Category: Constitutional Law

Eat The Rich: Democratic Candidates Plunge Party Into Class Warfare Politics

Below is my column in The Hill newspaper on the growing calls from Democratic presidential candidates for “wealth taxes” targeting the increasingly demonized “super rich.” Putting aside serious questions over the constitutionality of such wealth taxes (despite being the core cause of candidates like Elizabeth Warren), Democrats appear to be moving from Rousseauian to a Robespierrean rhetoric in this new class warfare.

Here is the column with a few of the underlying facts beyond the rhetoric:

Continue reading “Eat The Rich: Democratic Candidates Plunge Party Into Class Warfare Politics”

“Entirely Divorced” From The Facts: Court Dismisses DNC Lawsuit Against Trump

I have written previously about the often frivolous lawsuits brought by Democratic leaders that not only threaten to create bad precedent but undermine legitimate claims against President Donald Trump. One such meritless action was filed by the Democratic National Committee, an action that came perilously close to crossing the line of Rule 11 on meritless or vexatious actions. Judge John Koeltl, a Clinton appointee, was scathing in dismissing the action against key members of the Trump Administration and Wikileaks as “entirely divorced” from the facts.

Continue reading ““Entirely Divorced” From The Facts: Court Dismisses DNC Lawsuit Against Trump”

Farewell To John Paul Stevens

Below is my column in USA Today on the passing of Associate Justice John Paul Stevens. I have another column appearing today in the Sunday Washington Post’s Outlook Section. I remain surprised by the comparatively light coverage of the passage of this great man who gave so much to the country. I disagreed with Stevens on various cases, but I always held him in the highest regard as a person and as a jurist.

Here is the column:

Continue reading “Farewell To John Paul Stevens”

Fourth Circuit Dismisses Emoluments Cases Against Trump

US-CourtOfAppeals-4thCircuit-SealThe 4th U.S. Circuit Court of Appeals on Wednesday dismissed the emoluments cases filed by Maryland and the District of Columbia against President Donald Trump.  I have long been critical of the filings as advancing largely undefined and unwieldy interpretations of emoluments.  The Fourth Circuit made fast work of the filings and reversed the lower court for embracing attenuated and unsupported theories of standing. Other judges correctly dismissed these claims in the past. Continue reading “Fourth Circuit Dismisses Emoluments Cases Against Trump”

France Emerges As One Of The World’s Greatest Threats To Free Speech

libertyBelow is my column on the vote scheduled for this week by France to impose a new regulation on Internet speech — essentially forcing companies to scrub their sites of any hate speech as defined under sweeping French laws.  What is astonishing is how many Americans are prepared to follow the European model in limiting free speech on the basis for loosely defined terms of threatening or intimidating or harassing anyone on the basis for race or religion or sexual orientation or other protected groups. The implications for free speech is sweeping and chilling. The West has fallen out of love with free speech.  What is most concerning however is that countries like France and Germany are likely to strip away free speech protections for the rest of the World, even in countries like the United States where free speech is still given broad protection.

Here is the column: Continue reading “France Emerges As One Of The World’s Greatest Threats To Free Speech”

“Just Don’t Buy It”: Nike Controversy Is About More Than Sneakers

nike-logoBelow is my column in The Hill Newspaper.  Even after Nike embraced Colin Kaepernick, I was flabbergasted by the decision of Nike to pull sneakers showing the early American flag because Kaepernick found it offensive.  Supporters of Kaepernick has insisted that the flag is now a symbol of white supremacists.  I do not know about the adoption by white supremacists but I am familiar with the flag being used by prior protesters  ranging from Civil Rights marchers to anti-Vietnam activists as well as displayed at events like President Barack Obama’s inauguration.  Today, the Anti-Defamation League added its voice in saying that  “We view it as essentially an innocuous historical flag. It’s not a thing in the white supremacist movement.”

Nevertheless, Nike has clearly decided that it will write off those citizens who feel strongly about the flag as a national symbol and play to Kaepernick’s base.  The company’s sales went up seven percent after its controversial decision to hire Kaepernick for its campaign in 2018.   Yet, the move has also hurt its brand with a sizable number of Americans and the latest move will likely weigh heavily on many not to buy Nike products. Many of us are not inclined to buy Nike products in light of its extreme position on the flag.

