Supreme Court

Of Crosses, Deference and Delegation

A day of relatively small opinions from SCOTUS suggests big doctrinal developments may be on the horizon

|The Volokh Conspiracy |

Today the Supreme Court issued four more opinions, with more expected tomorrow and next week. As with Monday's opinions, today's decisions featured some interesting line-ups and lots of clues about how existing doctrine may evolve in the coming years.

The highest profile case decided today was American Humanist Association v. American Legion, a First Amendment Establishment Clause challenge to the maintenance of the Bladensburg Cross in Maryland. Unsurprisingly, the Court rejected the AHA's claim that the cross constituted an Establishment Clause violation by a vote of 7-2. There was not  much question that this decades-old World War I memorial was permissible under current doctrine. Nonetheless, the case produced numerous opinions and divisions on the Court.

Justice Alito wrote the majority opinion. He was joined in full by the Chief Justice, and Justices Kavanaugh and Breyer, and in part by Justice Kagan. Justices Breyer and Kagan also wrote separate concurring opinions, as did Justice Kavanaugh. Justices Thomas and Gorsuch also wrote opinions concurring in the judgment, suggesting the case should not have been heard, either because the plaintiffs lacked standing (Gorsuch, joined by Thomas) or because the Establishment Clause shouldn't apply to the states or to monuments (Thomas). Justice Ginsburg dissented, joined by Justice Sotomayor.

One reason this "easy" case divided the justices so much is because there is disagreement over the proper test to apply in Establishment Clause cases, as well as how to apply it. The conservatives are skeptical of the so-called "Lemon test," while Justices Breyer and Kagan would like to keep it. So while there was some agreement the cross would satisfy Lemon, there was not agreement that this is how the cross should be invalidated. This division virtually ensures the Court will reconsider Lemon in an appropriate case.

While the cross case may capture the most headlines, some of the other cases may be more important. As Ilya Somin notes in a post below, the Court rejected a non-delegation challenge to the Sex Offender Registration and Notification Act (SORNA), 5-3 in Gundy v. United States, although no opinion commanded a majority of the Court. There were only eight votes in Gundy because Justice Kavanaugh did not participate, having joined the Court after the Gundy argument. Indeed, Gundy was argued on the first day of the Court's term, so we'd been waiting for this one for a while.

Although some of the Court's liberal justices seemed uncomfortable with the idea that Congress could delegate authority to the Attorney General to decide when SORNA's registration requirements apply, all of the Court's liberals joined Justice Kagan's opinion for the Gundy majority.

The crucial fifth vote for the federal government in Gundy came from an apparently reluctant Justice Alito, who noted in a separate opinion concurring in the judgment that he was open to reconsidering the non-delegation doctrine, but would not support the selective application of the doctrine to criminal law statutes such as SORNA. Put another way, Justice Alito seemed to be saying that if the nondelegation doctrine is on the table, he's game, but only if it is to be applied across the board. Justice Gorsuch dissented in Gundy, joined by the Chief Justice and Justice Thomas, arguing that the SORNA crosses the line and constitutes an impermissible delegation.

Although we don't know what Justice Kavanaugh thinks of the delegation issue, Gundy suggests there are at least four justices willing to consider reinvigorating the nondelegation doctrine. We also might not need to wait too long to learn whether this is so, as there cases presenting plausible nondelegation arguments against some Trump Administration actions working their way up through the courts, including a challenge to the imposition of steel tariffs and the Administration's declaration of a "national emergency" to build a wall along the Mexican border.

The Court issued another administrative law ruling in PDR Network v. Carlton & Harris Chiropractic. Here the Court was unanimous in the judgment, vacating a lower court decision that deferred to the FCC's interpretation of language in the Telephone Consumer Protection Act (TCPA), but split on whether deference was actually due. Justice Breyer wrote for five justices—the other liberals and the Chief Justice—to hold narrowly that the lower court needed to determine the nature of the FCC's action (i.e. whether it was a legislative or interpretative rule under the Administrative Procedure Act) and whether the FCC's determination could be challenged in the context of an enforcement proceeding. In Justice Breyer's view, a remand was in order so the lower court could answer these questions. In other words, he punted.

Justice Kavanaugh, joined by Justices Thomas, Alito and Gorsuch, saw no need to wait for the resolution of such questions. Concurring in the judgment, Justice Kavanaugh would have held that PDR Network was not precluded from challenging the FCC's interpretation of the relevant statutory provisions, and that the FCC's interpretation was not due binding deference from the lower court. Justice Thomas also wrote separately, joined by justice Gorsuch, suggesting an additional reason to reject the FCC's statutory interpretation: Chevron was wrong and should be reconsidered.

The final opinion of the day was McDonough v. Smith, in which a six-justice majority crossing traditional ideological lines, held that the statute of limitations for a criminal defendant's Section 1983 claim alleging the fabrication of evidence did not begin to run until the end of the proceedings against him. Justice Sotomayor wrote the majority, joined by the Chief Justice, and Justices Breyer, Ginsburg, Alito, and Kavanaugh. Justice Thomas dissented, joined by Justices Kagan and Gorsuch.

McDonough is potentially important because it makes it easier for criminal defendants to sue police or prosecutors who engage in misconduct against them. It also produced a most unusual line-up. It's not very often Justice Alito joins a pro-criminal defendant majority in a divided case, particularly when at least one of the Court's liberals (here, Justice Kagan) is on the other side.

