Senator Robert Menendez and his close friend Salomon Melgen, a Florida eye doctor, are heading to a jury decision after U.S. District Judge William Walls ruled that the indictment against them for public corruption would stand. Menendez not only stands in considerable jeopardy for his highly questionable relationship with Melgen but his conviction could flip the seat in the Senate since Governor Chris Christie would appoint his successor. ( A new governor will be elected for January).
There are now eighteen states and the District of Columbia lined up to challenge the executive order by President Donald Trump to rescind the Obama order giving insurance companies billions in subsidies . . . without an appropriation of Congress. As explained below, this challenge advances a rather curious claim that Trump cannot rescind an earlier order found to be flagrantly unconstitutional by a federal court. In most high-profile litigation cases, counsel spends considerable time exploring whether a challenge will allow a bad case to make bad law on appeal. That would seem the most likely outcome here but much of the litigation by Democratic Attorneys General have been driven more by political than legal calculations. Voters now expect every act of Trump to be challenged and no Democratic AG wants to be the only one to sit out a challenge to an unpopular order. The result is a type of perpetual litigation machine where bad precedent is being cranked out because it is viewed as good politics.
Here is the column:
We have been discussing the increasing scrutiny being applied to teachers and professors over their political views and social media commentary. A particularly problematic case has been taken up by the American Civil Liberties Union (ACLU) involving Kansas teacher Esther Koontz. The long-time math teacher (and something called a “curriculum coach”) at Horace Mann Dual Language Magnet School in Wichita, Kansas, Koontz was barred from renewing her contract as teacher because she supports the boycott of Israel over the occupation of Palestinian territories. This is not simply reflective of her political views but a religious based obligation as a member of the Mennonite Church USA. The church in July voted to divest itself from American companies that profit off of Israel’s occupation of the Palestinian territories. The Kansas law therefore collides head on with the rights of free speech, free exercise, and free association.
In our criminal justice system, appellants tend to fall into three categories: Those who ultimately prevail in their arguments; those who are unable to convince justices of their case’s merits; and those who fall off a cliff and strike every sharp rock on their way to the bottom. Steven Canha apparently suffered the fate of the last category.
After extensive appeals, one of which was to the U.S. Supreme Court, Mr. Canha lost what could be his final personal restraint petition before Washington’s courts of appeals and now the state’s Supreme Court halted the years long contention for his release from prison.
Mr. Canha argues, in short, for a resentencing based on Washington’s determinate sentencing grid by reason of incompatibility of foreign laws to Washington’s and argues for removal of prior convictions to reduce his prison term. But being probably the most unfortunate man in recent memory, a unanimous Court determined applicability of prior violations based largely upon obsolete laws (effective at the time) and time/date dictated ultimately how long his imprisonment occurred.
I have previously criticized Supreme Court Justice Ruth Bader Ginsburg for her continued political comments in speeches to liberal and academic groups. While not unique on the Court, Ginsburg is something of recidivist in abandoning the long-standing avoidance of justices of political discussions. Indeed, justices previously avoided most public speeches where Ginsburg has readily embraced her public persona. Her latest comments occur on the eve of the start of the new term, a term with an array of major cases that arose from highly charged political conflicts over immigration, discrimination, and gun rights. In her latest comments, Ginsburg echoed comments by Hillary Clinton that sexism was a big part of Trump’s victory. It is precisely the type of political commentary that has cast a shadow over the credibility of the Court in earlier controversies.
Below is my column in The Hill Newspaper on the termination of the second travel ban and issuance of the new order by the Trump Administration. As discussed in the column, the Supreme Court went ahead and removed the immigration cases from the schedule for oral argument while agreeing with the Administration to order briefings on whether the cases are now moot. It is hard to see how the cases are not moot in whole or substantial part. The Court tends to take off ramps to avoid constitutional decisions, particularly in the area of the separation of powers. It will hard not to take this obvious off ramp.
The United States Court of Appeals for the Sixth Circuit delivered another stinging rebuke of universities and their denial of basic due process protections to students in sexual assault cases. I have been a long critic of the Obama Administration’s rules forcing schools to strip away due process protections in such cases. For that reason, I supported the decision of the Trump Administration to rescind the “Dear Colleague” letter issued by the prior administration. The University of Cincinnati denied a student the right to confrontation — one of the key “reforms” of the Obama Administration demands.