Would funding the Sentinel Program violate the equal Protection clause? For today's exercise into comic book law, let's take a look at another X-men storyline. As we previously established using the Purifiers as an example, people can talk all they want about wanting to murder other people as long as no imminent lawless action happens. That's the Brandenburg test. However, let's look at what happens if that rhetoric is finding its way into the government and there actually is action. So for our thought experiment of today, let's use Days of Future Past as the basis, which was also the basis for the film version. Let's take the synopsis as following as true as the amalgamation of which facts both stories tell: Senator Robert Kelly is assassinated in 1980 (1973 in the film) by a carrier of the X-Gene. As a result, Kelly's advocating for funding the Sentinel Program by Bolivar Trask is getting traction. The publicly known target of the Sentinel Program is to hunt down and kill X-Gene carriers, especially US Citizens. The funding goes through and Trask starts building hunter-killer robots for the government. For our analysis, let's stop here, as the rest of the plot is time-travel shenanigans. Does the funding count as government action, making the program an action or law that violates the equal protection clause of the 14th amendment?
In the comic timeline (seen in Uncanny X-Men #141, Jan 1981), as mainly narrated by Kitty Pryde, In 1984, &quot;a rabidly anti-mutant candidate was elected President&quot;, and &quot;within a year&quot; had arranged to pass &quot;the first Mutant Control Act&quot;. This is struck down by the Supreme Court as unconstitutional. Then (let's say this is 1985-1986ish), &quot;the Administration responded by activating the Sentinels&quot;, who promptly proceed to take over the country. Whoops! There is a further Mutant Control Act in 1988, which makes mutants &quot;pariahs and outcasts&quot; to be hunted down and for the most part killed. Presumably this is under the Sentinel-controlled version of the U.S. government. By 2013, society is split between baseline humans (H), &quot;anomalous&quot; carriers of the mutant gene (A), and full-blown mutants (M). The A-class people are forbidden from reproducing. All this is said to derive from, and be in accordance with, the law of 1988. While we don't know what the 1985 law did, it's presumably not too different from the 1988 version. The newer one is only constitutional insofar as the Sentinels have taken over. Their orders, made in response to the Supreme Court's action, were to &quot;eliminate the mutant menace once and for all&quot;, and deposing the government is their chosen path to that end. Although the robot coup was not what the President was hoping for, we can still interpret that the intent behind using the Sentinels was to (1) achieve similar effects to the rejected law of 1985, and (2) do so in a way that the Supreme Court could not block. The idea is that the use of the Sentinels probably is just as unconstitutional as the original law, but is something the government could get away with. In the movie, Trask says that Congress refused to fund the program, and so he is appealing to the executive branch for clandestine financing: this is a similar dynamic of trying to evade the lawful process. It is plausible that the grounds for striking down the 1985 law would include equal protection, as well as protection against search and seizure, and requirements of due process. It would have been a broad enough ruling that the administration felt justified in taking an entirely different approach, rather than attempting to tweak the law. For example, if the Supreme Court held that mutants were not a protected class, and not even human anyway, but that the proposed law infringed the rights of humans in some minor way, then the creation of the Sentinels seems less obvious as a response. They must have concluded something broad enough to cover anti-mutant laws in general. I'd estimate that whether or not mutation was deemed within scope of the equal protection clause of the Fourteenth Amendment, the other obvious civil rights violations are more likely to be biting. Certainly in the case of the giant murderbots, the Fourth and Fifth Amendments are clearly engaged, and the Supreme Court might be more comfortable applying them straightforwardly, compared to reading a novel class into the Fourteenth. Politically - and the use of Nixon in the film makes this apt - the problem was not to stay within the bounds of the law, but to evade its power. Secretly funding a private-sector program doesn't make the outcome any more or less constitutional, but it does make it harder for plaintiffs to challenge. They have to find out about it. They have to demonstrate standing, which is difficult - see for example U.S. v Richardson 418 U.S. 166 (1974) holding that a taxpayer did not have standing to challenge Congressional funding of the CIA. And if the Sentinels haven't been turned on yet, then nobody has been actually harmed; all we have is a robot that might hurt mutants. Once they are activated, the secret is out, but at that point if all goes &quot;well&quot; then there are no mutants left to object. In the event, a legal challenge was impossible for different reasons (robot tyranny).
