The View from Right Field

Declaring a “National Emergency” to Build a Wall Is a Terrible Idea

President Trump has apparently decided to sign the budget bill and then declare a “national emergency” to build a wall on the border with Mexico.  I’ll be brief: This is an absolutely terrible idea.  Presidential power once stretched never returns to its prior limits.  A national emergency that lets President Trump build a wall, will let his successor do other things.  Even if you approve of the former, you may not approve of the latter.  And even if courts or Congress stop President Trump from doing this,¹ the mere fact that President Trump tried to use emergency powers in this way will be a precedent for future presidents to use their emergency powers in other ways.  This is a really bad idea.
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¹ It could be an interesting question as to who would have “standing” to challenge President Trump’s order in the courts.

Can Americans Be Trusted With Campaign Finance Disclosure? – An Update After the Brett Kavanaugh Hearings

Four years ago, I wrote a post asking “Can Americans Be Trusted With Campaign Finance Disclosure?”  I noted that, while some people want to limit political spending either by limiting how much people can contribute or by limiting how much candidates can spend, the First Amendment (at least as currently interpreted by the Supreme Court) doesn’t allow either of those.  Therefore, as I said back then:

“[T]hey fall back on disclosure of contributions.  If we can’t limit spending, they say, at least we can require contributions and spending to be disclosed.  In the words of Supreme Court Justice Louis Brandeis (before he was on the Court), ‘[s]unlight is said to be the best of disinfectants.’”

But, I asked, as I do again in the title of this post: Can Americans be trusted with campaign finance disclosure?  This question recently returned when a federal district court judge threw out a 37-year old Federal Election Commission rule dealing the disclosures that nonprofit advocacy groups have to make with respect to the names of their donors.  Without going into the technical detail of the case,¹ the judge’s ruling increases the number of people whose names have to be disclosed, even though the people aren’t making contributions to candidates, but just to groups that are making independent political expenditures.

Masterpiece Cakeshop – Again

On June 4, the U.S. Supreme Court reversed the decision of the Colorado Civil Rights Commission that Masterpiece Cakeshop had violated the rights of a customer who asked Masterpiece Cakeshop to bake a special cake for a same-sex marriage.  The Supreme Court’s decision was narrow.  The Court held that the Colorado had violated the rights of Jack Phillips, the owner of Masterpiece Cakeshop, under the Free Exercise clause of the First Amendment, by the way it treated him and his claim of religious belief for what he did.  The Court specifically did not say whether, in a proper case, where the state was not hostile to a business owner’s religious beliefs, it might not hold that a business owner could be forced to bake such a cake.  

Guess what.  That case might be coming to the Supreme Court.  Because on June 28, just three-and-one-half weeks after the U.S. Supreme Court’s decision, the Colorado Civil Rights Commission found probable cause that Mr. Phillips had unlawfully discriminated in another case, this time by refusing to bake a custom cake (blue on the outside, pink on the inside) to celebrate the seventh anniversary of Autumn Scardina’s transition from a man to a woman.  (Also, here.)  Set-up, anybody?

Brett Kavanaugh, the Supreme Court, and Roe v. Wade

With the hearings on Judge Brett Kavanaugh’s nomination to the Supreme Court starting,¹ one of the questions will be about women’s right to choose/abortion.  Will a Justice Brett Kavanaugh vote to take away a woman’s right to choose by overturning Roe v. Wade?  While Judge Kavanaugh told Senator Susan Collins that Roe v. Wade was settled law, settled law can be overturned. 

What people are missing, however, in talking about whether the Supreme Court might overturn Roe v. Wade, is that overturning Roe v. Wade is not going to take away a woman’s right to choose.  The Equal Rights Amendment was never adopted, but over the last 30+ years all, or at least almost all, of what the Equal Rights Amendment was supposed to accomplish has happened anyway.  It has been done by laws, regulations, and the general agreement of society.  Women are heads of Fortune 500 companies.  Female soldiers are going into combat as members of our military.  Women are as equal today as they would have been if the Equal Rights Amendment had been adopted 35 years ago.

Is Judge Brett Kavanaugh Anti-EPA or Just Pro-Proper Process?

Environmentalists are worried about Judge Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court.  According to David Savage of the Los Angeles Times, “Environmentalists fear that if Kavanaugh joins the court, he would vote to block anti-pollution regulations for decades, long after President Trump has departed.”  Pat Gallagher, legal director for the Sierra Club, goes perhaps further:

“He would be a disaster for the environment.  He has a disdain for regulation, particularly from the EPA.  Kennedy was the swing vote in this area.  If we have to wait for Congress to act on climate change, we are doomed.”