Something else interesting about today's opinions is that (as on Monday) the Chief Justice and Justice Breyer stuck together in three of the four cases, either because one of them "crossed over" (Breyer in the cross case, the Chief Justice in PDR Network) or because they were on the same side in a case featuring an untraditional split (McDonough). Unlike Monday, Justice Alito was not part of this pattern, as he split with Breyer and the Chief in PDR Network. Nonetheless, as I noted on Monday, it is worth watching to see whether this pragmatist bloc continues to appear in other cases.

That's all for today. There are still 16 cases to be decided, and only ten days left in June. This means we'll get lots of opinions within the next week, including one or more tomorrow. Stay tuned.

 

NEXT: Two Solar Companies Said Tariffs Would Save Their Businesses. They Went Broke Anyway.

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  1. “the other liberals and the Chief Justice”

    Edit Note: Are the last 4 words redundant?

  2. Ginsburg read her dissent. Very, very upset that a 100 year old cross paid for by the widows of dead soldiers was not to be destroyed.

    1. You seem pretty upset she’s upset.

      1. I post just about everyday, she only reads her dissents when its really important to her.

        1. You post everyday because you are always upset, consequent mostly to being the confirmed loser in the American culture war throughout your lifetime.

          Spoiler: It will never get better for today’s movement conservatives. America has already overcome peak clinger.

    2. The cross has been maintained with public funds since 1961.

      1. A war memorial maintained with public funds. Oh no.

        1. A large Christian symbol maintained with public funds.

          Just pointing the facts to Bob, A.L.

          1. Which is a war memorial.

            Ever see Arlington National Cemetery. That’s lots of little crosses maintained with public funds. I suppose they should all go too, eh? Maybe they should dig up all the graves and remove any religious symbols from them too, just to be sure. Can’t be doing any religious stuff with public funds.

            1. “Which is a war memorial. ”

              A memorial to a war in which members of only one religion participated?

              1. The memorial is not about the religion, but about the dead and fallen.

                Seriously, you would think you’d never seen a war memorial before.

                1. “The memorial is not about the religion, but about the dead and fallen.”

                  Then why does it feature a symbol of only one religion?

                  1. Yep…you’ve never seen a war memorial before.

                    1. Your’re going to stick with bullshit? Your call.

            2. “Ever see Arlington National Cemetery.”

              I… have? I don’t recall the little crosses. I remember there being headstones with crosses and stars of david, the five pointed star, some Jews for Jesus stuff, crescent and star, atheist symbols, etc. on them. Since those were for individual soldiers, not sure what that has to do with the bladensburg cross. (Note: I find the bladensburg cross neither objectionable nor of any constitutional moment, whatsoever.)

              Are you sure you aren’t thinking of the Normandy American Cemetery… in France?

              1. In Flanders fields

                1. Colleville-sur-Mer has the little crosses, too. I think Saving Private Ryan’s little crosses scene was shot there.

                  1. Saving Private Ryan is the wrong war.

              2. Both apply. Arlington and France.

                1. In today’s stunning news, we learn that the first amendment to the U.S. Constitution does not apply to France.

                  1. Perhaps you should tell that to the Military Foundation for Religious Freedom, which has sued to remove the crosses from the graves of the American Soldiers in France. Because, the upkeep is paid for by…the United States Government.

                    1. In today’s stunning news, some people didn’t get it the first time when it was pointed out for them that the first amendment to the U.S. Constitution does not apply to France.

                2. So you are saying NToJ is lying?

                  1. No, I’m saying that whatever it is France has done has no relevance whatsoever when you’re arguing about “what Maryland can do, because Constitution.”

                3. Where in Arlington are the little crosses? I’ve been but don’t remember seeing them. I think you’re getting your war memorials mixed up.

                  1. On the gravestones.

                    1. Also, the grave of RFK, at Arlington, if you’re interested, has a full cross on it. A group has sued to remove it

                    2. Right. Sometimes called headstones. See above comment.

      2. “The cross has been maintained with public funds since 1961.”

        Is that a response to “paid for by the widows of dead soldiers “?

        Holly non sequitur batman!

        “paid for” does not mean “maintain”, it means “paid for the construction” or “paid for the carving and erection”. Not a lot of World War I widows around these days.

        1. If that’s all you meant, ‘paid for’ was off topic and disingenuous.

          1. It was to show how extreme she is.

            1. Fair enough – it was a pretty clearly rhetorical comment, and should have been read thus.

              I withdraw my criticism.

            2. Whenever I hear anybody describe Justice Ginsburg as “extreme” I envision her full robed cutting waves on the surf, with a doritos locos taco in hand.

    3. RBG really doesn’t like religion, and likely thinks the First Amendment isn’t freedom “of” religion but freedom “from” religion.

      Using RBG’s logic, the National Holocaust Museum would be torn down, and totem poles on federal lands across the nation would need chain saws taken to them.

      1. The Holocaust Museum is not a religious symbol. Indeed, despite its widespread use, the Star of David does not have the same significance in Judaism as the cross does in Christianity.

        1. Every once in a while, you see something truly out of left field that makes no sense. Like in a discussion about religious symbols and maintaining them with public funds, an argument that the Star of David isn’t a religious symbol like the Cross.