In part, we don't know because there are currently no rules that address certain outcomes, so it will depend on who is on the Supreme Court when the issue is raised. A warrantless search will not be legal beyond current doctrines regarding crime in progress and imminent danger, even if it involves time travel. So you will need a warrant, and you will need probable cause to get it. Currently, if you break into a person's house to discover that there is a body there, you can't get a warrant to legitimize that illegal search. Adding time travel does not change anything. In situation 1, I assume they have probable cause and a warrant but the evidence was destroyed by the time of the search at time T+n. As long as prior time T is still after the crime, a warrant to search at time T would not be a problem. In scenario 2, there is nothing preventing them from stopping the crime or arresting the perpetrators in the act. However, if they travel back in time and break in to a suspect's house in order to witness the crime, that is an illegal search. You could likewise arrest a person before he escapes to the phantom zone, if you have probable cause that he had committed a crime – by the time of the arrest. Forward time travel poses a more serious challenge, as articulated in Minority Report. It would, or should, be very difficult to issue an arrest warrant at time T based on knowledge of a crime committed at T+n. Because of the arrest, the crime was not committed and there was no probable cause, so there should have been no warrant (oh no, paradox).
No, it is not. Section 1 allows legislatures to infringe all Charter rights under certain reasonable circumstances. Section 33 is an alternative method by which legislatures can completely ignore the Charter rights that it can be applied to (ss. 2 &amp; 7 to 15). Section 33 is a legislative procedural provision, it is not in itself an inherent right which would be subject to Section 1. Furthermore, reading Section 1 to apply in this way to Section 33 would completely eviscerate the meaning of Section 33 since it is a stronger mechanism for violating Charter rights. Case law on this is few due to the relative rarity of legislatures invoking the Section 33 notwithstanding clause and the fact that invoking it is generally a shield to judicial review. However, while not explicitly confirming what I said, Ford v. Quebec (AG) [1988] 2 SCR 712 basically takes for granted the above and applies it (note it can be a confusing read due to three different Charters being involved). In it, ss. 58 &amp; 69 of Quebec's Charter of the French Language were disputed. Due to legislative hijinks*, it was unclear whether either section was covered by an invocation of the notwithstanding clause. The Court first undertook a procedural analysis to determine whether the notwithstanding clause applied and found that s. 58 was covered, but s. 69 was not (para. 34). Only after that did it address the substantive rights issues. While still analysing both ss. 58 &amp; 69 to fall within the guarantees of Charter s. 2(b), the court only concluded s. 69 to infringe the Charter since (implicitly) s. 58 was not eligible for such a determination by virtue of the notwithstanding clause (para. 60). As Charter rights were found to be infringed, the Court then examined whether s. 69 could saved under Section 1. It could not, thus rendering it an unjustifiable infringement of the Charter (para. 73). *To keep this answer both short and focussed on law, we really do not have time to get into the Quebec government's initial responses to the passage of the Constitution Act, 1982.
Federal facilities are required to adhere to the flag code. Non-federal governmental entities are not, and the explanation is more complicated. In theory, the federal government should have very little power over the decision-making of state governments -- this is a principle of federalism and is expressly stated in the 10th Amendment. In practice, however, the federal government has a lot of power over state governments. Congress can condition the allotment of federal monies to states, i.e. block grants, as long as such a condition meets the five point test spelled out in South Dakota v. Dole. The most stringent of these points is that the condition "must not be coercive" so as to apply "irresistible pressure", creating a false choice where accepting money is the only realistic option (thus complying with the conditions). I couldn't find a clause within USC Title 4, Chapter 1 for withholding funds from states in the event of noncompliance, similar to one that exists for the national drinking age. Therefore states (state, county, municipal all treated as an extension of state power under the US Constitution) are not required to to adhere to the flag code. Theoretically, Congress could pass a new law that would condition the receipt of some federal funds on the states' compliance with the flag code. But the new low could face additional hurdles, since the condition must be "directly related to one of the main purposes for which... [the funds] are expended" (quoting from Dole). This restriction is the reason why states were given the right to opt out of the Obamacare medicare expansion without losing their pre-existing Medicaid funding (567 U. S. ____ (2012) at 51), and is also the reason why the recent "Sanctuary Cities Ban" is having legal trouble. It would be unlikely that any law like this would hold up. It's also worth noting that most states have their own flag law, which makes this whole discussion of the federal law's effect on state facilities. As you noted, since US v. Eichman, all criminal penalties for violating any flag code have been unenforceable against individuals. My best guess is that the proper method of enforcement in federal buildings is simply administrative action, since violating the code can provide cause for firing federal employees under Chapter 75 of the Civil Service Reform Act of 1978.
