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While Democrats Debate Strategy For Fighting Trump’s Supreme Court Pick, The White House Is Gearing Up For A Fight

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WASHINGTON, July 2, 2018 — Democrats are still testing out arguments against allowing President Donald Trump to fill the upcoming vacancy on the Supreme Court created by Justice Anthony Kennedy’s impending retirement, but the White House is putting a team together to mount a full-court press in defense of whomever the president chooses.

Kennedy announced his intent to retire later this month in a letter to Trump, who said over the weekend that he’ll announce his pick on July 9.

According to White House Press Secretary Sarah Sanders, White House Counsel Donald McGahn is assembling a team drawn from throughout the Executive Office of the President and the Department of Justice to help Trump make a selection, and then to marshal resources to defend that selection.

“The White House Counsel’s office is overseeing a team of White House and Administration personnel from offices within the EEOB,” Sanders said in a statement Monday.

“Teams of attorneys from the White House Counsel’s Office and Department of Justice are working to ensure the President has all the information he needs to choose his nominee. The Department of Justice is fully engaged to support the nomination and confirmation efforts.”

McGahn will reprise the role he played during the confirmation process for Justice Neil Gorsuch by overseeing both the selection and confirmation process.

Joining him will be longtime Trump communications aide Raj Shah, who will take a leave of absence from his role as Principal Deputy Press Secretary to “oversee communications, strategy and messaging coordination with Capitol Hill allies” on a full-time basis, and Justin Clark, who heads the White House Office of Public Liason.

Clark will head up the White House’s outreach to “key constituencies, coalitions, grassroots organizations and allies,” including the outside groups that have already been blanketing cable news channels with advertisements attacking Democrats for opposing Trump’s pick.

Both the Trump administration and Democrats in Congress are hoping to use the coming confirmation battle to galvanize their respective bases of support and get out the vote for November’s midterm election.

So far, some Democrats have argued that Trump should not be able to fill the vacancy until after the midterm elections based on what they are calling the “McConnell rule,” after the logic used by Senate Majority Leader Mitch McConnell, R-Ky., to justify not holding hearings for D.C. Circuit Judge Merrick Garland, who then-President Barack Obama nominated in 2016 to replace the late Justice Antonin Scalia.

At the time, McConnell said voters should be able to decide who would nominate the next Supreme Court justice, but also suggested that he’d block Hillary Clinton, the 2016 Democratic nominee, from picking anyone to fill the seat.

Other Democrats, most notably Sen. Cory Booker, D-N.J., have suggested that Trump should not be able to nominate anyone to the Supreme Court until Special Counsel Robert Mueller has finished his investigation into whether the Trump campaign cooperated with the Russian government’s efforts to interfere in the 2016 election.

However unless Democrats can convince one or more Republicans to break with Trump, they have no realistic chance of blocking whomever Trump chooses from being confirmed to the highest court in the land. Senate Republicans, led by Majority Leader Mitch McConnell, R-Ky.,  made a filibuster impossible by changing Senate rules last year to ensure Gorsuch’s confirmation.

 

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Andrew Feinberg is the Managing Editor and lead Washington Correspondent for Breakfast Media, and covers the White House, Capitol Hill, courts and regulatory agencies for BeltwayBreakfast and BroadbandBreakfast.com. He has written about policy and politics in the nation's capital since 2007.

Courts

‘This Is All Bogus, And It’s To Take Control Over The Judiciary’ — A Veteran Administrative Law Judge Slams Trump’s Order Making ALJs Political Appointees

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WASHINGTON, July 11, 2018 — A veteran Administrative Law Judge says President Trump’s new executive order governing the hiring of ALJs could mean the end for many Americans’ right to have disputes against the government heard by a neutral arbiter.

The July 10 order, entitled “Excepting Administrative Law Judges From The Competitive Service,” puts an end to the system of selecting ALJs by their performance on a competitive examination and exempts them from the civil service protections to which they’ve long been entitled.

The White House says the order is necessary because of a Supreme Court ruling, Lucia v. Securities and Exchange Commission, which rejected a challenge to an Administrative Law Judge’s decision by finding them to be “inferior officers” under the Appointments Clause of the constitution.

White House says the order is necessary but a longtime Administrative Law Judge says there was no reason for it

A White House official told BeltwayBreakfast that any new judges hired under the new order would have statutory protections under the Administrative Procedure Act, the order specifically exempts them from civil service regulations.

But in an interview with BeltwayBreakfast, the veteran Administrative Law Judge, who hears cases at the Social Security Administration and has been active in the Association of Administrative Law Judges — the federal ALJ union — for many years, called the order a completely unnecessary assault on Americans’ right to due process.

BeltwayBreakfast is not naming the judge at his or her request because he or she was not speaking on behalf of the ALJ union and because he or she fears the Trump administration would retaliate against him or her for speaking to the press.

“[Trump] didn’t have to do any of this. This is all bogus, and it’s to take control over the judiciary,” said the judge. “This is a total assault on due process for the American people.”

The Lucia decision did not require any change in the way Administrative Law Judges are hired, the judge said, because it affirmed the source of current judges’ authority under the constitution.

In that case, the court ruled 7-2 against the petitioner, Raymond Lucia, who’d argued that the Securities and Exchange Commission judge who’d found him to have violated the law was not an “Officer of the United States.”

Ending competitive selection means a return to the spoils system

The judge told BeltwayBreakfast that nothing in that decision requires an end to the competitive selection process that has been used for many, many years, but suggested the White House is ending it anyway in order to reward their friends and rig the system.

“What it really means…is that the administration can hire 1000 attorneys with no experience, make them judges, and take over the process,” the judge said. “If you eliminate merit-selected judges it becomes a patronage game.”

The judge explained that if you can appoint a person under the Appointment Clause the person who is appointed can be removed just as easily.

“This is really about removal,” the judge said. “The new ones who are being appointed as ‘excepted ALJs’ have no protections whatsoever. I’m sure they’ll be hired as managers, which means they can’t unionize. I’m sure they’ll be employees-at-will, and if they don’t what the appointer tells them to do, they’ll be fired.”

While the White House has pointed to the current force of merit-selected judges — who cannot be fired without cause — as a reason that Americans should not be concerned, the longtime ALJ union official said the Trump administration doesn’t need to fire them to rig the process.

The Trump administration’s ‘endgame’ could be court packing to crowd out existing judges

“Here’s what I posit: They’ll hire 1,000 new judges, all managers, given a quota and told what to do. They’ll be given all the cases, as many as they can to reduce the backlog of 1 million cases. And they’ll RIF [Reduction In Force] us. They lay us off. They’re not firing us, they’re not removing us, but they’re saying ‘we don’t have any work for you,” said the judge. “I don’t want to put ideas into anybody’s head, but guess what? That’s the endgame.”

What’s more, the veteran judge suggested that it’s no coincidence that this new order was signed one day after a May executive order, which severely limits federal employee unions’ ability to represent their members during working hours or with government resources, went into effect.

“Don’t you think it’s interesting that on Monday, we were officially muzzled, and on Tuesday they drop this executive order knowing we can’t fight it?” the judge asked.

The longtime ALJ explained that Americans should be frightened at the prospect of not being able to have disputes heard by independent arbiters. Even people who aren’t pro-union “need to start waking up,” the judge said, calling the order “a frightening, frightening development.”

‘Give grandma her day in court’

Even Republicans in Congress have to understand, this is really dangerous, dangerous stuff,” the judge said, noting that Securities and Exchange Commission judges who rule against Wall Street could be removed, as well as Social Security Administration judges who rule in favor of too many Americans.

Deep red state Republican-leaning constituencies could also lose out with the loss of independent Administrative Law Judges, the judge explained, noting that Department of Labor has an ALJ staff to hear “black lung cases,” and they could lose their jobs under the new rules if they rule against coal companies.

“Does [civil service protection] benefit us as federal employees? Yes it does. But the real issue is due process for the American people. It’s not about us and your hatred of federal employees,” the judge said.

“There are people behind these jobs that help you, the American public. I’m here to protect your due process, I’m here to give your grandmother’s disability case a fair shake — give grandma her day in court.”

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Supreme Court Extends Fourth Amendment Protections To Include Mobile Phone Carrier Location Data

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Chief Justice Roberts with Associate Justice Sonya Sotomayor

WASHINGTON, June 22, 2018 — People living, working, or traveling in the United States gained a bit more privacy Friday after the Supreme Court found that police must obtain a search warrant before asking wireless carriers to turn over some types records which reveal a mobile phone’s location history.

In the case of Carpenter v. Sessions, a five-justice majority found that prosecutors should have obtained a judge’s consent before asking two wireless carriers to turn over petitioner Timothy Carpenter’s cellular site location information.

The information included 12,898 location points documenting his movements over the course of 127 days. Instead of using the procedures laid out under the Stored Communications Act – which require a lower burden of proof – the high court required the probable cause standard needed for a search warrant.

