Blog

It’s easy enough, sitting safely in our chambers, protected by U.S. Marshals with guns and dogs, surrounded by concrete barriers and security cameras, to say that officers in the field had no cause to fear for their safety. But if we’d been there when I.E.V. and his brother pulled up in their car, heard the police dog alert and seen one of the suspects fidget like he was reaching for a weapon, I’d have dived for cover into the nearest ditch, and my guess is I wouldn’t have been the first one there.

From his dissent in United States v. I.E.V.

Yeah, I have no idea.

Just watch the video from the Staten Island Advance.

Zachary Osher, owner of Metropolitan Drape & Blind, spotted the bizarre scene and shared his video with the Advance and SILive.com.

“I was sitting at my desk at about 9:20 when I saw a zebra and pony run back and forth across the street, almost getting hit by a car,” he told us.

But it gets even crazier: “About 30 seconds later, I saw two men in dark black suits carrying lassoes running across the street.”

Osher is at a loss to explain such events. “I have no idea how it got there. … I figured [the men with lassoes] knew what to do.”

H/T New Yorker

Update: The zebra and pony have returned to their home.

A zebra and pony seen trotting down Victory Boulevard in Travis were returned to their owner’s nearby home after the duo fled their stable sometime around 9 a.m. Wednesday.

Razzi, a young white-and-brown striped zebra, and his pony in crime, 15-year-old Casper, escaped Giovanni Schirripa’s home and strolled down Victory. The two went as far as the Greenbelt Native Plant Center before emergency officials intervened. Schirripa, the animals’ owner, lured them back to their Travis Avenue home with food.

“I let them out to clean the stall, and I forgot to shut the gate. I always do it,” said Schirripa, regarding the cleaning. “But this time, I didn’t shut the gate.”

They immediately darted out of his yard. It happened between 9 and 9:20 a.m., he said.

“Would you want to stay in a cage?” laughed his mother, Maria.

I had no idea people in Staten Island kept zebras in their homes? Wait till Bloomberg finds out about this!

The Tucson Sentinel reports that PACER generates revenues “nearly five times what it cost to run the system.”

Between fiscal years 2006 and 2010, the government collected an average of $77 million a year from PACER fees, according to the most recent federal figures available.

According to the report, in 2010 for example, PACER had an operational cost of $22 million, maintained $38 million in revenues from 2009, earned an additional $95 million in fee revenues, and thus had (95+38-22) $111 million in revenue surplus.

The Judiciary Appropriations Act of 1992 limited the use of PACER fees to “reimburse expenses incurred in providing these services.” But lawmakers on the House Appropriations Committee have allowed the courts to invest in a wider range of information technology projects using fees collected from PACER. Fees for online access have risen from 7 cents to 10 cents per page.

From this graph, it seems that PACER’s operational costs are nowhere even remotely close to the fees being generated. PACER has recently increased the charge for each page downloaded from $.08 to $.10.

Update: Title corrected, see comments.

One of the arguments in favor of granting corporations a right to freedom of speech is the position that a corporation is simply a group of people, and that the corporate structure allows those people to speak, and to be heard more effectively. The argument in opposition to that position is that if individuals want to exercise their rights of free speech they should, but it is wrong for a host of reasons to confer that constitutional right on the corporation.

Does that same argument apply to the free exercise of religion? The recent suits brought by Christian-owned businesses against HHS over the contraceptive mandate have made this question quiet salient.

Can individuals “exercise their religion” through for-profit corporations, for example a Christian Book store? Do these corporations have, through some transitive property, the rights of freedom of religion of their members?

Granted, these cases are brought under RFRA, but let’s conjecture about whether these cases could be brought under the First Amendment (don’t worry about how they’d fare under Smith–they’d lose).

Ed Whelan’s post on the Tyndale House Publisher case, in which the challengers won, illustrates this point well.

All three of the victories against the HHS mandate (and all four of the preliminary-injunction rulings) have come in cases involving for-profit businesses . . . Rather than running a purely secular line of business, Tyndale is a publisher of religious books; and, rather than challenging the HHS mandate in toto, Tyndale challenges it only insofar as it requires coverage of abortifacients. But on my reading of Walton’s opinion, it seems doubtful that the illegality of the HHS mandate turns on these distinctions. To be sure, Walton, properly focusing on Tyndale’s “specific characteristics” (p. 29), presents these particulars, and the abortifacient-only challenge is central to the first part of his compelling interest analysis (pp. 29-32), but I see no reason to believe that his bottom line would be different for the owners of a secular business who had religious objections to providing coverage of contraceptives generally

Likewise, Ed’s post on the Hobby Lobby case, in which the challengers lost, further demonstrates the nature of corporations asserting some spectre of the right to free exercise.

