Where are the law journal articles and op-ed’s on the potential legal consequences of Clinton’s legal jeopardy? Where? HJLPP? WSJ?
Archive for the 'Law' Category
Posted by Michael Hiteshew on 19th April 2016 (All posts by Michael Hiteshew)
Can the president decree that a US law be ignored or even reversed if it advances his party’s political agenda? If so, is that not legislating from the Oval Office?
The US Constitution, Article I, Section I: All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
If the president can grant deportation relief to 5 million immigrants here illegally – for whatever reason – what law cannot be reversed? What law has any meaning?
And what does it say about the current ideological makeup of the court that half the justices think this is a valid and legal course of action for a president? And assuming that Hillary is our next president and will appoint at least one far left justice, what is the likelihood the Constitution means anything at all anymore? Are we moving into the endgame, the first tentative steps of dictatorship, fully blessed and sanctified by the US Supreme Court?
“Tillman Responding to Washington Post Op-Ed: Gregory L. Diskant–Obama can appoint Merrick Garland to the Supreme Court if the Senate does nothing”
Finally, the same 1869 federal statute which mandated a 9-member Supreme Court has also established a quorum of only 6 members. Thus, there is no rush to fill any Supreme Court vacancy, in spite of the fact that some future cases might end up tied 4-to-4. Given that Congress has set a quorum of 6 members, it stands to reason that Congress expected some Justices: to recuse themselves in specific cases; to take temporary leave to fulfil other government duties; to recuperate for a reasonable time if ill; and to die. The Court, as a functioning institution, goes on, at least, as long as it has 6 members, and surely Congress must have understood that a 6 or 8 member Court can deadlock. Indeed, historically, there have been lengthy periods of time where the Court, by statute, was expressly composed of an even number of members. For example, when Chief Justice John Marshall was appointed to the Supreme Court, its size was set to 6 members by statute. To the extent worries about deadlock are a consideration, it is a political consideration for the American People, not a legal consideration, constitutional or otherwise.
Interesting and worth a look.
Posted in Law | Comments Off on “A Letter from the Grave: Scalia to Tillman, September 13, 2010”
A biting critique of recent public arguments by liberal academics, by Seth Barrett Tillman:
There is a final possibility. Apparently, some non-originalists believe they are part of a victimized, long-suffering, powerless, discrete, insular intellectual minority. As Professor Jack Balkin, a prominent commentator (but not one of the Alliance-for-Justice-350), wrote:
Accepting that opposition as the proper frame for debate just locks liberals into a clever rhetorical strategy created by movement conservatives in the 1980s, who wanted to put themselves on the side of the American constitutional tradition, and liberals on the outside looking in. [here] [here] (emphasis added)
The notion that in order for liberals to believe in a living Constitution they have to reject originalism in all of its forms is the biggest canard ever foisted on them. [here] [here] (emphasis added)
In this intellectual milieu, signing a letter you do not really believe is not hypocrisy: it is virtue. Thus, signing such a letter is the natural and justified response of victims to an unfair world imposed upon them by malevolent intellectual forces which have deformed reasoned, public debate. That’s not hypocrisy: that’s something else entirely. I am going to refrain from characterizing that reason, but I expect the public will take the hint.
Is it any wonder that millions of Americans vote for Trump?
Worth reading in its entirety.
I link to Seth’s posts because he is a friend and his ideas are generally worth paying attention to.
Non-originalists communicate in two different discourses.
