Court breathes life back into 10th Amendment

In a sports book.

What a refreshing concept: Congress may exercise only those powers granted to it by the Constitution, all other powers belong to the states and the people themselves.

In an opinion issued today, Justice Samuel Alito tossed the Professional Amateur Sports Protection Act of 1992, which outlawed sports gambling, though Nevada a couple of other states were grandfathered. The decision was 6-3.

Here is what Alito stated:

The legalization of sports gambling is a controversial subject. Supporters argue that legalization will produce revenue for the States and critically weaken illegal sports betting operations, which are often run by organized crime. Opponents contend that legalizing sports gambling will hook the young on gambling, encourage people of modest means to squander their savings and earnings, and corrupt professional and college sports.

The legalization of sports gambling requires an im­ portant policy choice, but the choice is not ours to make.

 

Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own. Our job is to interpret the law Congress has enacted and decide whether it is consistent with the Constitution. PASPA is not. PASPA “regulate[s] state governments’ regulation” of their citizens … The Constitu­tion gives Congress no such power.

The long dormant 10th Amendment lives.

 

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Newspaper column: Court case is about free speech, not abortion

This past week the U.S. Supreme Court heard arguments in a case — NIFLA v. Becerra — that could answer the question of whether forcing speech on certain professionals is a violation of the free speech clause of the First Amendment.

NIFLA is the National Institute of Family and Life Advocates, which gives legal advice to pro-life pregnancy centers, and Becerra is Xavier Becerra, the attorney general of California.

At issue is a California law, the Reproductive FACT Act, that requires “crisis pregnancy centers” to post notices informing pregnant women about state-subsidized free or low-cost abortions.

The law also requires pro-life, religious-oriented unlicensed centers to place extensive disclaimers in large fonts and in as many as 13 languages in their ads and on billboards telling people about abortion services, significantly increasing their cost to advertise. The law exempts abortion providers, hospitals and other healthcare facilities.

The Ninth Circuit upheld the law.

The case could reverberate in this year’s Nevada gubernatorial election, because Attorney General Adam Laxalt, who is running for the Republican nomination to be governor, signed onto to an amicus brief in the case with 21 other states, challenging the law as an unconstitutional burden on free speech.

According to the donation-funded news website The Nevada Independent, the two leading Democratic gubernatorial candidates, Clark County Commissioners Steve Sisolak and Chris Giunchigliani, have sharply criticized Laxalt for taking sides in the lawsuit, calling him “anti-choice.” Sisolak and Giunchigliani are both donors to the website.

The amicus brief argues the California law is not “an informed consent” law, which the courts have upheld.

“Informed consent is required specifically so that the patient can assess the risks and consequences of a procedure that a doctor is seeking to perform. …” the brief in question argues. “In contrast, a State’s desire to compel clinics to disseminate information about the availability of state funding for procedures those clinics do not perform has nothing to do with allowing a patient to assess the risks and consequences of a medical procedure about to be performed.”

The targeted clinics provide pregnancy tests, ultrasounds, referrals and consultations, which involve little, if any, risk.

The brief concludes, “If there is evidence of wrongdoing on behalf of any of the medical clinics, California may unquestionably enforce those standards through the power of its regulatory authority, like any other State. But enforcing standards does not necessitate a blanket requirement compelling medical clinics to advertise state- subsidized services they do not provide.”

During oral arguments this past week, the questions asked by both liberal and conservative justices indicated they thought the law an overreach.

“If — if it’s about just ensuring that everyone has full information about their options, why should the state free-ride on a limited number of clinics to provide that information?” asked the court’s newest conservative member, Neil Gorsuch. He later added, “Well, but if you’re trying to educate a class of — of persons about their rights, it’s — it’s pretty unusual to force a private speaker to do that for you under the First Amendment.”

Conservative Justice Samuel Alito asked about California’s effort to create a new category of speech called professional speech, which would have lesser First Amendment protection than other speech.

“I mean, this case is very important in itself, but adopting this new category of speech would have far-reaching consequences. …” Alito said from the bench. “But just to take a couple of examples: Journalists are professionals. So would they be subject to this standard? How about economists? How about climate scientists? How about a fortune teller? The Fourth Circuit said that a fortune teller is a — is a professional. How about somebody who writes an advice column for parents? I mean, wouldn’t we be getting into very dangerous territory if we do this?”

Justice Elena Kagan, one the markedly liberal justices, questioned the way the law was “gerrymandered” to target a select group for the content of their speech.

