Two Interesting Supreme Court Cases

[billisonboard]

Okay, it is Brietbart so the headline is always suspect, but the cases themselves are interesting.

Supreme Court Takes Two Cases that Could Scale Back Federal Power

One is on eminent domain and another on the “Nondelegation Doctrine.” The particular case concerning eminent domain would actually increase federal power. The other would likely decrease federal action but not necessarily is power. The Executive Branch is more likely to act considering the gutless individuals in Congress.

I look forward to reading more once the cases are heard and decided.

[Wisconsin Beth]

I think they are scheduled to be argued in April.

I like SCOTUSblog for info on cases.

[Virgil Showlion]

One is on eminent domain and another on the “Nondelegation Doctrine.” The particular case concerning eminent domain would actually increase federal power.

ibid.:

The Court granted review in Knick v. Scott, which asks the justices to reconsider a precedent that requires property owners whose property has been taken by the government to fully exhaust all avenues available to them through a state government before they can claim a violation of their constitutional rights in the Fifth Amendment’s Takings Clause, a process that can take years.

Government can take private property via eminent domain to build highways, public buildings, or something like a wall along America’s southern border. The Constitution’s Takings Clause provides that the government cannot take a person’s property for public use unless the government gives the owner “just compensation” – such as fair market value – for the property.

The other would likely decrease federal action but not necessarily is power.

ibid:

The justices also granted review in Gundy v. United States, considering whether the Sex Offender Notification and Registration Act’s (SORNA) delegation of authority to the U.S. attorney general to issue certain regulations violates the “Nondelegation Doctrine.”

That doctrine provides that a law is unconstitutional when Congress delegates its lawmaking authority to the executive branch. The Court has not invalidated a federal law under that doctrine since 1935.

During the 1930s, the justices invoked that doctrine to strike down parts of President Franklin Roosevelt’s New Deal. Reviving that doctrine has long been a priority for judicial conservatives, as it would require Congress to spell out the details of laws and then answer directly to the voters, rather than empower bureaucrats to impose legal obligations through creating regulations. Reviving the nondelegation doctrine could significantly curtail the power of the administrative state.

Going by your own source, striking down Knick v. Scott would appear to be a great boon to any eminent domain'd citizen taking on the government, and a check on federal power.

Based on the description of Gundy v. United States, it appears to concern distribution of power within the federal government. Striking down delegation of various programs to the executive branch, well-known to be more entrenched and less accountable than the legislative, should reduce its power, which again strikes me as check on government power overall.

So... what are we missing?

[billisonboard]

Mar 12, 2018 8:01:50 GMT -5 Virgil Showlion said:

One is on eminent domain and another on the “Nondelegation Doctrine.” The particular case concerning eminent domain would actually increase federal power.

ibid.:

The Court granted review in Knick v. Scott, which asks the justices to reconsider a precedent that requires property owners whose property has been taken by the government to fully exhaust all avenues available to them through a state government before they can claim a violation of their constitutional rights in the Fifth Amendment’s Takings Clause, a process that can take years.

Government can take private property via eminent domain to build highways, public buildings, or something like a wall along America’s southern border. The Constitution’s Takings Clause provides that the government cannot take a person’s property for public use unless the government gives the owner “just compensation” – such as fair market value – for the property.

The other would likely decrease federal action but not necessarily is power.

ibid:

The justices also granted review in Gundy v. United States, considering whether the Sex Offender Notification and Registration Act’s (SORNA) delegation of authority to the U.S. attorney general to issue certain regulations violates the “Nondelegation Doctrine.”

That doctrine provides that a law is unconstitutional when Congress delegates its lawmaking authority to the executive branch. The Court has not invalidated a federal law under that doctrine since 1935.

During the 1930s, the justices invoked that doctrine to strike down parts of President Franklin Roosevelt’s New Deal. Reviving that doctrine has long been a priority for judicial conservatives, as it would require Congress to spell out the details of laws and then answer directly to the voters, rather than empower bureaucrats to impose legal obligations through creating regulations. Reviving the nondelegation doctrine could significantly curtail the power of the administrative state.

