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This morning the U.S. Court of Appeals for the D.C. Circuit,inNorth American Butterfly Association v. Wolf,revived the North American Butterfly Association's Fifth Amendment Due Process claim against the Department of Homeland Security for intruding upon a wildlife sanctuary along the U.S.-Mexico border. Dismissal of the NABA's other claims, however, was affirmed.

Judge Pillard wrote for the court's majority, joined by Judge Tatel. Judge Millett dissented. Judge Pillard's majority summarized the case as follows:

The National Butterfly Center, a 100-acre wildlife sanctuary and botanical garden owned by the nonprofit North American Butterfly Association, lies along the border between the United States and Mexico. Butterfly Center staff discovered in 2017 that a segment of the wall the U.S. Department of Homeland Security (DHS) plans to build on the border with Mexico would run through the Center's premises. After DHS confirmed that plan and asserted control over parts of the Center, the Butterfly Association sued.

The Association contends that DHS' presence on and use of parts of its property to prepare for and carry out construction of a border wall violate the Fourth and Fifth Amendments to the United States Constitution and two environmental statutes. The district court dismissed all claims, concluding the Association stated no viable constitutional claim and that section 102(c)(2)(A) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C, 110 Stat. 3009, 3009-546, as amended (IIRIRA) (codified at 8 U.S.C. 1103), strips jurisdiction over the statutory claims because the DHS Secretary waived application of environmental laws with respect to the construction of roads and physical barriers to be built at the Center. See N. Am. Butterfly Ass'n v. Nielsen, 368 F. Supp. 3d 1, 4 (D.D.C. 2019). We affirm dismissal of the Butterfly Association's statutory and Fourth Amendment claims but reverse dismissal of the Fifth Amendment claim and remand for further proceedingsconsistent with this opinion.

The broad waiver provisions of the IIRIRA clearly grant the DHS Secretary the authority to waive statutory obstacles to wall construction, so those aspects of the ruling are quite straightforward (assuming, of course, that there is no non-delegation problem with the breadth of the authority delegated to DHS with that provision). The NABA tried to get around the IIRIRA, but to no avail.

The IIRIRA does not, and could not, waive the Department's constitutional obligations. On the constitutional claims, the panel majority concluded the NABA "failed to state a Fourth Amendment claim of unreasonable seizure of property it acknowledges to be 'open fields,'" but did state "a procedural due process claim under the Fifth Amendment."

Here is a portion of Judge Pillard's discussion of the NABA's claim:

A procedural due process violation under the Fifth Amendment occurs when a government official deprives a person of property without appropriate procedural protectionsprotections that include, at minimum, the basic requirements of notice and an opportunity to be heard. . . .

The Butterfly Association alleges that CBP has asserted control over the National Butterfly Center by entering, maintaining a regular presence on, and taking charge of areas of the Center without notice to or consent from the Association. . . . The complaint alleges that CBP installed sensors at the Center to detect above ground activity, widened private roadways within the property, cut down trees, and threatened to destroy the Association's private gates and locks without warning. . . . Those property deprivations are unexcused, the complaint alleges, by any citation on DHS' part to a "lawful basis for their intrusion and destruction of" the Butterfly Center or any effort by DHS to "acquire an interest" in property admittedly not its own through any legally recognized "steps for doing so." . . .

The due process claim survives because the government has not established that its statutory authority to enter private property to patrol the border licenses all of the alleged intrusions at the Center. For example, DHS has not argued that the contractors it allegedly employed to widen a private road at the Center . . . are "immigration officers" entitled "to exercise the power to patrol the border conferred by [8 U.S.C. 1357(a)(3)]" by entering private property, 8 C.F.R. 287.5(b). Nor has it established that widening private roadways, installing sensors, or regularly stationing CBP agents on Center property . . . all fall within the statutory authorization for "patrolling the border," 8 C.F.R. 287.1(c), or justify entry onto private property under section 1357(a)(3). . . .

With allegations that government officials and contractors have entered the National Butterfly Center to alter private roadways and install sensors, and that CBP has maintained an enduring presence at the Center in connection with planned border-security infrastructure, the Butterfly Association plausibly pleads a deprivation of property without due process. At the pleading stage, we of course express no view as to whether DHS agents in fact behaved as the Butterfly Association has alleged or whether the Association's Fifth Amendment procedural due process claim will ultimately prevail.

Judge Millett dissented on the grounds that the court lacked jurisdiction to hear the case. Her dissent begins:

Cliffhangers may make for good storytelling, but they are no good for establishing appellate jurisdiction. Because the district court dismissed the complaint in part without prejudice and with express leave to amend and to seek emergency injunctive relief, and then did nothing more to conclude the case, we lack jurisdiction over this appeal.

The majority opinion offers a thoughtful theory of jurisdiction. The problem is that the Supreme Court has already answered this same jurisdictional question the opposite way. That decision binds this court. And the Supreme Court's disposition should come as no surprise. Statutory text, structure, and established principles of appellate jurisdiction foreclose our review because the district court's dismissal of the complaint was by its plain terms not final when entered by the court. The mere passage of time, without more, could not by itself make the judgment final. Neither could the litigants, through their actions or inaction, step into the shoes of the district court and singlehandedly cause the entry of a final judgment in the case. Without jurisdiction, we lack the power to address the merits. For that reason, I respectfully dissent.

One final editorial comment. In environmental policy debates it is common to present environmental conservation and the protection of private property rights as if they are in opposition to each other. Yet as this case shows, the constitutional protection of private property can also protect environmentally sensitive placesin this case, a wildlife refugefrom government excess. This is a point Ilya and I explored in our paper on the environmental consequences of unrestrained eminent domain authority, and I've examined in the context of species conservation and uncompensated takings.

Continue reading here:
Due Process for Butterflies in the D.C. Circuit - Reason

I walked into the house and set my things from school and work on my bed. I went into the kitchen and spoke with Grandpa and Autumn for a few moments. Then, I turned towards my place at the table and saw the envelope that was addressed to me. I looked at it. In the left-hand return address, I saw the Absentee Ballot Office. It had finally come!

I sat down at the table, took out my Cross pen, and slowly opened the envelope. This was the moment I had been waiting for. I remembered reading about President Lincoln in Team of Rivals and how he had sent out absentee ballots to members of the military during the Civil War. I thought of our founding mothers and fathers what they had to go through so that we might be free. I remembered working in the U.S. Capitol, walking those sacred halls, taking part in our government. As I sat down to vote for the first time for the office of President of the United States, I couldnt help but feel proud. I was finally having my voice counted. I was voting.

I filled in the little bubbles next to the candidates that I supported. I read the ballot measures, understood what they were saying and cast my vote. I looked at the judges and knew who I wanted to see retained and who I did not. I was informed.

We all know how divisive and nasty this election cycle has been. We all saw that first presidential debate, the whole world saw it. I have also seen the last four years.

I have learned about the spying of the Trump campaign and the impeachment proceedings. I have seen Speaker Pelosi declare the creation of a Commission on the Twenty-Fifth Amendment. I have seen the riots across the country. I have heard the chants. But, through it all, I have been able to look through the smoke and the smog to see the everyday American.

It was not on the news when we made a music video singing Lean on Me or we had the Lip-Syncing Challenge. It was not on the news when we came together as a community to support the seniors who graduated by holding a parade with Cordova on the sidewalks to support us. It didnt make the news when our churches prayed for our people and for our country. No, the America I know is not on the news every night. We are the America I know, and this gives me great hope.

William Deaton is a graduate of Cordova Jr./Sr. High School and is leader of the Cordova Precinct of the Republican Party.

The rest is here:
Commentary: First time voting offers hope - The cordova Times

To the editor:

Whether you like it or not, the government can forcibly take over companies at whim with the full force of the law behind it.

This power is called eminent domain, enshrined in the Fifth Amendment, which states nor shall private property be taken for public use without just compensation.

So President Trump can just take over TikTok and its $50 billion in U.S. operations market value, right? Not exactly. At least U.S. District Court judge Carl Nichols doesnt seem to think so, which is why he put an injunction on the TikTok ban that President Trump activated Sept. 20.

So whose side is the law actually on? Although it is clear cut on paper, in practice, this seems to be a gray area. There are precedents for the federal government undoing done deals and forcing foreign companies to sell off their shares. President George H.W. Bush did that with the China National Aero-Technology Import & Export Corp., in 1990, and President Barack Obama did that with Ralls Corp., in 2012.

