Archive for the ‘Legislation’ Category


WHAT HAPPENED:  Defendant, who is a legal immigrant, was charged with burglaries, which warranted mandatory removal under the Federal Immigration State as a “violent felony”.

WHY IS THIS BEFORE THE SUPREME COURT:  The defendant did not contest the underlying charges, but more whether or not the “violent felony” language, which includes any “felony that is likely to result in violence to persons or property”, was unconstitutionally vague.  Under the Due Process clause, criminal statutes can be invalidated if they do not give citizens fair notice of what is being punished, which came up two years ago in a case, Johnson v. U.S..  In Johnson, the Court held that the term “violent felony” was vague as it applied to the Armed Career Criminals Act, so the question here is whether the same applies to the Immigration Act.

WHAT ARE THE RAMIFICATIONS:  Should the Lower Court’s decision invalidating the Act hold, the procedure for removing violent felons would need to be re-written to either (a) articulate what a violent felony is more specifically, or (b) just make all felonies grounds for removal.  Since Congress doesn’t like MORE work on the table and panicking about dangerous immigrants is all the rage these days, my guess is that Supreme Court isn’t in a hurry to be on the front page of FOX NEWS for the next year.

ROOT FOR SESSIONS IF: You’re scared of violent immigrants.

ROOT FOR DIMAYA IF:  you are more interested in fostering conservative panic more that you are afraid of violent immigrants.

PREDICTION:  Sessions 6-3


WHAT HAPPENED: The Appellants were convicted of criminal charges and paid fines.  Appellants subsequently won their appeal and their convictions were overturned.  Appellant asked for their fees back, but Colorado said they had to go to civil court and prove their innocence by clear and convincing evidence to get their money back.


(reads facts again)

HAHAHA that’s so stupid.  OK sure let’s do this.

WHY IS THIS BEFORE THE SUPREME COURT:  Colorado argues that once the fines are paid into the Court system, the money becomes the ownership of the State and that it’s the Defendant’s burden to prove that they can get it back.

(reads appellate brief again)

HAHAHAHA seriously Colorado maybe it’s time to ban weed again.

WHAT ARE THE RAMIFICATIONS – Ok, seriously this time.  You could argue that this case represents the Court stepping on State’s rights because if Colorado wants to have a stupid rule about keeping your fines, they should be allowed to do whatever they want.  That being said, this clearly violates procedural due process, probably violates substantive due process, and could colorably be classified as a government taking without due process.  Luckily we don’t have anyone from Colorado joining significant parts of the Federal judiciary with life tenure anytime soon.

(reads news)

HAHAHAHAHAHA, never change Colorado.

ROOT FOR NELSON IF: you’re not the one person whose salary is paid by defendants who are motivated enough to appeal their criminal convictions, but not motivated enough to file for the fees returned.

ROOT FOR COLORADO IF: you are Colorado

PREDICTION:  Nelson 6-2 (Alito/Thomas special).


As I previously mentioned, in December, the North Carolina legislature passed a law limiting the future governors’ powers. The background to this action is that the legislature belongs to one party (with a veto-proof majority), and the governor to the other. The current governor, on his way out, signed the bill into law. Specifically, the new law strips future governors of their power to appoint a majority to the State Board of Elections. It also makes it more difficult for certain types of cases to appeal directly to the NC Supreme Court, which is controlled by the future governor’s party. Pending legislation (pdf warning) also strips the governor of his ability to name members to the boards of state universities, and reduces the number of state employees the governor appoints from 1,500 to 425. Further, the governor’s cabinet appointees become subject to approval by the State Senate.

In an interesting turn of events, a NC Superior Court judge temporarily blocked the new law with an injunction, citing McCrory v Berger (pdf warning). In that case, the legislature created an agency within the executive branch. The court held that separation of powers required that the governor, as leader of the executive branch, must have effective control of the agency. But, since the legislature selected a majority of the agency members, and it could remove members for cause, the court decided that the governor didn’t have enough control over the agency for it to respect the separation of powers required by the NC state constitution.

