Cormac Ó hEadhra, The Late Debate, RTÉ Radio 1 (Jan. 31, 2017, 10:00 PM) (panelist), http://tinyurl.com/hfs62h2
Pat Kenny, The Pat Kenny Show, Newstalk.com 106–108fm (Feb. 1, 2017, 9:00 AM), http://tinyurl.com/gvvqdnb
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Cormac Ó hEadhra, The Late Debate, RTÉ Radio 1 (Jan. 31, 2017, 10:00 PM) (panelist), http://tinyurl.com/hfs62h2
Pat Kenny, The Pat Kenny Show, Newstalk.com 106–108fm (Feb. 1, 2017, 9:00 AM), http://tinyurl.com/gvvqdnb
Posted by David McFadden on 25th January 2017 (All posts by David McFadden)
Although President Trump is confident of his ability to deal with Vladimir Putin, he should carefully avoid emulating Putin. It would be far better for the president to look to the example of Putin’s predecessor, Mikhail Gorbachev, who transformed the Soviet Union. The first steps in the transformation were glasnost and perestroika. Glasnost, introduced in 1985, roughly means openness and was a step toward open discussion of political and social issues. Perestroika, introduced the following year, roughly means restructuring. Perestroika reduced central economic planning and allowed some private business ownership. These and later reforms resulted in a sharp increase in political freedom (from nil), which peaked in 1991. Sadly, the gains were short lived. Freedom steadily and drastically declined under Yeltsin and Putin for a complex of reasons debated at a recent symposium at the Cato Institute.
The United States as it emerges from the Obama Administration, while not as bad off as the Soviet Union as it emerged from communism, is badly in need of both glasnost and perestroika. They should be the twin priorities of the dawning Trump Administration.
The American left has come to despise freedom of speech as much as it has traditionally despised freedom of contract. It has followed the normal progression of leftist movements toward viewing the protection of its social objectives as more important than human rights. The earliest and still worst manifestation of this trend is on college campuses. Campus speech codes began to appear in the late 1980’s and spread rapidly. Within a few years sixty percent of colleges had them. According to a report of the Foundation for Individual Rights in Education, the percentage has declined over the last nine years to forty percent.
In 1998, Congress declared that it was the sense of Congress that “an institution of higher education should facilitate the free and open exchange of ideas” and that “students should not be intimidated, harassed, discouraged from speaking out, or discriminated against.” 20 U.S.C. § 1011a(a)(2)(C), (D). While the sponsors of this provision may have thought (or wanted to give the impression) that they were doing something, they did not do very much. The provision imposes no consequences on institutions that act contrary to the sense of Congress on this subject. It needs an amendment putting federal funds at stake, as anti-discrimination sections in title 20 do. Although speech codes are less common than they were, universities still do a lot to stifle “the free and open exchange of ideas.” In particular, they fail to prevent students from being intimidated, harassed, and discouraged from speaking out by other students, using increasingly violent methods.
Intolerance of dissent, especially on a fixed dogma like climate change, is not limited to college campuses. A few years ago, a cabal of environmentalists enlisted sympathetic state attorneys general to investigate climate change dissidents. With a vague objective of finding a RICO violation, a group of twenty attorneys general (“AGs United for Clean Power”) have subpoenaed forty years of records from ExxonMobil in a retaliatory effort to find evidence that it has had information on climate change that differs from what it has said publicly. The attorney general of the Virgin Islands subpoenaed documents from academic institutions, scientists, and the Competitive Enterprise Institute, a think tank. He withdrew that subpoena after getting some pushback from a congressional committee and a lawsuit from the Competitive Enterprise Institute.
A venerable weapon is available for the Justice Department to use against oppressive state universities and attorneys general, the Enforcement Act of 1870. The second section of the act, 18 U.S.C. § 242, makes it a crime for anyone under color of state law to deprive a person of rights, privileges, or immunities secured or protected by the Constitution. The first section of the act, 18 U.S.C. § 241, provides criminal penalties for conspiracy to injure, oppress, threaten, or intimidate any person in the enjoyment of any right secured to him by the Constitution. State action is not an element of the crime under § 241. Could not the Civil Rights Division of the Justice Department, under new leadership, go after, for example, a group of students who prevent Milo Yiannopoulos from speaking? That would be fun.
These tools may or may not work, but they should be tried. Assaults on civil liberties should no longer be costless.
In Federalist No. 72, Hamilton said, “To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert.” This has to be the best standard now, as everyone in the Trump Administration should understand.
