Bong Ads 4 Faith-Based Initiatives!
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Some hasty stitches on the other major cases handed down today:
Regarding Hein v. Freedom From Religion Foundation, No. 06-157:
The Court has created an exception to an exception to a rule.
In this I will give Scalia and Thomas credit: they would have scrapped the (pro-rights) exception outright and not just punched a hole in it the way the rest of the majority did. Disgusting, but intellectually honest.
The notion that, once Congress appropriates funds to the Executive Branch, the money somehow ceases to be an appropriation is of course facially absurd. The hook that Justice Alito hangs his "nothing to sue here" hat upon is the word "specific," as in "specific congressional action" or "specific appropriation," which he relies on like a crutch. Of course, the original appropriation to the executive branch is a "specific" action too, but — somehow — that doesn't count. Go figure.
Finally, note that non-taxpayer lawsuits alleging violation of the Establishment Clause by faith-based initiatives can still proceed. The plaintiffs in such suits will simply need to show a more tangible and direct harm to them personally (e.g., that they themselves were discriminated against by a faith-based program). Stay tuned.
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Regarding FEC v. Wisconsin Right to Life, No. 06-969: I have little new to say. The First Amendment cannot possibly mean one thing in May and another in December. Little more needed to be said, the 93 pages of opinions notwithstanding. (The core holding of the fractured Court was not that any timing restriction of political ads would be unconstitutional, but only the timing restriction of one particular kind of political ad — cf., "exception to an exception," supra.)
The next step is to revisit the even more deeply entrenched schizophrenia of the Court's campaign finance jurisprudence and scrap outright the indefensible framework of Buckley v. Valeo, which holds that "money is speech" when it's the candidate's money but not when it's a contributor's money. That simply cannot be right. The First Amendment deserves better than to be twisted and contorted in such an insolent manner.
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Chief Justice Roberts in WRTL:
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From the "What planet is he living on?" files:
"No one can challenge my actions? Then I shall, as a dedicated public servant, be extra-special, super-duper vigilant in ensuring that I do nothing unconstitutional."
Who's being naive, Justice K?
(Via LGM.)
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The "voluntary desegregation cases" will almost certainly be handed down this Thursday, when the Court ends its term. Previous post here.
Regarding Hein v. Freedom From Religion Foundation, No. 06-157:
The Court has created an exception to an exception to a rule.
Rule: A taxpayer cannot challenge a government expenditure simply because he finds it objectionable.The Court's holding is bizarre, indefensible and, bottom line, rather silly. Taxes are taxes, government is government, the Establishment Clause is the Establishment Clause. All else is sophistry — such as this gobbledygook from Justice Alito: "we must decline this invitation to extend its holding to encompass discretionary Executive Branch expenditures." Creating an exception to an exception is not "declining to extend" — it boggles the mind that the Court could pretend otherwise. (It is also, incidentally, a clear-cut example of "judicial activism" if that term is to have any objective meaning.)
Exception: Unless the expenditure could be construed as violating the Establishment Clause.
Exception to the exception: Unless the expenditure is made indirectly by the executive branch and not directly by the legislative branch.
In this I will give Scalia and Thomas credit: they would have scrapped the (pro-rights) exception outright and not just punched a hole in it the way the rest of the majority did. Disgusting, but intellectually honest.
The notion that, once Congress appropriates funds to the Executive Branch, the money somehow ceases to be an appropriation is of course facially absurd. The hook that Justice Alito hangs his "nothing to sue here" hat upon is the word "specific," as in "specific congressional action" or "specific appropriation," which he relies on like a crutch. Of course, the original appropriation to the executive branch is a "specific" action too, but — somehow — that doesn't count. Go figure.
Finally, note that non-taxpayer lawsuits alleging violation of the Establishment Clause by faith-based initiatives can still proceed. The plaintiffs in such suits will simply need to show a more tangible and direct harm to them personally (e.g., that they themselves were discriminated against by a faith-based program). Stay tuned.
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Regarding FEC v. Wisconsin Right to Life, No. 06-969: I have little new to say. The First Amendment cannot possibly mean one thing in May and another in December. Little more needed to be said, the 93 pages of opinions notwithstanding. (The core holding of the fractured Court was not that any timing restriction of political ads would be unconstitutional, but only the timing restriction of one particular kind of political ad — cf., "exception to an exception," supra.)
The next step is to revisit the even more deeply entrenched schizophrenia of the Court's campaign finance jurisprudence and scrap outright the indefensible framework of Buckley v. Valeo, which holds that "money is speech" when it's the candidate's money but not when it's a contributor's money. That simply cannot be right. The First Amendment deserves better than to be twisted and contorted in such an insolent manner.
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Chief Justice Roberts in WRTL:
[T]he First Amendment requires us to err on the side of protecting political speech rather than suppressing it.Too bad he wasn't thinking so clearly, or being such an "activist judge" regarding the First Amendment, in Morse v. Frederick.
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From the "What planet is he living on?" files:
It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations.--Justice Kennedy in Hein v. FFRF.
"No one can challenge my actions? Then I shall, as a dedicated public servant, be extra-special, super-duper vigilant in ensuring that I do nothing unconstitutional."
Who's being naive, Justice K?
(Via LGM.)
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The "voluntary desegregation cases" will almost certainly be handed down this Thursday, when the Court ends its term. Previous post here.
Posted by Kip on
25 June 2007
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