Category: Constitutional Law

Congress, Constitutional Law, Courts, Politics, Society, Supreme Court

Supreme Court Set To Review Obama Recess Appointments
The U.S. Supreme Court
The U.S. Supreme Court

While the rulings in Fisher and Windsor justifiably garnered the most attention this week, it is important to note an important but little discussed decision to accept a case. President_Barack_ObamaI have previously testified and written about President Barack Obama’s use of recess appointments, which I viewed as flagrantly unconstitutional. Recently, the D.C. Circuit agreed with that view and found that the Obama Administration had violated the recess appointment powers. Then a second appellate court has joined that view, the United States Court of Appeals for the Third Circuit. I have two law review articles coming out on these appointments and more broadly the abuse of recess appointment powers in modern presidencies. See Jonathan Turley, Recess Appointments in the Age of Regulation, 93 Boston University Law Review ___ (2013) and Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2103 Wisconsin Law Review ___ (2013). The case accepted for review is Noel Canning v. NLRB, No. 12-1115 (D.C. Cir. 2013).

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Congress, Constitutional Law, Courts, Criminal law, International, Lawyering, Politics, Society

Federal Judge Dismisses Abu Ghraib Case Under Sweeping Ruling Under The Alien Tort Statute

ph_leeU.S. District Judge Gerald Bruce Lee has issued a sweeping victory for the Obama Administration and its contractors in seeking to bar any recourse for people injured or killed in U.S. camps or prisons like Abu Ghraib. Lee dismissed a lawsuit detailing well-supported accounts of abuse of detainees at the Abu Ghraib prison — holding that the injured parties could not use U.S. courts to seek judicial review and relief for the abuse. He closed the door to the U.S. judicial system to four Iraqi plaintiffs under the Alien Tort Statute (ATS) as well as one plaintiff who was deemed as barred under Iraqi law.

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Constitutional Law, Politics, Society

Supreme Court Strikes Down DOMA

The U.S. Supreme Court
The U.S. Supreme Court
As many of us predicted, Justice Anthony Kennedy supplied the fifth vote today to strike down the Defense of Marriage Act (DOMA).  I just returned from offering legal analysis in front of the Supreme Court (and roasting in the DC summer weather with CNN).  I will be discussing the case tonight with BBC.  The surprise was not in the outcome or the split but the scope of the decision.  Kennedy could have rendered the same decision on a narrower basis but chose to render a more expansive endorsement of the constitutional protections for gay couples.  These are marriages, plain and simple, and cannot be simply discharged by Congress. Kennedy wrote: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”

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Columns, Congress, Constitutional Law, Criminal law, International, Media, Politics, Society

AMERICA’S ANIMAL FARM: SNOWDEN AND THE SQUEALER

AF cover 4Below is my column today in USA Today on the criminal complaint against Edward Snowden. I have been criticizing the charge under the Espionage Act as abusive and a mistake by the Administration. President Barack Obama has been criticized for years for his use of the controversial 1917 Act. He is responsible for six of the nine total indictments ever brought under the Act. More than all presidents before him and putting Richard Nixon to shame. He has used the act against sources for journalists and only recently was criticized for the attacks on the free press under his Administration. I do not question the basis for prosecution of Snowden for the disclosure of classified information or any theft of such documents. However, the effort to put him away for life does raise an interesting contrast with prior cases, which is the subject of today’s column (slightly expanded from the print version).

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Constitutional Law, Courts, Media, Politics, Society, Supreme Court

A Familiar Scene And An All-Too-Familiar Question: The Supreme Court Returns To The Question Of Race [UPDATED]
The U.S. Supreme Court
The U.S. Supreme Court
This morning I will be in front of the Supreme Court to discuss the expected rulings on same-sex marriage, voting rights, and racial diversity in college admissions.  It is the last ruling in Fisher v. University of Texas Austin that brings back many personal memories for me.  I will be with Jake Tapper giving legal analysis from virtually the identical place I was standing in 1977 when Regents of the University of California v. Bakke was argued before the Court.  I was a 16 year old congressional page during the large protests for and against affirnative action.  I remember walking out of the House of Representatives where I was a leadership page and getting swept away by the crowds.  I found a spot near today’s CNN site to watch this passionate display of free speech.  What is most striking is that 36 years later little has truly been resolved in how race can be considered by universities — or the struggle of the Court to find a consistent approach to the question. Update below: The Court ruled 7-1 to impose a higher standard for review under strict scrutiny.
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Constitutional Law, Courts, Criminal law, Free Speech, Society

