“During the Constitutional Convention in 1787, the framers debated how to allocate military and war powers among the branches of government. Some, like Pierce Butler of South Carolina, thought that power should lie with the president, while most others, including Elbridge Gerry, “never expected to hear in a Republic a motion to empower the Executive alone to declare war.” (Emphasis added.) Reflecting this consensus, James Madison successfully moved to change a draft sentence that empowered Congress to “make” war to language empowering it to “declare” war — the implication being that “the Executive should be able to repel and not commence, war,” in the words of Connecticut delegate Roger Sherman.”
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“Convinced that paying off the pirates was both costly and without an end in sight, Jefferson resolved to take military action. For weeks, his cabinet debated whether the president had sole authority as commander-in-chief to send naval forces to the Mediterranean in a defensive posture. Only one, Attorney General Levi Lincoln, argued that he needed congressional approval even for this limited measure. But the cabinet’s general consensus held that Jefferson enjoyed some prerogative.
Jefferson agreed. Without congressional approval, he sent an American fleet to the Mediterranean, with detailed instructions of what to do — and what not to do. Commodore Richard Dale, the officer in charge, was ordered to “sink, burn, capture, or destroy vessels attacking those of the United States.” But his men were not to initiate combat or step foot on Barbary land. Only after the Republican Congress authorized “warlike operations against the regency of Tripoli, or any other of the Barbary powers,” did Dale’s forces proactively attack the pirate states on their own land. Ultimately, American military success, particularly at the Battle of Derna in 1805, convinced the Barbary authorities that it was time to call a truce. The Treaty of Peace and Friendship, signed the same year, effectively drew a close on Jefferson’s Barbary wars.”
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“Contrary to the assertions of progressives like Jayapal and conservatives like Greene, presidents since the founding have affirmed their authority and responsibility to deploy military forces defensively without congressional approval.
To date, Biden has unilaterally ordered targeted strikes against Houthi military targets to diminish the terrorists’ ability to persist in their piracy. He hasn’t ordered a ground invasion of Yemen, a wider offensive against civil and governmental assets or an initiative to depose the Houthi government. He has followed closely in Jefferson’s footsteps, even if 250 years of evolution in technology and warfare make a direct comparison complicated.”
“The core question in Rahimi, in other words, is whether the Court will back away from its decision in Bruen, which has led to all kinds of disastrous results, including the Fifth Circuit’s decision holding that abusive husbands have a right to keep a weapon they could use to murder their wives.”
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“Bruen held that, in order to justify nearly any law regulating firearms, “the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.” This means that lawyers defending even the most widely accepted gun laws, such as the federal ban on gun possession by domestic abusers, must show that “analogous regulations” also existed and were accepted when the Constitution was framed — particularly if the law addresses “a general societal problem that has persisted since the 18th century.” If they cannot, the challenged gun law must be struck down.
This places an extraordinarily high burden on any lawyer defending a gun law. When the historical record is ambiguous or indeterminate, the government loses, and a gun law is effectively repealed by the courts. And lawyers defending gun laws face an especially heavy burden when they defend laws that seek to address a problem, like domestic abuse, that has existed for centuries.
Almost immediately, the Bruen decision sparked mass confusion in the federal courts. Judges have reached contradictory results in a multitude of post-Bruen challenges to gun laws. Courts applying Bruen have struck laws prohibiting guns in places of worship, requiring guns to have serial numbers that allow them to be tracked by law enforcement, and prohibiting underage ownership of guns — all claiming that these laws are inconsistent with “historical tradition.””
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“On the day Bruen was decided, Justice Stephen Breyer warned in a dissenting opinion that, by requiring judges to dive into often-vague and indeterminate historical records, Bruen “imposes a task on the lower courts that judges cannot easily accomplish.” “Courts are, after all, staffed by lawyers, not historians,” Breyer continued. And “legal experts typically have little experience answering contested historical questions or applying those answers to resolve contemporary problems.””
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“One fundamental problem with Bruen, as Judge Miller’s critique of the decision emphasizes, is that the six Republican-appointed justices who joined it appear to have no understanding of why changes in American society over the past 250 years make it difficult or impossible to draw meaningful analogies between modern gun laws and those that existed when the Constitution was written.”
