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I realize the court wasn't ruling on what qualifies as 'arms length', but a board member asking her BAE to hook her up doesn't count...? who does then? And holy poo poo you folks weren't kidding about the Gorsuch opinions. He reads like a facebook crank.
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Mar 10, 2018 02:50
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TheDeadlyShoe posted:I realize the court wasn't ruling on what qualifies as 'arms length', but a board member asking her BAE to hook her up doesn't count...? who does then? That's because he is one, just one that's old enough to have made a real career out of it before facebook came along.
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Mar 10, 2018 05:35
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All this gun talk reminds me: what happened to the (or what I thought would be a) line of cases extending from Heller and McDonald? I thought the train would keep on running through other major cities. In New York City and the entire state of New Jersey, for example, it is still essentially impossible for a non-ex-cop to get a handgun permit. Why haven't we seen challenges to these as well? Or did they fail at the district level and thus not gain any publicity, and if so, why?
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Mar 10, 2018 19:01
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VitalSigns posted:There was that one dude who thought about gay sex more than the average gay man thinks about gay sex By some reports, Pryor was the original choice to fill
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Mar 10, 2018 19:20
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How would Pryor be worse than Gorsuch though?
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Mar 10, 2018 19:22
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Pryor is an evangelical rear end in a top hat obsessed with sex. I'm willing to believe Gorsuch might vote to overturn Obergefell on strictly partisan lines and throw everything into chaos, but Pryor definitely would.
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Mar 10, 2018 19:25
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FlamingLiberal posted:How would Pryor be worse than Gorsuch though? Pryor has some pretty horrifying views on voter suppression and women's rights (he's said the government-sponsored alternative framework for access to birth control that was set up in response to Burwell is illegal). At least Gorsuch is a loving moron. Pryor's a True Believer.
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Mar 10, 2018 19:28
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Timby posted:Pryor has some pretty horrifying views on voter suppression and women's rights (he's said the government-sponsored alternative framework for access to birth control that was set up in response to Burwell is illegal). At least Gorsuch is a loving moron. Pryor's a True Believer.
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Mar 11, 2018 01:40
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KernelSlanders posted:All this gun talk reminds me: what happened to the (or what I thought would be a) line of cases extending from Heller and McDonald? I thought the train would keep on running through other major cities. In New York City and the entire state of New Jersey, for example, it is still essentially impossible for a non-ex-cop to get a handgun permit. Why haven't we seen challenges to these as well? Or did they fail at the district level and thus not gain any publicity, and if so, why? To sum it up - the district and appellate courts have taken seriously the Heller language about not disturbing long held regulations, and no constitutional rights are absolute; the combination means there have been few gun advocate victories post Heller. A congressional research summary of the November 2017 state of the law is below. https://fas.org/sgp/crs/misc/R44618.pdf
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Mar 11, 2018 01:58
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VitalSigns posted:Pryor is an evangelical rear end in a top hat obsessed with sex. But you repeat yourself.
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Mar 11, 2018 04:38
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ulmont posted:To sum it up - the district and appellate courts have taken seriously the Heller language about not disturbing long held regulations, and no constitutional rights are absolute; the combination means there have been few gun advocate victories post Heller. A congressional research summary of the November 2017 state of the law is below. That was a good read, but didn't really address my question. Why have other states/cities with de facto handgun bans, similar to pre-litigation Chicago and DC, not had them struck down?
