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Under current federal law, only men are required to register for the draft. The Supreme Court upheld 50 U.S.C. 3802(a) inRostker v. Goldberg (1981). At the time, women could not serve in combat roles. But in 2016, the Obama Administration allowed women to participate in combat roles. Subsequently, the National Coalition for Men challenged the federal law as a violation of the Equal Protection component of the Fifth Amendment. In 2019, a federal district court judge in Houston declared the policy unconstitutional. But in 2020, the Fifth Circuit found that the district court's judgment "directly contradicts" Rostker.

The National Coalition for Men filed a cert petition on January 8. The SG's response was due on February 11. Acting SG Prelogar sought a one month extension.

This extension is requested to complete preparation of the government's response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.

One month later, the Acting SG requested another extension:

This extension is necessary because the attorneys with principal responsibility for preparation of the government's response have been heavily engaged with the press of previously assigned matters with proximate due dates.

What is going on here? Adam Liptak suggests that change may be afoot:

The Trump administration defended differing registration requirements in the appeals court. The Biden administration has twice sought extra time to respond to the petition seeking Supreme Court review in the case,National Coalition for Men v. Selective Service System, No. 20-928, and its brief is now due on April 14.

It is possible that the Biden Administration will agree with the petitioners and decline to defend the constitutionality of the statute. This move would echo the Obama administration's decision not to defend the Defense of Marriage Act in Windsor. In both cases, these laws did not run afoul of any Supreme Court precedent. Rather, subsequent practices (arguably) cast doubt on the validity of past precedents. Lower courts cannot anticipatory disregard Supreme Court precedents, but the executive branch apparently can.

But there would be one significant difference between this case, andWindsor. In 2011, the House was controlled by Republicans. As a result, the Bipartisan Legal Advisory Group (BLAG) retained Paul Clement to intervene in the case. Now, both houses are controlled by Democrats. If DOJ sends a 530(d) notification to Congress, and there is no majority to defend the statyute, what happens? In my view, the case would be over, as there is no adversity. The federal law would not be enforced by the current administrations, but the next administration could resume enforcing it. (Good luck with rescinding millions of female registrations). Or, the Court could keep the case alive by appointing an amicus. (Hell, make it Paul Clement for nostalgia's sake. Though, this case arose from the 5th Circuit, so we would likely see a CT clerk.) And if the Court upholds the statute, the Biden administration would have to continue enforcing the regime.

Of course, Congress could also repeal this statute. But that move would require political accountability. It is much easier to decline to defend a law, and let it fall into desuetude.

The Acting SG will soon have to make another difficult decision. The Court granted review inUS v. Tsarnaev, the Boston marathon bombing case. President Biden has stated he opposes the death penalty. Adam Liptak reports:

After the appeals court ruling, lawyers for the federal government during the Trump administrationurged the Supreme Courtto hear the case.

The case presents President Biden with an early test of his stated opposition to capital punishment. Were the administration to decide not to pursue the death penalty against Mr. Tsarnaev, the Supreme Court case would become moot.

Jen Psaki, the White House press secretary, answered generally when asked about how Mr. Biden would approach the case.

"He has grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness," Ms. Psaki said at a press briefing on Monday. "He has also expressed his horror at the events of that day and Tsarnaev's actions."

A Justice Department spokeswoman declined to comment.

Will his SG defend the death penalty sentence below? If he doesn't, then presumably DOJ would have to take the same position in all pending federal cases involving the death penalty. And these decisions would be final. If Biden no longer seeks the death penalty against Tsarnaev, I don't think a future President could seek to reimpose that sentence.

Yesterday, I observed that the decision to appoint an SG is extremely important. These two cases illustrate the high stakes.

See the rest here:
What will the SG do in National Coalition for Men v. Selective Service System? - Reason

The University of Southern California has reached a record $852 million settlement with more than 700 women who accused a former gynecologist on campus of sexually abusing them as patients and the prestigious school of trying to cover it up, attorneys said on Thursday.

The law firm representing many of the women in the case said the payout agreed to by USC and the plaintiffs marked the largest sexual abuse settlement with a university and the biggest personal injury payout by any college or university in US history.