I believe you are using rule of law when you mean due process. The former refers to equality before the law and the subjugation of executive government to the law while the latter refers accepted measures of justice and fairness in the administration of the law and, in the United States, to the supremacy of the judiciary over the legislature (the situation is reversed in the UK). Assuming that to be the case, the due process clause in the fifth amendment provides that "No person shall ... be deprived of life, liberty, or property, without due process of law ...". That is, actions against Huawei must only be taken as permitted by the law. The law that permits the President to institute the Huawei ban is the International Emergency Economic Powers Act. As such, at face value, this is a legitimate exercise in executive power. Huawei has the right to challenge the ban in US courts, as such, they have been afforded due process.
Since the US Federal government didn't try to pass any such law (nor would it have been politically possible in the period shortly before the US Civil War), there is no way to know with assurance how such a hypothetical law would have been addressed by the Supreme Court of the day, nor by the various states. Congress legally could have prohibited the importation of slaves after 1808, the constitution specifically grants this power. Congress legally could have prohibited interstate commerce in slaves. Congress could have repealed the Fugitive Slave Act. Congress legally could have imposed heavy taxes on the ownership of slaves. If heavy enough these could have been a de facto abolition. A series of Presidents could have appointed Justices inclined to overturn the Dred Scott decision (denying the possibility of citizen ship for most Negros, and denying that a "free" state could free slaves temporarily resident there). Congress could have passed laws requiring negro votes to be counted in federal elections. Various of the above hypothetical measures might have made slavery less economic, and thus less common, in time. Note that it is not likely that any actual Congress would have passed most of them. But I do not see how, absent a constitutional amendment, and absent a war, a simple Federal statute could have constitutionally abolished slavery de jure throughout the US. Lincoln's Emancipation Proclamation was legally justified as a war measure, a confiscation from those in rebellion. It did not affect loyal slave states, such as Maryland. And it was never seriously tested in court anyway.
School districts / states do generally have the power to set the curriculum including the viewpoint that will be officially conveyed. One well-known major restriction on such viewpoint restrictions is that the schools cannot restrict the free exercise of a religion, and cannot take a position on a religion. Apart from the religion third-rail, schools have pretty free reign in setting the curriculum, see Evans-Marshall v. Tipp City for one instantiation. In this case, the teacher assigned various books, including Heather Has Two Mommies, one of the books that prompted an outcry. The upshot of that case is that a teacher cannot invoke the First Amendment to override policy. This article (draft version, easier to handle) (published version, annoying footnote structure) reviews the topic, and section III covers prior cases. It notes that the cases of Lawrence, Windsor, Obergefell do not address the constitutionality of these education laws, though the reasoning in the prior cases might be applicable if there were a suit over curriculum. There is an implication that some of these rules have been enforced in the past, but most of the evidence is in the form of news stories (Beall v. London City School BOE is not available in the open). The article does engage in a somewhat deeper study of enforcement in Utah, where it was enforced (until it was repealed). Enforcement is necessarily indirect. The law require school districts to have a particular curriculum; violation would come when an individual teacher taught contrary to the prescribed curriculum. Those laws do not contain any provision like "a teacher who violates these rules gets fired", instead, punishment is via the general rule that you have to teach what is in the state-mandated curriculum. Rather than officially terminating a teacher for violating this curricular guideline, districts use vague reasons for non-renewal such as "due to problems with communication and teamwork" (from Evans-Marshall).
Unequivocally yes. An Australian judgement asserted this by (happily) adopting the reasoning of the US courts: The matter also came up for discussion in the Communist Party case where Justice Dixon adopted the U.S. view that: ... it is within the necessary power of the Federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion and for the putting-down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government ... A plane (or ship, or train etc.) that is not responding to hails and acting to put citizens at risk is a legitimate target of military force. It doesn't matter if it is acting that way because of a deliberate decision of its controllers (e.g. terrorists), because it's not under control or because it's controllers are idiots.