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Mar 14, 2018 04:23
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KernelSlanders posted:That was a good read, but didn't really address my question. Why have other states/cities with de facto handgun bans, similar to pre-litigation Chicago and DC, not had them struck down? DC and Chicago did not have "de facto" handgun bans. DC and Chicago had "de jure" handgun bans, where it was simply impossible to legally own a handgun. Heller posted:The District of Columbia generally prohibits the possession of handguns. It is a crime to carry an unregistered firearm, and the registration of handguns is prohibited. McDonald posted:A City ordinance provides that “[n]o person shall . . . possess . . . any firearm unless such person is the holder of a valid registration certificate for such firearm.” Chicago, Ill., Municipal Code §8–20–040(a) (2009). The Code then prohibits registration of most handguns, thus effectively banning handgun possession by almost all private citizens who reside in the City. NYC, by contrast, has a 17-page handgun license application form but does not flatly ban possession. You can tell NYC doesn't flatly ban possession by the way Kwong v. Bloomberg (discussed in the FAS link) was about the price of licensing a handgun in NYC and was brought by plaintiffs who had handgun licenses. The difference between regulating gun possession (of a type of gun traditionally suited for home defense, anyway) and banning gun possession was key in Heller. Kwong: https://www.leagle.com/decision/infco20130709086
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Mar 14, 2018 05:16
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yep, a quick search reveals that most people who live in new york city can probably get a handgun if they are willing to go through the expense and hassle. It is (probably intentionally) a very annoying and cumbersome process that can take 8 months, but its all just paperwork, common sense, and following directions, even in NYC. They do not have a de facto ban, though their process is very long. http://newyorkcityguns.com/getting-a-nyc-handgun-permit/
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Mar 14, 2018 22:55
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Yeah, for as much as Heller validated the reinterpretation of 2A it was also clear that limiting the right is not out of the question. This is in line with other doctrines in constitutional law like time/place/manner restrictions on free speech rights. From time to time the court gets a bug up their rear end about procedure, and that was the case in Heller. Blanket bans are unconstitutional, but if the state does a thing that results in a similar outcome through more complicated means then it's often given a pass.
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Mar 17, 2018 10:12
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Stay application in the PA redistricting case (take 2) denied:quote:17A909 TURZAI, MICHAEL C., ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. The parallel federal lawsuit (3-judge panel) got kicked out today as well. quote:The Plaintiffs seek an extraordinary remedy: they ask us to enjoin the Executive Defendants from conducting the 2018 election cycle in accordance with the Pennsylvania Supreme Court‟s congressional redistricting map and to order the Executive Defendants to conduct the cycle using the map deemed by the Pennsylvania Supreme Court to be violative of the Commonwealth's constitution. In short, the Plaintiffs invite us to opine on the appropriate balance of power between the Commonwealth‟s legislature and judiciary in redistricting matters, and then to pass judgment on the propriety of the Pennsylvania Supreme Court's actions under the United States Constitution. These are things that, on the present record, we cannot do. ulmont fucked around with this message at 21:00 on Mar 19, 2018 |
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Mar 19, 2018 20:57
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Pretty sure it's to avoid writing any contradictory language in broader gerrymandering decision(s).
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Mar 19, 2018 21:01
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FAUXTON posted:Pretty sure it's to avoid writing any contradictory language in broader gerrymandering decision(s). I think SCOTUS could have stayed the case pending their Wisconsin decision without doing much other than holding the current districts for 2018.
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Mar 19, 2018 21:03
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FAUXTON posted:Pretty sure it's to avoid writing any contradictory language in broader gerrymandering decision(s). Actually in this case the Pennsylvania legislature didn't even bother to sue (just individual legislators), so they got bounced on standing. ulmont posted:I think SCOTUS could have stayed the case pending their Wisconsin decision without doing much other than holding the current districts for 2018. Because this was a purely state constitution based case, the sole issue they would be deciding would be if the PA state supreme court can redraw maps that violate the state constitution, which isn't something that would be affected by any conceivable decision in the Wisconsin case.