“Publicly, President Joe Biden accused the platforms of “killing people” by failing to suppress speech that discouraged vaccination against COVID-19. Murthy likewise said that failure was “costing people their lives.” White House Press Secretary Jen Psaki declared that social media companies “have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections.” If they failed to meet that responsibility, Murthy said, “legal and regulatory measures” might be necessary. Psaki floated the possibility of new privacy regulations and threatened social media companies with “a robust anti-trust program.” White House Communications Director Kate Bedingfield said the platforms “should be held accountable,” which she suggested could include reducing their legal protection against civil claims based on users’ posts.
Privately, administration officials pressed Facebook et al. to delete or downgrade specific posts and banish specific speakers, to take action against content even when it did not violate the platforms’ rules, and to expand those rules so that any speech federal officials viewed as dangerous to public health could be deemed a violation. Their “requests” were sometimes phrased as demands.”
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“Flaherty emphasized that he was acting on the president’s behalf, that his concerns were “shared at the highest (and I mean highest) levels of the [White House].” White House officials invoked previous perceived failures at content moderation, which they said had been disastrous. “When Facebook did not take a prominent pundit’s ‘popular post[]’ down,” the 5th Circuit notes, senior White House COVID-19 adviser Andrew Slavitt “asked ‘what good is’ the reporting system, and signed off with ‘last time we did this dance, it ended in an insurrection.'” In another exchange, Flaherty “demand[ed] ‘assurances’ that [Facebook] was taking action” and “likened the platform’s alleged inaction to the 2020 election, which it ‘helped increase skepticism in,'” adding that “an insurrection…was plotted, in large part, on your platform.'”
When social media companies failed to do what the administration wanted, White House officials reacted angrily. Flaherty noted that a flagged Facebook post was “still up,” asking, “How does something like that happen?” Facebook was “hiding the ball,” Flaherty complained. “Are you guys fucking serious?” he said in another email to Facebook. “I want an answer on what happened here and I want it today.” Because Facebook was “not trying to solve the problem,” Slavitt said, the White House was “considering our options on what to do about it.””
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“By and large, especially after Biden and Murthy accused social media companies of killing people, the platforms did what the White House wanted. They were eager to appease the president, repeatedly asking how they could work together to address his concerns. In this context, the 5th Circuit says, it is likely that the pressure campaign amounted to “coercion” and that the White House unconstitutionally shaped moderation decisions.”
“a few jurisdictions in Texas are now breaking with this consensus. As the Washington Post reports, two Texas counties and two Texas cities have passed local ordinances making it illegal to transport someone through one of these counties or cities for the purpose of obtaining an out-of-state abortion.
Notably, this list of anti-abortion localities includes Mitchell County, Texas, a sparse community of about 9,000 people. This matters because Interstate 20, the route that many people traveling from Dallas to New Mexico to receive an abortion will take, passes through Mitchell County. Several other counties with major highways or airports are also considering similar laws.
These ordinances and proposed ordinances largely track model legislation, which anti-abortion activist Mark Lee Dickson shared on Twitter, that is itself modeled after SB 8 — the statewide anti-abortion law that allows private bounty hunters to sue abortion providers and collect bounties of $10,000 or more.
In fairness, Dickson’s model legislation does prohibit such bounty hunter suits from being filed against “the pregnant woman who seeks to abort her unborn child.” But the legislation would potentially allow abortion funds that help pay for abortion care, or anyone who drives a pregnant patient to an out-of-state abortion clinic, to be sued.
Ordinarily, Kavanaugh’s preemptive rejection of travel bans would be a clear sign that these laws will not survive judicial review. But, in Whole Woman’s Health v. Jackson (2021), the Supreme Court effectively shut down federal lawsuits challenging unconstitutional laws that are enforced solely by bounty hunters. And Kavanaugh joined the Court’s decision in Jackson.
The upshot is that these unconstitutional Texas ordinances may succeed, not because they are lawful but because the Supreme Court has largely immunized them from constitutional review.”
“Republican Florida Gov. Ron DeSantis floated two unconstitutional proposals that would lead to the US executing more people.
The first, which he suggested during an appearance before the Florida Sheriffs Association, was to allow juries to sentence someone to die even if the jury vote is not unanimous. “Fine, have a supermajority,” DeSantis said, adding that executions should be permitted if “maybe eight out of 12 or something” of a jury’s members vote for the death penalty.