Perestroika in the modern context ought to begin with reversing and undoing the Obama Administration’s impositions on the economy. Amity Shlaes, who, it should be recalled, wrote The Forgotten Man, observed that “smaller firms–the ones unready for the lawsuit, the investigation or the audit–bear the greater share of regulatory costs.” The regulatory burdens in need of repeal extend far beyond the Affordable Care Act and its progeny. Daniel Pérez of George Washington University’s Regulatory Studies Center has determined that Obama issued about 33% more “economically significant” regulations than either Bill Clinton or George W. Bush.
It will be a challenge for the political appointees in all the departments of the federal government to sift through the regulations and begin the process of liberating the economy from the worst of them. Fortunately, litigation has already left some of the Department of Labor’s output in ruins. The Persuader Rule, which I warned about in this blog before its adoption, and the Fiduciary Rule are controversial intrusions of the Labor Department into professional relationships. Both the Persuader Rule and an anti-business revision of overtime regulations have been enjoined by federal district courts in Texas. Five different lawsuits challenging the Fiduciary Rule are pending.
Withdrawing appeals of the rulings against the Persuader Rule and the overtime regulations is the simplest way to dispatch those rules. Other recently adopted regulations can by nullified by using the Congressional Review Act, 5 U.S.C. §§ 801-808. A joint resolution of disapproval has to be introduced within sixty days of Congress’s receipt of a report of rulemaking. The act provides an expedited procedure for a joint resolution and limits debate in the Senate. In June, President Obama vetoed a joint resolution disapproving the Fiduciary Rule.
For that rule, and so many others, the arduous notice and comment process of the Administrative Procedure Act will be the only method of repeal. The ultimate goal should be that the Code of Federal Regulations will bear no trace that the Obama Administration ever existed and, more generally, that this time glasnost and perestroika will have a more lasting imprint.
[Partial automated translation:]
Tillman also pointed out that many of the public service regulations were not valid for the purpose of preventing possible conflicts of interest for elected deputies [i.e., officials], judges and not least the presidents and vice-presidents. Tillman called [i.e., made reference to] the desired independence of the persons who hold such offices. If presidents had to submit their decisions to an ethics officer, in order to rule out possible conflicts of interest, the latter would gain a very powerful position, although he [i.e., the latter] was not legitimized by any choice [of the people]. Judges and elected representatives enjoy a trust advance.
This is worth reading in full. Recent US reporting on the Constitution’s Foreign Emoluments Clause, like much recent US reporting on any topic that can be associated with Trump, is tendentious in the extreme.
See also: Tillman on Trump on RTE (Irish national television) (Seth appears in the video beginning around 5:50, debating a Democratic Party representative. The clip runs about 9 minutes.)
When you launch a new idea, its very newness puts it outside of the mainstream. Back in 2007, in an academic article, recess appointments were one of the issues du jour. I wrote that if a President made a recess appointment, a determined Senate could kill the appointment by ending its current session and immediately starting a new one (or by doing so twice, in the case of an intra-session recess appointment). See Seth Barrett Tillman, Senate Termination of Presidential Recess Appointments, 101 Nw. U. L. Rev. Colloquy 82 (2007), https://ssrn.com/abstract=956164 (the first part of a four-part Tillman-Kalt exchange).
I admit that the idea was a bit novel—but it does follow from the text of the Constitution’s Recess Appointments Clause. One student note called my “innovation … at once both plausible and absurd ….” David Frisof, Note, Plausible Absurdities and Practical Formalities: The Recess Appointments Clause in Theory and Practice, 112 Mich. L. Rev. 627, 643 (2014).
Two years later, in 2016, what was absurd is now standard fare.
All that the [Republican majority] Senate would need to do [to terminate a purported recess appointment by President Obama of Judge Garland to the Supreme Court] is end its next session by adjourning sine die and Garland’s term would end. This is because, under the Constitution’s Recess Appointments Clause, such appointments terminate at the end of the next Senate session. Adjourning sine die would require the cooperation of the House and a president’s signature, but that would be no obstacle come Jan. 20. In other words, Congress could terminate any recess appointment made by Obama in less than three weeks.
Kilgore argues that the only route the Republicans would have to remove these recess appointees* would be through slow moving lawsuits which would take months, all the while leaving these appointees in place during the first year of Trump’s new administration. See Kilgore (“TR made 193 recess appointments at the beginning of 1903, and while the legality of the action has been questioned, it has never been clearly overturned. If Obama were to follow this procedure, it would take extensive litigation to reverse it, and it might stand after all.”). Kilgore is entirely wrong. No lawsuits would be needed—just two swings of the Majority Leader’s gavel. Just two swings and the recess appointees would be out.**
Seth points out differences in the ways in which different legal scholars characterize arguments that challenge conventional legal wisdom. Worth reading.
Still the Constitution does not always demand that we and our government act wisely. And that is the situation here. The Foreign Gifts Clause provides that “no person holding any office of profit or trust under them (i.e., the United States) shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”
Does the Foreign Gifts Clause and its office under the United States language apply to the presidency? There are three good reasons to believe that it does not.
Worth reading in full.
Making a nomination to the Supreme Court to fill the Scalia seat is easy, and it will permit Trump to control the news cycle. Trump will be tempted to make this his first substantial order of business, but it is a temptation to which the future president ought not succumb, even if he risks losing some political popularity while delaying the eventual nomination.
If it serves the cause it can’t be illegal.
In The Ship Money Case [R v Hampden 3 State Trials 825 (1637), superseded by Act Declaring the Illegality of Ship-Money, Aug. 7, 1641, 17 Charles I, chapter 14], a bare majority of the judges of the Court of Exchequer Chamber voted for the Crown and against Hampden, the tax payer, who objected to being forced to pay purported taxes absent parliamentary consent.
100 years from now which will be recognized as the more odious decision? Hampden or Miller? Hampden merely opposed Parliament; Miller opposed a national popular referendum.
Read the whole, brief, thing.
(I’m guessing Hampden wasn’t one of the foreign laws our own Justice Ginsburg had in mind.)
Seth predicts reversal on appeal. Read his argument for yourself.
Here’s Project Vote’s NY voter registration guide. The footnotes have been linked to the underlying laws and the federal court case.
Here is an excerpt
A. Are there restrictions on the voter registration drive offering something of value to a person in
exchange for completing a voter registration application?
It is a felony under New York law to pay, lend or contribute, or offer or promise to pay, lend or contribute any money or other valuable consideration to or for any voter, or to or for any other person, to induce such voter or other person to place or cause to be placed or refrain from placing or causing to be placed
his name upon a registration poll record.14
Federal law states that whoever pays or offers to pay or accepts payment either for registration to vote or for voting shall be fined not more than $10,000 or imprisoned not more than five years. 15 At least one federal appellate court has interpreted payment as intended to include forms of pecuniary value offered or given directly to an individual voter, and indicated the value should be based on an assessment of the monetary worth of an item from the perspective of the voter receiving the item. That case held that food vouchers could be payment.16
In Madison Square Garden, Madonna just offered oral sex to anybody who votes for Hillary Clinton.
The NY law violation is a misdemeanor, fine set between $100-$500 and/or imprisonment not less than one year.
The Federal law violation is a felony, fine set at not more than $10,000 and/or imprisonment for up to five years.
I believe this is a common sense proposition. You should never define a military force without it having a purpose.
You would think that there would be nobody on the other side of this question. Who would do such a crazy thing as to define a military force, but just have them milling around without a purpose or a mission? It’s ridiculous. Or is it?
(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
What is the purpose of the military force called the unorganized militia? What is their mission? What is its proper scope of activity? I think that even people who generally support the 2nd amendment do not have a consensus and certainly have not thought much about it.
As an aside, it’s straight up sexism for female citizens to be included in only one of these two forces. A smart Republican would introduce legislation to fix that.
Don’t you think the Democratic National Committee, Vice President Biden, and Senator Tim Kaine, the Democratic Party’s candidate for VP, each already have on file a full-length memorandum on these questions? Maybe the mainstream media could “obtain” copies for the rest of us?
Would not this make a suitable—if not outstanding—law journal mini-symposium issue: “The Hillary Clinton Candidacy: The Legal Issues”? Any takers? An impromptu mini-symposium could be organized, held, and published on line prior to the November election, particularly where all articles are kept to a maximum of 7 pages (footnotes included).
The “natural born citizen” issue generated several timely full-length articles. Surely there is time and means to do this too. The on line supplements to the primary student-edited print journals are particularly well suited for this task. Any takers?
Trump is the first presidential candidate of my lifetime who has been regularly criticized for making public statements conforming to rule of law principles. Part of the confusion in the minds of his many critics arises from simple confirmation bias. But another part comes from an inability of his critics to plainly discuss what they mean by the rule of law. No doubt much of it is simply disagreement with the man’s over-the-top style and his political orientation—but normal disagreement about political principles, absent clear on point evidence, ought not lead to claims that one’s opponent is a threat to the rule of law.
So what is the “rule of law”? Unfortunately, there is no simple answer to that query. I well remember my graduation from law school. A thoughtful fellow behind me said, as we waited on line to receive our degrees: “Seth, after three years of law school, as far as I can tell, the rule of law is what a prosecutor says is at risk if he loses a criminal case heard by a jury.” That answer of convenience will not do. Other people fill in the rule of law with all good and noble principles: the rule of law is human rights, separation of powers, democracy, etc. This approach is not helpful either, for even if the virtues of these other principles were contestable, their content and optimal scope remains deeply contested.
Without attempting to fully define the rule of law, I will put forward some minimal necessary (but not sufficient) conditions associated with the “rule of law”. A person’s conduct is inconsistent with the rule of law, if he knowingly disobeys established law without seeking a change in the law from the legislature (including referenda where permitted by law) or validation of his specific conduct from the courts. On the other hand, a person’s conduct is consistent with the rule of law, if he obeys the judicial orders of lawfully constituted courts, and if he obeys the rules associated with the conduct of litigation in those courts.*
Immigration is defined in law in a pretty straightforward manner. If you cross US borders, you are defined as an immigrant unless you fit into one of twenty two different non-immigrant categories defined in 8USC§1101(a)(15). Each letter subsection of that section corresponds to the more familiar letter codes for non-immigrant visas. Most people are not familiar with all of them but the definitions aren’t particularly complex or confusing. If you’re seeking to cross the border as an immigrant, there are several sections under 8USC Subchapter II that apply. If you are a citizen, you’ve got to have a passport to leave or return.
Neither side in the immigration debate seems to want to lay out, specifically, what sections of the law they wish to change and how exactly they want to change it. Are there extremist imams getting R visas and endangering the safety of americans (mostly muslims)? That’s not the way we talk about immigration. Why,exactly, is the secretary of Labor involved in the issuance of visas?
We’d be a lot better off if discussion of the law had a lot more law in it.
As to the Article XII argument …. In a peer reviewed journal article, Professor Somin wrote: “[T]he Privileges and Immunities Clause requires states to treat migrants from other states on par with their own citizens, thereby facilitating interstate mobility.” Somin cites U.S. Const. Art. IV, § 4. See Ilya Somin, Book Review, 28 Const. Comment. 303, 305 & n.5 (2012) (reviewing Michael Greve, The Upside-Down Constitution (2012)). But that’s not right: Article IV, Section 4 is the Guarantee Clause, not the Privileges and Immunities Clause. Now just to be clear: my point isn’t that both Trump and Somin are equally dopes. Rather my point is that anyone can miscite the Constitution, and we should be loathe to call someone “profoundly ignorant” just because they cite to the wrong article or the wrong clause. Anyone can make a mistake.
Jonathan adds: It’s not just academia. The media, and in my (and probably your) experience Trump opponents in private conversation, apply different and much harsher standards to Trump than they do to Hillary. One of the current memes is that Trump isn’t stable enough to have his finger on the nuclear button. Yet Hillary, whose gross negligence made her and our secrets available to hostile foreign powers, and who appears literally to have sold out her country in exchange for donations to the Clinton Foundation, gets a pass.
Free speech…free expression generally…is under attack in America and throughout the Western world to a degree not seen in a long time. I think there are seven specific phenomena, incarnated in seven (partially-overlapping) categories of people, which are largely driving this attack, to wit:
The Thugs. As I pointed out in my recent post The United States of Weimar?, illegal actions against political opponents–ranging from theft of newspapers to direct assault and battery–have in recent decades become increasingly common on university campuses, and now are well on track to being normalized as aspects of national political campaigns.
The Assassins. These individuals go beyond the level of violence practiced by the Thugs, and make credible death threats…which they attempt to carry out…against those whose actions or believe they view as unacceptable. The majority of threats and attacks falling in this category have certainly been the doing of radical Muslims; however, some of the more extreme ‘environmentalist’ and ‘animal rights’ groups have also demonstrated Assassin tendencies. At present, however, it is those Assassins who are radical Muslims who have been most successful in inhibiting free expression. Four years in hiding for an American cartoonist.
The Wimps. It seems that among the younger generations in America, there are a disproportionate number of people whose ‘self-esteem’ has been raised to such lofty but brittle levels that they cannot stand any challenge to their belief systems. Hence they are eager to sacrifice their own freedom of speech, as well as that of others, on the altar of ‘safety’ from disturbing words and thoughts.