Going by your own source, striking down Knick v. Scott would appear to be a great boon to any eminent domain'd citizen taking on the government, and a check on federal power.

Based on the description of Gundy v. United States, it appears to concern distribution of power within the federal government. Striking down delegation of various programs to the executive branch, well-known to be more entrenched and less accountable than the legislative, should reduce its power, which again strikes me as check on government power overall.

So... what are we missing?

Well:

In Knick v. Scott: What we might be missing is the plaintiff is asking that federal courts be invited in to make rules before all possible state remedies have been exhausted as is currently the requirement in cases which involve eminent domain being declared by governmental units below the federal level.  A ruling in favor of the plaintiffs would thereby increase the power of the Federal government (unless we don't consider federal courts to be a part of the federal government).

In Gundy v. United States: What we might be missing is our stating of the same concept that we felt the need to restate in our posting although with a slightly different sense of whether power potentially not used is the same as power decreased.

[Virgil Showlion]

Mar 12, 2018 11:56:17 GMT -5 billisonboard said:

What we might be missing is the plaintiff is asking that federal courts be invited in to make rules before all possible state remedies have been exhausted as is currently the requirement in cases which involve eminent domain being declared by governmental units below the federal level.

Ah. So to make sure I've got this straight: Joe plaintiff has been eminent domain'd by the state, and is appealing to the federal government to override (or for more compensation). As it stands, Joe must first beat his head against the state's wall for a certain number of years, exhausting his fruitless avenues of appeal, before he's allowed to appeal to the feds. But if the ruling is overturned, Joe won't have to beat his head the full amount before federal options become available to him, thus granting more power to the federal government in a sense.

Am I close?

Mar 12, 2018 11:56:17 GMT -5 billisonboard said:

In Gundy v. United States: What we might be missing is our stating of the same concept that we felt the need to restate in our posting although with a slightly different sense of whether power potentially not used is the same as power decreased.

Your statement was, "The other would likely decrease federal action but not necessarily is (sic) power."

There are several possible ways to interpret this, but I read it as "Gundy will likely decrease the degree to which federal government micromanages the country, but not necessarily its power."

I don't see how the clauses are independent. Gundy would shift responsibilities from the executive to the legislative, which is more accountable. Among other things, I assume this means unpopular programs are more likely to get the axe. If so, the federal government has less power (to maintain unpopular programs) and "federal action" will decrease. If not, the feds will continue to micromanage the country with as much power as they've ever had. Hence, as I see it, your statement should be:

"The other would likely decrease federal action and power, but not necessarily. Also, I hate snow leopards."

Indeed, we can all get behind this.

[billisonboard]

Mar 12, 2018 16:13:56 GMT -5 Virgil Showlion said:

Mar 12, 2018 11:56:17 GMT -5 billisonboard said:

What we might be missing is the plaintiff is asking that federal courts be invited in to make rules before all possible state remedies have been exhausted as is currently the requirement in cases which involve eminent domain being declared by governmental units below the federal level.

Ah. So to make sure I've got this straight: Joe plaintiff has been eminent domain'd by the state, and is appealing to the federal government to override (or for more compensation). As it stands, Joe must first beat his head against the state's wall for a certain number of years, exhausting his fruitless avenues of appeal, before he's allowed to appeal to the feds. But if the ruling is overturned, Joe won't have to beat his head the full amount before federal options become available to him, thus granting more power to the federal government in a sense.

Am I close?

Add in "by local" to go with " the state" and I think you are spot on. My main interest in the topic of eminent domain is when it involves developers using governmental power to advance their plans.

Mar 12, 2018 11:56:17 GMT -5 billisonboard said:

In Gundy v. United States: What we might be missing is our stating of the same concept that we felt the need to restate in our posting although with a slightly different sense of whether power potentially not used is the same as power decreased.

Your statement was, "The other would likely decrease federal action but not necessarily is (sic) power."

