Short Circuit: A Roundup of Recent Federal Court Decisions

A patronized president, a campaign of emotional torture, and a utterly unqualified forensics expert.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Well, hot dog! IJ is headed to the Maryland Court of Appeals, the state's highest court, to challenge restrictive and confusing rules that forbid mobile food vendors in Baltimore from operating within 300 feet of a brick-and-mortar business that sells similar foods. Click here to read more.

  • If the feds determine that a private pipeline will serve a public use, they can authorize eminent domain to secure the necessary land. But is the transport of natural gas to foreign markets a public use? Maybe not, says the D.C. Circuit; the relevant statute says "interstate commerce," not "foreign commerce," justifies eminent domain. The feds need to explain how the public benefits from an Ohio-to-Michigan pipeline (that is already operational) that exports a big chunk of its capacity to Canada.
  • Allegation: President Trump has a financial stake in quite a few hotels, restaurants, and event spaces in D.C. and New York—and has implicitly encouraged foreign governments to seek his favor by patronizing them, which they have. (Says one diplomat: "Why wouldn't I stay at his hotel blocks from the White House[?] … Isn't it rude to come to his city and say, 'I am staying at your competitor?'") Second Circuit (over a dissent): The owners of competing hospitality venues have standing to sue the president for violating the Emoluments Clause.
  • Allegation: After a Democratic National Committee staffer is murdered in D.C., Fox News promulgates conspiracy theory that he was rubbed out for leaking DNC emails. Prior to running the story, reporters persuade the staffer's parents to retain a private investigator (a recently hired Fox contributor) whose statements lent credibility to the sham story. Second Circuit: The parents can sue Fox and the reporters for intentional infliction of emotional distress.
  • Allegation: Pennsylvania prison staff take away inmate's wheelchair, discipline him for seeking help with walking, laugh at him when he falls. The falls cause serious injuries and leave him unable to bathe himself or get medication and food. Third Circuit: His claims, filed without assistance from an attorney, should not have been dismissed.
  • North Carolina defense attorney invokes the Ten Commandments, particularly "Thou shalt not kill," to jurors during sentencing phase of murder trial. During deliberations, a juror consults her pastor on whether she will indeed "burn in hell" if the jury imposes the death penalty and relays the pastor's counsel to the rest of the jury. They impose the death penalty. Fourth Circuit (over a dissent): Habeas granted. The jury's verdict was tainted.
  • After the housing crisis in 2007, Congress created the Federal Housing Finance Agency, an independent agency designed to supervise lenders Fannie Mae and Freddie Mac. To help ensure its independence, Congress structured the FHFA with just one director (rather than a bunch of directors) who can only be fired "for cause" (rather than at the will of the president). Is the director unconstitutionally insulated from presidential control? The Fifth Circuit, sitting en banc, says yes; and furthermore, the FHFA exceeded its authority when it ordered Fannie and Freddie to turn over all their profits to the U.S. Treasury, dispossessing investors.
  • Remember when Sen. Rand Paul was attacked by his neighbor over a dispute about debris on the property line? The neighbor was given 30 days in prison. Sixth Circuit: Remanded for resentencing. That's not enough time for an attack that broke six ribs.
  • Owner of a vacant lot in Tennessee seeks permission to put up a billboard but is denied. A First Amendment violation? Sixth Circuit: Well, he would have been allowed to put up the sign if it had said "Vacant Lot for Sale" or anything else related to the property, which sure sounds content based. Strict scrutiny applies, and the gov't loses.
  • Allegation: Georgetown, Ind. man comes home to find his wife and two children killed. He's detained for 13 years before he's finally acquitted in a third trial. And this happens because the state lied about an "utterly unqualified" assistant pretending to be a blood-spatter analyst. (The extent of his scientific training was a single chemistry class, which he flunked.) And there's so, so much more. The state also lied about running a DNA test that could have exonerated the man. The second prosecutor was sanctioned for trying to cash in on a book deal. The first prosecutor ended up representing the real murderer. Click on the link, dear reader, for a shocking civil rights case that the Seventh Circuit is absolutely sending to trial.
  • In which (1) an Arkansas inmate sues about solitary confinement, (2) prison officials don't brief qualified immunity before the district court, (3) prison officials don't brief qualified immunity on appeal, (4) the Eighth Circuit orders briefing on qualified immunity, and (5) the Eighth Circuit dismisses on qualified immunity.
  • Does the federal Computer Fraud and Abuse Act forbid companies from scraping data from LinkedIn users whose profiles are public and using it for commercial gain? LinkedIn: Yes! Especially because we now want to use the data ourselves for the same reason. Ninth Circuit: Likely not; the data had been made public by the choice of both LinkedIn and the user, so viewing it does not constitute "unauthorized access" under the CFAA.
  • Back in 1991, Montana banned robocalls related to political campaigns. A First Amendment violation? The Ninth Circuit treats this like the easy question it is.
  • John Steinbeck died in 1968, but the fight over his literary legacy has lingered on. Most recently, the estate of the author's third wife sued the estate of his son over various misuses of Steinbeck's intellectual property. Ninth Circuit (in a literary opinion): We affirm the award of compensatory damages. As for you, punitive damages … well … look over there and we'll tell you about the rabbits.
  • Under the Privacy Act, the feds are prohibited from maintaining records describing how an individual has exercised rights guaranteed by the First Amendment, unless pertinent to an authorized law enforcement activity. Citing the Act, the proprietor of Antiwar.com sues the FBI, seeking the expungement of two threat assessment memos created about the group. Ninth Circuit: The law enforcement exception applies only while there's an ongoing investigation. The first memo must be expunged, but the second is OK for now.
  • Tampa, Fla. salon owner fires massage therapist who vacationed in Ghana out of fear that the therapist would return infected with Ebola. (Though there was an outbreak in West Africa at the time, Ghana was not affected.) A violation of the Americans with Disabilities Act? The feds: Yep. The ADA protects persons from discrimination on the basis of perceived disability. Eleventh Circuit: Nope. That doesn't apply to healthy people who may potentially become ill in the future.

