Category: Constitutional Law

Supreme Court Reinstates The Trump Travel Ban In Full Depending Appeal

 court_front_medYesterday, the Trump Administration secured two clear victories after the United States Supreme Court issued two orders lifting the lower court injunctions imposed on the travel ban.  I have written repeatedly on the travel ban (here and here and here and here and here and here and here and here) and my view that the case law supported the Trump Administration.  I thought that the appeal that reached the Supreme Court on the second round seemed likely to succeed while the third round was even stronger for the Administration.  The Administration had already secured an order with the Ninth Circuit reversing the trial courts in critical respects.  Now the Supreme Court restored the travel ban in its entirety pending appeal.  The orders issued shortly before appellate arguments on the merits this week is a further indication that the Administration is likely to prevail on the merits.  Indeed, while the orders do not dictate an outcome, they send a strong message to the lower courts on the skepticism of the Court.

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Mueller Moves To Block Manafort Release From Home Confinement Over Drafting Of An Opinion Piece

440px-Director_Robert_S._Mueller-_III-1Former Donald Trump campaign chairman Paul Manafort has reportedly scuttled his own deal to secure release from home confinement under a deal Manafort with prosecutors.  Prosecutors learned (from an unspecified source) that Manafort was working with a ghostwriter on an opinion piece on his case.  The second man reportedly had ties to Russian intelligence — hardly ideal for a man at the center of the Russian investigation. The work was deemed to be in violation of a court order for all parties to refrain from “trying the case in the press.” However, the order raises a long-standing question of the need and constitutionality of orders limiting the free speech of defendants and counsel.  While once the exception, gag orders have become the rule with many judges.  Yet, Manafort is presumed innocent and the order prevents him from responding to those questioning his loyalty and honesty.

 

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From Katz To Carpenter: The Supreme Court Hears Case That Could Gut Privacy In the United States

CellPhoneSupreme CourtBelow is my column in the Hill Newspaper on the case this week before the Supreme Court on cellphones and privacy.  As discussed below, the government’s argument in Carpenter v. United States represents one of the greatest threats to privacy in a generation.  One promising sign is that Justice Neil Gorsuch seemed to be siding with privacy in his questions during oral argument.

Here is the column:

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“Your DNA is An Abomination”: Texas State University Embroiled In Controversy Over Racist Column Calling For “White Death” [UPDATED]

 

DNA-1122x1496 Texas State University is this week’s ground zero in our campus speech debate.  The most recent controversy was triggered by an opinion column by student Rudy Martinez on November 28th in The University Star titled “Your DNA is an abomination.”   While insisting that he cannot by definition be racist, Martinez declares that “white death will mean liberation for all.”  Martinez is a racist and the column is deeply disturbing.  However, as will come as no surprise to regulars on the blog, I still support his write to publish such views.  My concern is that universities continue to be selective in affording free speech rights to students. It is doubtful that the university would be so circumspect if the the column called for the death of minorities. UPDATE: The student columnist has been fired by the newspaper.

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Flipping Flynn: The Real and Imagined Damage For A Mueller Deal

440px-Michael_T_Flynn

Since the appointment of the Special Counsel in the Russian investigation, former National Security Adviser Michael Flynn has been the most obvious target for not simply a criminal charge but a possible prosecutorial deal.  The news that Flynn is no longer sharing information under the prior joint defense agreement with Trump figures could prove significant . . . or not.  Such a change would occur even with a non-cooperation plea agreement.  Nevertheless, it could be an effort of Flynn to strike a deal on a deal for himself and his son in exchange for cooperation.

While it did not attract the same attention, another notable development was the cooperation agreement reached with Reza Zarrab, a Turkish businessman accused of violating U.S. sanctions on Iran.  His cooperation could have magnified the pressure on Flynn, whose greatest exposure appears to be his Turkish as opposed to his Russian dealings.

Here it the column:

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Florida Governor Seeks Disqualification Of Justice Barbara Pariente (GW’73) For Comments Captured On “Hot Mike” [Updated]

parienteOne of our graduates on the judicial bench is in hot water this week. Justice Barbara Pariente (GW Class of 1973) is facing demands from Florida Gov. Rick Scott that she be disqualified in a case over judicial appointments due to a comment caught on a live microphone.  On November 1st, Pariente was caught pointing to a document listing members of the Supreme Court Judicial Nominating Commission and saying “crazy.” Update: As predicted, the high court rejected the effort to disqualify Pariente over her remark.

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Canadian Instructor Shows Brief Clip Of Debate Over Alternative Pronouns . . . University Accuses Her Of Creating “Toxic Environment”

WLU_Coat_of_ArmsWilfrid Laurier University in Waterloo,  Ontario, is the latest focal point for the growing free speech crisis on college campuses. University student Lindsay Shepherd, 22, teaches tutorials on language use for first year communications students in a class called “Canadian Communication in Context”.  She showed  brief clip featuring psychology professor Jordan Peterson who is against forced use of genderless and “made-up” pronouns.  Shepherd said that the clip spurred a lively and beneficial discussion in the class. However, one student filed a compliant and now Shepherd is facing an investigation for creating a “toxic environment” for showing the clip without publicly denouncing the views expressed in the clip.  It appears that the school’s motto, Veritas Omnia Vincit (“Truth Conquers All”), applies only to university sanctioned truth.

