Matthew Vadum articles in The Epoch Times, November 2018

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Supreme Court Urged to End Lawyers’ Abuses in Class-Action Lawsuits
November 1, 2018 Updated: November 1, 2018

Lawyers in class-action lawsuits shouldn’t be allowed to short-change class-action plaintiffs and funnel their settlement money to charities they favor but which the plaintiffs may not, attorney and think-tank official Theodore H. Frank told the Supreme Court during oral arguments on Oct. 31.

The interest group AARP (formerly the American Association of Retired Persons) came under fire in oral arguments as the Trump administration told justices the well-heeled group had no reason to be awarded settlement funds in a lawsuit it had nothing to do with.

The case, cited as Frank v. Gaos, is an appeal of a decision rendered by the oft-overturned U.S. Court of Appeals for the Ninth Circuit.

It arises from an $8.5 million fund created as part of a settlement with Google over privacy abuses committed by the Silicon Valley giant. The search engine giant allegedly violated its users’ privacy by disclosing their search terms to other websites.

Out of that $8.5 million, $2.1 million went to lawyers, $1 million went to administrative expenses, and $5.3 million went to unaffiliated third-party groups with whom Google and some of the attorneys in the proceeding were friendly.

The lead plaintiffs received a few thousand dollars each, but the bulk of those participating in the lawsuit received nothing.

The $5.3 million went to the Center for Information, Society, and Policy at Chicago-Kent College of Law; the Berkman Center for Internet and Society at Harvard University; the Stanford Center for Internet and Society; the World Privacy Forum; Carnegie Mellon University; and AARP.

Frank and Competitive Enterprise Institute (CEI) lawyer Melissa Holyoak participated as members of the court-designated class of plaintiffs in the lawsuit against Google.

On Halloween, Frank argued his own case in person before the Supreme Court, something that rarely happens. He is director of litigation and director of the Center for Class Action Fairness (CCAF) at the CEI. Frank founded CCAF as a nonprofit public-interest law firm in 2009. It merged with CEI in 2015.

‘Slush Funds’

Theodore H. Frank , who served as plaintiff and lawyer in the case Frank v. Gaos, on the steps of the Supreme Court building in Washington on Oct. 31, 2018. (Competitive Enterprise Institute)

In an interview with The Epoch Times on the courthouse steps after oral arguments, Frank summarized the case: “I want them to put a stop to the practice of lawyers using class-action settlements to create slush funds for themselves at the expense of their putative clients.”

Such funds often find their way to left-wing causes.

“Certainly because lawyers are dictating where the money goes to and most lawyers are on the left, this is money that tends to go to left-wing causes,” he said.

“While we didn’t raise it in this case, we have raised it in other cases, and if the court doesn’t shut down the corrupt practice and just wants to nibble on the edges, we’ll certainly attack that abuse if someone tries to send my settlement money to a cause I disagree with.”

In response to a question from Justice Ruth Bader Ginsburg during oral arguments, Frank said the ruling by the Ninth Circuit needs to be overturned because it “creates perverse incentives for class counsel to divert money away from their clients and to third parties.”

“When courts have insisted that attorneys don’t get paid unless their clients get paid, the attorneys find a way to improve the claims process and make money get to the class,” Frank said.

‘As Near as Possible’
The case deals with the use of the legal doctrine of “cy pres” in class-action lawsuits. Cy pres—a truncation of “cy pres comme possible,” French for “as near as possible”—is a rule used when a testator or donor’s intent cannot be carried out. For example, under cy pres, a charity like the March of Dimes, which took in donations aimed at eradicating polio, could focus on other diseases once polio was vanquished.

But in class-action lawsuits, the doctrine is often abused, Frank argued in a Wall Street Journal op-ed. Attorneys too often “bilk their clients by claiming it would be too difficult to distribute the money to class members.”

“Right away, there is a conflict of interest,” Frank wrote. “Any attorney with a choice between sending out a million $5 checks to clients he’s never met or being part of a ceremony to hand over oversize $1 million novelty checks to five of his favorite charities—and receiving a full fee either way—will have a strong incentive to leave the clients with nothing.”

Chief Justice John Roberts seems sympathetic to this view. He said in 2013 that using cy pres to dole out money presents conflicts of interest for the lawyers and judges who choose the recipients of the funds. The Supreme Court “may need to clarify the limits of the use of” cy pres remedies, he said.

Roberts presented particularly pointed questions to the lawyers arguing the case.

Attorney Andrew J. Pincus, representing Google LLC, stumbled under questioning, leading to an eruption of laughter in the courtroom. “But do you think that problem is going to be meaningfully redressed by giving money to AARP?” Roberts said. Roberts described AARP as “a group that … engages in political activity.”

“Well, I—I—I think the question is …” Pincus said. “I think—I think it is because I …”

Roberts pounced: “As if this is only a problem for elderly people?”

“No, but AARP is not the only recipient and elderly people are particularly …” Pincus said as he was interrupted.

“Well, you’re changing the subject, Mr. Pincus. AARP is one of the recipients,” Roberts said.

Pincus justified handing over the money to AARP, an advocacy group allied with Google that lobbies for bigger government.

“It is a fact that elderly people are less knowledgeable about privacy and their vulnerability on the internet than other people,” the lawyer said. “And so having part of the award be designated … for that group, we think, meets that fit test.”

On behalf of the Trump administration, Principal Deputy Solicitor General Jeffrey B. Wall told the justices that reform was needed. “Meaningful limits are necessary to align incentives and deter abuse of the class action device,” he said in response to a question from Roberts.

AARP received a payment it did not deserve, Wall said. Even though the group’s proposal dealt with online fraud, “this wasn’t even a fraud case. All the fraud claims were dismissed.”


Early Voting Smashes Previous Turnout Records
November 5, 2018 Updated: November 6, 2018

Voters casting their ballots in the midterm congressional election appear on track to smash midterm election early voting records from recent decades, according to the University of Florida Elections Project.

Early voter turnout in 29 states and the District of Columbia now exceeds the total early vote in the last midterm congressional elections in 2014. In three hotly contested states—Arizona, Nevada, and Texas—the early vote total this year exceeds the total vote count from early voting plus Election Day voting in 2014.

Early vote counts in 2018 in California, Colorado, Oregon, and Washington will probably exceed those states’ early voting figures from 2014, University of Florida associate professor Michael McDonald wrote on Twitter Nov. 5.

Eight states—Delaware, Maryland, Massachusetts, Nevada, New Jersey, Oklahoma, Tennessee, and Texas—“have at least doubled their 2014” early vote, he wrote.

McDonald added that he was “pretty sure that all states will pass their 2014 number.”

“We’ve never seen a midterm election like this since early voting became a feature of elections,” he wrote. “Election Day could still come in big and blow through the predictions.”

The total early vote count across the country for the 2018 election is 36,179,728, which is close to double to the early vote count for the 2014 election, which was 20,536,459, according to the Elections Project.

