"The Superseding Indictment is DISMISSED because Special Counsel Smith’s appointment violates the Appointments Clause of the United States Constitution," her order states. "Special Counsel Smith’s use of a permanent indefinite appropriation also violates the Appropriations Clause [...] but the Court need not address proper remedy for that funding violation given the dismissal on Appointments Clause grounds. The effect of this Order is confined to this proceeding." //

"The bottom line is this," she wrote. "The Appointments Clause is a critical constitutional restriction stemming from the separation of powers, and it gives to Congress a considered role in determining the propriety of vesting appointment power for inferior officers. The Special Counsel’s position effectively usurps that important legislative authority, transferring it to a Head of Department, in the process threatening the structural liberty inherent in the separation of powers. If the political branches wish to grant the Attorney General power to appoint Special Counsel Smith to investigateand prosecute this action with the full powers of a United States Attorney, there is a valid means by which to do so. He can be appointed and confirmed through the default method prescribed in the Appointments Clause, as Congress has directed for United States Attorneys throughout American history, see 28 U.S.C. § 541, or Congress can authorize his appointment through enactment of positive statutory law consistent with the Appointments Clause."

Contrary to the New York Democrat’s claim, the naming of contingent Republican electors during the 2020 cycle was neither unprecedented nor unlawful. In fact, the process conducted in contested states such as Georgia parallels a similar endeavor that took place during the 1960 presidential election between John F. Kennedy and Richard Nixon. //

As my colleague Jordan Boyd previously highlighted, Democrats and their media allies had no problem “calling for electoral disobedience” after Trump won the 2016 election. In an effort to keep Trump out of office, so-called “news” outlets ran “[a]rticles demanding state electors ‘prevent an irresponsible demagogue from taking office’ and overrule Americans to install Hillary Clinton as president.”

‘If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people,’ Thomas wrote.

The problem is out of control. No one knows how many separate crimes there are, including the Department of Justice. Researchers have tried counting, with one 2019 effort identifying at least 5,199 statutory crimes. Regulatory crimes are orders of magnitude greater, with estimates of the number of regulatory crimes ranging from 100,000 to 300,000 separate offenses.

This is inconsistent with basic ideas of self-government and the intentions of those who framed the Constitution. Laws with criminal consequences should be carefully considered by the legislative branch, not pushed through by unelected bureaucrats who are not accountable to the people. //

Congress can seize the opportunity and pass some simple and commonsense reforms that would further reduce the power of the administrative state and its appetite for passing criminal laws.

Congress should begin by requiring the executive agencies to simply catalog their regulations that have criminal consequences. After all, if a federal agency does not know if something is a criminal offense, how can the people be expected to? If a “mens rea” requirement is not already in the law, Congress should make all criminal regulations have a “willful” requirement to prevent citizens from being prosecuted for actions they did not even know they took. For new laws, agencies should be required to state the applicable mental state.

This case has taken 13 years to conclude. Billions of dollars were lost to consumers in what will ultimately be seen as excess fees.

With Loper Bright opening the door to challenging agency regulations and Corner Post removing a six-years-from-rule-finalization statute of limitations, many regulations that should be tossed out will no longer have the shield of Supreme Court precedent and a lapsed statute of limitations to hide behind. This is the beginning of an Administrative State that is modest and chastened, and it remembers that it works for the people, not for the post-retirement careers of the bureaucrats writing rules to favor industries.

Monday, the Supreme Court handed down a mixed bag of a ruling on presidential immunity. In my view, they took what could've been a straightforward and elegant decision — the president is immune from prosecution for acts committed in office unless he has been impeached for those acts — and turned it into a dog's breakfast of angels-on-the-head-of-a-pin litigation about what constitutes official and unofficial acts. //

What has passed with remarkably little notice is Justice Clarence Thomas's concurrence. Justice Thomas says the Court is putting the cart before the horse. The first question that needs to be answered is not whether acts were official or unofficial. The critical first question is whether this prosecution is legal at all. Thomas's comments begin on the 44th page of the linked document.

