Category: Constitutional Law

The Ninth Circuit Strikes Down California’s Ban On High-Capacity Magazines

ninth-circuit-logoThree years ago, I wrote a column questioning the constitutional and practical effect of gun control reforms pushed through after the Las Vegas massacre, including limits on the capacity of magazines. The moves were being oversold in the media as reforms that would make such attacks less likely or deadly while also ignoring the constitutional standard for the review of such measures.  Now, one of those reforms, California’s ban on high-capacity gun magazines, has been struck down by a panel on the United States Court of Appeals for the Ninth Circuit.  Notably, the magazine laws were one of the most promising areas of gun control laws after the Court’s 2008 decisions in District of Columbia v. Heller. Indeed, while I doubted its efficacy, I thought that limits on magazines could potentially pass constitutional muster under Heller with a properly crafted and supported law.

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Yes, Kamala Harris Is Eligible For Vice President

440px-Senator_Harris_official_senate_portraitThe media is alight today after the publication of a piece in Newsweek by Chapman University Professor John C. Eastman that raised the question of whether Sen. Kamala Harris is a citizen and eligible to be Vice President.  She is.  The courts have long recognized that individuals born in the United States are citizens under the Fourteenth Amendment. In fairness to Professor Eastman and Newsweek, this has been a debate that has been raised during prior elections over candidates ranging from Chester Arthur to Barack Obama to John McCain. Continue reading “Yes, Kamala Harris Is Eligible For Vice President”

Court Dismisses ACLU Complaint That Postage On Mail-In Ballots Constitute A Poll Tax

440px-New_ACLU_Logo_2017.svgI have been critical recently of the torrent of lawsuits filed by the American Civil Liberties Union (ACLU) during the Trump Administration. The over 400 lawsuit represent a shift from the prior careful litigation strategy of the ACLU, which was once as concerned with creating bad precedent as it was creating good precedent.  While the ACLU has had some major wins, it has also lost many of these cases.  The latest loss was a case rejected by U.S. District Judge Amy Totenberg based on a claim that the postage on mail-in ballots constitute a type of poll tax.

Continue reading “Court Dismisses ACLU Complaint That Postage On Mail-In Ballots Constitute A Poll Tax”

Pittsburgh Professor Stripped of Position After Publishing Paper Questioning Affirmative Action In Admissions

download-1This week I testified in the Senate about the erosion of free speech and academic freedom in our universities where professors are being punished or even fired for expressing viewpoints that challenge a new orthodoxy on our campuses, particularly with regard to racial and political issues.  The latest example can be found this week at the University of Pittsburgh, which has removed Associate Professor of Medicine Norman Wang was removed from his position as Program Director of the Electrophysiology Fellowship.  The removal was in direct response to Wang publishing an article in a peer-reviewed journal that questioned the use of affirmative action in medical schools admissions. The action raises serious concerns over both free speech and academic freedom. The only thing more unsettling than the actions of the university was the relative silence of his colleagues throughout the University of Pittsburgh as he was punished for expressing his academic views.

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Turley Testifies In Senate On Antifa and The Anti-Free-Speech Movement in the United States

downloadToday I am testifying in the Senate Judiciary Committee’s Subcommittee on the Constitution on the anti-free-speech movement in the United States.  The hearing is entitled “The Right of the People Peaceably to Assemble: Protecting Speech by Stopping Anarchist Violence.” The hearing will be held at 2:30 in the Dirksen Senate Office Building and will be broadcast on C-Span and available on the Internet through the Committee. My testimony is below.

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“Blood-Chilling” or Just A Tweet? Debunking The Coup d’Trump

Below is my column in the Hill newspaper on the continued speculation over President Donald Trump delaying or cancelling the 2020 election. This conspiracy theory first appeared shortly after Trump’s election and became the rage when Vice President Joe Biden predicted that Trump would try to halt the election (and try to steal the election through the Postal Service). Despite the overheated coverage, Trump did not try to delay the election. He cannot delay the election. He asked a question of whether it should be delayed, which Congress can legally do. However, as I said immediately after the tweet, it is a question that is politically absurd and legally unfounded. However, the only thing more ridiculous was the response to this eleven-word question. It is all part of the panic disorder that seems triggered by Trump tweets on a daily basis.

