Posts tagged ‘SCOTUS’
Authored by Kevin Daley, Legal Affairs Reporter / 08/23/2016
URL of the original posting site: http://dailycaller.com/2016/08/23/this-is-one-of-the-biggest-pending-scotus-case-you-havent-heard-of/
When Travis Beckles surrendered his sawed-off shotgun to a Miami detective, he almost certainly didn’t expect to instigate a chain of events that could lead to major changes in the way federal agencies operate.
When Beckles was taken into police custody in 2007, his girlfriend asked authorities to remove his gun from her residence; he directed officers to the weapon, concealed under his girlfriend’s mattress. He was later charged and convicted of one count of being a felon in possession of a firearm — Beckles had two prior felony drug convictions. Given these two convictions, the court determined that Beckles was a career offender. The U.S. Sentencing Guidelines (USSG), the set of rules which establish uniform sentencing practices across federal courts, instructed that his sentence should therefore be enhanced.
The court also ruled that Beckles’ possession of the shotgun constituted a “crime of violence,” which, per the USSG, also requires a sentence enhancement. The court ultimately sentenced Beckles to a 30-year prison term.
Beckles brought an appeal, Beckles v. U.S., in which he argued that his sentence was wrongly enhanced. He asserts that mere possession of a weapon does not constitute a “crime of violence,” and that his sentence enhancement should therefore be vacated. His appeal was rejected by the 11th Circuit U.S. Court of Appeals. The U.S. Supreme Court agreed to hear his case in late June.
His argument was bolstered when the Supreme Court issued it’s ruling last year in Johnson v. U.S. In Johnson the Court found that the phrase “violent felony” — the functional equivalent of the phrase “crime of violence” — as it appears in the Armed Career Criminal Act (ACCA) was unconstitutionally vague. A seven justice majority led by the late Justice Antonin Scalia reasoned by a due process analysis that the phrase, referred to as the “residual clause,” is poorly defined and leads to arbitrary and capricious application, in violation of the Fifth Amendment’s Due Process Clause.
Beckles makes essentially the same argument as Johnson, arguing that the phrase “crime of violence” in the USSG is as vague as the residual clause of the ACCA, and should therefore be struck down (which, by extension, would vacate Beckles’ additional penalties.) His argument could have major consequences for the way federal agencies operate.
Strictly speaking, the USSG does not define possession of a sawed-off shotgun as a “crime of violence.” Instead, commentaries on the guidelines provided by the United States Sentencing Commission (USSC) advise that possessing such a weapon should be considered a “crime of violence.” The government argues that those commentaries are subject to Auer deference, and that the Supreme Court must respect their interpretation of the law.
Auer deference is a legal doctrine which requires a court to defer to an agency’s interpretation of its own rules and regulations as long as its interpretation is not “erroneous” or “inconsistent with the regulation.” In Beckles, the government argues that the USSC commentaries are simply the agency’s interpretation of its own regulation (being the guidelines), and that the Court must defer to the USSC.
The Auer doctrine looms large in the administrative law scene. The doctrine is regularly invoked by agencies to protect their various activities. The U.S. Department of Labor invoked Auer deference when it announced that mortgage-loan officers were entitled to overtime. The Environmental Protection Agency did the same in requiring companies to obtain permits for water runoff from ditches running parallel to logging roads. It is difficult to overstate how much federal activity is protected by the Auer doctrine.
The Beckles case presents the Supreme Court the opportunity to revisit the Auer doctrine. Though it’s entirely possible the justices may sidestep the issue, opponents of Auer deference have gradually emerged on the high court in recent years. Scalia, the author of the Auer doctrine and a champion of judicial deference, made a thorough case for overturning the practice in 2013 in Decker v. Northwest Environmental Defense Center. Chief Justice John Roberts, and Justices Clarence Thomas and Samuel Alito are also likely to share Scalia’s sympathies. (RELATED: Exclusive: Puerto Rico Is Full Of ‘Open Dumps’ Ripe For Spreading Zika, And EPA’s Ignoring Them)
Furthermore, as Andrew Hessick notes in the Yale Journal on Regulations, the case presents exactly the fact posture critics of agency deference often complain about. “The Commission issued a vague guideline through notice and comment and then set its meaning through an interpretation not subject to those procedures,” Hessick writes. “Further, although they must be the product of notice and comment, the sentencing guidelines are not subject to judicial review when they are promulgated.”