I write separately to highlight another way in which this prosecution may violate our constitutional structure. In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President.

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to proceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding.

...

Even if the Special Counsel has a valid office, questions remain as to whether the Attorney General filled that office in compliance with the Appointments Clause. For example, it must be determined whether the Special Counsel is a principal or inferior officer. If the former, his appointment is invalid because the Special Counsel was not nominated by the President and confirmed by the Senate, as principal officers must be. Art. II, §2, cl. 2. Even if he is an inferior officer, the Attorney General could appoint him without Presidential nomination and senatorial confirmation only if “Congress . . . by law vest[ed] the Appointment” in the Attorney General as a “Hea[d] of Department.” Ibid. So, the Special Counsel’s appointment is invalid unless a statute created the Special Counsel’s office and gave the Attorney General the power to fill it “by Law.”

Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and filled offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.

Minister of War
2 hours ago
"the president is immune from prosecution for acts committed in office unless he has been impeached for those acts"

Bingo!

Period.

End of story.

Close the book.

John Roberts is an idiot once again & the conservative justices are required to roll their eyes & go along with his stupidity just because that was the only way to get even a partial victory.

The online magazine The Federalist rightly called the decision an “immigration rebuke,” but the author was mistaken when he wrote that Asencio-Cordero “was denied a visa by U.S. Citizenship and Immigration Services in 2015”—visa decisions overseas are made by consular officers, who are commissioned Foreign Service officers in the State Department.

The Muñoz case was the latest round in a battle by immigration activists against the doctrine of “consular non-reviewability,” which holds that decisions made by consular officers overseas in visa cases can’t be challenged in U.S. courts. If they were, the system would crumble—much like the asylum system has under President Joe Biden’s flood of released and paroled inadmissible aliens.

The Supreme Court ruled 6-3 in Donald Trump’s favor in the presidential immunity case, complicating at least two prosecutions against the 45th president.

“Under our constitutional structure of separated powers, the nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority,” Chief Justice John Roberts wrote in the high court’s majority opinion. “And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts.” //

Justice Sonia Sotomayor wrote the dissent.

“Today’s decision to grant former presidents criminal immunity reshapes the institution of the presidency,” Sotomayor argued. “It makes a mockery of the principle, foundational to our Constitution and system of government, that no man is above the law.” //

Among the most well-known post-2020 election controversies involved Trump attempting to pressure then-Vice President Mike Pence to stall or reverse a joint session of Congress from certifying Joe Biden’s Electoral College victory. The high court remanded the question of Trump’s immunity on this back to the district court to further clarify.

“Whenever the president and vice president discuss their official responsibilities, they engage in official conduct,” the majority says. “Presiding over the January 6 certification proceeding at which members of Congress count the electoral votes is a constitutional and statutory duty of the vice president.”

Courts no longer owe deference to an administrative agency's interpretation of its ambiguous statutory mandate. //

The Court held that the Administrative Procedures Act, which governs the operations of administrative agencies,

requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous; Chevron is overruled.

Thomas agreed with the Court’s decision but wrote separately “to underscore a more fundamental problem: Chevron deference violates our Constitution’s separation of powers, as I have previously explained at length.”

The violation, Thomas elaborated, stemmed from Chevron‘s mandate that judges surrender their judicial responsibility “to exercise . . . independent judgment in interpreting and expounding upon the laws.” //

The challengers also argued that Chevron is an abdication of judicial responsibility because courts have the duty to interpret the law, but Chevron deference substitutes the agency’s interpretation. The challengers criticized Chevron for “upend[ing] basic principles of constitutional due process of law” because it required deference to an agency’s interpretation when that agency is a litigant before the court. //

ThePrimordialOrderedPair | June 28, 2024 at 1:04 pm

Chevron is overruled.

Most important decision in decades … 4 decades, precisely.

And courts in the future need to keep in mind, in addition to this, that Congress is disallowed from delegating any of its Constitutional authority to any other entity unless specifically allowed to do so in the Constitution. To do so is to, de facto, amend the Constitution.