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Mar 19, 2018 21:24
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 Opinion! This is hypertechnical securities law and civil procedure bullshit with a unanimous opinion. I recommend waiting for a more interesting case. CYAN, INC., ET AL. v. BEAVER COUNTY EMPLOYEES RETIREMENT FUND ET AL. Brief Background: In the wake of the 1929 stock market crash, Congress enacted two laws, in successive years, to promote honest practices in the securities markets. The Securities Act of 1933 (1933 Act) creates private rights of action to aid the enforcement of obligations pertaining to securities offerings. The Act authorizes both federal and state courts to exercise jurisdiction over those private suits and, more unusually, bars the removal of such suits from state to federal court. The Securities Exchange Act of 1934 (1934 Act), which regulates not the original issuance of securities but all their subsequent trading, is also enforceable through private rights of action. But all suits brought under the 1934 Act fall within the exclusive jurisdiction of the federal courts. In 1995, the Private Securities Litigation Reform Act (Reform Act) amended both Acts, in order to stem perceived abuses of the classaction vehicle in securities litigation. The Reform Act included both substantive reforms, applicable in state and federal court alike, and procedural reforms, applicable only in federal court. Rather than face these new obstacles, plaintiffs began filing securities class actions under state law. To prevent this end run around the Reform Act, Congress passed the Securities Litigation Uniform Standards Act of 1998 (SLUSA), whose amendments to the 1933 Act are at issue in this case. As relevant here, those amendments include two operative provisions, two associated definitions, and two “conforming amendments.” First, 15 U. S. C. §77p(b) completely disallows (in both state and federal courts) “covered class actions” alleging dishonest practices “in connection with the purchase or sale of a covered security.” According to SLUSA’s definitions, the term “covered class action” means a class action in which “damages are sought on behalf of more than 50 persons.” §77p(f)(2). And the term “covered security” refers to a security listed on a national stock exchange. §77p(f)(3). Next, §77p(c) provides for the removal of certain class actions to federal court, where they are subject to dismissal. Finally, SLUSA’s “conforming amendments” add two new phrases to §77v(a), the 1933 Act’s jurisdictional provision. The first creates an exception to §77v(a)’s general removal bar through the language “[e]xcept as provided in section 77p(c).” The other—the key provision in this case—expresses a caveat to the general rule that state and federal courts have concurrent jurisdiction over all claims to enforce the 1933 Act. With this conforming amendment, §77v(a) now provides that state and federal courts shall have concurrent jurisdiction, “except as provided in section 77p . . . with respect to covered class actions.” The Court refers to this provision as the “except clause.” Respondents, three pension funds and an individual (Investors), purchased shares of stock in petitioner Cyan, Inc., in an initial public offering. After the stock declined in value, the Investors brought a damages class action against Cyan in state court, alleging 1933 Act violations. They did not assert any claims based on state law. Cyan moved to dismiss for lack of subject matter jurisdiction, arguing that SLUSA’s “except clause” stripped state courts of power to adjudicate 1933 Act claims in “covered class actions.” The Investors maintained that SLUSA left intact state courts’ jurisdiction over all suits— including “covered class actions”—alleging only 1933 Act claims. The state courts agreed with the Investors and denied Cyan’s motion to dismiss. This Court granted certiorari to decide whether SLUSA deprived state courts of jurisdiction over “covered class actions” asserting only 1933 Act claims. The Court also addresses a related question raised by the federal Government as amicus curiae and addressed by the parties in briefing and argument: whether SLUSA enabled defendants to remove 1933 Act class actions from state to federal court for adjudication. Holding: By its terms, §77v(a)’s “except clause” does nothing to deprive state courts of their jurisdiction to decide class actions brought under the 1933 Act. And Cyan’s various appeals to SLUSA’s purposes and legislative history fail to overcome the clear statutory language. The statute says what it says—or perhaps better put here, does not say what it does not say. State-court jurisdiction over 1933 Act claims thus continues undisturbed. ... The Government rejects Cyan’s view that SLUSA stripped state courts of jurisdiction over 1933 Act class actions, for roughly the same reasons we have given. But like Cyan, the Government believes that “Congress would not have been content to leave” such suits “stuck in state court,” where the Reform Act’s procedural protections do not apply...At bottom, the Government makes the same mistake as Cyan: It distorts SLUSA’s text because it thinks Congress simply must have wanted 1933 Act class actions to be litigated in federal court ... SLUSA did nothing to strip state courts of their longstanding jurisdiction to adjudicate class actions alleging only 1933 Act violations. Neither did SLUSA authorize removing such suits from state to federal court. We accordingly affirm the judgment below. Lineup: Kagan, unanimous. https://www.supremecourt.gov/opinions/17pdf/15-1439_8njq.pdf [internal citations inconsistently omitted throughout]
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Mar 20, 2018 15:37
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This is fantastic content, thank you
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Mar 20, 2018 15:54
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If states are competing for businesses to come to those states through laws, taxes, etc. does the federal government have the right to regulate this market through say, a required minimum corporate tax rate in all states, just as a starting example? The whole "race to the bottom" thing looks to me like interstate commerce.