The current case, however, is slightly different: the election board at issue is an independent state agency (and since it’s not an executive agency, it presumably doesn’t need to be controlled by the governor), and the members are evenly selected by the governor and the legislature. My guess is that it should come out okay because of those differences, but it’s a new issue for the NC courts – which makes the injunction a smart play by the judge. I don’t expect this to be appealed to the Federal Supreme Court, because it’s squarely a state constitutional issue, but it’s nice to see courts not shy away from these very real constitutional issues just because politics are involved. Although, admittedly, state courts are much more likely to be politically active, since state judges often are heavily tied to one party or another, unlike federal judges, who tend to distance themselves from the political machinations of Washington DC. Relatively speaking, of course.

The Nuclear Option

Posted: January 3, 2017 by Nazim in Legislation, Politics


No, not that nuclear option. The Nuclear Option is the name given to the an idea conceived by Richard Nixon (sadly, of Watergate fame, despite being otherwise a pretty decent president) that ends the minority’s ability to filibuster in the US Senate, blocking the majority’s ability to pass laws. Normally, changing Senate rules requires 67% of the Senate to approve the change. But even these rule changes can be filibustered, and since the threshold of votes required to approve such changes is higher than usual, the number of senators needed to filibuster it is lower than usual.

Normally, when a bill is introduced to the Senate floor (after it is released from the clutches of a committee), it is discussed until a senator proposes a motion for cloture, which proposes to stop talking about it and take a vote on it. While it only takes half of the senators plus one to approve the bill, it takes 60% of the senate to approve the motion for cloture to end a filibuster (the ongoing discussion).

However, senators can raise a point of order, asking the presiding officer of the Senate (usually the majority party leader in the senate, but, in a case like this, more likely to be the vice-president, who is the boss of the Senate under article 1, section 3 of the Constitution) if a rule is being violated. Specifically, in this scenario, the question could be whether it’s constitutional to require 60% of senators to override a filibuster. And if the response were “Why, by George, I believe it is not,” the rule would be gone – ending the power to filibuster.

This thing could be appealed, but we’re in almost uncharted territory here. The constitution expressly says the Senate can write it’s own rules, as long as they abide the general framework provided, so you’d definitely have to read between the lines to find any argument either way. I say almost uncharted because this “option” has been used at least twice before in 2013. In January, by a vote of 78 to 16, the filibuster was temporarily banned, but only for that session. This change included safeguards, such as requiring the minority leader and seven other minority senators to approve overriding the filibuster. But in November, the ability to filibuster to oppose judicial nominees in District and Circuit courts (basically all courts below the Supreme Court) ended, by a vote of 52 to 48. For those keeping score, both changes were made by Democrats.

So, if the Democrats threaten to filibuster Republican Supreme Court nominees, this will probably come up. However, Republicans are likely to find themselves in the minority again at some point, so some may think that they might hesitate to do something this rash. However, the Republican-controlled legislature in NC just dramatically curtailed the Democratic governor-elect’s powers, displaying no such hesitation.

The phrase courts love to use when referring to our federal legislature’s behavior is Congress, in its infinite wisdom… We can hope.


Last week, news began circulating about a U.S. registry for Muslim immigrants. Although this idea had been floated out by Trump during his campaign, the idea gained additional traction when a Trump advocate defended the registry on grounds that the U.S. Supreme Court had upheld a similar classification based on race in the 1940’s.  Factually, this last statement is true.  In 1944, the Supreme Court held in Korematsu v. U.S. that Japanese internment camps survived Constitutional scrutiny on grounds that national security warranted extreme measures during times of “emergency in peril”.   It is also true that this is one of the only cases not explicitly overruled where the Court permitted a governmental classification based on race.   That being said, any other statements, inferences or arguments that Korematsu is valid precedent to support a registry in 2016 are idiotic propositions that serve to only raise the bar for idiotic propositions during a time when idiotic propositions are something of a cottage industry.