One discourse is the mode of truth: it is the mode they reserve for their sophisticated clients and legal briefs, for their colleagues and students. In this discourse, non-originalists critique originalism as …
1. Wrongheaded or false because the Constitution is not prolix, it is only an outline, and the gaps must be filled in by each generation;
2. Wrongheaded because the Framers’ and Ratifiers’ intent is not discoverable;
3. Wrongheaded because different Framers’ and Ratifiers’ intent, although discoverable, was not unified;
4. Wrongheaded because original public meaning is not (now) discoverable (e.g., the Constitution is too old);
5. Wrongheaded because during the framing era and during ratification there were a multiplicity of original public meanings;
6. Wrongheaded because judicial rulings and precedent are the superior means through which to determine the meaning of the Constitution;
7. Wrongheaded because judges, academic lawyers, and lawyers are not good historians;
8. Wrongheaded because the Framing-era and ratification lacked democratic bona fidés by modern standards;
9. Wrongheaded because we should not be ruled by the moral norms or the dead hand of the past; and,
10. Wrongheaded because originalism gets the wrong (e.g., conservative or libertarian) results.
The problem is that non-originalists have an entirely different discourse, a second discourse, when they communicate with the public. When non-originalists communicate with the public … non-originalists transform themselves and their discourse into naked, unabashed originalism. It is really quite astounding.
Lexington Green adds:
You are restrained in your condemnation of this despicable dishonesty.
The public has very little understanding of law, the Constitution, the legal system, lawyers, courts or anything else that people like us think about all day long.
There is nonetheless a vague, inchoate sense that there something called a constitution, and it is in writing, and most people who think they know anything about it mistakenly believe that it says that all men are created equal, and that it protects our rights, whatever those happen to be, and that the government has to do what The Constitution says.
If you were to tell these people, well, actually, we law professors and judges and lawyers have figured out that you don’t actually have to do what the Constitution says, because … it won’t matter what the “because” is. The typical American will respond with something along the lines of “are you fucking kidding me?”
My seat of the pants guess is that between between 1% and 5% of the people in this country have any idea what has been going on with the U.S. Constitution in the courts in the last 50 years.
These guys are being smart not publicizing the reality. If Joe and Jane American voter knew what was going on they would cut the funding for these people.
Read the whole thing.
(See also this post by Lex from 2008.)
“Part II: The Appointments Clause Imposes No Duty on the President To Nominate Supreme Court Justices, Other Article III Judges, and/or Executive Branch Officers. The Appointments Clause Imposes No Duty on the Senate To Confirm Candidates.”
It depends on what the meaning of the word shall is, says Seth Barrett Tillman:
Now the people who have opined that President and/or Senate have a constitutional duty (per the Appointments Clause) to nominate a successor to AS are distinguished commentators, whose opinions deserve fair consideration. However, there are people who have taken the opposite position. These include, for example, Professors Lawson and Seidman, Adam J. White, a well-published D.C. practitioner, and Daniel Koffsky, a senior Department of Justice attorney. See, e.g., Gary Lawson & Guy Seidman, Downsizing the Right to Petition, 93 Nw. U. L. Rev. 739, 762 n.123 (1999) (“[T]he Appointments Clause is best read as a grant of power rather than an affirmative duty.”); Adam J. White, Toward the Framers’ Understanding of “Advice and Consent”: A Historical and Textual Inquiry, 29 Harv. J.L. & Pub. Pol’y 103, 147 n.235 (2005) (“[T]he President is under no duty to nominate someone to fill a vacant office—despite the Constitution’s instruction that he ‘shall’ so nominate . . . .”); cf., e.g., Appointment of a Senate-Confirmed Nominee, Op. Off. Legal Counsel 232, 232 (Oct. 12, 1999) (Koffsky, Acting Deputy Asst. Att’y Gen.) (“The Constitution thus calls for three steps before a presidential appointment is complete: first, the President’s submission of a nomination to the Senate; second, the Senate’s advice and consent; third, the President’s appointment of the officer, evidenced by the signing of the commission. All three of these steps are discretionary.”), http://tinyurl.com/gljnnv8. These people are also distinguished commentators, whose opinions deserve fair consideration.
Here we are faced with what are essentially conflicting intuitions in regard to the original public meaning of an 18th century text. Both sides cannot be correct. What to do? We should look for evidence, and fortunately, some good evidence is at hand.
Read the whole thing.
Or is it?
Republican Senators could block any US Supreme Court appointment not to their liking, not only from lame duck President Obama but from a possible President Hillary. That’s the kind of thing the Democrats, knowing the Republicans would deal eventually, have done.
What if the Republican-controlled Senate held out indefinitely? Five-to-four decisions favoring the Democrats would become impossible. But so would five-to-four decisions favoring the Republicans. Unless something changed there might be deadlock on partisan issues, which probably wouldn’t be a bad thing. But eventually things would change. President Hillary could appoint someone more moderate. The Republicans could lose control of the Senate. Additional justices could die or retire.
OTOH, a demonstration of firmness, even irrational firmness, by Congressional Republicans might pay dividends in the long run. Reagan gained considerable, perhaps decisive, advantage in foreign affairs by firing the striking air controllers.
OTOH, Reagan was an individual and the Republican Senatorial delegation is a coalition. It’s relatively easy to weaken a coalition by bribing or pressuring marginal members to drop out. The prevailing incentives do not favor Republican institutional backbone.
Interesting times ahead.
“Does the President Have A Duty To Nominate Supreme Court Candidates? Does the Senate Have A Duty To Consider Nominees?”
Seth Barrett Tillman:
Finally, I make this last point with some trepidation. It will strike some as ad hominem. But it is not meant to be so. It is put forward only to clarify the issues. The position that a President has a duty to put forward a Supreme Court nominee is narrowly elitist and overtly judicial-centric. Nothing distinguishes the President in his role here in regard to nominating Supreme Court nominees from (1) his role in regard to nominating other judicial nominees and (2) his coordinate role in regard to nominating persons for any and every other office (however humble) within the President’s orbit. If the President fails to nominate a person to one of these less prominent offices who would say that the President failed in his constitutional duty? I think few, and perhaps no commentators would make such an argument. And if you will not make that argument for each and every one of the less prominent positions subject to presidential nomination, I think there is no good reasoned basis for making it for Supreme Court vacancies—except that the great & good all think the Supreme Court was, is, and must be the center of our attention and political life. In other words, this Supreme Court-centered view is exactly the position that AS fought tooth-and-nail. He was right to do so.
[Note: “AS” = the late Antonin Scalia.]
ISIS has released a ‘kill list’ of Minnesota law enforcement. Before the first law enforcement victim gets attacked off that list, there are already injuries, the reputation and community standing of loyal, reasonable, peaceful Muslims who have to get checked off as not a risk of attempting to act on the list. These Muslim american citizens, permanent residents, and visitors have their quality of life degraded every time ISIS or any other extremist organization tries to associate these Muslims with extremist violence. And unlike the law enforcement officers who are on such a list and are statistically unlikely to actually be targeted, the damage to these Muslims is certain and is already happening.
Clearly the bulk of the US response to such a list should be to protect those targeted for death and to try and find the list creators to stop them. But minor injuries are still injuries and are at least a tort. Why not run with it and create a class action lawsuit to recompense the non-radicals for the damage done to their reputation? At the very least it might give some pause to the moneybags of the Muslim world who are currently supporting the violent radicals.
“‘Taney Deserves His Tribute’: Responding to George W. Liebmann’s Opinion Editorial in The Baltimore Sun”
In 1861, after Fort Sumter fell, the U.S. Army seized John Merryman, a Maryland citizen and state militia officer, and detained him in Fort McHenry, in Baltimore, Maryland. Merryman’s lawyers sought a writ of habeas corpus. After a hearing, Taney determined that the Army had violated the Constitution by seizing and detaining Merryman absent due process. Taney offered much flowing language—the sort which endears him to do-gooders and starry-eyed civil libertarians. But that is all that Taney did: He offered pieties in a judicial opinion. The reality is that Taney did not grant Merryman habeas corpus. In other words, Taney did not order the Army, or the commander at Fort McHenry (the named defendant in Ex parte Merryman), or the President, or anyone else to release Merryman from the Army’s prison. Now, perhaps the Army would not have obeyed any such a judicial order, but we will never know because Taney never issued one.
Further interesting thoughts at the link.
But I don’t have any confidence that the Fox panel would have been smarter if its members understood the issue better. The real problem was that they didn’t come down in principle on the side of privacy. They could have at least expressed regret, or been reluctant about siding with the FBI.
But they were slavering urgently for whatever measure the FBI demanded to get into Syed Farook’s iPhone – as if all our lives depended on giving law enforcement any privacy-busting capability it sees a need for.
Technology doesn’t change the fact that this perspective is the opposite of the perspective of the Fourth Amendment. If our highest priority should be opening the people’s lives up to law enforcement, in case there are terror links lurking in our coupon drawers, then we should throw the Fourth Amendment out and require the people to all give the police keys to our homes, so it will be less of a hassle for them to get in whenever they declare a need to.
Conservatives are supposed to be smarter than this. Let’s walk through it briefly to clarify why there is no need to bust the built-in security feature of the iPhone for the FBI’s general convenience.
Worth reading in full.
Posted by Nathaniel T. Lauterbach on 18th February 2016 (All posts by Nathaniel T. Lauterbach)
In comment thread of another post, Grurray asked:
“I know the Marines are the best fighting force in the world, but haven’t you had enough of building nations in the middle of the desert? You’re called Marines for a reason. Shouldn’t the future should be closer to the shore?” (sic)
I’ll take the sentiment kindly. Marines usually do fine when compared to other forces. I hesitate to call ourselves the “best” or “finest.” But the Marines are probably as good as any force out there.
As for meat of the question: Marines are amphibious fighters, right? What are you doing in a landlocked country?
Read the rest of this entry »
Posted in Afghanistan/Pakistan, Aviation, History, International Affairs, Iraq, Law, Law Enforcement, Military Affairs, National Security, Politics, Terrorism, USA, Vietnam, War and Peace | 13 Comments »
Still, it takes a lot to believe that Donald Trump could win more electoral-college votes than Hillary Clinton or Bernie Sanders and that his Supreme Court appointments would have Justice Scalia’s respect for the lives of his voters. Mr. Trump’s nominations for anything sit as a mystery.
Before Justice Scalia’s death, some might have said the Trump option was a risk worth running. The risk now has become too high.
He has a point.
Seth Barrett Tillman writes about the political and legal aftermath of Justice Scalia’s passing.
So if you are advising the President … before urging the President to install a U.S. Supreme Court Justice via a unilateral recess appointment … before urging the President to act against the will of the Senate majority, think carefully, think dispassionately, think coolly. You may end up, not empowering the President, but energizing the long moribund United States Senate. A fitting further epitaph for Antonin Scalia?
These ideas were developed in full in a 2007 four-part exchange between Professor Kalt and myself…
Worth reading in full.
Posted by Lexington Green on 13th February 2016 (All posts by Lexington Green)
“This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves….
“A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy….
“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”
Justice Scalia’s dissent in Obergefell v. Hodges, June 26, 2015.
Rest in peace.
UPDATE: Justice Scalia’s Great Heart. Please read this.
Posted by Lexington Green on 13th February 2016 (All posts by Lexington Green)
[While I was finishing this post, I saw the terrible news that Justice Scalia died. God rest his soul. The GOP Senate majority should not permit President Obama to replace Justice Scalia, and should slow-walk any appointment he may make until after January 2017. That empty seat will be and should be a campaign issue. It raises the stakes considerably for the next President.]
The other day a friend asked me: “what kind of judges would Trump appoint?”
“They will be the best, the smartest legal scholars we have, people who know the Constitution up and down, the whole thing, and especially our second amendment, which no one will touch, not while I am President, the second amendment is sacred, and they will be outstanding judges, judges who will be fair, but also do justice, and keep our country safe, so that criminals like the guy who killed Kate, beautiful Kate in San Francisco, people like that will go to prison for a long, long time, or back to Mexico, where they belong, if they are here illegally. And the judges I appoint will follow the law carefully, and they will always do what is good for America. And I know some of the best people in the country who will advise me on which judges to pick, great lawyers, great trial lawyers, and I know lawyers who are great negotiators, the best in the country, some of these guys are killers, not nice guys, but tough, smart, incredible lawyers, and legal scholars, from top law schools, the best law schools, and they know who the best people are, not necessarily people you have heard of, but the best, and we will appoint amazing judges. Trust me, the American people will be very proud of the judges we pick.”
This is of course a spoof of Mr. Trump’s speaking style.
However, a little research discloses that my satire was pretty close to what he actually said when he was asked this question:
Guess whose candidacy raises the most complex and troubling legal questions?
There are many fora (including several widely read individual, group, and journal-run blogs) whose mission, if not primary mission, includes discussion of time-sensitive legal issues of public interest. Should not the public be informed about these Clinton-related possibilities and risks well before votes are cast? Why the silence among journalists, academic commentators (with expertise in election law, constitutional law, and statutory interpretation), and bloggers who usually very much like to write on issues of public moment? Would not this make a suitable–if not outstanding–journal symposium issue: “The Hillary Clinton Candidacy–The Legal Issues”? Any takers?
Given the silence, you would almost think “natural born citizen” were the only legal issue out there. Odd isn’t it?
Professor McDonald was and will remain—long into the distant future—among the most influential historians on American history, particularly in regard to the American Revolution and the Constitution’s framing era. Some people might say he was the most influential historian of his generation. He wrote for both academics and the wider public. He also was part of the recrudescence of pro-Hamiltonian scholarship—not a small achievement considering he did this while writing in 1970s U.S. academia and while teaching in the deepest South. He wrote boldly, and he also experimented with new ideas about the past, including the so-called Celtic hypothesis.
I am not going to describe his vitae or his personal life (about which I know little). These things have been and are being done well in many other forums. Here I want to describe how kind McDonald was to me personally.
Worth reading in full.
Tillman on Lamya H: “Your complaint is that your psychology professor was too—fat? I am so sorry. I can see that that would ruin your freshman experience. You were expecting? Luke Skywalker during his youth? Princess Leia Organa during her Jabba the Hutt years?”
From: Seth Barrett Tillman, Return of the Letter to a Young Social Justice Warrior—responding to Lamya H.’s: A personal history of Islamophobia in America, Vox (January 15, 2016), http://ssrn.com/abstract=2719141.
(Related post: “Dear Young Social Justice Warrior”.)
The traditional modern conservative opinion on the 2nd Amendment diminishes and almost entirely dismisses the opening clause, “A well regulated Militia, being necessary to the security of a free State”. I believe this to be an error that leaves leftists an opening to prolong the Second Amendment assault forever. That opening needs to be closed. A substantive construction of this clause that makes sense to the general public is necessary to put down the gun control movement permanently.
But first, a little Latin. Crimes can be generally divided into the categories “malum prohibitum” and “malum in se”. Malum in se are crimes that are universally considered wrong or immoral that all just societies prohibit. Malum prohibitum are crimes that a legislature creates and are only crimes because they told us so. Tyrannies thrive by multiplying malum prohibitum crimes and turning honest citizens into fearful subjects that can be seized by the law at any time. Militias only go after malum in se crimes and are thus useful to the people who want a just society but useless to any sort of tyrant.
The militia’s uselessness to tyrants is its greatest selling point and one that the colonists implicitly understood because none of the abuses of King George were ever enforced by the militia (if there are examples where this actually happened, please share in comments). With that understanding, the introductory clause makes perfect sense to us all and gives us a common sense reason why even today, it’s important to have a strong militia so that our security is, as much as feasible, in the hands of people who will not sweat the small stuff. In fact, it’s truly necessary for the security of a free state.
The alternative is to entirely rely on paid agents of the state for our security, whether military or police. Is there ever a case where governments who are hard up for cash don’t make petty rules to extract fines and hem in the people’s liberty? Is there a government out there that does not favor its supporters and disfavor its opponents? Controlling these agents’ salaries is a powerful inducement for them to do the wrong thing if the government asks them. Over time and across a large number of governments, there will always be cases where they will be asked and there will always be agents who are willing to be tin pot tyrants. They have households to maintain after all.