Senator Pat Toomey asks SEC Chairperson Gary Genzler what determines whether a cryptocurrency is a security or not.
- An investment of money
- In a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
He pushes Genzler to publically announce what the standards are but Genzler avoids answering.
This leads many to suspect that Genzler is trying to protect the banks rather than investors.
The threat posed by the Supreme Court’s refusal to block the Texas abortion law — which bans 85% to 90% of abortions performed in the state — goes far beyond reproductive rights. It opens the door to insidious copycat laws that could be used to attack other constitutional rights.
The Texas law bans abortions once a fetal heartbeat can be detected, around six weeks of pregnancy. Instead of requiring state prosecutors to enforce this clearly unconstitutional law, it gives private citizens the right to sue anyone who performs, aids or abets an abortion, or intends to do so, for a $10,000 payment from that party.
Because this law relies only on private civil lawsuits, a person targeted by this law (a clinic, a doctor, a person giving advice, a friend driving a woman to a clinic) cannot take the state or state officials to court to strike down the law. The state of Texas cannot be sued in federal or state court because it has sovereign immunity and it maintains that its officials cannot be sued because they are not involved in enforcing the law.
The bizarre twist in this devious law is that a doctor or other persons targeted can only challenge the law’s constitutionality as a defendant in a civil lawsuit. In other words, a courageous doctor or health professional would have to violate the six-week ban, be sued for money damages in Texas state court, and then argue as a defense that the law is unconstitutional. If a state judge rules in the defendant’s favor and strikes down the law, the case could then go up to the U.S. Supreme Court.ADVERTISING
There is a huge risk in this strategy for doctors and health professionals. If the Supreme Court overrules Roe vs. Wade — and its ruling Wednesday night suggests that five justices are willing to do so — then the Texas law would be upheld and the doctors would be liable to pay the money judgments. Not surprisingly, most reproductive healthcare facilities in Texas are complying with the unconstitutional law rather than face a wave of costly lawsuits.
This strategy has provided a roadmap for other states, not just to undermine abortion rights, but to endanger other constitutional rights as well.
For instance, even though the Supreme Court has ruled that gay and lesbian couples have the constitutionally protected right to marry, a state following the Texas blueprint could outlaw same-sex marriage and then allow private citizens to sue anyone who performs a same-sex wedding for money damages. A state could ban handguns (even though the Supreme Court has ruled that the 2nd Amendment protects a right to possess and own them) and authorize citizens to bring civil suits against anyone who has a handgun. In fact, a state could adopt a law banning criticism of the governor and then allow any private person to sue the critic for money.
Under the Supreme Court’s reasoning in the Texas case, the only way to challenge these unconstitutional laws would be to violate them, get sued by a private citizen, and then fight the lawsuit and the statute’s constitutionality.
This is a preposterous situation. And yet, this is what five conservative justices allowed in the Texas case.
Chief Justice John G. Roberts Jr., joining the three liberals on the court in dissent, wrote that he would have blocked the law. “The statutory scheme before the court is not only unusual, but unprecedented,” he wrote. “The legislature has imposed a prohibition on abortions after roughly six weeks, and then essentially delegated enforcement of that prohibition to the populace at large. The desired consequence appears to be to insulate the state from responsibility for implementing and enforcing the regulatory regime.”
The foundational principle of American jurisprudence is that all laws, criminal and civil alike, must comply with the Constitution. State statutes that prohibit abortion after the sixth week of pregnancy or outlaw same-sex marriage or forbid criticizing the governor all blatantly violate the Constitution. The kind of enforcement mechanism used does not lessen their unconstitutionality.
As Justice Sonia Sotomayor said in her dissent: “It cannot be the case that a State can evade federal judicial scrutiny by outsourcing the enforcement of unconstitutional laws to its citizenry.” If nothing else, the governor of a state, who is responsible for upholding its laws, should be able to be used by citizens trying to stop an unconstitutional law.
Regardless of Texas’ legal ploy, Roe vs. Wade, which held that the Constitution protects a woman’s right to abortion, remains the law of the land — including in Texas. The Supreme Court’s conservative majority, in its zeal to end abortion rights, has now put all constitutionally protected rights in jeopardy.
Erwin Chemerinsky is dean of the UC Berkeley School of Law and a contributing writer to Opinion. He is the author, most recently, of “Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.”
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.