Podcast subscriptions, April 2020

Here is my list of podcast subscriptions as of April 2020:

Backstage Journal with Rhett Shull
The Bob Murphy Show
Bound by Oath
The Brion McClanahan Show
Cato Daily Podcast
Contra Krugman
Daily Audio Bible
Grammar Girl
Lexicon Valley
The Libertarian Podcast
Make No Law
Part-Time Genius
RadioLab Presents: More Perfect
Serial
Short Circuit
This American Life
The Tom Woods Show
The Way I Heard It with Mike Rowe
The Week in Review at Abbeville Institute

Pennsylvania child sex crimes law reform and statutes of limitations

Pennsylvania State Rep. Mark Rozzi (who graduated from Muhlenberg High School several years before I did) has spent much of his time since his election in November 2012 advocating for reform of the state's child sex crimes laws. Rozzi himself was the victim of child sexual abuse by a priest at the age of 13.

However, reform efforts have been blocked, as this article indicates, by groups representing the Catholic Church and its insurance companies. According to the article, "[v]ictims say it’s clear that money talked in the Capitol last week because Senate President Pro Tempore Joseph Scarnati’s words were too familiar to be coincidental." The article then quotes Scarnati, Matt Haverstick (a Philadelphia lawyer representing the Harrisburg diocese and Greensburg diocese), and Sam Marshall (CEO of the Insurance Federation of Pennsylvania), all who voice concerns about the constitutionality of the proposed reforms, specifically those involving retroactive changes that would re-open previously lapsed statutes of limitation for civil lawsuits and even criminal charges.

The article points to state campaign finance records and suggests that insurance industry contributions to Scarnati and Senate Majority Leader Jake Corman are part of a insurance industry effort to sway the votes of legislators. That's a fair concern.

But what is also true is that at least some of the contemplated measures in the proposed reforms of the state's child sex crimes laws are in fact likely to be unconstitutional. As this article explains:

The bill, which has moved to the state Senate for final consideration, would specifically reform the state's statute of limitations laws.

Currently, survivors of child sex crimes have until age 30 to file a civil claim and until age 50 to file criminal charges against their abusers. Legislation to reform the law, which has been pushed to the Senate for final consideration, would give victims until age 50 time to file lawsuits and eliminate the statute of limitation entirely for criminal prosecutions.

He has also included an amendment to the bill that would create a two-year "window to justice," during which those survivors for whom the civil window has already closed could file a retroactive civil claim.

Retroactive changes to statute of limitations laws should set off constitutional alarm bells. Depending upon how it is enacted, the elimination of the statute of limitations for criminal prosecutions would almost certainly run afoul of the Supreme Court's ruling in Stogner v. California, 539 U.S. 607 (2003), which held that "a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution."

And while the U.S. Constitution's Ex Post Facto Clause only applies to criminal laws, Pennsylvania's state constitution has a remedies clause that prevents retroactive changes to both civil and criminal statutes of limitations. Regarding this legislation, most experts agree the changes would be unconstitutional (although at least some would disagree). Some have suggested that in the face of uncertain constitutionality, the legislature should pass the law and let the courts decide:

Sen. John C. Rafferty...said it was incumbent on the committee to consider the legislation before it. He said should issues of constitutionality arise, it was best left up to "people in black robes."

But I'm not sure this is right, either. The legislature (and the governor) play important roles in determining the constitutionality of proposed legislation. Deferring constitutionally questionable legislation to the courts is an abdication of responsibility by elected officials.

Reform of the state's child sex crimes laws is an important issue. It is also a highly-charged, emotional one. Finding a solution requires compromise between those who seek justice for victims of child sexual abuse and the restrictions set forth by the U.S. Constitution and Pennsylvania state constitution.