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Mar 20, 2018 18:06
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Nevvy Z posted:If states are competing for businesses to come to those states through laws, taxes, etc. does the federal government have the right to regulate this market through say, a required minimum corporate tax rate in all states, just as a starting example?
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Mar 20, 2018 18:10
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Nevvy Z posted:If states are competing for businesses to come to those states through laws, taxes, etc. does the federal government have the right to regulate this market through say, a required minimum corporate tax rate in all states, just as a starting example? It's trivial to do. Just have a business tax rate that has 100% state and local tax crediting up to a certain amount (say., 10%). That way, no state benefits by having a lower tax rate than 10% because the company is still paying it, just to the feds instead of the state.
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Mar 20, 2018 18:17
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Eh, why bother having that fight with the right, though? We still hand over huge sums of federal cash to failing red states at the end of the day.
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Mar 20, 2018 20:12
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Potato Salad posted:Eh, why bother having that fight with the right, though? We still hand over huge sums of federal cash to failing red states at the end of the day. Races to the bottom hurt all states, not just the ones that win. It's in everyone's interest to avoid states competing over the lowest tax rate at the expense of vital services, even the states that don't participate.
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Mar 20, 2018 20:20
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Corporate income tax is not a good source of revenues anyway because of its structure; it only really hits specific kinda of businesses and tends to drop like a rock in a recession. Tax sales, employee income, commercial property, dividends, do a VAT, whatever.
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Mar 21, 2018 04:12
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So what if it drops in a recession, that's when you deficit spend anyway. You collect the corporate tax in the good times to payoff the deficits, counter-cyclical policy yo
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Mar 21, 2018 04:36
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VitalSigns posted:So what if it drops in a recession, that's when you deficit spend anyway. Why am I suddenly convinced there's a great misunderstanding when the word "corporate tax" gets tossed around. It's not a tax on wealth or capital. Talking about the corporate income tax makes for great optics on whichever side wants to prove a point, but there are more effective vehicles with which to shape tax policy like this.
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Mar 21, 2018 14:31
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Cat Army 
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Opinions! AYESTAS, AKA ZELAYA COREA v. DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION Brief Background: [Ayestes was sentenced to death for murder. He tried to request funding to develop his claim that both his trial and state habeas counsel were ineffective for not investigating his mental health and alcohol and drug abuse during the trial penalty phase and initial appeals. The District Court denied it for procedural default and the Fifth Circuit rejected it as not showing a substantial need / viable claim not procedurally barred.] Holding: We hold that the lower courts applied the wrong legal standard, and we therefore vacate the judgment below and remand for further proceedings. ... Before we reach that question, however, we must consider a jurisdictional argument advanced by respondent, the Director of the Texas Department of Criminal Justice.1 —————— 1 We also consider a jurisdictional issue not raised by the parties, namely, whether we have jurisdiction even though no COA has yet been issued. Though we take no view on the merits, we will assume for the sake of argument that the Court of Appeals could not entertain petitioner’s §3599 claim without the issuance of a COA. We may review the denial of a COA by the lower courts. When the lower courts deny a COA and we conclude that their reason for doing so was flawed, we may reverse and remand so that the correct legal standard may be applied. We take that course here. Respondent contends that the District Court’s denial of petitioner’s funding request was an administrative, not a judicial, decision and therefore falls outside the scope of the jurisdictional provisions on which petitioner relied in seeking review in the Court of Appeals and in this Court. ... Petitioner’s request was made by motion in his federal habeas proceeding, which is indisputably a judicial proceeding. And as we will explain, resolution of the funding question requires the application of a legal standard—whether the funding is “reasonably necessary” for effective representation—that demands an evaluation of petitioner’s prospects of obtaining habeas relief. We have never held that a ruling