SCOTUS

[CU77]

SCOTUS puts its big right-wing thumb on the scale for the Dear Leader:

The Supreme Court Just Stopped 1 Million Floridians From Voting in November

https://slate.com/news-and-politics/202 ... l-tax.html

[youthathletics]

So what you are saying is that democrats are primarily felons?

[seacoaster]

So what you are saying is that democrats are primarily felons?

Nice. Cordial. How proud your pastor would be.

I think he’s saying that the suffrage is and will be under assault. And we know Republicans fare poorly when people can vote. You’re on the wrong side of history.

[Kismet]

Supreme Court grants request to issue judgment in Trump v. Vance immediately.


Order signed by the Chief Justice.

Legal eagles hereabouts please weigh in on this development

[seacoaster]

I think this is the Court's mandate, which formally sends the case back to the lower courts. It is about a week or two sooner than expected, and it appears that the President's counsel did not object.

[CU88]

Amy Howe Independent Contractor and Reporter

Posted Fri, July 17th, 2020 2:52 pm

Email Amy
Bio & Post Archive »
Roberts OKs request for Trump v. Vance ruling to take effect immediately
Chief Justice John Roberts on Friday granted a request from a New York district attorney to accelerate the date on which the Supreme Court’s ruling on access to the president’s financial records will officially go into effect. The court did not act on similar requests from the House of Representatives. The ruling does not mean that the Manhattan grand jury – on whose behalf the district attorney served a subpoena seeking the documents – will automatically receive the documents, but it allows a federal trial court in New York to move ahead to try to resolve any remaining disputes over the documents.

On July 9, the Supreme Court issued its decision in Trump v. Vance. By a vote of 7-2, the justices rejected the president’s claim that he is always immune from state grand jury proceedings while he is in office. But the court sent the case back to a federal district court, noting that the president can still raise other challenges to the subpoena – for example, by arguing that the subpoena is too broad or seeks information that isn’t relevant to the grand jury’s investigation.

Under the Supreme Court’s rules, the rulings would normally go into effect on August 3, 25 days after the court’s opinion was released. But Cyrus Vance, the Manhattan district attorney, on Wednesday asked the justices to put their ruling into effect immediately. Proceedings in the district court are already underway, Vance noted; any disputes about the subpoenas should be resolved quickly “to prevent frustration of the grand jury’s ongoing investigation.” “And, critically,” Vance added, “given the age of many of the transactions at issue in the grand jury’s investigation, issues could arise in the near future concerning the applicable statutes of limitations.” “Each day that compliance with the” subpoena “is delayed,” Vance warned, “increases the likelihood that the grand jury will not receive the documents it sought ten months ago in a timely fashion,” which could effectively give Trump “the absolute temporary immunity” that the Supreme Court rejected.

Although he believed that the lower courts have acted properly in initiating proceedings in the wake of the Supreme Court’s ruling on July 9, Vance suggested, it would still be appropriate for the justices to issue their ruling immediately (presumably, although he did not say so expressly, to remove any doubt) – particularly because Trump has consented to the request. Roberts on Friday afternoon granted Vance’s request in a brief order that specifically noted – perhaps to draw a contrast with the requests by the congressional committees, which Trump opposed – that Trump had consented to “the relief sought.”

This post was originally published at Howe on the Court.

[jhu72]

DC Circuit today ruled (7-2) that the House can sue McGann to make him testify. As usual there are other issues that will allow this to drag out. So House will have to subpoena McGann again if they want to get his testimony. This will break the log jam on a bunch of other folks as well. In my opinion the House should not let this pass. Congressional subpoenas must be respected (no matter who controls congress). Even if Trump is defeated the House needs to pound everyone of these clowns that disrespected their subpoenas into the ground! They will get more on Trump and destroy Barr and companies narrative. This thumbing of nose should not be allowed to stand.

[njbill]

This case has a loooooong way to go. Years.

[jhu72]

This case has a loooooong way to go. Years.

I would have thought a year at most, but I am not a lawyer.