Second Circuit Upholds Conviction Of Radio Host For Attacks On Judges

nicubunu_open_mouthA troubling conviction has now become a troubling precedent for the first amendment. A right-wing Internet radio host, Harold C. Turner, was earlier convicted of threatening three federal judges. Turner, 48, posted comments attacking the three appeals court judges who had upheld a ban of handguns in Chicago. He was charged with a single count of threatening to assault or kill the judges with the intent of impeding their official duties. The referenced judges testified against Turner. They are Judges Frank Easterbrook, William Bauer, and Richard Posner. Now the United States Court of Appeals for the Second Circuit has upheld the conviction in decision that could expose more speech to criminal penalties.

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Constitutional Law, Religion, Supreme Court

Atheist Denied Citizenship Because Her Morality Doesn’t Come From Religion

-Submitted by David Drumm (Nal), Guest Blogger

USCISMargaret Doughty, a 64-year old woman originally from the UK, and living in the US for 30+ years applied for US citizenship. She was asked, like all candidates, if they’d be willing to take up arms in defense of the United States of America. She responded that her “duty of conscience not to contribute to warfare by taking up arms … my beliefs are as strong and deeply held as those who possess traditional religious beliefs and who believe in God.” The USCIS in Houston, Texas, informed Doughty that conscientious objection must be based on religious grounds and she was to “submit a letter on official church stationery, attesting to the fact that you are a member in good standing and the church’s official position on the bearing of arms.”

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Congress, Constitutional Law, Courts, Uncategorized

The War on Men

Submitted by: Mike Spindell, Guest Blogger

taranto-waronmen1As a male who met his wife at age 36, I had many years as a single male and many relationships with women. While being experienced sexually the idea of forcing myself on a woman was not only repellant, but emotionally I was and am unable to understand why men would do something like that.  Emotionally even as a fantasy, on film, or in literature I find nothing the least bit stimulating, or manly about forcing oneself upon an unwilling partner. Yet I understand it very well intellectually as a power trip having little to do with sex and much to do with an innate hostility towards women.. One of the places where it seems rape and sexual assault has run rampant has been the military.  A recent AP story has related that one third of fired military commanders were canned for sexual misconduct.  http://jezebel.com/5977856/nearly-a-third-of-fired-military-commanders-were-canned-because-of-their-penises Congress is discussing harsher military penalties for rape and sexual molestation. This is a disgraceful situation in my opinion and a continuance of women being treated as second class citizens.

In May, the Department of Defense released its “Annual Report on Sexual Assault in the Military,” which found that up to 26,000 service members may have been the victim of some form of sexual assault last year, up from an estimated 19,000 in 2010. The report also found that 62 percent of victims who reported their assault faced retaliation as a result. Defense Secretary Chuck Hagel responded to the report by calling the assaults “a despicable crime” that is “a threat to the safety and the welfare of our people,” and General Martin Dempsey affirmed that sexual assaults constitute a “crisis” in the military.

I find that the figure of 26,000 service members being victims of sexual assault this past year appalling. Almost all of those victims were females. Yet as we shall see there are some who minimize this behavior and seem to excuse it as just the natural workings of the male libido. I’ll explain. Continue reading “The War on Men” →

Constitutional Law, Free Speech, Politics, Society

Report: NSA Allowed To Use “Inadvertently Acquired” Communications

President_Barack_ObamaNational_Security_Agency.svgWe have seen a continuing array of spins by the White House and its allies to excuse the massive assault on privacy in the recently revealed warrantless surveillance programs. This effort has included perjury by high-ranking officials, an effort to redefine privacy in a new surveillance-friendly image, ever increasing claims of averting “plots” and misdirection toward other “threats” to privacy. However, one of the consistent claims has been that no content of communications was reviewed — an argument that itself is fallacious. Now however it appears that even that assurance is false. There are various reports that the content of the warrantless communications was accessible. Now, it has also been confirmed that there are two documents dated July 2009 and signed by Attorney General Holder allows the NSA to use “inadvertently acquired” communications.
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Bizarre, Congress, Constitutional Law, Criminal law, Politics, Society

