There are now eighteen states and the District of Columbia lined up to challenge the executive order by President Donald Trump to rescind the Obama order giving insurance companies billions in subsidies . . . without an appropriation of Congress. As explained below, this challenge advances a rather curious claim that Trump cannot rescind an earlier order found to be flagrantly unconstitutional by a federal court. In most high-profile litigation cases, counsel spends considerable time exploring whether a challenge will allow a bad case to make bad law on appeal. That would seem the most likely outcome here but much of the litigation by Democratic Attorneys General have been driven more by political than legal calculations. Voters now expect every act of Trump to be challenged and no Democratic AG wants to be the only one to sit out a challenge to an unpopular order. The result is a type of perpetual litigation machine where bad precedent is being cranked out because it is viewed as good politics.
Here is the column:
Below is my column in the Hill Newspaper on the proposals for new gun control measures in the wake of the Las Vegas massacre. As I discuss below, there are some obvious possible measures that could pass constitutional muster like banning bump stocks (which allow semi-automatic weapons to perform more like automatic weapons) and conversion kits. However, these proposals would not have prevented the massacre. There are many “work arounds” for semi-automatic weapons and Paddock would have likely passed any enhanced background checks. Nevertheless, 
Below is my column in the Hill newspaper on the continuing controversy over President Donald Trump’s remarks over the NFL anthem protest. including the suggestion that his remarks could constitute a case for impeachment. I wrote earlier that the coverage over the anthem protests have been criticized with cameras notably redirected when boos were heard from the crowed. Indeed, yesterday morning, I watched CNN cover the controversy and say that at a particular game there was “both cheers and boos.” However, when they cut to the clip there was overwhelming boos and the reporter admitted that the fans have clearly “not gotten the message” of the players. It does concern me that, again, the coverage seems weighted in downplaying the polls showing that most people (
Below is my column in The Hill Newspaper on the termination of the second travel ban and issuance of the new order by the Trump Administration. As discussed in the column, the Supreme Court went ahead and removed the immigration cases from the schedule for oral argument while agreeing with the Administration to order briefings on whether the cases are now moot. It is hard to see how the cases are not moot in whole or substantial part. The Court tends to take off ramps to avoid constitutional decisions, particularly in the area of the separation of powers. It will hard not to take this obvious off ramp.
Below is my column in the Hill newspaper on the recent demand by Special Counsel Robert Mueller of material in over a dozen different areas. The most intriguing is likely to be the two documents referenced by Trump personal counsel Ty Cobb in an overheard conversation at a popular D.C. restaurant. The conversation has many in the Beltway scratching their heads and a few smirking. Cobb is an experienced lawyer who sees this investigation as unlikely to produce any compelling basis for a criminal charge. Conversely, White House Counsel Don McGahn is properly concerned with the danger of establishing precedent in the area of executive privilege that could undermine future presidents. Cobb is a bit too experienced in this town to make such an amateurish mistake as discussing loudly an internal fight over the documents in McGahn’s safe — a previously undisclosed dispute. It would certainly be intriguing if the reporter was told to have lunch at BLT and bring his notebook (Technically Cobb did not leak anything in being overheard). It would have been a truly Machiavellian move against McGahn. However, there is no evidence supporting such a theory. Ifthat were the case, the reporter’s story would be highly misleading since he clearly conveyed that this was a pure coincidence and a surprise. Moreover, such an arrangement would be unethical in my view even if Cobb thought it in the best interest of the President. These remain documents under a claim of privilege and presumably there was a decision not to make the disclosure. I am inclined to give Cobb the benefit of the doubt, though that means assuming that he committed a rather rookie error.
Below is a column that I wrote for the Hill Newspaper in response to a “fact checker” column by the Washington Post. I have written for the Washington Post and have great respect for the publication. Indeed, I have objected to the attacks by President Donald Trump on the Post and the New York Times which remain two of our premiere journalistic organizations. However, I was frankly floored by the column by Glenn Kessler in criticizing White House Press Secretary Sarah Huckabee Sanders. I have discussed previously how there has been a palpable bias in reporting on the Trump Administration. It is often that case that some journalists are not simply satisfied with disagreeing with the Administration. They sometimes take judgment calls or opinions and declare the Trump side to be simply factually incorrect. This relieves the need for readers to address the opposing view of controversies like the alleged misconduct of former FBI director James Comey. Those views are simply dismissed as untrue. This is a prime example.
Below is my column in the Hill Newspaper on the allegations raised by the White House over the alleged misconduct of former FBI Director James Comey. It is clear that Comey violated FBI rules and regulations — offenses that would have likely cost any of his subordinates their jobs at the Bureau when he was director. However, there remains a virtual news blackout on the obvious violations and their implications.