Category: Congress

The Warren Wealth Tax: A Response To Professor Bruce Ackerman

I recently wrote about the constitutional questions raised by the wealth tax proposed by Elizabeth Warren given countervailing constitutional dictates and standing precedent. One of the early advocates of such a tax has been Yale Professor Bruce Ackerman who assured Warren that such a tax would be constitutional. In a Slate column entitled “Constitutional Critiques of Elizabeth Warren’s Wealth Tax Proposal Are Absurd,” Ackerman dismisses any possible constitutional challenge as not “serious” and “absurd.” Putting the hyperbole aside, I wanted to respond to the substance of the column since it makes reference to my earlier Washington Post column. As I have previously said, there are good-faith arguments on both sides of this issue and the outcome is likely to be a close vote. However, Ackerman reduction of countervailing arguments to absurdity not only omits key arguments but creates an incomplete account of the case against such a wealth tax.

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Is The Warren Tax Unconstitutional?

Below is my column in the Washington Post on Elizabeth Warren’s signature wealth tax. As I noted in the column, the constitutionality of the Warren tax would likely be a close question. Yet, the issuance of such a “direct tax” based on wealth rather than income would be presumptively unconstitutional under the existing court precedent and, more importantly, the text of the Constitution.

Here is the column:

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Open Windows and Open Borders: A Lesson From The Founders On Conflict Resolution

Below is my column for the BBC on the controversy over President Donald Trump’s national emergency declaration. Sixteen states, led by California’s Attorney General, are now suing. Others lawsuits have been filed on behalf of landowners and others. The lawsuits appear to challenge both the basis for an emergency declaration and the funding. I still expect Trump to prevail in the long-run if this goes to the Supreme Court. Ironically, House Intelligence Chair Adam Schiff said this weekend that this controversy would be the “test” of his colleagues integrity and principles. Yet, Republicans could easily point out that Schiff never objected or took action when President Barack Obama circumvented Congress, including ordering the payment of potentially billions out of the Treasury after Congress refused to fund part of the Affordable Care Act. He was also silent when Obama not only refused to get authorization for the Libyan War but used undedicated funds to pay for it without an appropriation from Congress.

As this column discusses, there was at one time a much easier way to resolve the most bitter differences among political figures.

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“I Don’t Care. I Believe Putin”: McCabe Levels Shocking Claim Against Trump

“I don’t care. I believe Putin.” Those six words could be the focus of serious congressional oversight in the coming weeks. Former FBI Acting Director Andrew McCabe stated that President Donald Trump refused to accept intelligence on North Korea’s missile program and instead that he would rely on what Putin told him. It is a shocking claim, but what makes this claim so notable is that McCabe is suggesting that it was made before witnesses other than himself. That means that it should be capable to confirmation or refutation. However, this could have the makings of a massive privilege fight between the legislative and executive branches.

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Why Trump Will Win The Wall Fight

Custom and Border Protection

Below is my column in The Hill newspaper on the litigation against the declaration of a national emergency by President Donald Trump in order to build his long-promised wall. Some members of Congress has said that they expect the House of Representatives to sue while private litigants have already filed challenges. Regardless of the litigants (and there are likely to be a mix of parties), they face similar barriers in convincing a federal judge to rescinded a declaration that Congress has not rescinded. This is a straight statutory interpretation case, not the “constitutional crisis” widely described by critics. There are possible claims against the funding conditions, but Congress gave the President not just the unfettered authority to declare such emergencies but the largely unconditioned appropriations that he may use to build the wall.

Here is the column:

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Cohen Goes Out On The Town After Postponing Testimony Again For Health Reasons

I have been a long critic of Trump former counsel Michael Cohen whose lack of legal skills is only surpassed by his lack of legal ethics (here and here and here and here and here and here). Cohen is a serial liar and legal thug who committed various tax and fraud crimes worth millions. Cohen was given an absurdly low sentence by U.S. District Judge William H. Pauley III who fell for the latest dubious pitch of Cohen. While a teenager will get twice as much time for robbing a store for $1000, Cohen got just three years for stealing millions and lying under oath. He then was called to appear before Congress and worked a new sham as the redemptive sinner. Yet, there is always a warning of Caveat Emptor that comes with dealing with Cohen: buyer beware. Cohen has now postponed testimony repeatedly in Congress. The latest excuse was his health — a claim that was refuted by a videotape showing him enjoying a night out on the town at an expensive restaurant the night before.

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A Farewell To Walter Jones

It is with the greatest sadness that I have to post the death of Rep. Walter Jones, R-N.C., died Sunday in Greenville, N.C., Jones was one of my former clients when I represented Democratic and Republican members challenging the Libyan war. I spent many lunches and conversations with Walter through the years. I have never met a member of Congress who was more honest and earnest in trying to serve the public. He was an incredibly self-effacing man who felt guilt for not being able to stop the many foreign wars. As a representative with a large military district, Jones was crushed by the deaths or wounding of young men and women in the wars in Iraq, Afghanistan and other hot spots. He was 76.