The Fantastic Feinstein: How To Make Privacy Disappear While Appearing To Defend It

225px-dianne_feinstein_official_senate_photoimages>Civil libertarians have long viewed Senator Dianne Feinstein (D.,CA) as a menace to privacy and civil liberties in her role on the  Senate Intelligence Committee. She has worked to blocked investigation of torture while supporting warrantless surveillance of our own citizens. Recently, many Californians became aware of her role in seeking ever-expanding powers for the security state. Feinstein desperately tried to get citizens to embrace a new model of privacy that allows for their continual surveillance in the latest scandals under her tenure. That has not worked particularly well so now Feinstein is taking a new approach: she is proclaiming her concern over the dangers of privacy posed by . . . drones. That’s right. Like the street magicians distracting an audience, Feinstein is trying to get citizens to focus on the use of drones for surveillance and promising some form of “regulation” in the future. The obvious intent behind yesterday’s carefully constructed scene was to present Feinstein in the light of a fighter for, rather than an attacker of, privacy rights.

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Constitutional Law, Criminal law, Lawyering, Politics, Society

Brooklyn District Attorney Ordered To Testify On Pattern Of Prosecutorial Abuses By His Office

220px-Charles_J._HynesThe Brooklyn district attorney Charles J. Hynes is not have a particularly good week. First, Hynes had to fire one of his top people after Gang Bureau head Deanna Rodriguez used racist and anti-gay language. Now he will have to testify about allegations that his office ignores and even promotes prosecutorial misconduct. The testimony will occur in the case of Jabbar Collins, who has filed a civil rights lawsuit against the office of District Attorney Charles J. Hynes after he won his release after 16 years in prison for murder. He claims that his case is only one of an array of cases showing a pattern of egregious abuses and misconduct by Hynes’ office and prosecutors.

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Congress, Constitutional Law, Criminal law, International, Media, Politics, Society

Obama’s WMD Moment: The Administration Increases Claims Of Thwarting “Potential” Attacks and Saving Lives

George-W-Bush_jpegPresident_Barack_ObamaGeorge Bush was rightfully denounced for his Administration’s false statements to both the public and the United Nations on weapons of mass destruction in Iraq — the rationale for our invasion of that country. There was little apparent concern from Bush or his aides over the veracity or proof of their assertions as opposed to the desired outcome. The same mentality is in open display with President Obama this month as he and his aides continue to increase the claims of “successes” from the warrantless surveillance programs as public opposition grows. In this case, the increasing claims are being made in a war on privacy, including an effort to redefine privacy in a new surveillance-friendly image. We are now up to over 50 “potential plots” and Obama is sounding distinctly Bush-like in statements today about how these programs “saved lives.” The public, which learned this month that it was openly lied to about the programs in earlier hearings, is expected to accept these assurances on faith alone.

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Bizarre, Constitutional Law, Criminal law, Free Speech, Society

West Virginia Teenage Facing Charge Over NRA T-Shirt

article-2312730-196c26ea000005dc-284_634x354We previously discussed the case of Jared Marcum, 14, who was suspended and arrested for wearing a t-shirt supporting the Second Amendment and the National Rifle Association. While many of us derided the arrest of a student (and the continuation of a trend toward criminalizing our schools), most people assumed that some adult supervision would kick in at the police or prosecution offices and toss out the charges. Think again. We live in a world where adults no longer show such independent thought or discretion. Marcum is now formally charged with obstructing an officer and faces a $500 fine and a maximum of one year in prison.

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Bizarre, Congress, Constitutional Law, Politics, Society

Doublethinking Transparency: Obama Proclaims Secret NSA Program Entirely “Transparent” To A Secret Court

President_Barack_ObamaPresident Barack Obama assured the American people yesterday that the NSA warrantless surveillance programs are entirely “transparent.” He then promised to extradite and prosecute the man who told the public about it. None of that causes any pause for the White House or its supporters. It makes perfect sense. Indeed, it helps explain how Obama promised the “most transparent” Administration in history and proceeded to expand a secret security state. It turns out that “transparent” simply means something different with Obama, just as the noun “war” is left to his definition. It turns out that transparent means that the government can see it — and see us. Total transparency in our new fishbowl society.

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