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Archive for the ‘Law’ Category

Illinois Chief Justice Anne Burke

Today’s Chicago Tribune reports that Illinois Chief Justice Anne M. Burke has announced her retirement.

To the active and energetic mind, to the profound intellect, to the ever-restless curiosity, to the lifelong seeker after justice, the ease and indolence of retirement can often be harder to bear than continued labor in one’s metier.

Illinois Chief Justice Anne M. Burke will have no problems in this regard.

Although former Illinois House Speaker Mike Madigan may have wished that Illinois had a palace, its absence was no bar to the creation of his own palace clique of sycophants, not-so-brave adventurers, lobbyists, hangers-on, lackeys and lickspittles. And of this Madigan camarilla C.J. Burke was certainly the most important figure. Madigan had a live human wiretap into the highest, most important and most sensitive judicial deliberations in the state.

Madigan opposed the independent redistricting referendum, which came before the Illinois Supreme Court in 2016. Burke ensured that this measure, which favored voters’ rights and democracy in Illinois, was a non-starter. Any act or measure disfavored by Madigan that came before Burke’s Supreme Court would be condemned. In all matters Burke carried out Madigan’s will to the best of her ability.

Madigan, ever bashful, continually disclaimed having any influence or power over any one or any thing in Springfield, and he affected to be no more than a simple state rep and ward committeeman. But if he ever expressed his opinion on any issue, or, even less, granted or withheld his wink or nod, none could doubt what the final result would be. We miss Madigan’s ostentatious pretenses of powerlessness, humility, meekness and modesty. Well, at least we will until his criminal trial begins.

Then Commonwealth Edison’s Bribery Department (see July 20, 2020 Deferred Prosecution Agreement) offered its payroll to Madigan as a patronage machine to supply the place of Chicago’s Streets and Sanitation Department. The influence of Exelon in the Illinois General Assembly became paramount, and the interests of and protections for Illinois ratepayers concomitantly declined. Chief Justice Burke ensured that as far as Exelon’s bespoke laws protecting its revenues were concerned, constitutionality was nothing more than a dangerous luxury. With Madigan’s wink and under Burke’s watchful eye, Illinois legislation became Chris Crane’s own pull-toy. Sadly, Exelon must now do without either Mike Madigan or Anne Burke. Crane must know how Napoleon felt when he bade farewell to his Imperial Guard before setting sail for Elba.

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Today, abortion. Tomorrow marriage equality and contraception.

Today the U.S. Supreme Court overturned Roe v Wade, the 1973 decision that established a constitutional right to abortion. This was expected, given the recent leaking of the Alito draft opinion.

The Alito opinion purports to determine the validity of the most fundamental rights of American citizens not by any contemporary legal or moral principles, but rather by turning the clock backwards by two or more centuries to see what the Founding Fathers meant by the words they used in the Constitution. In practice, this amounts to an exercise in historical fiction by the six conservative justices as they attribute their own policy preferences to their favorite Founding Fathers.

At any rate, the high court’s Dobbs decision should not be viewed as some sort of sudden or unforeseeable event. Dobbs is neither an earthquake, tornado, nor any other kind of surprise, even before the Alito opinion leak. Not at all. Dobbs is the result of the basic structure of the United States Constitution.

Contrary to what the GOP politicians spout, the Constitution wasn’t written by a benevolent deity. It was written by a group of white men, many of whom were slave-owners. Indeed, slavery and concessions made to the slave states to induce them to sign on to the Constitution (e.g., the Three-Fifths Compromise) comprise the ultimate foundation of the U.S. Constitution. Chief among those concessions, and a leading cause of today’s Dobbs decision, is the Electoral College.

The GOP’s smart move was to recognize the Electoral College for what it really is: the single greatest gerrymandering device in all of American law. The Electoral College means that there really is no such thing as a national presidential election. Rather, the Electoral College means that competing candidates for the U.S. presidency run for governor in each of the fifty states, and if one wins enough states to obtain a majority of the Electors, he or she wins regardless of the popular vote.