The past week has been the legal equivalent of the firebombing of Dresden for the administrative state.

In short order, many of the reasons we gradually, like a frog in a pot of boiling water, transformed from citizens into subjects have been demolished.

In the 6-3 majority opinion, Chief Justice John Roberts wrote that Chevron "defies the command of" the Administrative Procedure Act (the law governing federal administrative agencies) "that the reviewing court--not the agency whose action it reviews--is to decide all relevant questions of law and interpret ... statutory provisions. It requires a court to ignore, not follow, the reading the court would have reached had it exercised its independent judgment as required by the APA."

Roberts noted: "Perhaps most fundamentally, Chevron’s presumption" (that statutory ambiguities are implicit delegations of authority by Congress to federal agencies) "is misguided, because agencies have no special competence in resolving statutory ambiguities. Courts do."

Roberts added that this decision does "not call into question prior cases that relied on the Chevron framework. The holdings of those cases that specific agency actions are lawful--including the Clean Air Act holding of Chevron itself--are still subject to statutory stare decisis despite our change in interpretive methodology." //

Jman98 Laocoön of Troy
an hour ago
Congress always had the power, they simply refused to use it. Congress could have always been specific in the language used in any given piece of legislation they wrote and passed. They purposely weren’t because specificity leads to responsibility and they’re not about that. By leaving things to someone else, bureaucrats in the Executive branch, they could then complain about how their purposely ambiguous legislation was badly implemented and dodge responsibility for what they’d done. How many times have they written in legislation “the Secretary shall” so as to punt all responsibility for what happens next? Hundreds, sometimes in the same piece of legislation. This is telling Congress to do their job right the first time. //

Minister of War Laocoön of Troy
an hour ago
I agree that the power should be returned to the people & their elected representatives. But Iam hesitant when I hear that the Court thinks that courts know better than anyone else. The SCOTUS may have just granted itself & the rest of the judiciary more power that they shouldn't have to do what amounts to writing laws.

Laocoön of Troy Minister of War
an hour ago
No...they've just thrown down the gauntlet and have warned the Executive to not play so fast and loose with regulation or the courts will take away even more power from them. This entire decision is an unmitigated, magnificent result.

I suspect that the lazy and cowardly Congress will end up forced by their donors and political supporters to stop at least some regulation overreach.

Of the major cases the US Supreme Court has heard this term, one that might not have gotten as much attention as it should have, is SEC versus Jarkesy. The court heard oral arguments at the end of November, 2023. The case goes to the question of whether or not administrative agencies have the ability to use administrative courts with administrative law judges rather than those that are under the Third Article of the constitution to enforce their regulations and rulings.

The case is broadly seen as getting to the heart of separation of powers. increasingly executive agencies have found ways to concentrate power within themselves and not having to deal with the other branches of government.

The appeal filed held the argument that using administrative judges violates the constitution. The filing stated that the executive using its own judges to rule effectively meant that there was no oversight of the executive agencies that were pressuring the charges.

It also noted that the 7th Amendment of the Constitution gives the defendant the right of a trial by jury. For any civil damages that are greater than $20 one can also seek a jury. Executive agencies using their own courts have consistently refused to allow juries to be used.

Bottom line: Congress can amend §666 to make it clear that acts like what Snyder did are illegal. What will come of this is bad faith actors pointing at the court and claiming that Snyder is another example of the high court defending corruption. Rather, it is SCOTUS defending liberty and requiring Congress to define criminal statutes with clarity and specificity.

In legal disputes, the threat of a lawsuit is often used as leverage to prompt a resolution. However, it’s essential to understand whether telling someone you will sue them constitutes a threat and the legal implications of such an action. This guide explores the legality and appropriateness of threatening to sue.

Is Telling Someone You Will Sue Them a Threat?

