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Saturday, July 03, 2021

Conservatives 6, Tyranny 0

The New Civil Liberties Alliance is fighting the systemic threats of the administrative state. With the Supreme Court shutting down for the summer, NCLA pointed out six wins over liberal bureaucrats and politicians.

The alliance announced, "As the U.S. Supreme Court’s October 2020 Term comes to a close, the New Civil Liberties Alliance is celebrating an unblemished 6-0 record for the amicus curiae briefs we filed in defense of civil liberties. The high court’s administrative power cases produced several unlikely majorities, including two NCLA amicus wins in the form of unanimous opinions written by Justice Sotomayor and Justice Breyer. Justice Gorsuch even quoted from NCLA’s amicus brief in his separate opinion in U.S. v. Arthrex. These six rulings in favor of NCLA’s positions show that our strategy of defending civil liberties against administrative power in the federal courts is working." 

The group did not argue these cases. Instead it lent public support to those suing the government.

1. The alliance reported, "In an early present to celebrate Independence Day, the U.S. Supreme Court recognized the blatant abuse of administrative power by a series of California attorneys general in Americans for Prosperity Foundation v. Robert Bonta. Chief Justice Roberts, writing for a 6-3 Court divided along ideological lines, held that the California Attorney General’s donor-disclosure policy for nonprofits—which began under Kamala Harris and continued under Xavier Becerra—is facially unconstitutional because it burdens donors’ First Amendment Rights and is not narrowly tailored to an important government interest."

Charities don't have to divulge their donors. In an age of doxing, naming names endangers people's lives and livelihoods.

2. The alliance reported, "The New Civil Liberties Alliance is celebrating an amicus win against the Administrative State in the U.S. Supreme Court case United States v. Arthrex, Inc. A divided Supreme Court on Monday vacated an earlier decision in this case by the U.S. Court of Appeals for the Federal Circuit and held that administrative patent judges (APJs) were not appointed to their positions in the manner Article II of the Constitution requires. Justice Gorsuch quoted NCLA’s amicus brief in his concurring opinion to demonstrate that Congress likely disapproved of the remedy devised by the majority. NCLA argued (with Arthrex) that APJs are principal officers of the United States. Hence, according to the Constitution’s Appointments Clause, they must be appointed by the President with the advice and consent of the Senate."

This means the president appoints them. Bravo. We can always fire a president. Good luck trying to fire a civil service-protected pencil-pusher.

Obama had changed it to bureaucratic appointments.

3. The alliance reported, "The U.S. Supreme Court unanimously held that the lower courts erred in imposing an issue-exhaustion requirement on Social Security disability claimants. In Carr v. Saul, claimants challenged a judge-made version of the administrative exhaustion rule, a requirement that litigants at an administrative hearing must raise any legal arguments in support of their claim at each step of the administrative process or forfeit those arguments on appeal. The New Civil Liberties Alliance and the Cato Institute filed a joint amicus brief arguing that imposing issue exhaustion requirements is inappropriate when the issue does not depend on an agency’s discretion, expertise, or fact-finding."

It is a rather tedious case. But suffice it to say the bureaucracy tried to make the rules that the bureaucracy plays by. Justice Sotomayor and the majority said, nope.

The alliance noted, "Carr is one of several cases that arose in the aftermath of the Supreme Court’s 2018 decision in Lucia v. SEC, which held that the ALJs working for the Securities & Exchange Commission were Officers of the United States who had not been appointed in a manner required by the Appointments Clause of the Constitution."

The power of having presidents appoint and the Senate confirm administrative judges rests with the people, not the deep state.

4. The alliance reported, "A divided Supreme Court held that the structure of the Housing and Economic Recovery Act of 2008 violated the separation of powers. The law ran afoul of the Constitution by restricting the President’s power to remove the Director of the Federal Housing Finance Agency (FHFA). The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief in September 2020 arguing that the FHFA Director’s protection from removal denied the President’s power to control the actions of Executive Branch officials. The victory today vindicates separation-of-powers principles and protects Americans’ right to a republican form of government, which unaccountable independent agencies thwart."

These victories only seem small until you have to go up against one of these Alphabet agencies.

5. The alliance reported, "The New Civil Liberties Alliance celebrates a victory today as amicus curiae in the U.S. Supreme Court case, AMG Capital Management, LLC, et al. v. Federal Trade Commission. Justice Stephen Breyer handed down a unanimous decision declaring that section 13(b) of the Federal Trade Commission Act does not authorize the Federal Trade Commission (FTC) 'to seek, or a court to award, equitable monetary relief such as restitution or disgorgement.'"

This had been going on for a long time.

The alliance said, "For over three decades the agency has been aggrandizing its powers to obtain millions. In this case the Ninth Circuit, bound by its own precedent, acknowledged the problem but allowed the FTC $1.27 billion in equitable monetary relief against Petitioner Scott Tucker and his payday lending companies. It did so without the statutory protections provided by Congress for monetary damages or even a jury trial, which the Seventh Amendment to the Constitution grants all Americans for suits at law for money damages over twenty dollars."

How ironic. The FTC accused Tucker of breaking the law without following the law itself.

Sadly, no one at the FTC was jailed or fired or even suspended.

6. Finally, in a non-federal but extremely important case, the alliance sided with the Lord.


The alliance reported, " a unanimous Supreme Court ruled in favor of Catholic Social Services (CSS) and three affiliated foster parents in their lawsuit against the City of Philadelphia after being excluded from a foster-care program based on their religious beliefs. The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights group, filed an amicus brief in June 2020 in support of the plaintiffs, arguing that the administrative process by which Philadelphia instituted its foster care policy is inherently tilted against religious Americans and that the City’s actions violated the Free Exercise Clause of the First Amendment.

"The City of Philadelphia enters into contracts with agencies to place children with foster families. As part of CSS’s religious beliefs, it will not certify same-sex married couples as prospective foster families. For this reason, in 2018, the City abruptly terminated foster placement through CSS. 

"CSS and the foster parents it certifies did not seek to impose their religious beliefs on anyone and had provided foster-care services through the City of Philadelphia for more than 50 years. The City’s decision left foster parents like Sharonell Fulton, who has fostered more than 40 children, without CSS’s support."

In writing for the majority, Chief Justice Roberts pointed out that Catholics have taken care of orphans in that city since the yellow fever outbreak of 1798.

Conservatives were robbed on November 3 by Democrats and their RINO collaborators. It is easy to be discouraged and to give up.

But groups are out there fighting for liberty. And while the Supreme Court utterly disowned us in the election, it gave us a few victories this year that we should savor.

I wish there were more victories to celebrate, but we have six more reasons to celebrate Independence Day than we did a year ago.