Category: Constitutional Law

Constitutional Law, Courts

Is “Curing” A Colorable Claim Under Equal Protection? [Updated]
#SCOTUS

There is more rage than reason being expressed in the country over election challenges, but there are some interesting legal issues. One is found in Pennsylvania where the Trump campaign is alleging that counties used different approaches to “curing” ballots. The issue brings back memories of Bush v. Gore, 531 U.S. 98 (2000), under equal protection. Notably, while academics have uniformly dismissed this claim, they largely refer not to the claim but to the relief.  The fact is that there does not seem a sufficient number of votes that could change the outcome of the election. The question however is whether there is still a colorable claim of an equal protection violation.  This could come down to the two distinct parts of Bush v. Gore.

Continue reading “Is “Curing” A Colorable Claim Under Equal Protection? [Updated]” →

Academia, Congress, Constitutional Law, Free Speech, International

Twitter CEO Admits Censoring The Hunter Biden Story Was “Wrong” . . . Democrats Call For More Censorship

Twitter LogoWe previously discussed the unrelenting drumbeat of censorship on the Internet from Democratic leaders, including President-elect Joe Biden. This growing campaign against free speech is continuing to grow despite the hearing yesterday when Twitter CEO Jack Dorsey that the company wrongly blocked the New York Post story on Hunter Biden’s influence peddling before the election. There was no acknowledgement from the many academics or politicians who supported the action by Twitter. Instead, Democratic senators called for more such censorship. Continue reading “Twitter CEO Admits Censoring The Hunter Biden Story Was “Wrong” . . . Democrats Call For More Censorship” →

Constitutional Law, Free Speech, Media, Politics

“All Speech Is Not Equal”: Biden Taps Anti-Free Speech Figure For Transition Lead On Media Agency

For those of us who have been critical of the growing anti-free speech movement in the Democratic Party, the Biden transition team just took an ominous turn.  The New York Post reports that Biden tapped Richard Stengel to take the “team lead” position on the US Agency for Global Media, including Voice of America, the Middle East Broadcasting Networks and Radio Free Europe/Radio Liberty. As I previously addressed in a column, Stengel has been one of the most controversial figures calling for censorship and speech controls. For a president-elect who just called for everyone to “hear each other,” he picked a top aide who wants to silence many.  Since it would be difficult to select a more anti-free speech figure to address government media policy, one has to assume that Biden will continue the onslaught against this core freedom as president.  This is not the first Biden aide to indicate a crackdown on free speech in the new Administration and Biden himself has called for greater censorship on the Internet.

Continue reading ““All Speech Is Not Equal”: Biden Taps Anti-Free Speech Figure For Transition Lead On Media Agency” →

Constitutional Law, Politics, Society

The National Urging Plan: Biden Appears To Downgrade His Mask Pledge From A “Mandate” To An “Urging”

We have previously discussed the claim of President-elect Joe Biden that he will impose a nationwide mask mandate. While most of what Biden promised as part of his pandemic plan (like free vaccinations) are already part of the federal plan, Biden insistence that he would impose a nationwide mask mandate was a distinction between the candidates during the campaign. The pledge was questioned by some of us in terms of the federal authority to enforce such a mandate.  Now, Biden is emphasizing the mandate in his transition and his new Chief of Staff Ron Klain seemed to make a considerable qualification last night in an interview with MSNBC’s Lawrence O’Donnell.  Klain is now clarifying that the Biden Administration would fulfill its promise of a national mandate only “where the federal authority extends.” He then added that they would simply “urge” states to follow suit.  That again sounds like what is currently being done by the CDC and what is already required in federal buildings, enclaves, installations, and bases. A presidential urging is a considerable downgrade from a federal mandate. Legally, it is like going from a promise of a moon shot to a promise to visit the local planetarium.  Continue reading “The National Urging Plan: Biden Appears To Downgrade His Mask Pledge From A “Mandate” To An “Urging”” →

Constitutional Law, Criminal law, Free Speech, Lawyering, Media, Politics

Big League Censorship? Michigan Attorney General Threatens Criminal Prosecution Over Posting Of Video Alleging Voter Fraud

