Wednesday Writs for 2/27

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Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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6 Responses

  1. Avatar JoeSal
    Ignored
    says:

    [L4] The Selective Service System is an antiquated system. Federal conscription should have no standing in a individualist republic.Report

  2. Avatar Oscar Gordon
    Ignored
    says:

    L5: Can’t you file suit for trespassing? If no ED action is pending, then it’s straight up trespassing, right?

    L4: I’ve seen some speculation that this will result in the end of SS, or that it’ll somehow magically change the abortion debate (something something the draft something my body my choice something).Report

    • Avatar Em Carpenter in reply to Oscar Gordon
      Ignored
      says:

      I think they argued trespassing but the ruling was something about it being land they allowed open to the public? Not sure how they square that with cutting down the trees and leveling the land. It seemed like circular logic when I read it:

      “In dismissing the case, United States District Judge Richard Leon said the plaintiff’s claim under the Fourth Amendment rights against search and seizure without probable cause did not apply, since the personnel were working in open land “accessible to the visiting public, and no factual allegations suggest that defendants entered or searched without consent any physical structures on the Center’s property.” Even privately owned “open field” land is not protected under that amendment, Leon ruled.

      He also said the butterfly association could not challenge an eminent domain seizure that had not yet been handed down.”

      So they can start tearing down your trees and you can’t do anything about it unless they’ve instituted an eminent domain action?
      Sounds wrong, but admittedly not my area of legal expertise.Report

      • Avatar Oscar Gordon in reply to Em Carpenter
        Ignored
        says:

        Exactly, seems like a rather truck sized flaw in the law, if the government can make substantial changes to private property, open or otherwise, then what’s the point of ED? Any changes made strike me as a taking.Report

        • Avatar Kolohe in reply to Oscar Gordon
          Ignored
          says:

          here’s the full opinion (pdf)

          From what I gather from reading it, there’s essentially a 25 mile wide enforcement easement possessed by the Federal government adjacent to the Mexican border, in which this butterfly sanctuary resides.

          The current statutes gives the Department of Homeland Security broad prerogatives over this land, that overrule the normal property rights (i.e. exclusivity) that are normally incumbent on a land owner. (and that furthermore, that the DHS Secretary can just declare on her say so) The current status of 4th and 5th amendment constitutional case law does not seem to impede the actions that DHS and their contractors have done so far on the butterfly sanctuary property. Theoretically, they could do something that oversteps their authority, but that limit isn’t clear in the current precedents.

          (I think we may be close to a 3rd Amendment Moment)Report

          • Avatar PD Shaw in reply to Kolohe
            Ignored
            says:

            My read of the decision, which may be no better than yours, is that Congress passed a law authorizing DHS to waive all non-Constitutional obligations of the federal government in order to allow the feds to build barriers and roads along the border. This is at least partly described as a bar to federal court jurisdiction, and Congress has broader powers to limit federal court review than most people want to know. To summarize, if there is a trespass claim, the federal government waived it, and if there is a dispute about any of that, the courts have no authority to adjudicate it.

            Left with the 4th and 5th amendment, the 4th amendment caselaw is weak along the border, though the cases don’t really sound analogous (where or where is the curtilage?), and the 5th amendment claim is premature, and presumably there are the limitations of regulatory takings involved.Report

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