          And by implication, it would be OK for the Government to erect and maintain a giant Star of David, but not a Cross…

          And you shake your head at the crazed logic.

          1. And by implication, it would be OK for the Government to erect and maintain a giant Star of David, but not a Cross…

            Nope.

            I didn’t say that and don’t think that. It was just a tangential point.

            1. Hence “by implication”

              1. Your inferral does not make it an implication.

        2. The Holocaust Museum is definitely a religious symbol for me. All Holocaust Museums are. You can’t divorce Judaism from the Holocaust. When the DC Museum was shot up in 2009, that sure felt like an attack on me and all American Jewry.

          I know the more Orthodox types still don’t do this, but the Holocaust changed religious practice. Everyone recites kaddish now because of entire families that were killed with nobody left to pray for them.

          1. “You can’t divorce Judaism from the Holocaust.”

            Sure you can, when you remember all the other people the Nazis sent to the concentration camps for extermination. The Jews were the biggest such disfavored minority, but far from the only one.

      2. “RBG really doesn’t like religion, and likely thinks the First Amendment isn’t freedom “of” religion but freedom “from” religion”

        It’s both. It guarantees both freedom to practice the religion you choose, and anti-establishment of religion. Break the habit of only reading the parts you like, maybe?

        1. If you hate religion then you should want the state to promote a religion—look at Europe and Israel with quasi state religions.

        2. You’re using “Establishment” wrong in this context. And ignoring history, unsurprisingly.

          One of the larger concerns here, is that in modern history, the “State” has a history of using its power to eliminate religion. Because religion (and organized religion) acts as a counterbalance to the power of the state. Whether it be the communists eliminating hundreds of thousands of Orthodox religious believers, the Nazis working to eliminate the Catholic church (in addition, of course, to the holocaust), the Chinese persecution of current Christians and dozens of other examples.

          The US is in the early stages of that today. Using the power and overwhelming intrusion of the Federal state to weaken and eliminate religion. Whether it be war memorials, or people’s religious beliefs, or a small convent of nuns being forced to submit. Using the power of the state in this manner is “wrong” just like it was wrong under Soviet Russia, Nazi Germany and more. We must be aware of this aggression, and resist it.

          1. Actually, the state has a history of using its power against disfavored religions and religious factions.

            It also has a long history of establishing its preferred religion in power. Nazi Germany and the Soviet Union are not all of history.

            1. And among a decent section the the US government, Christianity is a disfavored religion.

              1. Oh, yes. Christians are so persecuted in the United States, people are afraid to gather and disclose their Christianity to anyone out of fear of reprisal.

          2. “The US is in the early stages of that today. Using the power and overwhelming intrusion of the Federal state to weaken and eliminate religion.”

            I see that you’re in one of those religions that uses hallucinogens. Thank God for the RFRA, eh?

            1. Yeah, and thank God for the Colorado Civil Right Commission…. They would never have an animus against religion. At least not one RBG could find. Seven other Supreme Court Justices…that’s a different matter.

              1. How does the Colorado Civil Right Commission have anything to do with a monument in Maryland?

                1. Once again, you’ve deliberately failed to follow the argument

                  1. No, once again you’ve failed to offer one.

      3. “Using RBG’s logic…”

        I’m not sure she’s right on the law, but do you understand her argument? Why would anything in her opinion require demolition of the National Holocaust Museum? In fact, her dissent specifically addresses your hypothetical at page 6, quoting O’Connor’s concurrence from Lynch v. Donnely (the “typical museum setting, though not neutralizing the religious content of a religious painting, negates any message of endorsement in that content.”)

        1. I understand her argument, I just happen to disagree with it intently.

          In RBG’s opinion, the cross, no matter the context, no matter the use, cannot possibly be divorced from the Christian religion, and so government funds can never ever be used to support it, no matter what, unless it’s an isolated piece in a museum, maybe or a classroom. That is her view of it. Anything more is “endorsing” religion.

          I view it differently. Religion is an inherent part of the history of our Country. Many historical events and monuments have also have a relationship with the religions that people had…Christian, Jewish, Native American…and more. Often, government plays a role in the preservation of these monuments. And the historical significance outweighs any presumption of “endorsement of religion”.

          The Holocaust, while it affected many people of many different faiths, is overwhelmingly associated with the Jewish people and the Jewish faith. And federal funds are used to support, build, and maintain, not an isolated exhibit in a museum, but an entire museum dedicated to the Holocaust, That is…quite different. (If you think otherwise, consider if the Bladensburg Cross was just declared a museum.).

          You may make the argument that you don’t view the Holocaust museum being the Jewish people and faith (which are quite intertwined). But a normal observer may, given the context, believe it is. I think it deserves to stand. But the Opinion RBG gives would imply it needs to be removed from government funding. RBG’s ruling also implies the Crosses in Arlington National Cemetery (on the gravestones) need to be removed, because they “Endorse” religion. Which I also view as wrong.

          I can continue, on any number of other items. The First Baptist Church in Selma, Alabama, is on the National Register of Historical Places, as a key monument in the Civil Rights movement. But, under RBG’s opinion, neither state, nor local, not National government could contribute a dime to its upkeep…because it’s a church, and because doing so would “endorse religion”.

