Hot off the Supreme Court's presses. For info
Directly from the Supreme Court's website:
- The decision itself.
- Orders and Proceedings.
- Scotusblog
- Oyez.
- Becketlaw.
- ACLU.
- Cornell Law School.
Quite a bit about what you will be reading in the textbook is directly related to this case. I'll unpack them for this and other cases as well.
Wednesday, July 8, 2020
Tuesday, July 7, 2020
Day 4 of the Constitutional Convention: Tuesday, May 30
- Click here for the notes.
Roger Sherman joins up.
Roger Sherman came into the Convention without the intention of creating a new constitution. Sherman, an original signer of the Articles of Confederation, saw the convention as a means to modify the already existing government. Part of his stance was concerned with the public appeal. He defended amending the articles declaring that it was in the best interest of the people and the most probable way the people would accept changes to a constitution. Sherman saw no reason for a bicameral legislature, as proposed by the Virginia Plan. "The problem with the old government was not that it had acted foolishly or threatened anybody's liberties, but that it had simply been unable to enforce its decrees". Sherman further advanced the idea that the national government simply needed a way to raise revenue and regulate commerce.
______
“Resolved, that the Articles of Confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,” — should mutually be postponed, in order to consider the three following:
“1. That a union of the States merely federal will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare.
“2. That no treaty or treaties among the whole or part of the States, as individual sovereignties, would be sufficient.
“3. That a national government ought to be established, consisting of a supreme Legislative, Executive and Judiciary.”
______
Colonel HAMILTON moved to alter the resolution so as to read, “that the rights of suffrage in the National Legislature ought to be proportioned to the number of free inhabitants.” Mr. SPAIGHT seconded the motion.
Roger Sherman joins up.
Roger Sherman came into the Convention without the intention of creating a new constitution. Sherman, an original signer of the Articles of Confederation, saw the convention as a means to modify the already existing government. Part of his stance was concerned with the public appeal. He defended amending the articles declaring that it was in the best interest of the people and the most probable way the people would accept changes to a constitution. Sherman saw no reason for a bicameral legislature, as proposed by the Virginia Plan. "The problem with the old government was not that it had acted foolishly or threatened anybody's liberties, but that it had simply been unable to enforce its decrees". Sherman further advanced the idea that the national government simply needed a way to raise revenue and regulate commerce.
______
“Resolved, that the Articles of Confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare,” — should mutually be postponed, in order to consider the three following:
“1. That a union of the States merely federal will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare.
“2. That no treaty or treaties among the whole or part of the States, as individual sovereignties, would be sufficient.
“3. That a national government ought to be established, consisting of a supreme Legislative, Executive and Judiciary.”
______
Colonel HAMILTON moved to alter the resolution so as to read, “that the rights of suffrage in the National Legislature ought to be proportioned to the number of free inhabitants.” Mr. SPAIGHT seconded the motion.
From Vox: How Black Lives Matter fits into the long history of American radicalism
A look at a social movement - part of subject of 2305's chapter on political mobilization.
- Click here for it.
Black Lives Matter was created in 2013 by three Black women — Alicia Garza, Patrisse Cullors, and Opal Tometi — in response to the acquittal of Trayvon Martin’s killer, George Zimmerman. Over the last seven years, it has evolved into something much bigger: a broad multiethnic liberation movement focused on criminal justice reform, racist policing, and adjacent causes.
During the course of this shift, the movement has not only expanded but become more radical in its demands for equality across the board. And yet, surprisingly, this has increased, rather than diminished, its appeal.
BLM had little support across the country as recently as 2017. But it has become steadily more popular, and in the aftermath of George Floyd’s murder, its popularity has surged to the point that it’s now supported by a majority of Americans. By any measure, that suggests BLM is succeeding — culturally and politically.
But how should we think of Black Lives Matter as a historical phenomenon? Is it the sort of radical social movement we’ve seen before in this country? Or is it something new, something different, without any precursors?To get some answers, I reached out to Michael Kazin, a professor of history and American social movements at Georgetown University and also the co-editor of Dissent magazine. We discussed how BLM fits into the long tradition of American radicalism, what its proponents can learn from previous eras, and why he thinks BLM is both a political and a cultural struggle.
- Click here for it.
Black Lives Matter was created in 2013 by three Black women — Alicia Garza, Patrisse Cullors, and Opal Tometi — in response to the acquittal of Trayvon Martin’s killer, George Zimmerman. Over the last seven years, it has evolved into something much bigger: a broad multiethnic liberation movement focused on criminal justice reform, racist policing, and adjacent causes.
During the course of this shift, the movement has not only expanded but become more radical in its demands for equality across the board. And yet, surprisingly, this has increased, rather than diminished, its appeal.
BLM had little support across the country as recently as 2017. But it has become steadily more popular, and in the aftermath of George Floyd’s murder, its popularity has surged to the point that it’s now supported by a majority of Americans. By any measure, that suggests BLM is succeeding — culturally and politically.
But how should we think of Black Lives Matter as a historical phenomenon? Is it the sort of radical social movement we’ve seen before in this country? Or is it something new, something different, without any precursors?To get some answers, I reached out to Michael Kazin, a professor of history and American social movements at Georgetown University and also the co-editor of Dissent magazine. We discussed how BLM fits into the long tradition of American radicalism, what its proponents can learn from previous eras, and why he thinks BLM is both a political and a cultural struggle.
Sunday, July 5, 2020
Here's something I did not know
The 1836 Texas Constitution prevented ministers from holding state elective office.
It's in Article 5, Section 1.
- Click here for the Constitution.
Here's the language:
ARTICLE V.
SEC. 1.
Ministers of the gospel being, by their profession, dedicated to God and the care of souls, ought not to be diverted from the great duties of their functions, therefore, no minister of the gospel or priest of any denomination whatever shall be eligible to the office of the Executive of the Republic, nor to a seat of either branch of the Congress of the same.
It's in Article 5, Section 1.
- Click here for the Constitution.
Here's the language:
ARTICLE V.
SEC. 1.
Ministers of the gospel being, by their profession, dedicated to God and the care of souls, ought not to be diverted from the great duties of their functions, therefore, no minister of the gospel or priest of any denomination whatever shall be eligible to the office of the Executive of the Republic, nor to a seat of either branch of the Congress of the same.
From Lawfare: Hold Police Accountable by Changing Public Tort Law, Not Just Qualified Immunity
In 2306 we discuss tort reform, and look at its inclusion in the Article 1 of the Texas Constitution.
Here is an article suggesting that police reforms might be accomplished, as well, by changes in trot law.
- Click here for the article.
While a great deal of recent writing has focused on the inequity created by qualified immunity, it is important to keep in perspective the extent to which its elimination could serve as a meaningful reform mechanism. The U.S. Supreme Court has historically drawn a sharp distinction between constitutional torts, such as excessive force, and common-law torts, such as assault, battery and negligence. Many acts of police wrongdoing may not constitute constitutional violations and thus would not be addressed by reforms to qualified immunity. Accountability would then have to stem from state tort law.
Consequently, to the extent that public tort law can serve as a viable mechanism for law enforcement accountability, eliminating statutory privileges and indemnification regulations may serve as a greater vehicle for reform than qualified immunity. That is not to suggest that the federal government cannot play a role in promoting reform. However, when it comes to federal statutes, Congress should once again examine the Federal Tort Claims Act instead of focusing solely on actions based on 42 U.S.C. § 1983 as a means of initiating law enforcement accountability.
Here is an article suggesting that police reforms might be accomplished, as well, by changes in trot law.
- Click here for the article.
While a great deal of recent writing has focused on the inequity created by qualified immunity, it is important to keep in perspective the extent to which its elimination could serve as a meaningful reform mechanism. The U.S. Supreme Court has historically drawn a sharp distinction between constitutional torts, such as excessive force, and common-law torts, such as assault, battery and negligence. Many acts of police wrongdoing may not constitute constitutional violations and thus would not be addressed by reforms to qualified immunity. Accountability would then have to stem from state tort law.
Consequently, to the extent that public tort law can serve as a viable mechanism for law enforcement accountability, eliminating statutory privileges and indemnification regulations may serve as a greater vehicle for reform than qualified immunity. That is not to suggest that the federal government cannot play a role in promoting reform. However, when it comes to federal statutes, Congress should once again examine the Federal Tort Claims Act instead of focusing solely on actions based on 42 U.S.C. § 1983 as a means of initiating law enforcement accountability.
Thursday, July 2, 2020
Espinoza v. Montana Department of Revenue
From Oyez:
Question:
Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?
Conclusion:
The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts authored the opinion on behalf of the 5-4 majority.
The Court first noted that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” In this case, Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status. As such, the law must be subject to strict scrutiny review; that is, the government must show that its action advances “‘interests of the highest order” and that the action is “narrowly tailored in pursuit of those interests.” Montana’s interest in this case—which the Court described as creating greater separation of church and state than the federal Constitution requires—does not satisfy strict scrutiny given its infringement of free exercise. Because the Free Exercise Clause barred the application of Montana’s no-aid provision, the Montana Supreme Court lacked the authority to invalidate the program on the basis of that provision.
Justice Clarence Thomas authored a concurring opinion in which Justice Neil Gorsuch joined, opining that the Court’s Court’s interpretation of the Establishment Clause (not at issue in this case) hampers free exercise rights.
Justice Samuel Alito and Justice Gorsuch each filed their own separate concurrences. Justice Alito argued, as he did in dissenting from the Court’s decision earlier this term in Ramos v. Louisiana, that original motivation should have no bearing on the present constitutionality of a provision of law, yet even without that consideration, the majority reached the correct conclusion in this case. Justice Gorsuch argued that the Court’s characterization of the Montana Constitution as discriminating based on “religious status” and not “religious use,” is dubious at best.
Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Elena Kagan joined, arguing that the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise and thus does not violate the Free Exercise Clause. The Court’s precedents establish that neutral government action is not unconstitutional solely because it fails to benefit religious exercise.
Justice Stephen Breyer filed a dissenting opinion, in which Justice Elena Kagan joined in part. Justice Breyer argued that the majority’s approach and conclusion risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. Instead, Justice Breyer opined that the Court’s decision in Locke—upholding the application of a no-aid provision in Washington State based on the conclusion that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees—controlled the outcome in this case, in which the no-aid provision was “materially similar.”
Justice Sonia Sotomayor filed a separate dissenting opinion, arguing that the Court in this case resolved a constitutional question not presented, thereby violating “Article III principles older than the Religion Clause” itself. Moreover, Justice Sotomayor continued, the Court answered incorrectly that question it should not have addressed in the first place.
Key terms:
- religious clauses
- equal protection clause
- Montana Constitution
- discrimination
- free exercise clause
- Chief Justice
- majority opinion
- strict scrutiny
- Montana Supreme Court
- Establishment Clause
- Ramos v Louisiana
- burden
- neutral government action
- entanglement
- precedent
- concurring opinion
- dissenting opinion
- Article III
Question:
Does a state law that allows for funding for education generally while prohibiting funding for religious schools violate the Religion Clauses or the Equal Protection Clause of the federal Constitution?
Conclusion:
The application of the Montana Constitution’s “no-aid” provision to a state program providing tuition assistance to parents who send their children to private schools discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause. Chief Justice John Roberts authored the opinion on behalf of the 5-4 majority.
The Court first noted that the Free Exercise Clause “protects religious observers against unequal treatment” and against “laws that impose special disabilities on the basis of religious status.” In this case, Montana’s no-aid provision excluded religious schools from public benefits solely because of religious status. As such, the law must be subject to strict scrutiny review; that is, the government must show that its action advances “‘interests of the highest order” and that the action is “narrowly tailored in pursuit of those interests.” Montana’s interest in this case—which the Court described as creating greater separation of church and state than the federal Constitution requires—does not satisfy strict scrutiny given its infringement of free exercise. Because the Free Exercise Clause barred the application of Montana’s no-aid provision, the Montana Supreme Court lacked the authority to invalidate the program on the basis of that provision.
