In an effort to keep RedState readers updated regarding court cases in the eleven circuit courts of appeal (I am not including the DC Circuit) that may eventually reach the Supreme Court, or that touch upon issues near and dear to conservatives, I thought it worthy to briefly discuss, by circuit, some cases. I will probably do this every three months in an effort to keep readers informed.

From the First Circuit: On April 4th, the court in Boston is scheduled to hear argument on the constitutionality of Section 3 of the Defense of Marriage Act (DOMA) enacted in 1996. Specifically, it questions whether the Federal government can deny federal benefits to same-sex couples married in a state that recognizes such marriages. More detail on the case can be found in a previous entry entitled, “DOMA Headed for the Supreme Court?” by this author.

From the Second Circuit (located in New York): An elementary school student in Orange County, New York was suspended for six days for drawing a cartoon depicting his school being blown up. His parents sought to have the suspension removed from his record citing his First Amendment right of free expression. Before anyone goes off and says that schools have the right to discipline students for this type of behavior, the Circuit Court acknowledged that context could be a perfectly acceptable First Amendment defense. In this particular case, no one apparently took the drawing in question seriously. That is, it was perceived as a joke by those who saw the picture. All, that is, except the school’s administration. Realizing that school officials should be sensitive to perceived “threats” towards school safety and security, the question is whether those sensitivities should trump First Amendment protections and taken to an extreme, how far the government can go in restricting First Amendment rights in response to perceived threats.

From the Third Circuit (based in Philadelphia): They recently ruled against six plaintiffs in an age discrimination case despite the fact that they met the so-called parameters of the McDonnell-Douglass test. To prevail under that test, they must prove (1) they were members of a protected class, (2) they suffered something that adversely impacted upon their employment status, (3) they were qualified for the position rom which they were adversely impacted, and (4) they were replaced with significantly younger workers. However, ignored in all this is the fact that all six plaintiffs had violated the company’s e-mail policy, the reason for their termination. Specifically, they had shared on company computers sexually explicit material. Therefore, having lost in the trial court, their appeal was shot down.

From the Fourth Circuit (based in Richmond): In Baltimore and Montgomery County, Maryland, there are local ordinances that require pregnancy counseling centers to state they do not provide medical services. The Baltimore ordinance requires counseling centers to post disclaimers stating they do not provide abortion or contraception services. The lower courts have ruled that these ordinances infringe upon the center’s Free Speech rights under the First Amendment. The municipalities contend they are merely enforcing an ordinance akin to truth-in-advertising laws. NARAL and Planned Parenthood claim that in absence of such signs, women are misled and that the signs merely require that the center be upfront when the women walk through the door. To me, at least, this sounds like NARAL and Planned Parenthood trying to protect women from themselves and is, quite frankly, sexist and assumes women are incapable of making such distinctions in the absence of government-mandated signs. But such is the liberal mind. {Incidentally, did you ever notice how pro-choice people are more apt to rail against animal research and not against the killing of human life?}

From the Fifth Circuit (based in New Orleans): Here, the Circuit Court struck down the ordinance of a Dallas suburb that required building inspectors to determine the legal immigration status of potential tenants. If landlords knowingly rented to illegal immigrants, they could lose their license to rent within the city. The court struck down the ordinance based on Supremacy Clause grounds citing that the federal government was responsible for enforcement of immigration policies and laws. Of course left unanswered was what if the federal government was not enforcing the laws in the first place. No doubt, the final disposition of this case will have to wait until the case currently before the Supreme Court- Arizona vs. United States- is decided to determine if states and local authorities can pass laws in furtherance of federal policy and law in the area of immigration. It should be noted that this decision occurred in perhaps the most conservative circuit in the federal court system.

From the Sixth Circuit (based in Cincinnati): The big case recently decided here and likely to end up before the Supreme Court because of circuit disagreement involves the draconian labeling laws for cigarettes. Congress granted the FDA authority to enact new labeling requirements. They came up with one that requires 50% of the packaging to display, quite frankly, gross pictures of the effects of smoking- rotting teeth, blackened lungs, even a dead body. The DC circuit ruled that the particular labeling decided upon violated the Free Speech rights of tobacco companies although the Sixth Circuit affirmed the FDA’s right to formulate the images in the first place. Hence, the 6th Circuit’s decision can be viewed as one of the general powers of regulatory agencies while the DC circuit addressed the particulars.

