Category: Congress

The GW Commencement Controversy: A Response To Rep. Susan Wild

This weekend, I was unable to attend our law school graduation after traveling to Utah to speak to the Federal Bar Association. I have only missed a couple of graduations in almost 30 years of teaching. I soon, however, received emails from students and colleagues that made me somewhat thankful that I was unable to attend.

This year’s commencement speaker was Rep. Susan Wild (D) who represents the 7th District in Pennsylvania and is a distinguished graduate of our law school. Wild chose the commencement address to launch into a personal attack that accused me of being an example of the use of law for “wrongful ends.” She falsely accused me of changing a critical legal point in my testimony in the Clinton and Trump impeachment hearings on whether impeachable conduct must be indictable crimes. I felt that a response was warranted. Continue reading “The GW Commencement Controversy: A Response To Rep. Susan Wild”

McConnell: Federal Abortion Ban is “Possible” if Court Strikes Down Roe v. Wade

Senate Minority Leader Mitch McConnell told USA Today this week that it is “possible” that Congress could pass a national ban on abortion if the leaked draft opinion overturning Roe v. Wade is finalized. In the interview, McConnell confirmed that there would be nothing standing in the way of such national legislation. McConnell did not say that he was calling or planning for such a vote. He was stating that it would be legally possible if Roe is overturned. However, such a vote would leave the position of the GOP in an incomprehensible morass on its views in the area. For decades, Republicans have insisted that this issue is a state, not a federal, matter. It could also raise some difficult constitutional questions under federalism.

Continue reading “McConnell: Federal Abortion Ban is “Possible” if Court Strikes Down Roe v. Wade”

No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe

The response to the leaked draft opinion overturning Roe v. Wade has unleashed a torrent of outrage on the left. While many are calling for marches and sweeping new legislation, some are focused on calling out the justices in the majority for alleged “perjury” or “lying” in their confirmation hearings, particularly Justices Samuel Alito, Brett Kavanaugh, and Neil Gorsuch. In reality, they did not lie in testimony in referencing Roe as established precedent.  The suggestion of perjury is utter nonsense. Continue reading “No, Justices Did Not Commit Perjury in Their Confirmation Hearings When Asked About Roe”

Destroying Democracy to Save it? Court Advances Effort to Block GOP Candidates from Ballots

Below is my column in the Hill on the recent decision of a federal judge to allow a challenge to Rep. Marjorie Taylor Greene (R., Ga.) from appearing on the ballot as an insurrectionist. In my view, the underlying claim is meritless. The theory, supported by figures like Harvard Professor Laurence Tribe, runs against the clear language and history of the Disqualification Clause of the 14th Amendment.

Here is the column:

Continue reading “Destroying Democracy to Save it? Court Advances Effort to Block GOP Candidates from Ballots”

No, The Second Amendment Did Not Prohibit Cannon Ownership in the Early Republic

President Joe Biden returned this week to his claim that the Second Amendment was originally understood and applied to ban the private ownership of cannons. It is not just an embarrassing repetition of a false claim but threatens to reduce his own gun control measures to little more than cannon fodder on a historical perspective. Continue reading “No, The Second Amendment Did Not Prohibit Cannon Ownership in the Early Republic”

Turley Testifies on the Foreign Agents Registration Act

I will be testifying this morning in Subcommittee on the Constitution, Civil Rights, and Civil Liberties of the House Judiciary Committee in a hearing on “Enhancing the Foreign Agents Registration Act of 1938.” The hearing will be held at 10 am at the Rayburn House Office Building (Room 2141). My testimony is below.

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“The Illegality…Was Obvious”: An Analysis of the Carter Opinion on Jan. 6th

“The illegality of the plan was obvious.” Those words of Judge David O. Carter in the U.S. District Court for the Central District of California this week have electrified commentators across the networks and the Internet. Judge Carter was praised for his “simple clarity” in declaring that “it is more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”  The declarations by the court have led to a frenzy in the media and renewed calls for the prosecution of the former president. However, there are elements to the decision that are deeply concerning on issues ranging from free speech to attorney-client privilege.

Continue reading ““The Illegality…Was Obvious”: An Analysis of the Carter Opinion on Jan. 6th”

Senate Democrats Clear Anti-Free Speech Nominee For Floor Vote

At the start of the Biden Administration, I expressed alarm over the anti-free speech figures being brought into the administration by the President. Indeed, President Biden himself has called for greater private censorship and speech regulation. This unease continued to grow as the President turned to figures long criticized for their opposition to free speech, including Dr. Lisa Cook, Professor of Economics and International Relations at Michigan State University. Cook has been nominated for the Federal Reserve. The Democrats just “discharged” Cook from committee on a partisan vote to bring the nomination to a Senate floor vote. Cook has opposed the most basic protections of free speech and academic freedom on campuses during her academic career. Continue reading “Senate Democrats Clear Anti-Free Speech Nominee For Floor Vote”

Biden’s Plan to “Tax the Rich” Is Unlikely to Stop with Billionaires

Below is my column in the Hill on President Joe Biden’s new tax on “unrealized gains.” After the President rolled out the new tax, his economic adviser Jared Bernstein went on Fox News and had a moment of uncontrollable honesty. He blurted out to Bret Baier that “it is very much a tax on wealth.” For the White House, it was a cringe-worthy moment. After going through considerable effort to cover this tax in sheep’s clothing, Bernstein ran out of the White House screaming “Wolf, Wolf.” Indeed, the new tax is being framed as a “pre-payment” to avoid the obvious: that it is an unconstitutional wealth tax.  Bernstein’s statement is now likely to feature prominently in court filings challenging this tax if it ever secures congressional approval.