These high turnout figures suggest the total turnout in the current election could end up at the 45 percent or 50 percent mark by the end of Election Day, McDonald told CBS News Nov. 2.

On Nov. 4, McDonald revised his estimate downward and projected that the total number of voters in the election would be 105.5 million, or 44.8 percent of the voting-eligible population. The estimate was arrived at by working with Edison Media Research and represented a “best guess, based on the early vote that has been cast and comparable past elections.”

Marquee Races
Among the high-turnout states are those with marquee races that could help determine control of the U.S. Senate, including Arizona, Florida, Georgia, Indiana, Missouri, Nevada, North Dakota, Tennessee, and Texas.

In Florida, more than 5 million people have voted early, McDonald reports. Registered Democrats took a slim 0.5 percentage-point lead over Republicans on the last day of in-person early voting, he said.

In the Sunshine State, Democratic Sen. Bill Nelson (D) is trying to beat back a challenge from incumbent Gov. Rick Scott, a Republican. In the race for governor, Democrat Andrew Gillum is facing former U.S. Rep. Ron DeSantis, a Republican. In both races, the Democrats are thought to enjoy small leads in public-opinion polling.

The NBC News Data Analytics Lab reported Nov. 5 that in states that offer early voting, Republicans enjoyed a slight advantage. In such states, “42 percent of voters are Republican, 41 percent are Democrats, and 17 percent have either independent or have another party affiliation.”

Republican-affiliated voters have been voting at higher rates than Democratic-affiliated voters in Arizona, Florida, Georgia, Indiana, Montana, Tennessee, and Texas. But in Nevada, Democratic-affiliated voters have been outpacing those on the GOP side, according to NBC.

In Arizona, Republican Martha McSally is neck-and-neck in polling with gaffe-prone Democrat Krysten Sinema in a battle for a U.S. Senate seat. In Nevada, Republican Sen. Dean Heller is tied in polling with Democratic challenger Jackie Rosen.

In the bitter Georgia governor’s contest, Republican Brian Kemp has a small polling edge over Democrat Stacey Abrams.

McDonald is also projecting sky-high turnout rates—for midterm elections—of above 50 percent in 13 states.

The academic predicts the following total turnout rates: Alaska (57.5 percent); Colorado (53.6 percent); Iowa (56.2 percent); Maine (60.6 percent); Michigan (53.2 percent); Minnesota (61.5 percent); Montana (56.6 percent); New Hampshire (51.8 percent); North Dakota (53.2 percent); Oregon (51.4 percent); South Dakota (53.1 percent); Vermont (54.2 percent); and Wisconsin (59.9 percent).

In Wisconsin, Republican Gov. Scott Walker is being challenged by Democrat Tony Evers. Although Evers was leading Walker in polling weeks ago, his lead has evaporated. The most recent poll, by Marquette Law School, had the two candidates tied at 47 percent.

High Interest
In recent days, President Donald Trump has spoken at rallies for GOP candidates in Florida, Georgia, Indiana, Missouri, Montana, Tennessee, Ohio, and West Virginia. Former President Barack Obama and former Vice President Joe Biden have also been speaking at rallies for Democratic candidates across the country.

The high early-vote turnout seems to have been foretold by a recent NBC News/Wall Street Journal poll that showed 65 percent of respondents had high interest in the current election. The most comparable expression of interest from voters in recent years was 2006, when 61 percent indicated they were highly interested in that midterm election.

Historically, most voters skip national elections in which there is no presidential race. Non-presidential elections often see a drop of 20 percentage points in voter turnout from the preceding presidential election. For example, voting-eligible turnout rates hovered around 60 percent in the four most recent presidential elections, according to the Election Project.

While Republicans shattered their own record for voter contacts, Democrats enjoy a financial advantage and go into the final days of the campaign with more cash on hand than Republicans.

The Real Clear Politics polling average for the so-called generic congressional ballot question gives Democrats a 7.3 percentage point lead over Republicans.

Conventional wisdom holds that Republicans are unlikely to hang onto the 435-seat House. Based on current standings, Democrats would need to pick up 23 seats to take control. Since World War II, the party occupying the White House has on average lost 26 House seats in midterm contests.

According to FiveThirtyEight, Democrats have an 87.5 percent chance of wresting control of the House from Republicans.

The website’s most famous forecaster, Nate Silver, hedged on ABC News’ “This Week.”

“So, in the House, we have Democrats with about a 4 in 5 chance of winning,” Silver said Nov. 4. But he added that “polls aren’t always right.”

On Election Day morning two years ago, FiveThirtyEight had given Democrat Hillary Clinton a 71 percent chance of winning the presidency.

Republicans have an 83.2 percent chance of keeping control of the Senate, FiveThirtyEight claims.


Death Row Inmate Asks Supreme Court for Alternative Means of Execution
November 6, 2018 Updated: November 6, 2018

The unusual request of a condemned man with a rare and painful medical condition to be gassed to death with nitrogen, instead of being injected with lethal drugs, is an obvious ploy to delay his execution indefinitely, Missouri’s State Solicitor D. John Sauer told the Supreme Court on Nov. 6.

As oral arguments were presented in that case, elsewhere, attorneys for four death-row inmates in Tennessee filed suit, asking a federal judge to allow them to select death by firing squad as an alternative to lethal injection or the electric chair, their state’s legally mandated methods of execution, the Tennessean reports.

The Tennessee men argue the state’s three-drug cocktail used in executions can cause the condemned person to experience suffocation, internal chemical burns, and paralysis before he succumbs. Likewise, the electric chair “is sure or very likely to inflict a gruesome and torturous death.”

Medical Problems
The case before the Supreme Court was brought by Missouri inmate Russell Bucklew, 50, on appeal from the St. Louis-based U.S. Court of Appeals for the Eighth Circuit. In 1998, Bucklew was sentenced to die after being convicted of “first-degree murder, kidnapping, burglary, forcible rape, and armed criminal conduct,” according to a summary provided by the Supreme Court.

Bucklew says that he suffers from cavernous hemangioma, a very rare, progressive, incurable condition in which inoperable blood-engorged tumors grow within his throat and around his face, head, and neck. The tumors are sensitive to touch and can rupture and tear. Minor friction can cause them to bleed. He has a tumor around his uvula at the back of his mouth that causes him to choke, bleed, and have difficulty breathing.

Lying face-up on a gurney, as he would presumably have to do during the lethal-injection process, aggravates these problems. Bucklew also has compromised veins in his hands and arms that he maintains couldn’t be used efficaciously for lethal injection, so the lethal-injection process itself would cause him intense, unnecessary pain. Therefore, Bucklew argues, it is prohibited by the Eighth Amendment’s ban on cruel and unusual punishment.

Bucklew’s attorney, Robert Hochman, urged the Supreme Court to direct the district court to reconsider the case, in light of his client’s medical problems and the pain he would experience under Missouri’s current lethal-injection process.

“If you vacate and remand, then we can go back, we cannot only look into the question of what’s—how the comparison in light of any new circumstances would be to the lethal—unknown aspects of lethal gas, but we can also figure out whether there are other ways to modify a lethal-injection protocol that alleviate this grave concern,” Hochman said.

