Posts Tagged ‘court opinions’


Judicial Absurdity in Oklahoma

   Posted by: Robert    in Law, News

Reporting on the matter so far is sparse, but it appears that there may be an activist federal district judge in Oklahoma who has decided to begin the work of frustrating the will of the people.  The case involves an Oklahoma ballot measure to amend the state’s constitution to clarify what lines of authority the state’s courts are allowed to use in performing their judicial function.  The amendment language, among other things, calls out Sharia law as being one line of authority that Oklahoma’s courts are to specifically avoid using.  A Muslim activist sued, prompting Chief Judge Vicki Miles-LaGrange, appointed by Clinton in 1994 to the U.S. District Court in Oklahoma City, to issue an injunction against the measure pending a hearing on its constitutionality under the Federal Constitution.  Far from enjoining the law pending a hearing, this lawsuit should have been dismissed as frivolous without so much as a second thought.

The Oklahoma International Law Amendment of 2010 amends the state constitution with the following language (emphasis added):

The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

It is difficult, if not impossible, to mistake the clear purpose of this language.  The people of Oklahoma want their courts deciding cases based on US law.  Though much more specific, this is no different than the thrust of the Federal Constitution which limits courts to cases “arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.” (US Const. Article III)

The argument apparently being made against the Oklahoma amendment is twofold. The complaint apparently alleges that the amendment stigmatizes the Muslim religion and would invalidate the complainant’s will, which is based on Sharia law.  In reality, the Oklahoma amendment does no such thing.

The fact that the amendment calls out Sharia law has nothing to do in any way with religion, and certainly does not stigmatize Muslim.  The amendment cites certain authorities of non-domestic character which judges are meant to specifically avoid, including “international or Sharia Law.”  Both international (sometimes called foreign) law and Sharia law are notable in two important ways.  First, international law and Sharia law differ from traditional US law in a variety of important ways, which could easily lead a judge to rule in a way contrary to the legal traditions of America.  Second, and probably more importantly, actual judges deciding actual cases have used international and Sharia law to reach results which are (at least arguably) contrary to the letter and spirit of US domestic law.  Were Sharia law not being used to (arguably) circumvent US law, there would have been no reason to name it in the amendment.

As far as the complainant’s will is concerned, his belief that the amendment would cause it to become invalid seriously misunderstands the plain meaning of the amendment.  A will, in basic terms, is a legal document that establishes instructions for how to dispose of an estate following a person’s death.  Courts enforce wills though a body of US domestic law known as Probate.  Probate law, though not perfectly so, is largely indifferent to the specific instructions provided in an individual’s will and focuses, instead, on providing a general framework for executing the instructions, whatever they may be.  When courts interpret wills, probate law generally requires that wills be evaluated on their own terms.  Thus, when presented with a Sharia will, a court “adher[ing] to the law as provided in … Oklahoma [s]tatutes” must consider the will as a valid instruction set, irrespective of its religious backing, as long as it doesn’t conflict with with probate law.  Of course, if there is a conflict, probate law must win; but that’s true of all wills, not just those inspired by Sharia principles.

The American people are well within their right to insist that judges follow, first and foremost, US domestic law as defined by constitution, statute, and American legal tradition.  The people of Oklahoma have identified two bodies of non-domestic law which are of special significance to today’s legal landscape because real judges in actual cases have begun using them in ways contrary to domestic law.

Because the Oklahoma amendment is perfectly justifiable on non-religious grounds and does not interfere with religious practice, there is no reason to think it may be unconstitutional.  The lawsuit against it should be dismissed.

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Ruling on Arizona Law

   Posted by: Robert    in Law

This afternoon, a federal judge in Arizona granted a preliminary injunction against portions of the Arizona immigration law, SB 1070.  Although the federal government had asked for the entire law to be struck down, the judge declined to grant an injunction against the law in its entirety.  That is not, however, anything close to a win for Arizona or the American people; it simply means that the law was killed surgically, rather than with a blunt instrument.  Reading through the ruling itself, it appears that the judge completely bought into the federal government’s preemption argument, but largely failed to make a convincing case for why its ruling is correct.  What follows are my first impressions on select parts of the ruling.


I have wondered since I first heard that the US government was suing Arizona how the federal government would justify standing to bring forth its lawsuit.  In making her ruling, the judge offered no insight as to how she found the federal government to have standing.  Though I wasn’t surprised by this — neither side briefed the issue (that I saw) and nobody (I’ve seen) has asked this question besides me — I was disappointed.