The deal, resolving lawsuits brought by 710 women in California state court, stems from allegations against George Tyndall, who practised at USC for nearly 30 years before the private, Los Angeles-based university suspended him in 2016, then allowed him to quietly retire without immediately reporting him to the state medical board.

A separate $215 million settlement of a federal class-action case in 2018 and a more recent $50 million cluster of individual state court settlements brings the total payout USC has agreed to pay in the Tyndall scandal to $1.1 billion.

No further civil claims are outstanding.

Tyndall, who has denied wrongdoing, lost his medical license and has been charged with sexually assaulting 21 patients under the guise of gynecological treatment or exams. He has pleaded not guilty to 35 felony counts and remains free on bail. No trial date has been set.

His civil defence lawyer was not immediately available for comment.

Tyndall was technically a party to the USC settlement but lacks any funds to contribute, Vince Finaldi, a lead plaintiffs lawyer and negotiator of the deal, told Reuters.

The former physician, now in his 70s, was deposed for the civil litigation but invoked his Fifth Amendment right under the US constitution to avoid self-incrimination, Mr Finaldi said.

The flood of lawsuits brought by former patients against Tyndall and USC accused the university of negligence and complicity, asserting school officials were aware of his misconduct for years but kept him in a position to continue preying on students placed in his care.

The enormous size of this settlement speaks to the immense harm done to our clients and the culpability of USC, plaintiffs attorney John Manley said in a statement. It is a direct result of a billionaire-dominated Board of Trustees that placed fundraising, prestige and the USC Brand above the safety of vulnerable female students.

Widespread faculty and student outrage over the universitys handling of the matter after allegations against Tyndall surfaced in media accounts in 2018 led then-USC president CL Max Nikias to resign.

The scandal even prompted the Chinese government to voice deep concern over published reports that many of the alleged victims were students from China.

The USC Board of Trustees ratified Thursdays settlement, which the university said was reached with assistance from a private mediator and a Los Angeles County Superior Court judge.

Im deeply sorry for the pain experienced by these valued members of the USC community, USCs current president, Carol Folt, said in a statement. We appreciate the courage of all who came forward and hope this much-needed resolution provides some relief to the women abused by George Tyndall.

University officials have previously acknowledged failing to act on a number of complaints made against Tyndall between 2000 and 2014 but denied a deliberate cover-up.

Trustees Chair Rick Caruso, named to head the board after the scandal came to light, conceded on Thursday that the university fell short by not doing everything it could to protect those who matter to us most our students.

Individual payouts in the latest settlement would likely range from mid-six-figure sums to millions of dollars, Mr Finaldi said.

The USC settlement far exceeds the $500 million payout agreed to by Michigan State University to resolve civil claims stemming from allegations of serial sexual abuse leveled against Larry Nassar, a former USA Gymnastics team doctor on the schools staff.

Nassar was sentenced to up to 300 years in prison in a pair of 2018 trials after more than 350 women testified of abuse at his hands.

By comparison, the Los Angeles Archdiocese of the Roman Catholic Church paid out $660 million in 2007 to 508 victims of sex abuse by multiple members of the clergy. Reuters

See the article here:
US university to pay $1.1bn to women abused by former gynecologist - The Irish Times

A defense attorney filed a motion this week attempting to keep a jury from hearing an alleged confession of a woman who is accused of helping her boyfriend cover up the murder of a 20-year-old Fort Hood soldier almost a year ago.

Cecily Aguilar, 22, was being held without bond in the McLennan County Jail on Thursday. She is accused of helping Army Spc. Aaron Robinson, 20, dispose of the body of Vanessa Guillen after he had killed her with a hammer on April 22, 2020, according to a federal criminal complaint.

Spc. Aaron David Robinson is the man who took his own life while being a suspect in the disappearance of Spc. Vanessa Guillen, Fort Hood officials said.

During a hearing next month, U.S. Magistrate Judge Jeffrey C. Manske is set to rule on a 16-page motion to suppress that was filed by Aguilars defense attorney on Wednesday.

According to the motion, Aguilar made statements during an interview with police on June 30, 2020, without being advised of her Miranda rights, which would be a violation of her Fifth Amendment rights against self-incrimination.

The officers did not provide Aguilar (with) Miranda warnings until after three hours of questioning, the motion reads. Instead, they encouraged her to tell them about the alleged crime in order to help herself, without ever informing her that what she said could be used against her in court

Aguilars defense attorney claims that her Fourth Amendment protections against illegal search and seizure were violated before the statements were made, when police performed a traffic stop on a vehicle in which she was a passenger.

The detention morphed into an arrest. (The traffic stop) was not supported by a warrant or reasonable suspicion, according to the motion. Any evidence obtained from the illegal seizures and fruits therefrom should be suppressed.

A hearing on the motion to suppress will be held on April 27 at the federal courthouse in Waco.

Aguilar pleaded not guilty on July 14, 2020, to one count of conspiracy to tamper with evidence and two substantive counts of tampering with evidence. If convicted, she faces up to 20 years in federal prison for each count, according to the U.S. Attorneys Office, Western District of Texas.

So far, four trial dates most recently for March 8 have been set in her case. As of Thursday, no new trial date has been set.

Vanessa Guillen case

The case dates back 11 months. Guillen was reported missing on April 23, 2020.

Months later, on June 30, 2020, her remains were discovered by contractors working along the Leon River near Belton.

The criminal complaint alleges that Robinson murdered Guillen on April 22, 2020, with a hammer and that Aguilar helped him attempt to dispose of the body.

Robinson died on July 1, 2020, from a self-inflicted gunshot wound after he was confronted by Killeen police, officials said.

Aguilar initially lied to police to cover for Robinson, but later helped investigators by letting them record several phone conversations with him, according to the complaint.

Link:
Lawyer tries to throw out confession of Killeen woman charged in Vanessa Guillen case - The Killeen Daily Herald

The Supreme Court of the United States will hear oral arguments Monday in Cedar Point Nursery v. Hassid, a case about the union rights of farmworkers. It could impact the future of anti-discrimination law and much more.

The plaintiffs in the case are two California fruit producers who are suing over a 1975 state regulation that allows union organizers to have temporary access to an agricultural employers property during non-work hours. The laws rationale is to support workers right to unionize by allowing workers access to their workplace premises for after-hours meetings.

California law requires agricultural businesses to allow labor organizers onto their property three times a day for 120 days each year. The state contends that the regulation is necessary in the specific context of farming: farmworkers tend to be inaccessible to union organizers through other channels, and farm properties lack parking lots or public areas that other workers typically use for gathering. From Californias brief:

[Farmworkers] are highly migratory, moving to follow the harvest every few weeks or months; they often live in temporary housing, sometimes on their employers property; they frequently lack access to modern telecommunications technology; many speak only indigenous languages; and many are illiterate even in their native language. The Boards regulation authorizes a limited number of organizers to access the property of agricultural employers, for brief periods, during non-work hours, solely for the purpose of discussing organizing with employees, and only after notifying the Board and the employer.

Cedar Point Nursery and Fowler Packing Company sued to have the law invalidated, and their argument is based on land use. They say that the law allowing union organizers to meet with workers on their property is an easement that amounts to a per se taking something that would require compensation under the Fifth Amendment.

The after-hours union meetings dont disrupt the employers businesses, and the state of California isnt actually taking the property so to make a Fifth-Amendment argument, the plaintiffs needed to frame their loss as interference with a guarantee that is constitutionally protected. They chose the right to exclude unwanted persons. In other words, the California unionizing regulation deprives the owners of their inherent property right to kick people off their land.

A panel of the Ninth Circuit sided with California, as did the district court. The panel said that because the regulation didnot amount to a physical taking because it did notallow random members of the public to unpredictably traverse their property 24 hours a day, 365 days a year.The panel also ruled that the statute wasnt a regulatory taking because the only property right affected was the right to exclude and thats simply not enough.

Now, SCOTUS will decide whether the Fifth Amendment protects a right to exclude on par with other inherent property rights. If the justices side with the landowners and agree that the regulation amounts to a taking, it would mean the regulation cannot continue to operate without California paying compensation for its taking of the land. Thats novel in itself, but theres far more drama to be had outside the arena of farming and unionizing.

The fruit-producer plaintiffs argue that the right to exclude should take its rightful place among the most sacred of protected interests: fundamental rights.