          1. “In RBG’s opinion, the cross, no matter the context, no matter the use, cannot possibly be divorced from the Christian religion…”

            You need to read her dissent. First full paragraph at page 6. Begins with “A presumption of endorsement, of course, may be overcome.” Then read section D, starting with: “Holding the Comission’s display of the Peace Cross unconstitutional would not, as the Commission fears, “inevitably require the destruction of other cross-shaped memorials throughout the country.” Then read footnote 16, specifically describing two cross-shaped memorials at Arlington which would not be implicated by her argument.

            “I view it differently. Religion is an inherent part of the history of our Country.”

            Right. You’ve just confirmed that the cross is in your view a religious symbol. That walks headfirst into her argument.

            “And the historical significance…”

            I’m not aware of a “historical significance” exception to application of the Bill of Rights.

            “That is…quite different. (If you think otherwise, consider if the Bladensburg Cross was just declared a museum.).”

            It’s not what I think that matters. It’s what Justice Ginsburg thinks. And she said, explicitly, that museums may permissibly display religious iconography. Open the opinion, hit control F, type “museum”.

            “But the Opinion RBG gives would imply it needs to be removed…”

            Her dissent not only does not imply this, she expressly rejects the horrible you’re parading around. The only conclusion I can reach is that you have not read her dissent at all. Let me know when you’ve done that and we can continue discussing the matter.

            1. 1. I’ve read her dissent. And if the Peace Cross goes, then what’s the logical bar the the Argonne Cross Memorial, or the Crosses in Arlington? Both are currently under lawsuit by organizations trying to remove them. Her only argument is “people expect to see them there”. But clearly, some people don’t. Here’s the argument the from the Military Foundation for Religious Freedom.

              “Relating his experience on a recent trip to France, Weinberger said, “I was walking through Normandy, paying my respects, when I suddenly saw all these crosses in a field. I thought, ‘This is weird. Is there some sort of Christian revival going on?’ Then one of the officials said they were military graves.” Weinberger said he was first astounded, then outraged. “These thousands of men were being allowed to endorse their religion on the government’s dime on government land. If they wanted to die for whatever god they believed in, that’s fine, but that doesn’t mean I have to look at it. Honestly, it’s like Hitler won the war.”

              So, what’t the logical bar? The residents near the Peace Cross were fine with it for dozens of years, and the expected it to be there. But a lawsuit from a couple people who don’t like it and….

              1. “…then what’s the logical bar the the Argonne Cross Memorial, or the Crosses in Arlington?”

                Because, as she said, there’s a different expectation at a cemetery. One or two lone crosses surrounded by gravestones is not going to raise the same government endorsement issues as a standalone cross off a public road.

                As to Mr. Weinberger, why are you confusing what he believes, with what you’ve asserted Justice Ginsburg believes?

            2. Part 2:

              Yes, the cross is a religious symbol. Many things are. But they can also have a secular purpose. But it can also represent something other than just an endorsement of religion. Simply because something is a religious symbol doesn’t mean that the state can’t have anything to do with it. And the context (and yes, historical context) is important. The Bill of Rights, if we’re looking at the direct wording, just says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

              Which law was passed? Which “Establishment of Religion” does the Peace Cross represent? The Catholic Church? Anglican Church?

              3. Fine. The Peace Cross is now declared a Museum, consisting of a single exhibit. Now RBG should be happy, and there’s no issue, right?

              4. She rejects it, but on no logical basis than “well it wouldn’t extend to this because I don’t think it should” and there’s no logical basis to it.

              What about the Irish Brigade Cross at Gettysburg? Should that be knocked down? What else?

              1. The Canadian Cross of Sacrifice? Should that go?
                The Cross at Bayview Park, in Penescola? That should go?

                Listen, I’m not asking for the government to go around, putting up crosses. But when an organization goes around, identifying things that it can sue about, items that have stood for decades with no problem.,…It starts to look like animus against religion

                1. I’m beginning to think that you want these other crosses to go.

                  People who sue to have religious iconography removed are entitled to have “animus against religion”. The Constitution is not concerned with private religious animus.

              2. “Simply because something is a religious symbol doesn’t mean that the state can’t have anything to do with it.”

                Of course this is true. But it only matters if you’re willing to rebut Justice Ginsburg’s accounting that this particular cross is, in fact, a religious symbol. Are you?

                “Which law was passed?”

                I suspect it’s a city ordinance.

                “Which “Establishment of Religion” does the Peace Cross represent?”

                Wow this is really a brain buster. Is the Latin Cross intended to represent Hinduism? Or is it Hellenic Pantheism? How could I figure that out? Which religion uses crosses…

                “3. Fine. The Peace Cross is now declared a Museum…”

                Yes, a museum teaching people about something is more likely to have a secular purpose even if relying on religious iconography.

                “She rejects it, but on no logical basis than…”

                Because a museum using religious iconography to teach cannot be interpreted as endorsement by the state. That’s what O’Connor said in her concurrence in Lynch, which Ginsburg quotes approvingly.

                “What about the Irish Brigade Cross at Gettysburg?”

                I am pretty sure Ginsburg was one of the Justices who declined to hear the 9th Circuit case affirming that it was not an establishment clause violation. But you keep swinging buddy.

              3. “But they can also have a secular purpose”

                We could go back to using them for their original (secular) purpose.

