Supreme Court Restores Trump Travel Ban After Ninth Circuit Ruling

Supreme CourtU.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

The Law Of Bad First Impressions: The DACA Challenge Is Long On Rhetoric And Short On Law

NY-AG-Eric-SchneidermanJPG-745x450Below 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:

Continue reading

DACA And The Costs Of Constitutional Short Sellers

Statue_of_Liberty_7500px-Philippine-stock-market-boardBelow 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

Court: Story Alleging Richard Simmons Is Transgender Does Not Constitute Defamation

471645b3a24044cdbad83d43b1a20641_2ec4396aa92f4de2a3b47314751d5eb7_headerThere is an interesting ruling expected in L.A. Superior Court where Judge Gregory Keosian has handed down a tentative decision that would dismiss Richard Simmons’ defamation suit against the National Enquirer and Radar Online.  Those papers published a story that Simmons was transitioning to a woman.  Simmons denied the account and sued for defamation.  The decision is part of a trend away from such allegations as a per se form of defamation.

Continue reading

Not Quite: Media Reports Court Finding That DNC Rigged Primary For Clinton

Wasserman SchultzI have long been a critic of the concerted efforts of Democratic politicians and the establishment to rig the primary for Hillary Clinton. It worked.  They selected perhaps the only person who could lose to Donald Trump.  For that reason, I immediately took note of articles claiming that a federal court have made a finding of rigging by former DNC Chair Debbie Wasserman.  The Observer, for example, had an headline of “Court Admits DNC and Wasserman Schultz Rigged Primary Against Sanders.”  That seemed like a particularly important news development but on closer examination it is based on a misunderstanding of the federal procedural rules governing such decisions.

Continue reading

Maryland Removes Statue Of Roger B. Taney In Midnight Operation: Will Other Supreme Court Justice Monuments Follow?

Roger_B._Taney_statue,_Mount_Vernon_Place,_Baltimore,_MDWithout much notice or debate, Maryland officials ordered the removal of the statue of Chief Justice Roger B. Taney due to his authorship of the Dredd Scott decision.  At midnight, workers quietly dismantled the statue in response to the violence in Charlottesville.  Taney’s statue stood for 145 years on the Maryland State House and his removal follows calls for the removal of statues not simply of confederate figures but founders like George Washington and others associated with either slavery or segregation.  I have cautioned against the wholesale removal of historical images and monuments and names at universities.  The flaws and failures of historical figures are often as more important than their triumphs.  The Taney removal reflects a widening array of figures who are now subject  to call for removal — beyond confederate statuary.   It is not clear what Maryland will do with the US Coast Guard Cutter Taney which currently is part of the Baltimore Maritime Museum.  It is last surviving active ship from the Pearl Harbor attack of December 7, 1941.  I have spent nights on the Taney with the Cub Scouts. While this is not on state lands, it is not clear if there will also be a demand that the ship be removed given its namesake or how far this movement to remove historical references will do.

Continue reading

Tenth Circuit Strips Qualified Immunity After Sheriff’s Office Raids Home Of Tea Growers

By Darren Smith, Weekend Contributor

There are some cases where probable cause is questioned and there are a few others that leave me shaking my head in disbelief of how ridiculous some officers can be.

The Tenth Circuit Court of Appeals recently handed down a stinging rebuke of the Johnson County Sheriff’s Office and its deputies some of whom, Plaintiffs claim, lied about a field test of a suspected Marijuana product, finding evidence of marijuana grow derived from purchasing tools at a gardening retailer somehow established probable cause sufficient to send in a SWAT team to execute a search warrant and detain a couple for several hours.

The leafy green vegetable matter in question was not marijuana but tea leaves.

It is a classic example of department officials promising to make a publicity garnering drug sweep and when arrests are not made, someone must be sent to jail at all costs. And as can often be the case with such maligned efforts the end result was a civil rights lawsuit in federal court.

Continue reading