I have been commenting on the ongoing challenges to the presidential election. While I have not seen evidence of systemic voter fraud, there are hundreds of affidavits alleging localized fraud, including cases of deceased persons voting. The challenges should be heard and the evidence should be examined. However, the most worrisome response came out of Michigan this week where Michigan Attorney General Dana Nessel’s Office of Public Information threatened a website, Big League Politics, with criminal prosecution if it did not take down a video of alleged voting fraud. The video may indeed be misleading or false. However, the threat of criminal prosecution by the Michigan Attorney General’s office is a chilling escalation of the crackdown on free speech in this country and the calls for censorship on the Internet.

Continue reading “Big League Censorship? Michigan Attorney General Threatens Criminal Prosecution Over Posting Of Video Alleging Voter Fraud” →

Congress, Constitutional Law, Supreme Court

After Taking The Bait, The Chief Justice Prepares To Switch On The ACA

Yesterday’s oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (of which suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.

Continue reading “After Taking The Bait, The Chief Justice Prepares To Switch On The ACA” →

Columns, Constitutional Law, Politics, Society

What Happens In Vegas May Not Stay In Vegas: Why The Nevada Challenge Could Be Important To The Presidential Election

It turns out that some things that happen in Vegas may not stay in Vegas . . . like voting. The Republican Party in the Silver State is now arguing that thousands of votes in the close presidential election were cast by workers who moved out of the state or even by deceased individuals. Various voters reported their deceased relatives receiving live ballots in the mail. Now, the Nevada Republican Party has sent a criminal referral to the Justice Department alleging at least 3,062 instances of voter fraud in the battleground state. The referral is substantially less than the “10,000” referenced earlier but the underlying allegation is still important. The early concern for many of us was that the system established in Clark County would be difficult to review for violations due to how the tabulation was handled and the record preserved.  Continue reading “What Happens In Vegas May Not Stay In Vegas: Why The Nevada Challenge Could Be Important To The Presidential Election” →

Columns, Constitutional Law, Politics, Society

“It Costs A Lot Of Money To Look This Cheap”: America Continues To Struggle With Dysfunctional Elections

Below is my column in the Hill on continuing controversies over vote counting in states like Nevada and Pennsylvania. Some of these challenges are based on the resistance to monitors and observers in states like Pennsylvania. It is mystifying why Pennsylvania is fighting so hard against such access. The litigation is only fueling suspicions of wrongdoing as the vote balance shifts dramatically. The problem is that a court could ultimately agree that the officials violated state laws but declare such challenges as effectively moot since the vote counting is largely completed. For other challenges, the litigants will need to convince a court that the number of impacted ballots could be “outcome determinative” for the electoral votes.  Otherwise, it could be treated as immaterial to the outcome.  Those challenges need to be made and supported without delay. Time works to the advantage of the party protecting a lead.  As it stands, the allegations of systemic violations is still to be made by the Trump campaign. Absent real evidence, Joe Biden has a clear path to 270 electoral votes and the White House.

Here is the column:

Continue reading ““It Costs A Lot Of Money To Look This Cheap”: America Continues To Struggle With Dysfunctional Elections” →

Constitutional Law, Politics, Society

Court Rules California Governor Gavin Newsom Violated Constitution With Pandemic Orders

We recently discussed how the Michigan Supreme Court ruled that Gov. Whitmer violated the state constitution — a decision repeatedly misrepresented by both Whitmer and major media figures. Now a California judge has ruled that California Gov. Gavin Newsom’s (D) executive pandemic powers on the election violate that state’s constitution. These rulings are notable in that the media has portrayed those opposing such powers as raising frivolous, if not laughable, challenges. There are other cases that support Newsom but this is the second judge to rule against him. The result of the order will not change the current election rules but it is indicative of a trend on pandemic orders.