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RES IPSA HITS 33,000,000

Audience_Frontier_FiestaWe have hit another milestone today with over 33,000,000 views. We are also expected to reach 35,000 followers on Twitter.  That hardly makes us competition for the largest sites but it is still an impressive collection of people seeking a place for civil but passionate discourse on legal and policy issues  of our time (and perhaps a few wacky stories).  We often use these milestones to look at the current profile of the blog and its supporters around the world.

As always, I want to offer special thanks for our weekend contributors: Mike Appleton, Larry Rafferty, Darren Smith, Kimberly Dienes, and Cara Gallagher (particularly Darren who continues help up with periodic technical problems etc).

I particularly want to thank our regular commentators and readers.  We try to keep this blog as an open forum with as little interference or monitoring of the comments as possible.  Given our free speech orientation, we try not to delete comments and, for that reason, we are deeply appreciative of how most people avoid personal or offensive comments in debating these issues.  We have had to delete a handful of comments with personal attacks or profanity but the number remains quite low for a blog of this size.  The success of this blog is due to the fact that we offer something more than the all-too-common troll-driven, angry, and insulting commentary of the Internet.  Thank you for voluntarily assuming restraint over the tenor and content of your comments. Continue reading “RES IPSA HITS 33,000,000”

From Exclusion to Expulsion to Acceptance: There Are No Good Options In Dealing With Senator Roy Moore

senate_large_sealBelow is my column in USA Today on the plan to bar Roy Moore from taking his Senate seat, if he is elected in Alabama.  For once in his checkered career, Moore would actually have the constitution on his side in challenging such efforts.  Like the KüblerRoss model of the stages of grief, the Senate may have to move from exclusion to expulsion to acceptance of a Senator Moore.

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Time for Congress to end the abusive ‘blue slipping’ process

Blue_slip_Hardwick_Whipple_US_CongressBelow is my column in the Hill Newspaper on the need to end “blue slipping” in the United States Senate.  I have long criticized the “courtesy” allowing a single senator to block a nominee as inimical to our constitutional system. I have maintained this position throughout both Democratic and Republican administrations.

Here is the column:

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Ninth Circuit Reverses Lower Court Injunction And Restores Most Of Travel Ban

ninth-circuit-logoOn Monday, the United States Court of Appeals for the Ninth Circuit restored the latest travel ban imposed by President Donald Trump. I previously criticized (here and here) the challenges to the travel ban and I believe that the Ninth Circuit is on solid ground in ruling the government can bar entry of people from six Muslim-majority countries with no connections to the United States. In my view, the injunction issued in Hawaii ignored the significance of not only critical differences in the third travel order but also the prior decision of the Supreme Court to vacate the prior injunction.

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Fresno State University Professor Remains Defiant After Court Ordered Fine and First Amendment Training

download1We previously discussed the case of Fresno State University Public Health Professor Dr. Gregory Thatcher recruited students to destroy pro-life messages written on the sidewalks and wrongly told the pro-life students that they had no free speech rights in the matter.  As I stated earlier, I find it extraordinary that the university did not seriously discipline or terminate Thatcher, but he still remains on the faculty.  A district court has now ordered Thatcher to pay $17,000 and undergo First Amendment training.  However, Thatcher remains defiant and the university appears complicit in his actions by the lack of disciplinary action.

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“The Laws All Being Flat”: Clinton Supporters Search For Legal Shelter After Months Of Lowering Standards To Target Trump

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziBelow is my column in the Hill Newspaper on the allegations against Hillary Clinton and her campaign.  Yesterday, the controversy surrounding the Russian dossier deepened after it was disclosed that the co-founder of Fusion GPS (the company hired by the Clinton campaign to do the dossier) met with Russian lawyer Natalia Veselnitskaya before she met with Donald Trump Jr. Indeed, she met with the Fusion officials shortly before and shortly after she met with Trump Jr. in Trump Tower.  Just hours before on June 9, 2016, Fusion co-founder and ex-Wall Street Journal reporter Glenn Simpson was with Veselnitskaya in a Manhattan federal courtroom.  Simpson and Fusion GPS were hired by BakerHostetler, which represented Russian firm Prevezon through Veselnitskaya.

Here is the column:

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Menendez Case Goes To Jury . . . Jurors Sends Out Question “What Is A Senator?”

220px-The_Jury_by_John_MorganOk, maybe counsel over shot the jury a bit in the trial of Senator Robert Menendez. The Senator is facing allegations of bribes from Florida eye doctor Salomon Melgen ranging from luxury vacations to luxury flights to campaign contributions.   After presenting a fairly complex case of gifts, influence peddling, and nuanced criminal standards, a question can back from the jury.  The juror asked the judge “what is a senator?”

 

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