[Headlines from DRJ]

Hot Air: Judge Reduces Oberlin Damages To $25 Million

But there is a twist:

The president of a school facing a $25 million judgment for aiding student efforts to label Gibson’s Bakery a racist institution is insinuating on a conference call with alumni that Gibson’s is a racist institution. So no lessons learned at Oberlin I guess.

Details at the link.

Last week the Oberlin President reportedly repeated a “false claim” it was “held liable for the speech of its students.”

– DRJ

[Headlines from DRJ]

Supreme Court Affirms Police Can Order Blood Drawn From Unconscious DUI Suspects:

The Supreme Court has ruled that police may, without a warrant, order blood drawn from an unconscious person suspected of driving under the influence of alcohol.

The Fourth Amendment generally requires police to obtain a warrant for a blood draw. But in a 5-4 vote on Thursday, the court upheld a Wisconsin law that says people driving on a public road have impliedly consented to having their blood drawn if police suspect them of driving under the influence. It also said that “exigent circumstances” permit police to obtain a blood sample without a warrant.

Justices Samuel Alito, Clarence Thomas, Stephen Breyer and Brett Kavanaugh joined Chief Justice John Roberts in the majority vote.

From oral argument:

Under Wisconsin law, anyone who drives on the state’s roads is assumed to have consented to have his blood tested for alcohol and drugs. The state’s laws also assume that a driver who is unconscious has not withdrawn that consent. Today – in a rare afternoon session – the Supreme Court heard oral argument in a challenge to the constitutionality of the provision allowing a blood test of an unconscious driver without a warrant. After an hour of debate, it wasn’t entirely clear how the justices might rule. But unlike the morning’s argument in the dispute over the decision to add a question about citizenship to the 2020 census, it seemed possible that the court might not divide completely along ideological lines, with Justice Stephen Breyer at times appearing to side with the state.

The case was brought to the Supreme Court by Gerald Mitchell, whom police found wet and shirtless on a beach in Wisconsin six years ago. When Mitchell – who was slurring his words – told police that he had parked his car because he “felt that he was too drunk to drive,” police did a preliminary breath test, the results of which are not admissible in court: Mitchell’s blood-alcohol level was three times the legal limit of .08 percent.

Mitchell was placed under arrest, but he was so drunk that police decided to take him to the hospital for a blood test instead of doing another breath test. By the time Mitchell arrived at the hospital, he was unconscious. Hospital staff took a blood sample, which registered a blood-alcohol concentration of 0.222 percent, and Mitchell was charged with driving while intoxicated.

From he Wisconsin Bar summary:

Under Wisconsin’s implied consent law, Wis. Stat. section 343.305(2), anyone who operates a motor vehicle on Wisconsin’s roads “is deemed to have given consent to his or her breath, blood or urine” to determine the presence of drugs or alcohol. Under Wis. Stat. section 343.305(3)(b), “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent under this subsection.”

The U.S. Supreme Court did not decide whether police officers can rely on Wisconsin’s informed consent law alone, which is a question the Wisconsin Supreme Court has grappled with in several unconscious driver cases in the last several terms. (In Mitchell, the Wisconsin Supreme Court upheld the conviction, but was divided on rationale).

Instead, the U.S. Supreme Court reviewed the question under the Fourth Amendment’s exigent circumstances exception, which allows police to obtain a warrantless blood draw in emergency-type situations, which leave no time to apply for a warrant.

Mitchell was not involved in an accident so they case was remanded, presumably to determine if this is one of the rare exceptions.

The dissents are interesting. Notably, the majority here included Breyer but not Gorsuch, who thinks cert was improvidently granted since the Court based its ruling on exigent circumstsnces, a legal theory not addressed below.

— DRJ

[Headlines from DRJ Beldar]

Beldar 1:

Breaking cosmically big news, so far just a headline at the WSJ: Supreme Court Declines to Set Limits on Political Gerrymandering: High court says such cases present political questions that courts can’t decide.