Podcast subscriptions, February 2018

Here is my list of podcast subscriptions as of February 2018:

Arms Control Wonk Podcast
The Brion McClanahan Show
Cato Daily Podcast
Contra Krugman
EconTalk
Grammar Girl
The Libertarian Podcast
Quality Policing Podcast
RadioLab Presents: More Perfect
Serial
Tech Policy Podcast
This American Life
The Tom Woods Show
The Way I Heard It with Mike Rowe
The Week in Review at Abbeville Institute

Podcast subscriptions, December 2017

Here is my list of podcast subscriptions as of December 2017:

Arms Control Wonk Podcast
Cato Daily Podcast
Contra Krugman
EconTalk
Emperors of Rome Podcast
Grammar Girl
The Libertarian Podcast
RadioLab Presents: More Perfect
Serial
Tech Policy Podcast
The Brion McClanahan Show
The Tom Woods Show
The Way I Heard It with Mike Rowe
The Week in Review at Abbeville Institute
This American Life

FYI: I recently switched to Pocket Casts for podcasts and some audiobooks.

Podcast subscriptions, February 2017

Here is my list of podcast subscriptions as of February 2017:

The Brion McClanahan Show
Cato Daily Podcast
Contra Krugman
EconTalk
Emperors of Rome Podcast (new addition)
Grammar Girl
The History of Rome Podcast (new addition)
The Lara Murphy Report
The Libertarian Podcast
RadioLab Presents: More Perfect
Serial
Tech Policy Podcast
The Tom Woods Show
The Way I Heard It with Mike Rowe

FYI: I use Doggcatcher for podcasts and some audiobooks.

Podcast subscriptions, May 2016

Here is my list of podcast subscriptions as of May 2016:

The Art of Manliness
Cato Daily Podcast
Contra Krugman
EconTalk
The Eric Metaxas Show (new addition)
Federalist Society SCOTUScast
Grammar Girl
The Lara Murphy Report
The Libertarian Podcast
Tech Policy Podcast
The Tom Woods Show
The Way I Heard It with Mike Rowe

FYI: I use Doggcatcher for podcasts and some audiobooks.

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.

Podcast subscriptions, April 2016

Here is my list of podcast subscriptions as of April 2016:

Cato Daily Podcast
Contra Krugman
EconTalk
Federalist Society SCOTUScast
Grammar Girl
Tech Policy Podcast
The Art of Manliness
The Lara Murphy Report
The Libertarian Podcast
The Tom Woods Show
The Way I Heard It with Mike Rowe

FYI: I use Doggcatcher for podcasts and audiobooks.

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.

RIP Antonin Scalia: March 11, 1936 - February 13, 2016

Is this man a terrorist?

Many people across my Facebook feed are quick to call Christian pastor Josh Feuerstein a terrorist for a video he posted to his Facebook page back in July:

In case the video gets taken down, here's what Feuerstein said:

Planned Parenthood has hunted down millions and millions of little innocent babies, stuck a knife into the uterus, cut them, pulled them out, crushed their skull with forceps, ripped their body apart, sold their tissue, and threw them bleeding into a trash bin.

I say, tonight, we punish Planned Parenthood. I think it’s time that abortion doctors should have to run and hide and be afraid for their life.

This is pretty detestable stuff. But I don't think Feuerstein is a terrorist. In fact, I think his speech is probably protected. Let's review a little history...

In 1966, the NAACP ran meetings in Mississippi to organize protests and boycotts against white-owned businesses. The NAACP "store watchers" wrote down names of blacks who violated these boycotts. Names of boycott violators were read aloud at meetings and published in a local black newspaper. At one meeting, Charles Evers, the Field Secretary of the NAACP, stated: "If we catch any of you going in any of them racist stores, we're gonna break your damn neck."

This was a direct threat aimed by an NAACP official toward specific blacks who had been named, listed, and published as boycott violators. This is a much more direct threat than Feuerstein's video posted above. Yet the Supreme Court found that the store watchers' actions, and Evers' speech, was protected.

