Category: Constitutional Law

Trump Fires Acting Attorney General Over Refusal To Defend Executive Order

sally_q-_yatesdonald_trump_president-elect_portrait_croppedPresident Donald Trump fired acting Attorney General Sally Yates Monday night for “refusing to enforce a legal order designed to protect the citizens of the United States.”  As I stated on “Morning Joe” this morning, Trump clearly has the right to fire Yates.  Indeed, Yates’ action (and rationale) contradicts long-standing Justice Department policies on such issues.  Despite my personal opposition to this executive order, I believe that Yates was mistaken to take this action and that it does not serve the interests of justice to obstruct efforts to have this matter fully litigated before a court for independent review.

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Is The Trump Executive Order on Refugees Unlawful?

donald_trump_president-elect_portrait_croppedI previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries.  As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls.  There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority.  Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin.  There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid.  As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation.  However, legal analysis by a court should not be influenced by such personal viewpoints.  The question is solely whether the president is barred statutorily from taking this action.

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Giuliani: Trump Told Me He Wanted A “Muslim Ban”

rudy_giuliani_by_gage_skidmoreThe Trump Administration has maintained that the new executive order on refugees is not a Muslim ban.  It is a compelling argument given the fact that only seven Muslim countries are singled out.  Yet, Administration lawyers will have to deal with countervailing statements from President Trump that he wants to give preference to Christians as refugees.  Now Former New York City Mayor Rudy Giuliani (R), a close confidant to President Trump, may have magnified the problems with an interview where he discusses how President Trump asked him to craft “Muslim ban.” 

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Is The Trump Executive Order On Refugees Constitutional?

donald_trump_president-elect_portrait_croppedLate Friday, President Donald Trump carried out one of his primary campaign promised this week with a suspension on the entry of all refugees to the United States and an order for “extreme vetting” as a condition for entry for some foreign citizens.  The order below specifically suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days for citizens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  The order had immediate impact on travelers who were denied entry to the United States and held at some airports like JFK.  Lawsuits have already been filed challenging the executive order but those challenges will face a considerable challenge in seeking an injunction by a federal court.

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Teachers In Alabama and Texas Suspended After Anti-Obama and Anti-Trump Displays

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It appears that teachers are having a difficult time keeping their political views out of classroom.  Recently, an Alabama teacher was put on suspension for projecting an image of Obama with “You’re fired” after the election.  Now, on the other side of the political spectrum, a  Texas high school art teacher has been placed on administrative leave after video surfaced showing her “shooting” the image of President Donald Trump in a classroom while screaming, “Die!”

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Northwestern Transgender Student Seeks Entry To Sorority

imgres-1Northwestern University is facing an interesting controversy that captures the new reality for schools in dealing with alternative gender identifications.  A freshman at the school was born a female but now identifies as a male.  Adam Davies wants to participate in Greek life but is not ready to join a fraternity. So Davies has asked to join a sorority as a male with a female body.  He insists that his interest “transcends the gender binary” but some have objected to leaving such choices to the individual’s determination on gender.

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Ohio Father and Son Demand To Use Bible As Defense To Alleged Serial Rape and Kidnapping Charges

SUPREME COURT TURNS DOWN SISTER WIVES PETITION

240px-sister_wives_tv_series_logoSupreme CourtI regret to report that a few minutes ago, the United States Supreme Court denied the petition for review filed in the “Sister Wives” case. The case is Brown v. Buhman, No. 14-4117. As lead counsel for the Browns, I was joined on the petition by co-counsel Thomas Huff and Adam Alba.  My prior assistants, including my current assistant Seth Tate, and law students worked countless hours into many late nights to maintain this litigation.  We are greatly in their debt for their pro bono work on this case.  The attorneys and law students who worked on this case came from different religions and held different values.  Many disagreed morally with plural families. However, we all believed strongly that every family has a fundamental right to follow their own faiths so long as they did not harm others.  We all believed that the Browns were denied those rights when they are singled out for public condemnation and criminal investigation due entirely to their public support for plural marriage.  It is particularly difficult to prevail on the merits in establishing constitutional violations only to be reversed on standing issues on appeal. However, our victory in Salt Lake City will remain as a cautionary decision for legislators who wish to marginalize or sanction this community in the future.

I also wanted to extend my deepest gratitude and respect to the Brown family which allowed us to represent them in this historic action.  The Browns remained steadfast in their commitment to equal rights and have become the voice for not just plural families but many families which do not meet the strict definition of monogamy practiced by the majority of citizens.  The Browns have kept their show and this litigation largely separate to allow the courts to fully consider the merits of our case without interference or aggrandizement.  They continue to have faith in our country and our legal system despite this decision.  More importantly, they have faith in the right of all families to enjoy the protections of our Constitution and will continue to fight to make that promise a reality for plural families throughout the country.

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Texas Governor Moves Against Sanctuary County

440px-greg_abbott_by_gage_skidmore11056546_814772561936445_7014694705004167086_oI have been discussing the likely confrontation between the Trump Administration and various “sanctuary cities” which have pledged not to cooperate with federal authorities in the deportation of illegal immigrants. I believe that cities like New York City will face a rude awakening when they calculate just how much they received in federal grants that could be withheld by Attorney General Jeff Sessions or the Administration. Now that scenario is playing out in Texas where Gov. Greg Abbott is threatening to cut funding for Travis County after Sheriff Sally Hernandez announced the county would be scaling back its cooperation with federal immigration. Hernandez could trigger a perfect storm of having both state and federal fundings cut back in a county that is deeply dependent on such funding.