Last year, the Kansas Supreme Court ruled that police officers can't pull over vehicles simply because the owner (who obviously may not be the driver) has a suspended license. Huzzah! There are a gazillion non-driving reasons people get their licenses suspended: unpaid parking fines, delinquent child support, court debt (including collection fees, interest, nonpayment fees, payment plan set-up fees, probation fees, and warrant fees). The list goes on. Allowing police to pull people over simply because they're suspected debtors turns police into roving debt collectors and yields little public safety benefit. So argues an amicus brief that IJ signed onto this week, urging the U.S. Supreme Court to let the ruling stand.

NEXT: The Anti-Slavery Constitution

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  1. “The feds need to explain how the public benefits from an Ohio-to-Michigan pipeline (that is already operational) that exports a big chunk of its capacity to Canada.”

    “A big chunk” DNE “all of”; The pipeline serves an interstate commerce purpose so long as any of its capacity is used for actual interstate commerce. At least that’s how I expect they’ll rule.

    1. So if they ever shut it down for maintenance, it becomes illegal?

      1. Why do you need a tangential injury to sue under the emoluments clause anyway? The damage is foreign governments buying influence with the president, which affects everybody, not a coincidental minor injury to particular people.!

        1. That’s how standing works. You need to show how you in particular were harmed, not just how the public at large was harmed.

        2. They’ve been using “standing” for a long time to immunize unconstitutional conduct against court challenges. This wouldn’t be new.

          If the damage is to a few people, you can sue. If it’s to everybody, nobody gets to sue. Yeah, makes no sense, it’s not meant to make sense, it’s meant to prevent you from taking the case to court.

          Mind, I think the case here fails on other grounds, that ordinary commercial transactions simply don’t qualify as “emoluments” in the first place. But even losing cases can deserve to lose on the basis of merits in a court of law.

  2. How is Rene Boucher’s resentencing not effectively a matter of double jeopardy?
    And if in the government’s case they wiggle out of double jeopardy and do up the sentence, that seems unduly harsh on the grounds that a sentence of prison involves not simply the time served, but the global disruption of one’s life, setting affairs in and then re-establishing life at the conclusion of the prison time. That is, 30 days followed by an unanticipated 180 days some years later is far more disruptive and therefore punitive than simply doing 210 days from the start.

    In a just system, the government’s statute of limitations for obtaining additional sentence time runs out when the original sentence runs out. No do overs to take another bite out of a man’s flesh.

    1. “In a just system, the government’s statute of limitations for obtaining additional sentence time runs out when the original sentence runs out. ”

      Doesn’t government ignore that all the time in the case of sex offenders? They extend incarceration indefinitely.

    2. Gasman….Hold up a minute. The man was convicted of assault and battery against a sitting United States Senator. The battery resulted in severe injuries to the Senator. This is not your typical barroom scuffle where the combatants have a black eye, bloody nose and a bruised ego. The 30-day sentence was ridiculous.

      Do we really want to encourage people to attack our elected leaders? The answer is No.

      It is not about being on Team D or Team R. I would feel exactly the same way if Robert Menendez (Team D senator from the People’s Republic of NJ), for example, was physically assaulted in his home by someone. There are some things you just don’t do, and some things that must be severely punished because they undermine the foundations of society. This is one of those cases.

      I don’t think there is a double jeopardy issue. There was not a second trial for the same crime. Isn’t a second trial necessary to trigger double jeopardy?

      1. “Do we really want to encourage people to attack our elected leaders? The answer is No.”

        Woah, woah, let’s not be so hasty!

      2. The sentence was absurd even if Dr. Paul had been some random guy off the street: The state authorities testified that the misdemeanor charge was entered before they were aware of the severity of Paul’s injuries, and that if the feds hadn’t immediately taken over the case the guy would have been recharged with felony assault based on the actual injuries.

        So Boucher would have gotten more than 30 days if he’d attacked ANYBODY in that manner. Dr. Paul being a Senator didn’t really enter into that.

      3. Did this attack have anything to do with him being a Senator?

        Similarly, if you get in a fight with your cop neighbor, I don’t think the cop part should matter.

      4. “I don’t think there is a double jeopardy issue. There was not a second trial for the same crime. Isn’t a second trial necessary to trigger double jeopardy?”

        No, it’s also triggered if you’re punished twice for the same offense. He would seem to have a strong argument for that. I’m not familiar with the law that allows the government to appeal the punishment (my state doesn’t allow it, for double jeopardy reasons), so I’m not sure if it’ll be struck, but it certainly seems problematic.

    3. “In a just system, the government’s statute of limitations for obtaining additional sentence time runs out when the original sentence runs out. No do overs to take another bite out of a man’s flesh.”

      So if a judge corruptly sentences somebody to “time served”, that’s it, he’s irreversibly off the hook?

      I can see the injustice of coming back years later to hit somebody with a new sentence, but this absurd sentence was appealed immediately.

      1. “So if a judge corruptly sentences somebody to “time served”, that’s it, he’s irreversibly off the hook?”

        Just like when an executive corruptly pardons somebody, I guess.

  3. How exactly could Trump avoid the “Emoluents” clause under this situation? His name is on the building. Even if he changed the name at great expense, the relationship would still exist in the mind of the people. This becomes a non-compliable law that actively seeks to prevent entire classes of people from engaging in political life.

    1. Not to mention, “emolument” is something given as part of holding an office. What’s actually being described seems to be, at worst, an attempt at bribery.

      Why does this seem like an attempt to end-run around the restrictions that have cropped up over what constitutes bribery by using a new, poorly-defined clause to charge the same thing?

      1. ” What’s actually being described seems to be, at worst, an attempt at bribery.”

        So, when the President takes the money, it becomes a completed act of bribery?

        1. So, if a President owns part of a company, and that company takes money for services, it’s bribery?

          Oooh boy.

          1. So, if a President owns part of a company, and that company takes money for services, it’s bribery?

            Oooh boy is right. The POTUS would be totally fucked if he owned a total US stock market index fund, under that reasoning. Or the horror, the POTUS also owns a total int’l equity index fund… 🙂

          2. Which is why Presidents place their assets into blind trusts as they prepare to take office. Well, they used to, anyway.

            1. Really? Obama didn’t. Even NBC reported on it (once, probably by accident). Bill Clinton didn’t until he’d been in office several years.

              Of course, a blind trust doesn’t prevent other people from buying or investing in whatever it is the President owns. Obama publicly announced his investments in a bunch of companies while a Presidential candidate. W Bush’s investments were well known before he took office. So were Clinton’s.
              Do you think no one wanting to benefit them would act on that?

              1. “Of course, a blind trust doesn’t prevent other people from buying or investing in whatever it is the President owns.”

                Depends on how blind it is. If the President doesn’t know what assets he financially benefits from, how do the foreigners?

                1. “Depends on how blind it is. If the President doesn’t know what assets he financially benefits from, how do the foreigners?”

                  Because the assets weren’t always in a blind trust. Or do you imagine that the trustee of the blind trust immediately liquidates everything and re-invests in different assets. In the majority of cases that would result in a significant financial loss and would violate the trustee’s fiduciary duty.

                  1. ” do you imagine that the trustee of the blind trust immediately liquidates everything and re-invests in different assets.”

                    I imagine that the trustee manages the client’s corpus both to preserve the corpus and to shield the beneficiary from conflicts of interest. You know, a blind trust.

                    How effective it would be would depend on the capability of the trustee and the nature of the assets in the corpus.

                    1. Taken from FindLaw:

                      A qualified blind trust is defined as “any trust in which a reporting individual, his spouse, or any minor or dependent child has a beneficial interest in the principal or income” and meets these requirements:

                      Independent Trustee – Not subject to influence by, affiliated with, nor related to the government official.
                      Transferable Assets – Assets transferred to the blind trust must not be restricted, meaning they may be sold or transferred by the trustee without interference.
                      Required Provisions – The trust must contain certain provisions intended to prevent the government official from advising on the assets or communicating with the trustee.
                      Approval of Trust and Trustee – The government official’s supervising ethics office must approve of both the trust and the trustee

                      There isn’t actually a requirement that the owner (or anyone else) NOT KNOW what is in the trust. Given enough time, it is possible that a significant part of the initial assets may be traded off for something the owner doesn’t know about. But that doesn’t seem to be a requirement.
                      This matches with what I found in a 1996 Congressional Research Service report on blind trusts for Federal officials.

                    2. “There isn’t actually a requirement that the owner (or anyone else) NOT KNOW what is in the trust”

                      OK. Now, go back and read what I had to say on the topic. The degree to which the trust is shielded from the beneficiary will affect the effectiveness in how well the beneficiary is shielded from complaints of conflict of interest.

                      Get it now?

            2. James, James, James….C’mon Bro. Give the fuller context. The POTUS putting their assets into a blind trust is a relatively recent phenomenon. For the overwhelming majority of our history, there was no such thing.

              My observation is that there are times where a legal remedy is not available. I don’t see a good legal remedy here. But in this case, the ballot box is a good remedy. If the electorate thinks it is a problem, POTUS Trump will be unceremoniously dumped from office and that will be that.

              1. ” I don’t see a good legal remedy here.”

                If the President is intentionally steering business to his own properties, you impeach him for engaging in conflict of interest.

                Or, you wait until he’s not President, and indict him then.

                Or, one or more of the states proceeds against the business directly.

                That’s three good legal remedies.

                1. Yes.

                  This is not an “emolument”, as the term was understood until, essentially, Trump took office. It might be some form of bribery, but only if you can establish that the foreign government agents in question paid above the market rate for those rooms.

                  Proving that would be very difficult, in all likelihood it’s not even true, so they took the route of claiming a violation of the emoluments clause, to take the issue of how much was paid out of the picture.

                  At the expense of retroactively rendering a couple centuries of routine conduct by Presidents constitutional violations that simply went unnoticed by anybody.

            3. Trump has repeatedly shown that notoriety and pride are far more important than money (notably, the presidency, which has greatly reduced his personal fortune). Plus, as I said, HIS NAME IS ON THE BUILDING. Even if there was no direct personal stake, which even in a blind trust, it certainly is, his family still owns the company and the name is still associated with him personally. Even if he received no money at all, going to his hotel would boost his personal pride.

              In this interpretation, no company owner or founder could ever be elected to political office. That is a patently absurd result

              1. ” HIS NAME IS ON THE BUILDING.”

                His name is on a fairly substantial number of buildings he doesn’t own. His principal business is licensing his name to attach to buildings built and operated by other people.

                1. Yes. My point exactly. Going to a Trump hotel will boost Trump’s pride. Just as I and my family purchase products from my own employer whenever I get the chance. Doesn’t help me financially, but it boosts pride in my work.

            4. I wonder if a foreign official ever ate a peanut (even in the form of peanut butter, peanut oil, or in a candy bar) when Carter was President. Even if it wasn’t a “Carter Enterprise Peanut” and was grown overseas in a global economy the eating of a competitor’s peanut would decrease supply/increase demand driving up international peanut prices and providing Carter with an emolument.

              And if Carter actually saw the consumption of the peanut or was informed of it then it would actually be a bribe.

              Even though Carter put his peanut business in a trust in 1977 and supposedly told the trustees not to even tell him if the business was sold, it is likely that foreign officials would have known if such a sale had occurred if they researched it and Carter probably assumed that, most likely, he was not 100% divested from the peanut business when he assumed the Presidency.

              Thankfully, President Carter is still alive so he can be duly prosecuted for this hideous crime.

              1. What a stupid comparison.

              2. Technically, Carter wasn’t a peanut farmer. He was a subsidy farmer, his family’s peanut profits came from a payment they got for NOT growing peanuts.

    2. When the “opinion” is by an Obama and Clinton appointee, it doesn’t have to make sense.

    3. It also seems that you are going to create problems in the future.

      “President Biden, it’s a pleasure to meet you. You know, I purchased ‘Promise Me, Dad’ and found it to be such an inspiring story that I bought several other copies for my friends. Gave me real inspiration after I lost my father. Now, can we talk about this program.”

      Assuming Biden gets royalties, is the book purchase a prohibited emolument? Was it an emolument if people purchased Reagan’s movies?

  4. “IJ is headed to the Maryland Court of Appeals”
    You guys at IJ.ORG do a lot of good stuff. You should always take the opportunity of making mentions of your name into hyperlinks to your site.

  5. “The owners of competing hospitality venues have standing to sue the president for violating the Emoluments Clause.”

    The authors of competing books should be able to sue Obama (and many past presidents) for publishing their own books, article, or interviews. Daytime soap producers could sue the White House for holding press conferences, thus competing for public attention. The local take-out restaurants could sue the White House kitchen.

    1. The authors of competing books should be able to sue Obama (and many past presidents)

      Um. There’s a bit of a difference between past presidents and the current president in terms of benefits they might provide customers.

      Daytime soap producers could sue the White House for holding press conferences, thus competing for public attention

      I don’t think the President profits from press conferences. If he did we would certainly see a lot more of them.

      The local take-out restaurants could sue the White House kitchen.

      Again, where is the profit to the President? There is none. No gain no emolument.

      1. Obama had a book to his name (and his personal income) before he was president. It sold almost a million copies WHILE he was President.

        It’s possible that not one of those people purchasing the book ever decided to purchase it to benefit him.

        Possible. Technically. No laws of physics forbid it, at least…

        1. Theoretically, as long as no foreign officials actually purchased President Obama’s book while he was President, then it wouldn’t be a violation.

          Your hypothetical is no more ridiculous than the 2nd circuit case.

          1. Obama placed his assets in blind trust, like Presidents before, did he not?

            1. Yea, and it’s amazing how well that blind trust appreciated.

              1. Yeah. The business community whines about having to pay taxes, but it turns out they like a nice stable economy even more.

              2. Here is what I could find about Obama’s investments.

                Do you have more information?

                1. So no state and local taxes. Very clever.

            2. Nope! Not according to NBC’s reporting, at least. He called it a ‘blind trust’, but he also made direct investing decisions about millions of his money.

            3. A. No, he didn’t.
              B. Neither did the vast majority of Presidents before him.

        2. “Hey, Mr. President.I bought a copy of your book. You owe me some giant favors for the royalty you got.”

          This “Look, Obama!!” argument really does get silly. But hey, if you can’t defend Trump it’s all you’ve got, no matter how ridiculous an analogy you have to make.

          1. I can defend Trump on this quite easily, because he’s done nothing wrong here.
            In the first place, this isn’t an example of an emolument.
            Second, just doing business with something a politician has a financial interest in is not a crime.

            You were making claims that were false, and I pointed it out. “Look, Obama” is a great way of pointing out that either a) your rule would have consequences you didn’t consider, or b) you’re a lying hypocrite.
            I don’t know which it is in this case. Maybe you really didn’t realize that financially benefiting one President was the same as financially benefiting a different President. Or maybe you did, and you are a dishonest internet troll. Would you like to clarify?

            1. “In the first place, this isn’t an example of an emolument.”

              What would be, in your opinion?

              If Prince Ali of Agrabah wrote a check for X amount and handed it to President Trump, is that one?

              If he made reservations totaling the same X amount in net profit at a hotel owned by the same President, that is not?

              1. “If Prince Ali of Agrabah wrote a check for X amount and handed it to President Trump, is that one?”

                No, that would be a gift (or a bribe, or both), not an emolument.

                An emolument would be something on the order of: I’ll supplement your presidential salary with and additional $X/month.

            2. How about “Look Washington”? Mount Vernon tobacco was sold far and wide during his terms in office. In fact, he had planned to live off his tobacco sales and had to be persuaded to take a salary to not set a precedent that required the president to be independently wealthy. Washington was there when they wrote the rules, and his precedent is as binding as they get.

              1. So Ben is arguing out-and-out bribes are fine because George Washington was greedy.

                Washington wasn’t really involved with the Constitutional drafting. You’ve also rendered the clause a nullity. Way to go.

                1. As usual, you are confused over what the argument is AND over what it means.

                  The argument presented by Ben is that, from the very first President, it was not considered a violation of the Emoluments clause to do business with the President.
                  This should be obvious, because it isn’t an emolument! Nor is it a gift. It would, at worst, be a bribe – which is covered by a different section of the Constitution (A2S4, in case you didn’t know).

                  An emolument is something given to an office – like a salary. In this case, the Founders were concerned that if a wealthy nation like, say, France, happened to offer a pile of 408 diamonds to each Ambassador, that officer would be unduly influenced and unreliable, and thus unable to honestly serve in their office.

                  Considering that trying to corrupt foreign officials this way was a habit of France and Spain at the time, this was a legitimate concern. Here in the US, judges were sometimes given “secondary” incomes from people in their jurisdictions… something that this clause was used to shut down (actually the AoC version, but same reasoning).

                  However – doing business is not the same thing. Many of the Founders ran businesses while in Federal office. The Founders had no problem with Washington selling things, or buying land from the Federal government, or even working with the government of Britain to find renters for Washington’s properties while he was in office. Some of the Volokh lawyers have already discussed this exact issue. Try reading it.

                  1. You assume fair market value. Considering the rate changes at
                    Trump properties lately, that would not seem a fair assumption. It’s not business.

                    Emoluments must be in the form of a salary? Where do you get that?

                    1. I didn’t say an emolument must be “in the form”, I gave salary as an example of an emolument – because it is one, and pretty much the most basic example of one at that.
                      It could also be the use of a house (like the White House) or an airplane (like Air Force One).

                      As for Trump property rates, that’s an interesting claim. As the recent made-up fake news about the Air Force using a Trump hotel for it’s air crews revealed, the Trump Hotel was chosen (when it was – not always) because it was giving the lowest rates of all hotels in the region for those dates.
                      Is there evidence that people are paying significantly above market rate to stay at a Trump property?