The Bureaucrats. Bureaucrats, especially in the universities but also increasingly in the private sector, are eager to provide the altars for the sacrifice of free speech, with Star Chamber proceedings and various forms of witch-burnings.
The Regulatory State. The vast expansion of Federal regulatory activities and authority enables a wide range of adverse actions to be taken against individuals without the checks and balances of normal judicial proceedings. Witness, for example, the IRS persecution of conservative-leaning organizations (possibly extended to pro-Israel organizations as well.) And the Bureaucrats in nominally-independent organizations are really often acting as agents and front men for the Regulatory State. (Consider the 2011 ‘Dear Colleague’ letter sent from the Department of Education to colleges and universities, regarding the handling of sexual assault allegations–which has had, the linked article argues, serious negative impact on free speech and due process.)
The Theoreticians. Various academics have developed the concept of ‘oppressive speech’ and have developed models which attempt to break down the distinction between speech and action. Since everyone agrees that actions must be regulated to some degree, this tends to pave the way for tightened regulation of speech. (I think the conflation of speech with action is particularly sellable to those who in their professional lives are Word People and/or Image People. To a farmer or a machinist or even an electrical engineer, the distinction between speech and action is pretty crisp. To a lawyer or an advertising person or to a professor (outside the hard sciences), maybe not so much. And the percentage of Word People and Image People in the overall population has grown greatly.)
The Fragility Feminists. Actually, the word ‘Feminists’ should probably be in quotes, because the argument these people are making is in many ways the direct opposite of that made by the original feminists. There is a significant movement, again especially on college campuses, asserting that women are such fragile flowers that they must be endlessly protected from words that might upset them. See the controversy over the name of the athletic center at the Colorado School of Mines…here I think we have the Bureaucrats and the Fragility Feminists making common cause, as they so often do. For another (and particularly bizarre) case, read about professor Laura Kipnis, whose essay decrying ‘sexual paranoia on campus’ resulted in a Title IX inquisition against her. In a particularly disturbing note, when Kipnis brought a ‘support person’ to her hearing, a Title IX complaint was filed against that person.
In 1995, the Amars (as have others before and since) argued that James Madison opposed legislative officer succession on constitutional grounds. This is a legal and historical meme or myth. Madison never stated that he thought that legislative officer succession was unconstitutional, at least as far as our historical records show. The original source involved indicates only that Congressman Madison was relaying news from the capital to Pendleton in Virginia—in private correspondence. Madison merely transmitted to Pendleton several arguments touching upon the constitutionality of the 1792 Act which had been made by others on the House floor during debate on the 1792 Act. There is no reason to believe that Madison agreed with any one or more of the particular arguments he transmitted to Pendleton.
There are those today who wish to impugn the constitutional bona fidés of the modern 1947 Act, which like its 1792 predecessor, provides for legislative officer succession. There are some policy grounds for objecting to the 1947 Act—I do not suggest that all the policy arguments go in one direction. But I do state that rooting a modern constitutional objection in Madison’s voice or that of the Framers as a group is entirely ahistorical. In these circumstances, one cannot appeal the judgement of the Second Congress (as a whole) to the Framers (as a group), and if that appeal—for whatever reason—has, in the past, convinced some unwary authors and consumers of prior legal scholarship, it is only because some originalists cannot count.
The story is now an old one.
In Western societies, there is now a tremendous disconnect between the traditional political and business elites and the citizenry. The populations of the West now find themselves ruled by a transnational elite who see tradition, loyalty, and patriotism as primitive, and whose promoters within academia, nonprofits, government bodies, labour unions, NGOs, and the media teach that nations, citizenship, borders, and law defined by elected parliaments are irksome problems to be overcome.
I cannot say exactly when I saw these symptoms first arise in the United States. But more than a decade ago, I was clerking in a federal courthouse. It was a good gig. I was glad to have it. The public—litigants, lawyers, jurors, witnesses,** and visitors—went through the front entrance with a security check. Court officials and employees (including judicial law clerks) went through a back entrance, also, with a security check. One day, early in my tenure, I was going through the security check, and an older man went around me and bypassed screening. The security officer waved him through. After I went through security, I asked the security officer:
If the #FamilyResearchCouncil wanted to win a SC case, then change name to Donald #Trump Research Council. #Ginsburg would be conflicted out
The federal Code of Judicial Conduct applies to all Article III judges—except members of the Supreme Court of the United States. Is that because Supreme Court justices do not need ethics? No. Is it because they are better human beings, citizens, and jurists than their lower court colleagues? No.
Consider recusal when judicial bias is asserted…