Don’t Count On Courts to Protect Your Privacy – They Protect the Status Quo

With it becoming increasingly clear every day that Congress will not take any substantive action to stop NSA spying, some privacy advocates have begun to pin their hopes on the federal courts.

If history serves as any indication, they will find themselves equally disappointed with the judiciary. Courts tend to defer to the government, especially when it comes to “national security.”

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Eric Holder & Other Overreaching Prosecutors

An important citizen protection against government is the rule that in criminal prosecutions, criminal statutes are interpreted strictly. In other words, if the government wants to punish someone for violating a statute, it has to show that the defendant’s behavior was illegal beyond a reasonable doubt under the clear wording of the statute. Citizens are not held criminally responsible for guessing “wrong” about the meaning of an ambiguous law.

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Originalism and the Two Narratives of Halbig

Halbig v. Burwell, the ACA subsidies case, has two competing narratives.  In one version, it is an epic battle between textualism and contextualism.  The statute (says one side) clearly says subsidies are available only for insurance exchanges “established by [a] State” and the federal exchange is obviously not established by a state.  But (says the other side) surely Congress could not have intended a situation in which subsidies were not available on the federal exchange, so to make sense of the statute one should not read it narrowly but with regard to what makes the most sense of Congress’ intent.

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