Yes, if you have a valid basis to sue someone, you absolutely can threaten to do so. A threat to sue, when based on legitimate legal grounds, is typically seen as part of legal negotiations and not inherently unlawful. //

Extortion or Coercion

Making a threat to sue with the intent to extort, coerce, or harass the other party can lead to legal consequences. Ensure your threat is based on seeking a legitimate legal remedy.

Defamation

Publicly threatening to sue or making defamatory statements about the other party can result in a defamation claim against you. Keep communications private and factual.

 The Supreme Court ruled Thursday that a part of President Trump's 2017 'Tax Cuts and Jobs Act' that levied a tax on capital appreciation is constitutional. Justice Brett Kavanaugh wrote the majority opinion. Justices Clarence Thomas and Neil Gorsuch dissented.

The court ruled 7-2 that the mandatory repatriation tax, or MRT, is constitutional under the taxation regimes defined in Article I and the 16th Amendment. In short, the MRT imposed a one-time requirement for US citizens and companies to repatriate money held overseas. //

The Moores had earned $0 from their investment, but the value of their investment had increased because the business they invested in was successful. Because their investment was successful, that unrealized gain, which could totally disappear in a few months if things went pear-shaped, was taxed.

Why is this important?

The lodestar of the far left is "income inequality." They want everyone to be poor but them. Where their policies are defeated is by frugality and investment. //

The wealth tax's strategy is to prevent the accumulation of intergenerational wealth and penalize those who work hard, save, and invest in favor of those who consume. Every time your stock portfolio or home increases in value, a wealth tax would make that gain taxable, even if you didn't cash out. //

FreeWilledThinker
an hour ago
I just read the opinion and, even though I am a Constitutionalist and favor strict construction, I would have voted with the majority on this one. The reason why is due to the pass-through nature of the company. Every LLC in the U.S. works this way, where you get a K-1 and get taxed, even where not a cent has come into your bank account.

I think the muddy water comes from the ownership mechanism. As a shareholder, the Moore's wish to treat the pass-through as though it is not taxable on the owned company's income, but it would be were it based in the U.S. and did not pay any tax on the base income. //

Buckeye kamief
18 minutes ago
But that interest would be taxable if NOT in an IRA -- which is the crux of this. These folks were catching gains on a foreign corporation NOT in an IRA, yet because of reinvestment, they weren't paying any taxes. Compare to US tax code in existence -- if you have a stock and it's in a dividend re-investment program, which is effectively exactly what they were doing, you DO PAY TAXES on those dividends, even though you chose to re-invest. That's another reason I agree with the USSC on this one. Their Indian corporation was making money, but not calling it a "dividend", and they kept putting it back in....sorry that's basically tax evasion by US code.

 JSobieski
3 hours ago edited
This is nothing new and it is nothing bad.

Scalia and Thomas, while they voted more similarly than any other two justices during their shared tenure, actually had a BIG philosophical difference in how they approached the job. Barrett is kind of taking of making the Scalia-esque point, but because people see things almost exclusively through a political lens, they miss the bigger picture and context for the disagreement.

Justice Thomas is someone who subscribes to the concept of "natural law". A snarky liberal might call this concept the right-wing version of substantive due process, although natural law has a pedigree older than the US. https://www.thepublicdiscou...

Justice Scalia in contrast was a strict textualist. This approach is often referred to as "legal positivism". Scalia is famous for ignoring things like legislative history for example. https://www.cmc.edu/salvato... .

These two men agreed on the outcome the vast majority of the time, but their approaches to that outcome were actually quite different. Thomas was called Scalia's lapdog by people who looked at things through a political lens, but philosophically, they were in some ways very very different.

Barrett is apparently Scalia's intellectual heir... at least in this particular dispute.

Tolly JSobieski
2 hours ago
'Justice Scalia in contrast was a strict textualist.'

Agreed. Where some go sideways, I believe, is that some believe "textualism" equates to "originalist". There are distinctions. Those distinctions are many times found whenever the text of an Act are at issue, in the first instance, and when the provisions of the Constitution are in question, in the second.

etba_ss JSobieski
2 hours ago
Well said.