From the Seventh Circuit (based in Chicago): There are nine cases working through the courts involving Chicago and Illinois’ stringent gun laws. Among them are Chicago’s ban on firing ranges within city limits, their ban on firearms sales, whether pre-2010 convictions on gun law violations in light of the McDonald decision should be overturned, whether misdemeanor offenses under previous gun laws found to be unconstitutional should allow the purchase of firearms now, and whether the prohibition on carrying concealed weapons is constitutional. Chances are that at least one of these nine cases stands a good chance of reaching the Supreme Court given their confusing dictates under previous Second Amendment cases in recent years.

From the Eighth Circuit (based in St. Louis): One case involves a search and seizure case. While searching for drugs and firearms in a locked box in a suspect’s home (there was a valid search warrant), police discovered depictions of child pornography involving a 14-year-old girl taken by the suspect. He was subsequently convicted of dealing in child pornography. He now seeks that conviction overturned which the 8th Circuit denied. This brings to question whether the government can bring charges against suspects when they specifically search for one thing but discover evidence of another, unrelated crime.

From the Ninth Circuit (based in San Francisco): There are three cases of interest which is not surprising given it is the Ninth Circuit. The first involves a case out of Montana where DEA agents raided growers of medical marijuana. Plaintiffs are suing the state of Montana for allowing the raids despite the fact the state was at the forefront of medical marijuana laws. This is a microcosm of what is now happening in New Jersey which has approved medical marijuana. Christie has three times been rebuffed by Eric Holder with non-answers. Specifically, Christie needs to know if the DEA will raid growers of medical marijuana in New Jersey before he actually licenses them. Their action in Montana says more than any non-response by Eric Holder.
The second case involves housing and the Fair Housing Act which prohibits discrimination in housing. For example, when one places an advertisement for rental and excludes blacks, the renter and the newspaper are held liable. However, enter the Internet and sites like Craigslist. Federal law prohibits the screening of internet content. A study of internet housing advertisements indicates that when it comes to rentals, there are essentially no race-based advertisements. However, for room mates, the practice is more prevalent. Of more interest, most of those ads are placed by a member of a minority group seeking a minority room mate. Here, the 9th Circuit rightfully ruled that the right to free association held priority.
The final case involves a large cross on Mt. Soledad in San Diego which is part of a veteran’s memorial. What makes this interesting is that the federal government has injected itself into the case by saying the cross- in existence for over 58 years- is not a government-endorsed symbol of religion and that it should be allowed to stay. If this sounds suspiciously like the case from the Mojave Desert memorial, kudos to the reader. The problem is that that 5-4 decision was all over the First Amendment map in terms of reasoning it left too many questions unanswered. This could be the opportunity for the Supreme Court to put an end to this nonsensical attack on religious symbols using one half of one sentence in the First Amendment.

From the Tenth Circuit (based in Denver): The case here is interesting in light of the recent Sackett decision. In New Mexico, a power company is under a compliance order to install costly technology to reduce emissions in order to “make the air clearer.” Sackett addressed final EPA compliance orders under the Clean Water Act while this case implicates the Clean Air Act. It is hard to see how, should this reach the Supreme Court, they could rule in favor of the EPA. Clearly, the power company, like the Sacketts in Idaho, are due their day in court. Hopefully, the Sackett decision will force the EPA to think long and hard before issuing final compliance orders lest they become involved in costly court battles. If nothing else, maybe the EPA can try a new tactic- work with people instead of against people.

From the Eleventh Circuit (based in Atlanta): Probably the biggest case involves the decision by Seminole County, Florida to ban internet cafes. Citing the fact that they are de facto sites for illegal gambling, proponents stress that it violates private ownership rights as well as Free Speech rights. The 11th Circuit has affirmed the lower court’s determinations that such bans are constitutional. In reality, the 11th Circuit left the question open to future litigation since Seminole County has not actually enforced the law. It may be that the case is not ripe for adjudication at the appellate level.
And finally, although issuing injunctions enforcement, the court had not ruled on Alabama’s immigration law, considered the toughest in the nation, until the Supreme Court rules in the Arizona case- probably some time in June of this year.

Thus far, the Supreme Court has granted eight cases for their October 2012 term- well behind the pace of previous years. In fact, one was held over from this term. However, one can see that cases are working their way through the system that touch on several issues. These include gay marriage, free speech in the context of school discipline, advertisements and cigarette labeling, and abortion services (or lack thereof), affirmative action in college admissions, immigration enforcement by state and local governments, gun laws, search and seizure cases, medical marijuana and states rights arguments, religious issues under the Establishment Clause, and the scope of regulatory power in the EPA and FDA cases.

