The Volokh Conspiracy

On Friday, Jonathan pointed out United States v. Blewett, the new Sixth Circuit decision on the 100-1 crack-cocaine sentencing disparity. Jonathan described the issue in that case as being whether the 2010 Fair Sentencing Act applied retroactively. But the most remarkable part of Blewett actually decides a different question that was neither briefed nor argued: Whether the 100-1 disparity in effect before 2010 was constitutional. And the majority’s argument for why the 100-1 disparity was unconstitutional strikes me as not just wrong but obviously so.

According to the majority opinion signed by Judges Merritt and joined by Judge Martin, the Equal Protection Clause requires judges to disregard bodies of law that have known racially discriminatory effects. That’s the case because applying law that has a known discriminatory impact would be an intentional act of discrimination by judges that the Equal Protection clause forbids. Here’s the key part of the opinion:

In view of the statistical facts and the widespread congressional consensus leading to the adoption of the Fair Sentencing Act’s remedial provisions [replacing the 100-1 ratio in 2010 with an 18-1 ratio], there can be no doubt that the old crack law was racially discriminatory in effect. As a matter of legal doctrine, there is no equal protection violation without discriminatory intent. See Washington v. Davis, 426 U.S. 229 (1976). When the old 100-to-1 crack cocaine statute was adopted, it presumably did not violate the Equal Protection Clause because there was no intent or design to discriminate on a racial basis. Its adoption was simply a mistake. Since 1986, however, we have gained knowledge of the old statute’s devastating effect on blacks. Congress itself acknowledged this problem by enacting the Fair Sentencing Act.

The Fair Sentencing Act was a step forward, but it did not finish the job. The racial discrimination continues by virtue of a web of statutes, sentencing guidelines, and court cases that maintain the harsh provisions for those defendants sentenced before the Fair Sentencing Act. If we continue now with a construction of the statute that perpetuates the discrimination, there is no longer any defense that the discrimination is unintentional. The discriminatory nature of the old sentencing regime is so obvious that it cannot seriously be argued that race does not play a role in the failure to retroactively apply the Fair Sentencing Act. A “disparate impact” case now becomes an intentional subjugation or discriminatory purpose case. Like slavery and Jim Crow laws, the intentional maintenance of discriminatory sentences is a denial of equal protection.

As I understand the reasoning, Judges Merritt and Martin work around the requirement of invidious purpose to discriminate by saying that judicial application of laws with known discriminatory effect forces the judges to have invidious purpose to discriminate when they apply the law. In other words, discriminatory effect plus awareness of it amounts to intentional discrimination in the act of applying the law. And the need to avoid discrimination not only trumps the law but also trumps binding precedents saying that the law is constitutional. The argument doesn’t work on its face, as a judge who applies binding law that may have a discriminatory effect does so not because she wants to achieve a discriminatory result but because that result is what the controlling law requires. But in any event, Judge Gilman’s dissent nicely points out the binding precedent to the contrary. The majority doesn’t even bother with much of a response to Judge Gilman’s dissent: See Footnote 6, which for the most part doesn’t even track forms of legal argument.

I agree that the 100-1 disparity was terrible policy. But the majority’s constitutional analysis strikes me as not just wrong but obviously so.

Over at MotherJones, Kevin Drum has an interesting post on the AP leak investigation: Here’s Why the Government Went Ballistic Over the AP Leak.

Also, over at Slate, Emily Bazelon and former VC blogger Eric Posner debate whether the subpoenas of the AP records were justified. Eric gets the better of the argument, I think, but it’s a helpful exchange either way.

On Friday, May 17, fifty-four Colorado Sheriffs filed a civil rights lawsuit in Federal District Court in Denver, against two anti-gun bills passed by the Colorado legislature in March. Joining the Sheriffs as Plaintiffs are the Colorado Farm Bureau, disabled persons, Outdoor Buddies (an organization that helps disabled persons participate in outdoor sports), the Colorado Outfitters Association (the trade association for hunting guides), the National Shooting Sports Foundation (the trade association for the firearms industry), magazine manufacturer Magpul, federally-licensed firearms dealers, the state’s largest shooting range, the Colorado State Shooting Association (governing body for the shooting sports in Colorado), and Women for Concealed Carry. The Complaint is available here.

