Pubblicato in: Devoluzione socialismo, Stati Uniti, Trump

Supreme Court da ragione a Mr Trump sul muro al confine con il Messico.

Giuseppe Sandro Mela.

2019-07-28.

2019-07-28__Trump__001

Supreme Court. Sentenza 588. 2019.

Donald J. Trump, President Of The United States, Et Al. V. Sierra Club, Et Al. On Application For Stay

«The application for stay presented to JUSTICE KAGAN and by her referred to the Court is granted. Among the reasons is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to ob­tain review of the Acting Secretary’s compliance with Sec­tion 8005. The District Court’s June 28, 2019 order granting a permanent injunction is stayed pending disposition of the Government’s appeal in the United States Court of Appeals for the Ninth Circuit and disposition of the Government’spetition for a writ of certiorari, if such writ is timely sought.Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the peti­tion for a writ of certiorari is granted, the stay shall termi­nate when the Court enters its judgment ….

This case raises novel and important questions about the ability of private parties to enforce Congress’ appropriations power. I would express no other view now on the merits of those questions ….»

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Il quesito posto è esponibile in poche parole.

Una corte, ancorché federale e di rango inferiore, può sentenziare erga omnes bloccando un’azione politica del Governo legalmente in carica?

Se è vero che per la divisione dei poteri la politica non dovrebbe intervenire nelle sentenze della magistratura, sarebbe altrettanto vero che la magistratura non dovrebbe emettere sentenze politiche e giustificate con ragionamenti politici.

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Supreme Court will allow Trump administration to tap Pentagon funds to build sections Mexico border wall

« – The Supreme Court has cleared the way for the Trump administration to tap Pentagon funds to build sections of a border wall with Mexico.

– The Supreme Court said Friday that it would lift a freeze on the money put in place by a lower court.

– The Supreme Court’s action means the Trump administration can tap the funds and begin work on four contracts it has awarded.

– Four liberal justices wouldn’t have allowed construction to start. »

* * *


US judge blocks funds for Trump border wall plan

«A US federal judge has temporarily blocked the use of defence department funds to build a border wall between the US and Mexico.

The judge granted the injunction to block the use of $1bn (£786m) in Arizona and Texas because it had not been approved by Congress.

President Donald Trump declared an emergency earlier this year, saying he needed $6.7bn to build the wall as a matter of national security.

It was a major campaign promise.

About 20 states, along with groups including the American Civil Liberties Union (ACLU), have filed lawsuits to try to stop the president using the emergency declaration to bypass Congress.»

* * *


Supreme Court Lets Trump Proceed on Border Wall

«The Supreme Court on Friday gave President Trump a victory in his fight for a wall along the Mexican border by allowing the administration to begin using $2.5 billion in Pentagon money for the construction»


Supreme court allows Trump to use $2.5bn in Pentagon funds for border wall

«Move allows administration to redirect money despite lawmakers’ refusal to provide funding

The US supreme court cleared the way for Donald Trump to use billions in Pentagon funds to build a border wall.

The decision allows the Trump administration to redirect approximately $2.5bn approved by Congress for the Pentagon to help build his promised wall along the US-Mexico border even though lawmakers refused to provide funding.

The Trump administration planned to use the $2.5bn on four contracts to replace existing sections of barrier in Arizona, California and New Mexico with more robust fencing.

The supreme court’s five conservative justices agreed to block a ruling in lower courts that barred Trump from spending the money on the wall contracts on the basis that Congress did not specifically authorize the funds to be used that way. The court’s four liberal justices wouldn’t have allowed construction to start.»


Supreme Court temporarily grants Trump funds for border wall

«The US Supreme Court temporarily ruled that President Donald Trump could use military funds to build a portion of a wall along the border of the United States and Mexico.

The court voted 5-4 to suspend a California federal judge’s order to block the use of $2.5 billion (€2.2 billion) in military funds for a wall he promised to build during his campaign.

The US president celebrated the court’s order, tweeting: “Wow! Big VICTORY on the Wall… Big WIN for Border Security and the Rule of Law!” ….»


Ansa. 2019-07-27. Ok Corte Suprema a Trump su fondi Muro

La Corte Suprema regala un’importante vittoria a Donald Trump. Il presidente può usare i fondi del Pentagono, circa 2,5 miliardi di dollari, per la costruzione di circa 160,9 chilometri di muro al confine con il Messico mentre la battaglia aperta nei vari tribunali americani continua. Contrari al via libera i quattro giudici liberal. I saggi hanno ribaltato la decisione della Corte d’Appello del Nono Circuito, che si era schierata con il Sierra Club e  una coalizione di comunità al confine nel definire in violazione della legge l’appropriazione di fondi dal Dipartimento della Difesa per la costruzione del muro. Secondo la Corte Suprema il governo ha mostrato “sufficienti” prove sul fatto che non ci sono le basi per bloccare il trasferimento di fondi.  Trump non nasconde la sua soddisfazione per la decisione.
“Wow! Una grande vittoria sul muro e per la sicurezza al confine” twitta pochi minuti dopo la decisione. Il presidente ha dichiarato lo scorso febbraio l’emergenza nazionale al confine con il Messico dopo due mesi di battaglia con il Congresso, che si sono tradotti nello shutdown più lungo della storia americana. Un’emergenza con la quale ha rivendicato di poter usare fondi di altre agenzie governative per la costruzione del muro. Un annuncio seguito immediatamente da azioni legali, anche da parte della Camera. Un tentativo questo fallito, con il giudice Trevor McFadden che aveva messo l’accento sul fatto che i tribunali possono risolvere le dispute fra il potere esecutivo e quello legislativo solo come ultima risorsa. “Il Congresso ha diverse armi politiche per far fronte alle percepite minacce alla sua sfera di potere”, incluse leggi che “limitano espressamente il trasferimento o la spesa di fondi per il muro” aveva scritto McFadden. Nella documentazione presentata alla Corte Suprema sui fondi per il muro, i legali della Camera hanno osservato come in base alla Costituzione “un immenso muro lungo il confine semplicemente non può essere costruito senza fondi approvati dal Congresso a tale scopo”.

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Cnn. 2019-07-27. Supreme Court clears way for Trump admin to use Defense funds for border wall construction

The Supreme Court on Friday cleared the way for the Trump administration to use $2.5 billion from the Department of Defense to construct parts of a wall along the southwestern border that the government argues is necessary to protect national security.

The decision allows the Defense Department money to be spent now while a court battle plays out over whether the government had the authority to divert funds that were not appropriated for the wall. The Supreme Court voted 5-4, along ideological lines, to allow the funds to be used while the court appeals proceed.

In a brief order, the court said that it was ruling in favor of the Trump administration before the litigation has played out because the government had made a “sufficient showing” that the challengers did not have the legal right to bring the case.

Three members of the liberal wing of the court — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — wrote they would have blocked the funds for now. The fourth member, Justice Stephen Breyer, wrote separately to say that he would have allowed the government to use the funds to finalize the terms for contractors but block the funds from being used for the actual construction.

The Supreme Court’s order is a significant win for Trump, who is likely to use the construction of a wall as a major talking point on the campaign trail. The President celebrated the decision in a tweet Friday evening.

“The United States Supreme Court overturns lower court injunction, allows Southern Border Wall to proceed,” the President tweeted. “Big WIN for Border Security and the Rule of Law!”

The decision overrules a lower court decision that had blocked the transfer of funds while appeals played out. A panel of judges from the 9th Circuit Court of Appeals refused to allow the use of the funds earlier in the month, holding that the challengers were likely to prevail in their case because the use of the funds “violates the constitutional requirement that the Executive Branch not spend money absent an appropriation from Congress.”

The order comes after Trump ended a 35-day government shutdown in February when Congress gave him $1.4 billion in wall funding, far less than he had sought. He subsequently declared a national emergency to get money from other government accounts to construct sections of the wall.

The $2.5 billion had been shifted from various programs including personnel and recruiting, Minuteman III and air launch cruise missiles, E-3 aircraft upgrades and the Afghan security forces training fund. The Pentagon said it was able to move that money due to uncovered cost savings as part of a process known as “reprogramming.” The money was moved into a Defense Department counter-drug account that is authorized to spend money on the construction of border barriers.

Many lawmakers slammed the decision to move the money away from those national security priorities, threatening to strip the Pentagon of its ability to move money around, something the Defense Department has acknowledged would be detrimental.

“We are pleased with the Supreme Court’s decision,” Pentagon spokeswoman Cmdr. Rebecca Rebarich told CNN.

Lawyers for the government had asked the Supreme Court to step in on an emergency basis and unblock the use of the funds while legal challenges proceed in the lower courts.