The popular vote for president is still important, but not on a national basis. It’s important only on a state-by-state basis, that is, within each individual state. That accounts for the GOP’s long game on voting rights, because for most of the states, if they can flip a state by as little as one vote they get all that state’s electors. Just look back to Karl Rove’s efforts to fire a bunch of U.S. attorneys who said they had more important things to do than going after voter fraud. Moscow Mitch McConnell then piled on to make sure that Obama didn’t get to appoint Merrick Garland, while Trump got to appoint three far right conservatives. McConnell violated some “traditions” of the U.S. Senate, but what he did was neither unconstitutional nor illegal.

The take-away here is that the GOP has had a long game of using the Constitution as it exists to enforce their minority rule, and Dobbs is just the latest evidence of that. Marriage equality and even the right of Americans to obtain and use contraceptives are next on the 6-3 Supreme Court chopping block. That’s no exaggeration. Clarence Thomas has expressly said he wants to eliminate those rights.

What’s required goes far beyond just getting out the vote this coming November. The GOP has been working, and will continue to work, on sabotaging Americans’ voting rights. If that includes the federal seizure of state voting machines because Italian satellites were allegedly switching votes from Trump to Biden, so be it. Trump sent the U.S. Gov’t. off on a wild goose chase to investigate that, and as yesterday’s January 6 Committee hearing showed, only two or three sane officials in the Justice Department stood between the United States and a constitutional crisis.

No, what’s needed is a new Constitutional Convention so that we can scrap what is essentially a constitution designed to embrace slavery and advantage slave states and bring it into the 21st century. I, for one, am rather tired of listening to right wingers tell us what a group of 18th century slaveholders and slavery enablers might have been thinking.

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Alito

Justice Samuel Alito

Alito’s Leaked Opinion
Justice Samuel Alito’s leaked majority opinion in Dobbs v Jackson Women’s Health Organization, _ U.S. _ (2022) discloses that the U.S. Supreme Court is primed to overrule both Roe v Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pa v Casey, 505 U.S. 833 (1992), the two leading cases holding that the right to an abortion is protected under the United States Constitution.

Yesterday’s Chicago Tribune reported that when the U.S. Supreme Court officially hands down its opinion, twenty-six (26) states, including Texas and Florida, are either certain or likely to enact laws that either severely restrict the right to abortion or ban it outright. (“If Roe is overturned, ruling could have secondary effect on Illinois’ economy,” Chicago Tribune, June 13, 2022). The Tribune article suggests that corporations may seek to relocate their headquarters to states like Illinois, in which the right to obtain an abortion will be protected. The article concedes that it may take years for such changes, and their related economic effects, to come about.

Assuming that there’s sufficient political will, the economic effects on renewable energy from overturning Roe could occur much sooner.

That there exists any tangency at all between energy law and reproductive rights may sound unusual, but the response to Alito’s ruling should take advantage of the principles Alito himself announces in his leaked opinion. In particular, Alito stresses that our nation’s historical understanding of ordered liberty should enable the people’s elected representatives to decide how abortion should be regulated (Dobbs, pgs. 6, 31). Elected representatives in other states are likewise at liberty to respond to Dobbs by deciding how to regulate certain aspects of renewable energy.

How Renewable Energy Works
Because one electron is indistinguishable from another on the grid, electricity generated by renewable resources (wind, solar, etc.) is indistinguishable from electricity generated by a nuke or a coal-fired plant. To address this, renewable energy certificates (RECs) were developed as tradable certificates that recognize the green energy attributes of renewable electricity generation sources. One REC represents one megawatt-hour of renewable generation. RECs are tradable because they may be bought and sold separately from the actual electricity generated by the renewable system. The sale of RECs provides additional revenue for renewable generators and obviates the (nearly impossible) task of trying to schedule specific generation for specific load. The issuance and claiming of RECs is tracked, usually by the relevant transmission system operator.

A Renewable Energy Response to Dobbs
A state’s renewable portfolio standard (RPS) generally requires that electric public utilities procure a specified portion of their electricity supply requirements from renewable generation resources such as wind or solar power. These requirements may be met through a utility’s own renewable generation assets or through the purchase of RECs. A state has a lot of leeway to structure its RPS as it sees fit. A state RPS may have tiers of preferred RECs, or it may prefer RECs purchased from generation resources located within the state or in adjacent states. The RPS market is often referred to as the “mandatory market” because public utilities are required by law to purchase certain volumes of renewable energy.

