Press Release from the Committee for Justice:
Census Decision: Roberts Disappoints Conservatives Again
The following is a statement from the Committee for Justice president Curt Levey on the Supreme Court's decision today in the census case:
Washington, D.C. -- “
Statement of Committee for Justice president Curt Levey on the Supreme Court's decision today in the census case:
Chief Justice John Roberts disappointed conservatives today – to a degree not seen since he saved ObamaCare in 2012 – when he sided with the Court's four liberals to second guess the Trump Administration's reasons for adding a citizenship question to the census, likely ensuring that the question will not be on the census given the looming deadline for printing the forms.
Perhaps Roberts thought he was "balancing" the Court by siding with the conservative Justices in the political gerrymandering decision issued today while siding with the liberals in this case, or by splitting the baby in the census case by rejecting some of the challengers' claims and remanding the case to the lower courts. But conservatives won 't be fooled by a census decision that effectively gives the President's critics exactly what they were seeking.
Whatever Roberts' motives might be – I speculated
here
about the role that court packing threats might play – the census decision will surely deepen the impression that Roberts is the new Justice Kennedy, rather than the reliable fifth conservative vote that liberals feared and conservatives hoped for.
More broadly and equally concerning, the Court's census decision – written by and made possible by Roberts – serves to encouraging the lower court judges who have second guessed the President's motive and policy decisions at almost every turn, issuing a slew of injunctions that discard the normal deference paid to executive actions and, at times, seeming to join the Trump Resistance.
Justice Alito had good reason, in his separate opinion, to voice concern that today's decision gives judges too much leeway to analyze the subjective motivations of executive officials whose policy decisions they disagree with. Allowing unelected judges to thus effectively set policy for the nation is clearly not what the Founding Fathers had in mind.
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Press Release from the Committee for Justice:
Supreme Court's Kisor v. Wilkie Ruling is Only a Stay of Execution for the Administrative State
The following is a statement from the Committee for Justice on the Supreme Court 9-0 ruling today in Kisor v. Wilkie, upholding but limiting the doctrine of Auer deference, which instructs courts to defer to an administrative agency’s reasonable interpretation of its own ambiguous regulations. The case involved the Veteran Administration's denial of disability benefits.
Washington, D.C. -- “The Court’s unanimous decision today is an important step towards reining in the largely unaccountable power of the administrative state, which has expanded enormously in recent decades," said Committee for Justice president Curt Levey.
At the same time, CFJ director of public policy Ashley Baker emphasized that "Today's decision is a small step. While the
Kisor
decision is a victory in restoring the courts’ duty of judicial review of administrative edicts and lays the groundwork for the eventual demise of
Auer
deference, the Court did not go far enough."
"Nonetheless, the legal regime under which courts give almost blind deference to federal bureaucrats' interpretations of regulations and statutes is beginning to wane," noted Levey. "Justice Gorsuch is correct that today's decision is more a stay of execution than a victory for deference to the administrative state."
"
The sooner the
Auer
and related
Seminole Rock
precedents are retired, the better," said Baker, "because the expanding administrative state has eroded the accountability of Congress and the independence of the judiciary, while posing a significant threat to the Constitution's separation of powers."
Baker went on to explain that "
Auer
deference is a judge-made doctrine that incentivizes executive agencies, hiding under the cover of statutory ambiguity, to evade the notice-and-comment requirement for administrative rulemaking and expand the meaning of regulations beyond the statutory text."
Baker added that "
Auer
deference relieves Congress of the responsibility to write clear and unambiguous legislation, while leaving it to administrative agencies to address the difficult questions of policy and implementation. When Congress cedes power to administrative agencies, politicians have less accountability to their constituents."
"It is no wonder that Justice Scalia—despite having written the Supreme Court’s opinion in Auer—later explicitly called on the Court to reject Auer deference," Baker concluded.
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Comments filed with the DOJ by CFJ policy director Ashley Baker:
Last week, CFJ director of public policy Ashley Baker submitted regulatory comments to the Department of Justice Antitrust Division
regarding a recent workshop on competition in advertising.
Since the comments are lengthy, they can be viewed as a document
here
.
...We argue that digital advertising is both a substitute for and a complement to television advertising. In other words, the rampant ascent of digital marketing was made possible by TV advertising and its ability to influence consumer behavior. In that way, it is a useful complement. The convergence of the two forms of advertising allowed marketers to measure efficacy and observe trends, which diverted attention to digital ads.
Television and online ads no longer exist in separate silos; the two are inexplicably intertwined and functional distinctions have collapsed.
In sum, digital advertising is not a traditional, linear market.
It is a two-sided market in which advertisers try to influence the online behavior of consumers through an intermediary...
