During the Trump Administration, Democratic Attorneys General used the Administrative Procedure Act (APA) to delay Trump policies pending satisfaction of requirements for notice and comment periods. Even though President Barack Obama did not satisfy APA conditions in imposing original rules, the Supreme Court enforced such procedures to reverse prior orders. During that litigation over the Trump executive orders, I repeatedly noted that the Democratic challengers in court were making arguments that would likely used against the next Democratic president in seeking to quickly undo Trump’s orders. That has now come to past. When Biden took power, he immediately did what Trump did in taking unilateral acton without APA notice. District Court Judge Drew B. Tipton ordered this week that the directive from acting Homeland Security Secretary David Pekoske was not in apparent compliance with the same law.
There is an ongoing controversy triggered by an article in Salon suggesting that Sen. Tom Cotton had lied about being an Army Ranger in describing his military service. The Salon article by Roger Sullenberger claimed that Arkansas senator Tom Cotton “felt compelled to repeatedly falsify that honorable military record.” It is an accusation that borders on a claim of stolen valor and could not be more insulting, particularly for someone with a highly distinguished military service record. The article has been denounced as part of a smear campaign by conservative sites like National Review but also veterans as unfair and inaccurate.
Ironically, the regimental motto of the Rangers is the Latin phrase sua sponte, or “of their own accord.” There appears debate on whose accord is controlling on such questions.
In a critical vote at the start of the second Trump impeachment trial, almost half of the Senate voted in favor of a motion by Sen. Rand Paul challenging the constitutionality of an impeachment trial for a former president. The motion was subject to a tabling motion, making this a procedural vote and does not necessarily lock in any member. However, it was the first test of the view of the body on this unresolved question. After spending a good amount of time with all of the Republican senators just before the vote, I was not surprised by the 45-55 vote. Members on both sides of this issue had a good faith and civil exchange on the historical and constitutional basis for such a trial. Figures ranging from President Joe Biden to Sen. Susan Collins (R., Maine) have said that they believe it is clear that there are insufficient votes for conviction and that Donald Trump is likely to be acquitted. Other senators are now calling the trial a “dead letter” or “dead on arrival.“
With much fanfare (and catchy background music) Twitter has launched the Birdwatch program, a platform that seeks to enlist the “community” to identify and comment on misinformation contained in tweets. The company will initially select 1,000 such “Birdwatchers” in its monitoring of information exchanged on its once neutral platform. Not surprisingly, many of us are not thrilled by the program. While the programs does not allow direct removal of tweets, it is clearly designed to flag tweets that the majority views as misleading. That can then be used by Twitter to further support its expanding censorship of information on the Internet.
Below is my column in the Hill on the increasingly divisive rhetoric and actions taken on Capitol Hill. Rather than plot a course to between greater unity, many are seeking to muscle through extreme measures that will only further aggravate and deepen our divisions. The media from the New York Times to the Los Angeles Times have run editorials encouraging aggressive moves to secure control of the Senate, including the ending of the filibuster. That move would make every vote a muscle play — producing sweeping changes in a country that is clearly divided and seeking political compromise.
Here is the column: Continue reading “Do The Democrats Really Want Unity?”