The gist of the renewable energy response to Dobbs lies in two separate measures. First, in states like Illinois, where the right to abortion will be protected, RPSs would be amended to prevent RECs generated in states that restrict or prohibit abortion from being used to satisfy the RPS.

The second measure pertains to the “voluntary” market, that is, the market for the purchase of RECs by persons who are not legally required to purchase renewable energy but who nevertheless wish to support the development of renewable energy. Voluntary market purchasers may procure all or a portion of their electricity supply requirements from renewable generation. These REC purchasers “green” the electricity they actually use by buying a quantity of RECs. Buyers in the renewable energy market have the freedom to choose which RECs they buy, including choosing the state of origin of the RECs. The second response to Dobbs involves making clear to voluntary market buyers where a REC was generated, and the REC buyer can then choose whether it wishes to purchase a REC generated in one of the 26 states that are set to restrict or eliminate abortion rights. Welcome to your free market at work.

The Dormant Commerce Clause
The Dormant (or Negative) Commerce Clause is a doctrine that federal courts have inferred from the Commerce Clause of the U.S. Constitution. In a nutshell, the doctrine prohibits protectionist legislation by states.

The Sparkspread previously posted an entry on Judge Posner’s 2013 opinion in Illinois Commerce Commission v. FERC (“7th Circuit Casts Shadow Over State Renewable Portfolio Standards,” The Sparkspread, August 14, 2013), a cost allocation rate case in which Posner, when discussing RECs and RPSs, stated that the Dormant Commerce Clause would prohibit one state from discriminating against another’s renewable energy. Posner’s reasoning was wrong because he did not understand how REC markets operate and did not take into account the difference between the mandatory and voluntary REC markets.

Contrary to Posner’s position, a state’s limitations on the kinds of RECs that are acceptable for satisfaction of its own RPS do not present a dormant commerce clause issue because none of those limitations prevent a REC seller from selling its RECs in that state. In the voluntary market, any REC seller from any state can sell RECs generated anywhere in every other state. An RPS limitation on RECs from abortion-restricting states, on the other hand, pertains to the mandatory, not the voluntary market. Every state is free to determine as a policy matter what types of RECs may be used to satisfy its own RPS. A state’s elimination from its mandatory market of RECs generated in abortion-restricting states is no different than that state’s preference for, say, solar over wind RECs, or for RECs generated only in adjacent states. An RPS has nothing to say about the voluntary market, which it does not in any degree control.

I am not aware of any previous effort to address REC markets from this angle. Legislation would, of course, take time and effort to enact, but if, pursuant to Dobbs, elected representatives in 26 states see fit to restrict or eliminate a constitutional right that has been in place for nearly half a century, the elected representatives in the other 24 are equally free to express their policy preferences in their own RPSs. Alito would surely approve, no?

Energy markets tend to be exquisitely sensitive. The mere announcement of such a legislative initiative by a state would likely send through renewable energy markets a shock wave warranting measurement on the Richter scale. Expectations on REC sales would be affected, and, even more importantly, so would plans for new generation.

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Yesterday the U.S. Attorney’s Office for the Northern District of Illinois brought out its 22-count indictment of Michael (“I’m not the target of anything”) Madigan.

In July 2020, the U.S. Attorney’s Office entered into a Deferred Prosecution Agreement with Exelon Corp. and Commonwealth Edison Company, which served as Madigan’s political patronage machine for close to a decade. The DPA refers to Madigan as “Public Official A,” and includes messages from people in his corrupt network that refer to Madigan as “Himself” or “Our Friend.” It seems like Madigan was more popular among the federal prosecutors than he thought. In exchange for bribes to or for the benefit of Madigan, ComEd and Exelon ensured the passage of legislation favorable to them, and hindered or prevented legislation Exelon didn’t like.

If we could delve into the inner recesses of Madigan’s mind, we’d find that his Id, Ego, and Superego are all composed of one thing: a driving ambition to be the Second Coming of Richard J Daley. Madigan’s father and Daley the Elder became friends when both held political patronage jobs in the Cook County Clerk’s Office. Using political patronage, Daley the Elder went on to build one of the most powerful political machines that any American city had ever seen. During old Mayor Daley’s tenure, parts of Chicago’s government, like the Department of Streets and Sanitation, were turned into political patronage machines that Richard J. Daley used to provide jobs for his supporters.

