Why the Consumer Financial Protection Bureau’s Funding Structure Is Unconstitutional

“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.”

“”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.””

Federal Judge Blocks Arizona Law Making It Illegal To Film Cops Within 8 Feet

“”If the goal of HB2319 is to prevent interference with law enforcement activities, the Court fails to see how the presence of a person recording a video near an officer interferes with the officer’s activities,” Tuchi wrote in his order issuing a temporary injunction against the law.”

“multiple federal appeals courts have upheld the right to film police as a core First Amendment activity.”

A Federal Judge Says Trump Knowingly Endorsed False Fraud Claims in an Election Lawsuit

“Former President Donald Trump’s reaction to the 2020 election arguably violated several federal and state laws. But any effort to prosecute him for those alleged violations would face the possibly insurmountable challenge of proving criminal intent.
Given Trump’s long history of embracing self-flattering assertions at odds with reality, it seems plausible that he sincerely believed, despite all the countervailing evidence, that the election was subverted by systematic fraud. If so, his various efforts to prevent Joe Biden from taking office would have been, from his perspective, attempts to correct a grievous wrong rather than attempts to illegally obstruct the peaceful transfer of power.

The select committee investigating the January 6, 2021, Capitol riot showed that people close to Trump recognized who had actually won the election and tried to dissuade him from embracing wild conspiracy theories to the contrary. But that testimony did not conclusively prove that Trump privately agreed with those advisers even while publicly promoting the stolen-election fantasy. A recent ruling by a federal judge in California supplies further evidence to support that interpretation, suggesting that Trump knowingly submitted false claims about election fraud in Georgia as part of a federal lawsuit.”

“Carter ruled that the crime-fraud exception applies to four emails related to Trump and Eastman’s “knowing misrepresentation of voter fraud numbers in Georgia when seeking to overturn the election results in federal court.” Carter says the emails indicate that Trump made those claims even though he knew they had been discredited.

In a state lawsuit filed on December 4, 2021, Carter notes, “President Trump and his attorneys alleged…that Fulton County improperly counted a number of votes,” including “10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.” When they decided to file a federal lawsuit challenging the election results, Trump and his lawyers “discussed incorporating by reference the voter fraud numbers alleged in the state petition.” But in a December 30 email, Eastman “relayed ‘concerns’ from President Trump’s team ‘about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.'”

The next day, Eastman elaborated on those concerns: “Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.”

Trump apparently was unfazed. “President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them,” Carter writes. “President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers ‘are true and correct’ or ‘believed to be true and correct’ to the best of his knowledge and belief.”

In other words, Carter says, “the emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public.” The emails therefore “are sufficiently related to and in furtherance of a conspiracy to defraud the United States.””

The Supreme Court fight over whether religious schools can discriminate against LGBTQ people

https://www.vox.com/policy-and-politics/2022/9/12/23348953/supreme-court-yeshiva-university-yu-pride-religious-liberty-first-amendment-lgbtq

Why Won’t the Biden Administration Join Gorsuch in Seeking To Overrule These Racist SCOTUS Precedents?

“Between 1901 and 1904, the U.S. Supreme Court decided a series of cases, collectively known as the Insular Cases, which asked whether the Constitution should fully apply to the residents of Puerto Rico and other territories recently acquired by the U.S. after its victory in the Spanish-American War. The Court held that the Constitution did not fully apply in those U.S.-held territories.
The Insular Cases have been severely criticized—then and now—for being the product of racist and imperialist thinking. The legal scholar Walter F. Pratt Jr., author of The Insular Cases: The Role of the Judiciary in American Expansionism, described the legal arguments involved as “largely racially motivated,” since the Court effectively held that “the people of the new territories were unfit to become citizens.”

A similar criticism of the Insular Cases was recently voiced by Justice Neil Gorsuch, who argued that “the Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.””

“Gorsuch also added his voice to those calling for the Insular Cases to be wiped off the books. “The time has come to recognize that the Insular Cases rest on a rotten foundation,” Gorsuch wrote. “And I hope the day comes soon when the Court squarely overrules them.”

Alas, the Department of Justice under President Joe Biden apparently sees things differently. As The Washington Post’s Robert Barnes recently reported, “the Biden administration told the Supreme Court Monday that it should not take up a case [Fitisemanu v. United States] about citizenship rights for American Samoa even though advocates say it would give justices a chance to upend a series of century-old precedents that have been roundly denounced as racist.””

How Republicans rigged Texas’s federal courts against Biden

“One of the biggest impediments to President Joe Biden’s ability to govern is a small crew of Republican-appointed federal trial judges, all of whom sit in Texas.
In August of 2021, for example, a Trump-appointed judge named Matthew Kacsmaryk ordered the Biden administration to reinstate a Trump-era immigration policy, known as “Remain in Mexico,” which forced many migrants to live in awful conditions on the Mexican side of the US/Mexico border. Although the Supreme Court eventually determined that Kacsmaryk egregiously misread federal immigration law, it left his order in place for nearly a year — and the Court’s most recent decision concerning Remain in Mexico makes it very easy for Kacsmaryk to seize control of federal border policy once again.”