like that is administrative and thus not subject to appellate review under the standard jurisdictional provisions. ... Respondent first argues as follows: Judicial proceedings must be adversarial; 18 U. S. C. §3599(f) funding adjudications are not adversarial because the statute allows requests to be decided ex parte; therefore, §3599(f) funding adjudications are not judicial in nature. This reasoning is flawed...That the habeas proceeding was adversarial is beyond dispute. And on the funding question, petitioner and respondent plainly have adverse interests and have therefore squared off as adversaries. ... Respondent’s second argument is based on the venerable principle “that Congress cannot vest review of the decisions of Article III courts in” entities other than “superior courts in the Article III hierarchy.” Respondent claims that §3599 funding decisions may be revised by the Director of the Administrative Office of the Courts and that this shows that such decisions must be administrative. This argument, however, rests on a faulty premise. Nothing in §3599 even hints that review by the Director of the Administrative Office is allowed. ... Satisfied that we have jurisdiction, we turn to the question whether the Court of Appeals applied the correct legal standard when it affirmed the denial of petitioner’s funding request....The Fifth Circuit has held that individuals seeking funding for such services must show that they have a “substantial need” for the services. Petitioner contends that this interpretation is more demanding than the standard—“reasonably necessary”—set out in the statute. And although the difference between the two formulations may not be great, petitioner has a point. ... The difference between “reasonably necessary” and “substantially need[ed]” may be small, but the Fifth Circuit exacerbated the problem by invoking precedent to the effect that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.”...The Fifth Circuit adopted this rule before our decision in Trevino, but after Trevino, the rule is too restrictive. Trevino permits a Texas prisoner to overcome the failure to raise a substantial ineffective-assistance claim in state court by showing that state habeas counsel was ineffective, 569 U. S., at 429, and it is possible that investigation might enable a petitioner to carry that burden. In those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding. ... We conclude that the Fifth Circuit’s interpretation of §3599(f) is not a permissible reading of the statute. We therefore vacate the judgment below and remand the case for further proceedings consistent with this opinion. Lineup: Alito, unanimous. Concurrence by Sotomayor, joined by Ginsburg. Notes From Other Opinions: Sotomayor: Having answered the question presented of what is the appropriate §3599(f ) standard, the Court remands Ayestas’ case for the lower courts to consider the application of the standard in the first instance. I write separately to explain why, on the record before this Court, there should be little doubt that Ayestas has satisfied §3599(f). ... [T]he focus first is on the evidence of the deficient performance of Ayestas’ state-appointed counsel. Trial counsel secured the appointment of an investigator, who met with Ayestas shortly after the appointment. For nearly 15 months, however, there was apparently no investigation into Ayestas’ history in preparation for trial. ... About two weeks before jury selection, trial counsel for the first time reached out to Ayestas’ family in Honduras. Shortly thereafter, five days before trial, counsel wrote Ayestas’ family stating that she needed them to come testify. Ayestas’ family agreed, but they indicated that they could not obtain visas because a letter that trial counsel was supposed to have sent to the U. S. Embassy to facilitate their travel never arrived, and ultimately no family members appeared at Ayestas’ trial. The guilt phase lasted two days, and trial counsel presented no witnesses. The penalty phase lasted less than a day, and trial counsel presented two minutes of mitigation evidence consisting of three letters from an instructor who taught English classes to Ayestas in prison, attesting that he was “a serious and attentive student.” On this record, Ayestas has made a strong showing that trial counsel was deficient. The evidence concerning the deficiency of Ayestas’ state post-conviction counsel is similarly strong. State postconviction counsel retained the services of a mitigation specialist...The specialist recommended a comprehensive investigation into Ayestas’ biological, psychological, and social history to explore, inter alia, issues related to addiction and mental health. State postconviction counsel failed to follow these recommendations. He did nothing to investigate issues related to Ayestas’ mental health or substance abuse. Notably, Ayestas suffered a psychotic episode and was diagnosed with schizophrenia while his state postconviction application was pending. ... With even minimal investigation by trial counsel, at least one may well have, as this Court has held that evidence of mental illness and substance abuse is relevant to assessing moral culpability. Instead, the jury “heard almost nothing that would humanize [him] or allow them to accurately gauge his moral culpability.” There is thus good reason to believe that, were Ayestas’ §3599(f) motion