One of old Mayor Daley’s chief precepts, which Madigan was later to adopt as his guiding principle, was to help your friends and either punish or co-opt your enemies. To Madigan, Daley the Elder had achieved what he considered political Nirvana: a world in which everybody both depended on you and was afraid of you.

But Old Man Daley passed away in 1976, and in 1983 the Shakman Decree ended Chicago city government’s role as a perpetual patronage machine.

Madigan’s alternative was to use ComEd and Exelon as a way to create a new political patronage machine and do an end run around the Shakman Decree. For Exelon and ComEd it was a match made in, well, maybe not heaven. As the DPA showed, bribery and corruption are integral components of Exelon’s business model: the utility parasite and the political parasite established a symbiotic relationship.

Over the next few weeks we’ll go further into the specific chapter and verse of the legislative benefits that Exelon and ComEd obtained at the expense of Illinois ratepayers. Nothing in the 22-count Madigan indictment revises the amount of bribes that Madigan directly or indirectly received: about $1.3 Million. We’ll tally up the economic benefits that Exelon and ComEd obtained from these illegal payments, and see how they balance out.

But Madigan and the Illinois legislature comprise just one sphere of influence. We’ll also take a look at how Madigan’s malignant principles have metastasized throughout the Illinois courts — an area the U.S. Attorney’s Office might be interested in. The General Assembly and the Illinois courts are the two poles between which the Madigan supremacy oscillated for nearly a half century. Within the courts Madigan’s fingerprints are harder to see, but it must be borne in mind that, whether Madigan was acting at one or the other of these poles, it was the Madigan supremacy still. His control was absolute and coordinate.

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Constellation NewEnergy’s Third Party Investigator

The At Issue program on WBBM Newsradio (on Audacy) interviews Richard Dent, NFL Hall of Famer and MVP of Superbowl XX, concerning his legal battle with Constellation NewEnergy.

Also on the interview is Dr. Charles Steele, President and CEO of the Southern Christian Leadership Conference, the organization once led by Dr. Martin Luther King.

Constellation NewEnergy Terminates Dent’s Contracts and the Legal Battle

In 2018, Constellation NewEnergy terminated its energy contracts with Dent when two unnamed persons accused him of sex harassment and improper conduct. Constellation refused to disclose the names of the persons who had made these defamatory statements.

In 2019, we filed a Rule 224 presuit discovery petition in the Cook County Circuit Court to compel Constellation to disclose the names of Dent’s accusers. (Dent et al. v. Constellation NewEnergy et al., 2019 L 002910). Constellation filed a motion to dismiss the petition for failure to state a claim under Illinois Civil Procedure Code Section 2-615. When a defendant in a civil suit files a 2-615 motion, black letter Illinois law requires the court to accept as true, for purposes of that motion, all of the well-pled facts alleged in the complaint or petition.

In Dent’s case, though, the Circuit Court judge ignored the facts pled in Dent’s 224 petition and accepted as true facts that Constellation improperly added in its 2-615 motion. For example, Constellation NewEnergy refused to disclose to Dent the name of its third-party investigator, and that is exactly what Dent’s Rule 224 petition alleges. However, in a flagrant departure from the duties of a court in a 2-615 motion, the Circuit Court held that Constellation NewEnergy had disclosed the identity of the investigator.

During oral argument before the Circuit Court in July 2019, the trial judge agreed with me that Dent’s 224 petition was not a “fishing expedition.” (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Transcript of Proceedings, July 19, 2019, at pg. 4, line 4 to pg. 4, line 20). Despite this, the Circuit Court denied Dent’s 224 petition on the basis of a case that prohibited the use of that rule for “fishing expeditions.” (Low Cost Movers v. Craigslist, Inc., 2015 IL App (1st) 143955). Low Cost Movers was neither relevant nor applicable to Dent’s petition, and neither Dent nor Constellation had cited it in briefing on the 2-615 motion.

