{"id":14645,"date":"2018-03-07T20:51:48","date_gmt":"2018-03-08T02:51:48","guid":{"rendered":"http:\/\/huewhite.com\/umb\/?p=14645"},"modified":"2018-03-07T20:51:48","modified_gmt":"2018-03-08T02:51:48","slug":"did-you-just-prove-1-0","status":"publish","type":"post","link":"https:\/\/huewhite.com\/umb\/2018\/03\/07\/did-you-just-prove-1-0\/","title":{"rendered":"Did You Just Prove 1 = 0?"},"content":{"rendered":"

I have an interest in those odd little cases which plumb the corners of systems, so even though I’m not a lawyer or Constitutional scholar, I found this\u00a0article\u00a0<\/a>by Michael C. Dorf on\u00a0Justia Verdict\u00a0<\/b><\/i>to be interesting:<\/p>\n

Last week\u2019s ruling\u00a0[Patchak v. Zinke<\/em><\/a>]<\/i>\u00a0arose out of a dispute over a parcel of land in Michigan known as the Bradley Property, which the federal government obtained in trust for the creation of a casino to be operated by a Native tribe. The owner of a neighboring property sued the government, arguing that the acquisition was illegal. The government defended by, among other things, invoking its sovereign immunity against private lawsuits, and that issue made its way to the Supreme Court. In\u00a0a 2012 case<\/a>, the Court ruled that Congress had waived its sovereign immunity and that therefore the litigation could proceed.<\/p>\n

But before plaintiff David Patchak could obtain a judgment against the government, Congress stepped in. It passed the Gun Lake Act, which states that any litigation \u201crelating to\u201d the Bradley Property \u201cshall not be filed or maintained in a Federal court and shall be promptly dismissed.\u201d Last week\u2019s case concerned the constitutionality of that enactment.<\/p>\n

Patchak argued that the contested provision was a thinly disguised effort by Congress to dictate the result of a pending case and thus a violation of the basic constitutional principle of separation of powers. As anyone who has seen\u00a0Schoolhouse Rock<\/a>\u00a0knows, each branch of government serves a distinctive function. Justice Thomas quoted Chief Justice John Marshall\u2019s 1825 statement that \u201cthe legislature makes, the executive executes, and the judiciary construes the law.\u201d Patchak argued that while the Gun Lake Act had the\u00a0form<\/em>\u00a0of legislation, in\u00a0substance<\/em>\u00a0it was an effort to resolve a concrete case\u2014namely his.<\/p><\/blockquote>\n

Dorf is exceedingly polite, but, reading between the lines, it sounds like\u00a0SCOTUS<\/b><\/i>\u00a0may have had a collective mental breakdown. Justices Thomas, Alito, Breyer, and Kagan took one side, while Roberts, Kennedy, and Gorsuch took another, and Ginsburg and Sotomayor “…\u00a0tried to duck the question that divided their colleagues<\/i>.” Just the lack of ideological alignment is enough to cross my eyes.<\/p>\n

In the end, the weird mix of right-wingers and moderate liberals won the day with a plurality opinion, but the fact that it’s not split sharply or unanimous (or close to it) suggests to me that this is an issue which has not been fully thought out by anyone.<\/p>\n

In the end, Dorf says the court may have been hung up on the question of how to measure the generality of a law, as I remember that Bills of Attainder<\/a> are specifically forbidden in the Constitution:<\/p>\n

These practical concerns may ultimately explain why the plurality was unwilling to treat the Gun Lake Act as the functional equivalent of a law that said \u201cPatchak loses.\u201d But if practical administrability was the real reason for the decision, the plurality ought to have said so. By instead paying lip service to the proposition that Congress may not enact a law directing the outcome of a particular case, while in practice allowing Congress to circumvent that principle with some minimally astute drafting, Justice Thomas endorsed an empty formalism.<\/p><\/blockquote>\n

Sounds exciting! And not just because of my odd taste for odd corner cases, but because sometimes odd corner cases with undesirable outcomes may signal that a detail somewhere … is wrong.<\/p>\n","protected":false},"excerpt":{"rendered":"

I have an interest in those odd little cases which plumb the corners of systems, so even though I’m not a lawyer or Constitutional scholar, I found this\u00a0article\u00a0by Michael C. Dorf on\u00a0Justia Verdict\u00a0to be interesting: Last week\u2019s ruling\u00a0[Patchak v. Zinke]\u00a0arose out of a dispute over a parcel of land in \u2026 Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-14645","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/14645","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/comments?post=14645"}],"version-history":[{"count":1,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/14645\/revisions"}],"predecessor-version":[{"id":14646,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/14645\/revisions\/14646"}],"wp:attachment":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/media?parent=14645"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/categories?post=14645"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/tags?post=14645"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}