In Ninth Circuit Court of Appeal, only six GOP appointees of twenty-nine seats

As the Trump Administration focuses on its important Supreme Court nomination of Brett Kavanaugh, we are also reminded that of the twenty-nine members of the important U.S. Court of Appeals for the Ninth Circuit, based in San Francisco, only six of the members were appointed by Republican presidents, resulting in the most liberal and highly overturned circuit court in the nation.  Sixteen of the current members were appointed by Democrats, and the vacancy rate is the highest in the nation, with seven positions not yet filled by President Trump.

“Scott Pruitt Wasn’t Elected President, Donald Trump Was!” – Jim Lacy on BBC World News – Video

In this clip from BBC World News airing on July 5, California Political Review Publisher Jim Lacy comments on the resignation of Scott Pruitt as Director of the Environmental Protection Agency, defends the President’s economic policies, and fields questions about the potential political impact of the resignation.

Becerra Loses Again – More tax dollars wasted on political posturing in court

Pro-life pregnancy centers secured an important First Amendment protection against compelled speech this week, and simultaneously, delivered another devastating loss to beleaguered California State Attorney General Xavier Becerra.

“Today is a victory for more than just the dedicated volunteers who staff pregnancy care centers,” said Catherine Glenn Foster, the president of Americans United for Life, in a statement. “It is also a victory for the thousands of women who go to the centers seeking life-affirming care and support.”

On Tuesday, the United States Supreme Court ruled that a 2015 California law, misleadingly known as the Reproductive FACT Act, violates the Constitution. The law required pro-life crisis pregnancy centers to publicize abortion services.

“The licensed notice is a content-based regulation of speech,” the majority opinion states. “By compelling individuals to speak a particular message, such notices ‘alter the content of [their] speech.’”

US Justice Foundation: Influential Amicus Brief

The 5-4 decision, authored by Justice Clarence Thomas, echoed arguments presented by the United States Justice Foundation in its influential amicus brief.

“If the FACT Act involved any topic other than abortion, it likely already would have been found in violation of the First Amendment principles that the government may neither compel nor suppress speech that it believes is misleading,” the US Justice Foundation wrote in its amicus brief.

The case, National Institute of Family and Life Advocates v. Xavier Becerra, dominated the headlines as an abortion rights case. Yet, legal experts universally agreed that the central question was whether California’s law violated the First Amendment.

“No one would require Alcoholics Anonymous to promote liquor stores,” writes Thomas A. Glessner, president of the National Institute of Family and Life Advocates, the petitioners in the case. “Pro-life clinics deserve the same respect.”

California lawmakers attempted to force Christian crisis pregnancy centers to contradict their religious beliefs by forcing the clinics to share information about abortion services with their patients.

“It is a sign of the times that the FACT Act is described not as promotion of abortion, but as a “reproductive health” measure,” the United States Justice Foundation argued in its amicus brief. “The California legislature unrighteously assumes the opposite — the highest good is abortion, not birth.”

Case Highlighted California Hypocrisy

In addition to violating free speech rights, the Supreme Court pointed out that California’s law was “too narrowly limited in scope and only attempted to impose this speech on crisis pregnancy centers opposed to abortion rather than any health center that offers services like birth control or family planning.”

 Such a blatantly discriminatory law would appear, on its face, to violate the Constitution. Nevertheless, California State Attorney General Becerra wasted taxpayer dollars to defend the poorly-drafted measure.

“Though this decision is worth celebrating, it’s lamentable that the Supreme Court was ever asked to consider such an obvious and malicious violation of the First Amendment,” National Review points out. “The FACT Act is perhaps the best example of the rapidly growing extremism of the abortion-rights movement — and, of course, of the intensely progressive bent of California’s state government.”

Steven Greenhut, the western region director for the R Street Institute, believes the case demonstrates hypocrisy in California’s pro-choice movement.

“The law spotlighted the hypocrisy of the “pro-choice” movement, which seems only to favor one particular choice,” writes Greenhut, a well-respected California journalist. “Crisis pregnancy centers are generally religious-based organizations, funded by donations, that provide a humane alternative to abortion. No one is dragging pregnant women into these centers.”

 Protection Against Pro-Life Discrimination

Dan Walters, a California opinion columnist, argues that even supporters of abortion should applaud the decision “for upholding the right not to be compelled by law to convey certain messages.”