When a right is fundamental, any law abridging that right triggers the highest level of constitutional scrutiny. Accordingly, a state regulation that interferes with a fundamental right must be narrowly tailored to achieve a compelling state interest in order to pass constitutional muster. In short, state regulations fail almost always fail this test, because the right being protected has been deemed basically untouchable. (Other fundamental rights include the right to marry, the right to privacy, freedom of religion, and freedom of assembly.)

In an email to Law&Crime,Pacific Legal Foundation attorney Wen Fa, who represents the petitioner fruit sellers in the litigation, explained his clients position in the case:

The Constitution prohibits government from requiring you to allow unwanted strangers into your property. The California regulation here is unconstitutional because it forces property owners to allow unwanted union activists onto their property, and violates the property owners fundamental right to exclude trespassers.

However, Aaron Tang, a constitutional law professor and former clerk to Justice Sonia Sotomayor, warned in a Washington Post piece Thursday that as devastating as a ruling for the plaintiffs would be in the context of unions, its real danger lies outside far outside the context of employment law.

Tang writes:

The disputethreatenshavoc just as great outside the union context. Considerstate lawsthat permit child protection inspectors to make unannounced home visits. Now suppose a homeowner suspected of abuse or neglect wants to keep the inspector out. Under the challengers logic, such individuals would have a Fifth Amendment right to do so unless the government paid the suspected abuser to access the property. The same problem would ensnarenursing home visitsandfood safety inspections.

Indeed, we have seen anti-discrimination ordinances challenged on the grounds that they interfere with First Amendment rights; a ruling that the right to exclude is fundamental would mean an entirely separate basis for bringing legal challenges, rooted in property law (a legal landscape far less politically-charged than religious freedom). The cases potential for broad impact is underscored by the more than 30 amicus briefs submitted to the Court by interested yet uninvolved parties.

As for the justices, their position in the case poses some intriguing questions. The Court decided a landmark union case in 2018; it ruled that an employee who is not a member of a union could not be forced to pay union fees for the collective bargaining done on his behalf. In that case, conservative justice Samuel Alitopenned a decision joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Neil Gorsuch. JusticesSotomayor, Elena Kagan, Ruth Bader Ginsburg, and Stephen Breyer dissented.

A conservative majority might similarly side against the pro-union ordinance in the Cedar Point litigation. However, if decided on Fifth Amendment grounds, such a decision threatens to create just the kind of chaos the conservative justices usually endeavor to avoid.

Oral arguments in the case are scheduled for at 10:00 a.m. on Monday, March 22, 2021.

[Photo by Samuel Corum/Getty Images]

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Excerpt from:
SCOTUS to Decide Whether There Is a Fundamental Right to Kick People Off Your Property - Law & Crime

Next Monday, the Supreme Court will hear oral argument in a labor rights case that could make it harder for the government to regulate businesses in a wide range of areas beyond workers rights.

The case,Cedar Point Nursey v. Hassid, centers on a 45-year-oldCalifornia regulationthat gives union organizers limited access to agricultural workplaces to talk to farmworkers during non-work hours. The 1975lawthat authorized this regulation was the product of adecade-long campaignin California for collective bargaining rights for agricultural workers, who are excluded from federal labor protections due to a Jim Crow era political compromise.

Thanks in part to this regulation, agricultural workers who are disproportionately people of color and immigrants have successfully bargained for substantial improvements in workplace safety, job protections, and benefits since 1975. But now, Cedar Point Nursery and another agriculture business argue that state-sanctioned labor organizing violates the Takings Clause of the Fifth Amendment, amounting to an unconstitutional government seizure of private property without compensation. And if the Court rules in their favor, it will not only damage the labor rights of California agricultural workers but also represent a broader doctrinal shift to limit the governments capacity to protect the public welfare.

In its interpretation of the Takings Clause, the Supreme Court distinguishes between per se takings and regulatory takings.Per se takingsoccur when the government permanently occupies private land or deprives the property owner of all economically beneficial use of the land, entitling the landowner to compensation.On the other hand, regulatory takings such as the legislatively sanctioned placement ofcable boxeson private property occur when the government limits property rights without totally depriving the landowner of the lands value; compensation is generally not awarded.

