I just returned from a terrific event at Christopher Newport University on Constitution Day — a debate with Professor John Yoo. While we were delighted by the large number of students who appeared to listen to the debate, we discussed the recent poll on the lack of knowledge of citizens. A recent poll by the Annenberg Public Policy Center (APPC) found that, in a survey of over 1,000 citizens, only a quarter were able to name all three branches of the federal government. We just discussed the poll showing that four out of ten Americans cannot name a single right under the first amendment. Once again, these polls leave us with the troubling prospect of a woefully uneducated public on their own government.
White supremacist Dylann Roof says that he has something of a problem on his hands: he has court-appointed counsel who happen to be Jewish and Indian. He has asked the court to replace Alexandra Yates and Sapna Mirchandani in his appeal of his death sentence for the massacre of nine people in the Emmanuel AME Church during a Bible study in 2015. Roof appears to believe that the right of counsel includes the right to white counsel. It doesn’t. The court should not be a vehicle for racial or religious discrimination to cater to the wishes of a homicidal fanatic. More importantly, that is the view of the United States Court of Appeals for the Fourth Circuit.
U.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.
Below 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:
Below 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.
There 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.
I 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.