Here is the column:

Continue reading “Biden’s Plan to “Tax the Rich” Is Unlikely to Stop with Billionaires”

Would the Use of Burner Phones by Trump Violate the Presidential Records Act?

The House Select Committee is reportedly investigating a gap of seven hours and 37 minutes (11:17 a.m. to 6:54 p.m) in telephone calls on January 6th for President Donald Trump. That reported gap led to questions of whether Trump used “burner phones” to evade any record of calls. It is still too early to determine the cause or responsibility for this alleged gap. However, Trump magnified concerns when he claimed to have never even heard the term “burner phone,” let alone knew what it means. The far more serious question, however, is whether Trump or his aides or allies actively sought to conceal communications during that critical period. There have been claims that the use of such phones would violate the Presidential Records Act. I do not believe that it would be a technical violation of the PRA.

Continue reading “Would the Use of Burner Phones by Trump Violate the Presidential Records Act?”

Justice Thomas Faces Calls for Investigation and Sweeping Recusals

Below is my column on the calls for Supreme Court Justice Clarence Thomas to recuse himself from a wide range of cases.  I have previously discussed the  meritless calls for his impeachment over the controversy related to his wife’s emails to the White House after the 2020 election. There are legitimate concerns that Thomas should have recused himself from a January case if he knew that his wife’s messages were included in the material sought by the House investigation. However, experts have gone further to claim that he must recuse himself from a wide array of other cases, including any touching on the 2020 election. I do not agree with that assessment. In the meantime, Sen. Cory Booker (D., N.J.) is calling for an “investigation” into Thomas’ refusal to recuse himself, though he is vague on who would conduct such an investigation.

Here is the column:

Continue reading “Justice Thomas Faces Calls for Investigation and Sweeping Recusals”

No, Justice Thomas Did Not Commit an Impeachable Offense

It is often said that “if the only tool you have is a hammer, every problem looks like a nail.” In modern American politics, it often seems like the only tool is impeachment and every controversy instantly becomes a high crime and misdemeanor. Donald Trump was impeached not once but twice. Not long after Justice Brett Kavanaugh was confirmed, Democrats like then-Sen. Kamala Harris and Sen. Elizabeth Warren demanded his impeachment.  Others demanded the impeachment of Attorney General Bill Barr and cabinet members.

Associate Justice Clarence Thomas is only the latest addition to that ever-lengthening list. In reality, the calls for his impeachment are entirely disconnected from any constitutional or logical foundation. Rather, the Thomas controversy shows how the impeachment mantra has become a raging impeachment addiction. Continue reading “No, Justice Thomas Did Not Commit an Impeachable Offense”

The Jackson Hearings and the Death of the Confirmation Process

Below is my column in The Hill on the confirmation of Judge Ketanji Brown Jackson and the death of the confirmation process as a meaningful and substantive process of review. The confirmation hearings continued a long trend towards superficiality and jingoism when it comes to the discussion judicial philosophy and doctrine. Nominees have long been prepped to refuse to answer substantive questions and evade direct responses on judicial philosophy. This did not start with Judge Jackson but it is clear now that our confirmation process is a scripted and shallow exercise for all parties.

Here is the column:

Continue reading “The Jackson Hearings and the Death of the Confirmation Process”

E Pluribus Unum: The Supreme Court Issues Two Major Rulings With Only One Dissenting Vote

We have previously discussed the disconnect between the rhetoric for court packing and the reality of the court itself. As senators like Elizabeth Warren have called to pack the Court with a liberal majority and others have described it as hopelessly and ideologically divided, the Court itself continues to crank out unanimous or nearly unanimous decisions. This week saw two major cases touching on free exercise and free speech with only one dissenting vote.  While justices have publicly condemned the Democratic court packing efforts, the court seems to be again speaking through its opinions. The cases are Ramirez v. Collier and  Houston Community College System v. David Buren Wilson.

Continue reading “E Pluribus Unum: The Supreme Court Issues Two Major Rulings With Only One Dissenting Vote”

“We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations

Below is my column in USA Today on the confirmation hearings for Judge Ketanji Brown Jackson. For the most part, the hearings remained respectful and civil. I criticized some of the questioning from Republican senators on relevance or tone, but the difference with the prior three nominations was striking in a number of respects. Judge Jackson faced tough questioning on her prior decisions, but there were no giant pictures of alleged future victims or attacks on her religion or family that we saw two years ago. Indeed, as Sen. Cory Booker (D., N.J.), stated “This is not a normal day for America. We have never had this moment before.”

Here is the column: Continue reading ““We Have Never Had This Moment Before”: The Jackson Confirmation Shows Striking Differences From Prior Confirmations”