The Supreme Court held in Ramos v. Louisiana (2020) that a jury must vote unanimously in order to convict someone of a “serious offense.” Meanwhile, the Court held in Hurst v. Florida (2016) that “the Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Read together, the cases leave little doubt that a jury’s decision to sentence someone to die must also be unanimous. (There is always some risk that the Court’s current majority will refuse to follow Ramos or Hurst, but neither of these cases divided the Court along ideological lines when they were decided.)
A few days after offering this first half-baked proposal, DeSantis spoke at the Miami Police Benevolent Association hall, where he not only reiterated that idea, but also laid out a broader agenda on crime that included expanding the death penalty to offenders who rape children. The Supreme Court explicitly rejected this expansion of the death penalty in Kennedy v. Louisiana (2008). Among other things, Kennedy warned that, if sexual assault of a child carried the same penalty as murder, that would endanger children because “a State that punishes child rape by death may remove a strong incentive for the rapist not to kill the victim.””
“Ultimately, the basis of such laws can be tied to simple and pure protectionism. Indeed, the protectionist urge is strong, historically, among the powerful producers of animal products—including meat and dairy. For example, as I’ve discussed in my book Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable and elsewhere, rent-seeking dairy interests have, over generations, leaned on lawmakers to force competitors to change the name and even the appearance of their foods. In Wisconsin, the state long forced makers of margarine—who compete with the dairy state’s butter makers—to color their products pink. In New York, the state forced makers of non-dairy creamers to label those foods as “melloream”—whatever the hell that is.
Notably, though, this type of protectionism isn’t wholly limited to meat-industry-led attacks on vegan competitors. As I explained in a 2019 column, Arkansas has sought to protect its dominant rice industry against competition from makers of riced cauliflower (a law I characterized at the time as “veg-on-veg crime”).
The single most important fact to remember about these laws is that they seek to undermine the First Amendment to prop up sales for certain elements of the food industry. That’s as unconstitutional as it is unwise. Such laws don’t’ serve the interests of consumers. After all, neither your hypothetical cousin’s boyfriend nor your uncle was confused in the least by the differences between Tofurky and turkey. Indeed, it was those differences that drew them to choose those respective favored foods in the first place.”
“A three-judge panel on the 5th Circuit Federal Court of Appeals ruled this week that the CFPB’s structure is unconstitutional because Congress has no control over the agency’s budget, which is funded entirely by the Federal Reserve. Under the terms of Dodd-Frank, the CFPB is entitled to receive a budget totaling up to 12 percent of the Federal Reserve’s annual operating expenses, and the Federal Reserve is not allowed to refuse the CFPB’s requests for funding.
“Congress’s decision to abdicate its appropriations power under the Constitution, i.e., to cede its power of the purse to the Bureau, violates the Constitution’s structural separation of powers,” Judge Cory Wilson wrote in this week’s ruling.”
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“”Congress did not merely cede direct control over the Bureau’s budget by insulating it from annual or other time-limited appropriations. It also ceded indirect control by providing that the Bureau’s self-determined funding be drawn from a source that is itself outside the appropriations process—a double insulation from Congress’s purse strings that is ‘unprecedented’ across the government,” Wilson wrote in the court’s ruling. “Even among self-funded agencies, the Bureau is unique. The Bureau’s perpetual self-directed, double-insulated funding structure goes a significant step further than that enjoyed by the other agencies on offer.””
“American taxpayers pay to be spied upon. That’s one takeaway from new documents obtained by the American Civil Liberties Union (ACLU), which has been examining how federal agents spent millions to purchase massive troves of cellphone location data and dodge Fourth Amendment requirements.
As part of a lawsuit against the Department of Homeland Security (DHS), the ACLU obtained thousands of previously unreleased records showing how DHS agencies—including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—are purchasing and accessing “huge volumes of people’s cell phone location information quietly extracted from smartphone apps.”
These agencies are “sidestepping our Fourth Amendment right against unreasonable government searches and seizures,” suggests the ACLU.
In 2018, the U.S. Supreme Court held (in Carpenter v. United States) that under the Fourth Amendment, law enforcement must have a warrant before accessing a suspect’s phone location data from cellular service providers. But federal authorities have been getting around this by purchasing aggregated cellphone location data from data broker firms like Venntel and Babel Street. And they’re spending millions of taxpayer dollars doing it.”