“The legal and moral correctness of the decision is easily illustrated by flipping the circumstances,” he argues. “What if California law required clinics performing abortions to advise their clients about other alternatives?”

The Supreme Court’s decision in NIFLA v. Becerra reversed the liberal Ninth Circuit Court of Appeals – ensuring that pro-life residents of California will not be subject to discrimination.

 “We applaud the US Supreme Court for sending a clear statement today that pro-life Americans cannot be discriminated against and targeted by government,” stated Penny Nance, CEO and president of Concerned Women for America. “Malicious abortion politics definitely were the motivation behind it, but the case centered on the inappropriate mandate of the state compelling pro-life clinics to promote abortion in violation of their consciences.”

She added, “The case was about forced speech.”

Cell phone privacy data victory! U.S. Justice Foundation brief on winning side in Supreme Court.

The United States Justice Foundation is celebrating a major Fourth Amendment victory at the United States Supreme Court.

In a 5-4 ruling, the Supreme Court sided with the U.S. Justice Foundation and ruled in favor of greater constitutional protections from warrantless government searches of cell phone data. USJF filed an amicus brief in the case, Carpenter v. United States, in an effort to persuade justices of the importance of preserving property rights in the digital era.

“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” Chief Justice John Roberts wrote in his majority opinion. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”

The decision will require law enforcement agencies to obtain a search warrant before accessing extensive geolocation tracking data from a cellphone.

US Justice Foundation: Fighting Orwellian Tracking of Americans

Since 1980, the U.S. Justice Foundation has submitted testimony to the U.S. Senate on every Supreme Court appointee and routinely files amicus briefs in defense of constitutional principles. The Carpenter case was no exception and took up the matter of how to apply the Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” to cell phone geolocation data.

In its amicus brief, USJF and nearly a dozen other non-profit public interest organizations argued that the government has created a modern communications network that makes it impossible for citizens to protect their phone data from government intrusion.

“Indeed, in order to communicate in today’s modern world, defendants were forced onto government-controlled airwaves, on a government approved cellular network, using government mandated technology, transmitting government,” U.S. Justice Foundation wrote in an amicus brief. “Under such a system of pervasive control, the Orwellian tracking of Americans cannot be justified on a theory which presumes voluntary action and consent.”

During oral arguments, Justice Sonia Sotomayor echoed the U.S. Justice Foundation’s reference to George Orwell’s iconic novel Nineteen Eighty-Four.

“Most Americans, I still think, want to avoid Big Brother,” Justice Sonia Sotomayor said during oral arguments last fall. “They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.”

Chief Justice Roberts: Cell Phone Akin to Ankle Monitor

Nearly 400 million cell phone service accounts operate in the United States, Chief Justice Roberts noted in his decision.

“A cellphone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales,” he wrote. “Accordingly, when the government tracks the location of a cellphone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”

Government agencies submit requests to third parties for cell site location information, more commonly known as CSLI. According to Wired, AT&T and Verizon received approximately 125,000 requests from law enforcement for CSLI data in 2017.

“Rapid technological change inevitably outpaces the glacial evolution of the law and the Carpenter case is a perfect example,” writes legal commentator Curt Levey. “The location data in question was obtained under the Stored Communications Act (SCA), which did not require prosecutors to meet the “probable cause” standard of a warrant.”

USJF pointed out that, is “created by the cell phone user, which is created by the “labor of his body and the work of his hands” — and at his expense.” That argument resonated directly with Chief Justice Roberts, who wrote the majority opinion.

“In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection.”

Gorsuch Dissent: Proof Trump Appointed Thoughtful, Conservative Justice

In addition to the victory for Fourth Amendment property rights, the Carpenter decision confirmed that President Donald J. Trump appointed a thoughtful conservative justice to the U.S. Supreme Court.

“Gorsuch’s acumen and comprehension of the issue is a thing of beauty and one everyone should take time to read, despite its length,” writes political commentator Taylor Millard. “Gorsuch should be applauded for his dissent and prodding of the majority towards a more originalist viewpoint of the Constitution. His arguments are beyond sound and something which is sorely missing in American legal theory – yet appears to be making a slight return.”

Although he dissented in the case, Justice Gorsuch’s opinion offered the strongest defense of property rights and indicated he would have gone even further than the majority in protecting constitutional principles.

