Category: Politics

Constitutional Law, Courts, International, Politics, Society

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.

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Congress, Politics, Society

Debtor Nation: U.S. Hits $20 Trillion Debt For First Time As Citizens Approach $1 Trillion in Credit Card Debt

6-1-1As politicians celebrated the lifting of the debt ceiling in Washington, the United States hit the $20 trillion debt level for the first time in its history.  At the same time, citizens are reaching their own personal milestone with $1 trillion in credit card debt alone.  It is not hard to see this will end up given the trending lines of debts as we continue to spend wildly both publicly and personally.

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Columns, Constitutional Law, Courts, Politics, Society

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:

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Bizarre, Criminal law, Media, Politics, Society

“It Was Just A Prank Bro”: Shkreli Faces Bail Revocation Over Hair Pulling Hillary Clinton Post

Hillary_Clinton_Testimony_to_House_Select_Committee_on_BenghaziHairposterIt takes a great deal for me to feel sympathy of Martin Shkreli, but the recent filing by the Justice Department has me wondering if he is not being treated unfairly due to this infamous reputation.  The DOJ has asked for Shkreli’s bail to be revoked because he offered to pay anyone $5000 for a hair of Hillary Clinton.  It was a stupid posting that Shkreli later said was “satire” but the DOJ insists that it makes him a danger to society.  I do not agree.  What it does (as with so much of the statements and conduct of Shkreli) is undermine his case before the Court. Indeed, in addressing any fine, the court could take that view that (if Shkreli views a hair worth $5000 of his money) the sky is the limit for a truly impactful fine.

While Shkreli gained infamy as a pharmaceutical executive due to his obscene price increase for the drug Daraprim, was actually convicted in August of three of eight fraud counts related to hedge funds he ran.  He is free on a $5 million bail.

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Columns, Congress, Constitutional Law, Politics, Society

Executive Authority: How Presidential Statements Could Undermine Both Sides In The Litigation Over DACA

President_Barack_Obamadonald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the role that statements from both President Barack Obama and Donald Trump could feature greatly in the unfolding litigation over the rescinding of the DACA order.  Ironically, it will be the opposing sides relying on the respective statements from these presidents.

Here is the column.

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Columns, Congress, Constitutional Law, Courts, Criminal law, Media, Politics

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.

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Congress, Military, Politics, Society

Rep. Luis Gutierrez Calls Gen. Kelly A “Disgrace To His Uniform” For Allowing DACA Decision

440px-Luis_Gutiérrez_official_photo440px-John_F._Kelly,_2012The incendiary and uncivil politics that has gripped the nation has been a long focus on this blog.  I am honestly worried about how the insulting and personal attacks from both sides will change political dialogue in this country for a generation.  These include some past comments made by President Trump as well as his political opponents.  As the father of four children, I emphasize the need to maintain civility, but that lesson is undermined every time the kids watch the news. The latest such incident involves Rep. Luis Gutierrez (D-IL) who made troubling statements about White House Chief of Staff John Kelly, including calling the highly decorated veteran a “disgrace to the uniform.”  The reason was that Kelly somehow did not prevent President Donald Trump from rescinding DACA. This age of rage appears to have given people license to vent their most insulting and unfair criticisms at one another. We can no longer have a simple disagreement over issues like immigration.  People have to be labeled “terrorists”  or white supremacists if they think DACA should be decided by Congress or oppose amnesty programs. Calling this man (who lost a son in the military service) a “disgrace to his uniform” is a sad moment for our country.

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Academia, Constitutional Law, Free Speech, Politics, Society

Michigan State University Sued After Refusing Space On Campus For Controversial Speaker

download-2Michigan State University is being sued after it refused to rent space on campus for white nationalist Richard Spencer to speak later this month. The rental was requested by Georgia State University student Cameron Padgett for an event on-campus at the Kellogg Hotel & Conference Center.

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Columns, Constitutional Law, Criminal law, Justice, Politics, Society

Exoneration First, Investigation Later: Comey Under Fire Over Draft Clearing Clinton Written Before Interviewing Key Witnesses

440px-Comey-FBI-PortraitBelow is my column in the Hill newspaper on the recent news about Comey drafting a statement declining to charge Hillary Clinton or her staff before key witnesses were interviewed or evidence reviewed.  The question is why Comey pursued the investigation if he felt comfortable months in advance in drafting the statement.  I do not share the President’s view that this draft shows a “rigged process,”  though some FBI agents have objected to the drafting of the statement in this context.  I take Comey at his word that he did not make up his mind until after all of the evidence was reviewed.  However, the draft does show a markedly different approach to the investigation of the Clinton emails and the Special Counsel investigation of the Trump Administration.

Here is the column:

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Politics, Society

Feinstein Faces Furious Opposition . . . After Calling For Patience Over Impeachment

225px-dianne_feinstein_official_senate_photodonald_trump_president-elect_portrait_croppedThere are any number of things that were expected to be raised by critics against the reelection of the senior California senator, Dianne Feinstein.   There is her support for the death penalty or expansions of surveillance programs or her presumed knowledge of the torture program or her husband’s financial dealings.  However, the thing that is galvanizing opposition is Feinstein’s statement this week that she would not back impeachment of President Donald Trump and her suggestion that citizens might have to be patient.  That has caused an outcry that now threatens her consideration of running for a new term.  In the age of rage, even saying that you would not support a clearly unjustified impeachment effort makes you not only someone outside of the resistance but a reactionary.