‘Challenge After Challenge After Challenge’
Speaking for Missouri, Sauer denied that the so-called Show Me State’s lethal-injection process was constitutionally suspect.

“Missouri’s single-drug protocol using pentobarbital is the most humane and effective method of execution that is currently known,” Sauer said. “Missouri has used it 20 times without any significant incident.”

Sauer rejected Hochman’s claim that “horrific circumstances will arise” if the execution moves forward.

“The State of Missouri has a compelling interest in seeing this just and lawful sentence is carried out as quickly as possible,” he said. “A remand for further fact-finding, which is the principal request of the petitioner here, would interject yet more delay before the execution of a sentence that’s been in place for 22 years now.”

Bucklew’s request to be executed using nitrogen is novel and risky, he said.

“Nitrogen hypoxia has never been tried by any state. At this time, no protocol exists for execution by nitrogen hypoxia. No state has ever tried it.”

The high court previously found when there is “an alternative method of execution that is untried and untested, that no state has ever used, that no study supports showing its efficacy, [it] is not an alternative that’s reasonable.”

Referring to the claim that lethal injection will cause Bucklew to suffer needlessly while being executed, Justice Brett Kavanaugh asked Sauer, “Are you saying even if the method creates gruesome and brutal pain, you can still do it because there’s no alternative?”

Sauer affirmed he was saying precisely that and Kavanaugh offered a follow-up question: “Is there any limit on that?”

“I think there—the limit would occur if the method of execution were viewed as superadding terror, pain, or disgrace within the meaning of the court’s earlier method of execution cases,” Sauer said. The Supreme Court has held that “to eliminate the risk of pain completely is impossible.”

But Bucklew isn’t acting in good faith, he suggested.

“The goal is to have challenge after challenge after challenge,” Sauer said. “This is his third method of execution challenge. He had two prior challenges going back to 2012.”

The inmate is working the system to stay alive, he suggested.

“And now, 14 days before his first scheduled execution, for the very first time, he comes forward with an as-applied challenge that is based on a medical condition that he has had since birth,” Sauer said.


Conservatives Slam Keystone XL Pipeline Injunction
November 14, 2018 Updated: November 14, 2018

A federal judge’s order suspending construction of the long-delayed 1,200-mile Keystone XL Pipeline that would link Canadian oil sands fields to refineries on the U.S. Gulf Coast is an example of the judiciary’s out-of-control liberal activism, according to conservatives who favor rolling back the power of government.

“The Keystone pipeline provides clean energy and good jobs that will make America stronger, so leftists want it shut down,” said Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization.

The job-creating project would add to the existing Keystone pipeline, finished in 2013, which runs from Alberta to Illinois, Texas, and Oklahoma. When completed, Keystone XL is supposed to move as much as 830,000 barrels of crude oil from Alberta to Montana, Oklahoma, and Texas, stretching 875 miles through Montana, South Dakota, Nebraska, and other parts of Canada.

Activists on the left were overjoyed by the court decision on Nov. 8 blocking the pipeline.

“Today’s ruling makes it clear once and for all that it’s time for TransCanada to give up on their Keystone XL pipe dream,” Sierra Club senior attorney Doug Hayes said. “The Trump administration tried to force this dirty pipeline project on the American people, but they can’t ignore the threats it would pose to our clean water, our climate, and our communities.”

“Activists argue the pipeline would be especially damaging to the climate because it would mean extracting thick, low-quality oil from Canada’s oil sands, with lots of tree-cutting and energy consumption in the process, which would increase greenhouse gas emissions,” according to a summary in The Washington Post.

“Native American groups in Montana and elsewhere fought the Keystone project as well, saying its route failed to adhere to historical treaty boundaries and would impinge on their water systems and sacred lands.”

TransCanada isn’t deterred by the court decision. “We have received the judge’s ruling and continue to review it,” said spokesman Terry Cunha. “We remain committed to building this important energy infrastructure project.”

Ignored Obama Administration Findings
In a 54-page ruling in a lawsuit brought by environmentalist groups, Judge Brian Morris of the U.S. District Court in Montana found that the Department of State disregarded evidence related to climate change needed to measure the potential environmental impact of the pipeline project, in order to support President Donald Trump’s goal of moving forward with it.

That violated the Administrative Procedure Act, Morris held, which mandates that “reasoned” explanations be provided for government decisions, especially when they constitute reversals of well-studied actions. When the administration reconsiders the pipeline project, it will have to more thoroughly review how it may affect climate change and endangered species.

The ruling by Morris echoed complaints by Trump opponents who accuse the president of doing an end-run around the regulatory process as he tries to unleash the economy by rolling back Obama-era environmental regulations.

Morris wrote that the Trump administration ignored Obama administration findings related to the “climate-related impacts” of the pipeline project and claimed those impacts “would prove inconsequential.” Foggy Bottom “simply discarded prior factual findings related to climate change to support its course reversal,” and relied on “outdated information” about the prospective impact oil spills might have on endangered species.

‘Expeditious Review’
In 2015, President Barack Obama rejected the project after dragging his heels for seven years without making a decision. He said the United States was now a “global leader when it comes to taking serious action to fight climate change.” The “biggest risk” the country faced was “not acting,” he said.

Trump campaigned against Obama’s nixing of the pipeline and took action to move the project forward days after being sworn in, promising it would create jobs, stimulate the economy, and reduce dependence on foreign oil.

Trump signed a presidential memorandum intended to promote construction of the Keystone XL Pipeline on Jan. 24, 2017. In it, he formally invited Calgary-based TransCanada Keystone Pipeline L.P. to re-submit its application to the Department of State for a presidential permit, a document needed for cross-border infrastructure projects, to move forward with construction of the pipeline.

The department was ordered to “take all actions necessary and appropriate to facilitate its expeditious review” and to “reach a final permitting determination … within 60 days of TransCanada’s submission of the permit application.”

Partisan and Legal Issues
Conservatives contacted by The Epoch Times expressed support for Trump and the pipeline. They rejected the judge’s reasoning, accusing him of acting arbitrarily and falling victim to environmentalist misinformation, especially with regard to the alleged phenomenon of anthropogenic global warming.

The judge’s “scattershot ruling” elevates environmental activism over judicial responsibility and professional restraint, said Tina Trent, a former candidate for District 26 of the Georgia General Assembly.

“It is particularly disappointing that Judge Morris failed at his job of winnowing the partisan from the legal issues at hand,” she said.

“Increasingly in America, we are seeing tidal waves of litigation against any decision that contradicts the goals of the hard left, be it at the ballot box or in the courts. This litigation is coming from an unholy triumvirate of academicians, powerful nonprofits, and their media mouthpieces. The academicians are, by any reasonable interpretation of modern academia’s money sources, working off the public dime.”

The pipeline shouldn’t even be a political issue, said Trent, a writer and former academic who holds a doctorate in contemporary political and social movements from Emory University.