To start, the concept of precedent stands for the position that new cases should be ruled in conformity with old cases to ensure that the law is consistent, predictable and fair.  Consider the following hypothetical, where the greatest person alive gets a DUI on the way home from a X-Mas party.  This person is generous, philanthropic, and humbled by their mistake.  The Court recognizes these factors and spares this person any punishment, reasoning that the embarrassment of the charge is punishment enough.  Now, imagine this same person is instead a dead-beat dad who has accumulated his 5th DUI charge on the way home from a child pornography party.  The Court is not only unsympathetic to this person’s concerns, but doubles the maximum sentence to set an example.  Although this particular situation may seem fair, it becomes much less palatable if the difference between these two people is only based on race, gender, religion or nationality.  In addition to the broader policy concerns, there are also practical benefits to a consistent application of the law.  If precedent applies evenly to everyone, lawyers can give better advice and civilians can better plan their conduct with a fixed idea of how the law is applied.    A good example of the value of uniform laws is in the great State of Delaware, where highly developed precedent in corporate law has made the First State the premier place to incorporate your business since the outcome of any dispute is more easily predictable.  It is also important to note that precedent serves to apply the law evenly, and is not just based on the individual facts of the case.  In the hypothetical above, it is not that all deadbeats are treated the same, but instead that DUI law applies evenly to every person regardless of who they are.      Therefore, the classification in Korematsu is not an open-gateway for any type of racial classification, but it merely sends the groundwork for how today’s Court would view a racial classification under the Constitution.

To that end, it is hard to see how Korematsu could serve as precedent because the legal reasoning underlying the Korematsu decision is inapplicable to a Muslim registry in 2016.  The legal basis for the Koretamtsu decision was under the Equal Protection Clause of the 5th and 14th amendment, which applies a two part test whenever the government classifies individuals differently.  The test, which considers (1) the government’s reason supporting the classification, and (2) how connected the classification is to the government’s stated purpose, becomes harder to pass depending on the classification.  If the government is classifying individuals based on an immutable characteristic (race, creed, nationality, religion), the test is called Strict Scrutiny and it is almost impossible to pass.  The reason the word “almost” is included in that last sentence is because of Korematsu, as this is one of the only government actions that has passed a racial classification under Strict Scrutiny.

While that sounds foreboding, note the following factors that played into the 6-3 Korematsu majority decision.  First, the government’s stated purpose for the internment camps were highly influenced by U.S. military relations in 1944.  Koretmatsu was issued approximately three years after Pearl Harbor and six months after D-Day.  To that end, the Court believed that the government had a compelling interest in the protection of national security by preventing espionage during a time of active war.   Regardless of how you feel about immigration, ISIS, or the Middle East, this concern is not present today.  The U.S. is not involved in a military conflict similar to the scale of World War III and the purpose behind the Muslim registry is not to prevent the same type of espionage.  These differences may become blurred depending how the World turns, but at present day, these differences invalidate Korematsu as precedent as under the first element of Equal Protection because today’s government does not have the same compelling reason to set up a registry that classifies immigrants by their religion.

The second element of strict scrutiny, considering whether the government’s policy is related to action, is another area where Korematsu can be distinguished based on how the mechanics of the internment camps related to the government’s concern.  In addition to highlighting the active conflict of World War II, the Court noted two specific elements of the Japanese internment camps that influenced its decision.  The first was the short of amount of time the government had to make a full and complete decision before evacuating Japanese citizens, out of fear that Pearl Harbor was the first sign of a West Coast invasion.  Once again, this concern is not present today since the Muslim registry is not a knee-jerk reaction to a suspected invasion of Muslim immigrants.  The second influencing factor was the temporary nature of the internment camps, where the Court noted that the evacuation was not meant to be permanent, but only until the active military situation could be resolved.  Although this may seem like a minor detail, the fact that a Muslim registry is permanent is a significant distinguishing factor, since the government’s specific burden under this element is whether the government’s action is the “least restrictive method” of carrying out the policy.  When applying this test, the Court has not been afraid to suggest alternatives to vet out a better way for the government to carry out its policy.  While the Court in Korematsu deferred to the government’s decision in active war, it is hard to see this Court, which repeatedly invalidated George W. Bush’s decisions on Guantanamo Bay following September 11th, would give the same deference.  Simply put, the surrounding factors and mechanics of the government action do not equate to surviving the same test under the Equal Protection Clause.

Lastly, it is important to note that although Korematsu has not been overruled, the belief that it still serves as binding precedent is the kind of stupidity that can only result from a higher education.  The Supreme Court does not overrule precedent by its own accord, but must be presented with a case that warrants overruling the decision.  The famous case of Brown v. Board of Education overruled Plessey v. Ferguson because there was a case warranting such a decision, and the same thing goes for anti-miscegenation statutes and criminal sodomy laws.  The only reason Korematsu has not been expressly overruled is that the United States government has not proposed a full-scale racial classification in the last 40 years, which I should note, IS A GOOD THING.  In addition, not every bad Supreme Court case needs to be overruled the way that Michael Scott declared bankruptcy in the Office, as many bad cases are simply eroded over time to show that the law has changed in a different directly.  To fill the void that a lack of government deportations created in the last six decades since Korematsu, Equal Protection law has developed to such a degree that the Court is now invalidating inferred racial classifications because governments no longer makes outright classifications based on immutable characteristics.  So no, Korematsu has not been overruled, but if there is any good thing that can come from this registry, it would be that the Court could finally clear the last major black eye from the history books.


Congress Being Congress…

Posted: September 10, 2016 by Nazim in Legislation, Politics


On Friday, Congress passed a bill (Yay! They did something!) by consent, meaning the minority simply recognized that the majority had the numbers to pass it and therefore didn’t require a vote. The legislation, which will be vetoed by the president (which will not be overriden, so Congress basically didn’t do anything after all), allows the families of 9/11 victims to sue the Saudi government in US courts. This will be interesting.

The claims would probably be interesting: I’ve seen some individuals of the Saudi government had ties to some of the Al Qaeda members that had a hand in the attacks, but I’ve seen little evidence that the Saudi government proper had any role. However, I could be wrong about that, which would make it interesting.

But the notion that one sovereign government can unilaterally pass a law allowing it to sue another government in the first government’s courts is almost unprecedented. I say almost because this is almost what the Bank Markazi case was about, but there, Congress just wanted to remove sovereign immunity from foreign money in the US. Here, we’re dragging a foreign government into our courts. I can’t imagine Congress being okay with the opposite happening. Actually, I think that’s why Congress won’t ratify several treaties. Which is why many diplomatic veterans are throwing shade at the bill, saying that it’s more likely to just cause diplomatic waves than bring any justice about.

I guess Congress can try to do something some other time.

If You Really Have To Kill Someone…

Posted: September 5, 2016 by Nazim in Legislation, Standing


Well, Yellowstone National Park has a corner for all you wanna-be murderers (or any other federal would-be felons, for that matter), at least according to Professor Brian C. Kalt’s article in the Georgetown Law Journal. While the park stretches over portions of Montana and Idaho, it’s all in the federal jurisdiction of the District Court of Wyoming, which has a courthouse in the park (bottom of page). That District Court is the only one that covers more than one state. But, under the Sixth Amendment’s Vicinage Clause (which I’d never heard of either), defendants are entitled to a jury “of the State and district wherein the crime shall have been committed,” and only federal law deals with felonies in national parks. So, if you’re choking a congressman to death in the tiny part of Yellowstone that’s in Montana or Idaho, you can’t constitutionally be tried.

If you’re a congressman and reading this alarms you, you should know that the good professor actually warned Congress before publishing the article in 2005, expecting them to take care of the problem. But, well, I guess you guys had more important things to do.

Thanks to listener David for passing us more detail at Vice.


