Most Americans are horrified by images out of Afghanistan and the negligence shown in the withdrawal from that country. However, we recently discussed why President Joe Biden should not be subject to impeachment over his alleged poor decisions related to the debacle. Now Rep. Andy Harris of Maryland and Ralph Norman of South Carolina formally announced impeachment articles against Secretary of State Antony J. Blinken for his own alleged failures in the withdrawal. Once again, the use of impeachment to address such policy and programmatic “failures” would fundamentally change the purpose of impeachment in our constitutional system. Continue reading “No, Secretary of State Blinken’s Failure In Afghanistan is Not an Impeachable Offense”
Category: Constitutional Law
The Biden Administration has racked up a long line of losses in federal courts in what is one of the worst records in the first six months of any modern presidency. While most Administrations tend to minimize such test cases to avoid creating bad precedent, the Biden Administration has litigated with an utter abandon — elevating political over legal considerations in litigation. The latest is one of the most disturbing. This week the Supreme Court ruled 6-3 to strike down President Biden’s renewal of the controversial eviction moratorium. It was the second time that a majority of justices declared the moratorium as unconstitutional but, as in other areas, the Biden Administration has become openly and chillingly dismissive of such legal considerations. Continue reading “Supreme Court Delivers New Rebuke to the Biden Administration in Reinstating the “Remain in Mexico””
“Who watches the watchmen”? That question from a federal judge this week came in a confrontation with the Justice Department over its targeting or charging journalists. At issue is the prosecution of a controversial host of a far-right website called Infowars. Owen Shroyer was charged with trespass and disorderly conduct during the Jan. 6th riot. However, Shroyer claims to have been present as a journalist while the Justice Department insists that he is an activist. When U.S. Magistrate Judge Zia Faruqui asked for the basis of that distinction, the Biden Administration refused. The conflict exposes the problem with new regulations protecting journalists without clearly defining who is a journalist.
There is a new lawsuit filed in the Eastern District of California against the band Nirvana over its most iconic cover. It could just as well have the title in the caption: “Nevermind.” The lawsuit was filed by Spencer Elden who was featured on the cover as a naked baby. He is now claiming that the celebrated cover was child pornography and he is entitled to money: A lot of money. Indeed, the lawsuit has a greater appetite than authority in seeking such damages thirty years after the album was released. Continue reading ““Nevermind”: California Man Sues Band 30 Years After Being Featured as a Naked Baby on Iconic Cover”
Yesterday I wrote a column in the Hill about the FBI reportedly finding no evidence a planned insurrection at the Capitol on January 6th. In a related story, the Capitol Police has now entirely cleared the still unnamed officer who shot and killed Ashli Babbitt despite her being unarmed. The decision was marked by the same lack of information that characterized an earlier decision from the Justice Department. There is little media coverage of the obvious disconnect in the handling of this shooting and other uses of force against protesters in recent riots. Even law professors are largely silent on the implications of a finding that the shooting of an unarmed protester is justified. Babbitt seems to be treated as “fair game” because she was part of the January 6th riot.
During the Trump Administration, we regularly discussed Democratic members and writers calling for the impeachment of Trump for everything from criticizing NFL kneelers to obnoxious tweets. Not to be outdone, many Republicans have been demanding the impeachment of Joe Biden for an array of missteps or controversies. Most recently, Rep. Majorie Taylor Greene called for the impeachment of Biden for the disastrous withdrawal from Afghanistan. (This is the second such motion for Greene). It is the same misuse of impeachment as a type of “no confidence vote.” The failure to properly plan and execute the withdrawal from Afghanistan has been an appalling failure by the Biden Administration. However, negligence is not an impeachable offense. Indeed, the lowering of the standard to cover such negligence would create great instability and dysfunction in our constitutional system.
Continue reading “No, The Disaster in Afghanistan is Not an Impeachable Offense”
We recently discussed the rise of a generation of censors as young people embrace the role of government and corporate censorship. The erosion of free speech rights is manifest in a chilling poll from the Pew Research Center that shows a huge jump in favor of censorship among citizens with almost half now supporting the government barring “misinformation.” The shift is almost entirely among Democrats who (like Democratic leaders) now overwhelming favor fewer free speech protections and more government control over speech.
