Category: Constitutional Law

Bizarre, Constitutional Law, Criminal law, Torts

Police Search For Rapist After Woman in Vegetative State For Ten Years Gives Birth In Arizona Facility

Regulars on this blog are familiar with the doctrine of res ipsa loquitur (or “the thing speaks for itself”). One twisted case near Phoenix, Arizona would certainly seem to fit that definition after a patient in a vegetative state gave birth. AZ Family reported that he victim is a member of the San Carlos Apache Tribe who nearly drowned 10 years ago. Police or the company may seek DNA samples from all male employees at Hacienda HealthCare. In this case, a positive match would by definition confirm rape given the non-consensual context.

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Columns, Constitutional Law, Politics

Yes, Trump Has The Authority To Declare A National Emergency On The Southern Border

Below is my column in The Hill newspaper on the threat of President Donald Trump that, should the Democrats refuse to fund the wall, he is preparing to declare a national emergency to build it unilaterally. As I discuss below, I believe that such a declaration should be opposed by Congress in defense of its inherent constitutional function over the federal purse. I do not see the compelling basis to declare an emergency given the available data on illegal crossings on the Southern border. However, I disagree with those who have argued that such a declaration would be unconstitutional.

Here is the column:

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Congress, Constitutional Law, Military, Politics

Trump Goes “Medieval”: Both Sides Deepen Divide Over Wall

In his signature fashion, President Donald Trump on Wednesday embraced the criticism of the Democrats and said that his wall is “medieval” but works. Last night, the public saw both the President and the Democrats announce that they will not yield an inch as the country continues what will soon become the longest government shutdown in history. Lingering in the background is the threat of a presidential declaration of emergency — followed by a unilateral order to start to build the wall with unobligated funds. If so, the White House needs to guarantee that it will not repeat the grossly negligent performance of its first travel ban roll out. Trump reportedly stormed out of a meeting with Democrats in the afternoon.

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Constitutional Law, Politics, Society

NAACP Declares Portland Earthquake Warnings To Be Racist

There is a bizarre controversy in Portland, Oregon after the city began to put up notices on buildings that it deemed unsafe for possible earthquakes. The city is trying to prepare for “the big one” — a massive earthquake that is now overdue. It is identifying older buildings susceptible to collapse with public signs. However, it is facing a challenge from the NAACP of Portland which has declared the signs to be the embodiment of “white supremacy” and racism. There is also a challenge for building owners.

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Bizarre, Congress, Constitutional Law, Politics

New Democratic Member: “We Gonna . . . Impeach The Mother**ker”
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After fueling impeachment calls in the election, some Democratic leaders are trying to tamp down on the issue despite the filing of impeachment articles on the first day of the session. The leaders could now have a serious problem in controlling dozens of members who secured their fees in part on impeachment pledges. That was obvious this week when newly elected Rep. Rashida Tlaib (D-MI) proclaimed the intention to “impeach the motherf**ker” at a reception for the liberal group MoveOn. The statement obviously delighted the crowd but undermined the credibility of the new Democratic majority in seriously examining the basis for impeachment. In a measure of the distemper that has taken over our politics, Tlaib has refused to apologize.

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Constitutional Law, Politics

No, Pelosi Is Not The Constitutional Equal To The President

Shortly before becoming House Speaker, Nancy Pelosi (D., Calif.) made an interesting statement in an interview with the New York Times that the Constitution makes her to be President Donald Trump’s equal. While President Donald Trump is criticized for misconstruing his inherent powers (often for good reason), Pelosi also appears to need a basic constitutional primer on the office.

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Bizarre, Constitutional Law, International, Politics

Swedish “Man Free” Concert Declared Discriminatory

We previously discussed the “man free” concert held in Sweden and how the concert (heralded by feminists) was a raw exercise of gender discrimination. It was a telling moment since these same advocates would be appalled by barring women from concerts or venues. Now Sweden’s Discrimination Ombudsman has declared the concern blatant discrimination. The response of feminist leaders is interesting. Rather than recognize the hypocrisy of fighting discrimination by others but not themselves, leaders denounced the ruling and ridiculed men as feeling threatened.

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Constitutional Law, Courts, Criminal law

Did The Supreme Court Just Rule For The First Time On A Mueller Matter?