The question of preemption is fundamentally a question of which law applies to a particular case.  In the normal preemption case, a party is challenged under a state law, and mounts a defense saying that the state law is preempted by federal law.  If the state law and federal law conflict, the Supremacy Clause dictates that federal law must win, meaning that the state law is preempted.  The conflict can either be direct, in the sense that the federal law and state law say two incompatible things, or the preemption could be made by rule, if the federal government affirmatively prevents the states from legislating in a given area.  Regardless of how preemption happens, the party harmed was always the person or entity against whom the state law would apply if not for preemption.

Today, without any discussion, the judge has necessarily found that the federal government is itself harmed when a state passes a law which is incompatible with federal law.  While it’s possible that I’ve missed something about how standing works, this (implicit) theory of standing seems incredible to me.  Last I checked, the federal government doesn’t have a free-standing license to challenge any state law that it doesn’t like.

Of course, for the sake of fairness, I should note that it’s at least plausible that the federal government could claim to be harmed by the “burden” Arizona would place on it by running immigration checks and referring illegal aliens to ICE for processing.  However, that only opens the door to some of the challenges posed to the Arizona law, not to the entire thing.

Section 2b

In striking down this section, the judge makes much of a drafting error made in the original SB 1070 and later corrected in a subsequent amendment passed in short succession.  The judge is quick to criticize the second sentence of this section, which says that “[a]ny person who is arrested shall have the person’s immigration status determined before the person is released.”  In the law, as amended, this naturally follows the preceding sentence which says what Arizona law enforcement must do “[f]or any lawful stop, detention or arrest.”  The judge, however, refused to read the two sentences as a cohesive whole because the original unamended SB 1070 spoke only of “lawful contact,” rather than of “lawful stop, detention or arrest.”  There is little reason to doubt that the Arizona legislature intended both forms of that sentence to mean the same thing, and that the amendment was made to clear up the obvious vagueness of what “lawful contact” actually entails.  The judge, however, would apparently hold the two phrases to mean something so radically different that the second sentence and first sentence should be read as if they are in entirely separate sections, despite the absurd result that analysis produces.

Section 5

In striking down this section, the judge turns established precedent squarely on its head.  She begins with the following observation:

“States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State.” De Canas, 424 U.S. at 356. Interpreting De Canas and considering a state law sanctioning employers who hire unauthorized workers, the Ninth Circuit Court of Appeals held that, “because the power to regulate the employment of unauthorized aliens remains within the states’ historic police powers, an assumption of non-preemption appli[ed].” Chicanos Por La Causa I, 544 F.3d at 984; accord Wyeth v. Levine, 129 S. Ct. 1187, 1194-95 (2009) (observing that “[i]n all pre-emption cases, and particularly in those in which Congress has legislated . . . in a field which the States have traditionally occupied, . . . we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress” (internal quotations and citation omitted)).

Having read that paragraph, it would appear that the viability of a law limiting illegal aliens from applying for or performing work should be an easy win for Arizona.  Arizona’s law is, after all, directly on point with the above cited cases.  By the end of the section, however, the judge has talked herself into the exact opposite conclusion.  The linchpin: Arizona attaches a penalty to violating its law.

Although I haven’t read the cited precedent, I find it highly unlikely that the cases above involved state laws with no penalty for non-compliance.  After all, police powers are rather meaningless if the police have no power to enforce them.

Section 6

In sum, this section amounts to unconstitutionality by virtue of hopelessly confusing federal policy.  The essence of the judge’s conclusion on this section is that it is simply too hard for Arizona police to know what is and isn’t a removable offense, so that “there is a substantial likelihood that officers will wrongfully arrest legal resident aliens.”

Although I find it illogical to say that this law is preempted as opposed to, say, that it is unconstitutionally vague, I find it hard to fault the judge too deeply for her outcome on this point.  From everything I understand, the entire concept of a “removable offense” is, truly, a mess.  Nobody really knows whether or not an offense mandates removal of the alien until the final appellate court has its say.  This is an area where Congress really should step up and add some much needed clarity to the law.


Overall, the quality of the ruling strikes me as being pretty bad.  The key through it all, however, is that the court bought the federal government’s argument of preemption and ran with it to every area of the law where it was necessary to strike the law down.  The ruling, however, leaves open some important questions which should be addressed in a final ruling on the merits at some point in the future.

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Sharia Presents a Liberal’s Paradox

   Posted by: Robert    in Law

Recent legal news has begin to cover a troubling change beginning to play at the edges of American law.  In New Jersey, the state’s court of appeals set aside a shocking ruling from one of the state’s trial courts which would have held that a man who abused and sexually violated his wife because “he was operating under [Islamic religious] his belief that it is, as the husband, his desire to have sex when and whether he wanted to.”  The court of appeals, in no uncertain terms, properly held the trial court’s opinion to be inconsistent with both New Jersey and federal law.  This case, however appropriately it appears to have turned out, appears, to me, to raise a significant problem for the left.

It goes virtually without saying that the interest in merging Sharia law with US law is an exercise being undertaken exclusively by leftists.  Britain, of course, has actual Sharia courts, established as arbitration tribunals, which hear cases and issue rulings which have the force of law.  In other European nations, national courts have occasionally ruled consistent with Sharia principles despite national laws which point in the opposite direction.  France, though they haven’t got Sharia courts, do have a Sharia tax code which aims to deal with some of the peculiarities of Islamic financial management.  The US, so far, has only rogue judges in liberal states.

So far, Sharia courts and Sharia-related court decisions have all been based on one of three general legal categories: probate, equity, and domestic violence.  It is the cases of domestic violence which are most troubling, and the case in New Jersey illustrates precisely why.

In the New Jersey case, as mentioned, a man raped his wife on multiple occasions under the belief that it was his right, as her husband, to do so.  Had he done that even 35 years ago, it would not have been a crime in the US.  However, as of 1993, spousal rape became a crime in every corner of the United States at the urging of the feminist movement.  In addition to US law, spousal rape is identified in the UN Declaration on the Elimination of Violence against Women, Article 2(a) as a form of violence against women.  There is, I think it is safe to say, a solid consensus which sweeps broadly against ideological lines that cannot tolerate the behavior that took place in New Jersey.  As the self-declared champions of women’s rights, women’s equality, and the fight to end violence against women, it would seem that the left has a vested interest in making sure that no woman is ever raped by her husband ever again.

The stakes, however, go even beyond the question of spousal rape in Islamic marriages.  From what I have been able to find of the trial judge’s logic, it appears to be relatively unbounded.  If the touchstone of the judge’s ruling is the “belief that it is, as the husband, his desire to have sex when and whether he wanted to,” what about that is so closely bounded to Islam that it could not be applied elsewhere?  After all, that was everyone’s belief — and the law — until 1975, meaning most of America grew up in a country where there was no such thing as spousal rape.  And even further, what if I find that it is my belief as a man my “desire to have sex when and whether [I want] to” with anyone that I please?  There would be no such thing as rape, if only I didn’t believe in it.

Rulings like one in New Jersey place the left on a collision course with itself.  It is simply not possible to champion women’s rights and a culture which systematically represses and does violence to women at the same time.  But perhaps the thought that they might even try is part of the reason that the left, right now, has a woman problem.  I, for one, would rather see them win some women back than bury the rest of us under Islamic law.

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Corporate Personhood and Citizens United

   Posted by: Robert    in Law

Much has been made in the press and the blogosphere about the Supreme Court’s supposed embrace of some concept of corporate “personhood” falling out of the decision in Citizens United v. FEC.  Most of this discussion seems to key from the dissent filed by Justice Stevens, which spends a fair amount of time diving into that very issue.  Exactly where this concept is to be found in the majority opinion eludes me.  Justice Kennedy’s writing may take a long and winding road to get to the same place that The Chief Justice and Justice Scalia would reach in far fewer pages, but even he avoids wandering off into the wilderness of anthropomorphisis.  Nor does the Constitution offer any reason to think that corporate personhood is somehow necessary to support the Court’s holding.

The language of the First Amendment is simple and absolute: “Congress shall make no law … abridging the freedom of speech.”  Based on that language, the operation of the amendment is not difficult to understand: It points out a thing which Congress may not do.  The amendment is written without reference to persons or corporations and without reference to the type, content, or character of speech.  If a law is an abridgment of the freedom of speech, Congress shall make no law causing it.

Nobody has argued that the law in question is anything other than an abridgment of (corporate) speech.

The lack of reference to personhood in the First Amendment is noteworthy in light of some of the other “rights” to which a person-corporation would presumably be entitled.  The most frequent straw man that I have seen is to the right of a person-corporation to vote.  But this comparison is untenable when the text of the First Amendment is compared to the text of the Fifteenth, which speaks of “[t]he right of the citizens of the United States.” (emphasis added)  Neither the majority in Citizens United nor the First Amendment rest the right secured on citizenship, whereas the Fifteenth Amendment does so explicitly.

The notion that Citizens United is somehow dependent on a concept of corporate personhood is further discredited by considering the original understanding of what the Bill of Rights sought to accomplish.  One of the founding era arguments against the Bill of Rights was the understanding that none of the things which it explicitly forbade Congress from doing were within Congress’s power in the first place.  Nowhere do the Articles of the Constitution suggest that Congress has the authority to limit the freedom of speech.  Nowhere does the Constitution suggest that Congress gets additional power when legislating against a corporation.  The Articles, thus, reinforce the understanding that corporate personhood is entirely irrelevant to the conclusions reached by the Court in Citizens United.

Although the attempted reducto ad absurdum argument of corporate personhood sounds interesting, in reality it is little more than a meaningless straw man.  Corporate personhood is not required for the Court to have decided Citizens United as it did, and the Court gave no particular indication that it was doing so.  While there may be other precedents that point in the direction of regarding corporations as human beings, I am sure that Citizens United, if read honestly, does not belong listed among them.

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Guns in Tennessee

   Posted by: Robert    in Law

It seems judicial activism is alive and well in Tennessee.  Though information is scarce, it appears that a judge has ruled unconstitutional a law recently enacted by the state which allowed guns to be legally carried in restaurants that serve alcohol.  The opinion was apparently issued from the bench and I haven’t yet been able to hunt down a written opinion or transcript, but if a news report is to be believed, the judge’s decision is a mess of illogic and policy driven judicial craftsmanship.

As I understand the background of the case, it arises out of the new Tennessee law which allows guns to be carried in restaurants which sell alcohol, but not in bars.  The law works by repealing most of an earlier provision that prohibited guns in any alcohol-serving establishment.  A group of permit holders challenged the law in court, seeking a declaration that the law is unconstitutionally vague.  The law is vague, they claim, because it fails to clearly distinguish between restaurants (where guns are allowed) and bars (where they are not).  The judge agreed and struck down the law, which, by my understanding, reverts everything to the pre-law conditions where guns are prohibited wherever alcohol is sold.

Examining the results of the case closely, it becomes apparent that the court’s decision, however the opinion was written, was an exercise of judicial policymaking.  In order to even be heard in court, the challengers would have needed to show that they were harmed by the vagueness of the law (or, if this is a declaratory judgment, that they are likely to be harmed by it).  The only way someone is harmed by vagueness in the law is if they violate the law unknowingly.  The only possible way to violate the law unknowingly is to carry a gun into a bar that they thought was a restaurant.

The court’s decision purports to solve this problem by (effectively) making it illegal to carry guns in restaurants.  But this is not a solution at all.  Under the court’s decision, it is still illegal to carry a gun into a bar that you think is a restaurant.  Nothing changes except that a great number of legal carries now become illegal carries, causing harm to the rights of restaurateurs and patrons who had no problem having guns at the table.

Assuming that the law truly is vague on this point, the court had two valid options available.

The first option is a variation on the option chosen by the court: Eliminate the distinction between restaurants and bars.  However, the distinction would need to be eliminated in favor of gun carriers, because that is the only way to remove the hazard of being caught with a gun in a bar that you thought was a restaurant.  This option eliminates the vagueness entirely, and solves the problem at hand.  The downside, however, is that it rewrites the law to produce a result, guns in bars, which was expressly rejected by the political process.  Though not the atrocity of the actual opinion, this choice would still have been activist.

The second option is effectively to punt: Dismiss the case and leave the law, as it is, intact.  Over time, courts will be called on to decide whether or not particular establishments are restaurants or bars, building a body of common law precedent in the absence of legislative definition.  This sort of case by case decision making is certainly not as clean as a proper definition from the legislature, but it is a common procedure undertaken by the courts which ultimately yields a workable standard.  Further, while true that some people will end up on the wrong side of uncertainty, the Rule of Lenity will generally protect these people from harm.

It is that final option which the court should have selected.  Instead, the court chose to deviate from the duly enacted will of the people in pursuit of an outcome which does not resolve any harm the law may have caused.  Such a decision is hard to reconcile with anything other than an apparent policy preference from a judge now translated into law.

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