Justice Clarence Thomas authored a concurring opinion in which Justice Neil Gorsuch joined, opining that the Court’s Court’s interpretation of the Establishment Clause (not at issue in this case) hampers free exercise rights.
Justice Samuel Alito and Justice Gorsuch each filed their own separate concurrences. Justice Alito argued, as he did in dissenting from the Court’s decision earlier this term in Ramos v. Louisiana, that original motivation should have no bearing on the present constitutionality of a provision of law, yet even without that consideration, the majority reached the correct conclusion in this case. Justice Gorsuch argued that the Court’s characterization of the Montana Constitution as discriminating based on “religious status” and not “religious use,” is dubious at best.
Justice Ruth Bader Ginsburg filed a dissenting opinion in which Justice Elena Kagan joined, arguing that the Montana Supreme Court’s decision does not place a burden on petitioners’ religious exercise and thus does not violate the Free Exercise Clause. The Court’s precedents establish that neutral government action is not unconstitutional solely because it fails to benefit religious exercise.
Justice Stephen Breyer filed a dissenting opinion, in which Justice Elena Kagan joined in part. Justice Breyer argued that the majority’s approach and conclusion risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. Instead, Justice Breyer opined that the Court’s decision in Locke—upholding the application of a no-aid provision in Washington State based on the conclusion that the Free Exercise Clause permitted Washington to forbid state-scholarship funds for students pursuing devotional theology degrees—controlled the outcome in this case, in which the no-aid provision was “materially similar.”
Justice Sonia Sotomayor filed a separate dissenting opinion, arguing that the Court in this case resolved a constitutional question not presented, thereby violating “Article III principles older than the Religion Clause” itself. Moreover, Justice Sotomayor continued, the Court answered incorrectly that question it should not have addressed in the first place.
Key terms:
- religious clauses
- equal protection clause
- Montana Constitution
- discrimination
- free exercise clause
- Chief Justice
- majority opinion
- strict scrutiny
- Montana Supreme Court
- Establishment Clause
- Ramos v Louisiana
- burden
- neutral government action
- entanglement
- precedent
- concurring opinion
- dissenting opinion
- Article III
The Brazos River and Watershed
Thinking I make road trip up and down it in a few weeks.
- Click here for the Brazos River Authority.
- Click here for the Wikipedia entry on the Brazos River.
- And here for the Wikipedia for the Brazos River Authority.
- Click here for the Sunset Advisory Commission page.
- Salt Fork Brazos River.
- Double Mountain Fork Brazos River.
- Blackwater Draw.
- Click here for the Brazos River Authority.
- Click here for the Wikipedia entry on the Brazos River.
- And here for the Wikipedia for the Brazos River Authority.
- Click here for the Sunset Advisory Commission page.
- Salt Fork Brazos River.
- Double Mountain Fork Brazos River.
- Blackwater Draw.
From TSHA: SPANISH LAW
Despite adopting the common law in 1840, Spanish law was retained in a few areas in Texas' legal code. This is useful for 2306's look at criminal justice.
- Click here for the article.
As an outpost of the kingdom of New Spain, the province of Texas shared with Mexico the basic law of the parent sovereign, that of Castile. This law went essentially unchanged during the tumultuous fifteen years of Mexican Texas (1821–36), but after the Texas Revolution, the Republic of Texas adopted the law of England in preference to that of Spain. Three areas of law were excepted from the wholesale adoption of English law in Texas: certain procedural rules affecting trials, the law affecting land titles and certain water rights, and a large body of rules affecting family relationships.
. . . The Castilian principle of venue of lawsuits was also favored. Whereas the English rule was that a person was sued in the court of the locality where the facts giving rise to the dispute occurred, the Spanish rule required that a person be sued where he lived, for the convenience of the defendant.
. . . The Castilian tradition also provided a model for a system of probate administration that is much simpler than the English system. The Texas institution of an independent executor, seemingly modeled on the Castilian albacea universal, provides for great flexibility and reduced cost in probate practice.
. . . It is a basic rule of international law that when sovereignty changes, general law does not change until specifically altered by the new sovereign, and titles to land already acquired will not be interfered with. Hence, land-title law was not varied by the change from Mexican to Texan sovereignty except insofar as the previous holders of land who had espoused the Mexican cause had their lands declared forfeited. An anomalous result of continued application of the Spanish doctrine to land grants made before the act of January 20, 1840, and those made thereafter is that different rules may apply to adjacent tracts depending on the origin of the grant.
. . . The most significant residuum of Spanish law is in the area of family relationships. Adoption was unknown in English common law. Its comparatively early institution by statute in Texas (1850) is generally attributed to the Spanish legal tradition. The law of matrimonial property is also heavily influenced by the Spanish tradition. The Anglo-American frontiersman found the idea of common ownership of the gains of marriage between husband and wife much more agreeable to his society than common-law principles. Protection of certain land and tools of husbandry and trade from creditors' claims was also appealing to him, as opposed to the creditor-oriented rule of common law. This adoption of Hispano-Mexican principle has spread from Texas with varying degrees of liberality to other states. Texas law also followed the Hispanic model of allowing the husband to protect the home by giving him the right to kill his wife's paramour without punishment.
- Click here for the article.
As an outpost of the kingdom of New Spain, the province of Texas shared with Mexico the basic law of the parent sovereign, that of Castile. This law went essentially unchanged during the tumultuous fifteen years of Mexican Texas (1821–36), but after the Texas Revolution, the Republic of Texas adopted the law of England in preference to that of Spain. Three areas of law were excepted from the wholesale adoption of English law in Texas: certain procedural rules affecting trials, the law affecting land titles and certain water rights, and a large body of rules affecting family relationships.
. . . The Castilian principle of venue of lawsuits was also favored. Whereas the English rule was that a person was sued in the court of the locality where the facts giving rise to the dispute occurred, the Spanish rule required that a person be sued where he lived, for the convenience of the defendant.
. . . The Castilian tradition also provided a model for a system of probate administration that is much simpler than the English system. The Texas institution of an independent executor, seemingly modeled on the Castilian albacea universal, provides for great flexibility and reduced cost in probate practice.
. . . It is a basic rule of international law that when sovereignty changes, general law does not change until specifically altered by the new sovereign, and titles to land already acquired will not be interfered with. Hence, land-title law was not varied by the change from Mexican to Texan sovereignty except insofar as the previous holders of land who had espoused the Mexican cause had their lands declared forfeited. An anomalous result of continued application of the Spanish doctrine to land grants made before the act of January 20, 1840, and those made thereafter is that different rules may apply to adjacent tracts depending on the origin of the grant.
. . . The most significant residuum of Spanish law is in the area of family relationships. Adoption was unknown in English common law. Its comparatively early institution by statute in Texas (1850) is generally attributed to the Spanish legal tradition. The law of matrimonial property is also heavily influenced by the Spanish tradition. The Anglo-American frontiersman found the idea of common ownership of the gains of marriage between husband and wife much more agreeable to his society than common-law principles. Protection of certain land and tools of husbandry and trade from creditors' claims was also appealing to him, as opposed to the creditor-oriented rule of common law. This adoption of Hispano-Mexican principle has spread from Texas with varying degrees of liberality to other states. Texas law also followed the Hispanic model of allowing the husband to protect the home by giving him the right to kill his wife's paramour without punishment.
Wednesday, July 1, 2020
The Telegraph and Texas Register
The previous story mentions this paper, so I thought it deserved its own post.
- Click here for the wikipedia entry.
- The Portal to Texas History
- The Library of Congress.
- Texas State Historical Association.
From Wikipedia:
Telegraph and Texas Register (1835–1877) was the second permanent newspaper in Texas. Originally conceived as the Telegraph and Texas Planter, the newspaper was renamed shortly before it began publication, to reflect its new mission to be "a faithful register of passing events". Owners Gail Borden, John Pettit Borden, and Joseph Baker founded the paper in San Felipe de Austin, a community long at the center of Texas politics. The first issue was printed on October 10, 1835, days after the outbreak of the Texas Revolution. The Telegraph continued to report news of the war and the formation of the new Republic of Texas through the end of March 1836. As the Mexican Army approached the colonies in eastern Texas, most residents fled eastward. The owners of the Telegraph and their printing press evacuated on March 30 with the rear guard of the Texian Army. The press was quickly reestablished in Harrisburg. On April 14, Mexican soldiers captured the printing press and threw it into Buffalo Bayou.
- Click here for the wikipedia entry.
- The Portal to Texas History
- The Library of Congress.
- Texas State Historical Association.
From Wikipedia:
Telegraph and Texas Register (1835–1877) was the second permanent newspaper in Texas. Originally conceived as the Telegraph and Texas Planter, the newspaper was renamed shortly before it began publication, to reflect its new mission to be "a faithful register of passing events". Owners Gail Borden, John Pettit Borden, and Joseph Baker founded the paper in San Felipe de Austin, a community long at the center of Texas politics. The first issue was printed on October 10, 1835, days after the outbreak of the Texas Revolution. The Telegraph continued to report news of the war and the formation of the new Republic of Texas through the end of March 1836. As the Mexican Army approached the colonies in eastern Texas, most residents fled eastward. The owners of the Telegraph and their printing press evacuated on March 30 with the rear guard of the Texian Army. The press was quickly reestablished in Harrisburg. On April 14, Mexican soldiers captured the printing press and threw it into Buffalo Bayou.
Texas adopts the English common law in 1840
From the Texas Slavery project
- Click here for it.
"Untitled," Telegraph and Texas Register, April 8, 1840
An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.
SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.
SEC. 2 Be it further enacted, That all laws in force in this republic, prior to the first of September, one thousand eight hundred and thirty six (except the laws of the consultation and provisional government, now in force, and except such laws as relate exclusively to grants and the colonization of lands in the state of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the general and state governments) be, and the same are hereby repealed.
It goes on ....
- Click here for it.
"Untitled," Telegraph and Texas Register, April 8, 1840
An act to adopt the common law of England, to repeal certain Mexican laws, and to regulate the marital rights of parties.
SEC. 1. Be it enacted by the Senate and House of Representatives of the Republic of Texas, in Congress assembled, That the common law of England (so far as it is not inconsistent with the constitution or the acts of Congress now in force) shall, together with such acts be the rule of decision in this republic, and shall continue in full force until altered or repealed by congress.
SEC. 2 Be it further enacted, That all laws in force in this republic, prior to the first of September, one thousand eight hundred and thirty six (except the laws of the consultation and provisional government, now in force, and except such laws as relate exclusively to grants and the colonization of lands in the state of Coahuila and Texas, and also such laws as relate to the reservation of islands and lands, and also of salt lakes, licks and salt springs, mines and minerals of every description, made by the general and state governments) be, and the same are hereby repealed.
It goes on ....
From SMU: The Texas Penal Code of 1974
A look at a revision of the Texas Penal Code.
- Click here for it.
1973 Amid the controversy over capital punishment and drugs, the legislature substantially revised the Texas Penal Code for the first time since its enactment in 1856.' The contribution of the new Code to rational and enlightened administration of criminal justice in this state is substantial, but it should not be overstated.
Only "significant penal law" is Teformed by the Code; 2 many statutes that merely employ a penal sanction were simply transferred to "appropriate places within the framework of Texas statute law."' As a result, the Code has increased, without revising, the constantly growing mass of statutes scattered throughout the civil statutes which impose fines and imprisonment. 4 A large share of 'these statutes are of a regulatory nature rather than proscriptions of hard core criminality, and many violations are not prosecuted. Nevertheless, they constitute the majority of criminal statutes in this state, and remain virtually unaffected by the new Code., It should not be concluded that even that part of the penal law affected by the revision has been reformed either radically or completely. Substantive reform of some problem areas was neither achieved nor 'attempted. Conceptual and verbal inadequacies still exist.