Constellation NewEnergy told Dent, and the 224 Petition alleged, that it was going to terminate all of Dent’s contracts because of the allegations that had been made against him. Yet the Circuit Court held that the cause in fact and proximate cause of Constellation’s termination of Dent’s contracts was…(wait for it…wait for it…)…Constellation’s termination of Dent’s contracts. Yes, you read that right. (Dent et al v Constellation NewEnergy et al, 2019 L 002910, Memorandum Opinion and Order, July 31, 2019, pgs. 2-3). In the Cook County Circuit Court’s hands, cause and effect became fungible commodities. If I knew a first semester law student who committed so puerile a logical fallacy I would recommend (gently, of course) serious consideration of an alternative career.

We appealed this ruling to the First District Court of Appeals. In November 2020 the Illinois Appellate Court, without requiring oral argument, reversed the Circuit Court on grounds of abuse of discretion and held that Rule 224 was indeed the appropriate procedure for Dent’s case. (Dent et al. v. Constellation NewEnergy, Inc. et al., 2020 IL App (1st) 191652, 175 NE3d 742).

Constellation then filed a petition for leave to appeal with the Illinois Supreme Court, which that court granted in March 2021. The case was argued before the Illinois Supreme Court on September 22, 2021. You may replay the oral argument here:

Constellation NewEnergy’s Private Eye

In public statements Constellation NewEnergy claims that the allegations against Dent were “confirmed by an independent third party investigator.” That is their chief defense. But Constellation’s own allegations tell a different story.

At about 5:45 p.m. on July 10, 2018, Dent arrived at the JW Marriott Hotel at 151 W. Adams Street in Chicago, where Constellation NewEnergy had arranged for its golfing guests to collect passes and other items for their golf outing the following day. Constellation claims that an unnamed man, Person B, observed Dent at the JW Marriott, and Person B alleged that Dent was “drunk and disorderly” at that place and time.

After collecting his items for the golf outing, Dent drove from the JW Marriott to the Shedd Aquarium, at 1200 South Lake Shore Drive. As the crow flies, the JW Marriott is about 1.6 miles from the Shedd Aquarium. Dent arrived at the Shedd Aquarium at or about 6:30 p.m. on July 10, 2018.

Constellation NewEnergy’s pre-golf cocktail reception, where they alleged that Dent physically groped an unnamed woman (Person A), was held on the Shedd Aquarium’s patio. That patio is an open space overlooking Lake Michigan.

More than 100 people were at Constellation NewEnergy’s party at the Shedd Aquarium patio.

Dent had invited Sam Cunningham, the Mayor of Waukegan, to the Constellation NewEnergy cocktail party. Constellation knew that Dent had invited the Mayor of Waukegan to their cocktail party as his guest. Dent and Mayor Cunningham were generally in each other’s company throughout this event.

In Chicago on July 10, 2018 the sun set at 8:28:31 p.m. Dent left the Constellation party at about 8:00 p.m., about a half hour before sunset.

Constellation NewEnergy claims that the allegations against Dent were confirmed by a third-party investigator. This is more than curious because the alleged groping incident occurred on the patio of the Shedd Aquarium, an open space, in front of a crowd of more than 100 people, and in daylight. Yet the only person who Constellation NewEnergy claims witnessed this alleged groping is Person B – the unnamed man who was inside the JW Marriott Hotel — 1.6 miles away.

According to Constellation NewEnergy’s allegations, not one person – not one – who was at the Shedd Aquarium patio on the evening of July 10, 2018 witnessed any alleged groping by Dent.

According to Constellation NewEnergy’s allegations, Dent would have had to drive through downtown Chicago traffic, during the weekday evening rush hour, in a drunken condition, to get from the JW Marriott to the Shedd Aquarium. At these times the CPD usually keeps an eye out for drunk drivers, especially after “happy hours.” Dent was not stopped for any reason as he drove from the JW Marriott to the Shedd Aquarium.

According to Constellation NewEnergy’s allegations, Dent would still have been drunk at the Shedd Aquarium cocktail party, which immediately followed his visit to the JW Marriott. Dent was at Constellation NewEnergy’s cocktail party at the Shedd Aquarium for about an hour an a half. Yet Constellation NewEnergy does not allege, and has not presented any witness who has alleged, that Dent was drunk at the Shedd Aquarium event.

Though Constellation NewEnergy knew that the Mayor of Waukegan was Dent’s guest at the Shedd Aquarium party that evening, its supposed third-party investigator never called the Mayor of Waukegan to ask if he saw anything.