In other words, the fact pattern presented in this case is exactly the sort of thing critics of Auer deference complain about. Should the Supreme Court feel so bold, Travis Beckles’ sawed-off shotgun might end up dealing a double-barrel blast to federal agency power.
Posted by Ken McIntyre / @KenMac55 / February 13, 2016
“A law can be both economic folly and constitutional,” Supreme Court Justice Antonin Scalia, pictured here at a Heritage Foundation event in October 2015, once said.
(Photo: Jeff Malet for The Daily Signal)
Justice Antonin Scalia, who died Saturday during his 29th year on the Supreme Court, was known for a sharp wit as well as a brilliant legal mind, and he expressed both with his tongue as well as his pen.
Here is just a sample:
1. “What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean?” (Remarks at Woodrow Wilson International Center for Scholars, Washington, D.C., 2005.)
2. “There is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.” (Majority opinion, Arizona v. Hicks, 1987.)
3. “God assumed from the beginning that the wise of the world would view Christians as fools … and he has not been disappointed. … If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.” (Speech at Living the Catholic Faith conference, 2012.)
4. “If you think aficionados of a living Constitution want to bring you flexibility, think again. You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That’s flexibility.” (Speech, Wilson Center, 2005.)
5. “The purpose of the Federalist Society was to bring together young people who had this skepticism about what they were being taught and to let them know that there were others who shared this skepticism.” (Remarks, Federalist Society’s 20th anniversary gala, 2002.)
6. “A law can be both economic folly and constitutional.” (Concurring opinion, CTS Corp. v. Dynamics Corp of America, 1987.)
7. “If we’re picking people to draw out of their own conscience and experience a ‘new’ Constitution, we should not look principally for good lawyers. We should look to people who agree with us. When we are in that mode, you realize we have rendered the Constitution useless.” (Speech, Wilson Center, 2005.)
8. “It is one of the unhappy incidents of the federal system that a self-righteous Supreme Court, acting on its members’ personal view of what would make a ‘more perfect Union’ (a criterion only slightly more restrictive than a ‘more perfect world’) can impose its own favored social and economic dispositions nationwide.” (Dissent, United States v. Virginia, 1996.)
9. “Bear in mind that brains and learning, like muscle and physical skill, are articles of commerce. They are bought and sold. You can hire them by the year or by the hour. The only thing in the world not for sale is character.” (Commencement address, College of William and Mary, 1996.)
Lyndsey Fifield contributed to this report. It has been modified to substitute one quotation and specify the context for each.
Drawn and Posted by Glenn Foden / @GlennFo / February 19, 2016
Kim Holmes wrote earlier this week on the Supreme Court.
The stakes are high—very high. Finding a replacement for deceased Supreme Court Associate Justice Antonin Scalia will be a battle royale. But why should one government official’s position be so existentially important? Yes, control of the Supreme Court hangs in the balance, but that raises the question as to why the Court itself is so powerful. Could it be that the answer to that question tells us something about our increasing inability to govern ourselves as a free people?
Let’s face it. Ever since at least the 1960s (and frankly even before) we have increasingly allowed the Supreme Court to decide controversial issues we have been unwilling to solve legislatively.
From civil rights to abortion to the issue of gay marriage, the high court has ruled on key issues well outside the legislative process. New constitutional rights were created out of whole cloth. If abortion couldn’t be legalized at the ballot box, or if gay marriage could not be made lawful by Congress or the states, a majority of the Supreme Court—a mere five people—would step in and do it for us. Using the power of judicial review, a new policy would be imposed simply by redefining it as a constitutional right.