Even our most private documents— those that, in other eras, we would have locked safely in a desk drawer or destroyed—now reside on third party servers,” Trump-appointed Justice Gorsuch wrote in his dissenting opinion. “Just because you entrust your data—in some cases, your modern-day papers and effects—to a third party may not mean you lose any Fourth Amendment interest in its contents.”

Gorsuch questioned the validity of the third-party doctrine established in United States v. Miller, a weak standard that allows government agencies to seize materials held by third-parties, such as financial institutions or technology companies.

“Justice Gorsuch is doing what a lot of Fourth Amendment scholars have wanted the Court as a whole to do for a long time — examine in a clear-headed way the meta question of how the Court decides whether something is a search,” writes Lior Strahilevitz, the Sidley Austin Professor of Law at the University of Chicago Law School.

Significant, But Narrow Ruling

Advocates for constitutional principles heralded the Carpenter ruling as an important victory.

“The importance of today’s ruling in Carpenter v. U.S. should not be underestimated,” points out Damon Root, a senior editor at Reason and author of Overruled: The Long War for Control of the U.S. Supreme Court. “Carpenter may well be remembered as the most significant decision issued this term.”

However, the decision was also narrow and left open the possibility for law enforcement agencies to obtain some cell phone data without a warrant.

“Roberts emphasized that today’s ruling “is a narrow one” that applies only to historical cell-site location records,” observes Amy Howe, a former editor and reporter for SCOTUSblog. “He took pains to point out that the ruling did not “express a view on” other privacy issues, such as obtaining cell-site location records in real time, or getting information about all of the phones that connected to a particular tower at a particular time.”Other organizations supporting U.S. Justice Foundation’s position include Gun Owners Foundation, Gun Owners of America, Inc., Citizens United, Citizens United Foundation, Downsize DC Foundation, DownsizeDC.org, Conservative Legal Defense and Education Fund, The Heller Foundation, and Policy Analysis Center.

Jim Lacy on Trump/Kim Summit; G-7 Trade Debate, Australian Broadcasting’s “Weekend Breakfast”

In this video, California Political Review publisher and author Jim Lacy comments on questions about Donald Trump’s highly anticipated summit with Kim Jung Un on denuclearization of the Korean Peninsula and on the Trump Administration’s trade policies coming out of the recent G-7 meeting in Canada.

CA Supreme Court Nearly Vaporizes Independent Contractor Law – Setback to “Gig” Economy

In a recent sweeping ruling that helps labor unions but runs contrary to small businesses and Silicon Valley innovation and the developing “gig” economy inspired by companies like Uber and Lyft, the California Supreme Court has decided that hiring companies no longer have much a say in whether a person who provides services for hire is classified as an “independent contractor” or an “employee.” The implications of the new ruling, filed on April 30, in the “Dynamex Operations” decision are huge, as it will extend onerous state employment and labor laws to new classes of workers, and will force the reclassification of tens of thousands of business relationships in the state between businesses and their former contractors, in the process, eliminating or raising the costs of goods and services to average Californians, while standing as a major obstacle to new popular ideas in technology such as ride sharing and delivery services.

The facts of the case itself center on a delivery driver for a company who claimed he was misclassified as an independent contractor. The attorneys for the driver successfully argued against the current standard, which used a multi-factor test to determine the proper classification of a worker.

Many new technology-aided companies like Uber and Lyft depend on workers who want independence with flexible hours and who want to set their own pace of work. However, workers classified as employees under the state and federal labor laws are generally guaranteed more expensive health care benefits and worker compensation, as well as collective bargaining rights, especially in California. Unions are particularly opposed to independent contractor relationships and they seek leverages in the law to add more members and therefore more political power. Citing the need for more “worker-friendly” laws, one lawyer in support of the change said, hyperbolically, “as the federal government increasingly abandons its past commitment to protecting workplace rights, the states are stepping up to fill the gaps.”

Under the new rules, businesses have almost no say in how their business relationships between employees and contractors are separated and classified. The opinion or business model of a business that prefers to classify a relationship as independent contractor doesn’t matter much any more. Now, in California, the determination is made by applying the so-called three-pronged “ABC” test, which puts all the burden on the employer to show the worker is not an employee. Under the test, to establish independent contractor status, the business must show: 1.The worker is free from the control and direction of the hirer in connection with the performance of the work; 2. The worker performs work that is outside the usual course of the hirer’s business; and 3. The worker is customarily engaged in an independently established trade, occupation, or business of the same natures as the work performed for the hirer.

