While the world did not end as announced on Saturday (which has proven an incredible inconvenience for those of us having to teach next week), the Trump travel ban did end on Sunday. When the Supreme Court lifted a significant part of the injunctions imposed on the bans by lower courts, there was a surprising footnote in the short order that I discussed at the time. The Court indicated that the Trump Administration had not asked for an expedited hearing before October. That set the travel ban up for what I described as “planned obsolescence” to expire shortly before the scheduled oral argument.
Category: Constitutional Law
Rep. Maxine Waters (D-Calif.) has become an icon for the left in her unrelenting calls for impeachment of President Donald Trump and tapping into the blind rage across the country. That appeal to the base however took a worrisome turn this week as Waters rallied supporters around the assurance that impeachment is anything they want to say it is. As I stated recently to the Rolling Stones, this view was made popular by Gerald Ford and has been uniformly condemned by constitutional experts. Waters is dismissing the constitutional obligation to find “high crimes and misdemeanors” in assuring supporters that they can simply get rid of Trump on a muscle vote. Political convenience has long been the enemy of constitutional principle, but this effort is highly dangerous for our country as a whole. We are living in an age of rage and Waters’ approach would create an channel to direct that lethal rage into the heart of our political system.
Continue reading “Maxine Waters: “Impeachment Is . . . Whatever The Congress Says It Is””
We have been discussing how discrimination and speech regulation have become acceptable in the cause of diversity or equality for many activists. The latest example was seen at the premiere of a new documentary about comedians called “Building the Room.” The director is Sharaz Higgins who implemented “justice pricing” which originally planned to charge cis white men $20 and everyone else $10. After an outcry, he dropped the “privilege price” to $15. He and his colleagues obviously missed the point. The problem was not the price but the discrimination. To make matters worse, Higgins did interviews under a false name, Sid Mohammed, to avoid being attacked for his discriminatory policy.
White supremacist Dylann Roof says that he has something of a problem on his hands: he has court-appointed counsel who happen to be Jewish and Indian. He has asked the court to replace Alexandra Yates and Sapna Mirchandani in his appeal of his death sentence for the massacre of nine people in the Emmanuel AME Church during a Bible study in 2015. Roof appears to believe that the right of counsel includes the right to white counsel. It doesn’t. The court should not be a vehicle for racial or religious discrimination to cater to the wishes of a homicidal fanatic. More importantly, that is the view of the United States Court of Appeals for the Fourth Circuit.
We have been discussing how faculty around the country are supporting the abandonment of free speech principles to bar speakers and speech with which they disagree. The most extreme form of this rejection of classical liberal values is the antifa movement. We have seen faculty physically attack speakers or destroy messages that they oppose. We have also seen faculty physically attacked and intimidated. In some of these incidents, other faculty have supported students in shutting down speakers or fellow academics (here and here). The latest example of faculty opposing free speech is a letter of over 200 University of California, Berkeley professors and faculty are calling for the shutdown of classes and activities during “free speech week.” To the dismay of these professors, free speech week will include speakers with whom they disagree. Thus, they have posted a letter that not only seeks a boycott of free speech but have proclaimed that certain speech (in this case speech they do not like) is unworthy of free speech protection. Note the faculty and Ph.D students are calling for a boycott of classes and all campus activities, not just the speeches themselves. Turning off the lights and fleeing the campus at the approach of opposing views hardly fits with the school’s motto of “Fiat Lux” (Let There Be Light).
Below is my column on the decision of Education Secretary Betsy DeVos to rescind the highly controversial “Dear Colleague letter” of the Obama Administration. The letter, which made sweeping changes to educational policy, was never put through any notice and comment period under the Administrative Procedure Act (APA). At the time, schools and faculty objected to the stripping of basic due process protections from our students. However, politicians are now denouncing those who want to restore due process as soft on sexual abuse.
One of those denouncing DeVos is Texas lawyer and adjunct law professor Rob Ranco who said that he would be fine with DeVos being sexually assaulted. Ranco has now resigned from his law firm, the Carson Law Firm, after apologizing for his public statement. Ranco is reportedly an adjunct professor of paralegal studies at Austin Community College.
I have long criticized the erosion of due process rights on our campuses, particularly the unilateral action taken by the Obama Administration.
Here is the column:
I will be participating in a panel today on the Supreme Court’s October Term 2017 with a stellar panel of experts at George Washington University. This has the makings of a historic term with issues ranging from President Trump’s travel ban to gerrymandering to religious objections to providing services for same-sex weddings. The panel will speak about possible new cases and possible outcomes in existing cases with many leading Supreme Court journalists and lawyers in attendance.