          2. ” RBG’s ruling also implies the Crosses in Arlington National Cemetery (on the gravestones) need to be removed, because they “Endorse” religion. Which I also view as wrong. ”

            I also believe your interpretation is wrong. At least we can agree on that.

      4. RBG really doesn’t like religion, and likely thinks the First Amendment isn’t freedom “of” religion but freedom “from” religion

        Neato telepathy, but being against government religeosity is not the same as not liking religion. Indeed, one could see it as wanting to protect some faiths from rendering themselves unto Caesar.

        1. Of course, if you happen to dislike Christians, it’s a great tool to punish them.

          Unsurprising, from RBG in this opinion, and her other opinion in Masterwork Cakeshop.

          1. Yes, if you assume your conclusion, you are correct. But you’ll have to show your work before it’s anything more than ideological hate-wankery.

    4. To take over a piece of land that already had a religious monument on it, and thinking it proper to destroy it because it goes against policy, or at least let it fall into disrepair (and then probably destroy it anyway out of fear of lawsuits if it fell) smacks of the old Taliban in Afghanistan destroying the ancient temple carvings because it went againt their policy.

      1. Ah, so we agree it is a religious monument?

        1. Yes, of course it is. And if there’s any 1st amendment issue involved, it should never have been confiscated by the state in the first place. We don’t want the US to become France, where all the cathedrals were taken by the government, and the churches get to use them only on government sufferance.

          If there’s a 1st amendment issue today, give it back to the American Legion.

          1. Don’t you mean the 5th amendment? Because last I checked, that’s where the takings clause is. (Which applies equally to religious and secular property.)

            1. No, I think it’s actually a 1st amendment issue if the government goes around using eminent domain to take ownership of religious monuments, and then destroy them.

              Any 1st amendment issue here was created by the state taking the property, and thus can be cured by transferring the property back to the American Legion, or to some other private entity willing to maintain it. Insisting that the land must be retained and the monument destroyed seems to originate from anti-religious animus, not a desire to avoid entanglement with religion.

              1. Yeah, so if the ‘fix’ is “giving back the land” the government TOOK, then it clearly is a takings issue, and not a 1A one.

          2. Well it was on state land, so…

  3. It appears that RBH is solely sustained by an incredible amount of animus. What a miserable performance she put on this morning.

    1. Why should she be angry? American progress has ensured that her preferences have been vindicated, against the wishes and efforts of those with whom she disagrees, throughout her lifetime.

      It’s the conservatives who are anxious and cranky.

      1. “American progress has ensured that her preferences have been vindicated”

        Why yes, thanks to her the government gets to practice civil asset forfeiture and to condemn and take your property for any capricious reason. She was the only justice to vote in favor of both of those decisions. Your RBG is a paragon of liberty……..

        1. “Why yes, thanks to her the government gets to practice civil asset forfeiture and to condemn and take your property for any capricious reason.”

          When did she write those statutes?

          1. “When did she write those statutes?”

            Ooh, let’s all be disingenuous together.

            So you must believe that Chief Justice Taney has been getting a bad rap for all these years, right?

            1. “So you must believe that Chief Justice Taney has been getting a bad rap for all these years, right?”

              You’re mixed up. Taney’s sin was not upholding a law, but overturning one.

            2. Actually, pretty much, yeah. Chief Justice Taney has been getting a bad rap for all these years. People keep asking the wrong question. The question he was asked was, does the Constitution require that black people and white people be treated the same? He correctly answered that, at the time, it did not. It did not because the people who wrote it did not want to have to treat white people and black people the same.

              1. But Taney went far, far beyond concluding that the Constitution didn’t require that black people and white people be treated the same. The opinion amounted to claiming that the Constitution actually mandated that they NOT be treated the same. Citizenship for blacks was not, according to Taney, merely optional, it was ruled out.

                1. ” The opinion amounted to claiming that the Constitution actually mandated that they NOT be treated the same.”

                  Yeah. Because, when Taney was writing, that’s what it said. That problem didn’t get fixed until 1868.

                2. Taney was making up his “facts”. Free blacks were citizens in several states, right back to the Revolution.

        2. Which decisions?

          1. Mr. Taney wrote a lot of them, but when Taney is mentioned without reference to any of them, it’s a pretty clear reference to Scot v. Sanderson.

            1. Who the fuck cares about Taney? Nobody referenced “decisions” by Taney. Here is what I was responding to (learn to scroll up):

              She was the only justice to vote in favor of both of those decisions. Your RBG is a paragon of liberty…”

              You’re like a child who wanders into a movie theater and wants to know…

              1. Go fuck yourself. Use a cross, if you want, but it’s not mandatory.

                1. Good luck with your law school finals. In the meantime, please accept this advice: If you’re going to be a perpetual, annoying pedant, don’t fuck up. Read carefully. Mind your own god damn business.

  4. The only reason the cross was on public land at all was that the state seized the private land it was on to build a road.

    1. From Wikipedia: “The cross was originally built on private lands, but the lands were turned over to the state’s Maryland-National Capital Park and Planning Commission in 1961. ”

      “Turned over” in this context is generally a euphemism for “We’re going to get it in the end, why fight?” The road came later.

      But, yes, it was a private memorial raised by the American Legion, and only later taken over by the government. Perhaps they should just give it back to the American Legion?