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Report: Blocked Caller Connected To Trump Jr. Was Not President Trump

YouTube Screengrab

For over a year, many of the theories of Russian collusion have highlighted a mysterious call to an unpublished number by Donald Trump Jr. in the critical period of the infamous meeting with Russians in Trump Tower. Democratic members apparently received the disappointing news this week that the number has been tracked down and did not belong to President Donald Trump but business associates of his son.

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“Passive and Naive”: Trump Attacks His Own Intelligence Chiefs After They Contradict His Statements On Iran, North Korea, and Syria

President Donald Trump attacked his own intelligence chiefs today after they contradicted his statements about the status of threats posed by Iran, North Korea and other countries. Trump called the intelligence chiefs “wrong” and “passive and naive.” He also said that these seasoned intelligence officials might need to go back to school. It is worth noting that the testimony of these officials were not only quite measured but widely shared by experts in the field.


Debtor Nation: Treasury Quietly Adds Another $1 Trillion In Debt

As many on the blog are aware, I am a fiscal conservative and social liberal (the profile of many a libertarian). I have previously railed against our soaring debt and the continued inability of our presidents and members of Congress to exercise a modicum of fiscal responsibility. This is a new low with the Treasury Department taking on $1trillion in more debt — for a second year in a row. We are saddling our children with this crippling level of debt to avoid our politicians to escape their responsibility to make tough decisions. With the start of the 2020 presidential election, politicians are lining up with expansive new spending proposals to entice supporters as our government plunges deeper into debt.

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SOTU Games: Trump Drops Speech After Pelosi Drops Pretense

We previously discussed the controversy over the State of the Union. I view both sides as irresponsible in this dispute. I previously objected to Speaker Nancy Pelosi using a clearly manufactured excuse of security. After Trump confirmed that security was not an issue, Pelosi simply dropped the pretense and disinvited the President. The media was virtually silent about the earlier misrepresentation and misuse of the security rationale. Trump then dropped plans to give the speech and seemed to morph into Jack Nicholson and saying that “Nancy” cannot handle the truth. The problem is that that line was given by a trapped, unhinged perjurer in A Few Good Men. We are left not only without a SOTU but no leader in sight on this issue. Frankly, most of us cannot handle the truth about both parties and their apparent priorities.

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Congress Should Subpoena Cohen

Congressional Seal

President Donald Trump’s former lawyer fixer, Michael Cohen, has declined to appear at this scheduled hearing on February 7th, citing
“ongoing threats” against his family by President Donald Trump and his current counsel Rudy Giuliani. I have previously criticized Trump for his highly inappropriate references to Cohen’s father-in-law and the warning Cohen that his family could be investigated. The comments looked like an obvious threat and an effort to intimidate a witness who has accused Trump of knowing violations of federal law. However, Cohen’s explanation is hardly convincing, though it is highly ironic. Cohen made his living as a legal thug who threatened anyone who presented a risk to Trump. However, the more likely reason is that recently new stories implicated Cohen in additional criminal conduct and Cohen was afraid that he might be asked about possible criminal conduct by his family, including his father-in-law.

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Barr and BuzzFeed: What Two Stories Reveal About Coverage and Commentary In The Age Of Trump

Below is my column on the concerns raised about the media coverage from last week. As I have stated, my concern is not with the BuzzFeed story per se, but how it was used to start a feeding frenzy of speculation. The treatment of the two major stories of last week (the Barr and BuzzFeed stories) speaks volumes about the consistent pattern of coverage and commentary in the age of Trump.

Here is the column:

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The House Has A Duty To Impeach If They Find High Crimes and Misdemeanors By Trump

Below is my column in USA Today on the recent statements by various Democratic leaders that they are unlikely to pursue impeachment because they do not have the votes in the Senate to convict. While many members pushed the impeachment angle during the campaign, there was a shift on the issue after the Democrats took office. Almost immediately after the election, senior Democrats changed course and began to dismiss calls for impeachment as “fruitless” and a distraction. Rep. Eleanor Holmes Norton declared impeachment to be “a useless waste of energy” and asked “Why would we go down the impeachment road when we cannot get it through the Senate?” 

I have repeatedly said that I do not see the strong foundation for an impeachment against Trump. However, these comments raise a more fundamental question about how members should approach their duties under Article I irrespective of the President. Members often pull a bait-and-switch with gullible voters, but they should not manufacture a new constitutional standard. If they truly believe that any president has committed high crimes and misdemeanors, they have a sworn duty to vote for impeachment.

Here is the column:

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Five Myths About Bill Barr

Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.

Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest.  Barr was repeating the standard from the regulation, which is precisely what he should do.  That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents.  Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material.  After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge.
Here is what Barr said:

“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”

Here is the column:

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