There are several possible ways to interpret this, but I read it as "Gundy will likely decrease the degree to which federal government micromanages the country, but not necessarily its power."

I don't see how the clauses are independent. Gundy would shift responsibilities from the executive to the legislative, which is more accountable. Among other things, I assume this means unpopular programs are more likely to get the axe. If so, the federal government has less power (to maintain unpopular programs) and "federal action" will decrease. If not, the feds will continue to micromanage the country with as much power as they've ever had. Hence, as I see it, your statement should be:

"The other would likely decrease federal action and power, but not necessarily. Also, I hate snow leopards."

Indeed, we can all get behind this.

If the Supreme Court were to begin to assert the Nondelegation Doctrine to a meaningful degree, it would force the Legislative Branch to pass laws without as much discretionary power being given to the Executive Branch to operationalize the laws. I have long advocated for a lessening of the Imperial Presidency and I see this as a good companion piece to that. I would cautious a bit on the idea of "unpopular programs". The specific program in Gundy is the Sex Offender Notification and Registration Act’s (SORNA). Is it an unpopular program or are there just some of ways that the executive branch has implemented it that are being questioned? 

[Virgil Showlion]

Mar 12, 2018 16:47:09 GMT -5 billisonboard said:

Is it an unpopular program or are there just some of ways that the executive branch has implemented it that are being questioned?

No idea. Whatever the SCOTUS ultimately decides, however, the precedent will be far more important than one bill about registering sex offenders.

I got the impression governments were done with sex offender registries and "name and shame" policies after the research concluded for the umpteenth time they have the opposite effect of what's intended.

Perhaps that was just in Canada, though. You can look it up for us if you're keen on a little research tonight.

[NomoreDramaQ1015]

Is it an unpopular program or are there just some of ways that the executive branch has implemented it that are being questioned?

It is becoming unpopular.   There have been articles in the paper about it because it only works if you know where these people live.   The restrictions on where they can live has become so narrow that many registered sex offenders are now homeless.  If they are homeless there is no way to keep tabs on them.   They could be living in the dumpster right on school grounds for all you know.

So the debate has become is it better to let them live in a house within X amount of feet of a school so at least we know where they are and officials can keep tabs on them, or do we keep punitively punishing them and drive them even further under ground.

[billisonboard]

Motion of petitioner for leave to proceed in forma pauperis GRANTED. The petition for a writ of certiorari is GRANTED limited to Question 4 presented by the petition.

QUESTIONS PRESENTED
(1) Whether convicted sex offenders are "required to register" under the federal Sex Offender Notification and Registration Act ("SORNA") while in custody, regardless of how long they have until release.
(2) Whether all offenders convicted of a qualifying sex offense prior to SORNA's enactment are "required to register" under SORNA no later than August 1, 2008.
(3) Whether a defendant violates 18 U.S.C. § 2250(a), which requires interstate travel, where his only movement between states occurs while he is in the custody of the Federal Bureau of Prisons and serving a prison sentence.
(4) Whether SORNA's delegation of authority to the Attorney General to issue regulations under 42 U.S.C. 5 16913(d) violates the nondelegation doctrine

Gundy v. United States (emphasis added)

The principle in administrative law that congress cannot delegate its legislative powers to agencies. Rather, when it instructs agencies to regulate, it must give them an "intelligible principle” on which to base their regulations.

Nondelegation Doctrine

Looks like they had the opportunity to look at the question of registering but specifically said no.

[billisonboard]

I like this as a quick look at the issue: Reviving the Nondelegation Doctrine

[Virgil Showlion]

ibid:

Here is Gorsuch’s proposed standard, which he believes is consistent with Supreme Court case law in the Touby v. US case:

Distilling Touby to its essence, at least three “meaningful” limitations emerge: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?). These three criteria could easily be applied to most any delegation challenge in the criminal context and provide the more meaningful standard the Court has long sought. In fact, since Touby a number of courts of appeals have employed something very much like them when assessing delegation challenges to federal criminal statutes.