Solicitor General Noel Francisco noted in court papers that the projects needed to start because the funds at issue “will no longer remain available for obligation after the fiscal year ends on September 30, 2019.” He said that the funds are necessary to permit the construction of more than 100 miles of fencing in areas the government has identified as “drug-smuggling corridors” where it has seized “thousands of pounds of heroin, cocaine and methamphetamine” in recent years.

“Respondents’ interests in hiking, birdwatching, and fishing in designated drug-smuggling corridors do not outweigh the harm to the public from halting the government’s efforts to construct barriers to stanch the flow of illegal narcotics across the southern border,” Francisco argued in the papers, regarding the challenge from environmental groups.

Legal expert Joshua Matz said the decision is a major victory for Trump.

“But the Court did not signal that Trump followed the law. Instead, the majority took a narrow view of who, if anybody, is allowed to challenge Trump’s decision in court,” he said.

It is a loss for critics, including the Sierra Club and the Southern Border Communities Coalition that argued the administration had illegally transferred the funds after Congress denied requests for more money to construct the wall. The groups argued the wall — in areas in Arizona, California and New Mexico — would harm the environment.

The American Civil Liberties Union, representing the groups, argued in court papers against a stay of the lower court ruling, fearful of the wall’s impact on border communities.

“Issuance of a stay that would permit Defendants to immediately spend this money is not consistent with Congress’s power over the purse or with the tacit assessment by Congress that the spending would not be in the public interest,”ACLU lawyers told the court.

The ACLU slammed the decision after it was released Friday evening.

“This is not over. We will be asking the federal appeals court to expedite the ongoing appeals proceeding to halt the irreversible and imminent damage from Trump’s border wall. Border communities, the environment, and our Constitution’s separation of powers will be permanently harmed should Trump get away with pillaging military funds for a xenophobic border wall Congress denied,” said Dror Ladin, a staff attorney with the ACLU’s National Security Project.

Annunci
Pubblicato in: Devoluzione socialismo, Giustizia, Stati Uniti

Supreme Court. Sentenza su come interpretare regolamenti ambigui.

Giuseppe Sandro Mela.

2019-07-01.

Supreme Court

Il problema è di non poco conto. Nel caso che una agenzia si sia dotata di un regolamento scritto in modo tale da destare leciti dubbi interpretativi a chi spetta la competenza di chiarire il reale significato? Alla stessa agenzia ovvero al giudice?

«The question in Kisor is whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), decisions holding that courts must defer to an agency’s reasonable interpretation of its own ambiguous regulation»

«This is generally referred to as “Auer deference.”»

«Under Auer and Seminole Rock, responsibility for construing and applying an ambiguous regulation rests with the agency that promulgated it, so long as the agency’s interpretation is reasonable»

«In recent years, a number of Justices, as well as legal scholars, have criticized Auer deference as inconsistent with both the Administrative Procedure Act (APA) and separation of powers principles»

«More broadly, critics of Auer deference contend that allowing agencies to determine the meaning of ambiguous regulations usurps the core responsibility assigned to courts by Article III of the Constitution»

* * * * * * *


Supreme Court to Decide if Courts Must Defer to an Agency’s Construction of Ambiguous Regulations

«The U.S. Supreme Court heard oral argument March 27 in what could be one of the most important administrative law cases to come before the Court in many years: Kisor v. Wilkie, No. 18-15. The question in Kisor is whether the Court should overrule Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), decisions holding that courts must defer to an agency’s reasonable interpretation of its own ambiguous regulation. This is generally referred to as “Auer deference.”

Background

Kisor raises questions about the respective responsibilities of courts and administrative agencies. It is fundamental that courts have the responsibility to say what the law is, but in administrative law, agencies have the responsibility to carry out their statutory mandates, including applying their own regulations in a manner that furthers that responsibility. Under Auer and Seminole Rock, responsibility for construing and applying an ambiguous regulation rests with the agency that promulgated it, so long as the agency’s interpretation is reasonable. In recent years, a number of Justices, as well as legal scholars, have criticized Auer deference as inconsistent with both the Administrative Procedure Act (APA) and separation of powers principles. Those critics note that the APA gives agency rules binding effect only if they go through notice-and-comment rulemaking, whereas Auer deference allows agencies to make legally binding interpretive decisions without going through notice-and-comment rulemaking. The critics also contend that section 706 of the APA, which governs judicial review of agency action, gives the reviewing court and not the agency authority to determine the meaning of an agency rule. More broadly, critics of Auer deference contend that allowing agencies to determine the meaning of ambiguous regulations usurps the core responsibility assigned to courts by Article III of the Constitution.

In Kisor, the petitioner (Kisor) adopts these and other related criticisms, and contends that Auer and Seminole Rock should be overruled, which would leave courts to interpret ambiguous agency regulations without deference to the agency’s construction. Notably, respondent Wilkie, the secretary of Veterans Affairs, represented by the solicitor general, acknowledges various problems with Auer deference – both in his brief and at argument. But Wilkie contends only that resort to Auer deference should be narrowed, not eliminated altogether. He argues that overruling Auer and Seminole Rock would call into question hundreds of court decisions that deferred to, and thus adopted, agency interpretations of ambiguous regulations. Wilkie also contends that Auer deference is appropriate in some limited contexts, such as where scientific or other highly specialized technical expertise is necessary to properly apply an agency regulation.»

* * * * * * *

Il 26 giugno 2019 la Suprema Corte ha emesso sentenza, con syllabus e certiorari.

«Petitioner James Kisor, a Vietnam War veteran, first sought disability benefits from the Department of Veterans Affairs (VA) in 1982, alleging that he had developed post-traumatic stress disorder from his military service. The agency denied his initial request, but in 2006,Kisor moved to reopen his claim. The VA this time agreed he was eligible for benefits, but it granted those benefits only from the date of his motion to reopen, not (as Kisor had requested) from the date of his first application. The Board of Veterans’ Appeals—a part of the VA—affirmed that retroactivity decision, based on its interpretation of an agency rule governing such claims. The Court of Appeals for Veterans Claims affirmed.

The Federal Circuit also affirmed, but it did so by applying a doctrine called Auer (or sometimes, Seminole Rock) deference. See Auer v. Robbins, 519 U. S. 452; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410. Under that doctrine, this Court has long deferred to an agency’s reasonable reading of its own genuinely ambiguous regulations. The Court of Appeals concluded that the VA regulation at issue was ambiguous, and it therefore deferred to the Board’s interpretation of the rule. Kisor now asks the Court to overrule Auer, as well as its predecessor Seminole Rock, discarding the deference those decisions give to agencies.

Held: The judgment is vacated and remanded.»

«This Court’s deference doctrine is rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules. The Court adopts that presumption for a set of reasons related to the comparative attributes of courts and agencies in answering interpretive questions. But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them, courts should not give deference to an agency’s read­ing. The Court has thus cabined Auer’s scope in varied and critical ways.»

«First and foremost, a court should not afford Auer deference unless, after exhausting all the “traditional tools” of construction, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843, n. 9, the regulation is genuinely ambiguous. A court must carefully consider the text, structure, history, and purpose of a regu­lation before resorting to deference. If genuine ambiguity remains, the agency’s reading must still fall “within the bounds of reasonable interpretation.”»

«Stare decisis cuts strongly against overruling Auer»

Stare decisis significa che il giudice deve attentamente ricercare le sentenze pregresse ed applicarle, massimamente quando queste siano state emesse da giudici a livello superiore. Questa interpretazione blocca sul nascere tutta la giurisprudenza ‘creativa’.

Degno di nota è l’introduzione di un concetto a prima vista banale.

reasonable reading“: è un richiamo ad utilizzare quello che un tempo era chiamato sano buon senso.

Pubblicato in: Devoluzione socialismo, Giustizia, Stati Uniti

Suprema Corte. I giudici federali non interferiscano con decisioni politiche.

Giuseppe Sandro Mela.

2019-06-28.

2019-06-27__Gerrymndering 001

«A panel of federal judges on Thursday ordered Michigan’s Republican-controlled legislature to redraw nearly three dozen state and U.S. congressional districts, ruling that the existing lines illegally dilute the power of Democratic voters»

*

Gerrymandering. Republicani e democratici si stanno scannando.

«If legislators fail to do so, or if the court finds the new district lines are similarly unconstitutional, the judges said they would draw the maps themselves. The redrawn districts would take effect in time for the 2020 elections»

«The state’s 14 seats in the U.S. House of Representatives are also up for election next year, and a majority of them could have new boundaries under the court’s ruling»

«The decision is likely a boon for Democrats, who in 2018 failed to win a majority of the seats in the state House of Representatives, state Senate or the state’s U.S. congressional delegation despite winning the overall popular vote in all three cases»

Il problema se le corti federali abbiano o meno il potere di interferire e, nel caso, surrogare e vicariare l’autorità politica legalmente costituita è approdato alla Corte Suprema, che il 27 giugno 2019 ha rilasciato la seguente sentenza.

