First Amendment

Plutocrats, free-riders, and the GOP war on organized labor (and the Democratic Party) in the Supreme Court today

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The U.S. Supreme Court will hear oral argument today in Janus v. American Federation of State, County, and Municipal Employees, Council 31, the third attempt by wealthy anti-labor interests to overrule Abood v. Detroit Board of Education (1977), and public-sector “agency shop” arrangements under the First Amendment.

Amy Howe at SCOTUSblog has the history and legal posture of this case in Argument preview: For the third time, justices take on union-fee issue:

In 1977, in Abood v. Detroit Board of Education, the Supreme Court ruled that government employees like Janus who do not belong to a union can be required to pay a fee – often known as a “fair share” or “agency” fee – to cover the union’s costs to negotiate a contract that applies to all public employees, including those who are not union members. The justices reasoned then that allowing the fees would help to avoid both labor strife and the prospect that nonmembers could be “free-riders” who benefit from the union’s collective bargaining efforts without having to pay for them.

But in recent years, conservative think tanks proposing expansive (novel) interpretations of the First Amendment well beyond the original meaning and purpose intended by the Founding Fathers, financed by conservative billionaires, are using the First Amendment in much the same way they used “substantive due process” during the Lochner era (circa 1897–1937) to strike down minimum wage and labor laws to protect “freedom of contract.” While the Lochner era approach has long since been discredited and abandoned by the court, the right-wing keeps trying to bring it back and to revive it. See George Will, Why liberals fear the ‘Lochner’ decision (2011).

An example of this is the Illinois Policy Institute, one prong of a broader campaign against public-sector unions, backed by some of the biggest donors on the right. Behind a Key Anti-Labor Case, a Web of Conservative Donors:

It is an effort that will reach its apex on Monday, when the Supreme Court hears a case that could cripple public-sector unions by allowing the workers they represent to avoid paying fees.

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Register high school students to vote at March for Our Lives and #NeverAgain events

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In 2015, Arizona became the 1st state to pass law requiring high-school civics test: The American Civics Act will require students to pass 60 of the 100 questions on the U.S. Immigration and Naturalization civics test. They can first take the test in eighth grade, and can retake it until they pass.

If Arizona really wants to teach its children civics – the obligation of American citizens to actively participate in the democratic political process, at a minimum, through voting  – then an opportunity to put actions before empty platitudes will present itself in the coming weeks.

The students from Marjory Stoneman Douglas High School in Parkland, Florida,  have organized the March for Our Lives and #NeverAgain movement. Several civics events are planned, i.e., the First Amendment rights of freedom of speech, the right of the people peaceably to assemble, and to petition the government for a redress of grievances:

Students, teachers, and allies will take part in a for 17 minutes at 10am on March 14, 2018. Join us in saying !http://bit.ly/EnoughMarch14.

On March 24 students, teachers and allies will take to the streets of Washington, DC and our communities across the country for March for Our Lives. We will be the last group of students who have to stand up for fallen children due to senseless gun violence. March with us. Sign up at marchforourlives.com.

On April 20th students and teachers will participate in the National School Walkout at 10:00 a.m. Sit outside your schools and peacefully protest. Make some noise. Voice your thoughts. “We are students, we are victims, we are change.” Sign the petition at Change.org National High School Walk-Out for Anti Gun Violence.

My thought was that the Arizona Secretary of State’s office and our 15 County Recorder’s offices, along with voter registration organizations such as the League of Women Voters and many others, could coordinate with Arizona’s school districts to make voter registration tables available at every Arizona high school for seniors participating in these extraordinary events to register to vote. High school civics teachers should see this as a golden opportunity to teach their students about civics.

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Breaking: Fourth Circuit Court of Appeals rules Trump Muslim travel ban is unconstitutional

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The Fourth Circuit Court of Appeals, sitting en banc, ruled on Thursday in a 9-4 decision that the latest iteration of President Trump’s travel ban is unconstitutional, citing that it unlawfully discriminates against Muslims. Opinion (.pdf).

The Hill reports, Appeals court rules latest Trump travel ban is unconstitutional:

A Virginia-based federal court of appeals on Thursday ruled the latest version of President Trump’s travel ban unconstitutional, citing that it unlawfully discriminates against Muslims.

In a 9-4 decision, a majority of the judges on the Fourth Circuit Court of Appeals said it examined official statements from Trump and other executive branch officials, along with the proclamation itself, and found it “unconstitutionally tainted with animus toward Islam.”

The court is the second federal appeals court to rule against the travel ban.

The most recent iteration of the ban bars people from eight countries — six of which are predominantly Muslim — from coming to the U.S.

The Supreme Court had decided in December that it would allow the latest travel ban to take effect while litigation ran its course [in this case].

It has now run its course. You can rest assured that Confederate Attorney General Jefferson Beauregard Sessions III will file an appeal back to the U.S. Supreme Court from the Fourth Circuit Court of Appeals decision.

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Partisan gerrymandering cases headed to the U.S. Supreme Court

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There has been a lot happening in partisan gerrymandering lawsuits lately, and luckily Rick Hasen at Elction Law Blog has put together a summary of where these cases stand today that will save me a lot of time. The State of Play on Partisan Gerrymandering Cases at the Supreme Court:

Back in 2004 the Supreme Court in Vieth v. Jublelirer split 4-1-4 over what to do about claims that partisan gerrymandering violates the U.S. Constitution. Four Justices said it was non-justiciable, four Justices said it was justiciable and raised a variety of challenges, and Justice Kennedy, in the middle, agreed with the Court’s liberals that the cases were justiciable, but agreed with the Court’s conservatives that the proposed standards didn’t work.  He essentially told everyone to keep working on the issue and come back, maybe looking at the First Amendment, maybe history, and maybe computers.  The cases at or coming to the Court seek to satisfy Justice Kennedy in various ways.

Here’s the state of play; the Supreme Court heard argument in October in Gill v. Whitford involving a challenge to state legislative districts in Wisconsin. Gill raises a partisan gerrymandering challenge under the Equal Protection Clause, and the McGhee/Stephanopoulos “efficiency gap” figured in (but was not the entire basis) for the analysis. Last month, the Court somewhat surprisingly also agreed to hear full argument in Beniske v. Lamone, a case challenging a Maryland congressional district as a partisan gerrymander under the First Amendment. I explained in this LA Times piece why the Court might have agreed to full argument in Benisek v. Lamone. Argument in the Maryland case will be later in the Spring.

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Constitution Applies to All

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I was honored to do the coin toss for Military Appreciation Night at a high school football game recently. Thankfully, the loss of the toss didn’t determine the outcome of the game for the home team. They went on to win the game and I enjoyed the opportunity to talk to many of the other … Read more