Nazim mentioned the concept of a National Basic Income on a recent episode, and I wanted to post some extra information about it, just in case there was interest. The core notion is to replace all governmental income subsidies, which include unemployment assistance, social security, the Earned Income Tax Credit, Food Stamps, Temporary Assistance for Needy Families, and the many other programs that assist those who may in be temporary or long-term financial distress with a paycheck that the recipient can spend however she or he chooses. It would also remove some regulations that shift livelyhood burdens on employers, such as their portion of unemployment insurance, social security contributions and minimum wage requirements. However, this would not replace medical or educational assistance programs, at least as far as I understand it.

This idea comes in many shapes and sizes, and Nazim likes the administrative efficiency of a Negative Income Tax (which is just another form of Basic Income) the best, and while the notion has the big draw of being administratively light and deferring to individuals’ choices, most concerns focus on its feasibility, mainly the price tag and whether people will just turn into large, pale slugs.

As far as the latter goes, well, pilot programs haven’t yielded any such evolutionary step. Many of the experiments report a small decrease in working hours, but some report an increase, and overall productivity doesn’t seem to change much, but most attempts so far have been pretty small in terms of scale, so it’s hard to say. Finland might implement a large scale program in a couple of years, and it would be very interesting to see how it goes.

The feasibility issue, and the economic cost, is the bigger issue, and one that I did some quick, back-of-the-napkin math for. The Office of Management and Budget, which both parties use when they make budget projections, puts the total cost of Social Security and Income Security programs at $1.35 trillion in 2013, so lets start with that number. Basic Income would really only benefit the poorest part of the population, because it would be taxed back (or not paid out at all, in the case of a Negative Income Tax bracket) from anyone wealthy enough to not need it, which I will arbitrarily draw the line for at $30,000 of annual income. So, those making below $30 grand a year, they would get a graduated paycheck that scales inversely to their “normal” income, from zero for those who make $30,000 or more to, say (again, arbitrarily), $10,000 a year for those who make nothing. These are numbers I’ve plucked from thin air, for the sake of discussion. According to the Census Bureau, we get the following breakdown (pdf warning; and the numbers are approximate and rounded for ease of calculation):

  • About 11 million people in the US make close to nothing in annual income, so they would get the full $10,000 in basic income.
  • About 40 million make around $10,000 a year, so their basic income would decrease by a third, netting them $6,666 in basic income for that year, in addition to their regular income.
  • Another 42 million people make around $20,000 a year, so they would get about $3,333 in basic income to supplement their $20,000.
  • The remaining population, who all make $30,000 a year or more, either get no basic income or it is taxed back, so we don’t need to calculate needs at all.

These costs total only half a trillion dollars, so we could spend the same amount again to administer it in the most inefficient way imaginable and still come in at a substantially lower price tag than the current programs cost us. While it’s hard to tell whether current programs are better off giving cash, or directed assistance, what Nazim likes in these programs is that the individuals involved would determine their needs, instead of legislative dictates. But, perhaps more importantly, there would be a substantial solution to the growing automation of menial labor, and the decrease in untrained job offers. Sure, folks might not want to work for McDonald’s anymore, but that would mean that McDonald’s would have to either offer better compensation or automate more of the production, which sounds like progress to me.

Man, it’s weird to write about myself in the third person.

The Value of Setting Defaults

Posted: August 18, 2016 by Nazim in Legislation

L0060508 Kidney donor cards, England, 1971-1981

A great many episodes ago, I mentioned the value of legislation mandating that people should have to opt-out of being organ donors, instead of allowing them to opt-in to it. In other words, making the default that you DO donate your organs, instead of don’t. Moral inertia is a great and reliable virtue, and legislative misuse of it drives me mad. Clearly, people who don’t want their organs harvested to feed zombies, shouldn’t be forced to, but – also clearly – those people care about the issue and feel strongly about it, so asking them to check a box is not a big imposition. On the other hand, most people, again, clearly, don’t care, and can’t bother to check a box. So we might as well use their innards to help someone else make more mistakes in a longer life.

A satisfyingly greater amount on this matter here, on Pro Publica.