The lawsuit involves House Bill 1224 (a sweeping ban on magazines, including small magazines) and House Bill 1229 (an unworkable system of background checks for temporary transfers of firearms, and for private sales). The Complaint alleges violations of the Second Amendment, Fourteenth Amendment (vagueness), and Title II of the Americans with Disabilities Act.

A 38 minute video of the press conference announcing the suit is available on YouTube. In this case, I am representing the Sheriffs.

Friday afternoon, Grand County Sheriff Rodney Johnson joined the case, bringing the number of plaintiff Sheriffs to 55 out of the 62 elected County Sheriffs in Colorado. (Denver and Broomfield have appointed Sheriffs who run the jail, but do not have the comprehensive responsibilities of the elected Sheriffs.) The Complaint will be amended next week to reflect Sheriff Johnson’s participation.

My wife and I recently watched Star Trek: Into Darkness, the second in the series of J.J. Abrams-directed”reboot” Star Trek movies that began in 2009. On the plus side, the film had some impressive action scenes and special effects. It also had more and somewhat better character development than its predecessor. Long-time fans of the series might like the many clever nods to the original series from the 1960s. At the very least, the movie was fun to watch, and I think we got our money’s worth.

Nonetheless, the negatives outweigh the positives. Unsurprisingly, Into Darkness has most of the same flaws as the previous Abrams Star Trek movie, which I criticized here. Both films essential turn Star Trek into an action movie that just happens to utilize Trek characters and settings. I am far from an uncritical admirer of Star Trek as envisioned by Gene Roddenberry and his successors. Nor was I ever the kind of fanatical Trekkie who goes to conventions wearing Vulcan ears or signs up for classes at the Klingon Language Institute. But, despite its many flaws, I admired the Star Trek franchise’s willingness to take on big questions about the kind of future we should want for humanity. Abrams’ “reboot” essentially ignores all serious issues, and just ramps up the action. I don’t deny that a “reboot” may have been needed, given the poor quality of the last several old-line Star Trek movies; but not a reboot that jettisons almost everything that made Star Trek interesting and unique.

In addition, Into Darkness has huge plot holes big enough to fly a whole fleet of Romulan warbirds through. In the interest of avoiding spoilers, I won’t go through them in detail. I will only note that, for the Federation to get into the predicament that is the main focus of the plot, Star Fleet’s leadership would have to be ridiculously stupid. To take just one of many examples, it seems that Star Fleet Headquarters and Earth generally have no fixed defenses of any kind against incoming warships and missiles, even though previous history clearly established that such defenses are both feasible given the level of their technology, and clearly necessary, given previous enemy attacks. Yet none of the characters even mention this and other comparably ridiculous mistakes, not even the supposedly hyper-logical Mr. Spock (who makes some whopping errors of his own in the movie, which are also ignored by the other characters).

Perhaps the real implicit message of the reboot movies is to endorse the views of social critics who worry that advancing technology has bred a “generation of nincompoops.” Maybe the producers expect the nincompoopery to get even worse in the future, infecting Vulcans and Klingons as well as humans. Indeed, if the Klingons, Romulans, and other rivals of the Federation were minimally competent, it’s hard to understand how the Star Fleet portrayed in the reboot movies could possibly have become a major power in the galaxy. Maybe the “darkness” into which the Federation has descended is a severe outbreak of extreme stupidity among Star Fleet’s best and brightest. Although I strongly disagree with this kind of technopessimism, a science fiction series that seriously explored the idea that high technology leads to a “dumbed down” society might be interesting. Unfortunately, Abrams’ movies seem to raise the issue only unintentionally.

A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links):

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts.

According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here.

In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision?

The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.”

The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows....

Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

I’ve blogged a few times about the substantial lower court division on whether the police can search a seized cell phone incident to arrest without a warrant under the Fourth Amendment. Today the First Circuit further deepened the split in United States v. Wurie by holding that a warrant is required.

