Below is my column in The Hill newspaper on the latest rationale for opposing any nominee of President Donald Trump: that any nomination or confirmation must wait until the completion of the investigation by Special Counsel Robert Mueller. It is a claim being voiced by both politicians and academics despite the absence of constitutional or historical support.
Here is the column:
Former Attorney General Eric Holder remains a controversial figure for civil libertarians and other groups after his tenure in the Clinton and Obama Administrations. He is one of the principle authors of the “Kill List” policy under which President Barack Obama claimed the right to kill any American without a charge or trial if he unilaterally determined that they are a national security risk. Despite the view of some of us that Holder deserved to be fired over his abusive investigation of journalists, he will now be given the prestigious Thurgood Marshall Award from the ABA Section of Civil Rights and Social Justice on Aug. 4 during the ABA Annual Meeting in Chicago.
Continue reading “Eric Holder To Receive ABA Award In August”
Below is my column in the Washington Post on the implications of the resignation of Associate Justice Anthony Kennedy and his own decisions setting aside prior precedent. Indeed, Kennedy’s last week before announcing his resignation reenforced the very arguments that could be used by a new conservative majority to strip away his legacy. Indeed, Kennedy spent the last week eagerly sawing away on the branch on which he and his legacy rests.
Below is the column: Continue reading ““Correcting The Error”: Did Kennedy Cut His Own Tow Line In His Final Decisions?”
By Darren Smith, Weekend Contributor
With the coming this week of this year’s Independence Day, I thought we would revisit an article from 2016 and pose a question to you. Does the use of fireworks constitute protected free speech?
A tradition spanning multiple generations in the United States is that a large portion of our society celebrates and shows tribute to the United States through the lighting and observance of fireworks. Yet numerous municipalities and counties impose sweeping and total bans of fireworks. Some statutes regulate the type of firework allowable, such as those having a ferocity that safety requires certified technicians. Others ban benign devices such as snakes and small fountains.
But does a complete ban on fireworks regardless of size constitute an infringement on the first amendment rights of citizens?
Continue reading “Does Lighting Fireworks Constitute Free Speech?”
Below is my column in The Hill newspaper on the legacy and vision or Associate Justice Anthony Kennedy. The departure of Kennedy will leave the Supreme Court more calcified and rigid in its ideological division. Chief Justice John Roberts now assumes the role of the swing vote with a center of gravity that will likely move further to the right. His voice was unique and often profound. He applied a conservative jurisprudence that emphasized the protection of individual rights and identity. Time will show that Kennedy saw a horizon for our society that we are still struggling to attain.
Here is the column:
Continue reading “The Kennedy Retirement Leaves The Court Without A Center of Gravity and Grace”
Below is my column in The Hill newspaper on the Supreme Court’s decision upholding the travel ban in Trump v. Hawaii. While the case has been buried in the crush of coverage over the resignation of Justice Anthony Kennedy, the opinion is a shot across the bow for lower courts in their treatment of the relevant record for such disputes. It also answers some lingering questions over the conduct of key figures like Sally Yates.
Here is the column: Continue reading “The Travel Ban and The Court’s Red Hen Moment”
There was a curious shift that occurred in the 24 hours leading up to the decision of the Supreme Court in Trump v. Hawaii. News organizations repeatedly emphasized that the travel ban under consideration was, in the words of CNN, “very different” from the one first issued by the Trump Administration and the current order was much narrower. It is certainly true that the current travel ban has a slightly different array of countries and a much enhanced record. Moreover, I was a critic of the poorly drafted and poorly executed original ban. However, it is not true that those differences carried the day with the Court. The two threshold issues remained that same and, until the loss yesterday, challengers maintained that the legal issues had not materially changed.
Continue reading “The Supreme Spin: How The Travel Ban Victory Became A Victory For Critics”
For decades, law professors have discussed the 1944 decision in Korematsu v. United States as one of the most disgraceful and indefensible opinions ever issued by the United States Supreme Court. Yet, the Court has continued to cite Korematsu and has never expressly disavowed its denial of basic constitutional rights to Japanese Americans. In a virtual aside by the majority in Trump v. Hawaii, Chief Judge John Roberts Jr. puts a well-aimed stake through the heart of the case and finally declares it to be overturned.
Continue reading “The Long Overdue Death of Korematsu v. United States”
I have a column in The Hill today on the decision of the Supreme Court in favor of the Trump Administration on the travel ban. After the first travel ban decision, I predicted that (while lower courts might disagree) the Supreme Court would reverse on the heavy reliance on President Donald Trump’s campaign statements and tweets. For prior columns, click here and here and here and here and here and here and here and here. Nevertheless, critics have cried foul at the 5-4 decision, including Sen. Mazie Hirono, D-Hawaii, has said that this creates a dangerous imbalance in the separation of powers. I believe the opposite is true.
Continue reading “Supreme Court Upholds Travel Ban In Major Victory For The Trump Administration”
President Donald Trump escalated the debate over immigration this weekend in calling for the deportation of people who “invade our Country”, without hearings or judges. The call would raise serious questions under both U.S. and international law. It would be a denial of the most basic protections of due process for those with credible claims for asylum. The position is both extreme and untenable if he is referring to any and all cases. It also undermines otherwise strong arguments being asserted for expedited procedures for dealing with the influx of undocumented persons.
Continue reading “Trump Calls For Deportations Without Hearings Or Judges”
In a major win for privacy, the Supreme Court has ruled 5-4 in a decision on Friday that police need warrants to gather phone location data as evidence for trials. The decision is a reversal of the Sixth Circuit Court of Appeals in Carpenter v. United States. Continue reading “Privacy Prevails: Supreme Court Rules That Warrant Is Required For Cellphone Location Data”
The Supreme Court overruled its prior decisions in a historic decision this week that will allow politicians to tap into Internet sales with new taxes. President Donald Trump has praised the decision in allowing Internet sales to be now subject to taxation from all 50 states. The decision in South Dakota v. Wayfair overturns the prior 1992 ruling in Quill Corp. v. North Dakota (what is it about those Dakotas and Internet taxes?). South Dakota wanted to take a cut of Internet sales even though these business have no property or employees in the state. To do so, the Supreme Court had to guy its prior requirement of a physical presence in a given state. It just did by a vote of 5-4. The opinion also contains a body blow to the doctrine of stare decisis (“to stand on the decisions”) under which the Court strives to maintain its own prior decisions. We now have a doctrine of abdicare decisis (“To ignore the decisions).
Below is my column in The Hill newspaper on Giuliani’s statement that the President may “clean up” the entire Mueller investigation with a slew of pardons at the end. After causing an outcry, Giuliani later said that the President would not pardon anyone under investigation. That led to utter confusion, again, about what Giuliani is saying and whether the original statement remains valid for pardons after the investigation.
Here is the column: Continue reading “The Pardon Power Is Not A ShamWow For Presidential Scandals”
Below is my column on the implications of the IG report for the obstruction allegations being investigated by Special Counsel Robert Mueller. I have previously written how the most likely explanation for actions taken by this Administration will be found in Ockham’s Razor and that theory that requires the least number of assumptions. The IG report is an example of following such logic rather than assumptions.
Here is the column: Continue reading “Why The IG Report Undermines Mueller’s Obstruction Investigation”
Below is my column in The Hill newspaper on the recent Senate hearing (in which I testified) on the proposed new AUMF legislation. In the last couple days, an open battle erupted between Sen. Lindsey Graham (R., South Carolina) and Sen. Rand Paul (R., Kentucky) after Graham called for the addition of North Korea among the ever changing list of countries. Paul called him “a danger to the country.”
Here is the column: Continue reading “Congress Is Again AWOL On War Powers”