United States v. Skrmetti: Justice Thomas' concurring opinion upholding the right of state legislatures to bar treatment deemed harmful to minors

 

Six of the nine Supreme Court justices reject challenge to Tennessee law designed to "protect" minors

The United States Supreme Court has upheld the right of state legislatures to bar medical procedures used by minors, even where the minor's parents and some medical professionals believe these procedures are beneficial, based on the decision by the people's representatives that these procedures are harmful to minors. (United States v. Skfmatti (June 18, 2025) no. 23–477) found at https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf.  This issue arose when the Tennessee legislature passed a ban on a host of such treatments, including puberty-blocking drugs that altered the biological course of the affected minors, treatment rarely described in detail in the corporate media but simply herded under the banner "gender-affirming care."
 
The Sixth Circuit had found the statute constitutional and teh Supreme Court, by a vote of six to three and via an opinion written by Chief Justice Roberts, found the law at issue did not violate the Equal Protection clause of the 14th Amendment to the United States Constitution.  The majority found that such a law did not require the sort of strict scrutiny analysis which is often, but not always, applied to laws that are said to discriminate against persons on the basis of race and sex.  Such a strict scrutiny analysis is crucial because governmental distinctions between citizens that are subject to this standard are "inherently suspect."
 
Rather, the Tennessee law merely had to meet the rational basis test to pass equal protection muster, meaning the statute was constitutional as long as the legislature had a rational, even if arguably incorrect, basis for enacting the law.
 
Justice Thomas' concurs and notes that regulation of medical procedures routinely and properly distinguishes between the sexes
 
Justice Thomas aptly pointed out that the Fourteenth Amendment uses much different language from that of anti-discrimination laws such as Title VI, this amendment stating simply, "no  State shall . . . deny to any person within its jurisdiction the equal protection of the laws." Justice Thomas further explained that courts have held that discrimination based upon "sexual orientation" is not equivalent to that based upon "sex" itself.  However, even if one were to accept such analysis, this would not apply in the context of equal protection analysis given that, as noted above, the language in anti-discrimination statutes is different from that in the 14th Amendment.
 
Justice Thomas thus wrote that a finding that medical laws that supposedly "discriminate" against treatment for transgender minors is subject to "strict scrutiny" because such constitutes discrimination based upon "sex," would call into question much of our regulation of medical procedures, which does in fact distinguish among biological sexess:

Applying. . . such reasoning to the Equal Protection Clause would also invite sweeping consequences. Many statutes “regulate medical procedures defined by sex.” L. W. v. Skrmetti, 83 F. 4th 460, 482 (CA6 2023) (collecting examples, including laws referencing testicular and prostate cancer). If heightened scrutiny applied to such laws, then “[a]ny person with standing to challenge” such a decision could “haul the State into federal court and compel it to establish by evidence (presumably in the form of expert testimony) that there is an ‘exceedingly persuasive justification’ for the classification.” United States v. Virginia, 518 U. S. 515, 597 (1996) (Scalia, J., dissenting). Given the ensuing potential for “high-cost, high-risk lawsuit[s],” ibid., States might simply decline to adopt or enforce sex-based medical laws or regulations, even where such rules would be best medical practice. The burden of skeptical judicial review is therefore far from the “modest step” of requiring a State to “show its work” that the dissent posits. Post, at 31 (opinion of SOTOMAYOR, J.). (Skrmetti, J. Thomas concurring opinion, pp. 4-5; footnote omitted.)

 

In summary, the state law at issue more than survives the "rational basis" test, according to Justice Thomas.  Echoing the majority opinion, Thomas wrote that not only is there no clear medical consensus on "gender-affirming treatment" for minors, but he went into detail regarding what this "medical treatment" entails, noting that it includes the excision of the breasts of minors too young to legally consent to such a procedure.

 

Follow me on LinkedIn  

Ames v. Dept of Youth Services - Plaintiffs who are white and heterosexual should not automatically have their claims disfavored

The “heightened burden” rule made up the Federal courts is “atextual”

The Supreme Court has made clear the obvious:  that all plaintiffs making similar claims for discrimination must meet the same burden of proof.  While this may seem obvious to anyone who knows the guarantees of liberty and equality found in our Constitution, Federal courts have held that certain plaintiffs, such as white people or straight women, are disfavored and must meet an almost impossible standard so as to, of course, discourage their pesky claims.  It has taken a unanimous United States Supreme Court via a well-written opinion by the Hon. Ketanji Brown Jackson to disabuse these courts of this notion. (Ames v. Dept. of Youth Services (June 5, 2025) 23-1039.). This means that even Justices Sotomayor and Kagan voted to treat all Americans equally in terms of their claims of discrimination — even if they are straight and/or white.

The Supreme Court summarized the underlying claim of discrimination succinctly:

The Ohio Department of Youth Services operates the State’s juvenile correctional system. In 2004, the agency hired petitioner Marlean Ames, a heterosexual woman, to serve as an executive secretary. Ames was eventually promoted to program administrator and, in 2019, applied for a newly created management position in the agency’s Office of Quality and Improvement. Although the agency interviewed her for the position, it ultimately hired a different candidate—a lesbian woman—to fill the role.

A few days after Ames interviewed for the management position, her supervisors removed her from her role as program administrator. She accepted a demotion to the secretarial role she had held when she first joined the agency— a move that resulted in a significant pay cut. The agency then hired a gay man to fill the vacant program-administrator position. Ames subsequently filed this lawsuit against the agency under Title VII, alleging that she was denied the management promotion and demoted because of her sexual orientation.

The District Court found this poor woman had to meet a very high burden, a heightened burden designed to stack the deck against her, and granted the department summary judgment.  Somehow, the Sixth District, and other districts had either created or perpetuated this heightened burden, as the Ames opinion explained:

The Sixth Circuit affirmed. Like the District Court, the Sixth Circuit held that Ames had failed to meet her primafacie burden because she had not shown “‘background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.’” 87 F. 4th, at 825. The court reasoned that Ames, as a straight woman, was required to make this showing “in addition to the usual ones for establishing a prima-facie case.” Ibid. And it explained that plaintiffs can typically satisfy this burden, where applicable, by presenting “evidence that a member of the relevant minority group (here, gay people) made the employment decision at issue, or with statistical evidence showing a pattern of discrimination . . . against members of the majority group.” Ibid. The panel concluded that the agency was entitled to summary judgment because Ames had failed to present either type of evidence. Ibid.

But, as Justice Brown explained, each individual American who is a plaintiff must - wait for it — be treated “equally:”

By establishing the same protections for every “individual”— without regard to that individual’s membership in a minority or majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.
. . .
Our case law thus makes clear that the standard for proving disparate treatment under Title VII does not vary based on whether or not the plaintiff is a member of a majority group. Accord, Bostock, 590 U. S., at 659 (“This statute works to protect individuals of both sexes from discrimination, and does so equally”). The “background circum stances” rule flouts that basic principle.

The concurrence of Justice Clarence B. Thomas  noted that the heightened evidence rule had been entirely made up, i.e., was “atextual,” having been created by the Courts and was not found in the language used by Congress:

I join the Court’s opinion in full. I write separately to highlight the problems that arise when judges create atextual legal rules and frameworks. Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and cause confusion for courts. The “background circumstances” rule—correctly rejected by the Court today—is one example of this phenomenon.

 

Follow me on LinkedIn  

 

"Martha" on Netfilx: Revisiting Martha Stewart, the FBI, and James Comey's "Trophy"

 

This weekend I watched the Netflix documentary Martha. As an appellate lawyer and a civil libertarian it brought two crucial points to mind, the first being Martha Stewart's decision to end the appeal of her criminal conviction.  

Recall that after being wrongfully, in my humble opinion, convicted of “lying” to the FBI about her supposed insider trading, Ms Stewart initially filed an appeal.  This is hardly surprising given the fact that she was not convicted or even charged with insider trading.  In fact, she could not be charged because the evidence did not show that she traded on "insider" information.  Rather, Stewart was convicted of lying to the FBI when she truthfully said she had not engaged in insider trading.  If this seems nonsensical, remember that President Donald Trump was convicted of fraudulently failing to disclose payments to a mistress as a campaign contribution even though such payments do not fit the definition of a campaign contribution or expenditure, this last point illustrated by the failure of the Department of Justice to prosecute Mr. Trump on any campaign finance charges.

Though this appeal might have set useful precedent, Stewart courageously withdrew her appeal in order to put this incident behind her.  The FBI, of course, is not required by any law to tell the truth when it interviews someone, but is still very fond of claiming it has been "lied to" when it cannot bring any other charges.  Though Ms. Stewart's appeal did not proceed, this area is ripe for appellate review given the prosecutorial abuses of the Department of Justice and their cohorts at the FBI.

Which brings us to the second point, to wit, the role of our good friend James Comey in all this.  Ms. Stewart does not mince words when she notes how the sanctimonious Comey, then a Federal Prosecutor, decided to take down the first self-made female billionaire as what Stewart calls his "trophy."

This, of course, is the same James Comey who signed, under penalty of perjury, a FISA warrant application central to the entire Russia Hoax, a hoax which wasted millions and millions of dollars and countless hours in a vain attempt to prove a claim for which there was no evidence:  that Trump was a Russian Asset.  Indeed, following the report of Inspector General noting the errors and mischaracterizations in the FISA warrant application, Comey continued to defend his use of the "pee dossier" from Michael Steele as the basis for the FISA warrant application.

And so it is ironic that before James Comey did this to Donald Trump, he did it to Martha Stewart.  Comey was nonetheless later permitted to be named Director of our nation’s top Law enforcement agency, FBI, the era where the FBI was let by Comey seguing into the current era of political “lawfare" we have just lived through.

Martha, then, is a must-see because it shows us how Comey took down his first "trophy" before he later went after Trump. 

Follow me on LinkedIn  

Breaking News - Possible Appeal to the Ninth Circuit - Federal Court Enjoins UCLA From Permitting Pro-HAMAS Protestors to Block Access to Jewish Students

 

On August 13, 2024, Judge Mark C. Scarsi of the Central District of California issued an injunction barring the University of California at Los Angeles from permitting protesters who support Hamas and/or are protesting the State of Israel from blocking access to the school by Jewish students.  The "protestors" did so, of course, unless anyone who desired or needed to enter this space wore a wristband designed to separate out anyone who had a religious or other belief supporting the State of Israel.  UCLA must assuredly know permitting such on its campus violates the United States (as well as California's own) Constitution, as UCLA has its own Law School, including an adjacent courtyard ironically named "Shapiro." Indeed, according to the First Amendment, a person may not be denied access to a public space due to their race or religion.  Therefore, the injunction (https://becketnewsite.s3.amazonaws.com/20240813183534/injunction.pdf) seeks to enforce First Amendment rights by providing, at pages 15 to 16, that:

16. 1. Defendants Drake, Block, Hunt, Beck, Gordon, and Braziel (“Defendants”) are prohibited from offering any ordinarily available programs, activities, or campus areas to students if Defendants know the ordinarily available programs, activities, or campus areas are not fully and equally accessible to Jewish students.

17. 2. Defendants are prohibited from knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s programs, activities, and campus areas, whether as a result of a de-escalation strategy or otherwise.

    3. On or before August 15, 2024, Defendants shall instruct Student Affairs Mitigator/Monitor (“SAM”) and any and all campus security teams (including without limitation UCPD and UCLA Security) that they are not to aid or participate in any obstruction of access for Jewish students to ordinarily available programs, activities, and campus areas.

Note that UCLA not only opposed the request for an injunction but also requested a stay pending appeal, meaning they would be permitted to, inter alia, continue to take actions that include, as the injunction states, "knowingly allowing or facilitating the exclusion of Jewish students from ordinarily available portions of UCLA’s . . . areas, whether as a result of a de-escalation strategy or otherwise."

Such exclusion has, according to sworn declarations, already occurred.  As the injunction states at pages four to five:

4. On April 25, 2024, a group of pro-Palestinian protesters occupied a portion of the UCLA campus known as Royce Quad and established an encampment.  News reporting indicates that the encampment’s entrances were guarded by protesters, and people who supported the existence of the state of Israel were kept out of the encampment. Protesters associated with the encampment “directly interfered with instruction by blocking students’ pathways to classrooms.” Plaintiffs are three Jewish students who assert they have a religious obligation to support the Jewish state of Israel.  Prior to the protests, Plaintiff Frankel often made use of Royce Quad. After protesters erected the encampment, Plaintiff Frankel stopped using the Royce Quad because he believed that he could not traverse the encampment without disavowing Israel. He also saw protesters attempt to erect an encampment at the UCLA School of Law’s Shapiro courtyard on June 10, 2024. Similarly, Plaintiff Ghayoum was unable to access Powell Library because he understood that traversing the encampment, which blocked entrance to the library, carried a risk of violence.He also canceled plans to meet a friend at Ackerman Union after four protesters stopped him while he walked toward Janss Steps and repeatedly asked him if he had a wristband. Plaintiff Ghayoum also could not study at Powell Library because protesters from the encampment blocked his access to the library. And Plaintiff Shemuelian also decided not to traverse Royce Quad because of her knowledgethat she would have to disavow her religious beliefs to do so. The encampment led UCLA to effectively make certain of its programs activities, and campus areas available to other students when UCLA knew that some Jewish students, including Plaintiffs, were excluded based on their genuinely held religious beliefs. (Citations and footnotes omitted; emphasis added)

   
   

Scroll down below to send us a question or comment.

Follow me on LinkedIn 

Trump v United States - Per Justice Thomas Only Congress, Not the Biden Administration, May Appoint a Federal "Office" such as that of "Special Counsel" Jack Smith

This week, I originally intended to write about appellate advocacy in light of the Presidential debate.  However, given what occurred, I have postponed these comments because I think the “gas-lighting” regarding the pre-debate condition of our President is a more pressing issue.  Arguably, however, the opinion in Trump v. United States (July 1, 2024) No. 23-939, is an even more important issue, so I will first address at least one aspect of this ruling first, including and especially the concurring opinion by the oldest and longest-serving member of the present court, Justice Clarence Thomas. 

As a life-long civil libertarion I was stunned, quite frankly, when Attorney General Garland created the “office” of the “special counsel” in order to appoint Jack Smith to engage in what many call “lawfare” against President Trump.  This is because only Congress may create a Federal office.  I was not the only one to take notice, for Justice Thomas’  concurrence to the majority opinion sets forth the manner in which “private citizen” Jack Smith was appointed.  

In this case, the Attorney General purported to appoint a private citizen as Special Counsel to prosecute a former President on behalf of the United States. But, I am not sure that any office for the Special Counsel has been “established by Law,” as the Constitution requires. Art. II, §2, cl. 2. By requiring that Congress create federal offices “by Law,” the Constitution imposes an important check against the President—he cannot create offices at his pleasure. If there is no law establishing the office that the Special Counsel occupies, then he cannot proceed with this prosecution. A private citizen cannot criminally prosecute anyone, let alone a former President. 

No former President has faced criminal prosecution for his acts while in office in the more than 200 years since the founding of our country. And, that is so despite numerous past Presidents taking actions that many would argue constitute crimes. If this unprecedented prosecution is to pro ceed, it must be conducted by someone duly authorized to do so by the American people. The lower courts should thus answer these essential questions concerning the Special Counsel’s appointment before proceeding. (Trump v. United States, pp. 1-2)

Therefore, as Justice Thomas explains at page two, such a prosecution may only be done by someone duly authorized to do so by "the American people.”  He therefore quotes from Article II, Section II, Clause II, of the United States Constitution:

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Department. (Emphasis added.)

Justice Thomas cites to the Federalist Papers, which discuss, with great logic and eloquence, the requirement a President may only appoint someone to an office created by Congress, and not by Executive Branch fiat, grew out of the virtually unlimited power of the British Monarch to create titles and offices.  The drafters of the Constitution therefore sought to give the President inferior powers, as evidenced by one of the specific grievances listed in paragraph 12 of the Declaration of Independence:

Before the President or a Department Head can appoint any officer, however, the Constitution requires that the underlying office be “established by Law.”1 The Constitution itself creates some offices, most obviously that of the President and Vice President. See §1. Although the Constitution contemplates that there will be “other Officers of the United States, whose Appointments are not herein otherwise pro-vided for,” it clearly requires that those offices “shall be established by Law.” §2, cl. 2. And, “established by law” reers to an office that Congress creates “by statute.” Lucia v. SEC, 585 U. S. 237, 254 (2018) (THOMAS, J., concurring); see also United States v. Maurice, 26 F. Cas. 1211, 1213 (No. 15,747) (CC Va. 1823) (Marshall, C. J.). 

The limitation on the President’s power to create offices grew out of the Founders’ experience with the English monarchy. The King could wield significant power by both creating and filling offices as he saw fit. He was “emphatically and truly styled the fountain of honor. He not only ap- point[ed] to all offices, but [could] create offices.” The Federalist No. 69, p. 421 (C. Rossiter ed. 1961); see also 1 W. Blackstone, Commentaries on the Laws of England 271 (T. Cooley ed. 1871) (“[A]s the king may create new titles, so may he create new offices”). That ability to create offices raised many “concerns about the King’s ability to amass too much power”; the King could both create a multitude of of-fices and then fill them with his supporters. J. Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 492 (2018) (Mascott); see also G. Wood, The Creation of the American Republic 1776–1787, p. 143 (1969) (describing “the power of appointment to offices” as “the most insid-ous and powerful weapon of eighteenth-century despotism”); T. Paine, Common Sense (1776), reprinted in The Great Works of Thomas Paine 11 (1877) (explaining that “the crown . . . derives its whole consequence merely from being the giver of places and pensions”). In fact, one of the grievances raised by the American colonists in declaring their independence was that the King “ha[d] erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.” Declaration of Independence ¶12. The Founders thus drafted the Constitution with “evidently a great inferiority in the power of the President, in this particular, to that of the British king.” The Federalist No. 69, at 421. (Id., pp. 3-4; emphasis added.)

Justice Thomas aptly notes the obvious, namely that when Mr. Smith was appointed to the “office” created by Mr. Garland, there was no citation to any statute and the Justice Department has not cited to any statute that actually creates such an office.  The concurring opinion therefore quotes James Madison, who warned us:

 “If there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. (Trump v. United States, p. 6.)

The man appointed by executive branch fiat

Finally, as to the very man appointed to the office of “special counsel” in an apparently “extra-Constitutional” manner,  a more principled man might have refused this appointment.  Indeed,  based on the insidious motivation underlying the supposed establishment of a special counsel’s “office” by Mr. Garland, it would have been quite easy for Mr. Smith to have refused this appointment on the grounds it is improperly-created under the provisions of Article II, Section II.

Scroll down below to send us a question or a comment.

Follow me on LinkedIn 

NRA v. Vullo - Unanimous Supreme Court rules government may not engage in "lawfare" against free speech, limiting the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organization

The United States Supreme Court has recently issued one of the most important First Amendment cases in the last decade. (See National Rifle Association v. Vullo (May 30, 2024) no. 22-842).  In this unanimous decision, issued a mere 73 days after it was argued, the United States Supreme Court affirmed a state government may not seek to block the expression of opinions by a political organization by deliberating interfering with its relations with other companies or organizations.  Your author terms this sort of conduct "lawfare" and it is readily-apparent the current regime in the State of New York will do almost anything to silence its political opponents.

When one imagines the legitimate role of a sovereign state, one does not imagine attempting to silence political views the Governor and Attorney General find repugnant, which political views cannot be banned outright due to those pesky restrictions found in the Bill of Rights.  Nonetheless, as Justice Sotomayer cogently explained at pages three to five, the NRA alleged the State of New York did exactly that:

Around that time, [the former superintendent of the New York Department of Finan- cial Services, or NFS] Vullo also began to meet with executives at the insurance companies doing business with the NRA. On February 27, Vullo met with senior executives at Lloyd’s. There, speaking on behalf of DFS and then-Governor Andrew Cuomo, Vullo “presented [their] views on gun control and their desire to leverage their powers to combat the availability of firearms, including specifically by weakening the NRA.” Id., at 221, ¶67. She also “discussed an array of technical regulatory infractions plaguing the affinity-insurance marketplace” in New York. Id., at 199, ¶21. Vullo told the Lloyd’s executives “that DFS was less interested in pursuing the[se] infractions” unrelated to any NRA business “so long as Lloyd’s ceased providing insurance to gun groups, especially the NRA.” Id., at 199–200, ¶21; accord, id., at 223, ¶69 (alleging that Vullo made it clear to Lloyd’s that it “could avoid liability for infractions relating to other, similarly situated insurance policies, so long as it aided DFS’s campaign against gun groups”).1 Vullo and Lloyd’s struck a deal: Lloyd’s “would instruct its syndicates to cease underwriting firearm-related policies and would scale back its NRA-related business,” and “in exchange, DFS would focus its forthcoming affinity-insurance enforcement action solely on those syndicates which served the NRA, and ignore other syndicates writing similar policies.” Ibid., ¶69.

On April 19, 2018, Vullo issued two virtually identical guidance letters on DFS letterhead entitled, “Guidance on Risk Management Relating to the NRA and Similar Gun Promotion Organizations.” Id., at 246–251 (Guidance Letters). Vullo sent one of the letters to insurance companies and the other to financial services institutions. In the letters, Vullo pointed to the “social backlash” against the NRA and other groups “that promote guns that lead to senseless violence” following “several recent horrific shootings, including in Parkland, Florida.” Id., at 246, 249. Vullo then cited recent instances of businesses severing their ties with the NRA as examples of companies “fulfilling their corporate social responsibility.” Id., at 247, 250. 

In the Guidance Letters’ final paragraph, Vullo “encourage[d]” DFS-regulated entities to: (1) “continue evaluating and managing their risks, including reputational risks, that may arise from their dealings with the NRA or similar gun promotion organizations”; (2) “review any relationships they have with the NRA or similar gun promotion organzations”; and (3) “take prompt actions to manag[e] these risks and promote public health and safety.” Id., at 248, 251.2

The same day that DFS issued the Guidance Letters, Vullo and Governor Cuomo issued a joint press release that echoed many of the letters’ statements. The press release included a quote from Vullo “ ‘urg[ing] all insurance companies and banks doing business in New York’” to join those “‘that have already discontinued their arrangements with the NRA.’ ” Id., at 244. The press release cited Chubb’s decision to stop underwriting Carry Guard as an example to emulate. The next day, Cuomo tweeted: “‘The NRA is an extremist organization. I urge companies in New York State to revisit any ties they have to the NRA and consider their reputations, and responsibility to the public.’ ” Id., at 213, Complaint ¶51.

The State of New York therefore targetd "affinity products" in the insurance marketplace and therefore sought to discourage these businesses from doing lawful business with the NRA in order to "weaken" it.  

The NRA sued Vullo in Federal District court.  While the case survived a motion to dismiss in District Court, it did not survive a review of this ruling in the Second Circuit, which held the NRA could not state a First Amendment claim.  

With the assistance of the American Civil Liberties Union, the NRA sought and was granted certiorari by the United States Supreme Court, which found the alleged coercion of other entities, if proven, violates the First Amendment rights of the NRA. Specifically, while Vullo could criticize the NRA, she "could not wield her power, however, to threaten enforcement actions against DFS-regulated entities in order to punish or suppress the NRA’s gun-promotion advocacy." (Id., p. 8.)

As the unanimous court stated clearly, a governmnent official may not use their power to do something indirectly that they may not do directly; namely, punish an entity that does not disassociate itself from a political opponent whose advocacy offends those in power:

To state a claim that the government violated the First Amendment through coercion of a third party, a plaintiff must plausibly allege conduct that, viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff ’s speech. See 372 U. S., at 67–68. Accepting the well-pleaded factual allegations in the complaint as true, the NRA plausibly alleged that Vullo violated the First Amendment by coercing DFS-regulated entities into disassociating with the NRA in order to punish or suppress the NRA’s gun-promotion advocacy.

Consider first Vullo’s authority, which serves as a backdrop to the NRA’s allegations of coercion. The power that a government official wields, while certainly not dispositive, is relevant to the objective inquiry of whether a reasonable person would perceive the official’s communication as coercive. See id., at 66–67. Generally speaking, the greater and more direct the government official’s authority, the less likely a person will feel free to disregard a directive from the official. For example, imagine a local affinity group in New York that receives a strongly worded letter. One would reasonably expect that organization to react differently if the letter came from, say, the U. S. Attorney for the Southern District of New York than if it came from an out-of-state school board.

As DFS superintendent, Vullo had direct regulatory and enforcement authority over all insurance companies and financial service institutions doing business in New York. See N. Y. Fin. Servs. Law Ann. §§202, 301. Just like the commission in Bantam Books, Vullo could initiate investigations and refer cases for prosecution. Indeed, she could do much more than that. Vullo also had the power to notice civil charges and, as this case shows, enter into consent decrees that impose significant monetary penalties. (Id., pp. 12-13.)

The suit will therefore be remanded to the United States District Court for the Northern District of New York for further proceedings.

Concurrences

Justice Brown Jackson wrote separately to stress her view that while governmental coercion can implicate the First Amendment, such coercion is not always tantamount to a violation of freedom of speech and other First Amendment rights and that one must analyze whether the coercion does in fact violate a party's right to freedom of speech.  

Justice Gorsuch also wrote separately and posited that while the majority opinions provided "guideposts," there may indeed be a violation of the First Amendment whether or not any guideposts are found.  In other words, the ultimate test is whether the offending action "could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff's speech.” (Id., p. 25.)

Analysis 

It is difficult to imagine how Judges Pooler, Chin, and Carney of the Second Circuit could have come to a more wrong decision.  Indeed, the Solicitor General of the United States (a Biden appointee, no less) filed an amicus brief in support of vacating the Second Circuit's opinion. The ease with which Vullo was apparently able to intimidate a sophisticated nationwide entity such as Chubb into terminating a program providing liability insurance to gun owners, a result that no reasonable person could argue would be beneficial to victims of gun violence, is also disheartening.

There should be no doubt, then, that the actions of New York's government, currently led by Governor Kathy Hochel (who could have put a stop to this anti-liberty nonsense by settling this action) were both unconstitutional and blatantly authoritarian.  So much so, in fact, that this should cause grave concern for anyone who lives in, does business with, or even visits New York.  One can imagine such Stalinist abusive tactics being used against, for example, the Sierra Club if they were to lobby against fracking or oil drilling and another state government were to find these actions against the interests of its citizens.  It would be equally odious if such a government would press banks and other financial institutions to cease doing business with the Sierra Club notwithstanding the fact their actions are protected activity under the First Amendment.

Finally, the fact a decision was issued in a timely fashion in a case of such import indicates the Court can move quickly where the outcome is determined by settled Constitutional principles.  It is sad to say that this is not always the case, as the Court often appears to be bogged down by dissenting opinions in cases decided by the vote of one or two justices where the dissenting justices, for want of a better word, simply refuse to acknowledge the clear language of our nation's founding document.

Scroll down below to send us a question or a comment.

Follow me on LinkedIn 

Opinion: Disrupting a University is an attack on our civilization

In his masterpiece Civilisation: A Personal View by Kenneth Clark, a 13-part television series, Mr. Clark stands in front of the Notre Dame Cathedral and says, essentially, that if even one cannot define civilization, one knows it when one sees it.  He could have easily stood in front of the Imperial Palace in Japan, the Opera House in Sydney, Angkor Wat in Cambodia, or Corcovado in Rio — for when we see something that mankind has built, something which requires both creativity, struggle, and, indeed, human genius, we know that it represents civilization in all its flaws and grandeur.

In the past few days, we have all seen students and others assaulted and even tasered, windows broken, classes and graduations canceled, and sheer hate against fellow humans based simply upon their religion and/or race.  These actions are in violation of not only University Codes of Conduct but also state and Federal laws, and, of course, the Constitutional rights of the persons against whom these “protesters” seek to bar from University campuses.

At a minimum, these spoiled and ignorant undergraduates should be arrested and, indeed, expelled and not merely suspended.  Faculty who have joined them in their hate and the accompanying attempts to shut down learning should similarly be arrested if they have violated the law and then fired.  This should occur after a public and televised hearing, not only to preserve the right to due process but also so that we may see what each individual has done to set back civilization and take us back in time to a more brutal, selfish, and hate-filled past.

No University can survive as a University with students who call for the genocide of the Jewish people, support Hamas and its rape of women and murder of children in front of their parents (and vice versa), and, indeed, who seem oblivious to the fact that their fellow Americans are still being held hostage by Hamas.

Indeed, no civilization can withstand such actions unless they are condemned in the strongest terms.

The rejoinder, of course, is that within the hate and fascist attempts to shut down other people’s points of view, there is some sort of “point” being made — a claim belied by the fact that no one should listen to anyone who attempts to occupy the public square to the exclusion of other voices.  In our common law tradition, the concept of forfeiture is relevant to both the relinquishment of rights and the concept of equity. Anyone attacking civilization forfeits any chance to change our mind.

Scroll down below to send us a question or a comment.

Follow me on LinkedIn 

Breaking news - Supreme Court rules legislative bodies cannot "take" private property by way of untethered "fees" (Sheetz v. County of El Dorado)

United States Supreme Court:  legislative bodies cannot "take" property by way of unlimited "fees" 

A recent Supreme Court opinion illustrates how lower courts often get it completely wrong, despite apparently clear precedent, and as this case shows, this is particularly likely to occur when courts get swept along with a judicial trend.  Such an unfortunate trend is interpreting the Fifth Amendment's bar against taking property without just compensation so narrowly as to permit the government to do virtually whatever it wants to a landowner's property, no matter logic or the law. 

In Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024), a unanimous Supreme Court found California courts had it entirely wrong when they found (the term "rubber stamp" comes to mind) an outrageous "fee" a landowner must pay to build a home -- having no relationship to the services provided or the cost of the project to local government -- did not implicate the bar against the "taking" of private property. The practical effect of ignoring the full effect of the Firth Amendment is that "fees" enacted by a legislative body have no upward limit and may take five, ten, or more percent of the value of the property, and a property owner may not even bring a Fifth Amendment claim.

The opinion authored by Justice Barett found these courts had misapplied prior precedent.  As the syllabus to the opinion sets forth, the issue was whether a California county could impose a $23,420 "traffic impact fee" upon an ordinary residential landowner unlucky enough to own a lot in El Dorado County and who wished to build a home:

As a condition of receiving a residential building permit, petitioner George Sheetz was required by the County of El Dorado to pay a $23,420 traffic impact fee. The fee was part of a “General Plan” enacted by the County’s Board of Supervisors to address increasing demand for public services spurred by new development. The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather was assessed according to a rate schedule that took into account the type of development and its location within the County. Sheetz paid the fee under protest and obtained the permit. He later sought relief in state court, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. In Sheetz’s view, the Court’s decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825, and Dolan v. City of Tigard, 512 U. S. 374, required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. The courts below ruled against Sheetz based on their view that Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators, not to a fee like this one imposed on a class of property owners by Board-enacted legislation. 84 Cal. App. 5th 394, 402, 300 Cal. Rptr. 3d 308, 312.

In other words, the trial court, the Third Appellate District of California, and the California Supreme Court (which denied review) did not give full effect to precedent such as Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994) indicating a fee with no nexus to the effect of the actual development is a "taking."  As Justice Barret wrote:

The California Court of Appeal rejected that argument because the traffic impact fee was imposed by legislation, and, according to the court, Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators. That is incorrect. The Takings Clause does not distinguish between legislative and administrative permit conditions. (Sheetz., p. 14.)

Justice Barret and the remaining eight justices all agreed the fact a fee was imposed by a legislative body, rather than being imposed by a regulatory power, did not insulate said fee from scrutiny.  Simply put, the Bill of Rights applies equally to the executive and legislative branches of government.  

Therefore, the majority opinion explained the proper test for considering whether a "fee" is a taking:

Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests”). First, permit conditions must have an “essential nexus” to the government’s land-use interest. Nollan, 483 U. S., at 837. The nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. See id., at 841. Second, permit conditions must have “‘rough proportionality’” to the development’s impact on the land-use interest. Dolan, 512 U. S., at 391. A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose. See id., at 393. This test ap- plies regardless of whether the condition requires the land- owner to relinquish property or requires her to pay a “monetary exactio[n]” instead of relinquishing the property. Koontz, 570 U. S., at 612–615. (Id., p. 6.)

Analysis

The degree to which the lower courts "got it wrong" is stunning, and, in particular, the narrow reading of Nollan/Dolan is quite troubling.  As to the failure of the California Supreme Court to show any interest in preventing local government from unlawfully taking private property, the fact it declined to review an appellate opinion finding one of the protections of the Bill of Rights does not apply simply because it was the legislature that violated a citizen’s rights speaks for itself.

Though the opinion was unanimous, it leaves open the question of whether a particular fee is permissible, to wit, whether a particular fee meets constitutional muster, i.e, whether it has an  "“‘essential nexus’” to the government’s land-use interest and has “‘rough proportionality’” to a property’s impact on that interest." (Concurrence by J. Gorsuch, p. 1.)

Of course, if a legislature or similar body may impose an unlimited "fee" upon someone wishing to build a single home, under the rubric that limitations on such fees do not apply to legislative enactments, then the Fifth Amendment "takings clause" has no effect as long as the law classifies the taking as a legislatively-mandated "fee."

As noted in his concurrence, Justice Gorsuch is of the opinion whether a fee is a "taking" does not depend upon whether it is imposed upon a single property or a class of properties as the same constitutional rules apply to the rights of the "many" as they do to the "few."  Justice Gorsuch notes the majority opinion leaves this question for another day:

The Court notes but does not address a separate question: whether the Nollan/Dolan test operates differently when an alleged taking affects a “class of properties” rather than “a particular development.” (Id.)

Indeed, the concurrence of Justice Kavanaugh, to which Justices Kagan and Jackson joined, recognizes this issue has not been resolved.  However, Justice Kavanaugh takes the view the Sheetz opinion does not prohibit local government from tailoring land-use fees based upon the effect of an entire development in toto rather than requiring that the fee have a nexus to the effect of a single property owner.

Finally, the role of the Pacifica Legal Foundation must be noted. As did the Cato Institute, Pacifica filed an amicus curiae brief.  If it were not for the efforts of his own counsel and these "friends of the court, Mr. Sheetz might still be stuck paying a nearly $24,000 "traffic fee" to build what the Supreme Court termed "a modest prefabricated house" for his wife and grandson.

Scroll down below to send us a question or a comment.

Follow me on LinkedIn