The last sentence gives the story away.  Environmentalists haven’t been able to convince Congress to pass the legislation they think is necessary so they have been relying, during the Obama administration, on federal agencies, especially the EPA, to do what they want.  What environmentalists don’t like about Judge Kavanaugh is that he has been skeptical of federal agencies doing things that are arguably beyond what Congress has authorized them to do and that, ultimately, he is unwilling to let policy ends prevail over the means of proper process.

Cakes for Gay Weddings: The Masterpiece Cakeshop Decision

It will be interesting to see how the commentariat reacts to the U.S. Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was announced today.  While at least some supporters on both sides of the issue will probably get carried away, the decision itself, at least as I understand it, was fairly narrow.  Specifically, the Court held that the Commission had violated the rights of Jack Phillips, the owner of Masterpiece Cakeshop, under the Free Exercise clause of the First Amendment by the way it treated him and his claim of religious belief for what he did.  The Court did not, however, say the Commission violated Mr. Phillips’s rights by telling him that he had to make a cake for a gay wedding.  It left that question for another day.  Rather, the Court held that the Commission violated Mr. Phillips’s rights by showing, in the words of the Court’s Syllabus of the case,

“a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.  As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”

Sex Scandals – and Bill Clinton’s Impeachment

With all of the sex scandals, and worse, appearing these days involving politicians, entertainment figures, and business leaders, I want to make one thing perfectly clear with respect to Bill Clinton, Monica Lewinsky, and President Clinton’s impeachment.

I can’t speak for anybody else, but the reason I supported President Clinton’s impeachment was not because of what he and Ms. Lewinsky did.¹  It was because President Clinton lied under oath about what he and Ms. Lewinsky did.

Don’t “Kill Quill”. It’s a Question of Following Proper Procedures.

The United States Supreme Court heard arguments yesterday in South Dakota v. Wayfair, a case involving the question of whether a state can require a retailer to collect its sales tax even if that retailer does not have a physical presence in the state.  The Supreme Court decided this issue 25 years ago in Quill Corp. v. North Dakota (there must be something about the Dakotas).  In Quill, the Court said a state cannot force a retailer to collect its sales tax without a physical presence in the state – unless if Congress allows it.  Under the Constitution, Congress can authorize such taxes, but since Congress hadn’t authorized them, states couldn’t collect them.

Several years ago, however, Justice Kennedy gave a hint that perhaps Quill should be revisited, so North Dakota’s neighbor to the south was in the Supreme Court yesterday.  With the case before the Supreme Court, there was an article in The Wall Street Journal about the problems small companies and individuals would have trying to collect and process sales taxes in all of the states.  And it’s not just states that have sales taxes.  Cities and counties have them, too, with different rates in each.  What about audits?  Can a small business handle dozens of audits, some of them thousands of miles away?  Should the size of the business matter?

Is Partisan Gerrymandering an Issue for the Courts?

Partisan gerrymandering is one of the big issues before the U.S. Supreme Court this term.  The question is whether gerrymandering, which has been going on for 200 years, has become so extreme that the courts should, and can, do something about it.  Those urging the Court to act argue that computer technology is allowing ever more precise gerrymandering, which is locking in legislative majorities for one party, regardless of what the voters want.

Last October, the Supreme Court heard arguments in a case brought by Democrats in Wisconsin, Gill v. Whitford, challenging an allegedly partisan gerrymandering plan of the Wisconsin state legislature.  The Wisconsin Democrats complained that, because of the way the Republicans drew the district lines after the 2010 census, Republicans were able to win 60 of the 99 seats in the State Assembly in 2012 even though Republican candidates won 47% of the total votes for State Assembly candidates. 

What’s Worse: Trump’s Scandals or Obama’s Executive Overreach?

I was talking to a friend last night.  He was very worried about the scandals in the Trump administration.  Now I don’t know which scandals he was talking about.  The possibilities are many: possible collusion with the Russians during the 201 campaign;¹ firing the head of the FBI; Michael Flynn lying; Trump family products promoted from the White House; Stormy Daniels;² the Secretary of HHS resigning after spending hundreds of thousands of dollars on private flights; etc., etc..  Then there are things like some of his tweeting, which may not fit the definition of a “scandal,” but are appalling just the same. 

My friend then said that Barack Obama didn’t have any scandals.  I disagreed, which I think surprised him.  When he asked me what they were, I decided not to talk about President Obama publicly prejudging the FBI’s investigation into Hillary Clinton’s emails, both because I’m tired of former Secretary Clinton’s emails and because I wanted to mention what I think was real scandal in the Obama administration: what I saw as the gross overreach of executive power by the President and his administration.