Unless speech is directed to inciting, and is likely to incite, imminent lawless action, it's protected by the First Amendment. It would be very difficult to argue that a Facebook video (posted last July) meets this standard. The mere advocacy of violence is not enough. No, in my opinion, this is not terrorism. Rather, it's very possible that this is protected speech. And yes, I'd stand up for his right to say these abhorrent things. That doesn't mean I agree with him.

Law in Plain English: Johnson 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: Johnson v. United States

Argument: Nov 5 2014 (Aud.)

Background: Pursuant to an undercover investigation, the FBI determined that Samuel Johnson (a felon) illegally possessed an AK-47 and a .22 caliber semi-automatic rifle. Johnson was later arrested while attending a meeting with his probation officer. Among other charges, Johnson was indicted with being an armed career criminal in possession of a firearm. The Armed Career Criminal Act (ACCA) provides a mandatory 15-year sentence for those who have been convicted of three "violent felon[ies.]" Johnson pleaded guilty, but reserved the right to challenge the applicability of the ACCA based upon a review of his prior convictions. On appeal, Johnson alleged that a prior conviction for possession of a short-barreled shotgun did not constitute a "violent felony." The Eighth Circuit disagreed, finding that possession of a short-barreled shotgun presented a serious risk of physical injury to another because it is roughly similar to the listed offenses within the ACCA, both in kind as well as the degree of risk for harm posed. As a result, the conviction was considered a violent felony and Johnson's conviction as an armed career criminal was affirmed.

Issue: The question before the Court is whether mere possession of a short-barreled shotgun should be treated as a violent felony under the Armed Career Criminal Act.

Holding: In an 8-1 decision, the Supreme Court ruled that imposing an increased sentence under ACCA’s residual clause violates due process.

Law in Plain English: Same Sex Marriage Cases

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: Obergefell v. Hodges (consolidated with Tanco v. Haslam, DeBoer v. Snyder, Bourke v. Beshear)

Argument: Apr 28 2014 (Aud.)

Background: James Obergefell and John Arthur are from Ohio, and were married in Maryland. When Arthur died, Ohio would not list Obergefell as his spouse on their death certificates. Obergefell sought an injunction to require the State to list him as a spouse on the certificate. The district court concluded that the Fourteenth Amendment protects a fundamental right to keep existing marital relationships intact, and that the State failed to justify its law under heightened scrutiny. The court likewise concluded that classifications based on sexual orientation deserve heightened scrutiny under equal protection, and that Ohio failed to justify its refusal to recognize the couples’ existing marriages. Even under rational basis review, the court added, the State came up short. The Sixth Circuit reversed, finding that the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment does not require States to expand the definition of marriage to include same-sex couples. Further, the court found that the Constitution does prohibit a State from denying recognition to same-sex marriages conducted in other States.

Issue: The questions before the Court: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

Holding: In a 5-4 decision, the Supreme Court ruled that the Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.

Law in Plain English: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, 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.

SCOTUSblog: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.

Argument: Jan 21 2015 (Aud.)

Background: The Inclusive Communities Project (ICP) is a non-profit organization that assists low-income, predominately African-American families who are eligible for the Dallas Housing Authority’s Section 8 Housing Choice Voucher program in finding affordable housing in predominately Caucasian, suburban neighborhoods. ICP filed suit action against the Texas Department of Housing and Community Affairs (TDHCA) alleging that TDHCA's allocation of Low Income Housing Tax Credits (LIHTC) in Dallas resulted in a disparate impact on African-American residents under the Fair Housing Act (FHA). The district court held that ICP had proven that the allocation of tax credits resulted in a disparate impact on African-American residents. The Fifth Circuit remanded the case to the district court to apply the burden-shifting approach found in HUD regulation 24 C.F.R. § 100.500 for claims of disparate impact under the FHA. First, a plaintiff must prove a prima facie case of discrimination by showing that a challenged practice causes a discriminatory effect. If the plaintiff makes a prima facie case, the defendant must then prove “that the challenged practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory interests....” If the defendant meets its burden, the plaintiff must then show that the defendant’s interests “could be served by another practice that has a less discriminatory effect.”