U.S. Supreme Court Justice Anthony Kennedy restored President Donald Trump’s travel ban after the United States Court of Appeals for the Ninth Circuit ordered the admission of more refugees. With the Court set to hear arguments on the issue (after lifting prior injunctions placed on the Trump order), the decision of the Ninth Circuit seemed at odds with the prior ruling of the Court. The “Administrative Hold” will leave this matter to the Court for October arguments.
Continue reading “Supreme Court Restores Trump Travel Ban After Ninth Circuit Ruling”
Below is my column in the Hill Newspaper on why the legal challenge filed against the Trump Administration byNew York Attorney General Eric Schneiderman (left) and others over the rescinding of DACA. As discussed in the article, I have been a long critic of the executive orders issued by President Barack Obama to achieved unilaterally what he failed to achieve legislatively. Notably, Sen. Dianne Feinstein (D-CA) has acknowledged that DACA was on shaky legal ground. Notably, CNN host Chris Cuomo observed:
“There’s no question it’s been legally dubious from jump,” Cuomo said at the end of their conversation. “Nobody’s going to argue with that in a very compelling fashion. At least not this morning, but it’s also about what are you going to do for these people. This is a moral argument, not just a legal one.”
However, it is a dangerous thing to take moral exemptions from the constitutional process because it leaves the question of who decides which issues will be given a constitutional pass. This is an argument that can be made to the legislature but it is important to maintain the clear lines of separation between the branches in the creation of new legislation. DACA was a legislative act done by executive order in my view.
Given the intense political dynamic that led to the issuing of the DACA order, the courts will be necessarily leery of a violation of the political question doctrine in being asked to intervene. The Complaint does contain a couple claims that a court could find compelling but these claims are at most likely to delay rather than prevent deportations. However, as I discuss, complaints like people are often painted by first impressions and the first impression in this complaint (which starts with an ill-supported equal protection claim) is not flattering.
Here is the column:
Below is my column in USA Today on the role that statements from both President Barack Obama and Donald Trump could feature greatly in the unfolding litigation over the rescinding of the DACA order. Ironically, it will be the opposing sides relying on the respective statements from these presidents.
Here is the column.
Below is my column in the Hill newspaper on the decision of President Donald Trump to rescind DACA and send the issue back to Congress with a six-month grace period. While I support some accommodation for those brought here as young children and hope that Congress will pass new legislation, I still view DACA as a flagrantly legislative act by President Barack Obama carried out through his unilateral executive authority.
Continue reading “DACA And The Costs Of Constitutional Short Sellers”
Michigan State University is being sued after it refused to rent space on campus for white nationalist Richard Spencer to speak later this month. The rental was requested by Georgia State University student Cameron Padgett for an event on-campus at the Kellogg Hotel & Conference Center.
Miami University in Ohio lost a major case in court after a student appealed his ban from the university after being accused on sexual misconduct. U.S. District Judge Michael Barrett ordered that the anonymous student known as “John Nokes” reinstated and found glaring unfairness in the rules and procedures of the university. As I have previously discussed, the Obama Administration forced many schools to limit due process rights of accused students in sexual misconduct cases.
Below is my column in the Hill newspaper on the recent news about Comey drafting a statement declining to charge Hillary Clinton or her staff before key witnesses were interviewed or evidence reviewed. The question is why Comey pursued the investigation if he felt comfortable months in advance in drafting the statement. I do not share the President’s view that this draft shows a “rigged process,” though some FBI agents have objected to the drafting of the statement in this context. I take Comey at his word that he did not make up his mind until after all of the evidence was reviewed. However, the draft does show a markedly different approach to the investigation of the Clinton emails and the Special Counsel investigation of the Trump Administration.
Here is the column:
We have been discussing the disciplining of professors for their statements on social media and the erosion of free speech protections for teachers outside of their schools. As many of you know, I take a robust view of free speech rights and have been critical of the monitoring and punishment of teachers for expressing their political and social views outside of campus. The latest such controversy comes the University of Tampa where visiting assistant professor Kenneth Storey was sacked for tweeting, “I dont believe in instant karma but this kinda feels like it for Texas. Hopefully this will help them realize the GOP doesnt care about them.” Few would defend Storey’s comments which were insensitive and unthinking, but that does not alter the question of where the line is drawn for teachers in speaking publicly about politics or society. (He later apologized.)Continue reading “University of Tampa Fires Professor For Using Hurricane Harvey To Attack GOP”