With Wurie today and the Florida Supreme Court’s decision in Smallwood a few weeks ago, I would think that Supreme Court review of this legal question is highly likely sometime soon. (Notably, Deputy SG Michael Dreeben argued Wurie for DOJ.)

For my own views on the question, see my short essay Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403 (2013).

Next Monday at 7 AM eastern time (probably rebroadcasting at that time in other time zones), I will be on Stand Up! with Pete Dominick on Sirius XM Satellite Radio, discussing my forthcoming book Democracy and Political Ignorance: Why Smaller Government is Smarter, which will be published by Stanford University Press in early fall (probably September or early October).

Stanford UP has created a website for the book. You can, if you like, preorder the book there. We even have a special coupon code just for Volokh Conspiracy readers that will give you a 20% discount at the Stanford site; the code is S13LAW. OK, actually the code is available to anyone who wants to use it. But at least VC readers will now be the first to find out about it! You can also preorder the book at Amazon, while still being eligible for any price reductions that either Amazon or Stanford UP adopt between now and the publication date.

Sirius Satellite Radio has posted the audio of my recentdiscussion of the Supreme Court with George State University Professor Eric Segall on Stand Up! With Pete Dominick. The audio is available here.

Much of the discussion focuses on general issues of constitutional theory and the extent to which the Supreme Court is or is not politicized, which I recently wrote about in this article. But towards the end, we also talked about the gay marriage cases currently before the Court, including my view that laws banning same-sex marriage are examples of unconstitutional sex discrimination.

Prof. Dennis Crouch, at the respected and often-cited Patently-O blog, had a post several weeks ago with a heading that was good advice, Don’t Write This Letter to the Patent Office:

We all get frustrated. After an examiner rejected his client’s application for a telescoping tripod sprinkler, patent attorney Andrew Schroeder could no longer resist and filed the following remarks:

REMARKS: Are you drunk? No, seriously…are you drinking scotch and whiskey with a side of crack cocaine while you “examine” patent applications? (Heavy emphasis on the quotes.) Do you just mail merge rejection letters from your home? Is that what taxpayers are getting in exchange for your services? Have you even read the patent application? I’m curious. Because you either haven’t read the patent application or are… (I don’t want to say the “R” word) “Special.”

Numerous examples abound in terms of this particular Examiner not following the law. Clearly, the combination of references would render the final product to be inoperable for its intended use. However, for this Special Needs Examiner, logic just doesn’t cut it. It is manifestly clear that this Examiner has a huge financial incentive to reject patent applications so he gets a nice Christmas bonus at the end of the year. When in doubt, reject right?

Since when did the USPTO become a post World War II jobs program? What’s the point of hiring 2,000 additional examiners when 2,000 rubber stamps would suffice just fine? So, tell me something Corky…what would it take for a patent application to be approved? Do we have to write patent applications in crayon? Does a patent application have to come with some sort of pop-up book? Do you have to be a family member or some big law firm who incentivizes you with some other special deal? What does it take Corky?

Perhaps you might want to take your job seriously and actually give a sh.t! What’s the point in having to deal with you Special Olympics rejects when we should just go straight to Appeals? While you idiots sit around in bathtubs farting and picking your noses, you should know that there are people out here who actually give a sh.t about their careers, their work, and their dreams.

Your job is not a joke, but you are turning it into a regular three ring circus. If you can’t motivate yourself to take your job seriously, then you need to quit and let someone else take over what that actually wants to do the job right.

See U.S. Patent Application No. 13/068530 (PAIR). [Update: It appears that the PTO has now removed the letter from the file history.] ...

An effective way for a patent lawyer to communicate with the patent office? You decide.

But Andrew Schroeder wasn’t done — instead of posting an apology (which I expect Patently-O would have been glad to post), or even just ignoring the publicity, he doubled down on rude, with several posts such as this one, calling Prof. Crouch a “dickhead” and then using various further vulgarities. This unsurprisingly led to more coverage, for instance at Above The Law and TechDirt.