We have previously discussed the radical declarations of University of Rhode Island and Director of Graduate Studies of History Erik Loomis who has defended the murder of a conservative protester and said that he saw “nothing wrong” with such acts of violence. (A view defended by other academics). Loomis is now back in the news with a declaration that “Science, statistics, and technology are all inherently racist because they are developed by racists who live in a racist society, whether they identify as racists or not.” It is a curious position from the person who heads graduate studies in history at the University of Rhode Island. Continue reading “Rhode Island Professor Denounces Science, Statistics, and Technology As “Inherently Racist””
Speaker Nancy Pelosi ramped up the attacks on members of her own house this week, accusing them of giving “aid and comfort” to those who want to destroy the nation. The comments came after Rep. Lauren Boebert, R-Colo., denied a public accusation by Rep. Steve Cohen, D-Tenn., that she personally took rioters around the capitol for a tour before the attack on January 6th. Boebert pointed out that the “rioters” were her family members and she has never given such tours. Rather than encouraging colleagues to avoid baseless and inflammatory accusations pending review of what occurred on January 6th, Pelosi threw gasoline on the fire and accused her colleagues of giving “aid and comfort” to those who were trying to destroy the Constitution and the country. It is, in my view, another failure of leadership by the Speaker in her duties to the institution as a whole. Continue reading ““Aid and Comfort” To the Enemy: Speaker Pelosi Ramps Up Attacks On Republican Colleagues Amidst Calls For Expulsions”
Hundreds of publishing officials, professors, and academics have signed a petition to blacklist Trump administration alumni from receiving book deals. It is the latest step in a rapidly expanding anti-free speech movement in the United States. In the wake of the Capitol riot, Democratic members and others are calling for a crackdown on free speech and punitive actions for those viewed as complicit with Trump. What is striking is how censorship, blacklists, and speech controls are being repackaged as righteous and virtuous. Indeed, the failure to sign such anti-free speech screeds is a precarious choice for many. It is as easy as calling for tolerance through intolerance. After all, why burn books if you can just effectively ban them? Continue reading “Why Burn Books When You Can Ban Them? Writers and Publishers Embrace Blacklisting In An Expanding American Anti-Free Speech Movement”
This week, a group of scholars wrote an open letter endorsing the constitutional basis for trying former President Donald Trump in a retroactive impeachment trial. The letter contains many individuals who I know and respect. I encourage you to read their case for such retroactive impeachment. As I have said in every column and posting on this subject, this is a close question upon which people of good-faith can disagree. However, I would like to respond to the letter and offer a countervailing view. Continue reading “The Case Against Retroactive Impeachment Trials: A Response To The Open Letter Of Scholars”
We have previously discussed how American journalism has been destroyed by years of openly partisan coverage in an age of echo journalism. Not surprisingly, the public has lost faith in what was once the leading nation in terms of journalistic practices and ethics. A new survey by the global communications firm Edelman (via Axios) found only 46 percent of Americans trust traditional media. That mirrors polls by Gallup showing an even lower level of trust. We are living in a new age of yellow journalism at a time when real journalism has never been more needed.
Last night, we passed the 48,000,000 mark in views on the blog. We just passed 47,000,000 and we are coming off a record year in terms of traffic and postings. The blog continues to grow with new regular commenters and a growing international readership. Again, we thank our loyal readers who return every day to discuss contemporary legal, political, and occasionally bizarre stories. We have used these moments to give thanks for our many regular readers around the world and give you an idea of the current profile of readers on the blog. We continue to rank with the top legal blogs in the world. As always, I want to offer special thanks for Darren Smith who has continued to help manage the blog and help out folks who encounter posting problems.
So here is our current profile: Continue reading “Res Ipsa Hits 48,000,000”
In a column this week, I was recently critical of the pardons issued by former President Donald Trump, including additional figures convicted of different forms of political corruption. For a person who pledged to “drain the swamp,” his pardons show an unprecedented sense of sympathy (and clemency) for those who profiteered in public office. Yet, those pardons pales in comparison to the contradiction in one of Trump’s last acts as President: rescinding his bar on current and former members of his administration from lobbying their respective agencies for five years.
The media has been airing discussion of hosts and leading figures like Katie Couric on “deprogramming ” Trump supporters or treating Trump supporters as a cult, including a CNN interview with an actual “cult expert.” Since that would include over 70 million Trump voters, the hyperbolic language can be dismissed as just more examples of our rage-filled political environment. After all, a few days after the election, a law professor declared that even questioning the Biden electoral victory was tantamount to being a holocaust denier. One professor however has taken this call even further in declaring such supporters are worse than the Nazis and heralding the need for the same type of treatment seen with the Nuremberg trials, including the apparent elimination of the Republican Party. Smith College Professor Loretta Ross, who teaches women’s and gender studies, rejected calls for unity and instead called for punitive action against supporters in Congress, universities, and “regular jobs.”
I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime. It was overwhelming to listen to Lady Gaga’s rendition of the national anthem, Garth Brooks’ version of Amazing Grace, and of course the incredible poem by Amanda Gorman. That is why being a law professor sometimes complicates everything. It is like going to a powerful movie and fixating on the legal anomalies like when a character does something not allowed under the rules of evidence. That moment came when Joe Biden took the oath and was declared president before noon. I was called by reporters from the Washington Post and other media outlets to ask if Biden was truly president at that time. This will only be of interest to constitutional geeks and a few journalists but he was not the president at that time. The President remained Donald Trump until noon under the 20th Amendment. Continue reading “Yes, Biden is President . . . Just A Tad Premature”