“What would these elite activists prefer: more dependency on the oil from Middle East dictatorships, where women, gays, and foreigners are treated like slaves by any definition of the term, and where environmental rules like those governing this pipeline, let alone the workers toiling to extract oil there, are nonexistent?”

Ferguson had words for the judge.

“Brian Morris, an Obama appointee and former United Nations lawyer, decreed Trump cannot exercise his authority to control the border because he didn’t account for so-called ‘climate change,’” Ferguson said. “That is insane and legally preposterous.”

He predicted the Supreme Court would “easily overturn” this “political ruling” on the pipeline and accused the judge of incompetence.

The Senate “should remove Morris and replace him with an actual judge, instead of a partisan activist who believes UN decrees should overrule his oath to uphold the Constitution.”

Judicial Overreach
The ruling by Morris is also the latest in a series of controversial, policy-obstructing court decisions against the Trump administration that conservative critics have attacked as examples of liberal judicial overreach.

Trump did enjoy a rare legal triumph on Dec. 4, 2017, when the Supreme Court allowed his Presidential Proclamation 9645, a ban on travelers from Islamic terrorism-producing nations, to take full effect. But since he was inaugurated, federal courts have repeatedly halted government operations.

Judges have issued injunctions, many of them with nationwide effect, preventing the administration from moving forward with policies related to immigration and national security, transgender military service, and Obama’s executive order-created Deferred Action for Childhood Arrivals (DACA) program, which prevents illegal aliens brought to the United States as children from being deported.

Before he resigned last week, then-Attorney General Jeff Sessions and federal lawmakers had been targeting the growing problem of unelected federal judges taking it upon themselves to veto presidential actions by issuing nationwide injunctions that reach far beyond the confines of a particular case. Sessions had directed federal prosecutors to try to curb these so-called “non-party” injunctions that allow judges to function as lawmakers.

Retiring House Judiciary Committee Chairman Bob Goodlatte (R-Va.) had been promoting the proposed Injunctive Authority Clarification Act of 2018. Its supporters say the goal of the measure is to restore the traditional understanding that a federal court’s injunctive power extends only to the protection of the parties before it.

In a similar vein, Seton Motley, president of Less Government, a Washington-area nonprofit, said judges such as Morris need to start doing their jobs instead of legislating from the bench.

“The judge is a judge,” Motley said. “He’s not a climate scientist. And more importantly, he’s not a Trump administration official. The Trump administration went through the correct legal channels in advance of approving the pipeline.”

“The judge may not personally like the decision. But that’s none of his official judicial business. His business is to rule on the legality of the decision. The decision is legal. His ruling is not,” he added.


Regulatory Scholar Rao to Be Nominated to Replace Kavanaugh on DC Circuit
November 14, 2018 Updated: November 14, 2018

President Donald Trump said he plans to nominate respected regulatory scholar Neomi Jehangir Rao, currently the administrator of the Office of Information and Regulatory Affairs (OIRA), to fill the empty seat on the influential District of Columbia Circuit Court of Appeals that was created when Justice Brett Kavanaugh was recently elevated to the Supreme Court.

Rao has been an important ally for Trump as he slashes what he considers to be excessive federal regulations that shackle the nation’s businesses and impede economic growth. Shortly after taking office, Trump signed an executive order spelling out his goal of cutting two regulations for every new regulation added, one of his often-emphasized campaign promises.

Rao’s appointment to OIRA, an office within the Office of Management and Budget (OMB) that reviews draft regulations and oversees government-wide implementation of policies, signaled to observers at the time that Trump was serious about reducing bureaucratic red tape. The Senate confirmed Rao as head of OIRA on July 10, 2017, in a 54–41 vote, with five senators abstaining.

Rao’s pro-limited-government philosophical outlook could draw the ire of Senate Democrats during her approaching confirmation process for the circuit court. Democrats are angry that Kavanaugh was confirmed to the Supreme Court and are looking to score points against the Trump administration in the lead-up to the 2020 presidential election.

This, coupled with her association with the agenda-setting conservative legal group, the Federalist Society, could make Rao a convenient target for Democrats hungry for political payback.

If confirmed to a lifetime appointment to the D.C. circuit, which has a heavy diet of regulatory cases, Rao, 45 may be in a position to carry on her work reining in the administrative state and possibly to springboard to the highest court in the land.

The busy D.C. circuit is considered to be the second most important court in the United States. To borrow an expression from the world of sports, the circuit is considered to be a kind of farm team on which future Supreme Court justices are groomed.

Current Chief Justice of the United States John Roberts, along with Supreme Court Justices Clarence Thomas, the late Antonin Scalia, and Ruth Bader Ginsburg, all sat on this circuit court before moving to the Supreme Court.

Judge Merrick Garland, President Barack Obama’s stalled Supreme Court nominee, sits on the D.C. circuit. Janice Rogers Brown, an intellectual leading light among libertarian-leaning legal thinkers, sat on the court from 1996 until she retired a year ago.

The Supreme Court nomination of their former colleague, Justice Kavanaugh, was cleared by the Senate Oct. 6 after a particularly bruising confirmation battle.

Trump unveiled Rao’s nomination Nov. 13 during a lighting ceremony at the White House honoring Diwali, the festival of lights observed by Hindus, Sikhs, and Jains, unexpectedly moving up the announcement by one day.

Trump boasted the nomination could be the “biggest story” of the day.

“We were going to announce that tomorrow,” Trump told administration employees. “And I said, you know, ‘Here we are, Neomi, we’re never going to do better than this.’”

“She’s going to be fantastic,” Trump said. “Great person.”

Before OIRA, Rao was an associate professor of law at George Mason University’s Antonin Scalia Law School in Arlington, Virginia, at which she founded the Center for the Study of the Administrative State. According to the Center, her scholarship there “has focused on the political and constitutional accountability of the administrative state, in particular considering the role of Congress.”

She earned a law degree from the University of Chicago Law School in 1999, after which she worked as law clerk for Judge Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit, and then as law clerk to Supreme Court Justice Clarence Thomas.

A constitutionalist, Rao is renowned for promoting the separation of powers doctrine in the three branches of the federal government, according to E&E News.

That media outlet reports:

“She has maintained that Congress should not delegate legislative authority to federal agencies and has called for more presidential oversight of them. She has favored extending OIRA review to independent regulators.

“Rao has led the administration’s efforts to cut regulatory costs and has touted federal agency efforts to roll back ‘burdensome’ standards and make the rulemaking process more transparent.”

Confirmation hearings for Rao haven’t yet been scheduled.


Supreme Court Agrees to Hear Case on Racial Gerrymandering in Virginia
November 15, 2018 Updated: November 16, 2018

The Supreme Court will hear a Republican appeal of a lower court ruling that redrew 11 districts in the Virginia House of Delegates after finding their boundaries had been drawn to dilute the power of black voters.

The racial gerrymandering case is important because the court-imposed redistricting could help determine which party controls the House in Richmond in future elections. Currently, party standings in the chamber are 51 Republicans to 49 Democrats. Republicans also narrowly control the state Senate, where they occupy 21 of the 40 seats.