Here is the column: Continue reading ““Blood-Chilling” or Just A Tweet? Debunking The Coup d’Trump”

Is The Boston Marathon Bomber Ruling Good News For Roger Stone?

download-5We have been discussing the ruling of the United States Court of Appeals for the First Circuit in tossing the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev due to juror bias (as well as reversing some convictions). The ruling is a relatively rare case of a court taking such action.  Criminal defense attorneys, including myself, have long complained that judges talk a good game about fair trials but always seem to find a way of avoiding new trials in the face of even clear juror bias. That was my objection to the Stone trial where Judge Amy Berman Jackson refused to grant a new trial on grounds very similar to those of Tsarnaev, including alleged bias in forepersons in the both cases. While Tsarnaev only got a new sentencing proceeding, Stone should receive an entirely new trial.

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The Barr Hearing and The Triumph Of Small People In An Era Of Great Events

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Below is my column on the recent hearing before the House Judiciary Committee with Attorney General William Barr.  The hearing was widely ridiculed after Barr was repeatedly prevented from answering questions.  It was a great disappointment.  I just testified on the Lafayette Park controversy and many of us were waiting for a month to hear from Barr directly on the details, particularly the statements of many in the media that the Park area was cleared to allow President Trump to take a picture in front of St. John’s Church.  Democratic members continued to refer to that as a fact (as has many in the media) despite the federal agencies supplying information that shows that the plan was approved days before and the order was given with no knowledge of the photo op. Yet, on repeated occasions Barr tried to supply times and dates, Democratic members immediately “took back the time” and even got angry when he tried to answer.  The same is true on other controversies.  We lost an opportunity to actually answer these questions. Yet, after repeatedly blocking Barr from answering, Speaker Nancy Pelosi called him a “Blob” at the hearing.  He might seemed less blob-like if Democrats allowed him to speak. Instead, the hearing was an example of how Congress will work tirelessly not to find answers when a narrative is too good to check.

Here is the column: Continue reading “The Barr Hearing and The Triumph Of Small People In An Era Of Great Events”

“Delay the Election”: Trump Fuels New Questions Over The Holding Of The Presidential Election

donald_trump_president-elect_portrait_croppedWe previously discussed a conspiracy theory from Vice President Joe Biden that President Donald Trump could unilaterally cancel or delay the election day.  We then dealt with a baffling statement by Jared Kushner that it was too soon to tell if the election day would be delayed — a statement that was as politically unwise as it was legally unsound. Now, President Donald Trump is fueling this controversy with a bizarre tweet that we may need to delay the election day. He is not suggesting that he can do it unilaterally, but it is another statement at odds with the constitutional and statutory foundation for the election day schedule.  Even if Congress agreed to a different day, it would only move voting a few weeks later. Anything more would require pulling up our controlling law root and branch. Continue reading ““Delay the Election”: Trump Fuels New Questions Over The Holding Of The Presidential Election”

Can Portland Really Collect The Running Fine On The Federal Government? Probably Not.

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SUNY-Binghamton Sued After Activists Assault College Republicans And Block Speak By Economist

 

State_University_of_New_York_at_Binghamton_SealThe State University of New York-Binghamton is the defendant in a new lawsuit over its failure to protect College Republicans and a leading conservative economist in public events last year. The Binghamton University College Republicans and the Young America’s Foundation (YAF) is suing Binghamton University President Harvey Stenger, Vice President for Student Affairs Brian Rose; Chief of Binghamton University Police Department John Pelletier, the College Progressives, and Progressive Leaders of Tomorrow (PLOT) for the denial of First and Fourteenth Amendment violations.

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Willful Blindness: New Damaging Information On The Russian Investigation Is Promptly Unseen By The Media

Pandora_-_John_William_WaterhouseBelow is my column in The Hill on the recent disclosure of a document showing that the FBI used an agent to gather information for Crossfire Hurricane during campaign briefings of Trump during 2016.  The document directly contradicted the long-standing denial that the investigation to Russian collusion was ever used to gather intelligence on Trump or his campaign.  At the same time, the credibility of the Steele Dossier was further undermined this weekend with the release of new information that Steele misrepresented the sources and information used as the basis for this report, which was funded by the Hillary Clinton campaign and the Democratic National Committee.  The source for the most alarming allegations was revealed as Igor Danchenko, 42, as confirmed to The New York Times,  He was not the “Russian-based” source claimed by Steele and the FBI learned that Steele took third-hard rumors and presented them as hard intelligence in the report used to help justify the Russian collusion investigation. This source was used in the last two renewal applications to the FISA court as a “truthful and cooperative” and “Russian-based,” according to the Justice Department Inspector General report found. So it turns out that the primary “source” of Steele’s dossier was “not a well-connected current or former Russian official, but a non-Russian-based contract employee of Steele’s firm.”

None of this has made any difference to the coverage.  On ABC Sunday, George Stephanopoulos had Chris Christie as a guest but his involvement in the very meeting discussed in the document did not merit a single question from the host.  In the meantime, Democratic leaders, who once mocked the idea of any investigation of Trump or targeting of the campaign, now say that it really doesn’t matter. Rep. Eric Swalwell says that it was actually “the right thing to do.” 

Here is the column: Continue reading “Willful Blindness: New Damaging Information On The Russian Investigation Is Promptly Unseen By The Media”

“They Were Right To Do It”: Swalwell Praises FBI For Using Campaign Briefing To Investigate Trump [Updated]

440px-Eric_Swalwell_114th_official_photoAs I discussed in a column this weekend, Democratic members have spent years mocking allegations that there was any spying or surveillance of Trump or his campaign by the FBI. That was just a conspiracy theory. Now however there is proof that the FBI used a briefing in August 2016 of then candidate Trump to gather information for “Crossfire Hurricane,” the Russia investigation. It turns out that it did not really matter after all and Rep. Eric Swalwell did not miss a step. He simply declared that such targeting of the opposing party and its leading presidential candidate was the right thing to do. That’s it. A conspiracy theory suddenly becomes a commendable act. Continue reading ““They Were Right To Do It”: Swalwell Praises FBI For Using Campaign Briefing To Investigate Trump [Updated]”

Federal Judge Blocks New Seattle Law Prohibiting Use Of Pepper Spray and Certain Anti-Riot Weapons

James_L._RobartU.S. District Judge James Robart issued an order Friday night that blocked a Seattle law  prohibiting police from using pepper spray and other anti-riot weapons. While described by the court as “very temporary,” it is also very dubious from a constitutional standpoint. I do not see the authority of a federal judge to stop the City of Seattle from determining what gear and devices may be used by its own officers, particularly in response to the federal government objecting to the state policy.  The court in my view does not have the authority to make such a policy decision, even on a “very temporary” basis.  Update: A different federal judge issued a more credible ruling in rejecting the demand of the Oregon Attorney General to put limits on the federal officers.  The Oregon Attorney General’s filing was long on rhetoric and short on the law.

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Penn Professor Faces Calls For His Removal After Questioning An Anti-Racism Statement [UPDATED]

download-10We have been discussing efforts to fire professors who voice dissenting views of the basis or demands of recent protests including an effort to oust a leading economist from the University of Chicago as well as a leading linguistics professor at Harvard.  It is part of a wave of intolerance sweeping over our colleges and our newsrooms.  Now, an effort has been launched to fire University of Pennsylvania Professor Carlin Romano and to kick him off a prestigious literary group because Romano questioned the language of a proposed statement on racism in the publishing industry and even spotted an embarrassing typo.
Update: After posting the original blog, Professor Romano sent me a kind note. He then in true form (given his original email on the proposal) noted a long list of typos in my column. (Many on this blog routinely point out such typos, which are something of an embarrassing signature for me. I usually get up around 5 am to write blogs before caffeine fully takes hold). I thought it was hilarious and asked if I could mention his edits. He gracefully agreed and then pointed out two more typos. I still do not think that he should be fired.