Category Archives: Law: Constitutional Law

Carter Coal Lives

trainstatusThe DC Circuit issued a major separation of powers ruling today in Ass’n of American Railroads v. DOT. The main part of the opinion adopts a view of the non-delegation doctrine that I explained and relied on as part of the argument in my article Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), so I’m glad about that–at least in principle; whether these facts justified invocation of the doctrine I leave for others to decide. The legal issue was whether in addition to the well-known and now rather (but not utterly) toothless non-delegation doctrine that limits the breadth and discretion that Congress might give a federal agency, there is a parallel doctrine, rooted in the Due Process Clause and in the Carter Coal case, that prevents Congress from giving public regulatory power to self-interested parties who might then wield it against their competitors.

To reach that doctrinal point, the panel (Judge Brown and Senior Judges Sentelle and Williams), had to decide that Amtrak is not a governmental body for Due Process non-delegation purposes. I’m not so sure about that given the previous decisions of the Supreme Court relating to Amtrak, which have treated it as governmental for other purposes.

I have rather more serious doubts about the panel’s alternate holding that the arbitrator who could have been appointed to settle disputes between Amtrak and the plaintiff railroad would have been an Officer of the United States, and not an inferior officer. There are two issues here, both en banc and cert bait. First, there’s the question of ripeness. The panel argues that this is a structural violation, and that even the threat of an improperly appointed decision-maker down the road so taints the process that it must be thrown out before it is even invoked. That is plausible, but not compelling. More difficult to swallow is the method by which the panel decided that the official in question was not inferior but a full Officer. Suffice it to say that the panel got there from what amount to first principles, a process that (too conveniently) ignored the two major modern Supreme Court cases on the topic. If those cases, Morrison v. Olson and Free Enterprise Fund v. PCAOB had not existed, the panel’s opinion might be hailed as a model of clarity and simplicity. As it neither cites nor, I would argue, much follows them, I think the case for further proceedings may be strong.

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Court Rules that Pastafarianism is not a Religion

Tangled issue in First Amendment law: when is a professed ‘faith’ protected, and when is it not? Faith is unknowable after all. Religions cannot be tested for truth by outsiders. Now comes Judge John Gerrard of the District of Nebraska, holding that an inmate’s claim he’s being denied equal treatment for his religion based on the Flying Spaghetti Monster (FSM) is half-baked:

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

Spotted via ars Technica

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Microsoft Sues to Kill or Reduce ECPA Gag Orders

Microsoft filed suit today seeking a judicial declaration that 18 U.S.C. § 2705(b) violates its First Amendment Rights, and the Fourth Amendment rights of the subjects of the orders.

I think this lawsuit is a Big Deal, and Microsoft has the right of it on moral grounds. On legal grounds it has a good arguable case, although the law is not so clear that I can call it a slam dunk. This excellent article by Steve Lohr in the NYT gives the outline, and quotes a soi-disant expert.

Perhaps the most interesting, if disturbing, fact is this one:

From September 2014 to March 2016, Microsoft received 5,624 federal demands in the United States for customer information or data. Nearly half — 2,576 — were accompanied by secrecy orders.

And of those secrecy orders, more than two-thirds contained no fixed end date. I.e. unless Microsoft were to go to court later to challenge them in individual proceedings, they orders would on their own terms last forever.

The text of Microsoft’s complaint is worth reading as it is very well done. Here’s the first paragraph:

Microsoft brings this case because its customers have a right to know when the government obtains a warrant to read their emails, and because Microsoft has a right to tell them. Yet the Electronic Communications Privacy Act (“ECPA”) allows courts to order Microsoft to keep its customers in the dark when the government seeks their email content or other private information, based solely on a “reason to believe” that disclosure might hinder an investigation. Nothing in the statute requires that the “reason to believe” be grounded in the facts of the particular investigation, and the statute contains no limit on the length of time such secrecy orders may be kept in place. 18 U.S.C. § 2705(b). Consequently, as Microsoft’s customers increasingly store their most private and sensitive information in the cloud, the government increasingly seeks (and obtains) secrecy orders under Section 2705(b). This statute violates both the Fourth Amendment, which affords people and businesses the right to know if the government searches or seizes their property, and the First Amendment, which enshrines Microsoft’s rights to talk to its customers and to discuss how the government conducts its investigations—subject only to restraints narrowly tailored to serve compelling government interests. People do not give up their rights when they move their private information from physical storage to the cloud. Microsoft therefore asks the Court to declare that Section 2705(b) is unconstitutional on its face.

Update: For an argument that courts will deny Microsoft’s facial challenge on the grounds that the claims can only be asserted ‘as applied’ — very much an emphasis of recent Supreme Court decisions disfavoring as facial challenges to statutes, see Jennifer Daskal at Just Security, A New Lawsuit from Microsoft: No More Gag Orders!. It’s more pessimistic than I would be, but not implausible.

Update2: Microsoft’s statement.

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Magistrate Judge Orenstein Rules for Apple

Magistrate Judge James Orenstein of the E.D.N.Y has issued a 50-page order in a case similar to the Apple v FBI case that has been in the news. In this case too, the government sought to have Apple defeat the passcode security limit on an iPhone so the government could extract the data pursuant to a valid search warrant.

The opinion is a slam-dunk win for Apple, rejecting the government’s All Writs Act (AWA) request on multiple grounds. Among them is that Apple does not meet the test in the leading Supreme Court precedent, New York Telephone due to Apple’s distance from the alleged crime and the burden to Apple of complying. There’s two constitutional arguments: one on separation of powers, that an absence of prohibition by Congress should not be treated as permission, and one on the implications of the government’s expansive view of the AWA, under which any of us could be conscripted to do things we might hate doing to help the government in investigations or worse. (Judge Orenstein gives the I hope extreme example of a drug company forced to produce an execution drug against its will if the government has no other source of supply.)

Apple also wins on discretionary grounds.

This opinion is a thoughtful and on just about all points persuasive work, and it should be influential as these cases trundle through the legal system.

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Yahoo Does Apple v FBI

Yahoo! Politics has me on Apple and the slippery slope problem of government claiming powers to draf needed helpers under the All Writs Act.

Posted in Cryptography, Law: Constitutional Law, The Media | Leave a comment

Gloomy Interbranch Game Theory

Peter Shane, What Do We Call Options Worse Than “Nuclear?”

Interestingly, every Constitutional stratagem he comes up with for forcing or blocking a Supreme Court nominee seems to have a possible counter-move for the other side. The Constitution really is pretty finely balanced until the Supreme Court mucks it up with decisions like Noel Canning.

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