For more:
- UNDERSTANDING THE COMPLEXITIES OF THE TEXAS PENAL CODE.
- Texas Legislative Council: CODE PROJECTS.
- TAMU: Researching Texas Law: Constitution & Statutes.
- Click here for it.
1973 Amid the controversy over capital punishment and drugs, the legislature substantially revised the Texas Penal Code for the first time since its enactment in 1856.' The contribution of the new Code to rational and enlightened administration of criminal justice in this state is substantial, but it should not be overstated.
Only "significant penal law" is Teformed by the Code; 2 many statutes that merely employ a penal sanction were simply transferred to "appropriate places within the framework of Texas statute law."' As a result, the Code has increased, without revising, the constantly growing mass of statutes scattered throughout the civil statutes which impose fines and imprisonment. 4 A large share of 'these statutes are of a regulatory nature rather than proscriptions of hard core criminality, and many violations are not prosecuted. Nevertheless, they constitute the majority of criminal statutes in this state, and remain virtually unaffected by the new Code., It should not be concluded that even that part of the penal law affected by the revision has been reformed either radically or completely. Substantive reform of some problem areas was neither achieved nor 'attempted. Conceptual and verbal inadequacies still exist.
For more:
- UNDERSTANDING THE COMPLEXITIES OF THE TEXAS PENAL CODE.
- Texas Legislative Council: CODE PROJECTS.
- TAMU: Researching Texas Law: Constitution & Statutes.
Links to the original penal and criminal procedure codes in Texas
From 1857, both adopted by the 6th Session of the Texas Legislature and printed up in Galveston.
From the Texas Reference Library:
In 1854 the fifth Legislature passed an act requiring the Governor to appoint a commission to codify the civil and criminal laws of Texas. The Commission proposed four codes, but only the Code of Criminal Procedure and the Penal Code were adopted by the Legislature. They are commonly referred to as the Codes of 1856 or the Old Codes.
It would be worth comparing these with the current versions.
- Penal Code
- Code of Criminal Procedure.
From the Texas Reference Library:
In 1854 the fifth Legislature passed an act requiring the Governor to appoint a commission to codify the civil and criminal laws of Texas. The Commission proposed four codes, but only the Code of Criminal Procedure and the Penal Code were adopted by the Legislature. They are commonly referred to as the Codes of 1856 or the Old Codes.
It would be worth comparing these with the current versions.
- Penal Code
- Code of Criminal Procedure.
From afrotexan.com: Texas Slave Codes
Some history on the development of slavery in Texas.
- Click here for it.
- Click here for the website.
Slavery as an institution in Texas began in Stephen F. Austin's colony. when Stephen Austin was recognized as heir to his father's contract in 1821, each settlers could receive eighty acres of land for each slave brought to Texas.
The institution of slavery in Texas was supported by the legal system. The entire life of the slave was controlled by rules and regulations. In addition to those passed by individual masters for their own plantations there were many local and state laws. The slave had no property rights and no legal rights of marriage and family. Slaveowners had broad powers of discipline subject only to constitutional provisions that slaves be treated "with humanity" and that punishment not extend to the taking of life and limb. A slave had a right to trial by jury and a court-appointed attorney when charged with a crime greater than petty larceny. However, blacks could not testify against whites in court, a prohibition that largely negated their constitutional protection. Although the law contained some recognition of their humanity, Texas's institutions, both social and legal, constantly reminded the black man he was property not a human being.
Relevant links:
- Constitution of the State of Texas.
- African American Laws II: 1839-1846.
- African American Laws III: 1848-1854.
- African American Laws IV: 1855-1864.
- Click here for it.
- Click here for the website.
Slavery as an institution in Texas began in Stephen F. Austin's colony. when Stephen Austin was recognized as heir to his father's contract in 1821, each settlers could receive eighty acres of land for each slave brought to Texas.
The institution of slavery in Texas was supported by the legal system. The entire life of the slave was controlled by rules and regulations. In addition to those passed by individual masters for their own plantations there were many local and state laws. The slave had no property rights and no legal rights of marriage and family. Slaveowners had broad powers of discipline subject only to constitutional provisions that slaves be treated "with humanity" and that punishment not extend to the taking of life and limb. A slave had a right to trial by jury and a court-appointed attorney when charged with a crime greater than petty larceny. However, blacks could not testify against whites in court, a prohibition that largely negated their constitutional protection. Although the law contained some recognition of their humanity, Texas's institutions, both social and legal, constantly reminded the black man he was property not a human being.
Relevant links:
- Constitution of the State of Texas.
- African American Laws II: 1839-1846.
- African American Laws III: 1848-1854.
- African American Laws IV: 1855-1864.
Tuesday, June 30, 2020
From Lawfare: The United Nations and the Accidental Rise of Covert Intervention
America shifted from over to covert intervention following the founding of the United Nations, and the requirement that nations respect each others territorial integrity.
- Click here for the article.
On June 26, 1945, the victors of World War II convened in San Francisco to sign the United Nations Charter. One of its most notable provisions was Article 2(4), which required members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This was a significant and unprecedented prohibition. As Ian Hurd describes it, “For the first time in the history of the Westphalian interstate system, war was made explicitly illegal for all states.” Prior treaties outlawing war, such as the Paris Peace Pact of 1928, included only a subset of states.
With the recent passage of the U.N. Charter’s 75th anniversary, it is a good time to take stock of its effect on world politics. The persistence of militarized interventions in particular has left many observers skeptical of the relevance of the charter’s flagship provision. According to Erik Voeten, “there is no record of the UN actively restricting states from using force, let alone the United States.” Many legal scholars agree. Thomas Franck, the former president of the American Society of International Law, wrote in 1970 that “the high-minded resolve of Article 2(4) mocks us from its grave.”
In a recent book—“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World”—I find that the effect of the U.N. Charter’s prohibition on forcible intervention, at least when it comes to the United States, is more complicated than skeptics allow. Although it has rarely prevented policymakers from intervening abroad, it has had a major influence on how those interventions looked. Concern about openly violating nonintervention often incentivized leaders to rely on covert action, even when doing so jeopardized mission success. Counterintuitively, then, the charter is partly responsible for the rise of secret interventions starting in the mid-20th century.
Links in the article.
- UN Charter.
- Click here for the article.
On June 26, 1945, the victors of World War II convened in San Francisco to sign the United Nations Charter. One of its most notable provisions was Article 2(4), which required members to “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” This was a significant and unprecedented prohibition. As Ian Hurd describes it, “For the first time in the history of the Westphalian interstate system, war was made explicitly illegal for all states.” Prior treaties outlawing war, such as the Paris Peace Pact of 1928, included only a subset of states.
With the recent passage of the U.N. Charter’s 75th anniversary, it is a good time to take stock of its effect on world politics. The persistence of militarized interventions in particular has left many observers skeptical of the relevance of the charter’s flagship provision. According to Erik Voeten, “there is no record of the UN actively restricting states from using force, let alone the United States.” Many legal scholars agree. Thomas Franck, the former president of the American Society of International Law, wrote in 1970 that “the high-minded resolve of Article 2(4) mocks us from its grave.”
In a recent book—“In the Shadow of International Law: Secrecy and Regime Change in the Postwar World”—I find that the effect of the U.N. Charter’s prohibition on forcible intervention, at least when it comes to the United States, is more complicated than skeptics allow. Although it has rarely prevented policymakers from intervening abroad, it has had a major influence on how those interventions looked. Concern about openly violating nonintervention often incentivized leaders to rely on covert action, even when doing so jeopardized mission success. Counterintuitively, then, the charter is partly responsible for the rise of secret interventions starting in the mid-20th century.
Links in the article.
- UN Charter.
Monday, June 29, 2020
Seila Law v. Consumer Financial Protection Bureau
The justices held that the CFPB's leadership by a single director removable only for inefficiency, neglect or malfeasance violates the separation of powers.
- From ScotusBlog:
Holding: The Consumer Financial Protection Bureau’s leadership by a single Director removable only for inefficiency, neglect or malfeasance violates the separation of powers.
Judgment: Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 29, 2020. Chief Justice Roberts delivered the opinion of the court with respect to Parts I, II and III, in which Justices Thomas, Alito, Gorsuch and Kavanaugh joined, and an opinion with respect to Part IV, in which Justices Alito and Kavanaugh joined. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justice Gorsuch joined. Justice Kagan filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Justices Ginsburg, Breyer and Sotomayor joined.
- From Oyez:
Question
1 - Does the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violate the separation of powers principle?
2 - If it does, is 12 U.S.C. § 5491(c)(3) severable from the Dodd-Frank Act?
- From ScotusBlog:
Holding: The Consumer Financial Protection Bureau’s leadership by a single Director removable only for inefficiency, neglect or malfeasance violates the separation of powers.
Judgment: Vacated and remanded, 5-4, in an opinion by Chief Justice Roberts on June 29, 2020. Chief Justice Roberts delivered the opinion of the court with respect to Parts I, II and III, in which Justices Thomas, Alito, Gorsuch and Kavanaugh joined, and an opinion with respect to Part IV, in which Justices Alito and Kavanaugh joined. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justice Gorsuch joined. Justice Kagan filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which Justices Ginsburg, Breyer and Sotomayor joined.
- From Oyez:
Question
1 - Does the vesting of substantial executive authority in the Consumer Financial Protection Bureau, an independent agency led by a single director, violate the separation of powers principle?
2 - If it does, is 12 U.S.C. § 5491(c)(3) severable from the Dodd-Frank Act?
June Medical Services v. Russo
The justices struck down a Louisiana law requiring doctors who perform abortions to have the right to admit patients at nearby hospitals.
- From ScotusBlog.
Louisiana's Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital, is unconstitutional.
- From Oyez.
Question: Does the decision by the U.S. Court of Appeals for the Fifth Circuit, below, upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflict with the Court’s binding precedent in Whole Woman’s Health v. Hellerstedt?
- From Vox: Why conservative Chief Justice Roberts just struck down an anti-abortion law - Roberts didn’t save abortion rights, he told future litigants how to bury them.
Only one thing has changed between June Medical and Whole Woman’s Health. Justice Anthony Kennedy, a relatively moderate conservative who cast the key fifth vote to strike down the Texas law, is no longer on the Court. And his replacement, Justice Brett Kavanaugh, opposes abortion rights. Kavanaugh dissented in June Medical.
So abortion opponents apparently bet that the replacement of Kennedy with Kavanaugh would allow them to litigate Whole Woman’s Health all over again — but with a different result. They bet wrong.
The fact that June Medical is almost entirely identical to Whole Woman’s Health forms the basis of Roberts’s opinion. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” the chief justice writes. Nevertheless, “the question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
Ultimately, Roberts concludes that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compels him to strike down Louisiana’s law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concludes.
As a practical matter, that means the constitutional right to an abortion is likely to survive for at least another year or two. But Roberts also signals that he’s open to a lawsuit challenging this right on other grounds.
The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe. It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.
- From ScotusBlog.
Louisiana's Unsafe Abortion Protection Act, requiring doctors who perform abortions to have admitting privileges at a nearby hospital, is unconstitutional.
- From Oyez.
Question: Does the decision by the U.S. Court of Appeals for the Fifth Circuit, below, upholding Louisiana’s law requiring physicians who perform abortions to have admitting privileges at a local hospital conflict with the Court’s binding precedent in Whole Woman’s Health v. Hellerstedt?
- From Vox: Why conservative Chief Justice Roberts just struck down an anti-abortion law - Roberts didn’t save abortion rights, he told future litigants how to bury them.