This is what makes this election very important. Another four years of Obama has the potential to reshape this Court. A liberal for a liberal does not shift the balance, but if tragedy should befall a conservative member, or if a Kennedy, despite his occasional non-conservative ruling, should retire, it can have serious ramifications on the judicial front. Also, Scalia is no spring chicken who has left little clues around that he may be in the process of considering retirement.  

Read Energy expert Dr. Daniel Fine Op-Ed “Potential bounty for North Carolina” on Shale Gas in North Carolina

News & Observer Raleigh, NC March 21 2012

Dr. Daniel Fine writes “Nearly 40 years ago, when the first oil price shock from the Middle East and OPEC disrupted the American economy, North Carolina and Appalachia briefly became an oil and gas frontier. Following geological investigations, Chevron drilled an exploratory well in the Deep River Basin beneath Lee County, N.C. Oil was discovered at 5,000 feet, but it contained excessive paraffin and Chevron plugged the well.” please read on and click this link to the original article—> http://www.newsobserver.com/2012/03/21/1947986/potential-bounty-for-north-carolina.html

Dr. Daniel I. Fine works with the New Mexico Center for Energy Policy. He is a longtime research associate at the Mining and Minerals Resources Institute, MIT. Fine is also a policy adviser on nonconventional oil and gas. He is co-editor of Resource War in 3-D: Dependence, Diplomacy and Defense, and has contributed to Business Week, the Engineering and Mining Journal and the Washington Times. Fine has testified on strategic natural resources before the U.S. Senate committees on Foreign Affairs and Energy and Natural Resources. In this speech, he discusses “Shale Gas Wars: From Pennsylvania to North Carolina.”

The solutions to our dependence on foreign oil can be solved, the experts say by either increasing supply (the “drill baby drill” people) or decreasing demand (the tree huggers). I don’t understand why it cannot be both simultaneously. The United States is a leader in technology for safely extracting oil nd natural gas. As Shell Oil vividly demonstrated in the case of extracting shale oil, it is private industry, not government that will lead the way. Assuming we can decrease our reliance on gasoline through hybrid technology (not stupid electric cars) and LNG/CNG vehicles and the like while increasing domestic production to meet domestic needs, it is quite possible the US can become a net exporter of oil and oil products. The left, in the meantime, needs to cease their populist rhetoric against our energy producers and cut the umbilical cord that ties them to the environmental movement. Reality dictates that fossil fuels are not going anywhere anytime soon. The answer is not the carrot of government subsidies where government mandates dictate personal choice of vehicle purchase. The answer is the stick- you want your gas guzzler, fine; but you will have to pay extra for it. And since decreasing oil imports will do very little in meeting the energy needs of this country, stating that decreasing imports will bring us “energy independence” is a lie. There are very few oil burning electrical generation plants in this country.

The main sources are coal, natural gas, nuclear, and the so-called “renewables” (solar, wind, hydroelectric). There are 1500 coal burning plants in the US that produce 45% of all the electricity. We rely on coal for a few reasons: (1) the high capacity factor, (2) we have abundant domestic supplies, (3) we are actually a net exporter of coal, (4) all things considered, it is cheap. There were, as of 2008, 154 pending permits for the construction of new coal burning plants spread across 42 states. However, it has its drawbacks. Mainly, coal is dirty. It creates not only the dreaded greenhouse gases, but also sulfur dioxide, nitrous oxide and mercury. Most of the current subsidies directed at coal are to create “clean coal” technology. Incidentally, coal plants emit 100 times more radiation in a year than a nuclear power plant, but the folks who are against coal are usually also against nuclear power.

Carbon sequestration, a process that filters out the emitted carbon dioxide and sequesters it underground, has been funded to the tune of $5.9 billion. The technology today is far from perfect. Most experts predict it will take an additional $25-30 billion to perfect it. Even then, it would not be cost effective on a widescale basis until perhaps 2030. Until then, the best method is to remove moisture from coal before it is burnt. By burning dry coal, emissions can be decreased 50%. Yet, the government has made the decision to invest in what may prove to be a solution that solves nothing. To date, there i exactly one plant (in Germany) that uses carbon sequestration. Additionally, both China and India have stated they intend to increase their reliance on coal in the future.

Domestically, we sit on over 21 billion barrels of known oil reserves. Prior to the Deepwater Horizon disaster in the Gulf, more monetary and environmental damage was done by oil tanker spills and accidents than by offshore drilling operations. Offshore drilling technology has advanced light years beyond that used in the Santa Barbara spill that sent a chill over domestic offshore oil exploration. Should there be safety regulations? Absolutely, but remember that BP took short cuts through their subcontractors and they should be held liable. Much is made about ANWR in Alaska and exploiting the reserves there. Personally, from everything I have read, the recoverable reserves are not that great and would represent only a short term solution. But isn’t even a short term solution better than no solution at all? Between oil and natural gas domestically, there is an estimated $2.4 trillion.