granted, he could establish prejudice under Strickland. ... In sum, Ayestas has made a strong showing that he is entitled to §3599(f) funding. https://www.supremecourt.gov/opinions/17pdf/16-6795_c9dh.pdf MARINELLO v. UNITED STATES Brief Background: Between 2004 and 2009, the Internal Revenue Service (IRS) intermittently investigated petitioner Marinello’s tax activities. In 2012, the Government indicted Marinello for violating, among other criminal tax statutes, a provision in 26 U. S. C. §7212(a) known as the Omnibus Clause, which forbids “corruptly or by force or threats of force . . . obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” The judge instructed the jury that, to convict Marinello of an Omnibus Clause violation, it must find that he “corruptly” engaged in at least one of eight specified activities, but the jury was not told that it needed to find that Marinello knew he was under investigation and intended corruptly to interfere with that investigation. Marinello was convicted. The Second Circuit affirmed, rejecting his claim that an Omnibus Clause violation requires the Government to show the defendant tried to interfere with a pending IRS proceeding, such as a particular investigation. Holding: A clause in §7212(a) of the Internal Revenue Code makes it a felony “corruptly or by force” to “endeavo[r] to obstruct or imped[e] the due administration of this title.” 26 U. S. C. §7212(a). The question here concerns the breadth of that statutory phrase. Does it cover virtually all governmental efforts to collect taxes? Or does it have a narrower scope? In our view, “due administration of [the Tax Code]” does not cover routine administrative procedures that are near-universally applied to all taxpayers, such as the ordinary processing of income tax returns. Rather, the clause as a whole refers to specific interference with targeted governmental tax-related proceedings, such as a particular investigation or audit. ... The second clause, which we shall call the “Omnibus Clause,” forbids “corruptly or by force or threats of force (including any threatening letter or communication) obstruct[ing] or imped[ing], or endeavor[ing] to obstruct or impede, the due administration of [the Internal Revenue Code].” ... In United States v. Aguilar, 515 U. S. 593 (1995), we interpreted a similarly worded criminal statute. That statute made it a felony “corruptly or by threats or force, or by any threatening letter or communication, [to] influenc[e], obstruc[t], or imped[e], or endeavo[r] to influence, obstruct, or impede, the due administration of justice.” The statute concerned not (as here) “the due administration of ” the Internal Revenue Code but rather “the due administration of justice.” In interpreting that statute we pointed to earlier cases in which courts had held that the Government must prove “an intent to influence judicial or grand jury proceedings.” We noted that some courts had imposed a “‘nexus’ requirement”: that the defendant’s “act must have a relationship in time, causation, or logic with the judicial proceedings.” And we adopted the same requirement. We set forth two important reasons for doing so. We wrote that we “have traditionally exercised restraint in assessing the reach of a federal criminal statute, both out of deference to the prerogatives of Congress and out of concern that ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed.’” Both reasons apply here with similar strength. ... Here statutory context confirms that the text refers to specific, targeted acts of administration. The Omnibus Clause appears in the middle of a statutory sentence that refers specifically to efforts to “intimidate or impede any officer or employee of the United States acting in an official capacity." ... Those who find legislative history helpful can find confirmation of the more limited scope of the Omnibus Clause in the House and Senate Reports written when Congress first enacted the Omnibus Clause. ... Viewing the Omnibus Clause in the broader statutory context of the full Internal Revenue Code also counsels against adopting the Government’s broad reading. That is because the Code creates numerous misdemeanors, ranging from willful failure to furnish a required statement to employees, §7204, to failure to keep required records, §7203, to misrepresenting the number of exemptions to which an employee is entitled on IRS Form W–4, §7205, to failure to pay any tax owed, however small the amount, §7203. To interpret the Omnibus Clause as applying to all Code administration would potentially transform many, if not all, of these misdemeanor provisions into felonies, making the specific provisions redundant, or perhaps the subject matter of plea bargaining. ... In sum, we follow the approach we have taken in similar cases in interpreting §7212(a)’s Omnibus Clause....We conclude that, to secure a conviction under the Omnibus Clause, the Government must show (among other things) that there is a “nexus” between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action. That nexus requires a “relationship in time, causation, or logic with the [administrative] proceeding.” By “particular administrative proceeding” we do not mean every act carried out by IRS employees in the course of their “continuous, ubiquitous, and universally known” administration of the Tax Code. While we need not here exhaustively itemize the types