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Chinese Chief Justice: Courts Must Reject “Erroneous ” Western Concepts Of Independence And Support The Party

For those brave reformers who have struggled to introduce the semblance of a true judiciary and the rule of law in China, the recent interview of Chief Justice Zhou Qiang must have been devastating. Zhou told lawyers and judges that they needed to avoid the temptation of the West in wanting an independent judiciary that follows the rule of law. With that, Zhou placed himself in history as a voice for injustice — a lawyer who committed his life to fighting against the law.

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Illegal Immigrant Sues San Francisco Police For Assisting Federal Officials In His Prosecution

Seal_of_San_FranciscoThere is an interesting case out of San Francisco where an illegal immigrant from El Salvador is suing San Francisco after police turned him over to United States Immigration authorities. Pedro Figueroa Zarceno, 32, alleges that the police violated the law by helping the federal authorities in the enforcement of the law. He relies on the controversial municipal law barring municipal employees from cooperating with federal immigration authorities seeking to deport a person.

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WHY I WILL NOT BE JOINING THE PROTESTS AGAINST PRESIDENT DONALD TRUMP

donald_trump_president-elect_portrait_croppedBelow is today’s column in USA Today on the protests against President-Elect Donald Trump and why, despite having a house full of family members and friends who have come to protest Trump, I will not be joining them. Instead, I will be home with my kids as we have been in every inauguration – celebrating the peaceful transfer of power in our democracy and wishing the newly elected president (and our country) the best with an inaugural toast. I criticized Trump (and Hillary Clinton) during the campaign (and I will not hesitate to criticize Trump again for policies or actions that I disagree with). However, I find the claims of illegitimacy and attacks this week to be highly disturbing. I totally respect the right of people to come to protest Trump and his policies. However, there appears to be a concerted effort to delegitimize his presidency and create a type of political mythology about this election.

In this column I discuss that mythology and, more importantly, the meaning of the day of inauguration for many of us. Regardless of my criticism of both Trump and Clinton, I always knew that on January 20th I would raise a glass to the 45th President of the United States and wish him or her . . . and us . . . the best of luck in the coming years. It is a time when we reaffirm our commitment not so much to a politician but to each other. We reaffirm a common article of faith that, despite our disagreements and divisions, we remain one country joined by our belief in democratic transition and government. There is much to celebrate this week as a glance around the world at places like Gambia will readily confirm. Donald Trump will be the 45th President. Our President.
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British Home Secretary Faces Hate Speech Complaint Over Immigration Speech

amber_rudd_2016We have previously discussed the alarming rollback on free speech rights in the West, particularly in France (here and here and here and here and here and here) and England ( here and here and here and here and here and here and here and here and here and here). Much of this trend is tied to the expansion of hate speech and non-discrimination laws. We have even seen comedians targeted with such court orders under this expanding and worrisome trend. (here and here). Now a recent complaint filed by a professor against Home Secretary Amber Rudd illustrates vividly how hate speech has become for some people an extension of political disagreements.  The complaint by Prof Joshua Silver, an astrophysicist, will not result in any serious investigation but it was recorded as a hate crime allegation under the existing standards.  We recently discussed the criminal charges brought against a conservative Dutch politician. Continue reading “British Home Secretary Faces Hate Speech Complaint Over Immigration Speech”

Illinois Man Sues Over Arrest for Flag Burning

1414249_1280x720We previously discussed the case of Bruyton Mellott who was arrested after posting online pictures of himself burning an American flag has filed a federal lawsuit seeking to have the state’s flag desecration law declared unconstitutional. The 22-year-old the Wal-Mart employee was charged with flag desecration despite two Supreme Court cases clearly saying that such an act is constitutionally protected. After various experts (including myself) said that the arrest was unconstitutional, the charges were dropped, but Mellott is now suing.  I personally find Mellott’s actions to be highly offensive and disturbing.  I have never understood the burning of the flag which represents our collective rights, including free speech.  Unfortunately, important free speech cases are often triggered by the most reprehensible forms of speech or most reprehensible individuals.  In the end, the lawsuit may force legislators to confront the fact that they have continued a facially unconstitutional law on their books because they fear the political backlash if they comply with long-standing Supreme Court precedent.

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California Legislators Push For Course On Teaching High School Teachers How To Spot Fake News

894597_490371537684852_1755238079_oI have long been a critic of politician interfering with curricular issues in our schools. Most of us do not look to politicians as paragons of knowledge. Assemblyman Jimmy Gomez personifies the perils of politicians dictating course choices. Gomez is pushing for a course on to teach students who to avoid fake news. It is part of a new trend around the world to rally people against the scourge of “fake news” — a trend that is already been used as a rationale for censorship and the criminalization of speech. Fake news is now the rallying cry for people who disagree with coverage and is used as a way to avoid answering questions.  What one person consider fake news and other considers real news can be highly subjective.  The most recent controversy reveals the difficult lines to draw.  President-elect Donald Trump made headlines yesterday by denounced CNN as “fake news” and refusing to take a question from its reporter.  Yet, the report was “news” that was reported by most major outlets.  I agree with the Trump staff about the need for BuzzFeed to have looked more closely at specific allegations and I do find the contractions raised by the Trump staff to be very problematic.  Indeed, James Clapper appears to have supported Trump in his outrage over the leaks and further distanced the U.S. intelligence community from the merits of the allegations. [Here is  Clapper’s statement]  Yet, the legitimacy of these stories comes down to the details published in the stories.  A former MI6 agent made the allegation and those allegations were forwarded to the FBI by a U.S. Senator.  That is news.  The specific “dirt” alleged to be in the possession of the Russians is a far more difficult question for editors and most declined to run those details while reporting the lack of independent confirmation.

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