Continue reading “Court Rules California Governor Gavin Newsom Violated Constitution With Pandemic Orders” →

Columns, Constitutional Law, Free Speech, Media, Politics

The Case For Internet Originalism

Twitter LogoBelow is my column in The Hill on Twitter’s adoption of a “living Internet” approach to censorship policies. Notably, at the recent hearing before the Senate, Democratic Senators demanded more censorship despite the Big Tech CEOs admitting that the blocking of the Hunter Biden story was a mistake. Twitter and Facebook responded within days with new attacks on free speech in barring conservative viewpoints from a Republican women’s group and one of the highest Trump Administration officials.

Here is the column: Continue reading “The Case For Internet Originalism” →

Constitutional Law, Politics, Supreme Court

The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?

While the origin of the nickname has been hotly debated, many trace back New York’s moniker as “The Empire State” to a comment attributed to George Washington who observed that the state’s key geographic advantages smacked of the “Seat of an Empire.” After reading the new guidelines issued by Governor Andrew M. Cuomo for out-of-state travelers, one could easily conclude that he was taking the state nickname literally.  Outsiders are subject to restrictions akin to traveling to another country. The question is whether those limitations will withstand judicial review. It could prove a close question on a couple of specific conditions.

Continue reading “The Empire Strikes Back: Do Cuomo’s Covid-19 Guidelines Take The State Moniker Literally?” →

Columns, Constitutional Law, Media, Politics, Society, Supreme Court

Democrats Threaten Retaliatory Actions To Add Or Remove Justices On A “Court Out Of Whack”

Below is my column in The Hill on the call for Justice Amy Coney Barrett to recuse herself or be impeached. The call for recusal is indicative of demands and threats that are becoming more unhinged by the day.  Whether it is adding or impeaching justices, the Democrats are yielding to the same 30 percent of irate and increasingly irrational voters in their base.  What is concerning is the utter lack of responsible voices from the party to counter this retaliatory impulse or to defend the institution of the Court. Instead, former Vice President Joe Biden’s declaration that the Court is “out of whack” now means that many Democrats are out to whack either the Court or its members.

Here is the column:

Continue reading “Democrats Threaten Retaliatory Actions To Add Or Remove Justices On A “Court Out Of Whack”” →

Constitutional Law, Courts, Politics, Supreme Court

Ornstein: Impeach Amy Coney Barrett

My column this morning in the Hill discussed a call by columnist and professor Norm Ornstein to impeach Amy Coney Barrett if she does not yield to a demand to recuse herself from any election challenge before the Court. A demand for such recusal was filed yesterday in the Supreme Court. Ornstein’s call for impeachment is the latest unhinged response to Barrett nomination and further decouples our national debate from any sense rationality and restraint.

Continue reading “Ornstein: Impeach Amy Coney Barrett” →

Academia, Congress, Constitutional Law, Politics

Markey: “Originalism Is Racist . . . Sexist . . . Homophobic”

We have previously discussed how senators crossed a critical line in the Barrett nomination in declaring that the conservative’s judicial philosophy makes her “unqualified” — the abandonment of decades of tradition where members separated the qualifications from the philosophy of a nominee. That dangerous shift was particularly evident yesterday when Sen. Ed Markey, D-Mass., called originalism “racist, sexist, homophobic and a fancy word for discrimination.” Continue reading “Markey: “Originalism Is Racist . . . Sexist . . . Homophobic”” →

Columns, Congress, Constitutional Law, Politics, Society, Supreme Court

Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court

Below is my column in The Hill newspaper on the range of options referenced by Vice President Joe Biden in the last debate that may be considered by his new “commission” for reforming the Supreme Court.  It is worth looking at the parade of horribles proposed by academics for changing the Court to legislatively negate the majority of conservative justices after the addition of Amy Coney Barrett to the Court (as early as today). The concern is that this is little beyond enablement by commission as Democrats claim license to do lasting harm to one of the most important institutions in our constitutional system.

Here is the column:

Continue reading “Biden’s Parade of Horribles: A Review Of The “Alternatives” For The New Biden Commission On Changing The Supreme Court” →

Res ipsa loquitur – The thing itself speaks