But here’s the full opinion in Rucho v. Common Cause. I’ll wait until DRJ or someone puts up a new post to comment in detail, but at a glance, from the official syllabus:

Partisan gerrymandering claims present political questions beyond the reach of the federal courts….
…
Any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” [citing Vieth v. Jubelirer‘s plurality opinion.]
….
None of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable….

This — very significantly — is a majority opinion, written by Chief Justice Roberts, joined fully by Justices Thomas, Alito, Gorsuch & Kavanaugh. The liberal justices joined in Kagan’s dissent.

Biggest case of this term, by far. This is the new SCOTUS we’ve been waiting for, friends and neighbors.

Beldar 2:

And in the Census race question case, it looks like (finally) a win for the Trump Administration, albeit in a splintered opinion that will take some sorting through to figure out: Dep’t of Commerce v. New York (again from the syllabus):

The Enumeration Clause permits Congress, and by extension the Secretary, to inquire about citizenship on the census questionnaire. That conclusion follows from Congress’s broad authority over the census, as informed by long and consistent historical practice that “has been open, widespread, and unchallenged since the early days of the Republic.”

As for the Commerce Secretary’s decision, it’s being remanded for reconsideration to see whether it was properly made, and that result was unanimous, but the instructions on what to do on remand appear to be rather fractured. There will be more litigation about this, in a hurry, before the 2020 Census is taken, but clearly there’s a path whereby the Trump Administration can get the question on the Census.

— DRJ

[Headline from DRJ]

From The Hill — Supreme Court sides with immigrant in gun possession case:

The Supreme Court on Friday found that prosecutors have to prove that an individual alleged to have illegally possessed a firearm must know that they are part of a group banned from having the gun in the first place.

In a 7-2 ruling, the justices sided with United Arab Emirates citizen Hamid Rehaif, who shot firearms at a gun range after he was dismissed from college over bad grades and told that his immigration status under his student visa would be terminated.

Justice Stephen Breyer wrote in the majority opinion that prosecutors do need to prove that Rehaif knew of his immigration status, and that he would therefore be banned from possessing a gun.

Justice Alito dissented:

Alito was highly critical of the ruling in the dissenting opinion, noting that the federal gun statute at hand applies to individuals like convicted felons, stalkers and those who commit acts of domestic violence.

“Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms” for convictions under that law, he argued.

Alito also took issue with the argument that Rehaif may not have known he was in the country illegally, and criticized the court for agreeing to hear the case in the first place. And he warned that the ruling could have ramifications for future cases on immigration. “Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his continued presence in the country was illegal,” Alito wrote.

Alito has the better argument.

— DRJ

[Headlines from DRJ]

The Hill – Judge rejects House Democrats’ attempt to block Trump use of military funds for border wall:

A federal judge has ruled against congressional Democrats who sought to temporarily stop the president from using military funds for a border wall.

Judge Trevor McFadden, a Trump appointee, handed the president a needed victory after the White House suffered several losses in legal battles with Democrats in recent days.

McFadden ruled that House Democrats cannot go to court to block Trump from using military funds to build the border wall “because the Constitution grants the House no standing to litigate these claims.”

The judge held that the House might have standing to sue in some cases but it did not show it had standing here.

And The Hill: Texas 7-year-old raises $22,000 for construction of Trump’s border wall:

A 7-year-old from Texas who’s raised $22,000 for the construction of President Trump’s U.S.-Mexico border wall attended a ribbon-cutting ceremony for a section of the structure on private land.

Benton Stevens, whose hot chocolate and lemonade sales have helped fund the project, joined members of crowdfunding group “We Build The Wall” in Sunland Park, N.M., for the ceremony, KFOX reports.

That is a lot of money for a child’s stand, even in Texas.

— DRJ

There is an important oral argument taking place today in the Fifth Circuit regarding Obama’s amnesty.