And Thomas' philosophy is superior.

JSobieski etba_ss
2 hours ago
Maybe. It depends on how much your prioritize self government.

There is some validity to the argument that "natural law" is just the right-wing version of "substantive due process", i.e. a doctrine that is sufficiently malleable to reach whatever outcome is desired.

When I was in law school, I agreed with you. But now as a seasoned lawyer and a long time follower of politics, I think strict textualism is the best way to constrain the judiciary. Of course, constraining the judificiary may then in fact enable Congress to overreach---so it is a pick your poison kind of thing.

There is a lot to be said for legal positivism.

Scholar JSobieski
2 hours ago
The question is the preference whether constraining judiciary or the legislature. The Founders preferred the latter as they are the representatives of the people. If Common Law was not so outdated we didn't have to have this dillema.

Tolly JSobieski
2 hours ago
Don't you mean constraining the legislators? If legislation was enacted that respected what the judiciary has already achieved by substantive due process, what then is the need for any other argument than precedent?; or "pedigree rather than principle", as Justice Barrett argues?

JSobieski Tolly
an hour ago
I mean constraining the legislature---the collective action of legislators. I guess you could call taht constraining legislation, but it is more common to think of constraining people. Separation of powers is typically said to constrain the branches of government, not the outputs created by the three branches of government. Same with respect to the constraining impact of federalism (prior to the income tax and New Deal expansion of the Commerce Clause).

To put it plainly, the left hates President Trump more than they love this country. Government officials at the federal and state levels have censored President Trump, filed civil suits in order to sanction him, illegally removed him from the ballot, and perverted the law in order to prosecute him. This is a strategic attack against a former President of the United States, against a current candidate for President, and against the value we as a Nation place on our system of government, our legal system, and our very identity. The term lawfare, while apt, fails to adequately convey the moral depravity underpinning this strategic attack. I encourage this body to address each tactical front in the broader conflict provoked by lawfare. //

Bailey outlines numerous flaws inherent in the prosecution:

1. Failing to uphold the rules of professional conduct by which prosecutors are bound
2. Failing to specify the other crime Trump was alleged to have committed/intended to commit in falsifying the business records, such that his Sixth Amendment rights were violated
3. Seeking a gag order in violation of Trump's First Amendment rights
4. Perverting the law to meet the facts rather than objectively applying the law
5. Failing to require unanimity from the jury on the predicate offense(s) //

Ready2Squeeze
18 minutes ago

To put it plainly, the left hates President Trump more than they love this country.

This should read:

To put it plainly, the left hates President Trump more than they love hate this country.

The prosecution team destroyed exculpatory evidence supporting one of the most basic defenses available to President Trump in response to the politically motivated charges in this case. The Special Counsel’s Office has wrongfully alleged that President Trump was aware of the contents of boxes in August 2022, where those boxes were packed by others in the White House and moved to Florida in January 2021. The fact that the allegedly classified documents were buried in boxes and comingled with President Trump’s personal effects from his first term in office strongly supported the defense argument that he lacked knowledge and culpable criminal intent with respect to the documents at issue. Any proximity between allegedly classified documents and other dated materials from years before the move, such as letters and newspapers, would have further strengthened this argument. The prosecution team’s instructions to agents who executed the raid essentially acknowledged these propositions, and directed the agents to take care to document the location of both seized items and potentially privileged materials.

However, the agents disregarded those instructions. The government was more interested in staging—and leaking—manipulated photographs to the press than preserving key exculpatory evidence that has now been lost forever. Trump, ECF No. 48-1.2 The agents did not maintain the order of the documents, and they did not take photographs that would have served as alternative evidence of the documents’ sequence in each box. In July 2023, the agents disclosed this fact during a meeting with prosecutors from the Special Counsel’s Office and the U.S. Attorney’s Office for the Southern District of Florida (“USAO-SDFL”). But the Office did not timely disclose the notes from that meeting for almost a full year. Indeed, they persisted in that suppression, notwithstanding that the notes were responsive to an October 2023 discovery request from President Trump, while urging the Court to rush to trial based on false assurances that they were in compliance with their discovery obligations.