«- The Supreme Court rules that federal courts may not block gerrymandering.

– The vote was 5-4 decision, falling along partisan lines.

– “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” wrote Chief Justice John Roberts, who delivered the opinion of the court.

– He says those asking the top court to block gerrymandered districts effectively sought “an unprecedented expansion of judicial power.”»

«Partisan gerrymandering claims present political questions beyond the reach of the federal courts»

*

Si faccia una grande attenzione. La sentenza vieta alle corti federali di non interferire con l’attività politica degli organi elettivi, non solo nel caso specifico, bensì erga omnes, perché costituirebbe una violazione della Costituzione ed “an unprecedented expansion of judicial power.”

*

Da quando gli Elettori hanno nominato Mr Trump presidente degli Stati Uniti, i liberal democratici hanno scatenato una guerra giudiziaria nella quale corti di basso livello, ma di chiara fede liberal, hanno sistematicamente bloccato le azioni politiche del Governo. Tutte codeste sentenze sono state poi cassate dalla Suprema Corte, ed anche malo modo, ma l’Amministrazione ne ha risentito, specialmente a livello internazionale, complice la cassa di risonanza dei media liberal.

Alla luce di codesta sentenza possiamo affermare che tali azioni furono il tentativo rivoluzionario di instaurare la dittatura dei giudici.

«an unprecedented expansion of judicial power»

I giudici devono solo attenersi alle leggi, astenendosi dalla politica.

* * * * * * *

«Voters and other plaintiffs in North Carolina and Maryland filed suits challenging their States’ congressional districting maps as unconstitutional partisan gerrymanders. The North Carolina plaintiffs claimed that the State’s districting plan discriminated against Democrats, while the Maryland plaintiffs claimed that their State’s plan discriminated against Republicans. The plaintiffs alleged violations of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Elections Clause, and Article I, §2. The District Courts in both cases ruled in favor of the plaintiffs, and the defendants appealed directly to this Court.

Held: Partisan gerrymandering claims present political questions beyond the reach of the federal courts. Pp. 6–34.

….

In these cases, the Court is asked to decide an important question of constitutional law. Before it does so, the Court “must find that the question is presented in a ‘case’ or ‘controversy’ that is . . . ‘of a Judiciary Nature.’ ” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332,

  1. While it is “the province and duty of the judicial department to say what the law is,” Marbury v. Madison, 1 Cranch 137, 177, sometimes the law is that the Judiciary cannot entertain a claim because it presents a non justiciable “political question,” Baker v. Carr, 369

  2. S. 186, 217. Among the political question cases this Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” Ibid. This Court’s partisan gerrymandering cases have left unresolved the question whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere. See Gill v. Whitford, 585 U. S ….

Courts have nonetheless been called upon to resolve a variety of questions surrounding districting. The claim of population inequality among districts in Baker v. Carr, for example, could be decided under basic equal protection principles. 369 U. S., at 226. Racial discrimination in districting also raises constitutional issues that can be addressed by the federal courts. See Gomillion v. Lightfoot, 364 U. S. 339, 340. Partisan gerrymandering claims have proved far more difficult to adjudicate, in part because “a jurisdiction may engage in constitutional political gerrymandering.” Hunt v. Cromartie, 526

  1. S. 541, 551. To hold that legislators cannot take their partisan interests into account when drawing district lines would essentially countermand the Framers’ decision to entrust districting to political entities. The “central problem” is “determining when political gerrymandering has gone too far.”….

Any standard for resolving partisan gerrymandering claims must be grounded in a “limited and precise rationale” and be “clear, manageable, and politically neutral.” ….

Partisan gerrymandering claims rest on an instinct that groups with a certain level of political support should enjoy a commensurate level of political power and influence. Such claims invariably sound in a desire for proportional representation, but the Constitution does not require proportional representation, and federal courts are neither equipped nor authorized to apportion political power as a matter of fairness. …..

The fact that the Court can adjudicate one-person, one-vote claims does not mean that partisan gerrymandering claims are justiciable. This Court’s one-person, one-vote cases recognize that each person is entitled to an equal say in the election of representatives. It hardly follows from that principle that a person is entitled to have his political party achieve representation commensurate to its share of statewide support.»

* * * * * * *

Sua Giustizia Roberts Allega Sua Su Opinione, tra cui leggiamo:

«The question is whether the courts below appropriately exer­cised judicial power when they found them unconstitu­tional as well.»

Sua Giustizia Kagan allega un’Opinione contraria.

«Nor is there any reason to doubt, as the majority does, the competence of courts to determine whether a district map “substantially” dilutes the votes of a rival party’s supporters from the everything-but-partisanship baseline described above.»

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Cnbc. 2019-06-27. Supreme Court decides federal judges cannot block gerrymandering

– The Supreme Court rules that federal courts may not block gerrymandering.

– The vote was 5-4 decision, falling along partisan lines.

– “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” wrote Chief Justice John Roberts, who delivered the opinion of the court.

– He says those asking the top court to block gerrymandered districts effectively sought “an unprecedented expansion of judicial power.”

*

The Supreme Court ruled Thursday that federal courts may not block gerrymandering in a 5-4 decision that fell along partisan lines.

“We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts,” wrote Chief Justice John Roberts, who delivered the opinion of the court. Roberts wrote that those asking the top court to block gerrymandered districts effectively sought “an unprecedented expansion of judicial power.”

“Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions,” he wrote.

The court’s decision prompted a fierce dissent from its liberal wing. Justice Elena Kagan wrote a dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

“Of all times to abandon the Court’s duty to declare the law, this was not the one,” Kagan wrote. “The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.”

Gerrymandering has largely benefited Republicans in recent years because of the 2010 midterm wave that handed the party control of numerous statehouses across the country. Districts are drawn nationwide every 10 years. The next redistricting is scheduled to take place after the 2020 census.

The justices considered two cases, out of North Carolina and Maryland, in which voters alleged that their congressional districts were unfairly drawn to benefit one political party. The top court had never declared a district map as too partisan. During arguments in March, the conservatives seemed reluctant to weigh in on the matter.

“For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities,” Kagan wrote.

The two cases came from North Carolina and Maryland. In North Carolina, Democratic voters alleged that a map drawn by the GOP legislature in 2016 unfairly benefited Republicans.

In Maryland, it was Republicans who challenged the map, saying that one congressional district drawn in 2011 was unfairly tilted in favor of the Democrats.

In both cases, those behind the maps admitted that they were drawn to benefit their party.

The cases are known as Lamone v. Benisek, No. 18-726, and Rucho v. Common Cause, No. 18-422.

Pubblicato in: Devoluzione socialismo, Stati Uniti

Corte Suprema. Census. Sentenza sospesa in attesa di chiarimenti.

Giuseppe Sandro Mela.

2019-06-27.

2019-06-27__Census__001

Con una decisione 5 – 4 la Suprema Corte ha richiesto al Commerce Department, da cui dipende il Census, di fornire ulteriori elementi utili al giudizio sulla questione se inserire o meno nel modulo del censimento la domanda sulla cittadinanza. Questa procedura farà slittare di almeno quattro mesi l’emissione di una sentenza definitiva.

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Supreme Court blocks Trump’s census citizenship question

«Trump’s administration has told the courts that its rationale for adding the question was to better enforce a law that protects the voting rights of racial minorities. Critics called that rationale a pretext, with the Supreme Court’s majority embracing that theory.»

«Roberts said that under a U.S. law called the Administrative Procedure Act, the federal government is required to give a reasoned explanation for its actions. Roberts said the sole stated rationale – enforcement of the Voting Right Act – “seems to have been contrived” and was “more of a distraction.”»

«As part of the ruling issued on the last day of the court’s current term, the justices sent the issue back to the Commerce Department for it to decide whether to provide a different rationale for requiring people taking part in the census to declare whether they are citizens»

* * * * * * *

«The census, required by the U.S. Constitution, is used to allot seats in the U.S. House and distribute some $800 billion in federal funds.»

«The court ruled against the challengers in a separate 5-4 vote, with all the conservative justices in the majority, that the U.S. Constitution does not in theory prevent the administration or a future one from adding a citizenship question.»

«The court ruled against the challengers in a separate 5-4 vote, with all the conservative justices in the majority, that the U.S. Constitution does not in theory prevent the administration or a future one from adding a citizenship question.»

«The Republican president’s administration had appealed to the Supreme Court after lower courts blocked the inclusion of the census question.»

«The Supreme Court had handed Trump some major victories since he took office in 2017, in particular a June 2018 ruling upholding his travel ban targeting people from several Muslim-majority countries. The court in January also let Trump’s policy barring many transgender people from the U.S. military go into effect.»

«While only U.S. citizens can vote, non-citizens comprise an estimated 7 percent of the population»

Pubblicato in: Devoluzione socialismo, Giustizia, Ideologia liberal, Stati Uniti

Supreme Court sentenzia sul caso del Maryland. Giudici liberal disintegrati.

Giuseppe Sandro Mela.

2019-06-22.

2019-06-22__Suprema_Corte__001

Con una sentenza 7 – 2 la Suprema Corte degli Stati Uniti ha posto la parola fine su di un contenzioso significativo della mentalità corrente dei liberal democratici.

American Legion et Al. v. American Humanist Assn. et Al.

«In 1918, residents of Prince George’s County, Maryland, formed a committee for the purpose of erecting a memorial for the county’s soldiers who fell in World War I. The committee decided that the memorial should be a cross, which was not surprising since the plain Latin cross had become a central symbol of the war. The image of row after row of plain white crosses marking the overseas graves of soldiers was emblazoned on the minds of Americans at home.»

Riassumendo ed ampliando:

«The case concerned a giant, early 20th century Latin cross, known as the Bladensburg Peace Cross, that stands in a Maryland intersection in the suburbs of the nation’s capital.

– The opinion of the court is authored by Justice Samuel Alito, who says the meaning of the cross was not limited to its religious context, and cautions against a government that “roams the land, tearing down monuments with religious symbolism.”

– Though the ultimate vote was 7-2, the case produced a smattering of opinions, with five justices writing separate concurrences to explain their thinking.»

*

«The court’s five conservatives as well as Justices Elena Kagan and Stephen Breyer agreed that the cross should remain on public land, while liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented»

Il parere espresso da Sua Giustizia Ginsburg è significativo della mentalità liberal democratica.

«For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized»

«By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion»

*

Il punto centrale consiste nell’ideologia liberal democratica, ben presente anche in Europa, che della non-religiosità — ‘nonreligion‘ – fa un dogma fideistico. E questo sarebbe il meno, perché costoro vogliono anche imporlo a tutti, anche a coloro che la pensassero diversamente.

Ma se la rimozione di qualsiasi simbolo religioso soddisfa i liberal democratici, nel contempo introduce la simbologia dello spoglio eretta a sistema, fatto questo non gradito a moltissime altre persone.

Nella sua globalità questa causa è giù costata ai Contribuenti oltre quaranta milioni di dollari. Aveva prosperato fino a quando è stata che era stata discussa nelle corti inferiori, tutte con giudici liberal, che hanno sentenziato di conseguenza.

I giudizi emessi dalla Suprema Corte sul comportamento dei giudici di livello inferiore sono tranchant.

A seguito, proponiamo il razionale e taluni commenti.

* * * * * * *

La sentenza riporta anche un corposo Syllabus, Certiorari e le opinioni di ben cinque giudici.

«The Court of Appeals for the Fourth Circuit agreed that the memorial is unconstitutional and remanded for a determination of the proper remedy. We now reverse. ….

Applying these principles, we conclude that the Bladensburg Cross does not violate the Establishment Clause.»

Sia Giustizia Thomas aggiunge nella Opinione da Lui espressa anche un solido substrato giuridico.

«The Establishment Clause states that “Congress shall make no law respecting an establishment of religion.” U. S. Const., Amdt. 1. The text and history of this Clause suggest that it should not be incorporated against the States. Even if the Clause expresses an individual right enforceable against the States, it is limited by its text to “law[s]” enacted by a legislature, so it is unclear whether the Bladensburg Cross would implicate any incorporated right. And even if it did, this religious display does not involve the type of actual legal coercion that was a hall-mark of historical establishments of religion. Therefore, the Cross is clearly constitutional»

Sua Giustizia Gorsuch aggiunge nella Sua Opinione un tratto quasi umoristico.

«The American Humanist Association wants a federal court to order the destruction of a 94 year-old war memo-rial because its members are offended. Today, the Court explains that the plaintiffs are not entitled to demand the destruction of longstanding monuments, and I find much of its opinion compelling. In my judgment, however, it follows from the Court’s analysis that suits like this one should be dismissed for lack of standing. Accordingly, while I concur in the judgment to reverse and remand the court of appeals’ decision, I would do so with additional instructions to dismiss the case. »

* * * * * *

Significativa è invece l’opinione di Sua Giustizia Ginsburg.

«An immense Latin cross stands on a traffic island at the center of a busy three-way intersection in Bladensburg, Maryland.1 “[M]onumental, clear, and bold” by day, App. 914, the cross looms even larger illuminated against the night-time sky. Known as the Peace Cross, the monument was erected by private citizens in 1925 to honor local soldiers who lost their lives in World War I. “[T]he town’s most prominent symbol” was rededicated in 1985 and is now said to honor “the sacrifices made [in] all wars,” id., at 868 (internal quotation marks omitted), by “all veterans,” id., at 195. Both the Peace Cross and the traffic island are owned and maintained by the Maryland-National Capital Park and Planning Commission (Commission), an agency of the State of Maryland. ….

The Latin cross is the foremost symbol of the Christian faith, embodying the “central theological claim of Christi-anity: that the son of God died on the cross, that he rose from the dead, and that his death and resurrection offer the possibility of eternal life.” ….

For the same reason, using the cross as a war memorial does not transform it into a secular symbol, as the Courts of Appeals have uniformly recognized ….

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion. Memorializing the service of American soldiers is an “admirable and unquestionably secular” objective. ….

The First Amendment commands that the government “shall make no law” either “respecting an establishment of religion” or “prohibiting the free exercise thereof.” ….

union of government and religion tends to destroy government and to degrade religion ….

when a cross is displayed on public property, the government may be presumed to endorse its religious content. ….

Holding the Commission’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. ….

By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion»

* * * * * * *


Cnbc. 2019-06-21. Supreme Court rules that WWI cross on Maryland public land can remain, does not violate Constitution

– The case concerned a giant, early 20th century Latin cross, known as the Bladensburg Peace Cross, that stands in a Maryland intersection in the suburbs of the nation’s capital.

– The opinion of the court is authored by Justice Samuel Alito, who says the meaning of the cross was not limited to its religious context, and cautions against a government that “roams the land, tearing down monuments with religious symbolism.”

– Though the ultimate vote was 7-2, the case produced a smattering of opinions, with five justices writing separate concurrences to explain their thinking.

*

The Supreme Court ruled Thursday that a 40-foot cross commemorating fallen World War I soldiers can remain on public ground because it does not violate the Constitution’s establishment clause that bars favoring one religion over others.

The case concerned a giant, early 20th century Latin cross, known as the Bladensburg Peace Cross, that stands in a Maryland intersection in the suburbs of the nation’s capital. It was erected in 1925.

The cross was conceived as a memorial by mothers of men killed in World War I and is now maintained by a municipal agency that has spent just over $100,000 on the monument since the 1980s. That expenditure has raised questions about whether the cross violates the legal prohibition against excessive entanglement between religion and government, a murky area of constitutional law.

The challenge to the cross came from the American Humanist Association, an advocacy group that promotes secular governance. 

The opinion of the court was authored by Justice Samuel Alito, who said the meaning of the cross was not limited to its religious context. The court’s five conservatives as well as Justices Elena Kagan and Stephen Breyer agreed that the cross should remain on public land, while liberal Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.

“That the cross originated as a Christian symbol and retains that meaning in many contexts does not change the fact that the symbol took on an added secular meaning when used in World War I memorials,” Alito wrote. “Not only did the Bladensburg Cross begin with this meaning, but with the passage of time, it has acquired historical importance.”

And Alito cautioned against a government that “roams the land, tearing down monuments with religious symbolism.”

In contrast, Ginsburg called the cross “the foremost symbol of the Christian faith.”

“By maintaining the Peace Cross on a public highway, the Commission elevates Christianity over other faiths, and religion over nonreligion,” Ginsburg wrote in a dissent that was joined by Sotomayor.

Though the ultimate vote was 7-2, the case produced a smattering of opinions, with five justices writing separate concurrences to explain their thinking. Breyer, in a concurring opinion joined by Kagan, wrote that the case would be different if the cross had been erected recently.

“I see no reason to order this cross torn down simply because other crosses would raise constitutional concerns,” Breyer wrote.

Pubblicato in: Devoluzione socialismo, Stati Uniti, Trump

Trump, Supreme Court, Census e strilli dei liberal democratici.

Giuseppe Sandro Mela.

2019-06-16.