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Fox News op-ed by CFJ president Curt Levey:
Because [Court packing proposals] are aimed at dislodging the Court's center-right majority, passage would depend entirely on Democrat votes. Even if no constitutional amendment were needed, enactment would require a Democrat president combined with a substantial Democrat majority in both houses of Congress – not all Democrats will be willing to tamper with a 150-year-old norm – as well as the elimination of the Senate filibuster.
That raises the question of why liberals are advocating so enthusiastically for what is essentially a pipe dream. Anger and politics surely provide part of the answer. But so does the knowledge that aggressively pushing restructuring schemes might cause Chief Justice John Roberts enough concern to distance himself from the Supreme Court's conservative bloc in an attempt to alleviate the pressure coming from the left. Such a shift, after all, is progressives' only real hope of avoiding a conservative majority.
A recent research study found that "Court-curbing proposals ramp up when proposers perceive that they can receive more favorable policy outcomes by threatening the institution." In turn, those threats cause "the Court to limit its use of judicial review – it is less likely to strike down legislation when under siege." This effect is small for associate justices but significant for chief justices, who "may vote in ways that appear counter to [their] ideological preferences" as a result...
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Ivey Mueller writes on our blog:
In a lawsuit filed this March, Huawei claims the provision outlined in the National Defense Authorization Act (NDAA) of 2019 (Sec. 889) are unconstitutional. Chief legal officer, Song Liuping, is calling the ban a quintessential example of a “bill of attainder” and a violation of due process. If this sounds familiar, over just one year ago, the failed Russian cybersecurity firm Kaspersky made the same argument and failed, also citing the NDAA...
...While the decision to ban Huawei has received much criticism, the move serves as an international frontier for pushing back on Chinese dependence and economic decoupling.
Concerns over a tech “cold war” are rumored in the media while others say the ban is nothing more than a tactic in the trade war. The chairman of Huawei, Liang Hua, has offered “no-spy agreements” to drop the digital iron curtain in exchange. This is dubious at best...
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Event announcement:
June 27th, 2019
|
5:30-7:30 PM
|
Philadelphia, PA
The RNLA's Southeastern Pennsylvania Chapter will be hosting a Supreme Court Roundup and reception in Philadelphia on Thursday, June 27th.
Ashley Baker
of the
Committee for Justice
will be the featured reception speaker. Ashley will be offering a summary of the Supreme Court's October 2018 term and offer a preview of the big cases for next term. RSVP to Richard Kisielowski
(
Info@RepublicanLawyer.net
)
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USA Today letter to the editor by Ashley Baker:
McConnell is Restoring the Judiciary's Role
...The Senate’s duty to advise and consent helps maintain our system of checks and balances. An abdication of this role would lead to more judicial activism ... Senate Majority Leader Mitch McConnell and Senate Judiciary Committee Chairman Lindsey Graham understand that the administration’s judicial nominees can help restore the proper role of the judiciary in our constitutional scheme ... A bigger problem is that Congress cedes power to executive agencies as an easy substitute for writing clear legislation. This is a problem that the judiciary can fix.
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...The focus on Roberts is unsurprising, said Curt A. Levey of the conservative Committee for Justice. Although the jury is still out on Trump appointee Brett M. Kavanaugh, the justice who replaced Kennedy, Roberts is the conservative most likely to be in play, Levey said.
“I think it is a predicament for him,” Levey said. The chief justice is the member of the court most sensitive “to what history and the nightly news says about you.”
Levey recently wrote that proposals from Democratic
presidential candidates
and members of Congress to restructure the Supreme Court — increasing the number of justices, for instance, or trying to impose term limits — are better seen as attempts to push Roberts to more moderate outcomes in the court’s decisions.
“Such a shift, after all, is progressives’ only real hope of avoiding a conservative majority,”
Levey wrote
...
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...Curt Levey, president of the Committee for Justice, said he doubts the new arguments will make much difference to the courts.
“It is for good reason that most supporters of
D.C.
voting rights realize they will need a constitutional amendment — similar to the one that gave
D.C.
three electoral votes — to achieve their objective,” Mr. Levey said...
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Evolving Definition of 'Violent Felony' Sparks Wave of Petitions, Deportation Questions
...The ruling in
Johnson v. United States
sparked a wave of claims from prisoners who say but for a borderline crime of violence, they would be serving much shorter sentences. "There is a lot of these cases partly because people in jail have a lot of free time," said Curt Levey, president of the Committee for Justice.
..."Because the record makes ‘perfectly clear’ that petitioner ‘was convicted of battery on a law enforcement officer by striking, which involves the use of physical force against the person of another,’ I would count the conviction as a ‘violent felony,’" Justice Alito wrote.
He dissented in the 2015
Johnson
case, too. Mr. Levey said that may have carried over to his dissent in the
Santos
case. "Alito is, after all, a former prosecutor," Mr. Levey said...
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