      1. As described in Footnote 11 of the opinion:

        There is some ambiguity as to whether the American Legion ever owned the land on which the Cross rests. When the Legion took over the Cross, the town of Bladensburg passed a resolution “assign[ing] and grant[ing] to the said Snyder-Farmer Post #3, American Legion, that parcel of ground upon which the cross now stands and that part necessary to complete . . . the park around said cross, to the perpetual care of the Snyder-Farmer Post #3 as long as it is in existence, and should the said Post go out of existence the plot to revert to the Town of Bladensburg, together with the cross and its surroundings.” App. 65. In 1935, a statute authorized the State Roads Commission of Maryland to “investigate the ownership and possessory rights” of the tract surrounding the Cross and to “acquire the same by purchase or condemnation.” Id., at 421. It appears that in 1957, a court determined that it was necessary for the State to condemn the property. Id., at 1377–1379. The State Roads Commission thereafter conveyed the property to the Commission in 1960. Id., at 1380, 1382. To resolve any ambiguities, in 1961, the local American Legion post “transfer[ed] and assign[ed] to [the Commission] all its right, title and interest in and to the Peace Cross, also originally known as the Memorial Cross, and the tract upon which it is located.” Id., at 1387. At least by 1961, then, both the land and the Cross were publicly owned.

      2. It was “built on private lands” because the state transferred the lands to the American Legion before the cross went up.

  5. Several parts of the BoR defy incorporation—the Establishment Clause is a federalism provision that shouldn’t apply to states. The 2A explicitly applies to all citizens in America so McDonald makes zero sense…but whatever.

    1. I agree on the 2nd amendment: only states have militias, so how can you apply it to Washington DC? (Although that’s technically reverse incorporation.)

      But I fail to see what the practical difficulty is with incorporating the establishment clause. A number of states used to have established churches, and now they’re no longer allowed to do that. What’s the difficulty with that?

      1. “I agree on the 2nd amendment: only states have militias, so how can you apply it to Washington DC? ”

        Quite easily, actually, in as much as the right is guaranteed to the people, NOT the militia, and Washington DC certainly has people.

        1. Exactly, which is why McDonald makes no sense.

      2. The practical difficulty is that the states cannot do what they use to be able to do, despite the fact that no law was intended to prevent them from doing that. I’m happy with the result, but that doesn’t make it legally correct.

        1. “despite the fact that no law was intended to prevent them from doing that.”

          What, you’re arguing that the 14th amendment isn’t “law”?

          1. I think the 14th Amendment is a law. I don’t think it was intended to incorporate the 1A’s establishment clause against the states.

            1. Operationalizing equal protection, P&I, and due process was always going to have some unexpectedness to it.

              But even for the hardcore originalists, isn’t there some contemporaneous language about incorporation among the 14th drafters?

              1. If the unexpectedness is working around how horrible the recently liberated southern states, sure, I agree. If “unexpectedness” means categories of protections that would have been obviously rejected by the 19th century ratifiers, there’s nothing else that can’t fit under “unexpectedness”. Put differently, if 14A means things I’m convinced its ratifiers would specifically reject, I can’t accept that it was just a drafting error.

                “…isn’t there some contemporaneous language about incorporation among the 14th drafters?”

                It’s Bingham. There is a strong originalist case for incorporation. There’s a strong originalist case for not-incorporation. The originalist scholarship is inconclusive as to (1) what Bingham’s true views were; and (2) whether they were shared by the ratifiers of the 14A. People have been arguing about it for decades, and not based on new evidence. Unless some treasure trove of historical materials from the 14A’s ratifiers is unearthed tomorrow, we’re probably never going to resolve that debate.

                What do we know about the 14A ratifier’s intent? Precious little, save and except that it was intended to protect at least one specific group (black people) from certain (not all) mistreatment under the law.

                When I say “I don’t think it was intended to incorporate” I don’t need to overstate my case. Even if the answer is “it is inconclusive what the ratifiers intended re: incorporation”, the answer is the same: no incorporation.

                1. ” if 14A means things I’m convinced its ratifiers would specifically reject, I can’t accept that it was just a drafting error.”

                  Why not? Lots and lots of contracts are written with drafting errors that specify things the contractors never intended.

                  1. “Why not? Lots and lots of contracts are written with drafting errors that specify things the contractors never intended.”

                    What I am saying is that I don’t recognize scrivener’s errors as the law. For the same reasons that courts don’t enforce scrivener’s errors. The law is what it is intended to be.

                2. “The originalist scholarship is inconclusive as to (1) what Bingham’s true views were; and (2) whether they were shared by the ratifiers of the 14A. ”

                  While he might theoretically have been lying when he expressed them in Congressional debate, I see no reason, absent evidence of that, to take the possibility seriously.

                  1. There is more evidence about what Bingham intended, than what he said in one debate, or the committee report.

                  2. And I would add… Even if Bingham believed that the P&I was extending some or all of the BoR to the states, he might have intended that only as permitting Congressional action to extend to the states. In other words, Bingham may never have believed that SCOTUS should be able to invalidate state laws on that basis.

                    1. An irony is most African Americans most likely support prayer in school and yet the 14A prevents school prayer.

                    2. ” the 14A prevents school prayer.”