Unless there's a world of fudge behind "clear and generally applicable rule", based on this heuristic I really can't see the SCOTUS not striking down "Do whatever with pre-registry offenders. It's all good." as unconstitutional.

[billisonboard]

Mar 13, 2018 15:25:45 GMT -5 Virgil Showlion said:

ibid:

Here is Gorsuch’s proposed standard, which he believes is consistent with Supreme Court case law in the Touby v. US case:

Distilling Touby to its essence, at least three “meaningful” limitations emerge: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?). These three criteria could easily be applied to most any delegation challenge in the criminal context and provide the more meaningful standard the Court has long sought. In fact, since Touby a number of courts of appeals have employed something very much like them when assessing delegation challenges to federal criminal statutes.

Unless there's a world of fudge behind "clear and generally applicable rule", based on this heuristic I really can't see the SCOTUS not striking down "Do whatever with pre-registry offenders. It's all good." as unconstitutional.

I am not as confident at you on this: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug convicted sex offenders must register) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard? do convicted sex offenders pose an imminent hazard to the general public?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use? Hmmmm?).

Could the court set this proposed standard as the one that they measure the law against and find that it meets the standard, setting up future laws to have to meet it?  Kinda a Marbury v Madison type ruling.

[Virgil Showlion]

My thoughts followed the same trajectory, but I conceded the heuristic returns "strike it down" in this case since I couldn't find a (1), (2) and (3) that fit and that would also grant the AG discretion as to who the law applied to.

The only one I could think of that came close: (1) sex offenders in class A must register; the AG must determine who exactly is a member of class A, (2) all sex offenders convicted after 01/2017 are members of class A; additionally, the AG must compile a comprehensive report on whether including offenders convicted before this date is in the public interest, (3) the AG shall include prior-to-date offenders if and only if the report concludes this is surely in the public interest.

With sufficient waving of arms, a lawyer could argue that "compiling a comprehensive report on whether including offenders convicted before this date is in the public interest" is a "factual determination" as required for (2). In reality, I wouldn't trust the AG as far as I could throw him not to have a conversation:

AG: "Thank you for the appointment, Mr. President."
POTUS: "Right. Down to business."
AG: "What's our position on forcing pre-2017 sex offenders to register with the government?"
POTUS: "Sex offenders are plain bad juju. I say they should all register."
AG: "Understood."

(two hours later)

AG: "Kyle?"
Staffer: "Yes, sir?"
AG: "I want you to put together a team and compile a report on all the reasons why forcing pre-2017 sex offenders to register with the government is a great idea. At the end, it should conclude that sex offenders are bad juju and they should all register."
Staffer: "Right away, sir."

Duties successfully delegated.

If I sat on the bench, based on what I know now, I wouldn't allow a "compile a report" cop-out for this reason, but it might pass muster with the current justices. In Gundy, they're not even falling back on a to-be-compiled report.

The issue is major; it's not as if there's just a handful of individuals affected by the the AG's choice. It needs resolution, Congress didn't bother to resolve it, and I can think of nothing that fits in (1), (2), and (3) such that letting the AG pick up the slack is constitutional. Hence I'd be very surprised if the SCOTUS didn't strike it down, assuming they go by Justice Gorsuch's heuristic.

[billisonboard]

Mar 13, 2018 18:16:48 GMT -5 Virgil Showlion said:

My thoughts followed the same trajectory, but I conceded the heuristic returns "strike it down" in this case since I couldn't find a (1), (2) and (3) that fit and that would also grant the AG discretion as to who the law applied to.

The only one I could think of that came close: (1) sex offenders in class A must register; the AG must determine who exactly is a member of class A, (2) all sex offenders convicted after 01/2017 are members of class A; additionally, the AG must compile a comprehensive report on whether including offenders convicted before this date is in the public interest, (3) the AG shall include prior-to-date offenders if and only if the report concludes this is surely in the public interest.
...

Here is a link to the law. I draw your attention to the dates in Section 20901 Declaration of purpose and Section 20911 Relevant definitions, including Amie Zyla expansion of sex offender definition and expanded inclusion of child predators.