Writing for himself and the four justices considered to be the court’s liberal wing — Ruth Bader Ginsberg, Stephen Breyer, Sonya Sotomayor and Elena Kagen, Chief Justice John Roberts opined that the “unique nature” of CSLI differentiates it from other kinds of stored data held by a phone company.

That made it subject to the protections of the Fourth Amendment.

A higher expectation of privacy

Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search,” he wrote.

Citing United States v. Jones., in which the court ruled that a search warrant is needed to place a GPS tracking device on a suspect’s vehicle, Roberts said Carpenter had a reasonable expectation of privacy when it came to records of his movements, and allowing the government to access those records without a warrant “contravenes that expectation” despite the fact that his phone carrier — not the police — collected the information for commercial purposes.

Roberts also noted that the collection of a person’s mobile phone location records presents “even greater privacy concerns” than tracking a vehicle because people “compulsively carry cell phones with them all the time.”

“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales,” he explained, comparing the use of phone location records to having GPS ankle monitor which can go back in time attached to any person it wishes to track.

Conservative dissenters found fault with Roberts’ reasoning

Dissenting justices, however, found fault with the majority’s reasoning for a number of reasons.

Justice Anthony Kennedy, a Reagan appointee who is often a deciding swing vote in 5-4 decisions, admonished the majority for an “unnecessary and incorrect” departure from the precedents and principles of the Fourth Amendment that would hinder law enforcement with “undue restrictions” on the ability to investigate violent crimes.

Writing for himself and Justices Clarence Thomas and Samuel Alito, Kennedy explained that cell site location were no different from any other records which are subject to subpoena, adding that mobile phone service subscribers should have no expectation of privacy in them because of their imprecise nature.

But the opinion was also joined by the court’s newest member, Justice Neil Gorsuch, who argued that protecting Americans’ privacy would be easier if the court deep-sixed the current patchwork of case law.

Instead of continuing with an array of laws governing the government’s ability to track people with GPS devicesor by accessing records like CSLI, Gorsuch argued in favor of an approach guided by the specific protections laid out in the Fourth Amendment.

Civil libertarians pleased with the outcome

Despite the court’s clear divisions over this particular case, civil libertarians and privacy advocates hailed the ruling as a victory for Americans’ right to privacy while recognizing the need to update laws governing law enforcement access to personal information in the digital age.

American Civil Liberties Union attorney Nathan Freed Wessler, who represented Carpenter before the Supreme Court, called the decision “a groundbreaking victory for Americans’ privacy rights in the digital age.”

“The government can no longer claim that the mere act of using technology eliminates the Fourth Amendment’s protections. Today’s decision rightly recognizes the need to protect the highly sensitive location data from our cell phones, but it also provides a path forward for safeguarding other sensitive digital information in future cases — from our emails, smart home appliances, and technology that is yet to be invented.”

Sen. Ed Markey, D-Mass., praised the court’s decision as an appropriate 21st century update to fourth amendment jurisprudence.

“Where we go or where we have been is sensitive information that should only be revealed to law enforcement with a warrant. The Court’s decision takes a big step forward for privacy by saying the government can’t track a person’s past movements through the records of their cell phone signal without probable cause,” said Markey, a member of the Senate Commerce Committee.

Police need a warrant to search an individual’s home, and that will now be the standard for mobile phone location records, as well. We need to continue to update our laws to protect the privacy of Americans in this increasingly digital world,” he said.

However, Markey also acknowledged the need for Congress to update privacy laws for the digital world.

Not all digital data is created equal

Julian Sanchez, a Cato Institute scholar who has written extensively the intersection of technology, privacy, and civil liberties, told BeltwayBreakfast that one positive takeaway from the Carpenter decision is “the idea that not all data is not created equal.

“The fact that some types of information are obtainable from third parties from a subpoena doesn’t mean that every conceivable kind of data — no matter how intimate — is subject to the same rule,” Sanchez said when reached by phone on Friday. “But they don’t say a whole lot about what, other than location, that might be.”

Sanchez cautioned that the narrow nature of the ruling, in which the court took pains to distinguish CSLI as subject to the Fourth Amendment’s protections while still leaving open the possibility that other kinds of data that might reveal location information deserved similar treatment, meant the court did not give much guidance as to what else might be protected.

“There’s a huge quantity of information that third parties retain that is arguable sensitive or intimate or revealing in various ways,” he said, adding that because of a differences between the protections provided by the Stored Communications Act and the Electronic Communications Privacy Act, the same kinds of data can be treated differently by different companies when it comes to allowing the government to access it without a warrant.

For example, Sanchez said differences between the SCA and ECPA mean that if GPS data collected by Google is treated as communications between Google and the owner of a mobile phone, it would not necessarily be given the same protections Carpenter now gives data held by wireless service providers.