This is the third time the Supreme Court has been asked to get involved in Virginia redistricting issues. Democrats prevailed in the two prior cases.

An attorney acting for Virginia Democrats, Marc Elias, said his side would triumph a third time. “What is most important is that the voters of [Virginia] will have constitutional maps in time for the 2019 state House elections,” Elias wrote on Twitter.

Elias is no stranger to controversy. Acting on behalf of the Hillary Clinton campaign and the Democratic National Committee, Elias and his law firm, Perkins Coie, hired Fusion GPS in April 2016 to conduct opposition research against the Trump campaign, The Washington Post previously reported.

Fusion GPS hired former British spy Christopher Steele who compiled a scurrilous, still-uncorroborated dossier that purported to link the Trump campaign to the Russian government and laid the groundwork for special counsel Robert Mueller’s ongoing investigation.

The appeal arises from a June 26 decision by a three-judge panel of the U.S. District Court for the Eastern District of Virginia invalidating the electoral districts located in the Richmond area and in coastal Hampton Roads.

A special session of the General Assembly was called by Democratic Gov. Ralph Northam in the summer, but it failed to resolve the issue, so the matter returned to the court. The district court appointed Bernard Grofman, a political science professor at the University of California–Irvine, as a special master to redraw the districts. Grofman is expected to present his report to the district court soon.

The Supreme Court previously ordered Virginia’s congressional districts redrawn in 2011, and in 2017, it reversed a lower court decision affirming the state legislative districts in the current case and remanded the matter to the court for further consideration.

In the current case, the district court panel found that black voters were bunched together in congressional districts in a manner that unconstitutionally deprived them of representation. Republicans dispute this, saying the 2011 redistricting plan won bipartisan approval, which included black lawmakers.

The appeal, accepted Nov. 13 by the Supreme Court, was brought Sept. 4 by the Virginia House and its speaker, Republican M. Kirkland Cox. Virginia Attorney General Mark Herring, a Democrat, argues that the appellants have no legal standing and have usurped his authority to represent the state in court.

Cox said state lawmakers haven’t yet decided whether they will ask a court to temporarily halt Grofman’s work, the Petersburg-based Progress-Index reports.

The district court committed “clear legal errors,” he said.

Cox said he lodged the appeal because in his view it was “implausible that every House fact witness was dishonest, that every House expert used bad methodology, that race predominated in every challenged district, and that no challenged district needed to be above 55 percent [black voting age population] … and at the same time that every fact witness for plaintiffs was honest and accurate, every witness for plaintiffs used reliable methodology, and every factual inference was in their favor.”

“The case also gives the Supreme Court the opportunity to provide clear guidance and address the chaos that has resulted from a bevy of redistricting laws and court cases in this difficult and confusing area of law,” Cox said.

Virginia’s House Democratic Caucus called Cox’s appeal a “waste of taxpayer money by House Republicans,” but said there was a silver lining to the move because the high court will address concerns about Republicans’ standing to bring an appeal.

“Should the court rule House Republicans do not have standing, it would end any further delays in implementing new, constitutional maps for Virginia’s 2019 elections,” the caucus said in a statement.

“We hope that the Supreme Court, which has previously ruled in favor of the plaintiffs, will once again act in the interest of Virginia voters’ constitutional rights.”

The Supreme Court is expected to hear oral arguments in the case in the spring.


Supreme Court to Examine Citizenship Question in US Census
November 18, 2018 Updated: November 18, 2018

The Supreme Court will wade into the Trump administration’s contested decision to ask individuals responding to the 2020 census if they are U.S. citizens.

Opponents of restoring the citizenship question to the census—it had been part of it until the 1950s and is still part of the long questionnaire given to some participants—say its presence in the census will chill participation, making it less accurate and more expensive to conduct.

Democrats claim adding the question will intimidate immigrants into not completing the census forms. For example, lawyers for New York state claim adding the question threatens billions of dollars in federal funding for the state, which has a large immigration population, and jeopardizes its representation in Congress and the Electoral College.

The Trump administration says it only wants to make sure the count is accurate and that it includes citizens.

The U.S. Department of Commerce, which administers the once-a-decade headcount, said earlier this year that the question will be added to census forms at the request of the U.S. Department of Justice to help identify possible violations of the Voting Rights Act.

“When the Census Bureau conducts the 2020 census, the public has a right to expect that the government will do everything in its power to get as accurate a picture as possible of the American body politic,” Hans A. von Spakovsky, senior legal fellow at the Heritage Foundation wrote earlier this year.

“That includes, as Thomas Jefferson recommended, knowing how many citizens and noncitizens make up our democratic republic.”

When the change was unveiled, Democratic National Committee Chairman Tom Perez said his party would “fight this attempt to undermine our democracy.”

“This is a craven attack on our democracy and a transparent attempt to intimidate immigrant communities,” Perez said. “The census is a constitutionally-mandated count of all U.S. residents, not a political tool for Donald Trump to push his agenda and disempower Latinos and other people of color.”

Perez said restoring the citizenship question that the Obama administration took out of the census lets Trump and Republicans stoke “fear” so they can make immigrant communities “invisible.” In reality, they are “guaranteeing an inaccurate count that lays the groundwork for sustained racial gerrymandering and jeopardizes critical resources for communities across the country.”

On Nov. 16, the Supreme Court agreed to hear the case, ordering the parties to file briefs on the merits. The high court set oral arguments for Feb. 19, 2019.

In the case, the Census Bureau and its parent agency, the U.S. Department of Commerce, are being sued by a multitude of parties including the states of New York, Connecticut, Illinois, Massachusetts, Colorado, New Jersey, and New Mexico, the cities of Chicago, New York, Providence, and San Francisco, as well as by activist groups CASA de Maryland Inc., American-Arab Anti-Discrimination Committee, and New York Immigration Coalition.

The high court is expected to decide whether those challenging the decision to include the citizenship question must rely exclusively on the administrative record detailing the government’s decision-making process, or whether the intentions of the government officials participating in that process ought to be considered.

The case arises out of the trial of a lawsuit already in progress in U.S. District Court for the Southern District of New York. District Judge Jesse M. Furman set closing arguments in that case for Nov. 27 after making a preliminary determination that the Trump administration had been acting in bad faith. Furman said Commerce Secretary Wilbur Ross and other federal officials could be deposed by lawyers for New York state. The status of that proceeding is now in question.

The Trump administration has beaten back demands that Ross appear in the New York proceeding to give evidence. In October, the Supreme Court blocked the planned deposition of Ross but not of other federal officials.

Those challenging the administration’s inclusion of the question say Ross and others in the White House strategized about adding the question before the Justice Department formally submitted a request to include it.

Dale Ho, director of the ACLU’s Voting Rights Project, said that “all relevant evidence should be considered.”

“The Trump administration is terrified of having to explain on the record why it added a census citizenship question, and has repeatedly tried to shield Commerce Secretary Wilbur Ross from answering questions under oath,” he said.