Only one thing has changed between June Medical and Whole Woman’s Health. Justice Anthony Kennedy, a relatively moderate conservative who cast the key fifth vote to strike down the Texas law, is no longer on the Court. And his replacement, Justice Brett Kavanaugh, opposes abortion rights. Kavanaugh dissented in June Medical.
So abortion opponents apparently bet that the replacement of Kennedy with Kavanaugh would allow them to litigate Whole Woman’s Health all over again — but with a different result. They bet wrong.
The fact that June Medical is almost entirely identical to Whole Woman’s Health forms the basis of Roberts’s opinion. “I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided,” the chief justice writes. Nevertheless, “the question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.”
Ultimately, Roberts concludes that the principle of stare decisis — the doctrine that courts should generally be bound by their prior decisions — compels him to strike down Louisiana’s law. “The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law,” Roberts concludes.
As a practical matter, that means the constitutional right to an abortion is likely to survive for at least another year or two. But Roberts also signals that he’s open to a lawsuit challenging this right on other grounds.
The takeaway from Roberts’s opinion isn’t that the right to an abortion is safe. It’s that Roberts is reluctant to bend the Court’s ordinary procedures to hand abortion opponents a victory in this particular case.
From Roll Call: Parties publish dirty laundry so the right people can air it
For a look at the complicated - and often hidden - world of campaigning.
- Click here for the article.
More than a dozen opposition research books are available on the Democratic Congressional Campaign Committee’s website, detailing planned lines of attack on Republican candidates in some of the most competitive races. But the committee wasn’t hacked, it wasn’t an accident, and it’s not new. Posting the documents was entirely intentional and just the beginning of a biennial, bipartisan tradition.
The books are typically a few hundred pages, but the ones available as of Wednesday varied in length from the 10 pages about Republican consultant Jim Bognet, who is running in Pennsylvania’s 8th District, to the 942-page, Robert Caro-esque volume on former GOP Rep. David Valadao, who is running to reclaim California’s 21st District after losing reelection in 2018.
Just the term “opposition research” conjures up images of dumpster-diving in the shadows for sensitive discarded documents that can then be used for surprise attacks in television ads. Posting the opposition research online, however, is just one example of how both parties publicly share information to avoid illegal coordination with outside groups and running afoul of campaign finance laws. And it’s been happening for nearly a decade. (see “IE strategy borders on art form,” in CQ Roll Call eight years ago.)
Since the official campaign committees can’t coordinate with their independent expenditure arms or with outside groups, strategists on both sides of the aisle use public signals to keep the party on the same page and avoid duplication of resources, such as paying twice for the same background information.
Publicly available opposition research is also evidence that there are few surprises in modern campaigns, where races are more likely to be decided by execution and quality of ads, money to put them in front of voters, the partisanship of a district, and the national political environment.
- Click here for the article.
More than a dozen opposition research books are available on the Democratic Congressional Campaign Committee’s website, detailing planned lines of attack on Republican candidates in some of the most competitive races. But the committee wasn’t hacked, it wasn’t an accident, and it’s not new. Posting the documents was entirely intentional and just the beginning of a biennial, bipartisan tradition.
The books are typically a few hundred pages, but the ones available as of Wednesday varied in length from the 10 pages about Republican consultant Jim Bognet, who is running in Pennsylvania’s 8th District, to the 942-page, Robert Caro-esque volume on former GOP Rep. David Valadao, who is running to reclaim California’s 21st District after losing reelection in 2018.
Just the term “opposition research” conjures up images of dumpster-diving in the shadows for sensitive discarded documents that can then be used for surprise attacks in television ads. Posting the opposition research online, however, is just one example of how both parties publicly share information to avoid illegal coordination with outside groups and running afoul of campaign finance laws. And it’s been happening for nearly a decade. (see “IE strategy borders on art form,” in CQ Roll Call eight years ago.)
Since the official campaign committees can’t coordinate with their independent expenditure arms or with outside groups, strategists on both sides of the aisle use public signals to keep the party on the same page and avoid duplication of resources, such as paying twice for the same background information.
Publicly available opposition research is also evidence that there are few surprises in modern campaigns, where races are more likely to be decided by execution and quality of ads, money to put them in front of voters, the partisanship of a district, and the national political environment.
From the Texas Tribune: Here’s your Texas 2020 July runoff ballot
Early voting starts today. This is a good review for 2306 students. It covers primary elections along with various elected offices in the state.
- Click here for it.
You might also want to read: Early voting starts Monday for the primary runoff in Texas. Here’s what you need to know.
- Click here for it.
You might also want to read: Early voting starts Monday for the primary runoff in Texas. Here’s what you need to know.
Today in the Texas Tribune
For 2306, mostly:
Texans begin voting Monday in runoff elections. Officials are doing what they can to make it safe.
Key terms
- primary runoff
- elections administrator
- voting
- statewide election
- low turnout
- party nominations
- congressional, legislative, local offices
- incumbent
- U.S. Senate
- Bexar County
- election judges and workers
- voting by mail
- early voting
- voting booths
Texas education officials consider changing state’s sex education policy for first time in 23 years.
Key Terms
- political culture
- Texas State Board of Education
- state’s health education standards
- Republican-dominated board
- Texan Freedom Network
- federal data
Texans begin voting Monday in runoff elections. Officials are doing what they can to make it safe.
Key terms
- primary runoff
- elections administrator
- voting
- statewide election
- low turnout
- party nominations
- congressional, legislative, local offices
- incumbent
- U.S. Senate
- Bexar County
- election judges and workers
- voting by mail
- early voting
- voting booths
Texas education officials consider changing state’s sex education policy for first time in 23 years.
Key Terms
- political culture
- Texas State Board of Education
- state’s health education standards
- Republican-dominated board
- Texan Freedom Network
- federal data
Saturday, June 27, 2020
From Lawfare
Some random stories involving governing institutions.
These are useful for review.
- D.C. Circuit Orders District Court Judge to Drop Flynn Case.
- Trump Broke Law by Using Military Funding for Border Wall, Ninth Circuit Rules.
- House Homeland Security Committee Holds Hearing on the Islamic State and Al Qaeda.
- Justice Department Attorneys Claim Political Interference in Prosecutorial Decisions.
- House Judiciary Hearing on Political Interference at the Department of Justice.
These are useful for review.
- D.C. Circuit Orders District Court Judge to Drop Flynn Case.
- Trump Broke Law by Using Military Funding for Border Wall, Ninth Circuit Rules.
- House Homeland Security Committee Holds Hearing on the Islamic State and Al Qaeda.
- Justice Department Attorneys Claim Political Interference in Prosecutorial Decisions.
- House Judiciary Hearing on Political Interference at the Department of Justice.
Anglo-Powhatan Wars | 3 Minute History
The first of many conflicts with native populations in the new world.
When India And Communist China Became Enemies | Mao's Cold War | Timeline
This is timely since these guys might be going to war.
Friday, June 26, 2020
China's Geography Problem
A look at contemporary geopolitics.
Much a nation's foreign policy is conditioned by geography, this includes the US.
Wednesday, June 24, 2020
Education is not a fundamental right in the U.S. Constitution
So said the U.S. Supreme Court in 1973.
- Click here for Oyez.
- Click here for Wikipedia.
- Click here for TSHA.
- Click here for Oyez.
- Click here for Wikipedia.
- Click here for TSHA.
The foundation of qualified immunity: Harlow v. Fitzgerald
For more on the 1982 Supreme Court case:
- Wikipedia.
In an 8 to 1 decision, the court held that government officials other than the president were generally entitled to qualified immunity. An official can obtain absolute immunity, but must "first show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He must then demonstrate that he was discharging the protected function when performing the act for which liability is asserted."
Despite its immediate application to White House aides in the case at bar, the case is regarded as most important for its revision of the qualified immunity standard that is applicable to government actors more generally. The Court held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
- Wikipedia.
In an 8 to 1 decision, the court held that government officials other than the president were generally entitled to qualified immunity. An official can obtain absolute immunity, but must "first show that the responsibilities of his office embraced a function so sensitive as to require a total shield from liability. He must then demonstrate that he was discharging the protected function when performing the act for which liability is asserted."
Despite its immediate application to White House aides in the case at bar, the case is regarded as most important for its revision of the qualified immunity standard that is applicable to government actors more generally. The Court held that "government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."
From the Archives: Texas Supreme Court Rules School Funding System is Constitutional
For our look at the controversy over public school funding in Texas.
- Click here for the article.
The Texas Supreme Court on Friday issued a ruling upholding the state’s public school funding system as constitutional, while also urging state lawmakers to implement "transformational, top-to-bottom reforms that amount to more than Band-Aid on top of Band-Aid."
But without a court order directing the Legislature to fix specific provisions in the system, school groups worry that lawmakers will either do nothing or something outside the box.
“Our Byzantine school funding ‘system’ is undeniably imperfect, with immense room for improvement. But it satisfies minimum constitutional requirements,” Justice Don Willett wrote in the court’s 100-page opinion, which asserts that the court’s “lenient standard of review in this policy-laden area counsels modesty.”
There were no dissenting opinions; Justices Eva Guzman and Jeff Boyd delivered concurring ones.
"Good enough now ... does not mean that the system is good or that it will continue to be enough," Guzman wrote. "Shortfalls in both resources and performance persist in innumerable respects, and a perilously large number of students is in danger of falling further behind."
- Click here for the article.
The Texas Supreme Court on Friday issued a ruling upholding the state’s public school funding system as constitutional, while also urging state lawmakers to implement "transformational, top-to-bottom reforms that amount to more than Band-Aid on top of Band-Aid."
But without a court order directing the Legislature to fix specific provisions in the system, school groups worry that lawmakers will either do nothing or something outside the box.
“Our Byzantine school funding ‘system’ is undeniably imperfect, with immense room for improvement. But it satisfies minimum constitutional requirements,” Justice Don Willett wrote in the court’s 100-page opinion, which asserts that the court’s “lenient standard of review in this policy-laden area counsels modesty.”
There were no dissenting opinions; Justices Eva Guzman and Jeff Boyd delivered concurring ones.
"Good enough now ... does not mean that the system is good or that it will continue to be enough," Guzman wrote. "Shortfalls in both resources and performance persist in innumerable respects, and a perilously large number of students is in danger of falling further behind."
Tuesday, June 23, 2020
From Forbes: Colorado Passes Landmark Law Against Qualified Immunity, Creates New Way To Protect Civil Rights
Mostly commentary, but still useful.
- Click here for the article.
In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.
Ever since Congress enacted the Civil Rights Act of 1871 to combat the Ku Klux Klan, people who have had their rights violated by local and state government officials could sue them for damages in federal court. But in 1982, the U.S. Supreme Court created qualified immunity, which shields officers from any legal liability, unless the rights they violated were “clearly established.” Thanks to qualified immunity, countless victims have been unable to vindicate their civil rights in federal court.
- Click here for the article.
In a fitting tribute to Juneteenth, Colorado Gov. Jared Polis signed a sweeping law enforcement reform bill on Friday that marks one of the most significant changes to policing amidst the protests over the brutal killing of George Floyd. Among the new law’s many reforms, which include banning chokeholds and the use of deadly force for nonviolent offenses, the Enhance Law Enforcement Integrity Act (SB20-217) allows plaintiffs to bypass “qualified immunity,” one of the biggest barriers to holding government agents accountable in court.
Ever since Congress enacted the Civil Rights Act of 1871 to combat the Ku Klux Klan, people who have had their rights violated by local and state government officials could sue them for damages in federal court. But in 1982, the U.S. Supreme Court created qualified immunity, which shields officers from any legal liability, unless the rights they violated were “clearly established.” Thanks to qualified immunity, countless victims have been unable to vindicate their civil rights in federal court.
From NPR: Supreme Court Hands Federal Worker Major Win In Age Discrimination Case
For a look at civil rights and the Supreme Court.
- Click here for the article.