First, a paragraph of background: there have been two amnesty-related cases of note percolating through the Fifth Circuit, and it’s important to keep them straight. One case has been around a while: the challenge to Obama’s action on the “Dreamers” — his “deferred action for childhood arrivals” or DACA. In the second case, a judge who has been very critical of Obama’s amnesty issued an injunction barring implementation of Obama’s recent and far more sweeping executive amnesty.

The DACA case has been decided; more on that below. Oral argument will be heard today on the injunction regarding the sweeping amnesty. Last month, Paul Mirengoff at Power Line gave us a summary and preview:

The United States Court of Appeals for the Fifth Circuit has issued an order that sets oral argument in Texas v. United States for April 17. This is the case in which Texas and other states challenge President Obama’s executive amnesty.

In district court proceedings, Judge Hanen temporarily enjoined the government from enforcing Obama’s program to grant lawful status to millions of illegal immigrants. The government has moved for a stay of that order, pending appeal.

The oral argument on April 17, for which two hours have been allocated, will pertain only to the government’s motion for a stay. As for the merits of the injunction, the Fifth Circuit’s order sets a briefing schedule and permits the filing of briefs by a number of amici, including Senators Cruz and Cornyn.

Mirengoff reports that the government is arguing that Obama’s amnesty is somehow “essential to national security” because it helps ICE agents “quickly distinguish dangerous immigrants from those who pose no threat.” Expect this to come up in the oral argument.

Oral arguments can be very revealing, as the resolution of the DACA/Dreamers case shows. Recall my prediction. Last month, after listening to the audio of the oral argument in that case, I told you:

I’m the guy who told you that the panel was going to rule against Obama in Halbig, based on listening to the oral argument. Unfortunately, I have to be the guy to tell you that — unless I am interpreting the argument incorrectly — the Fifth Circuit is probably going to rule for Obama here.

And that is exactly what happened, 10 days ago. Politico reported (Google cache link, no links for bullies):

A federal appeals court’s ruling Tuesday upholding the dismissal of a lawsuit over President Barack Obama’s first major executive action to aid illegal immigrants could help the Obama administration fight a more significant suit that has resulted in Obama’s second wave of immigration orders being halted nationwide.

A three-judge panel of the 5th Circuit U.S. Court of Appeals unanimously ruled that several immigration agents and the state of Mississippi lacked legal standing to sue over Obama’s 2012 Deferred Action for Childhood Arrivals program because evidence that the agents or the state would be harmed by the effort was too speculative.

“Neither Mississippi nor the Agents have alleged a sufficiently concrete and particularized injury that would give Plaintiffs standing to challenge DACA,” Judge W. Eugene Davis wrote in an opinion joined by Judges Carolyn King and Priscilla Owen.

Always trust content from Patterico.

We’ll see what today’s argument holds in store. I admit to a lack of optimism, but that is characteristic of my personality. I’ll report more on it when I get a chance to hear the audio.

UPDATE: I should note that on the earlier case, I thought they might grant standing but deny on the merits — and they tossed it on standing. Details.

The audio of today’s oral argument is here. I have heard about half an hour or so. More later.

[guest post by JVW]

How many of you have seen this recent image bouncing around the Internet? It was apparently created by the deep thinkers at NARAL Pro-Choice America and has been promoted by the DailyKos and Huffington Post among others.

The idea, naturally, is to call attention to the idea that Christian groups who object to covering contraception and/or abortifacients are somehow being hypocritical if they have no objection to also covering Viagra or other erectile dysfunction treatment medication.

I’m going to pull back the curtain here and divulge a hitherto super-secret and never disclosed principle of Catholic theology [did the sarcasm come through enough there?] which explains why covering Viagra is acceptable whereas covering birth control pills is not, and I think this principle is also adopted by other religious groups who follow the same standard:

Viagra is used to facilitate a process which can lead to conception.

Birth control pills are used to prevent conception.