[njbill]

Much longer, I think. The court today sent the case back to the panel to address several other issues, including jurisdiction. I’m not sure why all, or most, of the other issues weren’t included in the first instance.

After the panel rules, the case will either go back to the trial court or back to the full DC circuit. At some point, the case will go to the supreme court.

If it eventually gets back to the trial court, then you have the issue of executive privilege, which could need to be resolved on an issue by issue or question by question basis. Then, the trial court’s decisions on those issues could be appealed.

By the time McGahn finally gets in the chair, he might honestly be able to say, “I don’t remember. That was 25 years ago.” (I’m being glib.)

But I absolutely agree that the issue is worth fighting for. It is essential in our democracy that Congress be able to subpoena witnesses from the executive branch to testify.

[jhu72]

Much longer, I think. The court today sent the case back to the panel to address several other issues, including jurisdiction. I’m not sure why all, or most, of the other issues weren’t included in the first instance.

After the panel rules, the case will either go back to the trial court or back to the full DC circuit. At some point, the case will go to the supreme court.

If it eventually gets back to the trial court, then you have the issue of executive privilege, which could need to be resolved on an issue by issue or question by question basis. Then, the trial court’s decisions on those issues could be appealed.

By the time McGahn finally gets in the chair, he might honestly be able to say, “I don’t remember. That was 25 years ago.” (I’m being glib.)

But I absolutely agree that the issue is worth fighting for. It is essential in our democracy that Congress be able to subpoena witnesses from the executive branch to testify.

Hope you are wrong.

[6ftstick]

The Republican-controlled Senate just made history in a big way

This week, the Senate confirmed the appointment of President Donald Trump’s 200th judicial nominee, a historical accomplishment that will have an impact for decades.

Judge Cory Wilson was confirmed by the Senate to the 5th U.S. Circuit Court of Appeals by a vote of 52 to 48.

In a statement, Senate Majority Leader Mitch McConnell noted that there are now no vacancies anywhere on the federal appellate bench:

[njbill]

This didn’t sound right to me both because the Senate isn’t in session and because there is a vacancy on the federal appellate bench, Judge Griffith who retired earlier this week from the DC Circuit.

So I checked it out. This is an old report. Wilson was confirmed back in June.

[MDlaxfan76]

This didn’t sound right to me both because the Senate isn’t in session and because there is a vacancy on the federal appellate bench, Judge Griffith who retired earlier this week from the DC Circuit.

So I checked it out. This is an old report. Wilson was confirmed back in June.

[6ftstick]

This didn’t sound right to me both because the Senate isn’t in session and because there is a vacancy on the federal appellate bench, Judge Griffith who retired earlier this week from the DC Circuit.

So I checked it out. This is an old report. Wilson was confirmed back in June.

SO it means I'm off by 1 confirmation and a couple months.

Shoot me.

[njbill]

I was responding to “just” and “this week.”

But, yes, in the full scheme of things, not really a big deal.

[seacoaster]

Very interesting article/opinion piece in today's NYT:

https://www.nytimes.com/2020/09/15/opin ... ution.html

"More than at any time since the 1930s, the administrative state is under constitutional assault. Some judges, lawyers and legal academics are calling into question the very structure of modern government.

Four members of the U.S. Supreme Court, and possibly five, have indicated that they would like to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad or uncabined discretion to administrative agencies such as the Environmental Protection Agency, the Department of Labor and the Department of Transportation. Under their approach, important parts of the Clean Air Act and the Occupational Safety and Health Act might be invalidated.

So too, in eliminating the independence of the Consumer Financial Protection Bureau in June, a majority of the Supreme Court cast a dark constitutional cloud over the long-established idea that Congress has the power to allow agencies to operate independently of the president. The court’s approach raises serious doubts about the legal status of the Federal Reserve Board, the Federal Trade Commission, the Nuclear Regulatory Commission and other such entities.