The U.S. Supreme Court sided with older federal workers on Monday, making it easier for those over 40 to sue for age discrimination.
The 8-to-1 ruling rejected a Trump administration position that sought to dramatically limit the legal recourse available to federal workers.
Justice Samuel Alito, writing for the majority, noted that federal law "demands that personnel actions be untainted by any consideration of age." So if age were a factor here as alleged, the process was not free from discrimination. But, he said, the relief available to individuals who have been discriminated against may be different, depending on the circumstances. If age discrimination was one of the factors during the process, but not the only factor, then employees may not be entitled to damages and back pay, but they are entitled to prospective relief, like eligibility for a promotional exam, or for a job promotion.
The case was brought by Noris Babb, a clinical pharmacist who worked for the Veterans Affairs Medical Center in Bay Pines, Fla., for 16 years. In that time, she qualified to practice disease management, saw patients and prescribed medication without consulting a physician. And she had received consistently high marks for performance, according to her lawyers.
- Click here for the article.
The U.S. Supreme Court sided with older federal workers on Monday, making it easier for those over 40 to sue for age discrimination.
The 8-to-1 ruling rejected a Trump administration position that sought to dramatically limit the legal recourse available to federal workers.
Justice Samuel Alito, writing for the majority, noted that federal law "demands that personnel actions be untainted by any consideration of age." So if age were a factor here as alleged, the process was not free from discrimination. But, he said, the relief available to individuals who have been discriminated against may be different, depending on the circumstances. If age discrimination was one of the factors during the process, but not the only factor, then employees may not be entitled to damages and back pay, but they are entitled to prospective relief, like eligibility for a promotional exam, or for a job promotion.
The case was brought by Noris Babb, a clinical pharmacist who worked for the Veterans Affairs Medical Center in Bay Pines, Fla., for 16 years. In that time, she qualified to practice disease management, saw patients and prescribed medication without consulting a physician. And she had received consistently high marks for performance, according to her lawyers.
Monday, June 22, 2020
Criminal Justice Reform in Texas
Each from the Texas Tribune:
- After defeats in 2019, a group of Texas lawmakers is teaming up to push criminal justice reform.
- Texas House approves bail reform bill after removing amendment that could keep more poor people in jail.
- Texas Lt. Gov. Dan Patrick says Senate won't pass bill to lower penalties for marijuana.
- Despite bipartisan support, Texas bill tackling intellectual disability in death penalty cases fails.
- After defeats in 2019, a group of Texas lawmakers is teaming up to push criminal justice reform.
- Texas House approves bail reform bill after removing amendment that could keep more poor people in jail.
- Texas Lt. Gov. Dan Patrick says Senate won't pass bill to lower penalties for marijuana.
- Despite bipartisan support, Texas bill tackling intellectual disability in death penalty cases fails.
From The First Amendment Encyclopedia: City of Houston v Hill
Its OK to mouth off to the police.
- Click here for the story.
In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
Hill was arrested under law prohibiting verbal abuse of police
Houston police had arrested Raymond Wayne Hill for yelling “Why don’t you pick on somebody your own size?” when a police officer arrested a friend of his.
The police then arrested Hill for violating an ordinance determining that “It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.”
After his acquittal in municipal court, Hill filed a federal lawsuit seeking a declaratory judgment of the Houston law as unconstitutional. A federal district court rejected his claim, but a federal appeals court reversed, finding the ordinance to be unconstitutionally overbroad and criminalizing a substantial range of protected speech and conduct.
Court invalidated ordinance on First Amendment grounds
On appeal, the Supreme Court invalidated the ordinance by an 8-1 vote.
Justice William J. Brennan Jr., who authored the Court’s opinion, wrote that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”
He added that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” He reasoned that the ordinance could not be read only to prohibit disorderly conduct or fighting words.
- Click here for the decision.
- Click here for the story.
In City of Houston v. Hill, 482 U.S. 451 (1987), the Supreme Court found a city ordinance prohibiting verbal abuse of police officers to be unconstitutionally overbroad and a criminalization of protected speech.
Hill was arrested under law prohibiting verbal abuse of police
Houston police had arrested Raymond Wayne Hill for yelling “Why don’t you pick on somebody your own size?” when a police officer arrested a friend of his.
The police then arrested Hill for violating an ordinance determining that “It shall be unlawful for any person to assault, strike or in any manner oppose, molest, abuse or interrupt any policeman in the execution of his duty, or any person summoned to aid in making an arrest.”
After his acquittal in municipal court, Hill filed a federal lawsuit seeking a declaratory judgment of the Houston law as unconstitutional. A federal district court rejected his claim, but a federal appeals court reversed, finding the ordinance to be unconstitutionally overbroad and criminalizing a substantial range of protected speech and conduct.
Court invalidated ordinance on First Amendment grounds
On appeal, the Supreme Court invalidated the ordinance by an 8-1 vote.
Justice William J. Brennan Jr., who authored the Court’s opinion, wrote that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.”
He added that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” He reasoned that the ordinance could not be read only to prohibit disorderly conduct or fighting words.
- Click here for the decision.
From the Texas Tribune: Houston officials increase police budget as Dallas and Austin officials consider decreases in wake of police brutality protests
A look ahead at criminal justice policy, and a look back at local governments.
- Click here for the article.
As nationwide calls for defunding law enforcement grow in the wake of historic protests against police brutality, Houston officials increased their spending on police Wednesday.
But Dallas and Austin officials appear supportive of pulling money from their police department budgets and reallocating that money toward community investments.
The Houston City Council increased its police budget Wednesday from $945 million last year to $964 million for the upcoming fiscal year. That came after the failure of council member Letitia Plummer's amendment that aimed to redistribute some of the money to other areas, including mental health programs and loans for businesses owned by people of color. Wednesday's vote came after Mayor Sylvester Turner announced that he will be launching a task force focusing on police accountability and transparency.
"We started the conversation on police reform. Not one of my amendments passed but I know that I stand on the right side of history," Plummer said on Twitter. "That is the most important take away. I answer to the people who elected me. I will be holding the task force accountable."
Bill Kelly, director of government relations for Turner, said that the increase in police funding was mainly related to "fixed costs," including pensions and pending pay rises. He also added that part of the police funding goes to its already existing mental health program, which includes outreach teams and training for officers.
"Houston has invested a considerable amount in better service for our population that has had to turn to law enforcement for public health crisis," King said in an email.
- Click here for the article.
As nationwide calls for defunding law enforcement grow in the wake of historic protests against police brutality, Houston officials increased their spending on police Wednesday.
But Dallas and Austin officials appear supportive of pulling money from their police department budgets and reallocating that money toward community investments.
The Houston City Council increased its police budget Wednesday from $945 million last year to $964 million for the upcoming fiscal year. That came after the failure of council member Letitia Plummer's amendment that aimed to redistribute some of the money to other areas, including mental health programs and loans for businesses owned by people of color. Wednesday's vote came after Mayor Sylvester Turner announced that he will be launching a task force focusing on police accountability and transparency.
"We started the conversation on police reform. Not one of my amendments passed but I know that I stand on the right side of history," Plummer said on Twitter. "That is the most important take away. I answer to the people who elected me. I will be holding the task force accountable."
Bill Kelly, director of government relations for Turner, said that the increase in police funding was mainly related to "fixed costs," including pensions and pending pay rises. He also added that part of the police funding goes to its already existing mental health program, which includes outreach teams and training for officers.
"Houston has invested a considerable amount in better service for our population that has had to turn to law enforcement for public health crisis," King said in an email.
From the Texas Tribune: Gov. Greg Abbott says he supports making to-go alcohol sales permanent in Texas
An example of policymaking - how do things become law? In this case, the quarantine.
- Click here for the article.
During shutdowns due to the COVID-19 pandemic, Texans have been able to purchase alcoholic beverages to go from restaurants, including liquor. Texas Gov. Greg Abbott wants to make the change permanent.
Abbott originally signed a waiver March 18 allowing to-go alcohol sales, in an effort to support struggling restaurants after they closed their dining areas. The waiver was originally to last until May 1, but it was extended indefinitely. Abbott teased that this change could be permanent, tweeting at the time, “From what I hear from Texans, we may just let this keep on going forever.”
Abbott again tweeted late Saturday that he supports the idea of extending his temporary waiver. State Rep. Tan Parker, R-Flower Mound, replied, saying that he will file a bill in the upcoming legislative session to make it happen, also advocating to allow restaurants to continue selling bulk retail food items to go.
The 87th Texas legislative session begins Jan. 12, 2021.
- Click here for the article.
During shutdowns due to the COVID-19 pandemic, Texans have been able to purchase alcoholic beverages to go from restaurants, including liquor. Texas Gov. Greg Abbott wants to make the change permanent.
Abbott originally signed a waiver March 18 allowing to-go alcohol sales, in an effort to support struggling restaurants after they closed their dining areas. The waiver was originally to last until May 1, but it was extended indefinitely. Abbott teased that this change could be permanent, tweeting at the time, “From what I hear from Texans, we may just let this keep on going forever.”
Abbott again tweeted late Saturday that he supports the idea of extending his temporary waiver. State Rep. Tan Parker, R-Flower Mound, replied, saying that he will file a bill in the upcoming legislative session to make it happen, also advocating to allow restaurants to continue selling bulk retail food items to go.
The 87th Texas legislative session begins Jan. 12, 2021.
From the Texas Tribune: U.S. Supreme Court blocks elimination of DACA, protecting more than 100,000 Texans from immediate threat of deportation
More on federalism and immigration policy.
- Click here for the article.
The U.S. Supreme Court on Thursday ruled against the Trump administration's efforts to end the Obama-era Deferred Action for Childhood Arrivals program, declaring in a 5-to-4 opinion that the 2012 initiative was inappropriately terminated by the Trump administration.
The court's decision comes nearly three years after Trump announced he was terminating the policy, known as DACA, that has protected more than 130,000 Texans from deportation since its inception, the second-highest total of any state after California. As of December 2019, there were about 107,000 Texans with DACA permits, according to federal statistics.
Trump's reason for ending the program echoed what many Republicans, including some in Texas, said when it was enacted: immigration law is under the purview of the U.S. Congress and that former President Barack Obama exceeded his authority when he initially enacted DACA.
The program has provided a legal shield to hundreds of thousands of immigrants who were brought into the U.S. as children; it was open to undocumented immigrants who came to the country before they were 16 and who were 30 or younger as of June 2012. The program gave them a renewable, two-year work permit and a reprieve from deportation.
- Click here for the article.
The U.S. Supreme Court on Thursday ruled against the Trump administration's efforts to end the Obama-era Deferred Action for Childhood Arrivals program, declaring in a 5-to-4 opinion that the 2012 initiative was inappropriately terminated by the Trump administration.
The court's decision comes nearly three years after Trump announced he was terminating the policy, known as DACA, that has protected more than 130,000 Texans from deportation since its inception, the second-highest total of any state after California. As of December 2019, there were about 107,000 Texans with DACA permits, according to federal statistics.
Trump's reason for ending the program echoed what many Republicans, including some in Texas, said when it was enacted: immigration law is under the purview of the U.S. Congress and that former President Barack Obama exceeded his authority when he initially enacted DACA.
The program has provided a legal shield to hundreds of thousands of immigrants who were brought into the U.S. as children; it was open to undocumented immigrants who came to the country before they were 16 and who were 30 or younger as of June 2012. The program gave them a renewable, two-year work permit and a reprieve from deportation.
From the Texas Tribune: In Zapata County, local government is fighting the federal government to stop one piece of the border wall
More federalism in action - this also touches on immigration policy and imminent domain.
- Click here for the article.
The Trump administration’s ambitious, election-year goal to build hundreds of miles of barriers on the southern border could face a roadblock in one South Texas county.
