patients and clinic employees without offending the First Amendment rights of others; and the First Circuit affirmed. The Supreme Court will decide (1) whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents...acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled. One of the clinic buffer zones is indicated by the painted white arc in the image below.

Can the Department of Justice file federal criminal civil rights charges against George Zimmerman?

Earlier today, the Department of Justice released the following statement:

"As the Department first acknowledged last year, we have an open investigation into the death of Trayvon Martin. The Department of Justice's Criminal Section of the Civil Rights Division, the United States Attorney's Office for the Middle District of Florida, and the Federal Bureau of Investigation continue to evaluate the evidence generated during the federal investigation, as well as the evidence and testimony from the state trial. Experienced federal prosecutors will determine whether the evidence reveals a prosecutable violation of any of the limited federal criminal civil rights statutes within our jurisdiction, and whether federal prosecution is appropriate in accordance with the Department's policy governing successive federal prosecution following a state trial.”

Here is a list of some of the federal criminal civil rights statutes that the Department of Justice can enforce. The most likely possibilities (pending further research) are 18 U.S.C. § 245 and 18 U.S.C. § 249 (Matthew Shepard and James Byrd, Jr., Hate Crimes Prevention Act of 2009). § 245 reads in part:

(b)Whoever, whether or not acting under color of law, by force or threat of force willfully injures, intimidates or interferes with, or attempts to injure, intimidate or interfere with-- 

(2) any person because of his race, color, religion or national origin and because he is or has been-- 

(E) traveling in or using any facility of interstate commerce, or using any vehicle, terminal, or facility of any common carrier by motor, rail, water, or air; 

shall be fined under this title, or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title, or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnaping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

In terms of 18 U.S.C. § 245, the Department of Justice would have to prove beyond a reasonable doubt that George Zimmerman interfered with Trayvon Martin's right to travel any facility of interstate commerce, or a common carrier, on account of his race. (the right to travel is one of six enumerated federally protected activities). Here are the immediate problems I see:

• Proving race beyond a reasonable doubt might be problematic when the FBI's report concluded that race was not a factor.
• Are the streets of the gated community public streets? Some places they are, some places they are not. I have no idea what the case is in Florida, in this specific neighborhood.
• Even if the street is public, is walking on a small, local neighborhood street a federally protected activity connected to interstate commerce?
• Did Zimmerman "willfully injure" Martin if he acted in self defense?
• Is following someone sufficient to "interfere" with them?
• Most recent examples of successful prosecutions at the federal level after being acquitted at the state level are law enforcement (see, i.e., the Rodney King trials). That's not to say other examples don't exist where the person was not law enforcement; I just haven't found any recent examples.

In terms of 18 U.S.C. § 249, this statute is more powerful because the Government would not have to prove any of the six enumerated federally protected activities. On the other hand, the Government must still prove that the crime was in or affected interstate or foreign commerce.

If any of this sounds like double jeopardy, your sense is good. Generally, one cannot be prosecuted twice for the same crime when the penalty is punitive in nature (on the other hand, a civil trial like the one O.J. Simpson faced is permissible because the standard of proof is different and the penalty is not considered punitive). However, the Department of Justice has carved out a limited set of circumstances in which courts have tended to allow a federal prosecution following a state trial even when the person was originally acquitted.

Here is my (slightly) informed speculation:  the Department of Justice released the statement to placate people for a while. They'll do a pro forma investigation and then wait until the flames die down before they claim that they won't (read: can't) file charges. I don't think the Zimmerman case fits within the limited set of circumstances as currently defined by Justice. But who knows. In this case, and in this day and age, anything could happen.

Law in Plain English: Shelby County v. Holder

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

See here for a previous discussion and more background on the constitutionality of the Voting Rights Act.

Shelby County v. Holder

In 2006, Congress reauthorized Section 5 the Voting Rights Act (VRA), which kept in place a pre-existing coverage formula in Section 4(b) which determined which jurisdictions are required see seek preclearance for changes to voting procedures. Shelby County, Alabama filed a lawsuit in the U.S. District Court for the District of Columbia, seeking a declaratory judgment that the Voting Rights Act (specifically, Sections 4(b) and 5) were unconstitutional. The District Court disagreed and granted summary judgment to the Attorney General. A divided Court of Appeals affirmed. The question before the Court was whether Congress’ decision to reauthorize Section 5 of the VRA under the pre-existing coverage formula of Section 4(b) of the VRA exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution. In a 5-4 decision, the Supreme Court ruled that Section 4 of the Voting Rights Act t is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. As a result, Congress cannot use the VRA's existing preclearance formula to single out jurisdictions--they must use data about current conditions.

Clarence Thomas, affirmative action, and Brown v. Board of Education

From Justice Thomas's concurrence in Fisher v. University of Texas at Austin:

The University’s arguments today are no more persuasive than they were 60 years ago. Nevertheless, despite rejecting identical arguments in Brown, the Court in Grutter deferred to the University’s determination that the diversity obtained by racial discrimination would yield educational benefits. There is no principled distinction between the University’s assertion that diversity yields educational benefits and the segregationists’ assertion that segregation yielded those same benefits.  Educational benefits are a far cry from the truly compelling state interests that we previously required to justify use of racial classifications.

...

My view of the Constitution is the one advanced by the plaintiffs in Brown: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.”

...

Although cloaked in good intentions, the University’s racial tinkering harms the very people it claims to be helping.

Law in Plain English: United States v. Kebodeaux

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

United States v. Kebodeaux

In 1999, Kebodeaux was convicted of statutory rape in whole in the military. He served his sentence and was discharged (and under no further control of the military or the federal government in general). In 2006, Congress enacted the Sex Offender Registration and Notification Act (SORNA) that required registration of sex offenders, and he was convicted of failing to update his change of address when he moved. A panel of the Fifth Circuit affirmed his conviction, but it was reversed en banc. The questions before the Court were: (1) whether the court of appeals erred in conducting its analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender; and (2) whether the court of appeals erred in holding that Congress lacks the Article I authority to provide for criminal penalties as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted. In a 7-2 decision, the Supreme Court ruled that SORNA’s registration requirements as applied to Kebodeaux fall within the scope of Congress’ authority under the Necessary and Proper Clause. The Court reasoned that, upon his release, Kebodeaux was still subject to the Wetterling Act and thus his release was condition.  As a result, Congress still had the power to require him to register. The practical impact of this decision affirms the power of Congress to exert control over offenders even after their sentences have been served.

Law in Plain English: Fisher v. University of Texas at Austin

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Fisher v. University of Texas at Austin

Any Texas resident who graduates from high school in the top ten percent of their class is automatically admitted to the University of Texas (the "Top Ten Percent Plan"). The remaining spots are filled by students based on a number of other factors, including race. When Fisher was denied admission, she filed a lawsuit alleging that considering race discriminated against her because is white. She alleged that the Top Ten Percent Plan already resulted in making the University a highly diverse institution, and that considering race among the factors for the remainder of students was unconstitutional racial balancing. The question before the Court was whether the University's use of race in admissions decisions as a means of affirmative action violated the Equal Protection Clause of the Fourteenth Amendment. In a 7-1 decision (with Justice Kagan recused), the Supreme Court ruled that because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, its decision affirming the District Court’s grant of summary judgment to the University was incorrect. As a result, the case will return to the Fifth Circuit for another look. The practical impact of this decision is that the Court did not directly rule on the merits--this is a compromise decision that will be taken up again next term in a different case.

Law in Plain English: Salinas v. Texas

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Salinas v. Texas

The police asked Salinas to accompany them to the police station, where he went voluntarily (and he was not under arrest). They asked Salinas questions about a murder, all of which he answered. But when asked whether shell casings found at the scene matched a shotgun given to police by Salinas's father, he looked down and did not answer. Salinas was later arrested and charged with the murder. At trial, the prosecutor used Salinas's silence as evidence of his guilt. An innocent person, he said, would have protested. The jury convicted Salinas, and the Court of Criminal Appeals of Texas affirmed. The question before the Court was whether or under what circumstances the Fifth Amendment’s Self-Incrimination Clause protects a defendant’s refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights. In a 5-4 decision, the Supreme Court ruled that Salinas’s Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer’s question. As a result, his silence can be used against him. The practical impact of this decision is unclear--the majority's reasoning was split between the failure to invoke (Alito, Roberts, Kennedy) and whether the Fifth Amendment should apply at all (Thomas, Scalia). Prosecutors may be able to use silence as evidence of guilt when a person under voluntary questioning (but not arrest), but the reasoning is not necessarily clear.

An interesting admission from Justice Scalia in the DNA patent case?

Justice Scalia's concurrence in today's decision in Association for Molecular Pathology v. Myriad Genetics, Inc.:

JUSTICE SCALIA, concurring in part and concurring in the judgment.
I join the judgment of the Court, and all of its opinion except Part I–A and some portions of the rest of the opinion going into fine details of molecular biology. I am unable to affirm those details on my own knowledge or even my own belief. It suffices for me to affirm, having studied the opinions below and the expert briefs presented here, that the portion of DNA isolated from its natural state sought to be patented is identical to that portion of the DNA in its natural state; and that complementary DNA (cDNA) is a synthetic creation not normally present in nature.

A very interesting admission from a Supreme Court Justice, and especially from Justice Scalia? He seems to be saying "I don't quite understand the science enough to join the entire opinion, but I'm sufficiently informed to agree with the overall decision."

Law in Plain English: Association for Molecular Pathology v. Myriad Genetics, Inc.

This is one in a series of posts designed to describe court decisions in plain English. For more detail and background on the legal issues, see the link to the case below. For similar posts, click here.

Association for Molecular Pathology v. Myriad Genetics, Inc.

Myriad Genetics obtained several patents on “isolated” forms of several genes. A group of challengers (four national organizations of doctors, researchers, clinicians, and other health professionals, along with six leading geneticists, two genetic counselors, two women’s health and breast cancer organizations, and six patients who had been diagnosed as being at risk for one of the hereditary forms of cancer) opposed Myriad Genetics by claiming that Myriad hadn't created anything, since the genes remained unchanged, and “natural phenomena” or something that is merely the product of “the laws of nature” cannot be patented. The District Court ruled in favor of the challengers, but the Federal Circuit reversed, finding that all of the challengers (but one, a doctor from NYU who had been doing research on the genes in question but stopped because he feared Myriad might take action against him) lacked standing, and that Myriad's patents were valid. The question before the Court was whether human genes are patentable. In a 9-0 decision, the Supreme Court ruled that natural isolated DNA is not patentable, but synthetic DNA is patentable. A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but cDNA is patent eligible because it is not naturally occurring. As a result, Myriad's patents (which were based on natural isolated DNA) are not valid.