All posts by Gary Nolan

Your humble contributor is an avid political enthusiast, science junkie, former small business owner, limited government, constitutionalist, and all around lover of liberty. I make every effort to use logic and reasoning, not hate, ad hominem attacks, nor logical fallacy arguments.
SCOTUS For The Average Joe

Average Joe SCOTUS: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

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We all remember the Affordable Care Act, right? The gift that keeps on giving? Anyway, part of that monstrosity, is a provision for women’s health which states that women should get preventative health care, such as contraceptives, because somehow the rest of us should pay for others to enjoy pleasure. This is after all to prevent pregnancies, and the two people have sex, are only doing so for pleasure, if they are not trying to get pregnant.

Anyway, initially the rule stipulated non-profit religious organizations had to file an exemption form, if they believed in some overarching theism that said every sperm is sacred. If they did, they could be exempted.

But then, Hobby Lobby came along in 2014, and were like, we may not be a fucking church, but we still believe every sperm is sacred up in this bitch. We think we deserve such an exemption, too—SCOTUS agreed.

Then also in 2014, in Wheaton v. Burwell, SCOTUS ruled that you don’t have to file for an exemption, because that’s an undue burden. You just have to notify Health and Human Services (HHS) you’re exercising your right to object.

But it gets better. In 2017 in Zubik v. Burwell, these fuckers decided that just having to notify HHS they intended to abstain was too much effort, and were like, “First amendment, assholes. We don’t have to tell you shit.” But the court was unimpressed, and told them to fuck off.

In 2017, Trump and his merry band of misfits amended the rules, allowing for a “moral” exemption, making it yet again easier to get out of this shit.

Pennsylvania and New Jersey challenged these rules, arguing it was some bullshit discrimination, and a district court agreed.

So here we are at SCOTUS to determine if the federal government was allowed to exempt such people, and if the Little Sisters peeps have standing to sue here.

Ginsburg questioned the idea that the exemptions outside of churches exist at all, because that’s not how the law was written. But the petitioner argued that the law was written to give HHS discretion on whether to require contraceptive care. So since the HHS is run by the executive branch, they get to decide on that rule, which Trump did.

In a 7:2 majority, where Ginsburg and Sotomayor dissented, SCOTUS decided that the executive branch, which directs the Dept of Health and Human Services (DHHS) has the authority to write its own rules, and so they did. They ruled that the rules only required “additional preventive care and screenings,” and the ambiguousness of that statement leaves the door open for DHHS to write it’s own rules within that framework.

Ginsburg and Sotomayor agreed they were allowed to write their own rules within that framework, but this was negating it altogether, which the ACA would not allow.

 

SCOTUS For The Average Joe

Average Joe SCOTUS: Trump v. Vance

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Related to the Trump v. Mazars case, where the House of Representatives are trying to subpoena Trump’s financial records, here is a case where some douchebag New York county prosecutor is trying to go after Trump, and issued a subpoena for his tax records from Mazars as well.

Trump is again suing to quash the subpoena, the issue at play being whether he has executive privilege of such information, and therefore a right to not comply.

Whereas the house was arguing these records were requested to help draft legislation, this county prosecutor is more honest, claiming that they have reports of illegal activity by the Trump organization in New York County over the last ten years, and these subpoena’s are to aid in that investigation.

Again, it seems we have a situation where there’s no evidence of a crime, but the government just believes he’s a bad guy, and are hoping to find evidence of something they can prosecute. This is not me being a political hack. If Trump did commit a crime, I want his ass to pay for it. But no party can or has reported an actual crime that occurred that they are investigating.

I think Trump’s petitioner summed it up quite nicely.

Jay Alan Sekulow

Thank you, Mr. Chief Justice. Let me start with this, and there’s some agreement.

The New York district attorney, New York County district attorney, acknowledges that their subpoena implicates Article II issues and burdens.

They also agree that there is harms that could arise to the presidency.

We say those harms have actually existed. The other aspect of this is the ordering, who carries the burden here.

That seems to be the issue that’s left open.

This Court’s decision in Cheney answered that very clearly, that said that the exacting standard is carried by the party requesting the information. So it would be carried by the Respondent in this particular case. There has been no showing and no findings of heightened need standards being met here.

That — and I think it’s again also important to remember — and I think this came up in the context of earlier questioning — there’s a different stigma that attaches to criminal process than civil litigation.

And I don’t think that stigma should be ignored in a case like this. But the irony of all of this is that the House of Representatives and the district attorney issued essentially the same subpoenas to the same custodian for the same records. The House said it wants the records so it can legislate, not for law enforcement reasons.

The district attorney says he wants the same records for law enforcement reasons; he has no legislative authority. But what’s really happening here could not be clearer.

The presidency is being harassed and undermined with improper process that was issued, in our view, for illegitimate reasons.

The copying of the subpoena speaks to that. The framers saw this coming, and they structured the Constitution to protect the President from this encroachment. Thank you, Mr. Chief Justice.

In a 7:2 decision where Alito and Thomas dissented, agreeing that a president is not above the law, but Thomas saying that in situations such as this, they felt a sitting president should potentially receive relief from an overzealous prosecutor, and Alito believed that the prosecutor should have a higher burden to go after a sitting president.  SCOTUS determined that there’s nothing in the Constitution what increases the burden on a county prosecutor when pursuing criminal action against a president.

They also decided that there is nothing unreasonable to ask a president to provide evidence in the pursuance of a criminal investigation.

It’s also worth noting that the two dissenters were NOT Trump’s two appointees, Kavanaugh and Gorsuch. So if there was a concern of them being biased towards the person who appointed them, I guess you can through that shit in the trash.

SCOTUS For The Average Joe

Average Joe SCOTUS: McGirt v. Oklahoma

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Pretty simple case here. Native American grade A scumbag Jimcy McGirt got busted molesting a kid. However, this act occurred on land reserved for Native Americans by the federal government.

So Jimcy, trying anything imaginable to beat this heinous act, is trying to argue the state of Oklahoma doesn’t have jurisdiction here, since it occurred on federal lands. As such, state laws such as the one he’s accused of violating, do not apply to him on the reservation.

So now SCOTUS gets to decide if states can prosecute Native Americans committing major crimes on land reserved for native Americans by the federal government.

In a 5:4 majority (Ginsburg, Breyer, Sotomayor, Kagan, and Gorsuch), SCOTUS ruled that the Major Crimes Act gives the federal government the sole right to prosecute assholes like McGirt. That McGirt committed his crimes on federally-reserved Creek Nation land. That just because it wasn’t initially called a reservation, doesn’t mean it isn’t, and that Congress can’t just take away their land.

SCOTUS For The Average Joe

Average Joe SCOTUS: Edwards v. Vannoy

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Alleged all around scumbag Thedrick Edwards was convicted of several robberies and rape in 2006. Here’s the rub with that shit. At Edwards trial, the prosecutor excluded every black juror they could, and the one remaining voted to acquit. But in Louisiana, at the time, only a 10-2 vote was needed for a conviction, so off to prison he went.

Since then, last year, SCOTUS decided Ramos v. Louisiana, where they basically made it law of the land that a jury must be unanimous for convictions in all state and federal courts. So now this case is to decide if that ruling is retroactive, and thus Edwards should get a hung jury, and potentially be forced to either be retried, or have his case dropped.

Andre Belanger, counsel for Edwards,  swung for the fences when he closed by saying:

Jury unanimity predates the founding and ranks amongst our most indispensable rights. It significantly improves the accuracy and fairness because a verdict taken from 11 is no verdict at all. The state has no legitimate interests in avoiding retroactivity.

Louisiana’s nonunanimous jury scheme was thoroughly racist and discriminatory in its origin.

As members of this Court said in Ramos, we should not perpetuate something we all know to be wrong only because we fear the consequences of being right. Thank you, Mr. Chief Justice.

Counsel for Vannos is basically arguing the merits of having convictions for crimes when she opened up by saying:

There can be no doubt that declaring the Ramos rule retroactive unsettles thousands of cases that involve terrible crimes in all three jurisdictions.

Requiring new trials in long-final criminal cases would be impossible in sum and particularly unfair to the victims of these crimes. Ramos is unquestionably a new rule. This Court has held on numerous occasions that a discarded precedent is the clearest sign of a new rule.

She’s basically arguing that she doesn’t give a fuck if some of these people are wrongly convicted according to the new Ramos rule, it’ll be a bunch of work for the state of Louisiana to deal with all these people wrongly convicted. This position is depraved AF.

In closing arguments, counsel for Edwards again, dropped a pretty heavy hammer, stating:

As this Court said in Ballew, the risk of sending 10 innocent people to jail is greater than the risk of sending one guilty person free.

In the end, the state has no legitimate interest in avoiding retroactivity but for its desire to let Mr. Edwards languish in Angola for the rest of his life. On what grounds can we let this happen when we know his conviction is unconstitutional? The answer to that question is none. Thank you, Mr. Chief Justice.

In a 6:3 partisan decision, SCOTUS ruled in favor of Vannoy. The unanimity rule is not retroactive. In order for this to be retroactive, it would have to be what they call a “watershed” exception. They defined this as “alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding.”

Since this is simply a new rule, a new opinion, a new precedent, or whatever the fuck you want to call it, it isn’t a “watershed” thing, and thus isn’t retroactive.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/19-5807

SCOTUS For The Average Joe

Average Joe SCOTUS: CIC Services LLC v. Internal Revenue Service

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Back in 2004, Congress decided to charge the commie fucks at the IRS with trying to uncover tax shelters, because it’s never really YOUR money now, is it?

The IRS went about this by requiring accountants to report “reportable transactions” which they would go on to define. If not paid, there would be a hefty fine, we’re calling a tax. November 2016, they included what they called “micro-captive transactions,” which if not reported, would put the IRS gestapo on your ass.

CIC services, a company that does these micro-captive transactions decided to sue, arguing that the IRS’s rule violates the Anti-Injunction Act which says, “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.”

CIC argued they were harmed, because this rule was enforced without any prior discussion, and therefore they didn’t have time to properly comply with it, and this is against rules set for in the Anti-Injunction Act. While the text of the AIA bars certain taxes, CIC is basically arguing tax rules, that aren’t necessarily taxes, should be barred as well for the same reason, since they consider the fines for violating the rules, also a tax.

As CIC’s counsel stated in summation:

Cameron T. Norris

Thank you, Mr. Chief Justice. Notice 16-66 labels my client’s industry a reportable transaction, a kind of scarlet letter that triggers burdensome reporting requirements and makes it much harder to attract clients. Labeling something a reportable transaction is serious, which is why Congress told the IRS to use notice-and-comment rulemaking.

When the IRS refused to do that, CIC did precisely what we want law-abiding citizens to do: It filed a pre-enforcement suit under the APA, and it is fully complying with the reporting requirements while its case is pending. According to the government, however, what CIC should have done is deliberately violate the tax code.

The government’s path would require CIC’s members to commit a crime, violate their ethical obligations, and convince the IRS to assess it tax penalties.

No law-abiding company or individual would ever do this. Ruling for the government, thus, does not delay judicial review, it denies it altogether.

At the heart of this matter, CIC is basically arguing that the only way they can fight this tax, is to break the law first, by not submitting the info. Then when hit with a fine, challenge that fine in order to get the courts to review it. They obviously think that’s pretty goddamn unfair. They believe they should be able to challenge it before they violate it, which they’re trying to do here, and a judgement for them would give them.

In a unanimous decision, SCOTUS ruled in favor of CIC Services. They can indeed sue without triggering and Anti-Injunction Act. They did the right thing, and they’ve been vindicated.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/19-930

SCOTUS For The Average Joe

Average Joe SCOTUS: Van Buren v. United States

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Scumbag cop Nathan Van Buren was “friends” with another scumbag, Andrew Albo. Albo liked the ladies. Especially the ones he paid to have sex with him. Van Buren decided to shake Albo down, and asked him for $15k to cover his son’s medical bills.

Here’s the rub, Van Buren’s son was perfectly healthy, and it was clearly just a shake down.

Albo, not the dullest knife in the drawer, recorded the conversation, and took it to the FBI who decided to set up a sting. They had Albo ask Van Buren to look up a woman he wanted to hire as a prostitute, to make sure she wasn’t a cop. Van Buren did so, and boom! Busted his ass.

So now he’s charged with wire fraud, using law enforcement databases for unlawful purposes. Van Buren’s argument is that he was authorized to use that database, and therefore it wasn’t fraud. So now SCOTUS has to decide whether using a database you’re authorized to use, but using it in a manner the job doesn’t provide for, constitutes wire fraud under the Computer Fraud and Abuse Act, which prohibits anyone who “exceeds authorized access” on a computer, specifically it defines that as “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.”

Counsel for Van Buren launched the opening salvo by arguing:

The CFAA is an anti-hacking statute. It prohibits obtaining information from a computer without authorization.

And to ensure comprehensive coverage, the statute also prohibits “exceeding authorized access.” As Judge Kozinski put it, this ensures that the statute covers not just outside but also inside hackers. In this case, however, the government seeks to transform the supplemental prong of the CFAA into an entirely different prohibition.

In the government’s view, this prong covers obtaining any information via computer that the accessor is not entitled “under the circumstances” to obtain. It is no overstatement to say that this construction would brand most Americans criminals on a daily basis.

The scenarios are practically limitless, but a few examples will suffice.

Imagine a secretary whose employee handbook says that her e-mail or Zoom account may be used only for business purposes.

Or consider a person using a dating website where users may not include false information on their profile to obtain information about potential mates.

Or think of a law student who is issued a log — log-in credentials for Westlaw or Lexis for educational use only. If the government is right, then a computer user who disregards any of these stated use restrictions commits a federal crime.

He makes a pretty valid point. And it seems odd that there isn’t just a specific law to prevent government officials who have access to our private information, from obtaining that for any non-business related use, and sharing it, or something like that. Seems like they know it’s wrong, but just don’t have a proper law to charge him with.

Neil Gorsuch thinking likeme asked,

Neil Gorsuch

And then, on the reverse parade of horribles we’ve heard from the other side, I guess I’m struggling to imagine how — how long that parade would be given the abundance of criminal laws available. So, if this one didn’t cover that kind of conduct, but there were troublesome forms of it, like your client’s behavior in this case, misusing a police database, I assume there are ample state laws available that criminalize a lot of that conduct.

Am I mistaken?

Jeffrey L. Fisher

No.

In fact, this case comes from Georgia, and Georgia itself has a statute about — about hacking or otherwise misusing computer information.

The government, as we point out in our — in our reply brief, the government gave a few hypotheticals in its brief, and almost every one of them is already addressed by some other provision of the — even the U.S. Code, let alone state law. And — and even — remember, my client himself has already lost his job and has other forms of punishment that have already been brought to bear.

In a 6:3 non-partisan decision, SCOTUS ruled for Van Buren. He’d have had to obtain info he was not authorized to have in order to have committed a crime. Sure, this was some personal and troubling bullshit, but it’s info he otherwise had access to. So while it’s kinda immoral, it isn’t illegal. If they don’t like it, they need to pass laws specifically to prevent it.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/19-783

SCOTUS For The Average Joe

Average Joe SCOTUS: California v. Texas

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You all remember the days when the Affordable Care Act was challenged in SCOTUS, and Chief Justice Roberts argued that the penalty was a tax, and therefore constitutional, right?

Well since then, Republicans, unable to repeal Obamacare outright, made the penalty zero. So now that the penalty is zero, Republicans are now arguing it’s no longer a tax, and therefore the individual mandate is an unconstitutional mandate, and the law should be repealed entirely.

The ACA supporters will argue that the mandate is severable, meaning SCOTUS could remove the mandate clause and leave the rest of the law in tact. But Republicans are like, “That’s how the fucking law was paid for. So you can’t fucking sever it.”

So basically SCOTUS is being asked to re-review this case in light of this new change.

With regards to severing the law, Congress reduced the tax to zero, but didn’t repeal the law. If they had the power to do one, they had the power to do the other. So the argument is then made that it must be severable, because if congress wanted the law to be repealed, they’d have repealed it, not reduced the tax to zero.

But the argument to that, is that congress didn’t have the votes or support for a full repeal, but by removing the tax, they’re hoping SCOTUS will nullify it, effectively trying to make SCOTUS the “bad guy” in all this shit.

At one point, Justice Kavanaugh asked:

Brett M. Kavanaugh

Are you aware of any other examples in the U.S. Code at least where Congress has enacted a true mandate, not something hortatory, but a true mandate with no penalties?

Essentially questioning the validity of such a law knowing there’s no other instance where congress forces you to buy something. Social Security is forced retirement income, but you don’t go out and buy it, government just takes it as a tax.

The reason this is Texas v. California, is because Texas challenged the law, and California and other states are defending it.

In a 7:2 decision, where Alito and Gorsuch dissented, SCOTUS ruled in favor of California. Texas may not sue California over this bullshit. Texas hasn’t shown in any way how they were harmed by California and company, and therefore they have no grounds to be suing here.

Hear oral arguments and read about the case here.

https://www.oyez.org/cases/2020/19-840