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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Philadelphia Father Murdered After Trying To Remove Baby From Car During Car Jacking

 

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Protecting Life: Michigan Mother Dies After Refusing Chemotherapy So That Her Daughter Could Live

download-2This week, many people said goodbye to a woman who they did not know personally, but someone who became an inspiration for many of us.  Carrie DeKlyen was given a horrific choice recently: take chemotherapy to prolong her life or accept her own death to allow her unborn daughter to live.  She chose the life . . . of her daughter.  She died two days after giving birth.  With so many people who seem to live on hate and anger these days, there remain those who offer the ultimate proof of the grace and sacrifice that truly defines humanity.  Carrie was one of those rare individuals.

The baby’s name will be Life Lynn DeKlyen.

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California Man Twice Throws Dog Into Ravine . . . Dog Survives While Man Goes To Jail

download-1Police and the public have searched for a man shown on a video throwing a dog not once but twice into a ravine.  The man was eventually identified as Andres Spancky Raya, 21, and he was charged with animal cruelty.  Fortunately, the pit bull — known as Mary Jane — survived with injuries but was eventually adopted by a family.  As for Raya, he is heading to prison for five years.

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“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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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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Minnesota Men Charged in the Kidnapping and Sexual Assault Of Teen Who Escaped By Swimming Across a Lake

1504803412904These three men are accused of horrific crimes committed against a teenage girl in Alexandria, Virginia.  Police say that Thomas Barker, 32, Steven Powers, 20, and Joshua Holby, 31, kidnapped and sexually assaulted the girl over the course of weeks.  The girl only escaped by swimming across a lake.

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Duterte’s Son and Son-In-Law Implicated in Massive Drug Conspiracy

rodrigo_duterte_and_laotian_president_bounnhang_vorachith_croppedPhilippine President Rodrigo Duterte has become an international pariah for his orders to police to murder drug suspects and his bragging about his own killings.  Thousands of suspected drug dealers have been killed under Duterte.  Now however he might want to reconsider his extra-judicial kill order.  His son, Paolo, and his son-in-law have been implicated in a massive drug conspiracy.  Paulo appeared before a Senate hearing to deny the allegations but then (on the advice of his father) refused to answer the questions of the Commission.

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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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Edinburgh Law Student Put Under Investigation For Hate Speech After Taunting ISIS Fighters

43EABBC300000578-4852548-image-m-62_1504573380859download-3There is a new free speech controversy on a university campus this week.  Robbie Travers, a 21-year-old third-year law student at the  University of Edinburgh, is under investigation for a “hate crime” after mocking ISIS fighters targeted in a massive air strike by the United States.  Esme Allman, a second-year history student, accused Travers of “blatant Islamophobia” and creating an unsafe environment for students through his mocking of the terrorists being helped to paradise.

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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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Man To Be Criminally Charged After Jokingly Says “Allahu Akbar” in Boarding Ryanair Flight

280px-Ryanair.svgI have previously written about the myth created by TSA that jokes at an airport security point about bombs constitute a crime.  In an odd twist, nine men have been thrown off an early-morning Ryanair flight to Madrid after one of them shouted “Allahu Akbar” “as a joke.”  However, the phrase simply means “God is Great.” Nevertheless, the men appear to have thought it was funny to use the phrase associated with terrorist attacks.

 

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German Candidate Suggests Dropping Arabic Numbers To Combat Muslim Interference.

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In the German town of Völklingen, far-right mayoral candidate Otfried Best has promised to rid his town of one of the most insidious influences of Islam: Arabic numbering. During a debate, an opposing candidate from the satirical Die Partei party asked about the ubiquitous presence of Arabic numbers and Best pledged to change the numeric infiltration of Arabs.

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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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Res ipsa loquitur – The thing itself speaks