The second and third factors of the new test are seen as the most troublesome, especially for “gig” economy businesses. If a person is delivering the public food, for example, is the delivery part of the fundamental business of that entity? If it is, then the deliverer becomes a far more expensive employee, covered by state wage and hour and other labor laws, entitled to health care, and entitled to collective bargaining rights. If this is the case, then what are the implications to the state? Well, people who want flexible hours and the ability to work when they want as deliverers, will find lost business opportunities. And the cost of food delivery will likely go up dramatically. This implication is just the “tip of the iceberg.” The implications resonate throughout the economy to the detriment of not only gig businesses, but largely small businesses that do not want to be saddled with costly labor law enforcement issues, and even nonprofits who use skilled workers attempting to offer things like compassion and health services to the poor.

A copy of the Court’s decision can be accessed here: http://www.courts.ca.gov/opinions/documents/S222732.PDF

Five Things You Need to Know about John Cox

Here are five things you need to know about John Cox, excerpted and abridged from the Sacramento Bee, January 4, 2018:

  1.  He didn’t vote for Donald Trump. Cox, whose campaign slogan, “Clean out the Barn” is similar to President Donald Trump’s “Drain the Swamp,” didn’t vote for the GOP nominee. Cox supported libertarian Gary Johnson.
  2. Cox grew up and spent much of his life in Chicago.  He’s run unsuccessfully for Congress, the U.S. Senate and Cook County Recorder of Deeds. He also had an aborted presidential campaign ahead of the 2008 race.
  3. When he ran for president in the 2008 race, 10 Republicans made the cut for the GOP debate in South Carolina. Cox was not one of them.  [Editor’s note.  When Cox ran for the Republican nomination and appeared on the ballot in California, he finished 11th with less than one-tenth of 1% of the GOP vote.]
  4. Cox also unsuccessfully sought to place an initiative on the 2016 ballot requiring candidates to declare their top 10 donors in campaign advertisements. Elected officials would have also been required to wear badges detailing their biggest benefactors, much like NASCAR drivers.
  5. He’s the only Republican in the race who opposes the death penaltyJohn Cox

Trump’s and Obama’s Syrian Policies Compared – Jim Lacy on Australia’s “Weekend Breakfast”

In this video clip of an interview airing in Australia on April 15, California Political Review publisher Jim Lacy explains the policy behind President Trump’s successful strike on Syria and compares it to Obama’s failed policies.

Nancy Pelosi Facts

California’s Nancy Pelosi, the Democratic Leader in the House who represents a San Francisco Congressional District, is 77 years old.  She will be 78 on March 28, 2018.

She was born in Baltimore, Maryland and attended college on the East Coast.

She served as Speaker of the House from 2007 to 2011.  A CBS News poll conducted in her last year as Speaker in 2010 found 11% of voters nationally approved of the job she was doing, and 37% had an unfavorable opinion of her as Speaker.

Pelosi was first elected to Congress in 1987, almost 31 years ago, defeating gay San Francisco politician Harry Britt in a special election.  She has not participated in a candidate debate in her election campaigns for over 30 years.  Pelosi wins re-election easily in her heavily Democratic district.

In November, 2016, Pelosi was challenged for the Leader position of the Democrats by Congressman Tim Ryan.  She defeated Ryan by a vote of 134-63.

Pelosi was challenged again in June, 2017 after Democrats lost four consecutive special elections to the House.  Pelosi put down the challenge.  When asked specifically why she should stay on as House Minority Leader after numerous Democratic seats were lost, Pelosi responded,  “Well, I’m a master legislator. I am a strategic, politically astute leader. My leadership is recognized by many around the country, and that is why I’m able to attract the support that I do.”

Republicans have erased the Democratic advantage on the generic congressional ballot in 2018 in a new POLITICO/Morning Consult poll that, for the first time since April, also shows President Donald Trump’s approval rating equaling the percentage of voters who disapprove of his job performance.

Fully 39 percent of registered voters say they would support the GOP candidate for Congress in their district, while 38 percent would back the Democratic candidate.

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Jim Lacy Rips Obama Administration, FBI for Surveilling Trump Campaign; Comments on SOTU

In this clip from Australian Broadcasting Corporation’s “Weekend Breakfast” airing 2/4/18, author/commentator Jim Lacy offers his take on the release of a memo by House Republicans detailing abuses by the FBI and Obama Justice Department to surveil the Trump campaign.