Supreme Court May Allow Apple App Store Class-Action Lawsuit to Proceed
November 26, 2018 Updated: November 26, 2018

Apple Inc.’s App Store holds an unlawful monopoly that harms iPhone owners by forbidding competition in app sales, a lawyer for owners hoping to pursue a class-action lawsuit against the company told the Supreme Court.

During oral arguments Nov. 26, the justices seemed broadly amenable to the idea that the App Store as it is currently organized may run afoul of federal antitrust laws.

Apple and the Trump administration take the position that iPhone owners lack legal standing to sue under such laws, on the theory that they are purchasing apps directly from developers, with Apple acting merely as the developers’ agent.

A ruling against Apple, which would allow the consumers’ stalled antitrust suit to move forward, would send shock waves through Silicon Valley and the world of electronic commerce. App Store sales brought Apple about $11 billion in commissions last year and developers a reported $26 billion.

Apple became the first publicly traded company ever to hit a market capitalization of $1 trillion in August. The figure climbed even higher to $1.1 trillion last month, before receding to its current valuation of about $828 billion.

In Apple’s unique marketplace, the App Store, iPhone users are only allowed to purchase approved apps that use the company’s operating system known as iOS. Users cannot purchase apps elsewhere. Apple charges a 30-percent commission to developers.

No other “e-commerce distributor … does what it does,” lawyer David C. Frederick told the court on behalf of lead plaintiff Robert Pepper of Chicago and other consumers. “In every other instance … there is an alternative to buying the product.”

“Apple doesn’t even do this with its own computer software,” he said. “If you buy software, you can buy it open source and you do not have to buy it through Apple’s monopoly chain.”

In the App Store, “Apple has found ways using technology and contractual constraints to limit the opportunity of a competitive market to flourish,” Frederick said. “If a competitive market did flourish, the prices that iPhone owners pay would be lower.”

Justice Stephen Breyer seemed to encourage Frederick during oral arguments.

“Unless we’re prepared to overrule, which wasn’t our case, Alcoa, I think all you’d have to show is, one, they have monopoly power, and, two, they achieved it through … more restrictive than necessary practices, end of your burden.”

Legal Fiction
In the case before the high court, the Cupertino, California-based company tried to bury the now 7-year-old class-action lawsuit and a federal judge in nearby Oakland obliged, finding the consumers involved weren’t direct purchasers of the apps. The higher fees they paid for apps, that court found, had been passed on to them by developers, not by Apple.

But that finding is problematic. It relies on a judicially imposed legal assumption helpful to Apple that was created in a decades-old Supreme Court case called Illinois Brick Co. v. Illinois.

Led by Texas and Iowa, 31 states filed a friend-of-the-court brief in the Apple case supporting the consumers and urging that the legal doctrine enshrined in the Illinois Brick ruling be overturned because in their view it is outdated in today’s marketplace.

In that landmark 1977 decision the high court “adopted the legal fiction that illegal overcharges are never passed on to end users by intermediary parties who bought from an antitrust violator,” according to the states.

After losing in Oakland, the consumers appealed to the San Francisco-based U.S. Court of Appeals for the Ninth Circuit, which resurrected the case, determining that the consumers made “direct purchases from Apple within the meaning of Illinois Brick and therefore have standing.”

Apple appealed. On June 18, the Supreme Court agreed to hear the case.

Litigation Scheme
While Apple attorney Daniel M. Wall was explaining during oral arguments how the money that passes through the App Store gets divided, Breyer interrupted him, saying “I don’t see anything in Illinois Brick that conflicts with that.”

Wall shot back: “Everything in Illinois Brick conflicts with that.”

Breyer continued, saying, “If Joe Smith buys from Bill, who bought from the monopolist, then we have something indirect. But, if Joe Smith bought from the monopolist, it is direct. That’s a simple theory.”

“Now, I can’t find in reason, or in case law, or in anything I’ve ever learned in antitrust, anything that would conflict with that,” the justice said.

“What conflicts with that, in this case, is that the alleged monopolization,” Wall said, “which is over the distribution function, allegedly first manifests in a 30-percent commission. Consumers do not pay the 30-percent commission.”

Justice Samuel Alito told Wall there was something that “troubles me about your position.”

The Illinois Brick case “was not about the economic theory,” Alito said. “It was about the court’s—the court’s—the basis for the decision was not economic theory, as I read the case. It’s the court’s calculation of what makes for an effective and efficient litigation scheme.”

“And maybe your answer to this question is that the validity of Illinois Brick is not before us. But I really wonder whether, in light of what has happened since then, the court’s evaluation stands up.”

Alito offered a hypothetical to Frederick.

“If this case were to go to trial as a class action, would every app purchaser potentially be entitled [under an antitrust statute] to three times the 30-percent overcharge, or would it depend on the particular app?”

Frederick replied that he wasn’t sure how the evidence would be presented at trial.

But the trial should be allowed to proceed to deter antitrust violations in the marketplace, he said.

“This court has made very clear in its cases that the point of having that deterrence is to avoid having the monopolist in this case act in a way that it’s not penalized for its monopoly behavior. And if you were to suppose that it was just a single damages problem, it would be easy for monopolists to simply act, and, if they get caught, they just simply pay over what they caused in damage, but the idea behind the Clayton Act’s treble damages remedy is designed to deter actions just like this.”


Oklahoma Death Penalty Case Could Restore Indian Lands
November 27, 2018 Updated: November 28, 2018

A Native American man’s legal challenge to his murder conviction in Oklahoma could cause massive disruptions if it is upheld, because it could force the redrawing of legal boundaries in a sizable chunk of the state, a lawyer for the state told the Supreme Court on Nov. 27.

The murder case, known as Carpenter v. Murphy, has given rise to a boundary dispute that covers 4,600 square miles of land, including most of Tulsa, Oklahoma’s second-largest city. Shifting the internal border would have an impact on thousands of criminal cases and cause social, economic, and governmental upheaval, the state argues.

The Trump administration supports the state’s position. If the state loses this case, it says almost half of the state’s population would suddenly be subject to tribal jurisdiction and that the same kind of transformation could happen in other states with Indian reservations—claims rejected as fear-mongering by opposing counsel.

There will be “earth-shattering consequences” if the Supreme Court finds in favor of respondent Patrick Dwayne Murphy, the attorney for the state, Lisa S. Blatt, told the eight justices during oral arguments. (Justice Neil Gorsuch recused himself from the case.)

“There are 2,000 prisoners in state court who committed a crime in the former Indian territory who self-identify as Native American. This number is grossly under-inclusive because, if the victim was Native American, the state court also lacked jurisdiction. That’s 155 murderers, 113 rapists, and over 200 felons who committed crimes against children,” Blatt said.

Reopening these cases “would re-traumatize the victims, the families, and the communities,” Blatt said. “Nor is it clear that the federal government could retry any of these cases because the evidence is too stale or the statute of limitations has expired, which appears to be the case in about half of them.”