Judge Heaton’s determination that plaintiffs did not establish a likelihood of success on their claims under the federal Religious Freedom Restoration Act hinges on the unique disability that he imagines for-profit corporations to suffer from, a disability that doesn’t afflict either religious corporations or unincorporated for-profit businesses. In his view, the only corporations that have rights under RFRA are “religious corporations” “because believers ‘exercise their religion through religious organizations’” (pp. 11, 18). Further, adopting a “directness” factor, Heaton reasons that the individual plaintiffs who own and operate the corporations’ businesses likely don’t face a substantial burden under the HHS mandate because the mandate applies only to the corporations, “not to [their] officers or owners” (and because the particular burden of which they complain would supposedly* arise only “after a series of independent decisions by health care providers and patients covered by” the corporate health-insurance plans) (p. 23). Evidently this factor would apply differently for an unincorporated business, where the mandate would operate directly against the business’s owners. Heaton’s conclusion that for-profit corporations face a unique disability under RFRA, a disability that both religious organizations and unincorporated businesses escape, is puzzling.

So the mandate applies directly to the corporation, and not to the individual. That seems about the same as campaign finance laws, for example.

For starters, it is clear that religious believers may “exercise their religion” through for-profit corporations as well as through nonprofit religious organizations. The two plaintiff corporations amply illustrate the fact. As the complaint makes clear (in uncontested allegations that Heaton doesn’t see fit to acknowledge), the Green family undertakes to operate Hobby Lobby “in a manner consistent with Biblical principles” (¶¶ 41, 42). For example, they use Hobby Lobby profits “to support Christian charities and ministries around the world” (¶ 39); they close their stores on Sundays (¶ 45), and they close early on other days “so that employees can spend the evening with their families” (¶ 39); and they take out full-page ads that celebrate the religious nature of Christmas and Easter and that direct readers for spiritual counseling (¶ 47). Under what possible theory are these not exercises of religion within RFRA’s broad definition of that term?

Much like shareholders can speak through their corporation, believers can “exercise their religion” through their corporations.

The Tyndale case addresses this issue, but notes that the courts have declined to resolve it.

This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. See, e.g., First Nat’l Bank v. Bellotti, 435 U.S. 765, 777-78 n.14 (1978) (recognizing that corporations have First Amendment speech rights, but declining to “address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment”); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir. 2009) (“We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause . . .”); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n.7 (5th Cir. 1981) (same).

Perhaps most interestingly, Bellotti was overruled by-ding, ding, ding Citizens United! The fact that none of these citations are post-Citizens United makes me think this issue is ripe and live. [Update JB: My friend Mike Sacks wrote to remind me that Citizens United overruled Austin v. Chamber of Commerce, not First National Bank v. Bellotti. My mistake. In fact, Citizens United was based on the reasoning of Bellotti, and in some respects bolstered it. So, perhaps this makes the case even stronger that this issue is stronger now than before CU].

Corporate personhood for free exercise rights!

Federal Hall in New York City served as the home of President Washington’s first inauguration, the first Congress, the enactment of the Judiciary Act of 1789, the adoption of the Bill of Rights, and so many other amazing firsts for our Republic. Too bad it was demolished in 1812. Seriously. The capital of the United States moved from Federal Hall in New York to Independence Hall in Philadelphia in 1790. For some time, Federal Hall was used for local government offices, but eventually the building was razed in 1812. Unbelievable. In Manhattan, the air rights above Grand Central Station were protected for historical value, but not the home of our first government.

In any event, in 1842 the United States reacquired the land and built a Customs House. It later served as a United States Sub-Treasury. In case you ever read The Slaughter-House Case (which identified access to sub-treasuries as the among the most fundamental privileges or immunities of citizenship), one could trade in greenbacks at the Sub-Treasury for gold there. In 1955, the new building was designated as a national memorial.

Anyway, here are some cool pictures of this pseudo-landmark.

There is a huge statue of General Washington in front of the redesigned Federal Hall.

And I really like it from this angle–the General is staring down the New York Stock Exchange.

This relief was also very well executed.

 Keeping with the trend of not having actually authentic stuff, the museum had a replica of George Washington’s desk.

One of the only remaining remnants of the original edifice is this stone plaque. The park ranger told me that someone purchased it at auction for roughly $400. The inscription reads:

Standing on this stone in the balcony of federal hall, pril 30 1789, George Washington took the oath as the first President of the United States of America.

What’s also fascinating is how obscure the National Park Service makes the fact that the current building was not the site of Washington’s innaguration. I seemed to recall from some previous research that the original Federal Hall was no longer in existence but after spending 25 minutes at the Hall I thought maybe I was mistaken. Nope. This tidbit was buried in a small sign in the exhibit. The last sentence reads:

This great landmark was demolished in 1812.

Interestingly, Ohio dedicated a plaque commemorating the Northwest Ordinance, which was enacted under the Articles of Confederation in Federal Hall.

Another neat artifact was a document from the First Congress listing the salaries of officers of the United States–the total amount was roughly $25,000. 

Note: Judges in the Northwest Territories earned $800 per year. Alexander Hamilton was raking it in with $2,000 a year.

One note: the first actual meeting of the United States Supreme Court took place in Philadelphia in 1791, as SCOTUS did not have any business to transact 1789 and 1790.

Here is a photo of a plaque commemorating the first court from my recent Philadelphia trip.