Judicial candidates face loss of free speech rights

David B. Rivkin Jr., and Andrew M. Grossman, January 18, 2015

For years, those who favor restrictions on campaign spending have insisted that their real interest lies in fighting corruption, not limiting political speech. Well, here’s a free-speech litmus test: Can a state block candidates from asking for campaign contributions that are themselves legal?

That’s the issue the Supreme Court will face Tuesday in Williams-Yulee v. The Florida Bar. Like most states, Florida elects or retains judges by popular vote. Many of those states prohibit judicial candidates from personally soliciting campaign contributions. This restriction, supporters say, prevents corruption, bias and the appearance of bias.

It’s hard to see how. Florida’s law allows contributions of up to $1,000 to judicial campaigns, and that limit cannot be significantly lowered (much less banned) without violating the First Amendment. Florida’s law allows judicial candidates to learn who their contributors are and to ask for other kinds of campaign support, including volunteer work and service on their campaign committees.

But a judicial candidate cannot post a request for support on the campaign website, cannot appear before a local civic group to request contributions, and cannot sign a fundraising letter asking for support. In other words, a candidate can accept contributions, just cannot solicit them. But solicitation is just speech.

That last restriction is the one that bit Lanell Williams-Yulee, a public defender and first-time candidate seeking election to a county court. She made the mistake of signing a letter announcing her candidacy and asking friends to contribute whatever they could. For that, she was reprimanded and fined by the Florida Supreme Court. Read more »

Federal Antidrug Law Goes Up in Smoke

By DAVID B. RIVKIN JR. And ELIZABETH PRICE FOLEY

Dec. 28, 2014 6:52 p.m. ET

The attorneys general of Nebraska and Oklahoma have asked the Supreme Court to declare unconstitutional Colorado’s law legalizing marijuana. The lawsuit states that, “The Constitution and the federal anti-drug laws do not permit the development of a patchwork of state and local pro-drug policies and licensed-distribution schemes throughout the country which conflict with federal laws.”

Many conservatives have criticized Nebraska and Oklahoma for being “fair-weather federalists” because their claims hinge, in part, on Gonzales v. Raich, a 2005 Supreme Court decision, upholding the broad reach of Congress’s power to regulate commerce.

Conservatives’ ire instead should be directed at the Obama administration’s decision to suspend enforcement of the federal law prohibiting marijuana—a decision so warping the rule of law that the complaining states’ reliance on Raich is justified and necessary.

In 1970 Congress passed the Controlled Substances Act, or CSA, listing marijuana as a Schedule I drug, and thus illegal to manufacture, distribute or possess. Nonetheless, in August 2013 the Obama administration employed its now-signature response to disfavored laws, issuing a memo directing U.S. law enforcement to refrain from using “limited investigative and prosecutorial resources” to pursue marijuana-related violations of the CSA in states that chose to regulate marijuana businesses. The new law-by-memo told states they are free to ignore the federal ban. Read more »

Winning civil justice for Michael Brown and Eric Garner

By David B. Rivkin Jr. and Andrew Grossman

The quest for justice for Michael Brown and Eric Garner did not end with the decisions of grand juries not to indict the police officers whose actions led to those men’s deaths. Those frustrated by the grand juries’ dispositions can take comfort in knowing that victims of police violence, as well as their families, can get their day in court.

The family of Garner, who died after being placed in an apparent chokehold by a New York police officer, has already announced plans to sue the officer and the city for $75 million. Michael Brown’s family has not yet said whether they intend to bring a lawsuit against former Ferguson, Mo., police officer Darren Wilson or the city, but their lawyer has indicated the possibility is being considered.

These suits may succeed where criminal charges failed. To protect against wrongful conviction, criminal charges must be proved “beyond a reasonable doubt,” the highest standard in law. By contrast, civil plaintiffs need convince a jury only that their claims are supported by a “preponderance of the evidence” — a hair more than 50 percent.

Both families could bring claims for wrongful death, arguing that the officers failed to exercise appropriate care in the confrontations that resulted in the deaths of their family members. Such a claim by Garner’s family would be particularly strong, given that the New York Police Department long ago banned chokeholds precisely to prevent choking-related deaths. As for Brown, the circumstances of his death are less clear at this time, but a trial would provide an opportunity for all the facts to come out. If the “hands-up-don’t-shoot” narrative is correct, the Brown family should be able to prevail.

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Obama Cynically Cut China Deal To Force Energy Price Hikes On U.S Consumers

Whiplash is an occupational risk for those keeping track of President Barack Obama’s muscular exertions of executive power. In just the few weeks since his party’s shellacking in the midterm elections, the president has made major moves on immigration, Internet regulation, and air pollution, just to name a few.

One problem with activist government is that too many actions that merit serious concern and skepticism fall by the wayside. Among them is the president’s announced climate deal with China, which hit front pages a week after the election before sliding into obscurity, overtaken by so many other events. But like the president’s immigration actions, this actually is something new, and more than a little sinister.

A Method to His Double-Dealing Madness

Taken at face value, the deal doesn’t make any sense—at least, not from the United States national-interest perspective. The United States agrees to costly massive cuts in greenhouse gas emissions: 26 to 28 percent below 2005 levels by 2025, far more than the 17-percent cut the president previously targeted. In return, China agrees to…do nothing for 16 years, until 2030. Its emissions won’t increase beyond their level that year, according to the agreement. While this might appear to be a concession, it really isn’t: although emissions are growing at a rapid clip in China today, most projections see them leveling off right around—you guessed it—2030. In other words, this may be the most one-sided deal since the Dutch purchased Manhattan.

But there is a method to what would otherwise seem to be pure madness. As the numbers suggest, the deal has just about nothing to do with China, which will go on its merry way building coal-fired plants to slake its thirst for cheap and secure energy. But it has everything to do with Americans’ continued reliance on coal-generated electricity.

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Obama’s Immigration Enablers

A few hours before announcing his new immigration policy, President Obama received an opinion blessing its legality from the Office of Legal Counsel. Regrettably, the OLC’s made-to-order legal analysis is shockingly flawed in five major respects.

First, the OLC justified the policy as a prioritization of government’s “limited resources.” But the executive order does more than prioritize. It rewrites existing law. Illegal immigrants won’t be deported if they aren’t a threat to national security, public safety or border security. Beyond these three categories, deportation may be pursued only if it serves an “important federal interest.”

Under current law, by contrast, anyone entering the U.S. illegally is a “deportable alien” who “shall, upon the order of the Attorney General, be removed.” The president’s policy transforms an entire category of aliens deemed deportable into two different categories, whereby some are deportable and some aren’t. This is a shift in kind, not merely degree.

A president prioritizing resources would do what previous presidents have done: enforce the entirety of immigration law, while allowing prosecutors to make case-by-case determinations. By announcing a global policy of nonenforcement against certain categories, Mr. Obama condones unlawful behavior, weakening the law’s deterrent impact, and allows lawbreakers to remain without fear of deportation. As he puts it, “All we’re saying is we are not going to deport you.” These individuals are no longer deportable, although Congress has declared them so.

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Let the President Decide on Jerusalem

Since the 1990s, Congress has maintained that Jerusalem should be recognized as Israel’s capital. Since Israel’s founding in 1948, presidents have stated that Jerusalem’s status can only be decided as part of a broader peace settlement. On Monday this dispute again reached the Supreme Court, and it offers the justices a unique opportunity to elucidate the proper way to resolve separation-of-power disputes between Congress and the executive.

Zivotofsky v. Kerry involves Menachem Zivotofsky, a 12-year-old Jerusalem-born American citizen. His parents want Israel identified as his birthplace on his passport. Section 214(d) of the Foreign Relations Authorization Act, Fiscal Year 2003, permits this choice, but the secretary of state refused to comply, listing Jerusalem alone as his place of birth. The secretary argues that the law violates established U.S. foreign policy and interferes with the president’s exclusive power to recognize foreign states and their territorial extent.

In the first round of this litigation, the U.S. Court of Appeals for the District of Columbia concluded that this contest presented a political question that the courts could not answer. The Supreme Court reversed that decision, explaining that however “political” the circumstances, the question was a straightforward one of constitutional law suitable for judicial resolution.

The D.C. Circuit reheard the case last year and concluded that section 214(d) is unconstitutional because the president has the exclusive authority to determine the territorial boundaries of foreign states, their capitals and their governments—at least for purposes of U.S. diplomatic intercourse.

This authority is based in clear constitutional text that gives the president the power “to receive Ambassadors and other public Ministers.” Although the court found this language ambiguous (relying instead on historical practice and Supreme Court statements that the president alone has the power to recognize a foreign state as sovereign), the framers used this language precisely and to a purpose.

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