The practice of judicial fiat is so commonplace we seldom realize how radical it is. We are, quite simply, losing our sovereign power to govern ourselves. We have allowed the courts in general but the Supreme Court in particular to become too powerful.
We are, quite simply, losing our sovereign power to govern ourselves.
No single government official outside the president should be so important that his or her replacement could shift the course and destiny of the nation. And yet that is precisely the case with finding a replacement for Scalia. No matter which way it goes, the next Supreme Court justice will decide the balance of power of an institution that has arguably become more powerful than the Congress and as powerful (at least) as the presidency.
This was not what the Founders intended. Sure, we live in the modern age where a lot of water has flowed under the bridge of judicial review, but that’s precisely the problem. We have allowed those waters over time to become a flood, swamping in some cases the high court’s main purposes of safeguarding our existing rights and preserving the rule of law.
The irony should not be lost on us that it has been primarily liberal activists who have tried to hijack the court to get by judicial fiat what they could not obtain legislatively. For all their professed love of “democracy”—rule by the people—they have resorted to tactics that actually overturn laws passed legitimately by democratic legislatures.
The very insularity that the Founders had intended to protect the high court from the political passions of the times now serves those passions outright. It is not uncommon for Supreme Court justices to decide cases based on what they think—perhaps “divine” is a better word—the people or legislators really want. Perhaps based on opinion polls, for example, Associate Justice Anthony Kennedy may have thought he was merely delivering what the people wanted when he decided in favor of gay marriage. But in doing so, he was overturning actual democratic votes that over the past ten years showed a 60.93-percent to 39.07-percent majority against gay marriage when the issue had been placed on the ballot.
Should not actual votes count more than opinion polls?
As I explain in my forthcoming book, “The Closing of the Liberal Mind”:
Ultimately judicial activism is harmful not only to constitutional government but to democratic self-governance. When judges try to ram through their policy preferences by contorting texts, abusing precedents, and making up new constitutional rights, they undermine the credibility of both the Constitution and democracy.
That is why, now more than ever, the next Supreme Court justice must be someone who respects not only the original intent of the Constitution—what Scalia called “originalism”—but the need to restrict the policy activist role played by the court. Nothing less is at stake than our ability to govern ourselves as a free people.
16 Feb 2016
Senate Majority Leader Sen. Mitch McConnell (R-KY) has now promised to stifle any judicial nominee President Obama makes for the Supreme Court following the death of Justice Antonin Scalia. “The American people should have a voice in the selection of their next Supreme Court Justice. Therefore, this vacancy should not be filled until we have a new President,” he stated.
In March 2010, McConnell and then-House Speaker John Boehner wrote an op-ed about Obamacare, stating, “Taxpayers can expect Republicans to stand up for them and do whatever is necessary to prevent Democrats from forcing such an unpopular, unaffordable bill through Congress.” Of course, once that bill was passed and Republicans gained power, both Boehner and McConnell fully funded it.
In October 2014, Republican National Committee chairman Reince Priebus told Breitbart News:
“We will do everything we can to make sure [executive amnesty] doesn’t happen – defunding, going to court, injunction, you name it. It’s wrong. It’s illegal. And for so many reasons, and just the basic fabric of the country, we can’t allow it to happen, and we won’t let it happen.”
At the same time, Rep. Paul Ryan (R-WI) said, “Because we don’t have the Senate, we don’t have the power of the purse. We’d like to exercise that more effectively, and if we can get the Senate, we can do that.” That, of course, did not happen. The Republicans, instead, fully funded Obama’s executive amnesty last year.
In November 2015, in the aftermath of release of undercover videos showing Planned Parenthood executives bargaining over the sale of baby body parts, McConnell stated, “We’re confident that the Obamacare repeal bill … will contain a defund of Planned Parenthood.” When push came to shove, of course, McConnell refused to include a Planned Parenthood funding cut in a spending bill, stating it would be “an exercise in futility.” Planned Parenthood continues to be funded.
So, do we trust Mitch McConnell and company when they say that they will stop President Obama’s Supreme Court nominee?
