Category: Constitutional Law

Academia, Constitutional Law, Courts, Politics, Uncategorized

Turley To Speak At Yale Conference

200px-Yale_University_Shield_1.svgI will be speaking today at a conference at Yale as part of the annual William F. Buckley Jr. Program.  The conference is on “The Constitution and the Courts: Challenges, Opportunities, and the Future of Freedom.”  My specific panel addresses “Judicial Confirmations and Interpreting the Constitution: Borking, Activism, and Originalism.”

Speakers at the conference will include former U.S. Senator Kelly Ayotte, Randy Barnett, Carlos Eire, E. Donald Elliott, David French, Mollie Hemingway, Michael McConnell, Judge William H. Pryor, Jr., Nicholas Rosenkranz, Peter Schuck, Ilya Shapiro, Jonathan Turley, Ed Whelan, and Adam White.

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Constitutional Law, Lawyering, Politics, Society

A Question of Privilege: How Mueller Used Manafort’s Own Lawyer As A Witness Against Him

download-3Below is my column in the Hill Newspaper on the highly controversial move of Special Counsel Robert Mueller to use Paul Manafort’s own lawyer as a witness against him.  What is most striking about this move is that it was entirely unnecessary given the other evidence of alleged violations of federal law governing foreign agents.  The case against Manafort is strong but the denial of attorney-client protections in the case should be a matter of great concern for all citizens — regardless of your view of the underlying merits of the Russian investigation.

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Bizarre, Constitutional Law, Media, Politics, Society

No “Cisgender Straight White Males” Wanted: DNC Posts Job Notice That Excludes Heterosexual White Males

imagesAn official at the Democratic National Committee (DNC) has posted a help wanted ad for its technology department that seeks the best candidates unless they are heterosexual white males.  The alleged email from Data Services manager Madeleine Leader was express and open about her prejudice against straight white males but neither the DNC nor Leader felt obligated to respond to the controversy.  The story was reported from the Daily Wire.

I have written to the DNC to try to get a comment but have not received a response. I will update with any response from the DNC.

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Constitutional Law, Media, Politics, Society

Transgender Tweets: Trump Tweet Relied Upon By Another Federal Court In Ruling Against Administration

donald_trump_president-elect_portrait_croppedTwitter LogoWe have previously discussed how President Donald Trump has repeatedly been used by federal courts as the most important witness against his own policies due to his ongoing and ill-advised tweets.  Indeed, in all three rounds of the immigration litigation, Trump’s tweets and comments were critically important to courts in ruling against his Administration, including the most recent injunction rulings of the third travel ban order.  Now a judge in Washington has relied on Trump’s tweets to rule against him on his ban on transgender military personnel.  Judge Colleen Kollar Kotelly of the US District Court for the District of Columbia in Jane Doe v. Donald Trump (pdf), found that the plaintiffs were “likely to succeed” on their claims that the ban is discriminatory. The court decision, again, features a Trump tweet.

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Bizarre, Constitutional Law, Politics

Perez: “The Electoral College Is Not A Creation Of The Constitution”

Sheehan_PerezDemocratic National Committee chairman Tom Perez made a curious point in a Tuesday night speech when he declared “the Electoral College is not a creation of the Constitution.”  Given the focus of the DNC chief on elections, the misunderstanding of the origin of the electoral college is a bit like a chief of police not knowing that warrants are required by the Fourth Amendment.  To make matters worse, Perez made his statement at the Indiana University Law School.  Just for the record,  Article II of the Constitution states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

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Bizarre, Columns, Constitutional Law, Media, Politics

Trump, the 25th Amendment and The Demise of “The Goldwater Rule”

Barry_Goldwater_photo1962donald_trump_president-elect_portrait_croppedBelow is my column in the Hill Newspaper on the effort to remove President Donald Trump through Section 4 of the 25th Amendment.  I ran a column a couple days ago in the Washington on the constitutional and procedural issues of a 25th Amendment attempt.  This column looks at the medical and historical aspects of the controversy.  The effort appears to have picked up steam this week with reports of Democrats reaching out to psychologists — just as they did against Barry Goldwater.  The demise of the “Goldwater Rule” is a dangerous development.  I have no more idea of Trump’s mental state than I do other leaders.  What I do know is that claims of narcissism or other conditions are unfounded absent an evaluation and far more serious evidence of mental illness to justify a 25th Amendment effort.