“Because if it has been gerrymandered, that’s a serious issue,” she stated. “In other words, if, you know, it’s like, look, we have these general disclosure requirements, but we don’t really want to apply them generally, we just want to apply them to some speakers whose speech we don’t much like.”

The question to be resolved in California is about free speech, not abortion.

Laxalt did join a 25-state amicus brief a year ago defending a Texas law banning “dismemberment” abortions, in which fetuses are torn apart in the womb.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Both sides of the national abortion argument, plus free-speech rights, are at the center of Supreme Court case NIFLA v. Becerra. (AP pix).

SCOTUS reins in WOTUS abuse … somewhat

The U.S. Supreme Court (SCOTUS) Tuesday acted to finally curb, but not eliminate, the unfettered power of the Environmental Protection Agency and the Army Corps of Engineers to control every stream, ditch, wetland or muddy hoof print that might eventually spill a few drops of water into any rivulet that might occasionally be navigable with an inner tube.

Under the agencies’ vague definition of what exactly are waters of the United States (WOTUS) under the Clean Water Act of 1972, the existence of any water on one’s own property promulgates the necessity to obtain a permit before doing anything that might “pollute” that water with anything, including dirt.

In a unanimous decision in Army Corps of Engineers v. Hawkes Co., the court said property owns have a right to sue in court over permitting determinations. The federal agencies had circuitously contended that property owners could only go to court once decisions were final, but essentially argued that all permitting decisions are reviewable and potentially reversible and therefore never final.

Muddy hoof print (Getty Images)

In December 2010, the Hawkes Co., which mines peat for use on golf courses among other uses, applied for a permit to mine peat on a 530-acre tract of property it owns in Minnesota. The Corps of Engineers told the company they would have to do numerous tests that would cost more than $100,000.

In February 2012, the Corps determined the land contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. The owners appealed and got the same result, essentially a denial of permission to mine their own property.

In the opinion of the court, Chief Justice John Roberts points out the definition of WOTUS used by the EPA and the Corps “include land areas occasionally or regularly saturated with water — such as ‘mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes’ — the ‘use, degradation or destruction of which could affect interstate or foreign commerce.’ The Corps has applied that definition to assert jurisdiction over ‘270-to-300 million acres of swampy lands in the United States — including half of Alaska and an area the size of California in the lower 48 States.’”

Roberts also noted that a specialized individual permit, such as the one sought by Hawkes, on average costs $271,596 and 788 days to complete, not counting any mitigation costs that might be required. He said the permitting process can be “arduous, expensive, and long.” No kidding. He left out futile.

The Corps told Hawkes after its denial of a permit that it could appeal administratively, but not judicially, or simply do the work without a permit and risk a fine of $37,000 a day and criminal prosecution.

The court said Hawkes has a right to sue in court. So, it curtailed the process but did not put a stop to the draconian obstruction of the right of personal property.

In a concurring opinion, Justice Anthony Kennedy, joined by Justices Clarence Thomas and Samuel Alito, said that the EPA and Corps “ominous reach” on interpreting the Clean Water Act “continues to raise troubling questions regarding the Government’s power to cast doubt on the full use and enjoyment of private property throughout the Nation.”

Nevada Attorney General Adam Paul Laxalt, who along with 22 other attorneys general filed an amicus brief in this case, applauded judgment.

“This unanimous U.S. Supreme Court decision vindicates our position that the Obama Administration has continually attempted to avoid the rule of law and judicial review of its unlawful actions,” said Laxalt. “The Obama Administration seems determined to move as far and as fast as possible to unilaterally change our constitutional system and our congressional laws. … Fortunately in this case, our checks and balances have protected Nevadans from truly unprecedented federal overreach.”

But the reality is that this decision, while welcome, merely puts a Band-Aid on a hemorrhage. Congress must rewrite the Clean Water Act and properly define WOTUS for the rapacious federal agencies lest they grind commerce in this country to a halt.

The House passed legislation nearly a year ago that would have blocked the EPA water rule, but in January the Senate failed to override Obama’s veto.

ObamaCare contraceptive mandate compromise? Or sleight of hand?

How do you compromise core principles of your religion, the exercise of which is guaranteed in the First Amendment?

The U.S. Supreme Court sent the case of Zubik v. Burwell — in which petitioners argue the ObamaCare mandate to provide contraceptive coverage in company insurance plans violates their religious beliefs — to lower court where it says a compromise should be worked out.

 

The court’s order states:

Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

Cost free to whom? Somebody pays and it is usually in the form of higher premiums. So the company is paying for something its owners believe is a sin.

This is nothing but sleight of hand trickery and a way for the court to avoid a 4-4 tie by delaying.