Issue: The question before the Court is whether disparate-impact claims are cognizable under the Fair Housing Act.

Holding: In a 5-4 decision, the Supreme Court ruled that disparate-impact claims are cognizable under the Fair Housing Act.

Law in Plain English: Reed v. Town of Gilbert, Arizona

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: Reed v. Town of Gilbert, Arizona

Argument: TBD (Aud.)

Click image to visit ADF website

Background: Good News Community Church placed several signs around the area of its church announcing the time and location of its services. The Town of Gilbert, Arizona notified the Church that its signs were violating Gilbert's sign ordinance because the signs were displayed outside the statutorily-limited time period. The ordinance required that signs could not be erected without a permit, but that three categories of signs were exempted from the permit requirement: 1) temporary directional signs relating to qualifying events (no greater than six feet in height and six square feet in area; only to be displayed for 12 hours before and one hour after an event; not placed in the public right-of-way); 2) political signs (up to 32 square feet in size; erected at any time, but taken down within ten days after an election; may be placed in the public right­-of-way); and 3) ideological signs (not limited in time or number; may be placed in the public right-of-way). The district court found that the ordinance was not a content-based regulation; was a reasonable time, place, and manner restriction; and (on remand) did not favor some noncommercial speech over other commercial speech. The Ninth Circuit affirmed.

Issue: The question before the Court is whether the Town of Gilbert's mere assertion that its sign code lacks a discriminatory motive renders its facially content-based sign code content-neutral and justifies the code's differential treatment of petitioners' religious signs.

Holding: In a 9-0 decision, the Supreme Court ruled that the Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny. Because content-based laws target speech based on its communicative content, they are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests. The Sign Code’s content-based restrictions do not survive strict scrutiny because the Town has not demonstrated that the Code’s differentiation between temporary directional signs and other types of signs furthers a compelling governmental interest and is narrowly tailored to that end.

Law in Plain English: Zivotofsky v. Kerry

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: Zivotofsky v. Kerry

Argument: Nov 3 2014 (Aud.)

Background: Section 214(d) of the Foreign Relations Authorization Act (2003) requires the Secretary of State to record "Israel" as the place of birth on the passport of a United States citizen born in Jerusalem if the citizen or his guardian requests. The Secretary has not enforced this provision, believing that it impermissibly intrudes on the President's exclusive authority under the United States Constitution to decide whether and on what terms to recognize foreign nations. The parents of Menachem Zivotofsky (a United States citizen born in Jerusalem), filed a lawsuit seeking a permanent injunction ordering the Secretary to issue a passport listing "Israel" as their son's place of birth. Ruling in favor of the Secretary, the Court of Appeals for the District of Columbia Circuit found that the President held exclusive power to determine whether to recognize a foreign nation. Section 214(d) was not the neutral regulation of the form and content of a passport (as Congress has the power to do under its immigration powers), but rather an attempted legislative articulation of foreign policy, enacted to alter United States foreign policy toward Jerusalem. As a result, Section 214(d) impermissibly intruded on the President's recognition power and was unconstitutional.

Issue: The question before the Court is whether a federal statute that directs the Secretary of State, on request, to record the birthplace of an American citizen born in Jerusalem as born in "Israel" on a Consular Report of Birth Abroad and on a United States passport is unconstitutional on the ground that the statute "impermissibly infringes on the President's exercise of the recognition power reposing exclusively in him."

Holding: In a 6-3 decision, the Supreme Court ruled that the President has the exclusive power to grant formal recognition to a foreign sovereign. Because the power to recognize foreign states resides in the President alone, §214(d) infringes on the Executive’s consistent decision to withhold recognition with respect to Jerusalem.

Law in Plain English: Mellouili 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.

SCOTUSblog: Mellouli v. Lynch

Argument: Jan 14 2015 (Aud.)