Here is the column:

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Academia, Bizarre, Constitutional Law, Politics, Society

Penn Controversy Looks At “Progressive Stacking” After Controversial Tweet By Grad Student
45879D2000000578-5002884-image-m-83_1508551815896It is called “progressive stacking,” a technique where teachers give priority to students according to race or gender.  The technique is being hotly debated at the University of Pennsylvania after Grad student Stephanie McKellop tweeted about how she only reluctantly will call on a white male after giving preference to various groups based on their gender or race.  While many find stacking to be a form of discrimination, some academics have rallied to the side of McKellop in favor of such techniques.

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Columns, Congress, Constitutional Law, Media, Politics, Uncategorized

Unfit or Unpopular? Trump Critics Turn To The 25th Amendment To End His Presidency

donald_trump_president-elect_portrait_croppedBelow is my column in the Washington Post on the movement to remove President Donald Trump through Section 4 of the 25th Amendment.  Richard Painter, the chief White House ethics lawyer under George W. Bush recently declared the “answer” to Trump suggestion of a Democrat and Russian collusion in the election is “Amendment 25.”  Previously, Painter wrote a piece with clinical psychologist Leanne Watt, Ph.D. where they discussed the “downward mental health spiral” of Trump. They identified the illness as “extreme narcissism or self-centeredness” as well as “an extreme anti-social tendency, an inability to understand how other people feel.” That, Painter suggests, is enough for the first removal of a president under the 25th Amendment in the history of the country. If so, half of the presidents could have been removed for their “self-centeredness” and “anti-social tendencies.”  I strongly disagree with such interpretations.

Here is the column:

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Columns, Congress, Constitutional Law, Justice, Media, Politics

“REDEMPTION”: EO3 AND THE TRAVEL BAN 3.0 SEQUEL

images-1donald_trump_president-elect_portrait_croppedBelow is my column in the Hill Newspaper on third round of litigation over the immigration orders issued by President Donald Trump.  On Friday, in Honolulu, U.S. District Judge Derrick Watson converted the earlier temporary restraining order into a preliminary injunction.  With the two decisions in Hawaii and Maryland, the appeals should move on an expedited basis back to the Supreme Court (which is expected to dismiss the second immigration case from the second round of litigation this week).  Like T3, EO3 could be named “Redemption” as the Administration gears up for what is likely (and hopefully) the final round in this series.

Here is the column:

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Constitutional Law, Free Speech, Politics, Religion

Houston-Area Residents Told To Certify That They Do Not Support Boycotting Israel As Pre-Condition For Hurricane Relief

Texasisrael1We recently discussed the free speech and associational implications of a Kansas teacher barred from a job due to her church’s support for the boycott, divestment and sanctions (BDS) movement. Now there is a story out of Dickinson, Texas where residents were told that they had to guarantee that they do not support boycotts of Israel as a pre-condition of hurricane relief.  Again, this is nothing to do with the merits of the BDS controversy or Israel.  The question is the constitutionality of the federal or state government demanding such commitments from citizens to secure employment or relief.