Both were Chinese companies that were considered national security threats. But neither are a parallel to TikTok, which has 6,500 employees, nearly 2 billion customers, and a mammoth $75 billion global market value. Bringing TikTok down would mean bringing all those people down with it.

Secondly, social media apps arent exactly physical shops the government can bulldoze to smithereens. The website will still be there after the ban. People in the United States just wouldnt be able to use it which constitutes a gross violation of peoples First Amendment rights, which courts wouldnt allow.

At best, this is what might happen. TikTok might be forced to close its physical offices in the United States, but the website and the app will continue to be in use over here.

All things said, the fact remains that on April 10, 2018, TikTok China announced that it would give preference to Chinese Communist Party members in its hiring, and increase its censors from 6,000 to 10,000 employees.

How can such foreign influence be counteracted here in the United States legally? The easy answer is to come up with better local companies, and the onus for that is tech startups.

But for the lack of proper legislation, entrepreneurs cant even find out if their investment is legal or not until they have already invested their money.

This is not a good environment for business as it detracts investors from putting money into ventures, given their legal risks and uncertainty.

What the government can do is come up with more robust blanket legislation, instead of resorting to whimsical executive orders on a case-by-case basis.

TikTok is not alone. Gay dating app Grindr and messaging app WeChat also have been subjected to such bans. To avoid more debacles like this in the future, lawmakers should look to formulating air-tight legislation so that every time such a thing happens, they dont have to rely on presidential overreach and the long judicial review that follows.

S.M. Salam

The rest is here:
Is the time up for TikTok? - The Riverdale Press

Three months after Flagler County government warned that a $25 million dune-rebuilding project for 2.6 miles of shore in Flagler Beach was in jeopardy because of just 13 property owners refusing to sign easements, the project is still hung up, with hold-outs down to 11. Some 128 easements have been signed. Easements dont alter a property owners rights. They merely allow the U.S. Army Corps of Engineers to dump sand on the property.

The county is warning that the longer the Corps waits to bid out the projectwhich should have been near completion by now, in the Corps original estimatethe greater the chance that the money will be lost and the project scrapped.

But the county is muscling its way to an eventual start date anyway. It feels confident that the County Commissions formalizing reassurances to property owners that their rights will remain intact will convince the majority of the hold-outs to sign. On Oct. 5 the commission passed a resolution that does what those owners had asked for: put in explicit writing, as a memorialized government action, that their rights stay whole.

We are not altering any of the rights of ownership except the right of Flagler County through its contractors, through Army Corps funding, to go in and restore the dune per engineered specifications, per landscape specifications, County Attorney Al Hadeed explained, summarizing the resolution. And to maintain that dune and repair that dune and particularly to perform significant repairs in the event of a presidentially declared storm. So therefore, they do not give up their right to prevent the public from crossing over their property from A1A onto the beach and vice versa. People cannot traverse across their property, as some had feared or raised as a possibility, because the language wasnt that specific.

Separately from the county, a grass-roots effort led by Flagler Beach residents Carla Cline and Craig Atack raised $60,000 in a GoFundMe effort to convince the hold-outs to sign in exchange for roughly $15,000 each. That, combined with the countys resolution, has the county bullish on a breakthrough.

We are finalizing details for these outstanding easements as we speak, Hadeed said this morning, and with a measurable change brought about by the codification of the assurances for the benefit of all property owners.

It appears that most property owners may sign easements soon. But two may not, requiring the second approach the county is taking.

Its the nuclear option in disputes between government and property owners: eminent domainthe Fifth Amendment right of a government to take ownership of private property for public use in exchange for fair payment. Its laborious, heavy handed and can be expensive, requiring litigation. But it also almost guarantees that the government initiating the proceeding will get the land in dispute, and that the property owner will lose all rights to it.

Thats the step Flagler County government said it was willing to initiate in early September against at least one of the property owners, Cynthia Dangiolini, who owns parcels in the South 24th and South 25th Street blocks. Unlike many of the other hold-outs, Dangiolini, a resident of Flagler Beach, is not represented by an attorney. She has been reclusive and shown little interest in cooperating with the county. When the commission cleared the way for eminent domain in early September, the county administration hoped it would send a message to Dangiolini, convincing her to sign or else lose her property altogether.