Background: Moones Mellouli, a citizen of Tunisia and a lawful permanent resident of the United States, pleaded guilty in July 2010 to violating a Kansas misdemeanor drug paraphernalia statute. Mellouli had been stopped for DUI and police found four Aderrall pills in his sock; the sock was the "drug paraphernalia." The Board of Immigration Appeals (BIA) found that he was removable because his conviction was a conviction “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i). Mellouli argued that he was not removable because the state court record of conviction did not identify the controlled substance underlying his state paraphernalia conviction, and therefore the government failed to prove that the conviction related to a federal controlled substance, as § 1227(a)(2)(B)(i) requires. The Eighth Circuit denied his petition, finding that there was a nearly complete overlap between the definition of controlled substance in 21 U.S.C. § 802 and in the statutes of States such as Kansas that adopted the Uniform Controlled Substances Act. It was therefore reasonable for the BIA to conclude that any drug paraphernalia conviction in these States was, categorically, a violation of a law “relating to a controlled substance” within the meaning of 8 U.S.C. § 1227(a)(2)(B)(i).

Issue: The question before the Court is whether, to trigger deportability under 8 U.S.C. § 1227(a)(2)(B)(i), which provides that a noncitizen may be removed if he has been convicted of violating “any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21) . . . ,” the government must prove the connection between a drug paraphernalia conviction and a substance listed in section 802 of the Controlled Substances Act.

Holding: In a 7-2 decision, the Supreme Court ruled that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i). The categorical approach historically taken in determining whether a state conviction renders an alien removable looks to the statutory definition of the offense of conviction, not to the particulars of the alien’s conduct. The state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. The BIA has long applied the categorical approach to assess whether a state drug conviction triggers removal under successive versions of what is now §1227(a)(2)(B)(i). The BIA announced and applied a different approach that, in this case, finds no home in §1227(a)(2)(B)(i)’s text and leads to consequences Congress could not have intended. 

Law in Plain English: Elonis 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: Elonis v. United States

Argument: Dec 1 2014 (Aud.)

Background: After being fired from his job, Anthony Elonis made several posts on Facebook threatening former co-workers, his wife (who had a protection from abuse order against him), and federal law enforcement officers (who had visited him earlier that day to ask about his previous posts) (click here to read some of Elonis's threats). At trial, Elonis was convicted under 18 U.S.C. § 875(c) for "transmit[ing] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injury the person of another ... " The Third Circuit affirmed, finding that Elonis's Facebook threats were not protected by the First Amendment if a reasonable person would regard the statements as threatening.

Issue: The questions before the Court are (1) whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort; and (2) whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten.

Holding: In an 8-1 decision, the Supreme Court ruled that the Third Circuit’s instruction, requiring only negligence with respect to the communication of a threat, is not sufficient to support a conviction under Section 875(c). Section 875(c)’s mental state requirement is satisfied if the defendant transmits a communication for the purpose of issuing a threat or with knowledge that the communication will be viewed as a threat.

Law in Plain English: Wellness International Network, Limited v. Sharif

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: Wellness International Network, Limited v. Sharif

Argument: Jan 14 2015 (Aud.)

Background: Richard Shariff was slapped with a judgment in excess of $650,000 as a sanction for his failure to engage in discovery. As a result, Sharif filed for Chapter 7 bankruptcy. Wellness International Network (WIN), one of his bankruptcy creditors, sought to prevent discharge of Sharif’s debts under 11 U.S.C. § 727, and sought a declaratory judgment that a trust of which Sharif was trustee was in fact Sharif’s alter ego. Sharif continued his evasive and dilatory tactics, failing to respond to WIN’s and the bankruptcy trustee’s discovery requests. The bankruptcy court ordered Sharif to comply with the discovery requests and warned him that failure to do so would result in a default judgment. Sharif tendered some discovery but his responses fell far short of full compliance. After a hearing, the bankruptcy judge issued an opinion and order entering default judgment in WIN’s favor and subsequently awarded attorney’s fees to WIN. On appeal, Shariff filed a supplementary motion based on the claim that a bankruptcy judge did not have the authority to enter final judgment under Stern v. Marshall, but had failed to make this argument in his earlier motions. The district judge denied both motions as untimely, holding that a Stern objection to a bankruptcy judge’s authority to enter final judgment is waivable and that Sharif’s failure to raise it earlier constituted waiver. The Seventh Circuit reversed on the Stern objection, finding that a constitutional objection based on Stern is not waivable because it implicates separation‐of‐powers principles. Additionally, the court held that that the bankruptcy judge lacked constitutional authority to enter a final judgment on the alter‐ego claim. The court affirmed the remainder of the judgment, holding that the bankruptcy judge had constitutional authority to enter final judgment on the first four counts of the adversary complaint, each of which were objections to the discharge of Sharif’s debts. Additionally, the court held that that the entry of default judgment and awarding of fees were proper sanctions under the circumstances.

