Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.
Here is the column:
Continue reading “Why Has Trump Not Been Charged With Criminal Incitement?”
With the nomination of California Attorney General Xavier Becerra for Secretary of the Department of Health and Human Services, the list of presumed frontrunners for Attorney General is narrowing. One name remains prominently at top: former Associate Attorney General Sally Yates. Yates’ appointment would be one of the most controversial for Biden and would likely lead to an intense confirmation fight over her standoff with President Donald Trump at the start of his Administration as well as her role in the Russian investigation. However, in a strange way, Yates’ controversy could be exactly what both President Trump and President-Elect Joe Biden need if they are looking a basis for a self-pardon.
Continue reading “Is Biden About To Help Make The Case For A Self-Pardon?”
We have been discussing calls to pack the Supreme Court and President-Elect Joe Biden pledging to assemble a commission of experts to fundamentally change the Supreme Court after it added another conservative justice to the majority. Boston College Law Professor Kent Greenfield is already putting forward one such proposal: just replace the Supreme Court on constitutional questions. Greenfield calls for the establishment of a constitutional court that would strip the Supreme Court of the ability to rule on such question because “the Supreme Court needs a breather.” That “breath” however only became a perceived need for many academics when the conservative conservative on the Court grew to 6-3. Continue reading ““The Supreme Court Needs A Breather”: Law Professor Calls For Replacement of Supreme Court With A “Specialized Court” For Constitutional Questions”
The long-awaited argument in Trump v. New York revealed a Court that seemed eager for an off-ramp rather than a merits ruling in the census dispute. Justices seemed skeptical of the Trump Administration’s interpretation of “persons” to exclude undocumented individuals while they also expressed skepticism that the Court needed to intervene at this stage. Notably, one of those expressing skepticism over the exclusionary interpretation was Associate Justice Amy Coney Barrett. I have previously stated that I believe the Administration’s interpretation is at odds with the long-standing meaning of “persons” under the Constitution as including all individuals residing in the United States regardless of their status. Some of the justices balked at micromanaging communications between a president and a federal agency in prohibiting certain information from being transmitted. One thing however stood out in the argument: the use of the term “illegal alien” by various justices, including Justice Sonia Sotomayor. The term has been denounced in some states and various universities as a “microaggression.” Continue reading “The Census Case: Did The Court Reject Micromanagement But Embrace Microaggression?”
The U.S. Supreme Court delivered a surprising blow to pandemic restrictions on house of worship in a late night order barring the enforcement of New York Gov. Andrew Cuomo’s Oct. 6 “Cluster Initiative” limiting attendance at religious services. Five justices (including newly installed Justice Amy Coney Barrett) blocked the limits while allowing the United States Court of Appeals for the Second Circuit to hear the merits in the case. Notably, Chief Justice John Roberts voted with the liberal justices but only because he felt that the order was not needed since the plaintiffs were not currently subject to the most severe limits. Continue reading “The Supreme Court Bars Cuomo’s Pandemic Limits On Houses of Worship”
The Third Circuit has issued an opinion that has received little attention over the right to bear arms, but it should. The decision in Folajtar v. The Attorney General of the United States may be one of the most perfectly tailored case for major Supreme Court decision. Indeed, the only thing lacking from the 2-1 decision is a mailing label directly to Justice Amy Coney Barrett. In ruling that a non-violent tax conviction can result in the denial of gun ownership, the panel presents a clean case to further define the contours of the individual rights recognized in District of Columbia v. Heller, 554 U.S. 570 (2008). It is also an opportunity that any new justice would relish: after being the lone dissenter on a similar case, Barrett could be the critical vote (and even the author) on the opinion changing the area in line with her prior position.
Continue reading “Barrett Reloaded? A New Third Circuit Decision Could Prove The Perfect Base For A Second Amendment Blowout”
Justice Sam Alito is making headlines after his speech last night as the keynote at this year’s all-virtual Federalist Society National Lawyers Convention. Alito slammed pandemic measures and attacks on free speech in his remarks to the Convention, including the crackdown on “unfashionable views” in our society. I happen to agree with some of his points, but I have great reservations over a justice speaking on issues that are likely to come before him on the Court. Indeed, I have long been a critic of the Supreme Court justices engaging in public appearances where they hold forth on contemporary issues. I have been particularly critical of the late Justice Antonin Scalia and Justice Ruth Bader Ginsburg who clearly relished appearances before ideologically supportive groups. Continue reading ““Unfashionable Views”: Justice Alito Speaks Out Against Pandemic Restrictions, Contraception Laws, and Other Controversies”
Yesterday’s oral argument before the Supreme Court was most notable in the collapsing of the false narrative used by many Democratic senators and media figures in the Barrett confirmation that the Affordable Care Act was close to being overturned in the case of California v. Texas. That conspiracy theory (of which suggested that the rush to confirm Barrett was to supply the final needed vote) was shattered when both Chief Justice John Roberts and Associate Justice Brett Kavanaugh repeated their position in favor of severance — a position that would guarantee the survival of the ACA. What was equally notable however was the slightly pathetic scene of Roberts effectively acknowledging that he might have been a chump in accepting the arguments on the individual mandate eight years ago in National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012). For years, Roberts has been on a collision course with himself — and yesterday he had a one-person pileup.
Continue reading “After Taking The Bait, The Chief Justice Prepares To Switch On The ACA”
During the Barrett confirmation hearing, we discussed the narrative of the Democrats and the media that the Affordable Care Act was dangling in the balance on the Supreme Court. With huge pictures of beneficiaries of the ACA displayed around the room, some Democratic senators actually said that Barrett was part of a conspiracy to rush her to the Court to kill the ACA. As I repeatedly said, the narrative was entirely disconnected from any legal reality since at least two conservative justices — Chief Justice John Roberts and Brett Kavanaugh — were likely to vote for severability and thus preserve the Act. They previously voted on similar cases. Today’s oral argument in It’s Obamacare day at the Supreme Court. In California v. Texas again exposed the unfair and unfounded narrative against Justice Barrett with both Roberts and Kavanaugh expressly reaffirming their positions on the severability. Will any of these senators or analysts now acknowledge that the hype in the hyperbole from the hearing?
Continue reading “A Conspiracy Collapses In The Court: Justices Appear To Confirm A Majority In Favor Of Preserving The ACA”