GAME CHANGER: THE GORSUCH NOMINATION GOES TO CAPITOL HILL

ap17024739756097donald_trump_president-elect_portrait_croppedBelow is my column in The Hill newspaper on the nomination of Tenth Circuit Neil Gorsuch.  If President Trump sought to change the subject from immigration, I doubt this will do it. However, as I discuss in the column, if he sought to quiet restless Republicans over a truly dreadful performance of the Administration in the first week, the nomination should do so. He is a jurist with impeccable credentials and will be very impressive in the upcoming hearings.  He is, to put it simply, a game changer.

Continue reading

TRUMP NOMINATES NEIL GORSUCH FOR THE UNITED STATES SUPREME COURT

ap17024739756097President Donald Trump has made his choice for the Supreme Court and it is Tenth Circuit Judge Neil Gorsuch, 49.  With the selection, President Trump would be submitting a jurist with unassailable credentials and proven intellect.  He is also someone with a proven conservative record, though there are a few blind spots for those who want a nominee vaccinated against what conservatives view as the David Souter virus — a creeping condition where a conservative gravitates to the left of the Court with time.  Last night, The Hill newspaper ran my column on Gorsuch and his unquestioned qualifications.

Continue reading

Is The Trump Executive Order on Refugees Unlawful?

donald_trump_president-elect_portrait_croppedI previously discussed how President Donald Trump has the advantage in a constitutional challenge of this executive order suspending entry for refugees and imposing special limitations on seven stated countries.  As I have noted, this does not mean that there are not legitimate questions raised, particularly over the express preference to be given “religious minorities” under the order. However, the case laws heavily supports a president’s plenary power over such border controls.  There remains however a question over whether the law could be constitutional under a president’s inherent authority but still unlawful under statutory authority.  Most of that argument centers on the Immigration and Nationality Act of 1965, which bars discrimination based on nationality or place of origin.  There are clearly compelling arguments on both sides of this question, but once again I believe that critics may be overstating the 1965 law as making the executive order facially invalid.  As I have repeatedly stated since this executive order was signed, I believe it was a terrible mistake, poorly executed, and inimical to our values as a nation.  However, legal analysis by a court should not be influenced by such personal viewpoints.  The question is solely whether the president is barred statutorily from taking this action.

Continue reading

Federal Court Stays Executive Order On Refugees

donald_trump_president-elect_portrait_cropped gavel2Yesterday, I discussed the constitutionality of the executive order halting all refugee entries to the United States.  Late on Saturday, U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union (ACLU).  The petition was brought on behalf of two Iraqi men detained at John F. Kennedy International Airport on Friday.  As I discussed on CNN after the ruling, this is decision to stay not to enjoin. The latter will require a showing by the ACLU that it is substantially likely to prevail on the merits, a tough standard to satisfy.  Judge Donnelly effective froze developments in the case pending a hearing on the case.

Continue reading

Is The Trump Executive Order On Refugees Constitutional?

donald_trump_president-elect_portrait_croppedLate Friday, President Donald Trump carried out one of his primary campaign promised this week with a suspension on the entry of all refugees to the United States and an order for “extreme vetting” as a condition for entry for some foreign citizens.  The order below specifically suspends entry of all refugees to the United States for 120 days, bars Syrian refugees indefinitely, and blocks entry into the United States for 90 days for citizens from seven countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.  The order had immediate impact on travelers who were denied entry to the United States and held at some airports like JFK.  Lawsuits have already been filed challenging the executive order but those challenges will face a considerable challenge in seeking an injunction by a federal court.

Continue reading

SUPREME COURT TURNS DOWN SISTER WIVES PETITION

240px-sister_wives_tv_series_logoSupreme CourtI regret to report that a few minutes ago, the United States Supreme Court denied the petition for review filed in the “Sister Wives” case. The case is Brown v. Buhman, No. 14-4117. As lead counsel for the Browns, I was joined on the petition by co-counsel Thomas Huff and Adam Alba.  My prior assistants, including my current assistant Seth Tate, and law students worked countless hours into many late nights to maintain this litigation.  We are greatly in their debt for their pro bono work on this case.  The attorneys and law students who worked on this case came from different religions and held different values.  Many disagreed morally with plural families. However, we all believed strongly that every family has a fundamental right to follow their own faiths so long as they did not harm others.  We all believed that the Browns were denied those rights when they are singled out for public condemnation and criminal investigation due entirely to their public support for plural marriage.  It is particularly difficult to prevail on the merits in establishing constitutional violations only to be reversed on standing issues on appeal. However, our victory in Salt Lake City will remain as a cautionary decision for legislators who wish to marginalize or sanction this community in the future.

I also wanted to extend my deepest gratitude and respect to the Brown family which allowed us to represent them in this historic action.  The Browns remained steadfast in their commitment to equal rights and have become the voice for not just plural families but many families which do not meet the strict definition of monogamy practiced by the majority of citizens.  The Browns have kept their show and this litigation largely separate to allow the courts to fully consider the merits of our case without interference or aggrandizement.  They continue to have faith in our country and our legal system despite this decision.  More importantly, they have faith in the right of all families to enjoy the protections of our Constitution and will continue to fight to make that promise a reality for plural families throughout the country.

Continue reading

Chinese Chief Justice: Courts Must Reject “Erroneous ” Western Concepts Of Independence And Support The Party

zhouqiangFor those brave reformers who have struggled to introduce the semblance of a true judiciary and the rule of law in China, the recent interview of Chief Justice Zhou Qiang must have been devastating. Zhou told lawyers and judges that they needed to avoid the temptation of the West in wanting an independent judiciary that follows the rule of law. With that, Zhou placed himself in history as a voice for injustice — a lawyer who committed his life to fighting against the law.

Continue reading