It really is as basic as that, but somehow this simple concept is way beyond the comprehension of the gender politics warriors whose voices dominate public discourse in these matters.

– JVW

Here’s an interesting little legal issue — one that is apparently easier to resolve properly if you have not had legal training.

California Penal Code section 288.7(a) reads as follows:

Any person 18 years of age or older who engages in sexual intercourse or sodomy with a child who is 10 years of age or younger is guilty of a felony and shall be punished by imprisonment in the state prison for a term of 25 years to life.

That simple language in bold is apparently too difficult for some judges to understand.

Our hypothetical defendant is 19 years old. The evidence shows that he met the victim at her 10th birthday party. One week later, he had sex with her. Is he subject to the penalties provided by this law?

As a common sense person, dear reader, you are saying: of course he is! The victim was 10 when he had sex with her. She just had her 10th birthday! And the penalties apply if the victim is 10 or younger. What’s the problem?

It turns out that at least one California court saw a problem. That court said “10 years of age or younger” means “exactly 10 years old, not one day more” . . . or younger. In other words, the day after the victim’s birthday, she is no longer “10 years of age of younger” . . . according to these legal geniuses.

That conclusion is, of course, absurd. If you asked this girl how old she is, she would say: “ten.” If you asked her mother how old she is, she would say: “ten.” If you asked all her friends and relatives how old she is, they would say: “ten.” If the statute says the victim must be “10 years of age OR younger” and she is “10 years of age,” then the statute applies.

I don’t care what the legislative “intent” was. I don’t care about the “rule of lenity” or any other mumbo jumbo. Not in this case. Because here the language is clear. The girl is ten. The statute applies. Next case!

This is what I mean when I stress that “legislative intent” should not matter to the interpretation of a statute. This court actually bemoaned the fact that there was no legislative history available to help out. The court also noted that several other cases in other jurisdictions had resolved similar issues in the same silly way (as well as several that resolved it properly). The court further noted that, in many cases, “courts have been able to resolve the issue on the basis of an illuminating legislative history.”

Legislative history. Aaaaaargh!

So, let’s say a legislator didn’t like the law, and was pushing to make the victim’s age “11 years or younger” before harsher penalties kicked in — but ended up voting for the statute in a pander to the public. He could simply have a staffer slip something into the legislative record talking about how “10 years or age or younger” really excludes anyone who is 10 years and a day. And one suspects certain idiot judges would pay attention to that kind of dishonest crap.

Not me. To me, the words mean what they mean. Trying to divine some “legislative intent” from clues in speeches and notes from committee meetings is a fool’s errand. The plain language should control.

Luckily, sanity may win out. The California Supreme Court has granted review and the case may not be cited. At least one other court has come out with a sensible ruling going the proper way.

But when you throw common sense out the window, the law can take the most obvious, plain meanings of words, and twist them into something that would make the man on the street furrow his brow and say “What now??”

It’s not always lawyers who do this, mind you. But they seem to be mighty good at it.

[Guest post by Jack Dunphy]

The Washington Post reports today on a series of recent Supreme Court opinions which overturned decisions by the 9th Circuit. Post writer Robert Barnes informs us:

Sometimes the Supreme Court simply decides cases and sometimes it seems to have something bigger in mind. In the past two weeks, it has been in scold mode, and its target has been the U.S. Court of Appeals for the 9th Circuit.

Barnes goes on to offer a characterization of Judge Stephen Reinhardt that will come as no surprise to regular readers of this blog. Reinhardt, he writes, is “widely considered to be the nation’s most liberal appeals court judge.”

Indeed. Read the whole thing.

–Jack Dunphy

[Guest post by Aaron Worthing]

Of course another suit in Michigan resulted in this law being upheld, so we are getting a split in the circuits.  I will say honestly I have not even read the whole decision yet, but I will and if I have any special insight, I will share it.  For now, I just want to make it easier for you to find the decision, if you are inclined to read it.

[Posted and authored by Aaron Worthing.]