The commissioners court in Zapata County, a rural community that sits between Laredo and the Rio Grande Valley, is digging in and challenging the U.S. Department of Homeland Security in federal court over the government’s attempt to gain access to a small tract of county-owned land. The access would allow federal officials the right to survey property for possible future construction projects and is considered a procedural first step.
But that’s not how the county sees it, said attorney Carlos Flores, who is representing the county.
“For the [Trump administration] it’s just a routine matter. But the county has taken the position that they are not going to approach it that way,” he said. “Zapata County is not looking to reach an agreement, but rather challenge the authority of the federal government to do this."
The action in Zapata comes during a busy eight months in Texas for an administration trying to make good on the president's campaign promise to build a "big, beautiful" wall on the border. In November, the administration moved ahead with construction of new barriers in the Rio Grande Valley. That was followed by notices to landowners in Webb County telling them that DHS officials were moving ahead with surveys on private land.
And last month, the administration announced it was waiving several environmental policies to help fast track construction of about 70 miles of new barrier from north of Laredo to Zapata County.
Now Zapata County is trying to protect a roughly four-acre tract of land that’s home to a bird sanctuary in the town of San Ygnacio, which lies about 35 miles south of Laredo.
- Click here for the article.
The Trump administration’s ambitious, election-year goal to build hundreds of miles of barriers on the southern border could face a roadblock in one South Texas county.
The commissioners court in Zapata County, a rural community that sits between Laredo and the Rio Grande Valley, is digging in and challenging the U.S. Department of Homeland Security in federal court over the government’s attempt to gain access to a small tract of county-owned land. The access would allow federal officials the right to survey property for possible future construction projects and is considered a procedural first step.
But that’s not how the county sees it, said attorney Carlos Flores, who is representing the county.
“For the [Trump administration] it’s just a routine matter. But the county has taken the position that they are not going to approach it that way,” he said. “Zapata County is not looking to reach an agreement, but rather challenge the authority of the federal government to do this."
The action in Zapata comes during a busy eight months in Texas for an administration trying to make good on the president's campaign promise to build a "big, beautiful" wall on the border. In November, the administration moved ahead with construction of new barriers in the Rio Grande Valley. That was followed by notices to landowners in Webb County telling them that DHS officials were moving ahead with surveys on private land.
And last month, the administration announced it was waiving several environmental policies to help fast track construction of about 70 miles of new barrier from north of Laredo to Zapata County.
Now Zapata County is trying to protect a roughly four-acre tract of land that’s home to a bird sanctuary in the town of San Ygnacio, which lies about 35 miles south of Laredo.
Thursday, June 18, 2020
From Lawfare: What Is Qualified Immunity, and What Does It Have to Do With Police Reform?
Revising qualified immunity is one of the proposed police reforms.
- Click here for the article.
Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for money damages when they violate their constitutional rights. Section 1983 applies to state officials, while Bivens applies to federal officials. Because damages are often the only available remedy after a constitutional violation has occurred, suits for damages can be a crucial means of vindicating constitutional rights. When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to government actors when officials were sued for common law torts during the 19th century. The basic idea is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has called into question the Supreme Court’s account of the government immunities available in 1871, whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship between the history and the modern doctrine.
- Click here for the article.
Qualified immunity is a judicially created doctrine that shields government officials from being held personally liable for constitutional violations—like the right to be free from excessive police force—for money damages under federal law so long as the officials did not violate “clearly established” law. Both 42 U.S.C. § 1983—a statute originally passed to assist the government in combating Ku Klux Klan violence in the South after the Civil War—and the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) allow individuals to sue government officials for money damages when they violate their constitutional rights. Section 1983 applies to state officials, while Bivens applies to federal officials. Because damages are often the only available remedy after a constitutional violation has occurred, suits for damages can be a crucial means of vindicating constitutional rights. When government officials are sued, qualified immunity functions as an affirmative defense they can raise, barring damages even if they committed unlawful acts. (Qualified immunity is not, however, a defense to claims for injunctive relief.)
The Supreme Court has generally traced qualified immunity back to the immunities available to government actors when officials were sued for common law torts during the 19th century. The basic idea is that when Congress enacted § 1983 in 1871, it incorporated the then-existing immunities into the statute, which the Supreme Court has also extended to Bivens suits. However, recent scholarship has called into question the Supreme Court’s account of the government immunities available in 1871, whether Congress intended them to be defenses to § 1983 claims, and the coherence of the relationship between the history and the modern doctrine.
Wednesday, June 17, 2020
From Politico: Trump signs executive order incentivizing police reforms
Executive orders are discussed in the chapter on the presidency.
- Click here for the article.
- Click here for the order itself.
- Click here for the article.
- Click here for the order itself.
From the Guardian: Trump administration sues to block publication of John Bolton's book
An attempt at prior restraint, which we covered in Chapter 4.
- Click here for the article.
In a statement, Simon & Schuster said the lawsuit “is nothing more than the latest in a long-running series of efforts by the Administration to quash publication of a book it deems unflattering to the president”.
The lawsuit alleges that Bolton’s manuscript is “rife with classified information” and alleges that Bolton backed out of a White House vetting process for the book.
The justice department is requesting that a federal court order Bolton to “instruct or request” that his publisher further delay publication of the book to allow for a completion of the national security review process and to “retrieve and dispose” of existing copies in a manner acceptable to the government. The justice department also is asking a federal court to grant it the rights to all proceeds Bolton earns from the publication of the book.
Bolton’s lawyer Charles Cooper has said that the administration’s efforts to block publication are “a transparent attempt to use national security as a pretext to censor Mr Bolton, in violation of his constitutional rights to speak on matters of the utmost public import”. Cooper has said Bolton worked for months with classification specialists to avoid releasing classified material.
The widely anticipated book is set to make explosive claims about the Trump White House, including that the president has committed “Ukraine-like transgressions” across his entire foreign policy.
- Click here for the article.
In a statement, Simon & Schuster said the lawsuit “is nothing more than the latest in a long-running series of efforts by the Administration to quash publication of a book it deems unflattering to the president”.
The lawsuit alleges that Bolton’s manuscript is “rife with classified information” and alleges that Bolton backed out of a White House vetting process for the book.
The justice department is requesting that a federal court order Bolton to “instruct or request” that his publisher further delay publication of the book to allow for a completion of the national security review process and to “retrieve and dispose” of existing copies in a manner acceptable to the government. The justice department also is asking a federal court to grant it the rights to all proceeds Bolton earns from the publication of the book.
Bolton’s lawyer Charles Cooper has said that the administration’s efforts to block publication are “a transparent attempt to use national security as a pretext to censor Mr Bolton, in violation of his constitutional rights to speak on matters of the utmost public import”. Cooper has said Bolton worked for months with classification specialists to avoid releasing classified material.
The widely anticipated book is set to make explosive claims about the Trump White House, including that the president has committed “Ukraine-like transgressions” across his entire foreign policy.
From KHOU 11: More Houston neighborhoods have old racist deed restrictions
A blast from the (maybe) past:
- Click here for it.
Momentum is growing in one of Houston’s oldest neighborhoods to change racist deed restrictions that say only people of Caucasian race can live in or own a home.
“There’s anger, there’s hurt, there’s outrage," said Sally Walden, an Oak Forest resident and realtor.
She's been doing her own digging into Houston's past.
“I want to say I found it in 10 to 12 (neighborhoods) so far,” Walden said.
The neighborhoods, like Oak Forest, were all established before the Fair Housing Act of 1968. The language is unenforceable, but neighbors are now organizing to get it off the books.
Gregory Cagle is the author of Texas Homeowners Association Law. He says changes to deed restrictions can not be changed by a simple vote of the HOA board. The change has to be agreed on by the property owners. Cagle says it can be initiated by the HOA, but that's not the only way.
"It can also be initiated by the property owners without the HOA," he said.
Cagle is also an attorney and founding partner at the law firm Cagle Pugh.
“There have been some efforts by the Texas legislature to create amendment procedures where non exist or make it easier to amend those documents where it was historically very difficult," he said.
In 2011, Texas lawmakers passed a bill saying 67 percent of owners need to agree to change deed restrictions if there is mandatory membership.
If there's not mandatory membership, The Texas Property Code requires 75 percent of owners to agree to the change.
- Click here for it.
Momentum is growing in one of Houston’s oldest neighborhoods to change racist deed restrictions that say only people of Caucasian race can live in or own a home.
“There’s anger, there’s hurt, there’s outrage," said Sally Walden, an Oak Forest resident and realtor.
She's been doing her own digging into Houston's past.
“I want to say I found it in 10 to 12 (neighborhoods) so far,” Walden said.
The neighborhoods, like Oak Forest, were all established before the Fair Housing Act of 1968. The language is unenforceable, but neighbors are now organizing to get it off the books.
Gregory Cagle is the author of Texas Homeowners Association Law. He says changes to deed restrictions can not be changed by a simple vote of the HOA board. The change has to be agreed on by the property owners. Cagle says it can be initiated by the HOA, but that's not the only way.
"It can also be initiated by the property owners without the HOA," he said.
Cagle is also an attorney and founding partner at the law firm Cagle Pugh.
“There have been some efforts by the Texas legislature to create amendment procedures where non exist or make it easier to amend those documents where it was historically very difficult," he said.
In 2011, Texas lawmakers passed a bill saying 67 percent of owners need to agree to change deed restrictions if there is mandatory membership.
If there's not mandatory membership, The Texas Property Code requires 75 percent of owners to agree to the change.
Two from the Texas Tribune: Both involving the federal courts.
For 2306, think about judicial federalism.
- Texas Democrats ask U.S. Supreme Court to weigh in on voting by mail.
After a series of losses in state and federal courts, Texas Democrats are looking to the U.S. Supreme Court to expand voting by mail during the coronavirus pandemic.
The Texas Democratic Party asked the high court Tuesday to immediately lift the 5th U.S. Circuit Court of Appeals' block on a sweeping ruling that would allow all Texas voters who are seeking to avoid becoming infected at in-person polling places to instead vote by mail. Early voting for the July 14 primary runoff election begins June 29.
The fight to expand who can qualify for a ballot they can fill at home and mail in has been on a trajectory toward the Supreme Court since Texas Democrats, civil rights groups and individual voters first challenged the state's rules months ago when the new coronavirus reached Texas. Under existing law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.
- U.S. Supreme Court halts Texas execution of Ruben Gutierrez during legal fight over religious advisers' access to death chamber.
Last week, a federal district judge stayed, or stopped, Gutierrez's execution while she reviewed his latest appeal. In it, Gutierrez said the Texas Department of Criminal Justice's new policy banning religious advisers in the execution room with inmates violated his religious freedom. Last year, TDCJ changed its policy that allowed prison chaplains in the chamber after the Supreme Court stopped another execution after a claim of religious discrimination. That inmate was Buddhist and wanted an adviser of his faith, but TDCJ only has Christian and Muslim clerics on staff and said outside advisers could not enter the room for security reasons.
On Friday, the U.S. 5th Circuit Court of Appeals tossed the district judge's stay, saying Gutierrez was unlikely to succeed on the appeal. But the nation's high court again stopped the execution just before 5 p.m. Tuesday, and told the district judge to swiftly order a ruling in the appeal.
"The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution," the Tuesday order said.
The order said the stay would be lifted if the federal judge rejects Gutierrez's appeal, but if that does not occur Tuesday, the execution would need to be reset at least 90 days in the future. One of Gutierrez's lawyers told The Texas Tribune he did not expect a ruling from the district court Tuesday night.
- Texas Democrats ask U.S. Supreme Court to weigh in on voting by mail.
After a series of losses in state and federal courts, Texas Democrats are looking to the U.S. Supreme Court to expand voting by mail during the coronavirus pandemic.