The reputational consequences of these communications to Mr. Schroeder can be seen by Googling Andrew Schroeder patent. There is one bit of good news from this, though: The winners are Mr. Schroeder’s prospective clients, who can now more easily get a sense of the sort of conduct that they can expect from him.

From the moment of the initial disclosure of IRS targeting of conservative groups, observers have speculated about the timing and location of the disclosure. Could this really have been an unplanned, impromptu remark? No. In fact, the question was planted and Lois Lerner’s statement was pre-planned. As additional information trickles it out, it is also becoming clearer that the actions at issue were more widespread, and more widely known within the agency, than initially suggested. Lerner herself sent at least one letter to a Tea Party group seeking additional information, and many of her initial claims don’t stand up to scrutiny. It’s no wonder Lerner has yet to agree to testify before Congress (though I doubt she’ll have much choice in the matter for long).

UPDATE: Was the decision to target Tea Party groups an understandable (if unwise) response to a surge in applications for 501(c)(4) status? Not according to this report in The Chronicle of Philanthropy.

Top IRS officials have been saying that a “significant increase” in applications from advocacy groups seeking tax-exempt status spurred its Cincinnati office in 2010 to filter those requests by using such politically loaded phrases as “Tea Party,” “patriots,” and “9/12.” . . .

The scrutiny began, however, in March 2010, before an uptick could have been observed, according to data contained in the audit released Tuesday from the Treasury Department’s inspector general for tax administration. . . .

The audit says the IRS began to use “inappropriate criteria” to single out applications in March 2010. By April 2010, a “sensitive case report” was issued on “Tea Party cases,” indicating that managers in Cincinnati were aware of the sensitive nature of the reviews.

According to the audit, 1,735 groups applied for 501(c)(4) exemption for the federal fiscal year that ended September 30, 2010—six months after the IRS began its scrutiny. That was down slightly from 1,751 the prior year.

The number grew to 2,265 during the fiscal year that ended September 30, 2011, and to 3,357 in 2012. By then the criteria the IRS was using to flag groups had changed three times to include searches for groups with names that contained “Bill of Rights,” “educating on the constitution,” and “limiting/expanding government.”

Meanwhile, at Legal Ethics Forum, John Steele wonders “where were the lawyers?”

FURTHER UPDATE: The NYT reports that high-level administration officials knew about the potential targeting of conservative groups in 2012, months before the election.  See also this report from NBC’s Lisa Myers.

Tags: IRS

Floyd Abrams was invited to say a few words about his latest book Friend of the Court: On the Front Lines with the First Amendment (Yale University Press, 2013). His comments are set forth below.

When one tries to determine which of his articles, speeches, testimony, letters, reviews and the like over a 45-year period are worth publishing in book form, the choices are not easy. It’s not that there are so many imperishable morsels; passing the ugly question of whether anything is worth publishing, there remains the far more prosaic issue of which issues remain live ones, and which positions are worth rearguing.

I had, for example, been dubious about whether to include my 2005 testimony before the Senate Committee on the Judiciary in favor of adopting a federal shield law for journalists and more dubious still about including a 1979 speech (the oldest offering in the book) about the same subject. But I thought the issue, rather quiescent in the past few years, could well resurface in the years to come — and then came the Department of Justice with its breathtakingly subpoenas to the telephone companies that serve Associated Press. I cannot offer thanks, but I am appreciative.

So, too, with privacy issues. The conflicting claims of disclosure and privacy have led to far less litigation than I had expected. I decided, nonetheless, to include a speech I gave that is quite critical of the most celebrated and cited law review article ever written, the classic Brandeis-Warren paean to privacy published in the Harvard Law Review in 1890. The renewed discussion, after the terrorist explosions at the Boston Marathon this year, about the amount of cameras that film so many of our activities, has led to renewed discussion of various aspects of privacy and I am pleased that I included at least one article of mine weighing in on the subject.

Probably the most eclectic chapter in Friend of the Court is the first which deals, in a variety of ways, with state censorship. The first entry , one of my favorites, is an introduction I wrote to a book of New York Times articles published throughout the twentieth century about censorship here and abroad.