Resolving the “incoherence” between the SCA and ECPA should be a priority for lawmakers, Sanchez said.

“One thing Congress could do is step up and say what types of data might be subject to stronger protections, and not just assume that that the only relevant distinction is between communications content and everything else, which is how the law currently treats it.”

Sen. Leahy argues for a new legal paradigm on privacy

Sanchez’s sentiments were echoed in a statement by the ranking member of the Senate Judiciary Committee, Sen. Patrick Leahy, D-Vt., who said Friday’s ruling “perfectly illustrates that old legal constructions, like the third-party doctrine, struggle to keep up with our ‘seismic shifts in digital technology.’  

“As more and more of our sensitive information is held by third parties, this decision is a step forward in ensuring that our most private information — our communications, our photos, our financial and medical records, our every location — receives the Fourth Amendment protection it deserves,” said Leahy.

Leahy cautioned that Congress “must not rely on the courts to modernize our antiquated privacy laws” while noting that a bill he co-sponsored with Sen. Mike Lee, R-Utah., would require police to obtain a warrant for the exact type of data at issue in Carpenter, and would close “other major loopholes in protecting our Fourth Amendment privacy rights, like requiring a warrant for electronic content.”

“Congress must not abdicate its own responsibilities as technology advances, and it should quickly take up our legislation to accomplish these key reforms.”

 

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Supreme Court Says States Can Now Collect Sales Tax From All Online Retailers

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WASHINGTON, June 21, 2018 – The United States Supreme Court on Thursday dealt a blow to the online retail industry by overturning a 26-year-old ruling, Quill v. North Dakota, which had prohibited states from forcing mail-order retailers to collect sales tax from customers in states where they lacked a physical presence.

The 5-4 ruling on Thursday, in South Dakota v. Wayfair, means customers of online retailers like Amazon will no longer be able to avoid paying their state’s sales tax, and those retailers – which are now some of the largest in the United States – will no longer enjoy an advantage over their brick-and-mortar competitors.

The case could put an end to years of non-stop growth by online-only retailers like Amazon, which many small business owners claim came at their own expense, costing Americans their jobs as the brick-and-mortar retail industry has contracted in the face of online competition.

The decision could provide a needed boost the state and local governments that have long complained that the inability to collect sales tax from online retailers has caused their sales tax revenue to plummet as consumers have increasingly stayed home for even the most basic shopping needs.

Trump weighs in

President Trump took to his Twitter account late Thursday to applaud the ruling.

“Big Supreme Court win on internet sales tax – about time! Big victory for fairness and for our country. Great victory for consumers and retailers,” he wrote.

Trump, who initially entered the public consciousness as a real estate developer, has often suggested that Amazon — the United States’ largest online retailer  — was gaining an unfair advantage over brick-and-mortar merchants from the rules under which online retailers operated until today.

“Unlike others, [Amazon] pay little or no taxes to state & local governments,” Trump wrote in a March 29 tweet attacking Amazon and The Washington Post, which is owned separately by Amazon founder Jeff Bezos.

During his campaign for the presidency, Trump often suggested that Bezos had purchased the Post in order to influence legislation to prevent Amazon from having to pay sales taxes.

Trump’s assertions regarding Amazon and state sales taxes have no connection to reality, as Amazon has paid sales taxes in states which require it for a number of years.

While the president suggested that the ruling would help small businesses, Steve DelBianco, president and CEO of the free-market advocacy group NetChoice, explained that Thursday’s court ruling would actually hurt the small business of which Trump has styled himself a champion.

“While a fraction of online commerce was free of sales tax before this ruling, the Supreme Court has now created an even greater imbalance by placing far greater burdens on Internet shopping compared to its “offline” counterparts,” said DelBianco, whose group has long opposed allowing states to require online retailers to pay sales tax absent a physical presence in a given state.

DelBianco explained that now that Supreme Court has “legislated from the bench,” small online merchants have their “already razor-thin profit margins” cut even further, while brick-and-mortar remain unaffected.

“When these businesses disappear, consumers will be the biggest losers,” he said.

Former Congressman Chris Cox, the group’s outside counsel and author of the Internet Tax Freedom Act, said the court’s decision will do the most harm to small online retailers and those with a single location, “because they can’t afford the overhead to comply with thousands of different tax rules across the country.”

Cox predicted that many small online retailers would be forced to close their doors or be bought out by online retail giants.

“The last hope for consumers and small online business owners is for Congress to take action.  It should be Congress, not the courts, that sets the rules for interstate sales tax collection,” he added.

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