Ruling in favor of Murphy “raises a specter of tearing apart families all across eastern Oklahoma, and probably beyond, for years and years and years and years after the fact,” she said. That’s because “under the Indian Child Welfare Act, any tribe, any parent, and any child can undo any prior Indian child welfare custody proceeding if the state court lacked jurisdiction because the Indian child lived on a reservation.”

Crime and Appeal
Murphy, a member of the Muscogee tribe, was convicted in 2000 by a state court jury in McIntosh County, Oklahoma, of murdering another Muscogee man named Greg Jacobs, and was sentenced to death. The two men fought over a woman who lived with Murphy but had previously been in a relationship with Jacobs. Murphy stabbed Jacobs, sliced off his genitals, and left his body by the side of a road.

Murphy contends the state had no legal right to try him because the victim was also an Indian and the crime took place on Indian territory, as established by an 1866 treaty. A federal law known as 18 U.S.C. § 1153 grants the federal government exclusive jurisdiction to prosecute crimes committed by or against Native Americans in so-called Indian country.

Last year, the U.S. Court of Appeals for the 10th Circuit threw out the conviction, agreeing with Murphy’s reasoning.

Murphy had raised the same territorial argument before state courts without success. He also previously argued unsuccessfully that his legal counsel at trial was ineffective and that he was intellectually disabled and therefore ineligible for execution.

The Oklahoma Court of Criminal Appeals rejected Murphy’s territorial argument and determined the crime took place on state land.

The 10th Circuit disagreed.

“Mr. Murphy’s state conviction and death sentence are thus invalid,” the circuit court stated. “The OCCA erred by concluding the state courts had jurisdiction, and the district court erred by concluding the OCCA’s decision was not contrary to clearly established federal law.”

Whenever a Native American is charged with murder on an Indian reservation, that person has to be tried in federal court, the circuit court ruled, citing earlier precedent. The circuit court determined that the crime took place on land that was part of an Indian reservation that was never formally disestablished by Congress.

Tribal Sovereignty
During oral arguments, Blatt got into an extended back-and-forth with Justices Sonia Sotomayor and Elena Kagan about the history and current status of the reservation.

Eastern Oklahoma, where the crime took place, isn’t an Indian reservation because “Congress destroyed all features of a reservation by terminating all sovereignty over the land in the march up to statehood,” Blatt said. “Congress stripped the former Indian territory of reservation status by terminating all tribal sovereignty over the area to create Oklahoma.”

Sotomayor interrupted, asking for the exact date when this disestablishment of Indian sovereignty took place.

“Our position is it was done by statehood,” Blatt replied.

Sotomayor countered that at the time Oklahoma became a state in 1907, the tribe still existed.

“We don’t have to give you a date,” Blatt said. “Rome did not fall in a day. We know it fell by 476, but it was sacked several times before that.”

But Kagan told the at-times abrasive Blatt that things were less clear-cut.

In 1901, Congress planned to terminate all sovereignty by 1906, but then extended tribal government “in order to wind things up,” Kagan said. Then Congress extended tribal government again, she said. “Whatever Congress thought it might want to do, it decided it didn’t want to do it in the end.”

After a few minutes, Kagan expressed frustration. “I’m still not getting it,” she told Blatt.

Justices Stephen Breyer and Brett Kavanaugh asked Murphy’s lawyer, Ian Gershengorn, why they should make a ruling that would potentially be so disruptive to Oklahoma.

Kavanaugh said, “Stability is a critical value in judicial decision-making, and we would be departing from that and creating a great deal of turmoil.”

Breyer said, “There are 1.8 million people living in this area … what happens to all those people?”

Gershengorn said, “The state’s concerns are dramatically overstated.”

He acknowledged there would be “significant” but not “existential” ramifications. “There will be limits on state authority over income tax and sales tax of tribal members on the reservation.”

But the “kind of seismic change” Blatt identified won’t happen, he said.


Supreme Court Finds Limits to Endangered Species Act
November 28, 2018 Updated: November 28, 2018

A unanimous Supreme Court overruled bureaucrats enforcing the Endangered Species Act (ESA), ruling that the federal government overreached by limiting the development of private land in Louisiana to help save a rare frog that doesn’t actually live there.

The ruling was also a blow to environmentalists who had been anxious about the case. They considered the fact that the Supreme Court agreed to review the matter ominous because the court rarely takes up cases involving the Endangered Species Act.

In rendering the 8-to-0 decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service on Nov. 27, a united high court served notice on government officials that abusive land grabs under the Endangered Species Act will not stand. (Justice Brett Kavanaugh, who hadn’t yet been confirmed when the court heard the case, didn’t participate in it.)

Justice Stephen Breyer telegraphed the court’s decision during oral arguments Oct. 1, suggesting there had to be a limit to the government’s power to force private landowners to participate in species-preservation efforts by declaring their land to be “critical habitat” essential for the frog’s survival.

Building on a comment by Chief Justice John Roberts, Breyer asked if, in addition to using ponds on private land in Louisiana to save the frogs, it would be reasonable “to build special hothouses in Nome, Alaska” to preserve a species.

“A decision resting on that strikes me as far-fetched,” he said.

Property Rights

Property-rights advocates told The Epoch Times they were pleased with the ruling.

“Today’s decision prevents the federal government from misusing the ESA to abusively regulate private property that cannot support endangered wildlife,” said Tony Francois, a senior attorney with the Pacific Legal Foundation, which represented a landowner in the case.

“The court decided that there must be some limits to what can be declared critical habitat,” said Myron Ebell, director of the Competitive Enterprise Institute’s Center for Energy and Environment.

“The fact that land that cannot support an endangered animal or plant without modification should not be designated as critical habitat is just common sense, but there is little common sense in the way the ESA has been enforced,” Ebell said.

“The court also decided that critical habitat designations can be challenged in court. It’s a step in the right direction, but there’s a long way to go to limit the federal government’s authority under the ESA to take the value of people’s land through regulation. That today’s decision was unanimous is a good sign. Going further will probably divide the court sharply, but the new members give me hope that further progress in restoring property rights is possible in my lifetime.”

Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization, welcomed the ruling but said more needed to be done to protect property owners.

“Today’s ruling is welcome and an unusual, proper reading of the law. Most cases of property owners victimized by the Endangered Species Act do not end this well. Americans will continue to lose their rights to radical activists unless the outdated, unscientific Endangered Species Act is repealed.”

‘An Abuse of Discretion’

In the case, lawyers for Seattle-based Weyerhaeuser Co. challenged the government’s critical-habitat designation for the dusky gopher frog, which is found only in Mississippi. The species was officially listed as endangered under the Endangered Species Act on Dec. 4, 2001. There are reportedly fewer than 100 of the amphibians in existence.

The problem arose in 2012 when the Interior Department’s Fish and Wildlife Service designated 1,544 acres in St. Tammany Parish, Louisiana, a critical habitat under the ESA. The declaration followed the settlement of lawsuits filed by the Center for Biological Diversity and Friends of Mississippi Public Lands.