Dangiolini contacted the countys engineering department, which prepared a document for her showing where the dune will be, where the erosion control line will be and so on. So were hopeful that that is an indication that the individual will act in a way so that we do not have to continue to pursue eminent domain, Hadeed said, where she as a property owner runs the real risk of not having ownership of the dune remnants. But as Hadeed updated the Flagler Beach City Commission last week, he said eminent domain may be necessary with Dangiolini and one other owner.

That process would take three months. How much it will cost the county beyond legal fees is unclear. The procedure that were using irrevocably commits us to paying whatever price is determined by the judge, Hadeed said. Its an irrevocable choice. So we will get the property by initiating these proceedings. Theres no question about that. That wont be blocked.

It doesnt change the Army Corps timeline. They told us were not going to bid it until you get those two remnants in the project area, and with that, theyll accelerate completing their construction plans and putting them out to bid, Hadeed said. I cant control that end of it.

There were 140 easements to start with along the 2.6 miles of beach. The Corps will rebuild dunes reconstructed with upwards of 300,000 cubic yards of sand dredged from a borrow pit offshore. The wall of dunes is expected to provide considerable protection for State Road A1A, prolonging at least for a while the life of the road and the homes and businesses along its west side.

The Army Corps project is only the first phase of a projected 50-year project that, in todays dollars, will cost $100 million, with the federal government picking up only half that cost. The other half is Flaglers responsibilitywhether through local dollars or other grants. The county has secured money only for the first phase. Subsequent renourishment phases are expected to happen every decade or so. But if a major storm were to demolish any part of the beach, the federal government would pick up the entire bill repair costs. Thats one of the aspects of the project that convinced local officials to sign on. On the other hand, with seas inexorably rising, the 50-year timeline of the project may be overly optimistic. A1A may not survive the oceans onslaught that long.

The federal project is only a small part of Flagler County governments far more ambitious plan to do likewise on all 18 miles of county shoreline.

The federal project is the lynchpin for everything, Hadeed said. For everything were going to do on the beach, the whole 18 miles. Its only to the Army Corps that we got the offshore sand site. If somehow this project cant be done, we lose that offshore sand site, were not going to be able to do the non-federal, the rest of Flagler Beach, were not going to be able to use that sand source forwhat is itthe other 12 miles or so of the Flagler County shoreline. This is a lynchpin project.

The county has some money to do likewise on the miles of beach beyond the Army Corps project (roughly five miles in Flagler Beach is paid for) and FEMA funding is pending for the northern 12 miles. No dollar numbers have been finalized as of this moment, Hadeed said. (An earlier version of this article had incorrectly stated that the county had none of the funds necessary to accomplish dune reconstruction beyond the Army Corps project.) The county is so strapped for money that it is considering a new sales surtax to generate new dollars.

Original post:
County Mixes Reassurances and Threat of Eminent Domain to Convince 11 Hold-Outs to Sign Off on Flagler Beach Dunes Project - FlaglerLive.com

A viral video claims that one can use the Fifth Amendment to get out of completing the census. This is false.

Is a viral video claiming that the Fifth Amendment can be used to get out of doing the Census legit?

No. The Fifth Amendment protects people from incriminating themselves. However, the information provided in a census form would not incriminate someone. For that reason, the Fifth Amendment doesn't apply, according to legal experts.

Peter J. Smith, The George Washington University Law School

A viral video, published in 2010, has popped up yet again as people fill out their 2020 census forms. In the video, the narrator claims that people can choose not to answer questions on the census, simply by writing Fifth Amendment instead.

"As you can see here," the narrator said. "I've actually written in Fifth Amendment as each answer."

The Verify team turned to legal expert Peter J. Smith, a law professor at The George Washington University, to get his response to this viral video.

"I think the answer is no," Smith said.

Smith pointed out that the Fifth Amendment protects people from self incriminating, something which doesn't relate to the Census questions.

"Writing Fifth Amendment isn't some sort of magic solution," he said. "That would avoid having to answer questions that the government calls mandatory."

Michael C. Cook Sr. from the Census Bureau agreed, adding that filling out the census is important because it can decide voting power and funding for the next decade.

"I'm talking about funding for schools," he said. "Funding for roads, funding for health care."

For more information on the census, visit here.

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VERIFY: No, the Fifth Amendment can't be used to opt-out of the census - KENS5.com