The stakes could not be higher here, and McConnell has not earned our trust. Look, instead, for McConnell to engage in play fighting: shouting loudly from the rooftops that Obama’s nominees will be stalled, and then caving in when Obama begins to shut down the government to force the issue.
Here are three factors that will precipitate the kabuki theater:
Obama’s Choice of Nominee.
President Obama is likely to nominate a minority who has already been approved by Republicans in the Senate for a separate position. Today, Tom Goldstein, who runs SCOTUSblog, says that Obama will likely pick polarizing Attorney General Loretta Lynch, stating, “The fact that Lynch was vetted so recently for attorney general also makes it practical for the president to nominate her in relatively short order.” Lynch passed through the Senate 56-43 in her confirmation, and Sen. Orrin Hatch (R-UT) and Sen. Lindsey Graham (R-SC), among others, praised her. Obama will run his usual game plan, meanwhile: he’ll suggest that Republican opposition is based on her race and his own.
The Republicans’ 2016 Plans.
Many Republicans are fond of promising they’ll stop Obama’s agenda, but like good little Democrats, run for the hills the moment government funding comes under fire. The good news: because Republicans already caved to Obama and passed a massive omnibus package that carries a fully-funded government through the 2016 election, Obama won’t have a lot of leverage here. The bad news: Republicans can always find some leverage to give Obama, particularly if McConnell feels that the hold-up is reflecting badly on Senate Republicans. Plus, Republicans will have to ensure that they never allow a recess to prevent Obama from making a recess appointment.
McConnell and company have already set an end-date for their kabuki theater protest: the election. What happens, however, if Hillary Clinton is elected? Do they then allow her to appoint a leftist to the Court, forever shifting the balance of the Court and putting a stake through the heart of the Constitution?
All of this means that conservatives must continue to place heavy pressure on their senators not to cave here or in the future. That will be a rough road. But any Republican who does cave should face the threat of immediate primary. This isn’t about a reversible government policy implemented by the left. This is about the appointment of a lifetime leftist to a position of ultimate power. It simply can’t be allowed to happen.
Ben Shapiro is Senior Editor-At-Large of Breitbart News, Editor-in-Chief of DailyWire.com, and The New York Times bestselling author, most recently, of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.
14 Feb 2016, Washington, DC
President Barack Obama and his progressives can grab control of the nation’s constitution if he gets to appoint a Supreme Court replacement for Antonin Scalia, says Ed Whelan, a former law clerk for Scalia.
“If President Obama has another appointee to this Court, we’re going to have an entrenchment of the Left on constitutional issues for the next generations, or so and a great deal will be lost on a whole range of issues in a way that might not ever be recoverable,” he told Breitbart News Sunday host Alex Marlow, on Sirius XM Patriot channel 125.
Whelan, who is now President of the Ethics and Public Policy Center and writes at National Review Online’s Bench Memos, joined Breitbart News Sunday to discuss Scalia’s recent passing from a heart attack at age 79, leaving the court with three conservatives, four liberals and one swing-vote.
Whelan wrote yesterday in Bench Memos that:
Senate Republicans would be grossly irresponsible to allow President Obama, in the last months of his presidency, to cement a liberal majority that will wreak havoc on the Constitution. Let the people decide in November who will select the next justice.
Whelan called Scalia a “gregarious, joyful person” who “loved vigorous argument and struggled to get cases right,” while noting his “wonderful laugh” and calling him “challenging and intimidating, a great mentor and great judge.”
Politically, Whelan said conservatives not only lost a great Justice, and are at risk of losing the Supreme Court and the Constitution given the timing of his passing.
Whelan praised Scalia, saying he “blazed a trail that many others have followed in, his textualist approach (which) is dominant now.” even though some Justices often veer from it to get the result they want.
He credited Scalia and also Judge Robert Bork for reviving “the Constitutionalist or originalist approach to the Constitution in the 1980s — that the words meant what they were understood to mean when they were adopted.”
Whelan said Scalia “transformed” the Court in terms of “how it generally approaches statutory and Constitutional issues” as a rival to living Constitutionalists.