” This one Trump judge’s ability to override an elected president’s policies and assume the powers of a Cabinet secretary is just one aspect of a much larger problem. With the Supreme Court’s tacit blessing, Texas officials and other right-wing litigants can handpick the trial judge who will hear their challenges to Biden administration policies. And when those handpicked judges overreach in ways that even this Supreme Court deems unacceptable, decisions by men like Kacsmaryk can remain in place for as much as a year — effectively replacing governance by an elected presidential administration with rule by unelected Republican judges.

In another, similar case, the Supreme Court allowed a Trump judge named Drew Tipton to temporarily strip Homeland Security Secretary Alejandro Mayorkas of much of his authority over Immigration and Customs Enforcement (ICE). This is the same Drew Tipton who issued a legally dubious order six days after Biden took office, which blocked the Biden administration’s call for a 100-day pause on deportations while the new administration was figuring out its immigration policies.

And then there’s Judge Reed O’Connor, the Fort Worth, Texas, judge known for rubber stamping nearly any legal outcome requested by Republicans. O’Connor is best known for his order in Texas v. United States, holding that Obamacare must be repealed in its entirety. That decision was so poorly reasoned that seven justices — including four Republican appointees — eventually ruled that no federal judge had any business hearing Texas’s anti-Obamacare lawsuit in the first place.

But that experience did nothing to humble the Rubber Stamp of Fort Worth. In January, O’Connor forced the US Navy to deploy personnel that it deemed unfit for deployment because they are not vaccinated for Covid-19. The Supreme Court blocked most of O’Connor’s ruling in March, with Justice Brett Kavanaugh writing that the highly partisan judge “in effect inserted [himself] into the Navy’s chain of command, overriding military commanders’ professional military judgments.””

“The fact that all these cases — and this is just a sample of the many policy-setting lawsuits being shunted to a handful of the most conservative judges in Texas — are winding up before a few GOP-appointed judges is not a coincidence. It is a deliberate strategy, made possible by procedural rules that effectively allow litigants to select which judge will hear their lawsuits, and by all appearances, intentionally pursued by the Texas attorney general’s office.”

“the Biden administration’s policies are routinely blocked, not because an impartial judge gives those policies a fair hearing and determines them to be illegal, but because Republican litigants can ensure that lawsuits seeking to undermine President Biden are heard by some of the most partisan judges in the country.”

“the Texas AG’s office has not filed a single case in Austin — the city where that office is actually located — a choice that most likely can be explained by the fact that half of all federal cases filed in Austin are heard by Judge Robert Pitman, an Obama appointee.”

“Although the Supreme Court has, at times, disagreed with the judges Texas’s Republican leaders selected to hear their lawsuits, it’s done nothing to discourage the Texas AG’s judge-shopping. Indeed, if anything, it’s encouraged it.”

“If the courts want to solve the problem of judge-shopping, it would not be hard for them to do so. One solution is to apply the same rule to Texas’s anti-Biden litigation as the Western District of Texas now applies to patent litigation — if a party seeks an order blocking a federal policy, that case will be randomly assigned to any judge within the entire district court where it is filed, not just one in the smaller division.

Alternatively, a court could assign lawsuits seeking a nationwide injunction against a federal policy to a panel of three judges. That’s the solution Fifth Circuit Judge Gregg Costa proposed in a 2018 piece published by the Harvard Law Review’s blog.

In any event, the details of such a solution don’t matter all that much. The important thing is that litigants who are actively trying to sabotage the United States government should not be allowed to handpick judges who share their agenda. For the moment, however, the courts seem to lack the will to address this problem. Texas Republicans can shop around for the judges they want, and that seems to suit a Supreme Court dominated by Republican appointees just fine.”

The Wisconsin Supreme Court Just Made Ballot Drop Boxes Illegal

“the Wisconsin Supreme Court..rendered most ballot drop boxes illegal in the state. The Court found that state law, which requires that mail-in ballots be delivered to a “mailbox,” does not allow “delivery to an unattended ballot drop box.””

Elena Kagan’s Valid Critique of the Supreme Court’s ‘Shadow Docket’

“In April, the U.S. Supreme Court voted 5–4 to reinstate an Environmental Protection Agency rule promulgated during the Trump administration that had been vacated by a lower court. Why did the Supreme Court reinstate the rule? The majority offered no explanation. Nor did it technically need to do so. The case, Louisiana v. American Rivers, was decided on an emergency basis. Without receiving merits briefing from the parties and without holding oral arguments, the majority simply granted a motion to stay the lower court’s decision. And that was that.

Critics have dubbed this sort of emergency action the “shadow docket.” It is, in the words of University of Chicago law professor William Baude, “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Foremost among the shadow docket’s foes is Justice Elena Kagan, who dissented in American Rivers, joined by Chief Justice John Roberts and Justices Stephen Breyer and Sonia Sotomayor. “The Court goes astray,” Kagan declared. The emergency docket has become “only another place for merits designations—except made without full briefing and argument.”

Kagan had a point. As George Washington University law professor Richard J. Pierce Jr. put it, “no one can read the opinion unless the court writes it. That is the problem with the shadow docket.” The outcome in American Rivers may have been beautifully reasoned and correctly reached. But we have no way of actually knowing that—let alone of fully judging the outcome for ourselves— because the majority offered zero rationale.”