The Texas Democratic Party asked the high court Tuesday to immediately lift the 5th U.S. Circuit Court of Appeals' block on a sweeping ruling that would allow all Texas voters who are seeking to avoid becoming infected at in-person polling places to instead vote by mail. Early voting for the July 14 primary runoff election begins June 29.
The fight to expand who can qualify for a ballot they can fill at home and mail in has been on a trajectory toward the Supreme Court since Texas Democrats, civil rights groups and individual voters first challenged the state's rules months ago when the new coronavirus reached Texas. Under existing law, mail-in ballots are available only if voters are 65 or older, cite a disability or illness, will be out of the county during the election period or are confined in jail.
- U.S. Supreme Court halts Texas execution of Ruben Gutierrez during legal fight over religious advisers' access to death chamber.
Last week, a federal district judge stayed, or stopped, Gutierrez's execution while she reviewed his latest appeal. In it, Gutierrez said the Texas Department of Criminal Justice's new policy banning religious advisers in the execution room with inmates violated his religious freedom. Last year, TDCJ changed its policy that allowed prison chaplains in the chamber after the Supreme Court stopped another execution after a claim of religious discrimination. That inmate was Buddhist and wanted an adviser of his faith, but TDCJ only has Christian and Muslim clerics on staff and said outside advisers could not enter the room for security reasons.
On Friday, the U.S. 5th Circuit Court of Appeals tossed the district judge's stay, saying Gutierrez was unlikely to succeed on the appeal. But the nation's high court again stopped the execution just before 5 p.m. Tuesday, and told the district judge to swiftly order a ruling in the appeal.
"The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution," the Tuesday order said.
The order said the stay would be lifted if the federal judge rejects Gutierrez's appeal, but if that does not occur Tuesday, the execution would need to be reset at least 90 days in the future. One of Gutierrez's lawyers told The Texas Tribune he did not expect a ruling from the district court Tuesday night.
From the City of Houston's 2017 Legislative report: The Sarah Bland Act
More on the act, this time from the perspective of cities.
- Click here for the report.
For the entire report, click here.
For 2019's report, click here.
- Click here for the report.
For the entire report, click here.
For 2019's report, click here.
From the Texas Association of Counties: SB 1849 "Sandra Bland Act" Implementation Timeline
For our look at policy implementation, in addition to local governments, criminal juctice, etc . . .
- Click here for the article.
For more on TAC's work with the legislature, click here.
- Click here for the article.
For more on TAC's work with the legislature, click here.
From the Texas Tribune: The Texas lawmakers who led the Sandra Bland Act are pushing to reinstate the police reforms stripped from their original bill
Consider this to be part of the policy adoption formation process.
- Click here for the article.
In 2017, the version of the bill that made it into law included jail reforms like diverting inmates with mental health and substance abuse issues into treatment and mandating that independent law enforcement agencies investigate jail deaths.
But the original version also would have required officer training on racial profiling and implicit bias, suspension for any officer found to have repeatedly engaged in racial profiling, and limiting arrests for offenses that at most would end in a fine with no jail time. Those measures stalled the bill’s progress because of opposition from law enforcement groups and lawmakers concerned about unfunded mandates.
After Whitmire removed much of the language related to police encounters —though deescalation training remained — the bill passed both chambers. The version of the Sandra Bland Act signed into law by Gov. Greg Abbott had become mostly a mental health and jail reform bill, and it lost support from Bland’s family.
A second attempt to pass a bill to limit nonjailable offenses in 2019 as a follow-up to the Sandra Bland Act was again killed after opposition by one of Texas’ largest police unions, confusion and procedural snafus in the House, and an apparent disinterest among Senate leadership.
- Click here for the article.
In 2017, the version of the bill that made it into law included jail reforms like diverting inmates with mental health and substance abuse issues into treatment and mandating that independent law enforcement agencies investigate jail deaths.
But the original version also would have required officer training on racial profiling and implicit bias, suspension for any officer found to have repeatedly engaged in racial profiling, and limiting arrests for offenses that at most would end in a fine with no jail time. Those measures stalled the bill’s progress because of opposition from law enforcement groups and lawmakers concerned about unfunded mandates.
After Whitmire removed much of the language related to police encounters —though deescalation training remained — the bill passed both chambers. The version of the Sandra Bland Act signed into law by Gov. Greg Abbott had become mostly a mental health and jail reform bill, and it lost support from Bland’s family.
A second attempt to pass a bill to limit nonjailable offenses in 2019 as a follow-up to the Sandra Bland Act was again killed after opposition by one of Texas’ largest police unions, confusion and procedural snafus in the House, and an apparent disinterest among Senate leadership.
Tuesday, June 16, 2020
The conclusion in Andrus
Let's unpack this last paragraph in the per curiam opinion in Andrus v Texas
We conclude that Andrus has shown deficient performance under the first prong of Strickland, and that there is a significant question whether the Court of Criminal Appeals properly considered prejudice under the second prong of Strickland. We thus grant Andrus’ petition for a writ of certiorari and his motion for leave to proceed in forma pauperis, vacate the judgment of the Texas Court of Criminal Appeals, and remand the case for the court to address the prejudice prong of Strickland in a manner not inconsistent with this opinion.
- prongs: A prong would be one point in a statute or legal theory that must be proved in conjunction with other prongs.
(as far as I can tell, these are the two prongs at issue: To show deficiency, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” And to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)
- writ of certiorari: A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certiorari comes from Law Latin and means "to be more fully informed." A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.
- in forma pauperis: A Latin term meaning "in the manner of a pauper." Allowing a poor person to bring suit without liability for the costs of the suit.
- vacate: to render inoperative; deprive of validity; void; annul:
- remand: to send back.
We conclude that Andrus has shown deficient performance under the first prong of Strickland, and that there is a significant question whether the Court of Criminal Appeals properly considered prejudice under the second prong of Strickland. We thus grant Andrus’ petition for a writ of certiorari and his motion for leave to proceed in forma pauperis, vacate the judgment of the Texas Court of Criminal Appeals, and remand the case for the court to address the prejudice prong of Strickland in a manner not inconsistent with this opinion.
- prongs: A prong would be one point in a statute or legal theory that must be proved in conjunction with other prongs.
(as far as I can tell, these are the two prongs at issue: To show deficiency, a defendant must show that “counsel’s representation fell below an objective standard of reasonableness.” And to establish prejudice, a defendant must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”)
- writ of certiorari: A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certiorari comes from Law Latin and means "to be more fully informed." A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it.
- in forma pauperis: A Latin term meaning "in the manner of a pauper." Allowing a poor person to bring suit without liability for the costs of the suit.
- vacate: to render inoperative; deprive of validity; void; annul:
- remand: to send back.
TERENCE TRAMAINE ANDRUS v. TEXAS
As is not unusual, Texas is criticized by the U.S. Supreme Court for not providing adequate counsel for a poor criminal defendant. This violates the defendants 6th Amendment right to counsel.
- Click here for the per curiam decision.
- Coverage in the Texas Tribune.
- ScotusBlog.
- Law and Crime.
The case mentions Strickland v Washington as precedence.
- Click here for the per curiam decision.
- Coverage in the Texas Tribune.
- ScotusBlog.
- Law and Crime.
The case mentions Strickland v Washington as precedence.
2 U.S. Code Title 2—THE CONGRESS
CHAPTER 1—ELECTION OF SENATORS AND REPRESENTATIVES (§§ 1 – 9)
CHAPTER 2—ORGANIZATION OF CONGRESS (§§ – 30b)
CHAPTER 3—COMPENSATION AND ALLOWANCES OF MEMBERS (§§ 31 – 59h)
CHAPTER 4—OFFICERS AND EMPLOYEES OF SENATE AND HOUSE OF REPRESENTATIVES (§§ 60 – 130l)
CHAPTER 5—LIBRARY OF CONGRESS (§§ 131 – 185)
CHAPTER 6—CONGRESSIONAL AND COMMITTEE PROCEDURE; INVESTIGATIONS (§§ 190 – 199)
CHAPTER 7—CONTESTED ELECTIONS (§ 201)
CHAPTER 8—FEDERAL CORRUPT PRACTICES (§§ 241 – 252)
CHAPTER 8A—REGULATION OF LOBBYING (§ 261)
CHAPTER 9—OFFICE OF LEGISLATIVE COUNSEL (§§ 271 – 282e)
CHAPTER 9A—OFFICE OF LAW REVISION COUNSEL (§§ 285 – 285g)
CHAPTER 9B—LEGISLATIVE CLASSIFICATION OFFICE (§ 286)
CHAPTER 9C—OFFICE OF PARLIAMENTARIAN OF HOUSE OF REPRESENTATIVES (§§ 287 – 287d)
CHAPTER 9D—OFFICE OF SENATE LEGAL COUNSEL (§§ 288 – 288n)
CHAPTER 10—CLASSIFICATION OF EMPLOYEES OF HOUSE OF REPRESENTATIVES (§§ 291 – 303)
CHAPTER 10A—PAYROLL ADMINISTRATION IN HOUSE OF REPRESENTATIVES (§§ 331 – 336)
CHAPTER 11—CITIZENS’ COMMISSION ON PUBLIC SERVICE AND COMPENSATION (§§ 351 – 364)
CHAPTER 12—CONTESTED ELECTIONS (§§ 381 – 396)
CHAPTER 13—JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS (§ 411)
CHAPTER 14—FEDERAL ELECTION CAMPAIGNS (§§ 431 – 457)
CHAPTER 15—OFFICE OF TECHNOLOGY ASSESSMENT (§§ 471 – 481)
CHAPTER 16—CONGRESSIONAL MAILING STANDARDS (§§ 501 – 506)
CHAPTER 17—CONGRESSIONAL BUDGET OFFICE (§§ 601 – 613)
CHAPTER 17A—CONGRESSIONAL BUDGET AND FISCAL OPERATIONS (§§ 621 – 665)
CHAPTER 17B—IMPOUNDMENT CONTROL (Subchapters I – III)
CHAPTER 18—LEGISLATIVE PERSONNEL FINANCIAL DISCLOSURE REQUIREMENTS (§ 701)
CHAPTER 19—CONGRESSIONAL AWARD PROGRAM (§§ 801 – 811)
CHAPTER 19A—JOHN HEINZ COMPETITIVE EXCELLENCE AWARD (§ 831)
CHAPTER 20—EMERGENCY POWERS TO ELIMINATE BUDGET DEFICITS (§§ 900 – 922)
CHAPTER 20A—STATUTORY PAY-AS-YOU-GO (§§ 931 – 939)
CHAPTER 21—CIVIC ACHIEVEMENT AWARD PROGRAM IN HONOR OF OFFICE OF SPEAKER OF HOUSE OF REPRESENTATIVES (§ 1001)
CHAPTER 22—JOHN C. STENNIS CENTER FOR PUBLIC SERVICE TRAINING AND DEVELOPMENT (§§ 1101 – 1110)
CHAPTER 22A—OPEN WORLD LEADERSHIP CENTER (§ 1151)
CHAPTER 22B—HUNGER FELLOWSHIP PROGRAM (§ 1161)
CHAPTER 23—GOVERNMENT EMPLOYEE RIGHTS (§§ 1201 – 1223)
CHAPTER 24—CONGRESSIONAL ACCOUNTABILITY (§§ 1301 – 1438)
CHAPTER 25—UNFUNDED MANDATES REFORM (§§ 1501 – 1571)
CHAPTER 26—DISCLOSURE OF LOBBYING ACTIVITIES (§§ 1601 – 1614)
CHAPTER 27—SOUND RECORDING PRESERVATION BY THE LIBRARY OF CONGRESS (§§ 1701 – 1743)
CHAPTER 28—ARCHITECT OF THE CAPITOL (§§ 1801 – 1881d)
CHAPTER 29—CAPITOL POLICE (§§ 1901 – 1982)
CHAPTER 30—OPERATION AND MAINTENANCE OF CAPITOL COMPLEX (§§ 2001 – 2186)
CHAPTER 31—CAPITOL VISITOR CENTER (§§ 2201 – 2281)
CHAPTER 41—CONGRESSIONAL OFFICERS AND ADMINISTRATION (§§ 4101 – 4132)
CHAPTER 43—CONGRESSIONAL COMMITTEES (§§ 4301 – 4338)
CHAPTER 45—CONGRESSIONAL PAY AND BENEFITS (§§ 4501 – 4595)
CHAPTER 47—CONGRESSIONAL ETHICS (§§ 4701 – 4728)
CHAPTER 49—CONGRESSIONAL PAGES (§§ 4901 – 4931)
CHAPTER 51—HOUSE OF REPRESENTATIVES LEADERSHIP (§§ 5101 – 5162)
CHAPTER 53—HOUSE OF REPRESENTATIVES MEMBERS (§§ 5301 – 5352)
CHAPTER 55—HOUSE OF REPRESENTATIVES OFFICERS AND ADMINISTRATION (§§ 5501 – 5624)
CHAPTER 61—SENATE LEADERSHIP (§§ 6101 – 6160)
CHAPTER 63—SENATE MEMBERS (§§ 6301 – 6320)
CHAPTER 65—SENATE OFFICERS AND ADMINISTRATION (§§ 6501 – 6654)
From the Texas Constitution: Sec. 56. PROHIBITED LOCAL AND SPECIAL LAWS
A good look at the separation that exists between the local and state governments. These are the functions of local government that the state of Texas cannot, constitutionally, interfere with.