It is called In re Grand Jury Subpoena No. 18-3071 and it just might be the first ruling on an issue in the investigation of Special Counsel Robert Mueller by the Supreme Court. The U.S. Court of Appeals for the D.C. Circuit recently ruled on the matter under seal involving a corporation presumably owned by a foreign government. The corporation lost in its bid to quash the subpoena under the protections of the Foreign Sovereign Immunities Act. The D.C. Circuit imposed a daily fine, which was enjoined by Chief Justice John Roberts on Sunday night. While not a ruling on the merit, it could be a historical moment as the first Mueller matter to make it to the Court.

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Columns, Constitutional Law, Criminal law, Lawyering, Politics

The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation

Below is my column in Fox.com on the Barr memorandum that has garnered so much attention. As I noted, I do not agree with the ultimate conclusion of the research that the obstruction provision could not be the foundation for a subpoena to require President Donald Trump to answer questions. However, the memo is a well-reasoned and thoughtful treatment of the issue. Moreover, I agree with Barr (as I have stated since 2017) that critics were stretching obstruction provisions to the breaking point in their blind effort to turn every act into a crime. Indeed, while I do not necessary view the memo as a strong case against obstruction, it is part of a strong case for confirmation.

Here is the column:

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Bizarre, Constitutional Law, Courts, Criminal law, Justice, Lawyering, Media, Politics

The Curious Tale Of The Flynn Sentencing Hearing

Below is a column on the Flynn’s sentencing hearing and the curious turn of events in the case. He is now scheduled for a new sentencing hearing in March 2019. Interestingly, while I have repeatedly stated in print and television that Flynn does not deserve sympathy, I have been widely quoted as saying that I have called for such sympathy. My point is simply that there are serious concerns raised by how this interview was handled, including the intentional effort to have Flynn interviewed without counsel. Moreover, it is possible to denounce such false statements without exaggerating the specific crime itself. It is still unclear why Flynn lied when the conversation of such sanctions was not strange or improper. Indeed, the Administration publicly was saying that it wanted a new start with Russia and would reexamine all aspects of the relationship. The hearing however quickly went off the rails. I have a great deal of respect for Judge Emmet Sullivan and have appeared before him on countless occasions. But this hearing took a radical departure from the record and the specific crime being addressed in sentencing.

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Academia, Constitutional Law, Free Speech, International, Politics, Religion

Five Texans Sue After Being Barred From State Jobs For Refusing To Sign A Required Statements On Israel

I have previously written about the increasing state and federal efforts to impose bans on contractors and employees who refuse to sign agreements not to boycott Israeli products. The agreements raise serious free speech concerns under the First Amendment and contravene a host of constitutional rights from speech to religion to association. Now a speech pathologist in Texas is suing after she was barred from employment with the school district after nine years of work with developmentally disabled, autistic, and speech-impaired elementary school students in Austin, Texas. The lawsuit on her behalf was filed in the Western District of Texas is the latest federal challenge to these laws.

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Columns, Constitutional Law, Courts, Media, Politics, Society

Health Care Jenga: The Future Of The ACA May Rest With Its Past

Below is my column in USA Today on the recent decision effectively striking down the Affordable Care Act.  While Judge O’Connor technically ruled only on the individual mandate, he found that the unconstitutional provision could not be severed from the rest of the Act.  Nevertheless, he will have to address the remaining issue and the question of the injunctive relief.  There is a good chance that the severability ruling will be reversed but that could still leave the ruling on the individual mandate.

Here is the column:

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Academia, Bizarre, Constitutional Law, Society

American University’s Yoga Group Disbanded After Cultural Appropriation Charge

I have been critical of the widening charges of cultural appropriation and microaggressions on our campuses as statements and even programs are targeted with little resistance from faculty or administrators.  We previously discussed how yoga classes were denounced in Ottawa as cultural appropriation. Now American University in Washington has become embroiled in the same charge after a single student objected to white individuals performing an Indian epic as part of university’s Bhakti yoga group. American University student Maya Krishnan seems to believe that the school should limit performances on the basis of race and national origin — and that objection appears to have succeeded with the dissolution of the group as well as the resignation of the group’s faculty adviser, student president and vice president.

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