Based on Constellation NewEnergy’s own allegations, Person B, their supposed eyewitness, was not even at the Shedd Aquarium when the groping incident is alleged to have occurred. Rather, he was inside the JW Marriott Hotel at 151 West Adams Street.

The Witness to the Alleged Groping Had X-Ray Vision

As a kid I used to watch reruns of The Adventures of Superman (1952-1958) starring George Reeves as Clark Kent, the mild-mannered reporter for The Daily Planet newspaper. In that TV series, X-ray vision was one of Superman’s superpowers. Constellation NewEnergy’s independent third party investigator believes that Person B, their supposed eyewitness to the alleged groping, had X-ray vision better than Superman’s since Person B could see through 1.6 miles’ worth of concrete and steel buildings, all the way from 151 West Adams Street to 1200 South Lake Shore Drive.

Constellation’s Person B can see through tall buildings.

That’s quite a trick.

Constellation NewEnergy’s claim that it had an independent third-party investigator confirm the accusers’ allegations is inexpressibly ridiculous. Constellation refused to name its supposed investigator, perhaps to spare him or her being imprinted with a mark of indelible ridicule by having to explain how their only witness to the alleged groping saw everything through 1.6 miles’ worth of steel, concrete and downtown Chicago buildings.

Whoever Constellation’s investigator was, they make Inspector Clouseau look like Sherlock Holmes.

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On August 18, 2020, I had the pleasure of speaking with Will Stephens, the host of Radio Station WXAN, regarding the recently filed civil RICO class action against Madigan, ComEd et al., filed in the U.S. District Court for the Northern District of Illinois. The link appears below:

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Gorsuch

Justice Gorsuch, U.S. Supreme Court

Bostock v. Clayton County, U.S. Supreme Court Case No. 17-1618 (June 15, 2020), is without doubt a milestone in the history of civil rights in the United States. The U.S. Supreme Court made the right decision. As the several recent police murders of black Americans has shown, there remains much work to be done in achieving equal justice under law for all Americans. Still, with Bostock the LGBTQ community can take at least take some comfort that the law is moving in the right direction. In these dark days of the Trump administration, that’s saying something.

However, the media has gone overboard in its praise of Justice Gorsuch, who is Trump’s first appointment to the Court. In particular, the media expresses surprise that the decision was 6-3 for Bostock, the plaintiff. The media asserts that those Republicans who have defended Trump because they want reliably conservative judges on the federal bench must be very disappointed. And, in fact, some are.

Charlemagne crowning

Detail of Media crowning Justice Gorsuch [prematurely] Liberal Judge of the Year, 2020

Before the Gorsuch hagiography gets much deeper, remember that you heard it here first: at some future date Gorsuch will issue an opinion that will incense everyone who’s not a Republican. (I almost said “conservative Republican,” but that would be redundant.) When it comes to interpretation of statutes and the U.S. Constitution, Gorsuch is a self-proclaimed “textualist” or “textual originalist” in the same vein as the late Justice Antonin Scalia. Recall that at his confirmation hearings in 2018 Gorsuch refused to comment on whether he believes three landmark cases were correctly decided: Brown v. Board of Education, 347 U.S. 483 (1954) (prohibiting racial segregation in public schools); Griswold v. Connecticut, 381 U.S. 479 (1965) (married couples have a constitutional right to use contraception); and Eisenstadt v. Baird, 405 U.S. 438 (1972) (unmarried couples have the same constitutional right as married couples to use contraception).

Keep those cases in mind.

Textual originalists like Gorsuch and the late Scalia portray themselves as completely passive, absolutely objective interpreters of statutes and the Constitution because they restrict themselves to the words in the text of the statute or Constitution — nothing more, nothing less. Anything outside the text is off limits, especially the legislative history.

The “originalism” part derives from their claim that the words in the statutory or constitutional text must be given the meanings they had when the text in question became law. The Scalia/Gorsuch textualist school wants to be sure to use the meanings at the time the text was enacted because that’s the only way, in their view, that the original intent of the language can be maintained from age to age. Changes in the use of language cannot be allowed to corrupt the original meaning of the text.

Gorsuch’s opinion is an authentic result of a textual originalist’s reading of the text of the 1964 Civil Rights Act. Still, the decision has startled Trump’s Republican supporters who counted on his judicial nominees to sock it to groups that they don’t like, such as the LGBTQ community.

But the most serious consequences are yet to come. Brown v. Board of Education prohibited racial discrimination in public schools and did so on the basis of the 14th Amendment to the U.S. Constitution. But when the 14th Amendment was adopted in the years immediately after the Civil War, “equal protection of the laws” most certainly did not refer to prohibiting racial segregation. It referred to protecting the recently freed slaves from the depredations of the Ku Klux Klan. Cases such as Plessy v Ferguson, 163 U.S. 537 (1896), which upheld racial segregation on a “separate but equal” basis, make that quite clear. Brown implicitly overruled Plessy, holding that “separate but equal” is inherently unequal.

The problem for textual originalists like Gorsuch is that under their theory the 14th Amendment must be read and interpreted as it would have been understood during the period of Reconstruction after the Civil War. At that time, protection of the freed slaves from raids and lynchings by masked horsemen in the states of the old Confederacy was what the 14th Amendment was all about. Nothing in the 14th Amendment mandates a prohibition of racial discrimination. Accordingly, under the Gorsuch textual originalism doctrine, Brown v Board of Education was wrongly decided.

If Gorsuch gets the chance, I predict he’ll vote to overrule Brown v Board of Education.

And let’s not forget the other two cases Gorsuch refused to talk about at his 2018 confirmation hearing, Griswold and Eisenstadt.  The decisions upholding constitutional rights in these cases are based on a citizen’s right to privacy. You can read the U.S. Constitution and all the Amendments forwards, backwards and upside-down, and you will not find any “right to privacy” in the text.

Accordingly, under the Gorsuch textual originalist approach, Griswold and Eisenstadt were wrongly decided, and should be overruled. At some point in the future, with Gorsuch on the bench, we may soon be saying goodbye to the constitutional right to use contraception.

If ever there were an artful dodger, Gorsuch is it. Had he given straight answers to the questions asked during his confirmation hearing, he would have told them that he believed Brown, Griswold and Eisenstadt were wrongly decided and should be overruled. He has to either admit that or become an apostate to his own textual originalist faith.  Imagine the uproar if, instead of being the shriveling coward that he his, during his confirmation hearing Gorsuch had answered questions honestly and forthrightly.

As the say in the commercials, “but that’s not all!” One hundred years ago, the 19th Amendment gave women the right to vote. Voting and holding public office are two very different things. Nothing in the text of the U.S. Constitution contemplates that a woman might hold public office in the federal government. Search all you want, but all the references are to males. Any sensible person with two gray cells to his name would tell you that a woman can, indeed, become president of the United States or be elected to Congress. But if you’re Gorsuch, Hillary couldn’t be president even if she’d won the electoral college back in 2016. Why? Because the text of the U.S. Constitution nowhere mentions female federal office holders. Voting? Fine. Office-holding? Not under Gorsuch. Doesn’t that sound ridiculous? Certainly, but then again everybody thought Trump was a joke.

Remember, you heard it here first: the exaggerated praise of Gorsuch is sorely misplaced, and many from the center-right to the left will someday tear their hair and rend their garments over a bass-ackward textualist decision by Gorsuch.

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King_Charles_I_after_original_by_van_Dyck

King Charles I of England/ Studio of Van Dyck

Trump now claims that he has the power to adjourn Congress so that he can make appointments without the advice and consent of the Senate.

Have we seen this movie before?

Charles I of England fought with Parliament over whether the latter would impose taxes he thought necessary. Charles dissolved Parliament, solely on his own authority, three times, the last of which was in 1629. The period of his reign from 1629 through 1640, when he had little choice but to summon what became known as the Long Parliament, is often called Charles’ period of personal rule.

Regarding Trump’s claim of power to adjourn Congress, it’s worthwhile noting that in 1641 the Long Parliament pressured Charles into signing something called An Act Against Dissolving Parliament Without Its Consent. Not surprisingly, this law provided that Parliament could not be dissolved without its own consent.

Our own Founding Fathers knew by heart all of the events from Charles’ ascension to the English throne, through the Protectorate, and into 1660, the year of the Restoration. The English Civil Wars (plural) were constantly before them when they were drafting the United States Constitution. In fact, some of them had ancestors who were either Roundheads or Cavaliers. One shouldn’t be surprised at how closely the office of President of the United States parallels that of the Lord Protector, Oliver Cromwell.

Given this background, you can bet that the Constitutional terms under which Congress can be adjourned without its own consent are narrow and quite specific.

Trump doesn’t take advice, and he hardly knows American history, much less English. He’d undoubtedly like the term “personal rule.” But before he continues to assert his right to adjourn Congress on his word alone, he’d do well to learn a little more about Charles I — he didn’t end up ahead of the game.

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Thomson Reuters has published my article, “Merchant Transmission and its Discontents,” in the current issue of the International Energy Law Review, [2019] I.E.L.R. 35.

While FERC has sought to encourage merchant transmission development in a manner similar to that in which it encouraged merchant generation, the merchant transmission concept is beset with internal contradictions that radically limit its practical implementation.

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Cyber-Security Grid

The Freedom of Information Act (5 U.S.C. 552) was originally enacted in 1966, and has been amended a few times since. The U.S. Supreme Court has said that “[t]he basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). There are, however, nine exemptions, including three related specifically to law enforcement, under which the federal government can withhold information that would otherwise be disclosed under the FOIA.

At federal agencies today, and particularly at the Federal Energy Regulatory Commission, those exemptions from disclosure have been so broadly construed that one can say with reason that FOIA has been administratively repealed. Instead of starting with a policy of full disclosure, from which certain specific categories of information are carved out, federal agencies instead start with St. Peter’s maxim: they’d rather cut off their left hand than allow it to obtain information about their right. Imagine being at the British Admiralty circa 1906 and receiving a request from Kaiser Wilhelm for a complete set of plans for the H.M.S. Dreadnought. That will give you an idea of the view contemporary federal agencies take toward FOIA requests.

Like water in a state of nature, less interesting work in a bureaucracy always flows downhill, where it is handled by persons of lower seniority and even less authority. This leads to over-classification of agency materials as top secret and exempt from FOIA. After all, if you’ve been at your agency job for four years or less and your responsibilities include responding to FOIA requests, why would you release something and risk your superior’s ire, if not your job? Better to pick out an exemption or two from the FOIA menu and send back a response of

REQUEST DENIED

Of course FOIA provides for remedies to obtain disclosure, and those often work for large media companies and the like. But for the vast majority of Americans who lack the resources to commence a FOIA enforcement action in federal district court, those remedies are worse than useless. They’re a cynical joke played on the American people.

Now we have another FERC FOIA dust-up. The North American Electric Reliability Corporation (NERC) submitted to FERC a Notice of Penalty against an electric utility for 127 cybersecurity violations between 2015 and 2018. The company agreed to pay a record-setting $10 million fine its cybersecurity violations. According to some reports the utility is Duke Energy, though that hasn’t been officially confirmed. FERC doesn’t want to publicly release the name of the electric utility.

Why shouldn’t the public be able to know whether their utility is the one that’s risking the reliability of their electricity supply and distribution system because they’re unable to get their cybersecurity act together? These violations, and the $10 million fine, are the fault of the utility’s management, not its ratepayers. Shouldn’t the ratepayers be allowed to know whether their utility is going to try to pass this cost onto them through rates?

Public Citizen, a watchdog group, has demanded that FERC disclose the utility’s name. They have stated that

“Concealing the name of the recipient of the largest fine in history sends a confusing message to the public that large penalties do not come with full accountability,” said Tyson Slocum, director of Public Citizen’s energy program and author of the filing. “Future violators may be able to similarly hide behind the veil of anonymity. Moreover, keeping the public in the dark about the cybersecurity track record of our electric utilities may create a false sense of security and reduce the likelihood of more public awareness and vigilance needed to protect cybersecurity.”

The real problem is that bureaucracies like FERC do not want the curtain pulled back on anything they do, regardless of whether any exemption applies. Any unplanned exposure of their operations risks upsetting their messaging and tarnishing the public image they want to create. Every public performance by an agency has to be staged just so, or else, in this internet media-driven age, a public relations catastrophe could occur.

 

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