Supreme Court

Entro fine giugno la Suprema Corte degli Stati Uniti si pronuncerà se il Census possa o meno richiedere la nazionalità.

Trump, Lib Dem, Suprema Corte e Census. Un duello all’ultimo sangue.

Suprema Corte. Senza i liberal democratici sarebbero disoccupati.

Corte Suprema. Il 23 aprile primo pronunciamento sulla costituzionalità del Census.

Supreme Court e Census. – Il punto di vista dei liberal democratici.

*

Riassumiamo.

Il problema se il Census possa o meno chiedere agli intervistati di quale cittadinanza godano sottende una conseguenza gravida di ricadute.

A rigor di termini potrebbe votare nelle elezioni federali o statali solo ed esclusivamente chi abbia cittadinanza statunitense.

Se così fosse, i liberal democratici che fanno votare gli immigrati illegali, perderebbero un numero di voti stimabile trai sei milioni e mezzo nel caso più restrittivo, fino a valutazioni di oltre sedici milioni.

Non solo.

Sulla base dei dati censuali si ripartiscono i deputati che spettano ai singoli stati: la California ed altri stati liberal si troverebbe con un numero di congressisti dimezzato.

Per finire, i fondi federali, una gran parte, è ripartita tra gli stati i base ai dati censuali.

*

I liberal democratici stanno schiumando rabbia impotente: Mr Trump li sta massacrando ogni giorno che passa, tagliando loro le una volta rigogliose fonti di denari pubblici.

Con Mr Trump anche i liberal democratci dovranno lavorare per vivere.

«The Trump administration denied accusations that it concealed evidence that its plan to add a citizenship question to the 2020 U.S. Census was aimed at boosting Republicans’ electoral power, and said its accusers were making up a conspiracy theory.»

Ma non si rassegnano.

Stanno provando già su questa terra quelle che saranno le pene infernali nell’aldilà.


Reuters. 2019-06-04. Trump administration denies deceit in census citizenship fight

The Trump administration denied accusations that it concealed evidence that its plan to add a citizenship question to the 2020 U.S. Census was aimed at boosting Republicans’ electoral power, and said its accusers were making up a conspiracy theory.

In a letter to Manhattan U.S. District Judge Jesse Furman, who in January blocked the citizenship question from being used on the decennial census, the government called the allegations an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”

The conservative-majority Supreme Court is due to issue a ruling by the end of June on whether the question can be added in time for next year’s census.

Furman has scheduled a hearing into the new controversy for Wednesday.

Several immigrant advocacy groups, among the plaintiffs in the case, submitted a filing to the Manhattan federal court on May 30 saying that during the course of their lawsuit the administration hid the fact that Thomas Hofeller, a longtime Republican specialist on drawing electoral districts, played a “significant role” in planning the citizenship question.

Hofeller concluded in a 2015 study that asking census respondents whether they are U.S. citizens “would clearly be a disadvantage to the Democrats” and “advantageous to Republicans and Non-Hispanic Whites” in redistricting, the plaintiffs said.

Hofeller, who died in 2018, went on to ghostwrite a draft letter from the Department of Justice to the Department of Commerce, asking for a citizenship question on the grounds it would help enforce voting rights, according to the plaintiffs.

In Monday’s filing, the government said it did not rely on Hofeller’s work and said the plaintiffs were “conjuring a conspiracy theory involving a deceased political operative.”

A Justice Department spokesperson said in a statement: “This baseless attack on the integrity of the department and its employees is based on nothing more than fevered speculation.”

Opponents have said a citizenship question would cause a sizeable undercount by deterring immigrant households and Latinos from filling out the forms, out of fear the information would be shared with law enforcement.

Democrats, immigrant advocates and demographers say such an undercount could deprive some communities of funds and political representation because the Census determines how the federal government distributes aid, as well as seats in Congress.

Pubblicato in: Devoluzione socialismo, Giustizia, Stati Uniti

Corte Suprema. Sentenza Tax Board v. Hyatt. Ci interessa e molto da vicino.

Giuseppe Sandro Mela.

2019-05-22.

2019-05-15__Scoturs__001

La sentenza della Corte Suprema degli Stati Uniti sul caso Franchise Tax Board of California v. Hyatt, No. 17-1299  riguarda sicuramente l’America, ma ha anche grandi risvolti sia per la giurisprudenza in generale sia alla fine per tutto il mondo, Europa in particolare.

Essendo una sentenza molto tecnica non è intuitivo cogliere il nesso: cercheremo di spiegarlo al meglio: i giuristi perdonino se useremo un linguaggio piano, ma lo scopo è quello di farsi intendere dal largo pubblico. Le persone con conoscenze specifiche troveranno piacevole leggere il dispositivo qui riportato.

*

In sintesi succinta:

– vieta di portare in giudizio uno Stato nella Corte di Giustizia di un altro Stato.

– afferma il diritto della Corte Suprema di sentenziare anche variando ovvero annullando sentenze pregresse.

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«Overruling a 40-year-old precedent, the Supreme Court said on Monday that states may not be sued in the courts of other states»

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«most states already grant sovereign immunity to other states, shielding them from lawsuits»

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«there have been only 14 cases in the past 40 years in which one state allowed another to be sued in its courts»

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«The decision was more important for its discussion of when precedents may be overruled»

*

«Today’s decision can only cause one to wonder which cases the court will overrule next»

*

«In 1991, Mr. Hyatt, who had lived in California, told the authorities that he had moved to Nevada, which collects no personal income tax. The authorities were doubtful, and they started an aggressive investigation, interviewing estranged family members and making private information available to Mr. Hyatt’s business associates.Mr. Hyatt sued in state court in Nevada over that conduct, and he won a large jury award that was later reduced to $100,000. California argued that allowing such a lawsuit violated the Constitution.»

*

«In 1979, in Nevada v. Hall, the Supreme Court had ruled that such suits were permissible»

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«Writing for the majority on Monday, Justice Clarence Thomas said California had the stronger argument, basing his decision on constitutional history. Before the states joined the union, he wrote, they were independent nations. “The founding generation thus took as given that states could not be haled involuntarily before each other’s courts,” he wrote.

The Constitution, Justice Thomas added, confirmed that principle, if not in so many words. “The Constitution implicitly strips states of any power they once had to refuse each other sovereign immunity,” he wrote.»

*

«The most heated disagreement in Monday’s decision was over the doctrine of stare decisis, which is Latin for “to stand by things decided.”»

*

«Justice Thomas, noting that respect for precedent is not an “inexorable command,” said three of four factors supported overruling the 1979 decision. »

*

«The people of this nation rely upon stability in the law, …. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. …. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay»

* * * * * * * *

Il problema è affascinante da un punto di vista giuridico, massimamente in un sistema giuridico basato sul common law, ove le sentenza acquisiscono valore di leggi.

L’errore sottile si insinua qualora si cercasse di massimizzare l’enunciato di una sentenza.

Le sentenze pregresse dovrebbero essere considerate sempre con il massimo rispetto, formale e sostanziale, ma né possono né debbono essere divinizzate. Come tutte le azioni umane possono rivelare nel tempo vizi di forma o carenze di dottrina, possono generare effetti secondari non voluti, indesiderati ed indesiderabili, ovvero potrebbero dimostrarsi superate dai tempi.  Nel ragionare su queste evenienza, Sua Giustizia Thomas reintroduce nella prassi mentale della Suprema Corte ciò che un tempo era denominato ‘buon senso’.

Non solo. Avoca alla Suprema Corte il potere e l’obbligo di riformare sentenze pregresse, in ossequio a quanto prima enunciato.

* * * * * * * *


Il malcontento e la costernazione dei liberal democratici è ben descritto nei seguenti articoli.

Supreme Court Weighs Core Questions of Precedent and States’ Rights

Supreme Court Precedents That May Be at Risk

«Fourteen cases had civil rights at their core, like rulings involving voting rights, affirmative action and deportation. However, one case has already been overturned by Congressional action or another may require assistance from Congress before a new Supreme Court majority could act.

In 2009, Congress passed the Lilly Ledbetter Fair Pay Act after the Supreme Court ruled in Ledbetter v. the Goodyear Tire and Rubber Company that Title VII of the Civil Rights Act of 1964 imposed strict time limits for bringing workplace discrimination suits.

In a 2013 decision, Shelby County v. Holder, the court struck down a key part of the Voting Rights Act, which essentially gave Congress a chance to redraft the law. Should Congress rewrite it, a new liberal majority would most likely sustain the new version.»

The Threat to Roe v. Wade in the Case of the Missing Precedent

* * * * * * * *

Vediamo adesso cosa questa sentenza implica per l’America e per il resto del mondo. Quindi anche per l’Italia.

Per i liberal democratici stava diventando abitudine citare gli stati che legiferavano a maggioranza repubblicana presso Corti di altri stati a maggioranza democratica, i giudici delle quali regolarmente bloccavano le leggi deliberate dalle maggioranze espresse dal Popolo Sovrano. Si metteva così in atto un ostruzionismo giudiziario di lunga durata, che era quindi abilmente utilizzato per bollare come illegale ogni legge promulgata dai repubblicani, salvo poi abbandonare l’argomento quando interveniva la Corte Suprema a ristabilire il rule of law.

Dal 23 aprile i giudici politicizzati sanno che saranno incriminati.

L’incriminazione del giudice Joseph ha costituito un altro punto di svolta nella competizione giudiziaria, evidenziando come i comportamenti partigiani dei giudizi non sarebbe stati più a lungo tollerati.

Immediatamente, giudici e media si son fatti silenziosi e cauti.

Più delicata e sottile è invece la questione che la Corte Suprema possa rivedere sentenze già emesse.

Sono infatti in attesa di essere sottoposte al vaglio della Suprema Corte un largo numero di sentenze emesse da Corti inferiori inerenti problemi etici e morali che così stanno a cuore dei liberal democratici, massimamente poi la questione dell’aborto.

Alabama passes bill banning abortion

Avendo fatto dell’aborto e dell’etica il proprio programma politico, i liberal democratici si sentono scendere per le ossa che questo potrebbe essere semplicemente distrutto in via giudiziaria. Ed il tutto con grande clamore.

Ma il crollo dei liberal democratici negli Stati Uniti avrebbe consistenti ripercussioni sull’Europa, ove molte nazioni sono governate ancora da una loro maggioranza.


The New York Times. 2019-05-13. Justices Split Over the Power of Precedent

WASHINGTON — Overruling a 40-year-old precedent, the Supreme Court said on Monday that states may not be sued in the courts of other states.

The vote was 5 to 4, with the court’s more conservative members in the majority. The ruling itself will probably not be particularly consequential, as most states already grant sovereign immunity to other states, shielding them from lawsuits. By one count, there have been only 14 cases in the past 40 years in which one state allowed another to be sued in its courts.

The decision was more important for its discussion of when precedents may be overruled. In dissent, after repeatedly citing a 1992 decision that reaffirmed the constitutional right to abortion established in 1973 in Roe v. Wade, Justice Stephen G. Breyer said he feared for the future.

“Today’s decision can only cause one to wonder which cases the court will overrule next,” he wrote.

Monday’s decision, Franchise Tax Board of California v. Hyatt, No. 17-1299, resolved a long-running dispute involving Gilbert P. Hyatt, who had made money from technology patents, and California’s tax authorities. In 1991, Mr. Hyatt, who had lived in California, told the authorities that he had moved to Nevada, which collects no personal income tax.

The authorities were doubtful, and they started an aggressive investigation, interviewing estranged family members and making private information available to Mr. Hyatt’s business associates.

Mr. Hyatt sued in state court in Nevada over that conduct, and he won a large jury award that was later reduced to $100,000. California argued that allowing such a lawsuit violated the Constitution.

In 1979, in Nevada v. Hall, the Supreme Court had ruled that such suits were permissible.

In an earlier encounter with Mr. Hyatt’s case, the court in 2016 came close to overruling that decision. But the court was short-handed after the death of Justice Antonin Scalia, and it deadlocked 4 to 4.

Writing for the majority on Monday, Justice Clarence Thomas said California had the stronger argument, basing his decision on constitutional history. Before the states joined the union, he wrote, they were independent nations. “The founding generation thus took as given that states could not be haled involuntarily before each other’s courts,” he wrote.

The Constitution, Justice Thomas added, confirmed that principle, if not in so many words. “The Constitution implicitly strips states of any power they once had to refuse each other sovereign immunity,” he wrote.

In dissent, Justice Breyer took issue with both points. Before and after the adoption of the Constitution, he wrote, states generally granted sovereign immunity to other states — but only as a matter of grace and self-interest. Those that desired to take a different approach could do so, Justice Breyer wrote.

The most heated disagreement in Monday’s decision was over the doctrine of stare decisis, which is Latin for “to stand by things decided.” Justice Thomas, noting that respect for precedent is not an “inexorable command,” said three of four factors supported overruling the 1979 decision.

The earlier decision, he said, was poorly reasoned, inconsistent with related decisions and in tension with later legal developments. But he said that Mr. Hyatt and others had relied on the decision, a factor cutting the opposite way.

“We acknowledge that some plaintiffs, such as Hyatt, have relied on Hall by suing sovereign states,” Justice Thomas wrote. “Because of our decision to overrule Hall, Hyatt unfortunately will suffer the loss of two decades of litigation expenses and a final judgment against the board for its egregious conduct.”

Justice Breyer responded that there was no good reason to overrule the precedent.

“The people of this nation rely upon stability in the law,” he wrote. “Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives.” He added, “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”

Justice Breyer did not address the fate of Roe v. Wade directly. But he sounded a general note of caution, saying it was “dangerous to overrule a decision only because five members of a later court come to agree with earlier dissenters on a difficult legal question.”

Pubblicato in: Devoluzione socialismo, Giustizia, Stati Uniti, Trump

Trump sferra l’attacco alle Corti distrettuali ed inferiori.

Giuseppe Sandro mela.

2019-05-17.

Supreme Court

Il sistema giudiziario americano è complesso perché complessa è la struttura degli Stati Uniti.

Anche se nominalmente politica e giustizia dovrebbero essere poteri separati, nei fatti sicuramente non lo sono, se non altro perché i giudici sono di nomina politica, ancorché vidimata da un assenso senatoriale. Ma il senato è pur sempre composto da politici.

Nei tempi passati, quando un giudice di basso livello si imbatteva in un problema che avesse coinvolto un giudizio costituzionale, era consuetudine rimandare il tutto alla Suprema Corte, attendendo quindi il suo giudizio.

Il sistema ha retto fino a circa due decenni or sono, quando i liberal democratici hanno usato i tribunali di baso livello come arma politica: i giudici di basso livello iniziarono non solo a dare pareri di costituzionalità, ma soprattutto iniziarono ad emettere provvedimenti di blocco su scala federale.

Questo fenomeno è diventato gigantesco con la presidenza Trump, del quale quasi ogni ordine Esecutivo era stato bloccato da un giudice distrettuale. Poi, dopo un anno circa, la Corte Suprema rimetteva le cose a loro posto, bacchettando anche i giudici inferiori, ma era evidente sia l’intromissione dei giudici nella politica sia l’abuso  del potere operativo del giudice.

Il problema giuridico si configura quindi nello stabilire norme giuridiche inequivocabili che regolino la possibilità che un giudice distrettuale possa emettere ordinanza a valore federale.

È semplicemente evidente come un sentenza della Corte Suprema possa bloccare alla radice la guerra legale dei liberal democratici.

«Vice President Mike Pence said the Trump administration will ask the U.S. Supreme Court to prevent lower courts from imposing nationwide injunctions against the president’s policies»

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«federal district courts have imposed more nationwide injunctions against Trump than the first 40 presidents combined»

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«A Supreme Court justice has to convince four of his colleagues to uphold a nationwide injunction — but a single district court judge can issue one, effectively preventing the duly-elected president of the United States from fulfilling his constitutional duties»

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«In the days ahead, our administration will seek opportunities to put this question before the Supreme Court»

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«Justice Clarence Thomas said he was that skeptical federal trial judges have the power to issue nationwide injunctions»

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«Thomas wrote in an opinion that no other justice joined»

* * * * * * * *


Trump Administration Will Ask Supreme Court To End Nationwide Injunctions, Pence Says

«Nationwide injunctions, in which federal trial judges bar the federal government from enforcing a law or carrying out a policy across the entire country, have beset President Donald Trump since he took office. District courts have blocked administration policy priorities on immigration, national security and health care.

“The Supreme Court of the United States must clarify that district judges can decide no more than the cases before them — and it’s imperative that we restore the historic tradition that district judges do not set policy for the whole nation,” Pence told the conservative lawyers group.»

* * * * * * *

Si faccia grande attenzione

«The Supreme Court of the United States must clarify that

district judges can decide no more than the cases before them»

Non è un cavillo di lana caprina: qualsiasi sia la decisione della Corte Suprema sarà pur sempre una decisione epocale.


Bloomberg. 2019-05-09. Trump to Ask Supreme Court to Prevent Nationwide Injunctions

– Administration has previously attemped to curb injunctions

– High court hasn’t ruled on question because policies upheld

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Vice President Mike Pence said the Trump administration will ask the U.S. Supreme Court to prevent lower courts from imposing nationwide injunctions against the president’s policies.

Pence complained Wednesday in a speech to the conservative Federalist Society that federal district courts have imposed more nationwide injunctions against Trump than the first 40 presidents combined. On Tuesday, an appeals court lifted such an injunction against a Trump policy that allows U.S. immigration authorities to force some migrants seeking asylum to wait in Mex while their cases are adjudicated.

“A Supreme Court justice has to convince four of his colleagues to uphold a nationwide injunction — but a single district court judge can issue one, effectively preventing the duly-elected president of the United States from fulfilling his constitutional duties,” Pence said in prepared remarks. “This judicial obstruction is unprecedented.”

“In the days ahead, our administration will seek opportunities to put this question before the Supreme Court,” Pence said.

The Trump administration has already tried on several occasions to persuade the Supreme Court to curb nationwide injunctions. It was an issue when the court considered Trump’s travel ban last year, but the justices didn’t reach the question because they upheld the ban in its entirety.

In a concurring opinion in that case, Justice Clarence Thomas said he was that skeptical federal trial judges have the power to issue nationwide injunctions.

“These injunctions are beginning to take a toll on the federal court system — preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the executive branch,” Thomas wrote in an opinion that no other justice joined.

The administration similarly offered the Supreme Court a chance to curb nationwide injunctions in a clash over military service by transgender people. Lower courts had blocked Trump’s effort to bar most transgender people from service. At the Supreme Court, the administration said those orders should, at most, cover the people involved in the case.

Much like with the travel ban, the high court didn’t address the issue because it let the policy take full effect.

Pubblicato in: Devoluzione socialismo, Stati Uniti

Supreme Court e Census. – Il punto di vista dei liberal democratici.

Giuseppe Sandro Mela.

2019-05-14.

Supreme Court

La Suprema Corte degli Stati Uniti ha concesso di esaminare il problema dell’inclusione o meno della domanda sulla cittadinanza nel questionario del censimento che prossimamente il Census porterà a termine.

«The Supreme Court will decide whether the 2020 U.S. Census

can include a question about citizenship»

Il tema è scottante e dibattuto: le note già depositate dalle Loro Giustizie illustrano alla perfezioni i diversi punti di vista giuridici.

A livello dei media, invece, si è spesso andati a toni molto sopra le righe, financo tediosamente astiosi.

Si noti come la Suprema Corte sia chiamata ad esprimere il suo alto giudizio solo dal punto di vista giuridico, non dal punto di vista sociologico o politico.

Il The New York Times ha pubblicato un editoriale in materia, che riporta il punto di vista dei liberal democratici, usando però quel linguaggio corrente, anche se usando un inglese colto, che dovrebbe rendere meglio intellegibile il problema in almeno molte delle sue sfumature.

Premesso che non lo si condivide in alcunché, lo riportiamo tuttavia per completezza informativa.

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The New York Times. 2019-05-10. The Supreme Court, the Census Case and the Truth

Will the justices be the administration’s enablers or form a firewall against its lies?

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The smart money says the Trump administration is going to prevail at the Supreme Court in its effort to add a citizenship question to next year’s census. Having read the transcript and listened to the audio file of the recent argument, I don’t challenge that forecast.

Neither am I going to argue with the experts’ prediction that adding the citizenship question, which has been omitted since 1950 from the census form that goes to every household, will lead immigrant families to fail to return the form out of fear caused by the Trump administration’s brutal anti-immigrant policies. The resulting differential undercount will penalize immigrant-rich cities and states in political representation and federal funding.

Harmful as that impact would be on the affected areas, I want to argue here that validating the Trump administration’s cynical hijacking of the census would have a devastating effect on the integrity of the Supreme Court.

Never mind that three Federal District Courts, ruling since the first of the year in three cases, have found the addition of the citizenship question to be procedurally improper or flat-out unconstitutional. There are respectable contrary arguments that might be made, under the Administrative Procedure Act or the Constitution’s Enumeration Clause, or there would be, had the administration acted in the good faith that Judge Jesse Furman, ruling in the case now before the court, found to be conspicuously lacking.

Perhaps the justices who appear poised to overturn the lower-court decisions really believe that Congress has delegated its constitutional census obligation to the secretary of commerce to conduct the enumeration however he wishes without judicial supervision. Maybe they really think that the 18 states suing the Commerce Department lack standing because any harm that befalls them from the citizenship question is due not to the government but to the “illegal” acts of immigrants who fail to answer the census. These propositions constitute the core of the administration’s argument. If the justices are honestly persuaded by them, well, that’s litigation for you. It’s a zero-sum game in which someone wins and someone loses.

But if the plaintiff states are going to lose, it seems to me that it matters greatly how they lose. What was depressing and even scary about the April 23 argument was the disingenuous lengths to which the conservative justices were willing to go to tilt the case in the administration’s favor. They played dumb. They pretended not to know what they surely knew: that the citizenship question will depress the census count in a way that is predictably harmful and that the administration’s brief concealed the real story of how the citizenship question made its way onto the census. In other words, I have enough respect for the justices’ basic intelligence, which includes the ability to read the same briefs and opinions that I read, to conclude that they know full well what game is afoot.

Don’t take my word for it. Read the transcript. The conservative justices were at pains to challenge the very idea that the citizenship question could depress noncitizens’ response rates, despite the fact that numerous Census Bureau studies have shown that to be the case. “What jumps out,” Justice Samuel Alito said to Solicitor General Barbara D. Underwood of New York, “is the fact that citizens and noncitizens differ in a lot of respects other than citizenship. They differ in socioeconomic status. They differ in education. They differ in language ability.” And so, he went on, “I don’t think you have to be much of a statistician to wonder about the legitimacy of concluding” that the response rate would go down “because of this one factor.”

Justice Neil Gorsuch weighed in. “There could be multiple reasons why individuals don’t complete the form.” He continued: “We don’t have any evidence disaggregating the reasons why the forms are left uncompleted. What do you do with that? I mean, normally we would have a regression analysis that would disaggregate the potential cause and identify to a 95th percentile degree of certainty what the reason is that persons are not filling out this form and we could attribute it to this question. We don’t have anything like that here. So what are we supposed to do about that?”

Justice Alito then returned to his theme. There were “many factors that could explain a decline when you’re distinguishing between citizens and noncitizens,” he said.

When Ms. Underwood started to explain that the Census Bureau studies had controlled for the differences, Justice Gorsuch broke in. “It’s fair to say we don’t have this isolated, though, isn’t it?” he asked.

At this point in the transcript, Justice Stephen Breyer’s exasperation with his colleagues almost jumps off the page. “There are a million factors,” he said with evident sarcasm. “There are pet dogs, you know. I mean, there are cats.”

It fell to Justice Elena Kagan to bring the argument back to earth. “Would it be right to say, General,” she said to Ms. Underwood, “that it was the Census Bureau’s conclusion, a bureau full of statisticians, that it was the citizenship question that was driving the differential response rates?”

“That is correct,” Ms. Underwood replied.

Among the other conservative justices, Justice Clarence Thomas, as is his custom, said nothing, and Justice Brett Kavanaugh said relatively little. Chief Justice John Roberts didn’t join in the game that Justices Alito and Gorsuch were playing, but he did seem strangely obtuse when he observed to Ms. Underwood that “we’ve had demographic questions on the census, I don’t know how far back, but certainly, it’s quite common. Sex, age, things like that. ‘Do you own your house?’ ‘Do you own a radio?’ I mean, the questions go quite beyond how many people there are.”

The chief justice’s observations, while accurate, made no sense in the context of this case, as Ms. Underwood diplomatically pointed out. “We have no comparable evidence about any of those other questions that they depress the count in this substantial a way and in this disproportionate a way,” she said.

And what is there to say about Solicitor General Noel Francisco’s argument for the Trump administration? It’s part of our current national tragedy that an allergy to the truth has infected the Department of Justice from the top down. Mr. Francisco maintained in both his brief and his oral argument that it was the Justice Department that urged Wilbur Ross, the secretary of commerce, to add the citizenship question, ostensibly to provide for more precise enforcement of the Voting Rights Act. Aside from the fact that the Trump administration has shown no interest in protecting voting rights and that no administration has asked for a citizenship question in the 54 years since the Voting Rights Act of 1965 became law, there is one problem with the solicitor general’s narrative: It is demonstrably untrue.

According to the record methodically compiled in Judge Furman’s District Court courtroom, Secretary Ross was urged to add the citizenship question by Steve Bannon, a White House adviser at the time, and the anti-immigrant crusader Kris Kobach. Mr. Ross shopped the idea around the federal government for a year and was initially turned down by the Department of Homeland Security as well as the Justice Department. He finally made a direct pitch to Attorney General Jeff Sessions, who agreed to get him a letter that would request the citizenship question and provide the Voting Rights Act rationale — the rationale that Judge Furman called pretextual.

So when Mr. Francisco told the justices that there was “no evidence in this record” that Secretary Ross would have added the citizenship question “had the Department of Justice not requested it,” he was at that moment the luckiest person in the courtroom: The red light on the lectern came on, indicating the end of his argument time. No one could ask a follow-up question, including Justice Kagan, who earlier had observed to Mr. Francisco that “you can’t read this record without sensing that this need is a contrived one.”

This sordid tale might be just so much inside-the-Beltway gossip except that it goes directly to the legal matter at hand in the pending case, Department of Commerce v. New York. The administration is demanding deference to its decision on what to ask on the census. Yet experts at the Census Bureau have testified that asking the citizenship question will make the 2020 census less accurate. As Solicitor General Underwood of New York put it in her brief for the plaintiffs, addressing the Justice Department’s purported request for the question, “Settled principles of administrative law foreclose any deference when a decision maker falsely claims to rely on the expertise of another agency to defend its determination.”

The basic legal claim of New York and the other states is that adding the citizenship question is “arbitrary and capricious,” in violation of the Administrative Procedure Act. As the states’ brief explains: “A decision maker acts arbitrarily by purporting to rely on another agency’s expertise when, in fact, the decision maker instructed that agency rather than the other way around. Such illusory reliance undercuts the foundational premise for judicial deference to administrative action: that the decision resulted from an exercise of specialized expertise that courts lack. When a decision maker purports to rely on an exercise of expert judgment that never happened, there is nothing to which the courts can defer.”

In the administration’s brief, Mr. Francisco complains that “until now no court has seen fit to police the contents of the decennial census questionnaire by even entertaining an arbitrary-and-capricious challenge, let alone upholding one.” Could the reason be that no administration before this one thought to pull off such a trick? But this one did, leaving the Roberts court with a choice: It can be the administration’s enabler or it can acknowledge the truth and be a firewall. That choice is a fateful one, for the court and for the rest of us.

Pubblicato in: Devoluzione socialismo, Unione Europea

Gerrymandering. Republicani e democratici si stanno scannando.

Giuseppe Sandro Mela.

2019-05-08.

Springfield Collegio 001

Collegio Distrettuale di Springfield. L’arte di disegnare i collegi elettorali.


Gerrymandering deriva dal nome dell’inventore, Mr Gerry, e da ‘salamander‘: la salamandra di Gerry.

L’allora Governatore del Massachusetts, Mr Elbridge Gerry nei primi dell’ottocento constatò come gli elettori fossero raggruppato in zone ben definite: quindi ridisegnò i perimetri dei collegi elettorali uninominali in modo tale da assicurare a sé stesso ed al suo partito una vittoria con percentuali bulgare.

Il sistema fu accolto con grandi ovazioni da parte dei politici, che si dettero un gran da fare. I collegi della Scozia e quelli dell’Irlanda del Nord furono a suo tempo gerrymanderingzati con mano pesante, ma, ad esser franchi, anche quelli italiani non scherzano per nulla. Poi, qui da noi servì tutta la abilità del partito democratico italiano per non cogliere l’occasione propizia.

Ma non tutto il male viene per nuocere.

Per promuovere il bene del popolo e la prosperità della nazione, i politici investirono ingentissime somme per fondare una nuova branca della matematica statistica: la teoria dell’ottimizzazione, che solo dopo molto tempo fu applicata alla razionalizzazione dei procedimenti industriali.

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Negli Stati Uniti, caratterizzati da grande mobilità delle persone, i distretti ed i collegi elettorali dovrebbero essere regolarmente rivisti per distribuire in modo abbastanza omogeneo in essi la popolazione. Di norma, ci si basa sui dati censuali della popolazione. Ma ogni volta che ciò accade il gerrymandering colpisce forte e duramente. Di lì contenziosi e voce grossa, talora anche pallottole vaganti. In linea generale il grosso del contenzioso accade negli stati ove una fazione politica abbia il controllo della Corte Suprema dello stato: quei giudici hanno la potestà di mettere la parola fine alla diatriba. Solitamente, fanno i loro appunti, e rimandano tutti ai legislatori: ma quando perdono la pazienza, ridisegnano loro i distretti.

Non ci si stupisca quindi che alla fine tutto approdi alla Corte Suprema degli Stati Uniti, la Scotus. Ed al momento Scotus si sta anche interessando delle modalità con le quali il Census raccoglie i dati. Il clima politico è al calor rovente.

«A panel of federal judges on Thursday ordered Michigan’s Republican-controlled legislature to redraw nearly three dozen state and U.S. congressional districts, ruling that the existing lines illegally dilute the power of Democratic voters»

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«The decision gives lawmakers until Aug. 1 to approve new district maps»

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«If legislators fail to do so, or if the court finds the new district lines are similarly unconstitutional, the judges said they would draw the maps themselves. The redrawn districts would take effect in time for the 2020 elections»

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«The state’s 14 seats in the U.S. House of Representatives are also up for election next year, and a majority of them could have new boundaries under the court’s ruling»

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«The decision is likely a boon for Democrats, who in 2018 failed to win a majority of the seats in the state House of Representatives, state Senate or the state’s U.S. congressional delegation despite winning the overall popular vote in all three cases»

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«Partisan gerrymandering is the process by which one party draws legislative districts to weaken the other party’s voters»

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«The lines are typically redrawn once a decade after the U.S. census, and in many states the party in power controls the decision-making»

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«The Supreme Court has historically been reluctant to assert judicial oversight over what has always been a political undertaking»

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«The Supreme Court could choose to put the Michigan ruling on hold until it issues its own decision, which is expected by June»

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Una possibile soluzione potrebbe essere quella di prevedere maggioranze qualificate per approvare una riforma dei collegi e dei distretti. Si potrebbe prospettare che almeno il 75% dei legislatori voti a favore.


Reuters. 2019-05-05. U.S. judges order Michigan to revamp Republican-drawn districts in gerrymandering case

A panel of federal judges on Thursday ordered Michigan’s Republican-controlled legislature to redraw nearly three dozen state and U.S. congressional districts, ruling that the existing lines illegally dilute the power of Democratic voters.

The decision gives lawmakers until Aug. 1 to approve new district maps, which would need to be signed by Democratic Governor Gretchen Whitmer.

If legislators fail to do so, or if the court finds the new district lines are similarly unconstitutional, the judges said they would draw the maps themselves. The redrawn districts would take effect in time for the 2020 elections.

The court also ordered Michigan to hold special state Senate elections next year, rather than in 2022 as scheduled, in any gerrymandered districts. The state’s 14 seats in the U.S. House of Representatives are also up for election next year, and a majority of them could have new boundaries under the court’s ruling.

The decision is likely a boon for Democrats, who in 2018 failed to win a majority of the seats in the state House of Representatives, state Senate or the state’s U.S. congressional delegation despite winning the overall popular vote in all three cases.

“Today, this court joins the growing chorus of federal courts that have, in recent years, held that partisan gerrymandering is unconstitutional,” U.S. District Judge Eric Clay, an appointee of former U.S. President Bill Clinton, wrote for a unanimous three-judge panel.

Partisan gerrymandering is the process by which one party draws legislative districts to weaken the other party’s voters. The lines are typically redrawn once a decade after the U.S. census, and in many states the party in power controls the decision-making.

In late March, the U.S. Supreme Court heard arguments on whether such gerrymandering violates the U.S. Constitution in a case stemming from the electoral maps in Maryland and North Carolina.

The Supreme Court has historically been reluctant to assert judicial oversight over what has always been a political undertaking.

The judges in the Michigan case said the gerrymandered map “gives Republicans a strong, systematic, and durable structural advantage in Michigan’s elections and decidedly discriminates against Democrats.”

The result is a violation of Democratic voters’ constitutional right under the First Amendment to freely associate, the court said.

“Federal courts must not abdicate their responsibility to protect American voters from this unconstitutional and pernicious practice that undermines our democracy,” the judges wrote.

Republican lawmakers, who intervened in the case, will appeal the ruling to the U.S. Supreme Court, state Senate Majority Leader Mike Shirkey said.

“We will prepare to comply with this most recent ruling while we await the outcome of the appeal,” Shirkey said in a statement.

The Supreme Court could choose to put the Michigan ruling on hold until it issues its own decision, which is expected by June.

The lawsuit was filed by a number of Democratic voters and by the League of Women Voters of Michigan.

Michigan was key to U.S. President Donald Trump’s victory in 2016, when he became the first Republican presidential candidate to win the state’s support in nearly 30 years. The state is likely to be a major battleground state next year, when Trump runs for a second term.