Sec. 56. PROHIBITED LOCAL AND SPECIAL LAWS. (a) The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing:
(1) the creation, extension or impairing of liens;
(2) regulating the affairs of counties, cities, towns, wards or school districts;
(3) changing the names of persons or places;
(4) changing the venue in civil or criminal cases;
(5) authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys;
(6) relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other State;
(7) vacating roads, town plats, streets or alleys;
(8) relating to cemeteries, grave-yards or public grounds not of the State;
(9) authorizing the adoption or legitimation of children;
(10) locating or changing county seats;
(11) incorporating cities, towns or villages, or changing their charters;
(12) for the opening and conducting of elections, or fixing or changing the places of voting;
(13) granting divorces;
(14) creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;
(15) changing the law of descent or succession;
(16) regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate;
(17) regulating the fees, or extending the powers and duties of aldermen, justices of the peace, magistrates or constables;
(18) regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;
(19) fixing the rate of interest;
(20) affecting the estates of minors, or persons under disability;
(21) remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;
(22) exempting property from taxation;
(23) regulating labor, trade, mining and manufacturing;
(24) declaring any named person of age;
(25) extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from the due performance of his official duties, or his securities from liability;
(26) giving effect to informal or invalid wills or deeds;
(27) summoning or empanelling grand or petit juries;
(28) for limitation of civil or criminal actions;
(29) for incorporating railroads or other works of internal improvements; or
(30) relieving or discharging any person or set of persons from the performance of any public duty or service imposed by general law.
(b) In addition to those laws described by Subsection (a) of this section in all other cases where a general law can be made applicable, no local or special law shall be enacted; provided, that nothing herein contained shall be construed to prohibit the Legislature from passing:
(1) special laws for the preservation of the game and fish of this State in certain localities; and
(2) fence laws applicable to any subdivision of this State or counties as may be needed to meet the wants of the people.
(Amended Nov. 6, 2001.)
Sec. 56. PROHIBITED LOCAL AND SPECIAL LAWS. (a) The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing:
(1) the creation, extension or impairing of liens;
(2) regulating the affairs of counties, cities, towns, wards or school districts;
(3) changing the names of persons or places;
(4) changing the venue in civil or criminal cases;
(5) authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys;
(6) relating to ferries or bridges, or incorporating ferry or bridge companies, except for the erection of bridges crossing streams which form boundaries between this and any other State;
(7) vacating roads, town plats, streets or alleys;
(8) relating to cemeteries, grave-yards or public grounds not of the State;
(9) authorizing the adoption or legitimation of children;
(10) locating or changing county seats;
(11) incorporating cities, towns or villages, or changing their charters;
(12) for the opening and conducting of elections, or fixing or changing the places of voting;
(13) granting divorces;
(14) creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;
(15) changing the law of descent or succession;
(16) regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts, justices of the peace, sheriffs, commissioners, arbitrators or other tribunals, or providing or changing methods for the collection of debts, or the enforcing of judgments, or prescribing the effect of judicial sales of real estate;
(17) regulating the fees, or extending the powers and duties of aldermen, justices of the peace, magistrates or constables;
(18) regulating the management of public schools, the building or repairing of school houses, and the raising of money for such purposes;
(19) fixing the rate of interest;
(20) affecting the estates of minors, or persons under disability;
(21) remitting fines, penalties and forfeitures, and refunding moneys legally paid into the treasury;
(22) exempting property from taxation;
(23) regulating labor, trade, mining and manufacturing;
(24) declaring any named person of age;
(25) extending the time for the assessment or collection of taxes, or otherwise relieving any assessor or collector of taxes from the due performance of his official duties, or his securities from liability;
(26) giving effect to informal or invalid wills or deeds;
(27) summoning or empanelling grand or petit juries;
(28) for limitation of civil or criminal actions;
(29) for incorporating railroads or other works of internal improvements; or
(30) relieving or discharging any person or set of persons from the performance of any public duty or service imposed by general law.
(b) In addition to those laws described by Subsection (a) of this section in all other cases where a general law can be made applicable, no local or special law shall be enacted; provided, that nothing herein contained shall be construed to prohibit the Legislature from passing:
(1) special laws for the preservation of the game and fish of this State in certain localities; and
(2) fence laws applicable to any subdivision of this State or counties as may be needed to meet the wants of the people.
(Amended Nov. 6, 2001.)
STATE BAR OF TEXAS LEGISLATIVE TIMETABLE 2020-2021
The State Bar of Texas gears up for the 87th Session of the legislature next year.
- Click here for the document.
From more: Teach the Vote.
- Click here for the document.
From more: Teach the Vote.
This mornings readings
All from the Texas Tribune.
- As Texas coronavirus hospitalizations rise, local officials can recommend precautions but they can't enforce many of them.
- Watch Gov. Greg Abbott address hospital capacity as coronavirus cases continue to rise statewide at 1 p.m.
- U.S. Supreme Court rules Texas death row inmate had an ineffective lawyer, orders new review.
- With coronavirus cases climbing, Texas Gov. Greg Abbott says "no real need" to scale back business reopenings.
- Reversing course, U.S. Sen. John Cornyn signals openness to removing Confederate names from military bases.
- Texas attorney general asks for power to investigate police who kill people.
- As Texas coronavirus hospitalizations rise, local officials can recommend precautions but they can't enforce many of them.
- Watch Gov. Greg Abbott address hospital capacity as coronavirus cases continue to rise statewide at 1 p.m.
- U.S. Supreme Court rules Texas death row inmate had an ineffective lawyer, orders new review.
- With coronavirus cases climbing, Texas Gov. Greg Abbott says "no real need" to scale back business reopenings.
- Reversing course, U.S. Sen. John Cornyn signals openness to removing Confederate names from military bases.
- Texas attorney general asks for power to investigate police who kill people.
From Wikipedia: List of police reforms in the United States related to the killing of George Floyd
- Click here for the entry.
Here's a list of what is being proposed:
- end qualified immunity
- establish national police standards
- ban on chokeholds
- redirecting police funds to community initiatives
- bans on tear gas
Here's a list of what is being proposed:
- end qualified immunity
- establish national police standards
- ban on chokeholds
- redirecting police funds to community initiatives
- bans on tear gas
Monday, June 15, 2020
From the Texas Tribune: Austin City Council unanimously limits police officers' use of force and asks for cuts to department budget
Let's start looking at some of the specific things being proposed to reform police departments.
- Click here for the article.
The Austin City Council unanimously approved a set of measures Thursday meant to limit police officers' use of force, which include restrictions on use of deadly force and a ban on using “less lethal” munitions during protests. The council also directed the city manager to propose reductions to the department’s budget next year.
The moves come in the wake of nationwide protests over police brutality against people of color, including in Austin. Many of those national and local demonstrations have included calls for reforms on police tactics and the defunding of law enforcement in favor of redistributing funds to social services and alternative public safety programs.
"I hope that we don’t miss this moment. Our community is at a boiling point," said Mayor Pro Tem Delia Garza. "We cannot move past this without change, we cannot. I will do my best to remain hopeful."
Decreasing police funding has also gained momentum in Dallas. Houston leaders increased that city’s police budget by almost $20 million for the upcoming fiscal year, though officials attributed that move to fixed costs like pension obligations and pay raises.
- Click here for the article.
The Austin City Council unanimously approved a set of measures Thursday meant to limit police officers' use of force, which include restrictions on use of deadly force and a ban on using “less lethal” munitions during protests. The council also directed the city manager to propose reductions to the department’s budget next year.
The moves come in the wake of nationwide protests over police brutality against people of color, including in Austin. Many of those national and local demonstrations have included calls for reforms on police tactics and the defunding of law enforcement in favor of redistributing funds to social services and alternative public safety programs.
"I hope that we don’t miss this moment. Our community is at a boiling point," said Mayor Pro Tem Delia Garza. "We cannot move past this without change, we cannot. I will do my best to remain hopeful."
Decreasing police funding has also gained momentum in Dallas. Houston leaders increased that city’s police budget by almost $20 million for the upcoming fiscal year, though officials attributed that move to fixed costs like pension obligations and pay raises.
From Vox: The Supreme Court’s landmark LGBTQ rights decision, explained in 5 simple sentences
A good look at "textualism," a conservative approach to deciding what a law or constitutional phrase means.
- Click here for the article.
Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. He passed.
Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. Gorsuch didn’t simply honor his textualist approach in Bostock, he wrote the majority opinion.
In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply does not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
- Click here for the article.
Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. He passed.
Gorsuch is a vocal proponent of “textualism,” the belief that the meaning of a law turns on its words alone, not on the intentions of the law’s drafters. And Bostock forced Gorsuch to decide between his own conservative politics and following the broad language of a landmark civil rights law. Gorsuch didn’t simply honor his textualist approach in Bostock, he wrote the majority opinion.
In Bostock, the Court considered Title VII of the Civil Rights Act of 1964, which forbids employment discrimination that occurs “because of [an employee’s] race, color, religion, sex, or national origin.” Though there is little doubt that the people who drafted this law in 1964 did not believe they were enacting a ban on LGBTQ discrimination, the thrust of Gorsuch’s opinion is that the expectations of lawmakers in 1964 simply does not matter.
Only the text of Title VII matters. And, as Bostock explains at length, that text clearly prohibits employment discrimination on the basis of sexual orientation or gender identity. Gorsuch lays out why in just five crisp sentences on the first page of his majority opinion:
In Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Civil Rights Act of 1964
For a look at all of the titles of the bill - which we will be getting into next week
- click here.
Title I—voting rights
Title II—public accommodations
Title III—desegregation of public facilities
Title IV—desegregation of public education
Title V—Commission on Civil Rights
Title VI—nondiscrimination in federally assisted programs
Title VII—equal employment opportunity
Title VIII—registration and voting statistics
Title IX—intervention and removal of cases
Title X—Community Relations Service
Title XI—miscellaneous
- click here.
Title I—voting rights
Title II—public accommodations
Title III—desegregation of public facilities
Title IV—desegregation of public education
Title V—Commission on Civil Rights
Title VI—nondiscrimination in federally assisted programs
Title VII—equal employment opportunity
Title VIII—registration and voting statistics
Title IX—intervention and removal of cases
Title X—Community Relations Service
Title XI—miscellaneous
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