Agency officials wanted to use existing ephemeral ponds and dig new ones throughout the Deep South to prevent the frog’s extinction. An ephemeral or vernal pond is a seasonal pool of water that supports animal and plant life. The plan was to move some of the frogs to the new ponds and protect the land surrounding them.

The landowners objected because they would not be able to use the lands set aside. The 1,544 acres are owned by Weyerhaeuser and businessman Edward Poitevent. In the 1990s, Weyerhaeuser took over Poitevent’s lease for its timber operations.

The U.S. Court of Appeals for the Fifth Circuit upheld the agency’s finding, determining its critical habitat decision was entitled to deference because of the Supreme Court’s Chevron v. Natural Resources Defense Council decision in 1984. In that landmark administrative law ruling, the court held while courts “must give effect to the unambiguously expressed intent of Congress,” where courts find “Congress has not directly addressed the precise question at issue” and “the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

But the Fifth Circuit didn’t apply the proper legal test to the critical habitat designation, instead treating it as “unreviewable,” Chief Justice Roberts wrote for the court.

The circuit court “did not consider whether the [Fish and Wildlife] Service’s assessment of the costs and benefits of designation was flawed in a way that rendered the resulting decision … arbitrary, capricious, or an abuse of discretion.”

Landowner Edward Poitevent agreed.

“This was a grossly unfair and inappropriate taking of private land for no purpose, no benefit to the frog, and without any reason or common sense behind it,” Poitevent said in a press release.

“But when you’re in for the fight of your life, you don’t give up. It’s astounding to find out the highest court in the land has not only your back, but the backs of all American landowners.”


Apply Constitutional Ban on Excessive Fines to States, Supreme Court Urged
November 29, 2018 Updated: November 29, 2018

An Indiana man convicted of selling heroin worth less than $400 to an undercover detective may get back his confiscated $42,000 vehicle from state authorities, if the Supreme Court decides to extend to the states a constitutional ban on excessive fines that Indiana argues applies only to the federal government.

If the justices’ statements during oral arguments on Nov. 28 are any indication of how the Supreme Court may rule, the state of Indiana is poised to be overruled.

Civil libertarians have long complained that asset forfeitures arising from criminal convictions and cases in which a person is merely suspected of a crime can be arbitrary and excessive. They say police and prosecutors currently have an incentive to maximize profits instead of seeking the neutral administration of justice and so they pursue forfeiture with undue zeal.

A win by petitioner Tyson Timbs could encourage more asset-forfeiture challenges in the courts.

Instrument of the Crime
After a physician wrote Timbs a prescription for foot pain, the 37-year-old resident of Marion, Indiana, became addicted to hydrocodone and later heroin. After his father died, he spent most of the $70,000 in life insurance proceeds on a Land Rover. Undercover police caught him selling a total of $385 worth of heroin in two transactions, and the SUV was seized because he used it to drive to meet police.

The legal theory is that because the vehicle was used to commit a crime, it becomes an instrument of the crime and a party to the legal proceeding. This leads to odd-looking case names. For example, the name of the current proceeding is Tyson Timbs and a 2012 Land Rover LR2 v. State of Indiana.

Timbs pleaded guilty and was sentenced to a year of house arrest and five years of probation, but no prison time. A private law firm sued on behalf of the state to force Timbs to forfeit the vehicle. Although the court found Timbs used the SUV to transport heroin to his home, it held that seizing the car would be “grossly disproportionate” to the offense and therefore unconstitutional.

The court found the SUV was worth more than four times the $10,000 maximum monetary fine for the drug offense. The state appealed to the Indiana Court of Appeals and lost, but won in the Indiana Supreme Court. That court held that the Excessive Fines Clause of the Eighth Amendment wasn’t binding on Indiana because the U.S. Supreme Court never formally applied the provision to the states, so Timbs was out of luck.

Sympathetic Justices
With the exception of Chief Justice John Roberts, who said losing assets used in a crime “makes a lot of sense,” the justices seemed sympathetic to Timbs during oral arguments at the Supreme Court.

Justice Stephen Breyer asked Indiana Solicitor General Thomas M. Fisher if someone caught driving 5 miles an hour over the speed limit should forfeit their car, even if it is a “Bugatti, Mercedes, or special Ferrari.”

“Yes, it’s forfeitable … [property] forfeitures … have always been with us and they have always been harsh,” Fisher said.

Justice Sonia Sotomayor told Fisher, “If we look at these forfeitures that are occurring today … many of them seem grossly disproportionate to the crimes being charged.”

In light of such abuses, Sotomayor continued, “How do we avoid a Star Chamber return?”

In English history, the monarch-directed Court of Star Chamber, abolished in 1641, was infamous for its arbitrariness and imposition of cruel punishments.

“The term Star Chamber has come to mean any lawless and oppressive tribunal, especially one that meets in secret,” one reference work reports. “The constitutional concept of due process of law is, in part, a reaction to the arbitrary use of judicial power displayed by the Star Chamber.”

During a particularly sharp exchange, Justice Neil Gorsuch chided Fisher for opposing applying—the legal term is “incorporating”—the Excessive Fines Clause against the states.

“We all agree that the Excessive Fines Clause is incorporated against the states,” Gorsuch said. “Can we at least agree on that?

Fisher said, “You have to take into account the history and traditions of the right being claimed.”

Gorsuch persisted. “Whatever the Excessive Fines Clause guarantees, we can argue, again, about its scope … but whatever it, in fact, is, it applies against the states, right?

“Well, again, that depends,” Fisher said.

“Most of these incorporation cases took place in like the 1940s … and here we are in 2018 … still litigating incorporation of the Bill of Rights. Really? Come on, General.”

Later in the conversation, Gorsuch told Fisher: “You’re going to lose not just the incorporation question but the merits question too.”

Justice Brett Kavanaugh added, “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

A case preview by Steven D. Schwinn of the John Marshall Law School in Chicago offers a primer on the legal doctrine of incorporation.

“The rights in the Constitution’s Bill of Rights apply against the federal government; they do not apply by their own force against the states,” Schwinn writes.

But over time, the Supreme Court has gradually incorporated the rights against the states, relying on the Due Process Clause of the 14th Amendment. “In order to determine whether a right is incorporated, the Court asks whether the right is ‘fundamental to our scheme of ordered liberty’ and ‘deeply rooted in this Nation’s history and tradition.’”

The Supreme Court last incorporated a right in 2010 in McDonald v. City of Chicago, finding that the gun-ownership protections of the Second Amendment applied to the states, Schwinn writes. Only some clauses of the Third, Fifth, Seventh, and Eighth Amendments haven’t been incorporated by the court.

Timbs contends the ban on excessive fines should be applied to the states, arguing that when the Eighth Amendment was ratified in 1791, protections against excessive fines were already a well-established legal norm.

The attorney for Timbs, Wesley Hottot of Seattle, said the case was “about constitutional housekeeping.”

“Five times over the past 30 years, this court has remarked that the freedom from excessive economic sanctions should be understood to apply to the states.”