In the current case, the companiesarguethat the Court should reclassify per se takings to include regulations that allow for temporary entrances onto private property such as for meat and workplace safety inspections and rule the California labor law unconstitutional. Fordecades, the conservative legal movement has sought to invalidate government regulations on similar grounds, with limited success.

With a new 63 conservative majority, the Supreme Court made the unusual decision to hear the case, even though the businesses suffer no clear negative economic impact from the regulation.

The companies argument hearkens back to an era of constitutional interpretation when the Supreme Court routinely struck down economic regulations, such as minimum wage and child labor laws. It is referred to as the Lochnerera after a 1905casein which the Court invalidated a New York State law that imposed limits on bakers working hours, ruling that it violated liberty of contract, which the Court stashed in the Due Process Clause of the 14th Amendment.

The Supreme Courtabandonedthis doctrine in the late 1930s, but the increasingly conservative majority on todays Court has begun relying on different parts of the Constitution to achieve similar ends. If the Court reinterprets the Takings Clause inCedar Point Nursery, it will represent a star in an emergingconstellationof deregulatory doctrines that could hamstring even the most basic and longstanding government functions.

An additional star in this constellation involves the ConstitutionsCommerce Clause, which allows Congress to to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes. During theLochnerera, the Supreme Court had alimited viewof Congresss power to regulate interstate commerce. Starting in the late 1930s, however, the Court changed its tune, going so far as to hold that Congress could regulate the activity of afarmergrowing wheat for his own use because such activity, in the aggregate, would have a substantial effect on interstate commerce.

Recently, the Supreme Court has curtailed this power, ruling that Congresss interstate commerce authorities do not apply to the problems ofguns in schools,violence against women, andindividuals lacking health insurance coverage notwithstanding the facts that there is a $2.7 billionschool safety industry, thecostsof intimate partner abuse exceed $5.8 billion a year, and healthcare accounts fornearly 18 percentof American gross domestic product.

Similarly, a majority of current justices havesignaledinterestinrevivingthe nondelegation doctrine, which prohibits legislatures from delegating their powers to other bodies. The Supreme Court has not struck down an act of Congress on these grounds since 1935, when itinvalidatedparts of the New Deal, ruling that Congress had unconstitutionally delegated legislative power to the executive branch. If the Court moves in this direction again, it couldunderminethe ability of government agencies to protect consumers, workers, public health, and the environment.

Finally, the judiciary has begun, as Justice Kagannoted, weaponizing the First Amendment against democracy in recent years, striking downrestrictionson corporate election expenditures and finding that public sector works have aconstitutional rightto refuse to pay union dues, even though unions remain obligated to represent them. These developments are harbingers of a larger assault on regulatory efforts to check corporate power, with courts invalidating regulatory requirements such aspostersinforming workers of their rights andmandated disclosuresabout food as unconstitutional compelled speech.

The early 20th century also provides insight into some of the legal and political strategies that might emerge or gain traction if we find ourselves in a newLochnerera. When the Supreme Court posed an obstacle to democratically accountable government during this period, one strategy was to amend the Constitution:overrulinga Supreme Court decision, the 16th Amendment granted Congress authority to levy an income tax without apportioning it among the states on the basis of population. Less successful was a push toamendthe Constitution to overturn the Supreme Courtsrulingsstriking downchild labor laws.

The Supreme Court as an institution also became a target, most notably in President Franklin Roosevelts 1937 plan to expand the size of the Court. While his plan received strongoppositionand ultimately died, the Court abruptly changed course doctrinally after the proposal was announced. Many scholarssuggestthat the court-packing proposal was a factor in the Courts philosophical shift.

A third, and perhaps most enduring, strategy was the development by scholars and activists of newmethods of legal interpretation ones that advocated judicial deference to the political branches of government on social and economic policy, ultimately forming the foundation for a post-Lochnerjurisprudence.

As the Supreme Court considersCedar Point Nurseryand creates similar obstacles to democratic governance today, history suggests that the Court will face popular headwinds. Ultimately, the democratically responsive branches of government have to remain able to meet societal needs. Indeed, that is what the American peopleexpectanddemand.

Visit link:
The Supreme Court Case that Could Hamstring the Government's Ability to Regulate Businesses - brennancenter.org