                      The 14th amendment in no way prevents prayer in school. People who want to pray in school remain free to do so.

                      It prevents mandatory prayer in school, which is an entirely different matter.

                    3. @james “Christ expert” pollock,
                      A majority of African Americans support mandatory prayer in public schools. You oppose it because apparently you are under the impression Christ opposed it. I am not a Christ expert like you so I will take your word for it. However, just because Christ took a position on a public policy matter doesn’t mean we must follow Christ’s teachings. For example, Christ said “love thy neighbor”. What if your neighbor was Senator Strom Thurmond?? Would you have to love Thurmond??

                    4. @Sebastian “Reading Impaired” Cremmington

                      “A majority of African Americans support mandatory prayer in public schools”

                      Which is important because…?

                      “You oppose it because apparently you are under the impression Christ opposed it.”

                      I what now?

                      ” I am not a Christ expert like you so I will take your word for it.”

                      You’re going to take my word for something I never said? Your faith is very strong.

                      ” However, just because Christ took a position on a public policy matter doesn’t mean we must follow Christ’s teachings.”

                      No, idiot, it doesn’t. But people who CLAIM TO BE FOLLOWING JESUS have to FOLLOW CHRIST’S TEACHINGS.

                      “What if your neighbor was Senator Strom Thurmond?? Would you have to love Thurmond??”

                      No, idiot, I don’t.

      3. States promoting a state church has never been a negative thing as long as free exercise is respected. So incorporating the Establishment Clause is a non sequitur.

        1. LOL, really?

          ‘Government coercion is okay so long as there’s no explicit force.’

          1. So coercion to combat climate change is fine but a state promoting Jesus is bad? Your religion is showing.

            1. I’m a Unitarian.

              Climate science is not a religion just because you don’t like it; your analogy fails.

              1. I’m a Dontgiveashitarian. The fact someone wants to promote their hobby with some state funds has less impact on me than numbnuts that want to tax carbon. Many people feel religion improves their lives…I won’t vote for them but if they win good for them.

            2. So coercion to combat climate change is fine but a state promoting Jesus is bad?

              Yes, depending on what you mean by “coercion to combat climate change.”

              A state promoting Jesus is bad regardless.

              1. Why is promoting Jesus bad?

                1. Promoting Jesus isn’t bad at all.

                  Unless the government is doing it.

                  Why? Because the people who’ve already had enough Jesus-promotion in their lives are citizens, too.

                  For Christ’s sake, JESUS said government was none of his business, and vice versa. Followers of Jesus who want government involved in their church aren’t following Jesus.

                  1. So what? I personally don’t give a shit what Jesus said about anything so why would I care what he has to say about religion and government??

                    The Establishment Clause is very specific—no federal religion. So the Framers saw churches as existing power structures that were a useful tool to prevent TYRANNY!! The tyranny would come from the federal government establishing a church and then leveraging that church to further tyranny. The Framers did not see states as a threat to impose tyranny in the federal form of government. Furthermore the Framers feared anarchy equally to tyranny so promoting any power structures at hand was seen serving preventing tyranny AND anarchy.

                    1. Your jurisprudence is pre-1860. States can be pretty tyrannical.

                    2. “So what? I personally don’t give a shit what Jesus said about anything so why would I care what he has to say about religion and government?? ”

                      Read all the way through a comment before responding to it, and you might find your answer already there. As in this case. “Followers of Jesus who want government involved in their church aren’t following Jesus.”

                      “The Establishment Clause is very specific—no federal religion.”
                      It’s even more specific than that, Congress shall make no law establishing religion. It’s silent on whether any other part of the federal government can.

                      “The Framers did not see states as a threat to impose tyranny”

                      They whiffed on that one. We had to adjust in 1868. Since then, the federal government has been the guarantor of individual rights as against the state. You may have read about the change(s) made to the Constitution around that time.

                    3. @jamespollock,
                      Your comment reminds me of President Obama explaining to ignorant brown Muslims how they should practice Islam according to the tenets of Obama’s version of Islam.

                      I agree with you about individual rights—the Establishment Clause isn’t an individual right it is a federalism provision.

                    4. “Your comment reminds me of President Obama explaining to ignorant brown Muslims how they should practice Islam according to the tenets of Obama’s version of Islam.”

                      I care about your bigoted impressions because…

                    5. @jamespollock
                      Are you going to a church tomorrow to explain to Christians what they should believe because you are a “Christ expert”? 😉
                      Omg, that cross on state property is making me pee pee my panties!!

                    6. “Are you going to a church tomorrow to explain to Christians what they should believe because you are a “Christ expert”?”

                      No, are you?

                      “Omg, that cross on state property is making me pee pee my panties!!”

                      This ALSO falls into the category of “I need to care your problems because….”

                    7. @jamespollock
                      I have never held myself out as a “Christ expert” like you have, and I have never held myself out as an “Islam expert” like Obama has. I don’t care about other people’s hobbies and if those people believe their hobbies would improve others’ lives they should be able to try to get elected to city council or state legislature and promote their hobby. That is what religion is in 2019—it’s a hobby many people find fulfilling.

                      The reason the Framers singled out religion in 1788 was because it was a hobby almost everyone participated in, so it was a preexisting power structure. So the Framers saw it as a tool that would be useful to both prevent tyranny AND anarchy…nothing more nothing less.

