Two Core Constitutional Holdings (And One Smaller)
The Market Ticker - Commentary on The Capital Markets
Login or register to improve your experience
Main Navigation
Sarah's Resources You Should See
Full-Text Search & Archives
Leverage, the book
Legal Disclaimer

The content on this site is provided without any warranty, express or implied. All opinions expressed on this site are those of the author and may contain errors or omissions. For investment, legal or other professional advice specific to your situation contact a licensed professional in your jurisdiction.


Actions you undertake as a consequence of any analysis, opinion or advertisement on this site are your sole responsibility; author(s) may have positions in securities or firms mentioned and have no duty to disclose same.

The Market Ticker content may be sent unmodified to lawmakers via print or electronic means or excerpted online for non-commercial purposes provided full attribution is given and the original article source is linked to. Please contact Karl Denninger for reprint permission in other media, to republish full articles, or for any commercial use (which includes any site where advertising is displayed.)

Submissions or tips on matters of economic or political interest may be sent "over the transom" to The Editor at any time. To be considered for publication your submission must be complete (NOT a "pitch"; those get you blocked as a spammer), include full and correct contact information and be related to an economic or political matter of the day. All submissions become the property of The Market Ticker.

Considering sending spam? Read this first.

2024-07-02 07:00 by Karl Denninger
in Federal Government , 320 references Ignore this thread
Two Core Constitutional Holdings (And One Smaller)
[Comments enabled]

First one to cause all manner of complaint is on when the Statute of Limitations runs:

Held: An APA claim does not accrue for purposes of §2401(a)’s 6-year statute of limitations until the plaintiff is injured by final agency action. Pp. 4–23.

Perfectly logical and reasonable considering that the Anti-Injunction Act similarly constrains filing before you get hosed.  In other words no, agencies and other entities of the government don't get to craft things so you can't file at all.  If you can't file a case for injunctive relief before you're injured then the Statute of Limitations may not start to run until that injury takes place.

There are plenty of leftists screaming about this but the Constitutional principle is clear: If Congress constrains you from suing to obtain relief when a law or rule is passed until you get actually screwed then the clock on the Statute of Limitations does not start to run until you get actually screwed.

Nothing else would be logical at all and to hold otherwise would be to allow the government to craft a regulatory structure and then deliberately not bring enforcement until the Statute of Limitations had run, then hose you with the clear intent to deny you any capacity for lawful relief.  Of course the three left-side Justices all argued that its perfectly fine for agencies to deliberately act in such a fashion as to deny any lawful means of relief.  Fortunately they are in the minority.

Now on to the Social Media First Amendment case:

In 2021, Florida and Texas enacted statutes regulating large social-media companies and other internet platforms. The States’ laws differ in the entities they cover and the activities they limit. But both curtail the platforms’ capacity to engage in content moderation—to filter, prioritize, and label the varied third-party messages, videos, and other content their users wish to post. Both laws also include individualized explanation provisions, requiring a platform to give reasons to a user if it removes or alters her posts.

One key item is the requirement in both laws that a platform identify exactly what it objects to.  As things stand now this is not the case -- I and others have articles flagged as "dangerous or derogatory", for example, but no indication of what the platform considers to be that.  It could be a literal single word that caused them to do this (and thus very easy for the person to edit or remove it, thereby voiding the complaint) but there is no obligation for the site owner to do that, and typically they refuse to do it even under challenge.

Held: The judgments are vacated, and the cases are remanded, because neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the facial First Amendment challenges to Florida and Texas laws regulating large internet platforms. Pp. 9–31. 

Well, let's look at this.  NetChoice made a decision to go after this on a facial challenge, in that those are very difficult to win because they must show that a subtantial number of the applications are unconstitutional, not that one, or a few are.  This is difficult -- but that was the decision they made, and they reason they made it was that they weren't interested in a narrow decision that applied only to their speech and conduct but rather to the policy as a whole.

The problem is that the courts never reached the proper set of analysis.  For example, as the judgement holds, they never looked at what is the scope of the law?  Does it, for example, permit Facebook to go into someone's private email box or X's "DMs" and police them either retrospectively or prospectively, taking enforcement action against the account holder, or is it limited to "public" postings.  If the latter, where is the line if, for example, the posting is in a "members-only" group that both sites have (e.g. "Subscribers" or on Facebook, "groups") or in the general, "everyone can see it" timeline areas?

Then the question, once you've looked at the decided the scope, is to then analyze whether the platform's editorial discretion, which they do have in every case to some degree (1) exists in that instance and (2) is impacted.

The Court has ruled on these things before; Miami Herald is one case they cite of several I remember.  Specifically, the question turns on whether the party being sued engages in its own expression and, if so, whether barring their discretion would alter or disrupt that expression.  This gets interesting in the case of social media in that it runs up against their claims as to who and what they are, and that was not disposed of.  A site that claims to be "a free speech forum" or a "town square", either explicitly or via their own labeling internally or otherwise has a problem in that the common definition of such controls and thus they are disavowing their own expression in favor of that which their users wish to put forward.  Having done that they would likely lose this analysis but it was never explored and decided.

The judgement was voided and remanded because Texas, in particular, was unabashed as to its intent with the law they passed and did not seek to separate these functions.  That was a decision they made when they crafted the legislation and as such they stepped over the line.  They could have chosen otherwise and likely had a survival bias at the court, and may come back for another bite at it -- and in my opinion should.

But they have to clear that threshold rather than simply stomp on the First Amendment.

The last is of course Trump's Immunity Claim.

From the oral argument that I listened to this is basically what I expected them to do and it once again fits squarely within precedent and reason.

Unsurprisingly the ruling finds that in part the indictment was Constitutionally impermissible and void; I'll add that it also, although unstated directly, colors between the lines and alleges deliberate malfeasance by the current Justice Department.  Specifically:

The Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693. And the President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750. The indictment’s allegations that the requested investigations were shams or proposed for an improper purpose do not divest the President of exclusive authority over the  investigative and prosecutorial functions of the Justice Department and its officials. Because the President cannot be prosecuted for conduct within his exclusive constitutional authority, Trump is absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. Pp. 19–21.

Why do I say that the Supremes basically indicted the DOJ for abuse of power and knowing misconduct?  That paragraph makes clear that the DOJ knows damn well that the Executive has an unrestricted right of discussion and debate with Executive Branch officials including the right to fire them.

Congress can impeach a President for this but the DOJ cannot prosecute as such is clearly within the realm of the President's exclusive authority and right to control the Executive Branch.  No law can impair that and no criminal penalty can attach to it.

Similarly the same applies to Trump's discussions with his VP; as the head of the Executive he is absolutely privileged in such discussions.  However, this does not necessarily extend to the acts but he does have presumptive immunity.  In other words the DOJ would have to show actual, knowing misconduct, that is official corruption, to pierce that immunity.  This, by the way, is exactly the same standard under which Obama, who droned civilians "by accident" is immune.  In order to prosecute Obama for that a finding would have to pass judicial muster (in open court) that the act was officially corrupt -- for example, that he knowingly fired on uninvolved civilians.  He is presumptively immune as the CiC from an act taken with reasonable expectation that it falls within his powers as Commander in Chief to direct the armed forces, but that immunity is not absolute as a showing of actual corruption would pierce it.

As to the actions to "find votes" (as alleged) the court did not issue a fact-based finding on whether those were official acts or not.  The acts of a candidate for office have no immunity; that person is a private citizen in that regard.  But to the extent that the acts were of a character of protecting the franchise and administering justice, which is an Executive function, they too are privileged.  Thus the remand to make that determination.

Likewise whether Trump's January 6th speech constitutes protected official conduct and if in part but not in other part which parts are in which bucket must pass a fact-based analysis which the Justice Department summarily decided on its own.  It is not empowered to do that unilaterally; again, the case is remanded for proceedings and said fact-based analysis in open court on that point.

(e) This case poses a question of lasting significance: When may a former President be prosecuted for official acts taken during his Presidency? In answering that question, unlike the political branches and the public at large, the Court cannot afford to fixate exclusively, or even primarily, on present exigencies. Enduring separation of powers principles guide our decision in this case. The President enjoys no immunity for his unofficial acts, and not everything the President does is official. The President is not above the law. But under our system of separated powers, the President may not be prosecuted for exercising his core constitutional powers, and he is entitled to at least presumptive immunity from prosecution for his official acts. That immunity applies equally to all occupants of the Oval Office. Pp. 41–43.

91 F. 4th 1173, vacated and remanded.

Yep, and IMHO properly so.

BTW Sotomayor's "dissent" in this case?  She's demonstrably unfit and should be impeached as she either can't read or is prone to histrionics unfitting an Associate Justice or for that matter any judge, on any court.  She claims that malice murder is immune under this decision when it is clearly not.  Under her standard Biden could and indeed must, right here and now, be personally prosecuted and upon conviction executed as an accessory before the fact for his willful blindness with regard to the El Salvador illegal immigrant, wanted in his home nation for murder, that his Executive Department released and who went on to, it is alleged, murder an American and who is now in jail awaiting trial on that charge as it was an official act from his office that led to that man's release into the United States despite him being wanted for murder in his home nation, an inquiry that DHS deliberately, as a matter of Executive policy, did not conduct and act upon.