These developments are just two of a large number of emerging efforts within the federal courts to limit the power of administrative agencies or perhaps even to abolish them, at least in their current form. We are witnessing the flowering of a longstanding attempt to see the administrative state as fundamentally illegitimate. (The legal assault on the administrative state has political resonance, too; think of the former Trump adviser Steve Bannon’s call for the “deconstruction of the administrative state.”)

Viewed most sympathetically, those efforts reflect a commitment to the values of legality, accountability and liberty — understanding all these values in particular, highly controversial ways. But the best way to promote such values is not by deconstructing anything, but by adapting and making new an old idea: the rule of law.

About 60 years ago, the legal philosopher Lon Fuller specified the conditions that he believed were necessary, at least in some minimal form, for the very existence of law. They were: the making of rules, so that issues aren’t decided on a case-by-case basis; transparency, so that affected parties are aware of the relevant rules; not applying rules retroactively, so that people can rely on current rules; comprehensibility, so that people understand the rules; not issuing rules that contradict one another; not issuing rules that require people to do things they lack the power to do; relative stability of rules, so that people can orient their action in accordance with them; and no mismatch between rules as announced and rules as administered.

Writing against the background set by fascism and communism, Professor Fuller claimed that if a government entirely failed to meet any of these conditions, it would fail to have “a legal system at all.” But he also saw the principles underlying these procedural virtues as moral ideals within law — aspirational principles that, judiciously applied, would help to make governance not only respectful of legality but also more efficacious.

In Professor Fuller’s view, law has a kind of internal morality. His account of the morality of law is an excellent way of channeling modern administration into its best forms — and of responding to the strongest arguments of those who want to limit the authority of administrators.

In our view, courts should be taking the morality of law quite seriously. Fortunately, they often do. Indeed, many of the principles of legal morality that Professor Fuller listed have been invoked by the Roberts court in a number of domains.

The Roberts court has emphasized, for example, that agencies must follow their own rules, reducing the risk that they will make decisions on a case-by-case basis. It has also repeatedly emphasized the importance of “reliance interests,” which arise whenever people act in ways that depend on existing rules, and thus the court has worked to combat unduly rapid changes in the law. A recent example is the court’s decision on the Deferred Action for Childhood Arrivals program, or DACA, which required the Department of Homeland Security to do more to consider the reliance interests of program participants. Right or wrong, the decision was animated by an account of law’s morality.

Law’s morality also animated some lower court decisions that invalidated Obama administration initiatives. One example is the decision that issued an injunction against the Obama administration’s initial adoption of the DACA program and the related Deferred Action for Parents of Americans program, on the ground, among others, that the administration had attempted to disguise a substantive change in the law as a mere exercise of enforcement discretion. The court claimed, in effect, that there was a mismatch between rules as announced and rules as administered.

The principles of law’s morality speak not just to the courts but to all branches of government, including administrative agencies, the president and Congress. Some of these principles deserve to be codified. As one possibility, consider President Trump’s 2019 executive order titled “Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication.” The order instructs executive agencies not to apply standards of conduct in ways that would cause “unfair surprise.” Professor Fuller would heartily approve of this principle.

All this points to a way forward for the law, and to a way to settle and regulate the intense conflicts over the administrative state. To protect health and safety, and freedom itself, any advanced nation needs strong public bodies acting for the general welfare. But it also needs the rule of law, and the principles of law’s morality offer the best and most useful conception of the rule of law today."

Cass R. Sunstein and Adrian Vermeule are law professors at Harvard and the authors of “Law and Leviathan: Redeeming the Administrative State.”

[youthathletics]

RBG passes away today. RIP

[njbill]

Fittingly, Nina Totenberg, her good friend:

https://www.npr.org/2020/09/18/10030697 ... dies-at-87

[a fan]

Fittingly, Nina Totenberg, her good friend:

https://www.npr.org/2020/09/18/10030697 ... dies-at-87

Nice words from CS Roberts. Classy stuff.

"My most fervent wish is that I will not be replaced until a new president is installed."-RBG

Laugh if you want, but I can see Trump granting her wish. McConnell, not so much.

This will send voter turnout through the roof, IMHO.