                    2. The timeline of those flights seems to coincide with a certain election in 2016, as did the price jump at Trump properties.

                      What do you think the explanation of that is?

                    3. Sacastr0 because the air force is always flying everyone everywhere. Hotels also change prices all the time. You just looked at them now.

                      While I have to question why they were staying at a Trump hotel instead of a Motel 6, that is a question for the “military waste” pile. If the price was the best in the area, then that’s what they are legally required to do.

            3. I can defend Trump on this quite easily, because he’s done nothing wrong here.

              Begs the question.

              In the first place, this isn’t an example of an emolument.

              This is just a pronouncement by you.

              Second, just doing business with something a politician has a financial interest in is not a crime.

              That’s irrelevant. The offender here is the President, not the customer. No one has claimed the hotel guests were doing anything illegal.

              You were making claims that were false, and I pointed it out. “Look, Obama” is a great way of pointing out that either a) your rule would have consequences you didn’t consider, or b) you’re a lying hypocrite.

              What claim did I make that was false? Does the President actually take a cut from the White House kitchen?

              anorlunda wrote:

              The authors of competing books should be able to sue Obama (and many past presidents)

              Which is in fact an idiotic argument for the reason I pointed out.

              Would you like to clarify?

              No. You must be either an idiot or a Trump idolator, probably both.

              1. Emoluments is a defined word with a well understood meaning. It isn’t “just a pronouncement” by me, it’s a dictionary definition.

                And my statement no more begs the question than you suggesting that you are attacking Trump because you think he’s done something wrong would. It’s a rather meaningless statement, I admit, as generally only lawyers and politicians are wont to attack those they think are in the right and defend those they think are in the wrong.
                Of course, I did assume you meant “can’t” as “are unwilling to attempt” rather than the possible “are physically unable to”. If you did mean to state that any of the commenters were physically unable to defend Trump, then I misunderstood.

                As for crime, you are suggesting that you think Trump is guilty of a crime (which is the crime referenced in that sentence). I didn’t accuse the hotel guest of anything, and your misreading still fails to distract from the fact that it is not a crime (for the politician) for someone to do business with him or his businesses.

                Your false statement was when you suggested that Obama’s books were only sold after he left office (when he was a “past president”). Pointing out that Obama made millions of dollars from book sales during his term of office is directly relevant to this discussion. If you suggest that doing business that benefits Trump is a crime, then it must also have been a crime to do business that benefited Obama when he was President.

                Finally, as for anorlunda’s comments, I cannot speak for that person, but I see those examples as, in fact, stupid counter-examples that are nonetheless in keeping with the claims being made in the Emoluments case. The plaintiffs are suggesting that the mere fact that the President is competing with their businesses is an Emolument, and thus a violation of the Constitution.
                I consider that an absurd claim – just like the examples anorlunda presented.

                1. You think emoluments has a well-defined definition? Because the previous norm is not what Trump was following – it’s his folks that are arguing for a change in the previously accepted understanding of what that meant.

                  And you book sales parallel is not going well for you, as is seen by the many commenters finding ways to distinguish, and you having retreated to hypothetically in some edge cases it still applies.

                  1. Actually, the previous norm is exactly what Trump is following. Your complaint is that he’s not following a much more recent and shorter term “norm” which systematically disadvantages people who have spent their lives outside politics. We’re pointing out that the norm you’re appealing to didn’t exist for most of the history of the country, and so can’t possibly be relevant to determining the meaning of the emoluments clause.

          2. If we are to believe Trump’s implied claims of his wealth (yes, I know, a big assumptions), while Obama was President buying his book may have increased Obama’s assets by about the same percentage as someone staying in a Trump branded hotel for a night or two would increase Trump’s wealth.

            1. But the book buyer is anonymous. The Saudi diplomat who stays at a Trump hotel isn’t.

              Further, the book buyer doesn’t keep buying more copies, while the diplomats can definitely stay at the hotel repeatedly.

              1. The book buyer also isn’t doing business with Obama. He’s doing business with Barnes & Noble, or Amazon.com.

                1. @David Nieporent
                  Obama gets royalties, which are a direct financial benefit to him (that happens to be handled by an intermediate agent). The benefit to him is understood by all parties, although the size of the benefit is likely misunderstood.

                  At the same time, the Emoluments lawsuits claim that Trump receiving royalties for his TV show (also filtered through an agent) is an emolument. In fact, they claim that royalties from overseas, such as airings on the BBC, are foreign emoluments.

                  1. “Obama gets royalties, which are a direct financial benefit to him (that happens to be handled by an intermediate agent). The benefit to him is understood by all parties”

                    Or at least, that’s what you assume.

              2. Book buyers are not always anonymous, nor do they necessarily buy only one copy, once. In fact someone attempting to influence the President would likely buy multiple copies.

                Just like when the French or UK governments purchased copies of the book, or when the State Department bought tens of thousands of copies.

    2. Why do you need a tangential injury to sue under the emoluments clause anyway? The damage is foreign governments buying influence with the president, which affects everybody, not a coincidental minor injury to particular people.

  6. The Kansas case permits unlicensed people to escape detection. Its reasonable suspucion that the driver is the owner.

    Who cares why they are not licensed? They are breaking the law by driving right now.

    Don’t want court debt, don’t break the law in the first place. I don’t understand the current mania to let criminals just walk away from consequences.

    1. “It’s reasonable suspicion that the driver is the owner.”

      Why? People drive cars that belong to someone else all the time.

    2. “The Kansas case permits unlicensed people to escape detection.”

      No it doesn’t. It just means that the people who drive correctly get left alone, and the ones who drive incorrectly get pulled over, and, if unlicensed, get an additional charge tacked on.

      If you let cops pull cars over because there’s a possibility that they’re wanted criminals, how does anyone get to work on time?

      1. “and the ones who drive incorrectly get pulled over, and, if unlicensed, get an additional charge tacked on.”

        You seem to be excluding from the class of “ones who drive incorrectly” people who are driving at all, when they are legally prohibited from driving.

        1. “You seem to be excluding from the class of “ones who drive incorrectly” people who are driving at all”

          Yes. Hence the intentional choice of the word “correctly” rather than the word, say, “legally”.

          1. What on Earth is your distinction of driving “correctly” that doesn’t involve following actual laws relating to driving? So should officers be stopping people for driving without their hands at 10 and 2? It’s not a traffic law, but it’s “correct.”

    3. Now that officers in many (most?) jurisdictions can get the driver’s license picture of someone on their in-vehicle computer, would it change the analysis any if the officers pulled up the owner’s driver’s license picture, drove by the car and look into it, and pulled the car over if the driver was a reasonable match for the owner’s driver’s license picture?

      It seems that would be completely legitimate – after all, the officer has a compelling reason to believe the driver is not licensed and driving without a current license is against the law.

      1. You’ll get an interesting test case the first time your proposed scenario is used to pull over an identical twin.

        1. Not at all. Police need probable cause, not absolute certainty, to seize people.

          1. “Probable” means “better than fifty-fifty”.

            1. That may be what the word “probable” means colloquially, but it’s not what it means in the phrase “probable cause.”

    4. “The Kansas case permits unlicensed people to escape detection.”

      The Fourth Amendment often allows people breaking the law to escape detection. As does the Fifth. And Sixth. These are features, not bugs.

      Who cares why they are not licensed?

      People who want law enforcement to focus on threats to public safety.

      Don’t want court debt, don’t break the law in the first place.

      Nobody is talking about eliminating court debt.

  7. Your Kansas case is crazy. You’re saying that the police shouldn’t stop people with suspended drivers’ licenses because *maybe* their suspension is because the legislature ordered it suspended for the wrong policy reasons? You lose. (I hope.)

    1. “You’re saying that the police shouldn’t stop people with suspended drivers’ licenses because *maybe* their suspension is because the legislature ordered it suspended for the wrong policy reasons?”

      Well, that’s what they said here, but IIUC what they’re saying in court is that the mere fact that a vehicle is registered to someone with a suspended license don’t provide reasonable suspicion that the person driving has a suspended license. Makes sense to me.

    2. ” You’re saying that the police shouldn’t stop people with suspended drivers’ licenses ”

      No. They’re saying that the guy driving the car may or may not be the registered owner, so if they’re driving correctly (not violating moving traffic laws) there’s no probable cause to stop them just because the registered owner has a suspended license.

      1. That is the argument that actual defendant made in Kansas and is making now before the Supreme Court. The argument that IJ is making in the amicus brief posted here does indeed seem to be along the lines of what Eric Rasmusen is saying.

        1. No. The argument that IJ is making is a rebuttal to the state’s claim that there is a strong public safety justification for the police pulling over cars registered to people with suspended licenses. If most license suspensions were for people being bad drivers, that claim might carry some weight. But if most license suspensions are for reasons unrelated to driving ability, then the public safety argument is very weak.

    3. I can understand (even if I disagree with) the argument that the police need more than “that car belongs to someone with a suspended license” as suspicion to pull someone over.

      However, I will agree that the argument used here is specious and nonsensical. If you don’t like licenses getting suspended for nonsense reasons (and especially debts, as suspending a driver’s license will make it more difficult to pay those off), then argue for removing them. Say its a violation of the separation of the civil and criminal courts, freedom of association, the concept of justice or something.

      Making it more difficult to enforce the law because its a bad law is not a valid argument.

      1. It could even be pernicious. Let’s say there’s a murder suspect. Cops see her car driving down the road, run the license plate, and confirm the registration.

        Now, the same theory applies here as in the IJ’s case. It COULD be someone else driving. That’s absolutely true! The cops pull the car over, ask the driver out of the car, look at the license, and discover she’s Sue Jones, who borrowed her friend the murder suspect’s car that day!

        But that’s why cause only has to be probable, not certain. Of course they can pull that car over, because most of the time private cars are driven by their owners.

        1. Also, most of the time, by Kansas’ own admission, the cars pulled over are not being driven by their owners.

        2. Sigh, first response dropped, follow up went fine so let’s try again.
          As I tried to say earlier, if it’s a murder suspect’s car the cops probably have a BOLO for the car which is very different from randomly running plates for owners with suspended licenses because the cops are bored.

      2. The thing is the law is easy to avoid if you have the dollars. Simply change the registered owner of a vehicle from the person with a suspended license to a trust and install the new plates. Cops will run the plate and find it’s owned by Driving Miss Daisy Ecumenical Trust which neither has nor is required to have a driver’s license and Hoke’s your uncle.

    4. No, that isn’t their argument. It’s that you shouldn’t stop cars owned by people with a suspended license for no reason other than who owns the car especially when in the majority of instances the car is driven by a licensed driver and not the owner. They merely support their position by pointing out that given the wide swath of reasons for suspensions have nothing to do with safe driving there isn’t a public safety argument to continue the practice.

  8. Most recently, the estate of the author’s third wife sued the estate of his son over various misuses of Steinbeck’s intellectual property.

    So, just to be sure I’m in the clear here: Lawyers representing one dead person are suing another dead person over the possessions of a third dead person?
    Who is the living person here? How does this happen?

    1. The living people are Waverly Kaffaga, the daughter of Steinbeck’s third wife and the executor of her estate, and Gail Steinbeck, Steinbeck’s son’s widow and the executor of his estate. (Gail is also a party in her own capacity.)

      1. So, yeah, it’s the heirs to the heirs still suing over the primary’s goods.

        It seems this has been going on since at least 1983. And it looks like all the participants are at median lifespan or older, so… are we preparing for generation 4 to become involved in this case?

        1. It will probably go on until Steinbeck’s works fall into the public domain.

          1. So that’s what? At least another decade for the earliest works and several more decades for the latter ones so I think we could easily see generation 6 or possibly even 7 take up the torch. After all, it beats working for a living.

            1. Unless he has works copyrighted under the 1909 copyright act (pre-1976), no, all his copyrights expire at the same time. The clock didn’t even start ticking until he died.

              Under the 1976 copyright act, the copyright term is life of author + 70 years. This was extended in the 1990s to life + 90 years for all works still under live copyright.

  9. If I understand your amicus brief correctly, your argument is not that it’s unreasonable for the police to assume that the owner of a vehicle is driving it, but that it’s unreasonable for the police to stop someone who is driving on a suspended license even if the police know that that person is driving.

    I have no idea what the opinion of the court is going to look like, but I feel pretty comfortable predicting that your theory is not going to feature prominently in it.

    1. If I understand your amicus brief correctly,

      You don’t understand the amicus brief correctly.

      1. Looking at it, I think he does. The argument is basically that people driving without a licences aren’t any particular threat to public safety, and thus the mere possibility that they are driving a car can’t justify a traffic stop.

        If they aren’t any threat to public safety, by the same argument, the actual certainty that they’re driving a car couldn’t justify a traffic stop, either, since one of the premises of the argument is that only public safety can justify traffic stops.

  10. “Allowing police to pull people over simply because they’re suspected debtors turns police into roving debt collectors and yields little public safety benefit.”

    If an individual is driving a car without a valid driver’s license, regardless of the reason for suspension, then they are likely driving without any insurance coverage. Even if the car is insured the policy likely has a provision that the driver have a valid driving license at the time of an accident. If an accident occurs, particularly one where the unlicensed driver is at fault, the victim has no recourse through the at-fault driver’s insurance. They therefore must seek compensation through their own insurance policy or perhaps through restitution in court.

    Preventing police from checking that a validly licensed driver is operating the vehicle (when a check of the car comes back that the driver’s license is suspended) works against those drivers on the road who have a valid license and insurance coverage. Why should the burden of financial responsibility be shifted to those drivers? Why shouldn’t auto insurance companies increase premiums if the decision ultimately restricts the ability of police to address this issue with a vehicle stop?

    But I’m sure IJ has already fully thought through this aspect of the case. The group seems really devoted to fleshing out nuance and competing claims of justice.

    1. Your argument is mostly wrong as a legal matter, but even to the extent it’s right, it’s non-responsive to the claim you quoted, which was about public safety. Being unlicensed and uninsured for non-safety related infractions does not make one a less safe driver. (Indeed, it would likely make one a more safe driver.)

      1. Even people who drive with safe habits can be in accidents, which is why there’s no “safe driver” exemption from the requirement to carry insurance.

  11. It puts the emoluments on its skin, or else it gets the hose again.

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