Another possibility is shale oil in the western United States. It is estimated there is over 2 trillion barrels. That is 265 times our current rate of consumption. During the Carter Administration, led by Shell Oil, extraction and production of shale oil began, but then the Arab oil embargo ended and the technological research ceased. The best part about this is that the majority of these reserves lies under ground owned by the Federal government which represents an economic boom to the country, while privately creating jobs which adds tax revenue. Yet, Obama and company insist that increasing domestic production will not help.

Another important problem is the number of oil refineries. To date, there are about 150 which operate, generally, at 95% of capacity. Over one third of them exist in the Gulf region, including Texas. As recent storms have proven, siting in this area causes disruptions. Secondly, despite increased EPA mandates, oil refineries have consistently operated at over 90% capacity for the past decade. Still, since 1999, only one permit for a new refinery has been improved (in Arizona). What environmentalists will not tell you is that it took over seven years of study and litigation to get that single refinery approved.

Whether new refineries are built or older ones modified to meet the new demands of government mandates, the oil companies have done a tremendous job of meeting demand. Many decry the fact that more than half the refineries are owned by five companies. So what? Not being an apologist for oil companies, I don’t envy them their profits because they are a matter of scale. The average profit margin for any company on the Standard & Poor’s 500 is 8.5%. Exxon has a profit margin of 10.8%, Chevron 8.6%. These “exorbitant” amounts are interesting considering that the profit margin of Apple is 15.1%, Google 24.9% and Microsoft 28.3%, yet we hear no mention of Big Internet. From 1980 to 2005, oil companies in the US collectively paid $2.2 trillion in inflation adjusted dollars. Over that time period, that is equivalent to someone making $200,000 and paying $150,000 in taxes. One populist suggestion is always a windfall profits tax being assessed. During the Carter Administration that was tried. The result: domestic production decreased 3-6% while imports increased 8-16%.

Recently, my favorite Democratic moon bat was on the Sunday morning talk shows and the subject of the price of gas came up, specifically the Keystone XL pipeline. Her response was that it would take 10 years for the “drill baby drill” strategy to have any effect. OK, lets give her that. But, that begs the question as to why we were not increasing our domestic output ten years ago.

The reason is the hypocrisy of the Liberals and their allies in the Democratic Party, the knee jerk environmentalists who live in a rose-tinted world of renewable energy production. If Pennsylvania alone were to fully exploit the natural gas in the Marcellus formation within their boundaries, they would surpass Texas as an energy-producing state. Thus far, it is George Soros, among others through MoveOn.org, who is preventing fracking in New York state by decrying the environmental problems possibly involved. Meanwhile, Soros has multiple financial interests in alternative energy projects receiving subsidies from Obama. He also has huge ownership stakes in energy producers in Brazil and Australia. His Brazilian investment is exploring offshore petroleum drilling. His Australian venture is in extracting natural gas by fracking. Apparently, those environmental concerns in New York take on less weight in Australia in the mind of George Soros. If Obama really wanted to create high paying, long term jobs with no government money, he would get out of the way of the energy sector and let the experts do what they do best.

Dr. Daniel Fine of the New Mexico Center for Energy Policy discusses North Carolina’s approach to shale gas and hydraulic fracturing, or “fracking.” Fine offered these comments during a Feb. 27, 2012, presentation to the John Locke Foundation’s Shafesbury Society. Video courtesy of CarolinaJournal.tv. Watch full-length video of JLF events here:

Dr. Daniel Fine discusses North Carolina’s approach to shale gas and hydraulic fracturing and takes on the enviromentalists (two minutes)—
http://youtu.be/4Lbn9diK1PA
The full one hour video can be seen here–>”North Carolina?s approach to natural gas fracking” —>http://lockerroom.johnlocke.org/2012/02/27/north-carolinas-approach-to-natural-gas-fracking/

Dr. Daniel I. Fine works with the New Mexico Center for Energy Policy. He is a longtime research associate at the Mining and Minerals Resources Institute, MIT. Fine is also a policy adviser on nonconventional oil and gas. He is co-editor of Resource War in 3-D: Dependence, Diplomacy and Defense, and has contributed to Business Week, the Engineering and Mining Journal and the Washington Times. Fine has testified on strategic natural resources before the U.S. Senate committees on Foreign Affairs and Energy and Natural Resources. In this speech, he discusses “Shale Gas Wars: From Pennsylvania to North Carolina.”