of administrative conduct that fall within the scope of the statute, that conduct does not include routine, day-to-day work carried out in the ordinary course by the IRS, such as the review of tax returns. ... For these reasons, the Second Circuit’s judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. Lineup: Breyer, joined by Roberts, Kennedy, Ginsburg, Sotomayor, Kagan and Gorsuch. Dissent by Thomas, joined by Alito. Notes From Other Opinions: Thomas: I would hold that the Omnibus Clause does what it says: forbid corrupt efforts to impede the IRS from performing any of these activities. The Court, however, reads “this title” to mean “a particular [IRS] proceeding.” And that proceeding must be either “pending” or “in the offing.” The Court may well prefer a statute written that way, but that is not what Congress enacted. I respectfully dissent. ... The words “this title” cannot be read to mean “only some of this title.” As this Court recently reiterated, phrases such as “this title” most naturally refer to the cited provision “as a whole.” Congress used “this title” throughout Title 26 to refer to the Tax Code in its entirety...The phrase “due administration of this title” likewise refers to the due administration of the entire Tax Code. ... The Court rejects this straightforward reading, describing the “literal language” of the Omnibus Clause as “neutral.” It concludes that the statute prohibits only acts related to a pending or imminent proceeding. There is no textual or contextual support for this limitation. ... Regardless of whether this Court thinks the Omnibus Clause should contain a proceeding requirement, it does not have one. Because the text prohibits all efforts to obstruct the due administration of the Tax Code, I respectfully dissent. https://www.supremecourt.gov/opinions/17pdf/16-1144_p8k0.pdf [internal citations inconsistently omitted throughout]
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Mar 21, 2018 16:27
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The Iron Rose posted:Why am I suddenly convinced there's a great misunderstanding when the word "corporate tax" gets tossed around. A tax on wealth would be preferable, however that doesn't mean that in the absence of a wealth tax a corporate tax is a bad idea or that "but corporate tax revenue drops in recessions" is a sensible argument against having it. Corporate taxes are fine, at worst they encourage corporations to reinvest their earnings back into the business which is better than hoarding money. Well assuming you don't elect corporate tools who take bribes from those corporations to write in loopholes that allow them to pretend their profits were made in the Caymans but that's not an argument against corporate tax, that's an argument against electing politicians who hate corporate tax and want to help their friends get out of paying it.
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Mar 21, 2018 16:46
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quote:Lineup: Alito, unanimous. Concurrence by Sotomayor, joined by Ginsburg. I'm of the belief that Alito is hollow garbage so it's surprising to me that he wrote that opinion let alone joined it. Would have expected a spicy dissent from the bench about how the plaintiff was convicted and should go to the gurney without argument. Same with Gorsuch except less spicy and more like indecipherable dishwater. Also Thomas because the funds aren't denominated in gold coins or something. I know, it's more of a procedure thing but it's always a surprise to see unanimous decisions, moreso when it's unanimity on "this death row prisoner has rights."
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Mar 21, 2018 17:15
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FAUXTON posted:I'm of the belief that Alito is hollow garbage Alito signed on to a dissent with Thomas today that (a) claimed to be based on the literal language of the text and (b) couldn't convince Gorsuch to sign on.
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Mar 21, 2018 17:37
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ulmont posted:Alito signed on to a dissent with Thomas today that (a) claimed to be based on the literal language of the text and (b) couldn't convince Gorsuch to sign on. Reading it I'm really confused what Thomas was even saying about that statute. Like, the majority's opinion seems to be the most logical interpretation of the language. Sometimes I wonder if Thomas writes dissents on slam dunks just because he feels grumpy or something. Most of the time hes logical if peculiar. Regarding the death penalty one... I think the argument that it was administrative and not judicial is what made it 9-0 because thats kinda obviously judicial? hobbesmaster fucked around with this message at 17:50 on Mar 21, 2018 |
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Mar 21, 2018 17:48
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hobbesmaster posted:Regarding the death penalty one... I think the argument that it was administrative and not judicial is what made it 9-0 because thats kinda obviously judicial? Nah, they blew past that in the jurisdictional analysis. The real problem here was the flat bar the 5th had for anything that might be procedurally waived, which is a Catch-22 when you're trying to get funds for your investigation of an exception to the procedural waiver.