 

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Academia, Columns, Criminal law, Free Speech, Politics, Society

“End Their Politics”: Antifa and the Rejection of Liberal Democratic Values

contentBelow is my column in the Hill newspaper on the Antifa movement and its implications for free speech on our college and university campuses.  Yesterday, I shared a videotape from one such protest at GW near the law school a few months ago.  My concern is with those faculty members who legitimize the anti-speech foundation for this movement. Yet, the violence at Berkeley has exposed this movement for what it is.  This week Nancy Pelosi did criticize Antifa but then later qualified that criticism.  She said:

“Look, people are out there heiling Hitler and then you have a group that is antifa — anti-fascist; they’ve been there forever — some people may have infiltrated them. We’ll see. But that is not an equivalence, in my view.”

I fail to see why there is a need to draw distinctions.  Antifa is premised on the view that some speech is unworthy to be protected and that preventing people from hearing unworthy views is an act of “community self-defense.”  As the column discusses, the distinction between Antifa and its opposing fascists is rather difficult to discern in terms of the effort to intimidate or assault those with opposing views.  The threat of Antifa is summed up by the description of one of its most influential academic voices.  Dartmouth Professor Mark Bray says that the movement has no interest in co-existence with opposing views and seeks not simply to oppose them but to “end their politics.”

Here is the column: Continue reading ““End Their Politics”: Antifa and the Rejection of Liberal Democratic Values” →

Columns, Constitutional Law, Criminal law, Politics, Society

The Checkered History of Presidential Pardons From “Lupo The Wolf” To “Big George” Caldwell to “Sheriff Joe”

donald_trump_president-elect_portrait_croppedBelow is my column in USA Today on the Arpaio pardon and its historical context.  While I have been critical of the Arpaio pardon, the history of presidential pardons is quite checkered.  Moreover, I agree with critics that the Justice Department made a major mistake in the timing of its prosecution of Arpaio shortly before the election.  That does not change the fact that Arpaio was in flagrant violation of a court order and warranted the contempt conviction.  I also disagree with New Jersey Christ Christie in aspects of the following statement: 

“I think the pardon power is an extraordinary power for any executive, both the governor, and I’ve used it, and the president. My understanding has always been that one of the prerequisites you look for in giving a pardon is contrition for what you were convicted of. I didn’t see that in Sheriff Arpaio. And so, to me, one of the things that you need an acknowledgment of is an acknowledgment of guilt, first off, is required for pardon.”

While Christie can demand that from individuals as governor, it is certainly not a mandatory requirement for a presidential pardon. Contrition is a common element in presidential pardons in the review of petitions but it is not a threshold requirement.  While a smaller subset of pardons, some pardon beneficiaries, like Richard Nixon, maintain that they were not guilty of any crime.  Indeed, pardons can be used in cases where a president believes that someone was wrongly charged or convicted — as is the case with Trump’s rationale for the Arpaio pardon.  Of course, in such case presidents normally give the courts an opportunity to review the conviction on appeal before executing a pardon.   This is not one of those cases.  Arpaio might have good-faith arguments in favor of his immigration arrests, but those arguments do not give him license to ignore a court order — which he did for 17 months.

Here is the column:

 

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Columns, Free Speech, Media, Politics

The Public Safety Pretext: Liberal Leaders and Writers Seek To Protect The Public From Free Speech

220px-nancy_pelosiBelow is my column in the Hill Newspaper on the call of House Minority Leader Nancy Pelosi to cancel the permit of a conservative group seeking to hold a “Patriot Prayer” event in San Francisco.  As discussed in the posting today on Berkeley Mayor Jesse Arreguin’s call to end a Free Speech event, leaders are latching on to a new way to limit speech. While professing fealty to free speech, Pelosi, Arraguin, and others seek to deny it on the basis for how critics might react.  The West has grown weary of Free Speech and these are the voices calling for greater restraints and regulation of speech. It is the new anti-speech pretext: leaders seek to protect the public from free speech in the name of public safety.

Here is the column:

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Constitutional Law, Free Speech, Politics

Berkeley Mayor Objects To Those Trying To Block Free Speech Events So He Asks For Free Speech Week To Be Cancelled

JesseYesterday, I posted a column on the violence of Antifa protesters and their war on free speech.  Judging from the actions of Berkeley Mayor Jesse Arreguin they appear to be succeeding.  After Antifa and counterprotesters chased and beat people trying to attend the event this week, Arreguin immediately came up with a solution to their denial of free speech: cancel the free speech event.  That is like solving bank robbery by asking banks to empty their vaults.

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Columns, Congress, Constitutional Law, Criminal law, Politics, Society

The No Confidence Impeachment: Trump Opponents Seek Removal Without A High Crime Or Misdemeanor

 

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Res ipsa loquitur – The thing itself speaks