There was a great deal of criticism of President Joe Biden’s press conference from his refusal to take questions on the Afghanistan situation to his calling for the use of Civil Rights laws to oppose any state laws barring mask mandates. One line however received little attention but contained a breathtaking and troubling pledge: “If a governor wants to cut the pay of the hard-working education leader who requires masks in a classroom, the money from the American rescue plan can be used to pay that person’s salary 100%.” With that line, Biden pledged to indemnify people who violate state laws, including orders upheld by the courts. For the states, one can understand if the line between a federal subsidy and a federal accessory is difficult to discern.
Last week, a federal court did something that would seem not just counterintuitive but impossible under our legal system: it upheld an agency order despite the clear lack of authority to issue it. The order – to renew a moratorium on evictions – is a constitutional zombie that is neither alive nor dead. Yet it still walks the land. Continue reading “Unconstitutional But Legal? Court Agrees CDC Does Not Have The Authority For Moratorium Before Upholding Moratorium”
Judge Matthew Kacsmaryk of the United States District Court for the Northern District of Texas delivered a blow to the Biden Administration on Friday by ordering the reinstatement of the Trump-era Migrant Protection Protocols (MPP) program, also known as the “Remain-in-Mexico” policy. This is only the latest of a string of losses by the Biden Administration in its first six months in court. Continue reading “Federal Judge Reverses Biden Order To Terminate Trump’s Remain-in-Mexico Policy”
We previously discussed the hypocrisy of the D.C. government and the media after D.C. Mayor Muriel Bowser admitted in court that it was the Metropolitan Police Department who used tear gas and stun grenades near the Lafayette Park in 2020. D.C. counsel also insisted that such use was entirely appropriate and sought to dismiss the lawsuit by the Black Lives Matter movement. The media effectively buried the story despite flogging a false narrative against former Attorney General Bill Barr for over a year in non-stop coverage. Barr was even denounced by members of my own faculty. Now, reporters are suing the city for attacking the media. Yet, there is no outcry in the media or from the left against Bowser and her government. Continue reading “D.C. Sued Over Use Of Stun Grenades and Chemicals Against Reporters in Racial Justice Protests”
University of California-Berkeley Dean Erwin Chemerinsky and Professor Aaron S. Edlin have purportedly solved the problem faced by Gov. Gavin Newsom. Despite overwhelming support in the media and massive fundraising on his behalf, Newsom is facing worsening polls in his fight against his recall and could lose in the election. In their guest essay for the New York Times Chemerinsky and Edlin declare any such successful recall would be unconstitutional as a denial of the principle of “one person, one vote.” The reason, however, would seem to suggest a wide array of elections as unconstitutional in the process. Continue reading “Law Professors Claim The Recall Of Newsom Would Be Unconstitutional” 
Yesterday, we discussed the order of State District Judge Brad Urrutia to block the arrest of House Democrats who fled the state to prevent a quorum to pass election reforms in a type of flight filibuster. It did not take long for Urrutia to be reversed. Last night, the Texas Supreme Court lifted the temporary restraining order. The decision has not only exposed the Democrats to arrest but it has exposed another claim of bias against the PolitiFact, which lambasted Sen. Ted Cruz (R., Tx) who claimed that the legislature clearly had the authority to order such arrests. Continue reading “Texas Supreme Court Lifts Restraining Order Protecting Democratic Legislators from Arrest”
State District Judge Brad Urrutia has issued an order blocking the arrest of House Democrats who fled the state to prevent a quorum to pass election reforms in a type of flight filibuster. They have been heralded by Democrats in Washington (despite their own opposition to federal filibusters as anti-Democratic). The order freezes any further action until the parties can brief the question. This is a different lawsuit from the error-ridden and poorly conceived federal filing from these members. Continue reading “State Judge Blocks Any Arrest of Democrats Who Fled Legislature”
Below is my column in the Hill on the extension of the eviction moratorium — a move that his White House Counsel and most legal experts told him was unconstitutional. However, according to the Washington Post, Speaker Nancy Pelosi encouraged Biden to call Harvard Professor Laurence Tribe who reportedly advised him that he had the authority. I have had many (and sharp) disagreements with Tribe over the years (including profane and personal attacks) but there is usually some good-faith underlying disagreement in controversies like impeachment. This is not such a case. I fail to see the credible basis for telling a President that the CDC can use the same authority that five justices just declared it did not have.
Here is the column: