Category: Constitutional Law

The Leak Investigation: If We Want To Protect Journalists, We First Need To Define Them

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:

Continue reading “The Leak Investigation: If We Want To Protect Journalists, We First Need To Define Them”

Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions

Fred Schilling, US Supreme Court

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:

Continue reading “Confounding Its Critics: The Supreme Court Issues A Line Of Inconveniently Non-Ideological Opinions”

“Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory

(Official White House Photo/Adam Schultz)

President Joe Biden is facing an embarrassing and growing problem as he continues to declare his focus on ending racial discrimination: another federal court appears close to ruling that his Administration is engaging in raw racial discrimination. Milwaukee District Judge William Griesbach issued a temporary restraining order in Wisconsin halting Biden’s controversial $4 billion race-based federal relief program for farmers.  The awarding of relief based on race immediately raised objections of racial discrimination. The ruling is based on the court’s view that the white farmers challenging the program are likely to prevail. Continue reading ““Discrimination at the Hands of Their Government”: Another Federal Court Has Halted a Federal Relief Program As Racially Discriminatory”

No, The Second Amendment Was Not Primarily About Suppressing African Americans

The media has given highly favorable coverage to a new book by Dr. Carol Anderson, chair of Emory University’s Black Studies Department, that argues that “[the Second Amendment] was designed and has consistently been constructed to keep African Americans powerless and vulnerable.”  In interviews with media outlets like CNN and NPR Anderson’s theory is not challenged on the history and purpose of the Second Amendment. Like the contested claims of the “1619” project (which posited that slavery was the motivation for the establishment of the colonies), there might be a reluctance by academics to raise the countervailing historical sources out of fear of being labeled insensitive, defensive, or even racist.  However, this is not a new theory and, while there were concerns at the time about slavery and uprisings, the roots of the Second Amendment can be traced largely to England and the fears of government oppression. The point is not to dismiss this consideration for some pro-slavery figures at the time but to put those statements in a more historically grounded and accurate context. Continue reading “No, The Second Amendment Was Not Primarily About Suppressing African Americans”

A “Slippery, Bootlicking A.G.”? The Media Goes Silent As Garland Adopts Previously Denounced Positions Of Barr

Below is my column in The Hill on the recent decisions of Attorney General Merrick Garland to support the prior positions taken by his predecessor, William Barr, on issues ranging from the Lafayette Park protests to immigration to withholding information related to the Mueller investigation. Positions that were once denounced by media and legal experts as raw partisanship have now been adopted by the Biden Administration with little acknowledgement from those same figures.

Here is the column:

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“A Matter Of Public Concern”: Virginia Judge Orders Reinstatement of Teacher Who Criticized Gender Policy

YouTube screenshot

We recently discussed the case of Loudoun County teacher Byron “Tanner” Cross who was suspended for speaking against gender policies. In a major victory for the free speech rights of teachers, Twelfth Circuit Judge James E. Plowman ordered LCPS to restore Cross’ position as a physical education teacher at Leesburg Elementary School. In a letter, the court found a basis for a temporary injunction to allow Cross to return until Dec. 31 pending further orders of the court. Continue reading ““A Matter Of Public Concern”: Virginia Judge Orders Reinstatement of Teacher Who Criticized Gender Policy”

An Ideal Rule for the Age of Rage? Critics May Be Making the Best Argument For Keeping The Filibuster

Below is my column in the Hill on the future of the filibuster and why this may be the most credible period for the use of such a compromise-forcing rule. There have always been good-faith arguments against the use of such a rule as inhibiting democratic voting. After all, the rule blocks bare majority voting. However, with a razor-thin margin in both houses, the use of such a rule can help force greater dialogue and compromise in Congress, which most voters indicate that they want in polls. It now appears that Sen. Joe Manchin (D., W.V.) will block the federal voting rights legislation even without a filibuster. As a result he was attacked as a “not very bright” aider and abetter and “cowardly, power-hungry white guy” by the left. Sen. Dick Durbin’s press secretary on the Judiciary Committee even curiously declared that democracy should not be “in the hands of a man who lives in a house boat.” The furious response explains why Manchin has been one of just two Democrats willing to demand compromise. The Republicans have roughly the same number willing to push from that side. However, combined these senators are seeking bipartisan agendas in a deeply divided nation. Killing the filibuster will remove the key pressure to seek bipartisan approaches.

Here is the column:

Continue reading “An Ideal Rule for the Age of Rage? Critics May Be Making the Best Argument For Keeping The Filibuster”

Federal Court Strikes Down California’s Assault Weapons Ban

For many years, I have been critical of politicians running on promises of sweeping gun control legislation that would violate controlling case law under the Second Amendment. After every mass shooting, politicians pledge that they will get guns out of society when they know that such promises mislead voters on the range of permissible action in the area. In reality, the range of permissible legislative action is quite limited. Moreover,  limits on things like clip capacity are unlikely to make a significant difference in gun violence. Now, a federal judge has struck down California’s three-decade-old ban on assault weapons as a violation of the Second Amendment. The decision could be raised in the ongoing consideration of the nomination of David Chipman, who President Joe Biden wants to head the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

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“To Support and Defend The Constitution of the United States”: Micheal Flynn’s Crisis Of Constitutional Faith

Below is my column in USA Today on the disturbing comments of former National Security Adviser Michael Flynn in favor of a military coup. He later insisted that he was misquoted but the videotape confirms that he was for a military coup before he was against it last week. It is certainly positive to see Flynn deny support for a military coup, but the incident is the latest example of our growing addiction to rage — and the loss of our common constitutional faith.

Here is the column:

Continue reading ““To Support and Defend The Constitution of the United States”: Micheal Flynn’s Crisis Of Constitutional Faith”

“Malicious Communications”: Scottish Feminist Criminally Charged For Tweets Opposing Gender Self-Identification

There is a free speech fight brewing in Scotland where a prominent feminist, Marion Millar, 50, has been charged with the crime of “malicious communication” due to tweets criticizing gender self-identification.  We have previously discussed how feminists are being accused of hate speech and discrimination in these debates.  Indeed, Millar is accused of being a “terf” (a trans-exclusionary radical feminist) by critics due to her opposition to allowing males to declare themselves to be females.  She could now face two years in jail. Continue reading ““Malicious Communications”: Scottish Feminist Criminally Charged For Tweets Opposing Gender Self-Identification”

The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling

Fred Schilling, Collection of the Supreme Court

A curious thing just happened on the Supreme Court when it issued the sole decision of the day. The 6-3 decision of the Supreme Court in Van Buren v. United States is not one of the blockbuster decisions that are being eagerly awaited in the coming days. The case involving computer fraud is interesting to some of us for its says about the intricacies of the federal statute. However, it is even more interesting in what it says about intricacies of the Court. In its line up of justices, the Supreme Court is again speaking loudly to critics who are demanding court packing and radical transformations of the Court. As I recently discussed regarding the release of a series of unanimous decisions, the Court could be speaking as an institution to remind the public that they are not nearly as partisan as their critics. Continue reading “The Curious Ruling In Van Buren v. United States: The Supreme Court Defies Critics With Another Consensus Ruling”

Bowser’s About Face: The District Admits Using Tear Gas Against Protesters and Seeks To Dismiss BLM’s Lafayette Park Lawsuit

Below is my column in the Hill on the District of Columbia not only admitting that it used tear gas on June 1 last year near Lafayette Park, but also defending the use as entirely appropriate to enforce the curfew order of Mayor Muriel Bowser. The media has avoided on the story despite Bowser’s previous condemnations of the alleged use of tear gas that night by the federal agencies. (The federal agencies claimed to have use pepper balls but the affect is largely the same). Both the Bowser and Biden Administrations are seeking to dismiss the Black Lives Matter lawsuit. Yet, the host of legal experts and media who condemned the use of tear gas and the clearing  of the Lafayette park area last year are entirely silent on the disclosures.

Here is the column: Continue reading “Bowser’s About Face: The District Admits Using Tear Gas Against Protesters and Seeks To Dismiss BLM’s Lafayette Park Lawsuit”

No, Trump Cannot Be Simply “Reinstated” As President

Sidney Powell, a former attorney for President Donald Trump, is back in the news with a prediction that Donald Trump could be”reinstated” as president. It is a mystery to me how Powell believes that Trump could be “resinstated” but the Constitution is clear: Joe Biden is our president and will remain so absent his death, incapacity, or his removal through impeachment.

Continue reading “No, Trump Cannot Be Simply “Reinstated” As President”

“I’m Holding Myself Accountable”: California Teacher Cancels Herself As A White Person Teaching Spanish

We have seen in recent years that public attestations of being a racist have become more common among academics. Last year, we discussed the controversy over the acting Northwestern Law Dean declaring publicly to “I am James Speta and I am a racist.” He was followed by Emily Mullin, executive director of major gifts, who announced, “I am a racist and a gatekeeper of white supremacy. I will work to be better.” Recently, Brandeis’ Assistant Deans, Kate Slater, has triggered a similar controversy after declaring “all white people are racists.”  Some have gone further. At CUNY, the Law Dean Mary Lou Bilek cancelled herself for once referring to herself as a “slaveholder” in a meeting in arguing for greater protections for minority students. Now, an Oklahoma State PhD student  and teacher Jessica Bridges has cancelled herself from teaching Spanish because she is white.

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Unpacked and Undivided: Is The Court Sending A Message With A Litany Of 9-0 Decisions?

Fred Schilling, Collection of the Supreme Court

Today the Supreme Court issued two more unanimous decisions in Garland v. Dai and United States v. Cooley.  This follow two unanimous decisions last week.  The weekly display of unanimity is notable given the calls by Democratic leaders to pack the Court. Yesterday, I wrote about how the heavy-handed campaigns might backfire with the justices. As we await important and likely divided decisions on issues like abortion, Chief Justice John Roberts and his colleagues seem to be sending a message that the Court is not so rigidly ideological as Democratic members and activists suggest. Continue reading “Unpacked and Undivided: Is The Court Sending A Message With A Litany Of 9-0 Decisions?”