Here is the column: Continue reading ““Just Don’t Buy It”: Nike Controversy Is About More Than Sneakers”

Democratic Rep Calls For The Prosecution Of People “Making Fun” Of Members Of Congress

440px-Frederica_Wilson_official_House_portraitIf Democrat Rep. Frederica Wilson wanted to deter people from “making fun” of members of Congress, she went terribly wrong.  People are heaping scorn on her call for people to be  “prosecuted” for making fun of members.  Making fun of members is speech that is clearly protected under the First Amendment. Indeed, it is a practice going back to the founding of the Republic.  Wilson (who has been long teased over her elaborate faux jewel-encrusted cowboy hats) appears to moving from making breathtaking fashion to constitutional statements. Continue reading “Democratic Rep Calls For The Prosecution Of People “Making Fun” Of Members Of Congress”

The American Sphinx: 20 Questions For Mueller Before Congress

Below is my column in the Hill on the upcoming (and long-delayed) appearance of Robert Mueller, former Special Counsel, before Congress. It will be interesting to watch if Democratic members protect Mueller from having to address some of the glaring contradictions and problems in his report. However, in case there is a modicum of interest in delving into such areas by either party, here are 20 questions that I would ask Robert Mueller.

Here is the column:

Continue reading “The American Sphinx: 20 Questions For Mueller Before Congress”

Washington Owes Neil Gorsuch An Apology

Below is my column on the end of the Supreme Court term and the one outstanding piece of business: an apology to Associate Justice Neil Gorsuch. After this column ran, Gorsuch again voted with the liberal justices on a critical due process issue. He has already carved out a principled legacy on the Court that follows his convictions rather than the predictions of his critics.

Here is the column:

Continue reading “Washington Owes Neil Gorsuch An Apology”

White House Orders Conway Not To Testify On Hatch Act Violations

350px-US-WhiteHouse-Logo.svgHouseofRepSealI have previously testified and written about the questionable litigation strategy of the House Democratic leadership in fighting privilege assertions, including recommending cases that it should litigate as a matter of separation of powers.  This week another conflict has arisen as the White House again invoked absolute privilege over a staffer.  The White House said it will not allow presidential counselor Kellyanne Conway to appear before a House committee looking into her repeatedly violation of the Hatch Act, a federal law that limits political activity by government workers.  The position of the White House in entirely untenable and would fail in the courts.  This is the type of case that the House should litigate with vigor.

Continue reading “White House Orders Conway Not To Testify On Hatch Act Violations”

Trump Denounces NYT Cyber Warfare Story As “A Virtual Act Of Treason”

I have previously criticized President Donald Trump for his relentless attacks on the media and his mantra of labeling such publications as the Washington Post and New York Times as “the enemy of the people.” He has also routinely called a couple dozen people and organizations “traitors,” as recently listed by Axios. This weekend Trump continued the attacks on the New York Times for a story that revealed attacks on Russia’s electric power grid. Trump declared that the publication of the article was a “virtual act of treason” — an act on a classic example of investigatory reporting. Trump’s continued attacks on the free press are not just highly embarrassing but highly disturbing from a President of the United States. With free speech, the free press is the very touchstone of liberty in our nation.

Continue reading “Trump Denounces NYT Cyber Warfare Story As “A Virtual Act Of Treason””

Trump Supports Flag Burning Amendment

Today President Donald Trump declared support for a new constitutional amendment to allow Congress to override the First Amendment and criminalize the burning of the American flag. The legislation for the amendment was reintroduced by Sen. Steve Daines (R- Montana) and Sen Kevin Cramer (R-North Dakota). While I consider flag burning (of any country) to be deeply offensive, there is no need for such an amendment to combat the extremely few incidents of flag burning. It is certainly a popular political cause, but we should not amend the Constitution to reduce free speech, particularly given the low number of flag burnings.

Continue reading “Trump Supports Flag Burning Amendment”

Trump Is Still Three Nixons Short Of Watergate

Below is my column in The Hill newspaper on the recent testimony by former Nixon White House Counsel John Dean. While President Trump has personally attacked Dean, I have always liked and respected him. However, I disagree with his historical analogies. Comparisons to the Nixon case are fair, but they become forced when people insist that the conduct or record is the same. There are fundamental and likely determinative distinctions. There is a valid basis for an investigation but the record does not support the extent of comparison laid out by John Dean. John often seems to rank presidents on a Nixon scale. Yet, rather than giving Trump essentially “five Nixons,” I would put it as one or two pending further investigation. In other words, the case must still be made that this is “just like Watergate.”

Here is the column:

Continue reading “Trump Is Still Three Nixons Short Of Watergate”

Gillibrand Pledges Litmus Test For Judges After Saying Being Pro-Life Is Same As Being Racist

Sen. Kirsten Gillibrand (D-N.Y.) had struggled to distinguish herself from a large Democratic primary field by campaigning almost exclusively on women’s rights. That has not succeeded in moving Gillibrand from the bottom of the pack of candidates with less than one percent in most polls. However, Gillibrand doubled down this week with a startling interview where she not only pledged to impose a litmus test on any judicial nominees but said that being pro-life is equivalent to being racist or anti-Semitic.

Continue reading “Gillibrand Pledges Litmus Test For Judges After Saying Being Pro-Life Is Same As Being Racist”