                    8. “I have never held myself out as a ‘Christ expert’ like you have”

                      If you’ve decided I’m a “Christ expert”, you did that entirely on your own, without my help.

                      So, that right there suggests that reading for comprehension and retention is not a skill you possess, largely invalidating your opinion on anything else that requires reading for comprehension and retention. Thanks for clearing up whether or not your opinion is worth anything.

                    9. @james “Christ expert” pollock

                      You wrote this,

                      “For Christ’s sake, JESUS said government was none of his business, and vice versa. Followers of Jesus who want government involved in their church aren’t following Jesus.”

                      Barack “Islam expert” Obama said this,

                      “There is no doubt, and I’ve said repeatedly, where we see terrorist organizations like al Qaeda or ISIL — They have perverted and distorted and tried to claim the mantle of Islam for an excuse for basically barbarism and death,”

                    10. Sebastian “wankery expert” Cremmington

                      Learn to read.

  6. On Gundy, I share everyone’s aversion to Congress delegating their authority to the President; however, I don’t think that’s the case here.

    From the decision; “The Court started from the premise that Congress meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history.”

    So under Gundy, the AG wasn’t getting any new authority; he was already authorized to register any and all pre-Act offenders.

    The act also gave the AG leeway how to implement this, i.e. register ALL pre-Act offenders, register NO pre-Act offenders, decide to limit the amount to (5, 10, 50 years), etc.

    But Gundy didn’t grant the AG any NEW authority and he’s always had discretion how to implement the registration.

    I’m only arguing this specific, narrow point that the AG wasn’t granted (or took) any new authority – he always had it.

    1. From the decision; “The Court started from the premise that Congress meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history.”

      Given this, why wasn’t an ex-post-facto challenge made in this case?

      1. “Given this, why wasn’t an ex-post-facto challenge made in this case?”

        There’s actually a good answer to this one.
        The federal registration isn’t punitive. It requires registrants to provide information that is already public, and that’s all. When the sex-offender registry first went up to the Supreme Court, they decided that it was hunky-dory to impose registration requirements on offenders because it wasn’t punitive. Since then, of course, many states have added some quite extensive punitive measures, such that a challenge to sex-offender registration wouldn’t be able to get through the USSC on the same reasoning as it did. But since it did get to USSC, their ruling is binding law, and can’t be overturned by a lesser court.

        1. Yes, the problem here is Calder v. Bull, where the Court up and decided that the ex post facto clause would no longer apply to all retroactive enactments, but only to punitive ones.

  7. The Gundy plurality reads as if it scored multiple votes from an implied feasibility standard, which Gorsuch correctly takes to task. Possibly a two-front war in conference.

    Bracket out, for a moment, the AG’s involvement. (Granted, a large bracket, since the case is ostensibly about non-delegation. Nonetheless.) To oppose both views, and carry the day in terms of statutory construction, you have to argue that Congressional mandates can be read, whatever the difficulties in feasibility, with Schechter-Poultry levels of Lockean precision, while simultaneously saying that Congress will always affirmatively flag each such difficulty in feasibility with a clear statement to that effect. There seem to be cross-currents beneath the surface there.

    1. The challenge is that sometimes important details are left out of statutes because there is a valid assumption as to those details in place, and sometimes important details are left out of statutes because changes in society and technology have arisen since the thing was written, and sometimes important details are left out because the people writing it are intentionally avoiding encountering them.

      The result is the same each time… something is missing in the statute, and now the court has to determine how the missing-detail-statute applies to a case where the missing detail is significant.

      There are some things that are rightfully delegated between the legislative branch to the executive, because changing conditions can change quickly enough to require executive, rather than legislative, action. (Does blowing up a drone constitute an act of war? Depends. If was flying over Iran, probably not. If it was flying over an aircraft carrier in international waters, maybe. If it was sitting in a hangar in Kansas, much more likely.)

  8. Right, that idea of deliberate inaction versus accidental or transitory omission is what animates the Chevron calculus, and I suppose that’s what I’m really pushing against. If it’s difficult to know what lawmakers express, it’s probably doubly impossible to know what they didn’t express. And that’s the notion in the law through which the administrative state has built its six lane highway. I’m not opposed to deference, and I’m grateful that tonight’s dinner will likely prove nontoxic, but basing so much of the law on a qui tacit premise seems… odd.

    Divide things (as the Founders did in their spare time) between ideational and empirical. Instead of naming a portion of the empirical work of executing the laws a carve-out of the ideational work of Congress, just say that the law is the intelligible principle, and the execution derives sensibly and in a sufficiently forseeable manner from the principle.

    E.g.: Parliament: No murder. Implementation: If any person of sufficient memory and having attained the age of discretion unlawfully kills any living creature in being, under the King’s peace and with malice aforethought, the death occurring in a year and a day.

    It’s utopian, I grant, but my point was that if that’s the direction you’re heading, and the other side says that a certain law implies a feasibility exception, the better response is that the feasibility happens within the empirical, and under the ideas of Congress, rather than saying that feasibility isn’t in play unless Congress has explicitly ceded that ground to the Executive in the usual manner.

    1. The real challenge is that Congress works solely in language, and language is infinitely mutable.

  9. Yes, but not all at once.

    1. Not all at once. But always.

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