Protesters outside Supreme Court building this past week oral arguments in case involving ObamaCare mandate to provide contraceptives in insurance plans. (USA Today photo)

 

 

Newspaper column: U.S. Supreme Court ruling is another push to appoint judges instead of electing them

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

Campaign flier.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

Let’s hope this ruling doesn’t give anyone in Nevada ideas.

A version of this column appears this week in the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel, the Lincoln County Record and the Sparks Tribune — and the Elko Daily Free Press.

Court ruling gagging judicial candidates really a ploy to stop electing judges

“I know no safe depositary of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power.”

Thomas Jefferson to William C. Jarvis, 1820

No doubt about it, the recent U.S. Supreme Court ruling that allows Florida to bar judicial candidates from personally soliciting campaign funding is not just a blow to free speech, but is another volley in the ongoing campaign to have judges appointed by elite committees of lawyers and judges and not voted into office by ignorant citizens who don’t know a judicial canon from a howitzer.

The court ruled 5-4, with Chief Justice John Roberts joining the court’s liberal faction, against Lanell Williams-Yulee, a 2009 county court judge candidate in Tampa. The Florida’s Supreme Court reprimanded her for a mailer asking for donations.

The offending flier

Though the Florida Bar code does not allow candidates to solicit funds, they may set up committees to seek funding, and the candidate may send personal thank you notes to donors, which seems to obviate the whole concept of separating judicial candidates from the squalor of being beholding to donors. It is all a ruse.

The dissent in the case by Justice Antonin Scalia, joined by Justice Clarence Thomas, makes clear the court’s ulterior motives.

Scalia wrote that the Florida code “scope suggests that it has nothing to do with the appearances created by judges’ asking for money, and everything to do with hostility toward judicial campaigning. How else to explain the Florida Supreme Court’s decision to ban all personal appeals for campaign funds (even when the solicitee could never appear before the candidate), but to tolerate appeals for other kinds of funds (even when the solicitee will surely appear before the candidate)? It should come as no surprise that the ABA (American Bar Association),whose model rules the Florida Supreme Court followed when framing Canon 7C(1), opposes judicial elections — preferring instead a system in which (surprise!) a committee of lawyers proposes candidates from among whom the Governor must make his selection.”

Thirty-nine states elect judges, including Nevada. An effort in 2010 to have Nevada judges appointed failed by a 58-42 margin, despite a vigorous campaign on its behalf.

U.S. Supreme Court Justice Sandra Day O’Connor, former Nevada Supreme Court Justice Bill Maupin and former Arizona Supreme Court Justice Ruth McGregor appeared at a Las Vegas newspaper editorial board seeking support for the ballot measure. The newspaper editorially opposed it, and I wrote a column against the idea.

“I think Americans want and expect to have one safe place in government, and that’s the court,” Justice O’Connor testified before the assembled journalists, “where somebody with a legal dispute can go and have somebody deciding the issue, based on the law, who is fair, independent and qualified. And I think your best chance of getting that is with this kind of a system. And it doesn’t take away people’s right to vote, it postpones it for whatever time is set in the legislation, one or two years. And then the voter can receive the information about the judge, the performance record, and cast a more intelligent ballot. Do you want to keep the person on the bench? Yes or no.”

She was dismissive of my argument that it is harder to bribe a million voters than one governor, even though I personally knew a governor who went to prison for that.

The Wall Street Journal pointed out at the time, “States using this so-called merit selection method have had their judicial selections manipulated by lawyers and bar associations that nominate guild favorites. In most cases this has pushed courts to the activist left.”

Yes, there is a problem with voters not being well enough informed about judicial candidates, but that is partly the fault of the legal community, which sets itself up as some bastion of virtuous objectivity, prohibited from sullying its robes in the mud wrestle that is electioneering.

The current ruling in Florida case runs counter to a Supreme Court ruling in the case of Republican Party of Minnesota v. White, in which the court said judicial canons limiting judges’ ability to address legal and political issues violates the First Amendment. Asking for money is also a free speech right.

If selection panels are needed to help a governor appoint and evaluation panels are needed to give voters information about whether or not to retain a judge, why not create them informally and present the information directly to the voters? I asked at the time.

Scalia also noted that the Florida ruling “banning candidates from asking for money personally ‘favors some candidates over others — incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.’ … This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.”

The court majority danced around so many precedents in law — using speculative phrases like “possible temptation,” “might lead” and “even unknowingly” — that Scalia at one point exclaimed: “This is not strict scrutiny; it is sleight of hand.”

This 2010 commercial supported appointing judges: