Supreme Court

Supreme Court Rejects NSA Phone Spying Case

After U.S. District Court Judge Richard Leon’s preliminary injunction was issued back in December, which kept the NSA from gathering metadata pertaining to certain Verizon customers who took part in a lawsuit filed by conservative legal activist Larry Klayman, the Supreme Court decided to refrain from reviewing the case.

According to Judge Leon’s ruling, the Justice Department didn’t produce enough evidence to make him believe that the massive surveillance program was justified, which led to his decision to call the NSA’s surveillance programs unconstitutional.

The decision was announced Monday.

Per the rules of the court, at least four of the nine justices must agree on taking up the cause for a full review before it’s accepted, but since the process failed to grant the case a go, the constitutionality of the National Security Agency’s surveillance program remains unchecked by the Supreme Court.

The debate over President Barack Obama’s proposal to change how data gathered by private companies will be stored has also sparked this administration’s harshest critics, especially when it comes to the unconstitutional surveillance programs carried out by the NSA.

SCOTUS weighs the limits of the First Amendment

The Supreme Court heard the case of Hobby Lobby, et.al. on the HHS mandate that requires most businesses that employ over 50 individuals to provide coverage for 21 forms of birth control. The businesses that are parties to the suit, while they are private for-profit companies, have incorporated or otherwise stated in their mission statements, that their businesses are owned and operated by individuals that include their religious practices in their work.

Due to their religious beliefs, that are freely stated to potential employees before they consent to work for these companies, they object to providing some or all of the contraceptives in the HHS mandate on moral grounds. The government presented the case that since they are not religious organizations per se, they do not have the freedom to run their businesses with religious overtones, at least not when it interferes with governmental mandates.

That is a thumbnail sketch of the case, and in spite of the fact that SCOTUS will not hand down a ruling until June, there are plenty of pundits offering opinions on exactly how that will end up. It’s interesting to attempt to guess what a given Justice will say on this issue, based on the questions presented during the case yesterday, however, it probably isn’t going to serve anyone to do that. Let’s not forget the ruling that the ObamaCare penalties were actually taxes by Chief Justice John Roberts, that got us to this point in the first place.

While it seems that quite a few of the commentators out there seem to think that this will fall in favor of Hobby Lobby, and the other corporations involved, perhaps at this point it would be better to think about “what comes next?” if that isn’t the case.

Net Neutrality Opinion Indicates Internet Service Providers Are Entitled to First Amendment Protection

Verizon v. FCC, the court decision overturning the Federal Communications Commission’s (FCC) net neutrality rules, didn’t rule directly on the First Amendment issues. It did, however, reject the reasoning of net neutrality advocates who claim Internet service providers (ISPs) are not entitled to freedom of speech.

The court recognized that, in terms of the functionality that it offers consumers and the economic relationships among industry participants, the Internet is as similar to analog cable networks as it is to analog telephone networks. As a result, the court considered most of the issues in the net neutrality case to be “indistinguishable” from those addressed in Midwest Video II, a seminal case addressing the FCC’s authority over cable systems. The court’s emphasis on the substantive similarities between analog cable services, which are clearly entitled to First Amendment protection, indicates that ISPs are likewise entitled to protection.

Net neutrality advocates argued that ISPs are not First Amendment “speakers” because ISPs do not exercise editorial discretion over Internet content. In essence, these advocates argued that ISPs forfeited their First Amendment rights as a result of their “actual conduct” in the marketplace.

Ninth Circuit affirms the right to carry for self-defense

The Ninth Circuit Court of Appeals struck down a California law yesterday that allowed local governments to effectively ban citizens from exercising carrying a gun outside the home for the purpose of self-defense:

The Ninth Circuit’s decision in Peruta v. San Diego…affirms the right of law-abiding citizens to carry handguns for lawful protection in public.

California law has a process for applying for a permit to carry a handgun for protection in public, with requirements for safety training, a background check, and so on. These requirements were not challenged. The statute also requires that the applicant have “good cause,” which was interpreted by San Diego County to mean that the applicant is faced with current specific threats. (Not all California counties have this narrow interpretation.) The Ninth Circuit, in a 2-1 opinion written by Judge O’Scannlain, ruled that Peruta was entitled to Summary Judgement, because the “good cause” provision violates the Second Amendment.

The Court ruled that a government may specify what mode of carrying to allow (open or concealed), but a government may not make it impossible for the vast majority of Californians to exercise their Second Amendment right to bear arms.

NSA tracks cellphone location data around the globe

After The Guardian reported that only 1 percent of the files leaked by Edward Snowden have been published, the Washington Post reported that the NSA also tracks location data from mobile phone users around the world, allowing the agency to gather “nearly 5 billion records a day.”

The NSA is able to do that because it manages to tap into the mobile networks’ cables that happen to serve worldwide cellphones as well as U.S. phones. The NSA does that to collect information regarding its targets.

With this data in its power, the NSA locates and analyzes data from cellphones anywhere in the world. This represents an effort that might have no matching historical precedent since analysts can use this data to retrace cellphones’ movements and uncover potential relationships among users anywhere.

Elements of the intelligence community are not collecting the bulk cellphone location data intentionally, according to Robert Litt, the general counsel for the Office of the Director of National Intelligence, which oversees the NSA. But the NSA collects this information anyway, mainly because one of the agency’s most powerful analytic tools, the CO-TRAVELER, can search unknown associates of intelligence targets by tracing intersecting cellphones.