Issue: The questions before the Court are (1) whether the presence of a subsidiary state property law issue in a 11 U.S.C. § 541 action brought against a debtor to determine whether property in the debtor’s possession is property of the bankruptcy estate means that such action does not “stem[] from the bankruptcy itself” and therefore, that a bankruptcy court does not have the constitutional authority to enter a final order deciding that action; and (2) whether Article III permits the exercise of the judicial power of the United States by the bankruptcy courts on the basis of litigant consent, and if so, whether implied consent based on a litigant’s conduct is sufficient to satisfy Article III.

Holding: In a 6-3 decision, the Supreme Court ruled that Article III permits bankruptcy judges to adjudicate Stern claims with the parties’ knowing and voluntary consent. Consent to adjudication by a bankruptcy court need not be express, but must be knowing and voluntary. The Court stated that the Seventh Circuit should decide on remand whether Sharif’s actions evinced the requisite knowing and voluntary consent and whether Sharif forfeited his Stern argument below. 

Law in Plain English: Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter

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: Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter

Argument: TBD (Aud.)

Background: In 2011 (after several previous attempts and amendments), former employee Benjamin Carter filed a qui tam (whistleblower) action under the False Claims Act (FCA), alleging that KBR falsely billed the United States for services performed in Iraq in 2005. The district court ruled that the complaint was filed outside of the FCA's six year statute of limitations. The court also found that another substantially similar complaint had been filed before Carter's, and was therefore the court did not have jurisdiction to hear the case pursuant to the FCA's first-to-file bar (a provision to prevent parasitic lawsuits based upon previously disclosed fraud). The Fourth Circuit reversed, finding that the Wartime Suspension of Limitations Act tolled the statute of limitations while the United States was engaged in combat in Iraq even if war was not formally declared. Additionally, the panel found that, while Carter's claim was properly denied by the district court pursuant to the first-to-file bar, dismissing the claim with prejudice was erroneous because Carter could re-file his claim later if the other complaint was dismissed (as it later was).

Issue: The questions before the Court are (1) whether the Wartime Suspension of Limitations Act – a criminal code provision that tolls the statute of limitations for “any offense” involving fraud against the government “[w]hen the United States is at war,” 18 U.S.C. § 3287, and which this Court has instructed must be “narrowly construed” in favor of repose – applies to claims of civil fraud brought by private relators, and is triggered without a formal declaration of war, in a manner that leads to indefinite tolling; and (2) whether, contrary to the conclusion of numerous courts, the False Claims Act’s so-called “first-to-file” bar, 31 U.S.C. § 3730(b)(5) – which creates a race to the courthouse to reward relators who promptly disclose fraud against the government, while prohibiting repetitive, parasitic claims – functions as a “one case- at-a-time” rule allowing an infinite series of duplicative claims so long as no prior claim is pending at the time of filing.

Holding: In a unanimous decision, the Supreme Court ruled that As shown by the WSLA’s text, structure, and history, the Act applies only to criminal offenses, not to civil claims like those in this case. The FCA’s first-to-file bar keeps new claims out of court only while related claims are still alive, not in perpetuity. Thus, dismissal with prejudice was not called for in this case.