 

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Academia, Bizarre, Constitutional Law, Free Speech, Media, Politics, Society

Former FEC Chair Calls For Crackdown on Internet “Disinformation” In Major Threat To Free Speech
Ann_RavelIn one of the most reckless and chilling attacks on free speech, the former chair of the Federal Election Commission (FEC) and Berkeley lecturer Ann Ravel is pushing for a federal crackdown on “disinformation” on the Internet — a term that she conspicuously fails to concretely define.  Ravel is pushing a proposal that she laid out in a a paper co-author with Abby K. Wood, an associate professor at the University of Southern California, and Irina Dykhne, a student at USC Gould School of Law.  To combat “fake news,” Ravel and her co-authors would undermine the use of the Internet as a forum for free speech.  The regulation would include the targeting of people who share stories deemed fake or disinformation by government regulators.  The irony is that such figures are decrying Russian interference with our system and responding by curtailing free speech — something Vladimir Putin would certainly applaud.

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Bizarre, Constitutional Law, Politics, Religion, Society

“The Very Definition Of Tyranny”: Roy Moore Calls For Justices To Be Removed For Voting For Same-Sex Marriage

Supreme CourtIt appears that the Senate race in Alabama between Republican Roy Moore and Democrat Doug Jones is now a dead heat.   The tie in the normally reliable red state reflects controversial views of Moore who was twice removed from his job as chief justice of the Alabama Supreme Court for defying federal court orders.  One of his most alarming recent statements concerns the Supreme Court.  Moore told followers that he would support the impeachment of any justice voting in favor of same-sex marriage, a position that would destroy the integrity and traditions of our legal system.

 

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Congress, Constitutional Law, Courts, Criminal law, Supreme Court

Court Rules That Menendez Case Will Go To The Jury For A Verdict On Public Corruption

800x-1Senator Robert Menendez and his close friend Salomon Melgen, a Florida eye doctor, are heading to a jury decision after U.S. District Judge William Walls ruled that the indictment against them for public corruption would stand.   Menendez not only stands in considerable jeopardy for his highly questionable relationship with Melgen but his conviction could flip the seat in the Senate since Governor Chris Christie would appoint his successor. ( A new governor will be elected for January).

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Columns, Congress, Constitutional Law, Courts, Media, Politics

Democrats Challenge The Right Of Trump To Rescind Obama Order That A Federal Court Declared Unconstitutional

donald_trump_president-elect_portrait_croppedHealth_Care_Delivery_System_Reform_and_The_Patient_Protection_&_Affodable_Care_Act.pdfThere are now eighteen states and the District of Columbia lined up to challenge the executive order by President Donald Trump to rescind the Obama order giving insurance companies billions in subsidies . . . without an appropriation of Congress.  As explained below, this challenge advances a rather curious claim that Trump cannot rescind an earlier order found to be flagrantly unconstitutional by a federal court.  In most high-profile litigation cases, counsel spends considerable time exploring whether a challenge will allow a bad case to make bad law on appeal.  That would seem the most likely outcome here but much of the litigation by Democratic Attorneys General have been driven more by political than legal calculations.  Voters now expect every act of Trump to be challenged and no Democratic AG wants to be the only one to sit out a challenge to an unpopular order.  The result is a type of perpetual litigation machine where bad precedent is being cranked out because it is viewed as good politics.

Here is the column:

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Academia, Constitutional Law, Courts, Media, Politics, Religion

Kansas Teacher Barred From Employment Due To Her Support For Boycott Movement

israel1download-1We have been discussing the increasing scrutiny being applied to teachers and professors over their political views and social media commentary.  A particularly problematic case has been taken up by the American Civil Liberties Union (ACLU) involving Kansas teacher Esther Koontz.  The long-time math teacher (and something called a “curriculum coach”) at Horace Mann Dual Language Magnet School in Wichita, Kansas, Koontz was barred from renewing her contract as  teacher because she supports the boycott of Israel over the occupation of Palestinian territories.  This is not simply reflective of her political views but a religious based obligation as a member of the Mennonite Church USA.  The church in July voted to divest itself from American companies that profit off of Israel’s occupation of the Palestinian territories.  The Kansas law therefore collides head on with the rights of free speech, free exercise, and free association.

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