Senate on a slippery path with filibuster change

The manufactured crisis last week that led to extraordinary, unprecedented change to the filibuster, prompted by Majority Leader Harry Reid (D-NV) and Senate Democrats, is the first step down a road that undermines the nature of the chamber and will, almost certainly, lead to bigger changes.

The Senate was meant to be the more prestigious body of Congress and its members, given six-year terms, were selected to be responsive to state interests in Washington. Members of the House of Representatives, on the other hand, were meant to serve as the voices of the people, subject to re-election every two years.

Contrary to what President Obama said in his statement after the filibuster change, that “if you got a majority of folks who believe in something, then it should be able to pass,” the upper chamber was never meant to serve as a “voice of the people,” nor was meant to rubber stamp majoritarian views or interest.

It was meant, as James Madison once said, “to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” Passing legislation and approving nominees based on consensus. The filibuster — which has existed as a concept since the chamber was created and in practice since 1837 — was a tool to achieve consensus.

But, over time, the Senate has become more and more like the House, beginning in 1913 with the ratification of the Seventeenth Amendment, which mandated direct election of senators by voters in their respective states.

The Founding Fathers were concerned about a legislative branch that was too responsive to the whims of majority views, which could potentially be dangerous to essential liberty. In Federalist 10, Madison warned about the problem of faction.

“It’s the law!” is not actually an adequate defense of a law

The moment the Supreme Court upheld the individual mandate to purchase health insurance under Obamacare, the primary defense of the law became “It’s the law!” Since talk began of a budget impasse over defunding this particular law, that refrain has become ubiquitous. There’s just one problem: It’s a tautology that doesn’t actually make an argument.

Every law began as a bill that was “passed by Congress, signed by the President, and approved by the Supreme Court.” Laws, once written into code, do not become inviolably permanent. Even such duly-enacted laws can be repealed or defunded by Congress (with the President’s permission or by overriding his veto). Democrats in 2007 tried to defund the Iraq war, even though it was legally authorized by Congress, i.e. “the law”.

Surprisingly (except not at all), Democrats aren’t consistent sticklers for maintaining the status quo of the law in all cases. I will list a few examples, though it should be self-evident that the “progressive” party would be generally in favor of changing the law over time.

Despite filibuster deal, questions remain on NLRB

The devil, as they say, is in the details. It’s easy to forget in the face of larger-than-life scandals (Benghazi, IRS targeting, improper and runaway spending in federal agencies) that the small, underreported, and incremental chipping away at free-market values is what may get us to what many fear the most: the irreversible intrusion of the federal government into the very machinery of our economy.

Media has begun buzzing — as much buzz as they can muster over what are mostly perceived as tiny earthquakes — about President Obama making two new nominations to the National Labor Relations Board (NLRB). As Josh Gerstein at Politico reports:

A developing deal to break an impasse over President Barack Obama’s nominations to the National Labor Relations Board may head off proposed changes to the Senate’s filibuster rules but it seems unlikely to scuttle a Supreme Court showdown over Obama’s authority to use his recess appoinment power to fill longstanding vacancies in the executive branch and the courts.

Lasting Effects of the Supreme Court’s Prop 8 Decision

Stephanie Rugolo is the editor of The Rugolo Report and holds an M.A. from the Maxwell School of Syracuse University.

A strange thing happened in the Supreme Court’s recentHollingsworth v. Perry decision. Even though this case focused on California’s Proposition 8 that banned gay marriage, the court was split, with both liberals and conservatives comprising the majority and dissenting parties. It turns out that the rationale by which the Court’s majority decided the Hollingsworth case led to the justices’ scrambled ideological divisions. The Court’s reason for striking down Prop 8 limits civilians’ ability to legally defend initiatives, a disturbing limit to democratic liberties.

Proposition 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens—that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot.

When gay couples brought a suit against Prop 8 that found the law unconstitutional, the State of California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it in the first place, as it was a citizens’ initiative. Consequently, individual proponents of Prop 8 volunteered to appeal the decision in court. That raised questions of standing—whether Prop 8 supporters had a tangible stake in the case and thus a right to appeal. The Ninth Court found they did have standing before finding Prop 8 unconstitutional.

Justice Anthony Kennedy is not a libertarian

Anthony Kennedy

Over the last few years, there has been much discussion about the philosophical leanings of Supreme Court Justice Anthony Kennedy. Long considered a moderate on the High Court, Kennedy has been the deciding vote in many 5 to 4 decisions, leading John Tabin of The American Spectator to note that “[i]t’s Anthony Kennedy’s world; we’re just living in it.”

Some legal scholars have surmised that the Supreme Court may be in some sort of “libertarian moment,” thanks in part to Kennedy. This is not necessarily a new theory. Shortly after the Court issued its decision in Lawrence v. Texas (2003), a ruling that struck down sodomy laws in 13 states based concerns over privacy, Randy Barnett praised Kennedy’s “presumption of liberty” approach.

Kennedy’s ideology was again the topic of discussion in 2012 after he sided with the minorty in National Federation of Independent Business v. Sebelius, in which the majority upheld the individual mandate in ObamaCare.

After the Court’s decision last month in United States v. Windsor, which struck down the federal provisions in the Defense of Marriage Act, Kennedy’s ideological views are, once again, being discussed by legal scholars.


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