Category: Constitutional Law

Columns, Congress, Constitutional Law, Media, Politics, Society

Trump’s Extreme Vetting: More Of A Political Than A Constitutional Question

495px-Donald_Trump_by_Gage_Skidmore220px-Ellis_island_1902Below is my column in the Washington Post on Donald Trump’s proposal of “extreme vetting” for immigrants to the United States. While some have suggested that the proposal would violate the Constitution, I do not agree. There are ample concerns or objections that can be raised as a matter of policy. However, such vetting is neither unconstitutional nor unprecedented. Particularly if implemented with congressional approval, I believe that such a heightened level of scrutiny would pass constitutional muster. Conversely, this is clearly something that Congress could prevent legislatively.

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Columns, Constitutional Law, Courts, Criminal law, Media, Military, Politics, Society, Supreme Court

TRUMP’S TRIBUNALS: THE GOP NOMINEE EMBRACES USE OF GITMO TO TRY CITIZENS

Camp_x-ray_detainees495px-Donald_Trump_by_Gage_SkidmoreBelow is my column in USA Today on Donald Trump’s statement that he thinks that American citizens should be tried at Guantanamo Bay with other “terrible people” accused of terrorism.  I have previously criticized Hillary Clinton for her views on free speech and executive power.  However, the suggestion that U.S. citizens could be sent for faux trials at Gitmo is truly chilling.  Here is the column.

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Bizarre, Constitutional Law, Criminal law, Politics

Iowa Man Criminally Charged For Flying American Flag Upside Down

There is a highly disturbing story out of Somers, Iowa where Homer Martz was reportedly charged for flying a U.S. flag upside down in protest over an oil pipeline put near his home. It is clearly a protected act under the First Amendment, but the town of Somers appears to lack a single lawyer — or a telephone number for a single lawyer — to explain free speech protections to them.

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Constitutional Law, Courts, Criminal law, International, Media, Politics, Society

Trump: Americans May Be Tried In Military Tribunals Under His Administration

495px-Donald_Trump_by_Gage_SkidmoreCamp_x-ray_detaineesI have long been a critic of military tribunals as constitutionally dubious and practically ineffectual institutions. The tribunals at Guantanamo Bay have resulted in few actual trials and undermined the standing of the United States as a nation committed to the rule of law. The principle rationale cited by former officials in defense of Gitmo has been that it would not be used to try citizens. Now in a deeply disturbing interview, GOP presidential nominee Donald Trump has stated that he might try citizens at Gitmo — maintaining a shadow court system for stripping citizens of basic rights of due process just a few miles off the United States shore.

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

EEOC Reinstates Case Where Worker Objected To Co-Worker’s Wearing Of Cap With “Don’t Tread On Me” As “Racially Offensive”

Unknown-2My friend Professor Eugene Volokh raised an interesting case out of the Equal Employment Opportunity Commission (EEOC) where the commission reinstated what many would consider a facially invalid harassment lawsuit over a worker wearing a simple “Don’t Tread on Me” cap. The cap was claimed cited as “racially offensive to African Americans” because “the flag was designed by Christopher Gadsden, a ‘slave trader & owner of slaves.’” It is a bizarre case but the concern over the fluid standard for such cases was magnified by a response to Gene from Harvard Law professor Noah Feldman who added that a worker “Saying at work that ‘Hillary Clinton shouldn’t be president because women shouldn’t work full-time’” could also be a legitimate basis for sanctions.

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Constitutional Law, Criminal law, International, Politics, Religion, Society

Iran Executes Gay Teenager Under Islamic Sharia Law

noose-hiIran has given the world another outrage in its enforcement of the medieval Islamic Sharia law. The victim was Hassan Afshar, 19, who was hanged for what the Sharia court called “forced male-to-male anal intercourse.” Afshar insisted that that the sex was consensual, though in Iran you can also be executed for simply being homosexual — as we have previously discussed.

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Constitutional Law, Courts, Justice, Politics, Torts

Court Awards Couple $18,000,000 For City’s Land Grab. Largest In State History

By Darren Smith, Weekend Contributor.

City of SeaTac LogoIn a significant judgment against the City of SeaTac, Washington in a property rights case a King County Superior Court judge awarded Gerry and Kathy Kingen $18.3 million after what the court described as “a pattern of deception that lasted years.”

The trouble for the couple began in 2003 when they purchased land in the vicinity of Sea-Tac Airport with the intent to develop the land into a Park-and-Fly garage. Immediately after bringing notice to the city of their plans the city council declared a moratorium on the construction of these garages and engaged in tactics to hinder the couple’s investment until, according to court documents, they were forced under duress to sell the property to a “phantom buyer” who was later determined to be a surrogate for the city.

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Constitutional Law, Lawyering

Indiana Prosecutor Is Fired For Withholding Exculpatory Evidence

photo-of-eric-knowles-courtesy-of-porter-county-sheriffs-departmentIn a relatively rare move, Porter County Deputy Prosecutor Trista Hudson has been fired for her blatantly unethical conduct in the withholding of exculpatory evidence in the prosecution of Eric Knowles (left), 39, for child molestation. Recently, evidence was discovered that one of two purported victims made up at least part of the accusations in a child molestation case. Hudson also serves on the Valparaiso City Council.

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Bizarre, Constitutional Law, Criminal law, Religion, Society, Uncategorized

Iranian Police Confiscate 100,000 Satellite Dishes To Protect Public Morality

160px-SatelliteDishes-5375The infamous Iranian Basij militia cracked down on the use of satellite dishes by confiscating 100,000 dishes in Tehran.  Iranian prosecutors insisted that dishes expose families to UnIslamic influences and are “morally damaging.”  The dishes were destroyed in a triumphant ceremony before General Mohammad Reza Naghdi, head of Iran’s Basij militia.  Most people view Naghdi’s crackdown as a pathetic and laughable example of religious orthodoxy that still strangles Iranian society.  However, Naghdi heralded the latest achievement of his extremist forces.

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Academia, Constitutional Law, Free Speech, International

Turkish Government Orders 1,577 Deans To Resign In The Expanding Crackdown After the Coup Attempt

220px-Recep_Tayyip_ErdoganWe previously discussed how Turkey’s rising dictator, Recep Tayyip Erdogan, was likely to use the failed military coup to complete his objective to become a virtual dictator (backed by Islamist parties). That dire prediction appears to be fast becoming true with a roundup of thousands and the declaration of a state of emergency. Turkish academics have also been banned from leaving the country. Of course, Erdogan has offered his usual Orwellian rationization for the three-month state of emergency as necessary to protect civil liberties by suspending them “to eliminate the threat to democracy in our country, the rule of law, and the rights and freedom of our citizens.”  With that, and the support of his Islamist allies who passed sweeping new powers for the budding Sultan, Erdogan suspended civil liberties in Turkey.  In the meantime, women have reportedly avoided the streets because of being targeted by Erdogan’s Islamist supporters.

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

Twitter Accused (Again) Of Anti-Conservative Bias After Permanently Banning Milo Yiannopoulos

Cnxluz-XEAAcIQqWe have previously discussed the troubling efforts to bar conservative speakers from college campuses and social media, particularly Breitbart Tech editor Milo Yiannopoulos who has become something of an icon for young conservatives. Twitter has long been criticized for banning or harassing conservative figures, including repeated suspensions against Yiannopoulos. Now, the company is under fire for permanently banning Yiannopoulos — just 20 minutes before his “Gays for Trump” event takes place at the Republican National Convention.

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Bizarre, Congress, Constitutional Law, Criminal law, Free Speech, International

Gingrich Proposes To Criminalize The Visiting Of Sites Deemed “Favoring” Terrorist Groups


Former Speaker of the House Newt Gingrich is made a highly disturbing proposal that people who visit sites that are deemed as favoring terrorist groups. As articulated by Gingrich in his Fox News interview, the proposal would eviscerate the first amendment and leave that government in a position to regulate speech and association based on an ill-defined standard. Gingrich also attracted criticism for his proposal to test Muslims to allow for deportation of anyone who “believes in Sharia” — a proposal that would sanction peoplr for their religious and political views.

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Columns, Congress, Constitutional Law, Courts, Supreme Court

THE GINSBURG CONTROVERSY: IT IS TIME TO IMPOSE A CODE OF ETHICS ON OUR HIGHEST COURT

440px-Supreme_Court_US_2010Below is my column on Sunday in the Chicago Tribune on the controversy involving Justice Ruth Bader Ginsburg. Ginsburg’s expression of “regret” over “ill-advised” statements may strike many as a bit short of an actual apology for what was facially unethical conduct. However, it was more than was required because nothing is required from a Supreme Court justice. That is the problem. Not the tirade against Trump. Not the criticism of Republicans in Congress. The real problem is that Ginsburg and her colleagues claim that the Code of Judicial Ethics is only binding on lesser jurists. Indeed, a majority of justices have been accused of ethical violations, but the Supreme Court is the only part of our government that is not subject to any enforceable code of ethics. Ginsburg’s apology should not detract attention from pressing need for reforms of our Court, including the creation of an enforceable ethical code for the justices. Once again, we have addressed only the latest manifestation of the problem on the Court rather than the underlying cause: the absence of an enforceable code of ethics for the justices. I have long advocated two primary reforms for the Court: the establishment of an enforceable code of ethics and the expansion of the Court to 19 members. What was disturbing recently during an appearance on the Washington Journal on C-Span was how many people argued against an enforceable code of ethics and just accepted that justices speak and act politically. While some people simply supported what Ginsburg had to say about Trump, others view the notion of an enforceable code of ethics as “naive” despite that fact that all other federal jurists comply with such a code. Below is the column:

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Congress, Constitutional Law, Courts, Media, Politics

DID JUSTICE GINSBURG VIOLATE JUDICIAL ETHICS IN HER CRITICISM OF DONALD TRUMP?

225px-ruth_bader_ginsburg_scotus_photo_portraitI have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues and even pending matters before the Court. I have been particularly critical of the late Justice Antonin Scalia and Associated Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. I have called this trend the “rise of the celebrity justice.” Now, Justice Ginsburg has started another firestorm over public comments where she joked that she would move to New Zealand if Donald Trump is elected. Canon 5 of the judicial ethical rules expressly states that judges shall not “make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office.” The problem is that the Court has long maintained that ethical codes are not enforceable against its members as opposed to every other jurist in the country. This absurd position has continued because Congress has failed to act, something that I have previously criticized. Ginsburg’s statements this week reflects the continued sense of impunity enjoyed by justices who violate the core maxim that “no man shall be the judge of his own case.” The justices are the judges of their own ethical cases and they show vividly why that is a dangerous and corrupting power.

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