Congress as the Guardian of Individual Rights: A Conversation with Louis Fisher

congress-rightsThis episode of Liberty Law Talk is a conversation with congressional scholar Louis Fisher on his recent book, Congress: Protecting Individual Rights. Fisher argues that contrary to popular belief, Congress, not the Court, has been the foremost champion in protecting the rights of racial minorities, children, Native Americans, and religious liberties.

Immigration Law, Metaphysics, and the APA

Wooden Gavel with book over white

Yesterday, the Supreme Court heard extended oral argument in the litigation over the administration’s Deferred Action for Parental Accountability “DAPA”  program, which would grant “deferred action” and along, with it, work authorization and other government benefits to over four million unauthorized aliens (chiefly, parents of U.S. citizens). Most of the argument—frustrating, over long stretches—focused on two issues: the plaintiff-states’ “standing” (constitutional and statutory) to litigate the case; and DAPA’s grant of “lawful presence” to millions of immigrants.

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Endgame of American Culture

United States of America concept with statue of liberty in front of the New York cityscape at night

When America’s most sophisticated social scientist warns that America is on its last legs, it is time to start paying attention. Charles Murray has come to the conclusion that Donald Trump is “an expression of the legitimate anger that many Americans feel” about the state of the country.

The Trump phenomenon was to be predicted, writes Murray in a recent essay. “It is the endgame of a process that has been going on for a half-century: America’s divestment of its historic national identity.”

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Scientifically Undermining the Rule of Law

brain network

Before he turned murderously religious, one of the Belgian bombers had been a bank robber. He fired a Kalashnikov at the police when they interrupted him in an attempted robbery, for which crime, or combination of crimes, he received a sentence of nine years’ imprisonment. Of those nine years he served only four, being conditionally discharged. The principal condition was that he had to attend a probation office once a month: about as much use, one might have supposed, as an igloo in the tropics.

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Make Elections More Taxing

This year April 18 is the end of the ordinary window for paying income taxes to federal and state governments. Paying income taxes may be a necessary part of civic life, but that payment should be timed and structured to promote government accountability. Unfortunately, but not surprisingly, our politicians have made it difficult for citizens to be conscious of how much they are paying for government services at the time when it would most count—election day.

First, the ordinary window for tax payments—from January 1 to April 15—makes the act of paying taxes a distant memory by the time the first Tuesday in November rolls around.  It does not take a behavioral economist to recognize that paying taxes closer to the election would make voters focus on whether they are getting value for money from government.  Thus, the ordinary payment window should be changed to the month before the November election.

Second, as a result of withholding, most voters get a refund from the government when they file their taxes.  This process also makes them less conscious of the tax burden, since most do not actually write a check to the government, but instead get a check from the government. Thus, withholding should be modified to make citizens feel the effect of taxes.

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Misfiring on the Roberts Court


Stephen E. Gottlieb purports to criticize Chief Justice John Roberts’ leadership of the Supreme Court for failing faithfully to interpret the Constitution to protect democracy. What Unfit for Democracy: The Roberts Court and the Breakdown of American Politics really shows is that Gottlieb, a law professor at Albany Law School, disagrees with some of the Roberts Court’s decisions.

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The Chicago Police, Police Wrongdoing, and the Ferguson Effect

I regularly read Powerline and I like a lot of what they write, but this post by Paul Mirengoff is really problematic.  He writes that “after the release of the video showing Laquan McDonald being shot and killed by the police . . . arrests have declined and gun violence has spiked.”  He calls this the Ferguson effect, suggesting that it is the result of “reducing police interaction with the public.”  Let me discuss some of the problems with this post.

First, it is outrageous to compare this to Ferguson.  In Ferguson, officer Darren Wilson was shown to have acted properly.  In Chicago, officer Jason Van Dyke’s killing of Laquan McDonald was a vicious murder, shown on video.  The police department and the Mayor’s office covered up the video as long as possible and appear to have engaged in other wrongdoing such as eliminating security footage from a nearby Burger King.  I could go on, but see my earlier posts.  Moreover, there is strong evidence that the Chicago police department is rife with corruption, as 80 percent of squad car video cams have been disabled by the police officers.  “Chicago Police Department officers stashed microphones in their squad car glove boxes. They pulled out batteries. Microphone antennas got busted or went missing. And sometimes, dashcam systems didn’t have any microphones at all.”

As Randy Balko states, “This isn’t a few bad apples. It’s 80 percent. Why haven’t these officers been prosecuted?”

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Deferred Prosecution: Meet the Fokkers

Some months ago, I wrote about “deferred prosecution agreements” (DPA’s”). Initially intended to deal with low-level drug offenders, DPAs have become a principal means of prosecuting corporations. The way it works: the government files criminal charges but agrees to drop them if the defendant undertakes remedial action (including fines) and demonstrates good conduct over time. The deal requires “approval of the court” because without it, the deferment would violate the Speedy Trial Act. 18 U.S.C. § 3161(h)(2).

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Justice Thomas: Mr. Republican

(Photo by David Hume Kennerly/Getty Images)

Once again Justice Clarence Thomas has given originalist jurisprudence its most robust defense through his revival of an obscure part of the U.S. Constitution.

In 2010, in McDonald v. Chicago, he had protected the right to individual gun ownership by invoking the Fourteenth Amendment’s Privileges or Immunities Clause. Now he has concurred in the decision in Evenwel v. Abbott (2016), which unanimously affirms the state of Texas’ use of population (rather than being required to use eligible voters) as the basis for devising electoral districts.

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Searching for Loyalty and Prudence


In his provocative and knowledgeable new book, Other People’s Money: The Real Business of Finance, John Kay considers the complex ways that financial systems operate in between the real savers, on one hand, and the real investments, on the other.

He observes disapprovingly how very large contemporary financial systems have become, how much talent they absorb, how big are the bonuses they pay, how they often have lost sight of their basic fiduciary duty, and especially that “volumes in trading in financial markets have reached absurd levels.”

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