In hearings during March and April 2024, the Special Counsel’s Office misrepresented to the Court that the pre-raid sequence of the documents was intact. Only after an evidence inspection by counsel for President Trump’s co-defendants revealed the extent of the problem did the Office disclose in a May 3, 2024 filing that the documents were not intact as had been claimed previously. Vague language in that submission and corresponding additional discovery demands from President Trump caused these due process violations to further unravel.

KEY POINTS

• Plaintiffs argue that what's commonly known as the COVID-19 vaccine isn't a vaccine at all (because it doesn't prevent transmission), but is a therapeutic, so it cannot be mandated by law.
• At the U.S. District Court level, a judge ruled that a 1905 Supreme Court ruling (Jacobson v. Massachusetts) related to mandatory smallpox vaccination allowed the COVID-19 vaccine mandate.
• The 9th Circuit panel ruled that, taking the Plaintiff's pleadings as true (which they must at this point in the proceedings), Jacobson does not apply and that employees cannot be forced to receive "treatment" they don't want to receive.
• The ruling rejected LAUSD's claim that the suit is moot since the district had rescinded its mandate two weeks after oral arguments in this appeal went very poorly for the district, and gave a detailed timeline of LAUSD's continued attempts to manipulate the legal proceedings.

To fully appreciate LAUSD's manipulative tactics, you have to understand the timeline... //

Leslie Manookian of Health Defense Freedom Fund, one of the plaintiffs in the case, noted in a 2023 opinion piece that there's an unresolved conflict between Jacobson and another precedential SCOTUS case, Cruzan vs. Director, which held that medical treatments may be refused even if they might save a recipient’s life. And, she states, in Jacobson "the court decided that vaccines could be mandated in clearly defined and limited situations, such as a deadly smallpox outbreak. But COVID is not smallpox. What’s more, Jacobson allowed those who declined the vaccine to pay a fine — Jacobson did not allow the state to force a vaccine on unwilling recipients on pain of losing their livelihoods."

Public health officials, including former CDC Director Rochelle Walensky, have admitted for years (even before LAUSD's resurrected mandate on August 13, 2021) that the COVID-19 mRNA shot does not prevent transmission of the virus and was ineffective against the Delta variant.

And just this week former NIAID Director Dr. Anthony Fauci admitted under questioning from Congress that the COVID vaccine didn't stop transmission of the virus. //

In the decision Judge Ryan D. Nelson (a Trump appointee), detailed the unimpressive and unethical tactics used by LAUSD and its attorneys. //

It's important to note that the court did not find as a fact that the mRNA COVID shot is a treatment and not a vaccine, and did not find as a fact that it does not prevent the spread of COVID-19, as proceedings have not reached that stage; the court was simply ruling on a procedural motion as to whether the suit was moot and whether LAUSD's motion for judgment on the pleadings was properly decided.

Coordinated attacks on SCOTUS’s integrity, led by Democrats and their allies in the corporate media, try to deceive Americans into believing partisans hijacked the highest court in the land and ideologically fractured it into near-dysfunction. The prominence of unanimous opinions and even more unanimous judgments not only discredits this notion but suggests a far more concerning narrative about the politicization of lower courts.

Since its inception, the Supreme Court has wielded its authority to deliver decisions rooted in bench agreement. In recent years, especially, justices “defied critics” with “historic unanimity” on cases that circuit, appeals, and state supreme courts decided in defiance of the Constitution. Of the 32 cases already decided in the 2023 term, 21 of the judgments were agreed upon by all of the presiding justices. Many of them signaled justices’ concern that lower courts abused their ruling power to violate the Constitution. //

The Supreme Court’s recent string of unanimous decisions not only serves as a reminder that corporate media are deliberately deceptive, but also suggests that lower courts are abusing their power to achieve partisan and, more importantly, unconstitutional results.