Starting with the observation that “[t]here is a terrible logic to state censorship,” I seek to summarize highpoints of a book which brims with life as it describes in real time political censorship in Hitler’s Germany and Stalin’s Soviet Union, theatrical censorship in England and France, and what would now be viewed as unthinkable censorship in our own nation.( A laconic description of a hearing in New York in 1921 in which a “story entitled ‘Ulysses’ “ which was “the product of one Joyce” was ordered banned because “parts of the story seemed to be harmful to the morals of the community” is particularly memorable). From there, the book moves to a debate I had with Professor Catherine MacKinnon about censorship, chaired by Anthony Lewis, to congressional testimony about free trade in ideas; a summary of the Brooklyn Museum case; two book reviews; and a letter defending the ACLU against charges that it had wrongfully defended Nazi speech in the Skokie Case. It is a busy chapter.

Other chapters are narrower in scope, dealing with American free speech law vis-à-vis that of other nations (particularly the United Kingdom); the First Amendment and national security; and libel, privacy, copyright and other areas of continuing conflict. Particularly controversial, I suppose, is my defense (sometimes a lonely one) of the Citizens United ruling and my criticism of Julian Assange for what I believe to be his repeated recklessness in determining what documents to release.

A number of the offerings include significant criticism of the press and sometimes its purported defenders. In that respect, a major theme of the book is my concern about what I believe is the far too politicized way First Amendment views are formulated and expressed. Historically, the American Right has been either indifferent to First Amendment claims or resistant to them. In more recent days, however, the Right has supported First Amendment claims that have been consistent with its adherents’ ideological overview. Motivations aside, I think this has served First Amendment interests well. At the same time, the Left has seemed to me far too prepared to subordinate libertarian First Amendment interests to other interests.

I quote twice in the book from a passage of Isaiah Berlin that I find particularly powerful: “Everything is what it is: liberty is liberty, not equality or fairness or justice or culture or human happiness or a quiet conscience.” I criticized The Nation, for example, for complaining that the “wrong side” keeps “winding up with the First Amendment in its corner” and urged it to rethink its “political positions to avoid being on the wrong side of the First Amendment.”

I conclude Friend of the Court with a plea to all that I believe is consistent with the whole book: “Is it really too much to ask that those who claim that they care about the First Amendment—everybody, that is—stand in favor of free speech even when the speech at issue pains them ideologically?”

Tags: First Amendment, Free Press, Free Speech

After years of resistance, I have finally joined Twitter. Perhaps, as the Borg would say, resistance is futile and assimilation into Twitter is inevitable. For readers who may be interested, my Twitter username is IlyaSomin.

Despite this capitulation, I will not be completely assimilated into the Twitterverse. Given my rational ignorance about pop culture other than sports and science fiction, I won’t be tweeting any celebrity-related gossip. Not even if I somehow turn into the Twitter equivalent of Locutus. Instead, I will most likely be using the account to tweet about my activities elsewhere, such as recent or forthcoming books, articles, speaking appearances, and the like.

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit, in United States v. Blewett, held that the Fair Sentencing Act’s modification of mandatory minimum sentences for crack cocaine must be applied retroactively. Judge Merritt, joined by Judge Martin, wrote for the panel. Judge Gilman dissented.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.

Judge Gilman’s dissent begins:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .

The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.

Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.

The Washington Post reports on reasons for some skepticism about the seriousness of the leak that prompted the seizure of AP phone records.

The targeting of Tea Party and other right-leaning groups by the IRS is a major scandal. Yet, as Walter Olson notes, some of the Administration’s critics have gone a bit overboard trying to tie the scandal to the White House.

It’s one thing to note the lopsided political contributions of IRS employees, including those in the relevant office (as reported by Tim Carney). It is quite another to try and tar some of the officials involved because of alleged political ties of their spouses simply because they work at a major law firm and the firm (or its partners) made political contributions to the President or anyone else. Making such charges, as Olson notes, amounts to “firing blanks.”

Tags: IRS