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Mar 21, 2018 18:31
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Relevant to this thread's interests:quote:In January, Epps tweeted: “Let’s rewrite some classic lines from SCOTUS ops… #GorsuchStyle.” https://twitter.com/isamuel/status/955914457632436224 https://twitter.com/bamelawyer/status/955996289476497409
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Mar 21, 2018 19:21
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I have often heard that Congress cannot regulate the nomination process for private political parties on First Amendment grounds of free association. However, a Tennessee state legislature bill proposed that candidates for its U.S. Senate seats should be selected by the state legislature's majority and minority parties, circumventing the Seventeenth Amendment. Would it really be unconstitutional for Congress to pass a bill specifying a presidential nominating process for all political parties, or even the ones with a majority and minority in the state legislature? If not, should we pass a Constitutional amendment that specifies "Congress has the power to regulate political parties which nominate candidates to federal office in order to ensure the nominating process is at least as democratic as the general election itself." or some variation, however it'd need to look like?
galenanorth fucked around with this message at 16:58 on Mar 27, 2018 |
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Mar 27, 2018 16:54
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galenanorth posted:I have often heard that Congress cannot regulate the nomination process for private political parties on First Amendment grounds of free association. However, a Tennessee state legislature bill proposed that candidates for its U.S. Senate seats should be selected by the state legislature's majority and minority parties, circumventing the Seventeenth Amendment. Would it really be unconstitutional to pass a bill specifying a presidential nominating process for all political parties, or even the ones with a majority and minority in the state legislature? If not, should we pass a Constitutional amendment that specifies "Congress has the power to regulate political parties which nominate candidates to federal office in order to ensure the nominating process is at least as democratic as the general election itself." or some variation, however it'd need to look like? state legislators are idiots who routinely propose blatantly unconstitutional laws for the sake of currying favor with donors/idiot base, to get free media to raise their profile, or just because they are the same sort of idiot as their base. you shouldn't assume anything about what is legal based on what they propose. this would be a blatant violation of the 17th Amendment, among other reasons it would be unconstitutional
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Mar 27, 2018 16:58
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galenanorth posted:I have often heard that Congress cannot regulate the nomination process for private political parties on First Amendment grounds of free association. However, a Tennessee state legislature bill proposed that candidates for its U.S. Senate seats should be selected by the state legislature's majority and minority parties, circumventing the Seventeenth Amendment. Would it really be unconstitutional to pass a bill specifying a presidential nominating process for all political parties, or even the ones with a majority and minority in the state legislature? If not, should we pass a Constitutional amendment that specifies "Congress has the power to regulate political parties which nominate candidates to federal office in order to ensure the nominating process is at least as democratic as the general election itself." or some variation, however it'd need to look like? I know very little about constitutional law but I'm pretty sure the section of that bill that says "No person nominated at the joint caucus who does not win the nomination as candidate for the majority party or the minority party shall qualify as an independent candidate or write-in candidate in the general election for United States senator" is hilariously unconstitutional because it allows the party to just nominate everyone they don't want to run, then choose the person they actually want, and thereby disqualify everyone they dislike from running as an independent or write-in.
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Mar 27, 2018 16:59
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As to the second question, first of all you don't need to care about whether or not regulating political parties is currently unconstitutional, because once you pass an amendment saying they can, then they can. The constitution might be awkwardly changed to read "this sort of thing is not usually allowed, except to the extent that this crazyass new amendment says it is for political parties in presidential elections". Should we pass such an amendment? No, we should not. For the 2 major political parties, whether its a caucus or a primary, the nomination contests are more or less fair enough in every state, and it would not be practical at all to require smaller parties to have full blown statewide elections.
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Mar 27, 2018 17:48
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The Federal Circuit has issued a new opinion in the Oracle / Google Java API trial. While not SCOTUS, I think we've discussed it here in the past. To recap: 1. Below, the district court judge found that the API packages were not copyrightable as a matter of law. Google won. 2. In the first Federal Circuit opinion, the court reversed. Oracle won. 3. Below, the jury in the district court found the use of the API packages fair. Google won. 4. In the second (current) Federal Circuit opinion, the court found this use not fair use as a matter of law. Oracle won. quote:Although Google could have furthered copyright’s goals of promoting creative expression and innovation by developing its own APIs, or by licensing Oracle’s APIs for use in developing a new platform, it chose to copy Oracle’s creative efforts instead. There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.
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Mar 27, 2018 17:51
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