During the Trump Administration, we regularly discussed Democratic members and writers calling for the impeachment of Trump for everything from criticizing NFL kneelers to obnoxious tweets. Not to be outdone, many Republicans have been demanding the impeachment of Joe Biden for an array of missteps or controversies. Most recently, Rep. Majorie Taylor Greene called for the impeachment of Biden for the disastrous withdrawal from Afghanistan. (This is the second such motion for Greene). It is the same misuse of impeachment as a type of “no confidence vote.” The failure to properly plan and execute the withdrawal from Afghanistan has been an appalling failure by the Biden Administration. However, negligence is not an impeachable offense. Indeed, the lowering of the standard to cover such negligence would create great instability and dysfunction in our constitutional system.
There was a great deal of criticism of President Joe Biden’s press conference from his refusal to take questions on the Afghanistan situation to his calling for the use of Civil Rights laws to oppose any state laws barring mask mandates. One line however received little attention but contained a breathtaking and troubling pledge: “If a governor wants to cut the pay of the hard-working education leader who requires masks in a classroom, the money from the American rescue plan can be used to pay that person’s salary 100%.” With that line, Biden pledged to indemnify people who violate state laws, including orders upheld by the courts. For the states, one can understand if the line between a federal subsidy and a federal accessory is difficult to discern.
Last week, a federal court did something that would seem not just counterintuitive but impossible under our legal system: it upheld an agency order despite the clear lack of authority to issue it. The order – to renew a moratorium on evictions – is a constitutional zombie that is neither alive nor dead. Yet it still walks the land. Continue reading “Unconstitutional But Legal? Court Agrees CDC Does Not Have The Authority For Moratorium Before Upholding Moratorium”
Judge Matthew Kacsmaryk of the United States District Court for the Northern District of Texas delivered a blow to the Biden Administration on Friday by ordering the reinstatement of the Trump-era Migrant Protection Protocols (MPP) program, also known as the “Remain-in-Mexico” policy. This is only the latest of a string of losses by the Biden Administration in its first six months in court. Continue reading “Federal Judge Reverses Biden Order To Terminate Trump’s Remain-in-Mexico Policy”
Below is my column in The Hill on the selective reliance on “our constitutional principles” has become in the voting rights debate. The Biden Administration and the media often ignore countervailing principles over the right of states to establish rules governing elections. That leaves many in the public uninformed of issues that could ultimately undo parts of these bills in the courts.
There was an unnerving conversation between between Biden White House Communications Director Kate Bedingfield and MSNBC host Mika Brzezinski that shows how much ground has been lost on principles of free speech. In an exchange on Morning Joe, Brzezinski asks Bedingfield why Biden has not completed his promised review of Section 230 and create an avenue to held social media companies “accountable in a real way” for spreading “misinformation” about vaccines. Brzezinski ignores not only the constitutional implications of such a move but ignores how such an approach would eviscerate free speech and free press rights. Equally chilling is the response. Bedingfield agrees and assured Brzezinski that the Biden Administration believes these companies should be held accountable for allowing others to voice doubts or dissenting opinions on such questions.
Perhaps the most chilling aspect of the rising censorship in the United States is that countries like Germany (with histories of antagonism toward free speech) have criticized the trend as dangerous and wrong. While Democratic leaders and media figures have supported censorship, figures like Angela Merkel (long criticized for her attacks on free speech) have criticized moves like Twitter banning Trump. Now, Germany has fined YouTube for something that many on the left in the United States have supported: the removal of a video contesting Covid-19 limits. Continue reading “YouTube Fined By Germany For Removing Pandemic Protest Video”
Below is my column in The Hill newspaper on the declaration of a gun violence emergency by New York Gov. Andrew Cuomo. The centerpiece of Cuomo’s plan is a new law to allow victims of gun violence to sue gun manufacturers under a nuisance theory. If it sounds familiar that is because it is painfully familiar. It has failed repeatedly in various states, including New York. It is doubtful that Cuomo truly believes that the law will make a significant, if any, impact on gun violence. However, that is not the point. The point is the appearance of action, not the ultimate result of such action.
Below is my column in USA Today on the Supreme Court’s rejection of the challenge to the Arizona’s new election rules. The 6-3 decision undermines the claims raised in the new challenge to Georgia’s election law. Indeed, the Biden Administration is pursuing a new challenge that could result in a sweeping loss under the Voting Rights Act.
Here is the column:
Today I will be testifying in the House Judiciary Committee on the use of secret surveillance and gag orders in recent investigations into unauthorized disclosures of classified information. The oversight hearing is in conjunction with investigations of Congress and the Inspector General following reports that the Department of Justice’s engaged in surveillance of Members of Congress, journalists, the White House Counsel and others.
The hearing will be held in Room 2141 of the Rayburn House Office Building at 10 am. The hearing is titled “Secrecy Orders and Prosecuting Leaks: Potential Legislative Responses to Deter Prosecutorial Abuse of Power” and will stream live here. My testimony is below.
We recently discussed the Inspector General report on the Lafayette Park protests and the debunking of claims that the federal government and specifically Attorney General Bill Barr cleared the area for the controversial photo op of President Donald Trump in front of St. John’s Church. For a year, legal and media experts have stated as fact that area was cleared for that purpose and that Barr was lying about the federal agencies using tear gas as opposed to pepper balls (even though the legal and practical difference is largely immaterial). Some tried to keep the myth alive by criticism the IG report and its scope. Now, federal judge Dabney L. Friedrich has dismissed the lawsuit by the ACLU and Black Lives Matter as based on unsupported and unsubstantiated claims against the federal agencies. Ironically, the court allowed the lawsuit against the MPD under Mayor Muriel Bowser to continue. The Bowser Administration admitted recently that it used tear gas near the park on that night and that such use was perfectly reasonable. Both the Bowser and Biden Administrations sought to dismiss the BLM lawsuit as unfounded and unsupportable — a striking departure from what Bowser has stated publicly. Continue reading “Court Dismisses BLM Lawsuit Against Federal Agencies Over Lafayette Park Protests”
During the confirmation hearings of now Justice Amy Coney Barrett, I repeatedly objected to the clearly false narrative that she was nominated to vote to strike down the Affordable Care Act in the pending case of California v. Texas. The case was highly unlikely to result in such a decision and the Democrats knew it. The case was focused on a highly technical and limited issues of severability. It would either be resolved on that limited basis or dismissed for standing. While Barrett might view the ACA as unconstitutional (as many do), I noted that she was more likely to dismiss the challenge or sever the individual mandate than to strike down the Act in the case. That is what she did in joined the 7-2 decision to dismiss the case. Continue reading “Will The Senate Democrats Now Apologize To Justice Barrett?”
Below is my column in USA Today on the controversy involving the acquisition of metadata evidence on members of Congress and the media in the leak investigation launched during the Trump Administration. We recently discussed the questionable reporting by the New York Times concerning the lead prosecutor, but far more serious questions remain if we are going to reach any resolution on protecting journalists, including the question of what is a journalist.
Here is the column:
Below is my column in The Hill on decisions issued by the Supreme Court in recent weeks and how they have served as a retort to those who are calling for court packing or major changes in the institution. As noted below, we expect to see more ideological divisions emerge this and next week in some of the outstanding “big ticket” decisions. However, the Court seems to have front-loaded a line of cases refuting the arguments that it is dysfunctionally and hopelessly divided along ideological lines. Today, the Supreme Court issued two more nearly unanimous decisions (with only Justice Sotomayor concurring and dissenting in part in both decision). The decisions were Terry v. United States and Greer v. United States.
Here is the column: