Sunday, February 19, 2017

John McCain Takes on Donald Trump //New York Magazine

John McCain Takes on Donald Trump
by Gabriel Sherman // New York Magazine
John McCain was hustling down the hallway in the Russell Senate Office Building with the purpose of an Aaron Sorkin character. It was not yet two weeks into Donald Trump’s presidency, and McCain had already become the fiercest Republican critic of the new administration. While party leaders like Paul Ryan were contorting themselves to defend even Trump’s most ill-conceived executive orders, McCain had been, for a member of the president’s party, on fire: He had criticized Trump for banning immigrants and refugees from seven Muslim-majority countries, for his failed first mission in Yemen, for his suggestion that he might lift sanctions against Russia; he even took diplomacy into his own hands, reaching out to Australia to assure the country of our continued friendship after Trump had bizarrely confronted its prime minister in their introductory phone call. By many measures, there is no one better positioned to challenge Trump from within his own party. The so-called maverick was just reelected to the Senate by a 13-point margin; at 80 years old, he has both significant stature and nothing to lose. Still, for McCain, opposing Trump is not a simple matter. For one thing, it’s tricky to challenge a vengeful president who has taken to Twitter to accuse McCain of “emboldening the enemy” and “trying to start WWIII.” For another, McCain is not a Republican in Name Only; he is a true believer, an elder of the tribe. He does not exactly relish being deemed the loyal opposition.
“What? What!” McCain barked as he ran into a throng of reporters.
“Some people are saying you’re Trump’s No. 1 nemesis,” a reporter said. “Is that the role you’re trying to stake out?”
McCain shook his head. “It’s very convenient for the media to say that,” he grumbled. “If interpreters who worked for us in Iraq are not allowed into the United States, then I’m going to speak up. If that makes me a nemesis of the president of the United States, then you can label me as such.”
“They want a scenario of, quote, ‘confrontation,’ ” McCain told me as we stepped into the elevator. *** 

Saturday, February 18, 2017

Losing Strategy Does Not Establish Ethics Violation -Legal Profession Blog

Losing Strategy Does Not Establish Ethics Violation
An Ad Hoc District of Columbia Hearing Committee, applying Virginia law,  proposes a 45-day suspension with automatic reinstatement for an attorney's alleged mishandling of a wrongful death case in Virginia federal court.
The  disciplinary case is In re Gregory Lattimer 
During that [summary judgment] hearing, the Court noted that “I think you should have sued the lady who was supposed to sit in the yellow chair. That is the person whose error or whose inattentiveness led to the death in this case. And if you had sued her, you would have had a slam dunk. And I think the state probably has insurance to cover that. At least they did when I was in the Attorney General’s office.” (D.C. Exh. 31 at 29). However, in its Rule 26(a) disclosures, the Commonwealth had answered “N/A” to the question whether there was any insurance agreement available for inspection and copying. (D.C. Exh. 4B at 3).
In the losing appeal to the United States Court of Appeals for the Fourth Circuit
In her opinion for the Court, Judge Thacker noted Respondent’s statements concerning Dr. Davis and his misstatement as to when the Complaint was filed. On May 2, 2014, Judge Thacker referred the matter to Disciplinary Counsel, saying “I forward it for your consideration inasmuch as I question Mr. Lattimer’s handling of the case as well as his candor to the court.” Respondent never sent Ms. Wilkins a copy of the Court of Appeals decision. (citations to record omitted)
***the Committee does not believe Disciplinary Counsel has shown that Respondent’s misconduct in this case raises serious questions as to his fitness to practice law. Respondent’s misconduct occurred in a single case; it was a difficult case and he was dealing with a difficult client. While his decisions have proven to have been ill-advised, Disciplinary Counsel has not shown that they were unreasoned or beyond the discretion accorded lawyers in making strategy decisions. He should have done more homework before launching on his perilous flight, but that does not mean that his theory of the case establishes that he lacks the capacity to practice law. Indeed, the record here indicates that there was substantial preliminary evidence to support his theory. His problem is that he did not conduct a sufficient fact inquiry before filing the Complaint and waited too long to file it.
Disciplinary Counsel had sought a 90-day suspension with fitness.
- Michae Frisch

Friday, February 17, 2017

Township: Give Up the Fight Against Mosque Construction | New Jersey Law Journal

Bernards Township, NJ. Wikimedia
Township: Give Up the Fight Against Mosque Construction | New Jersey Law Journal
by the Editorial Board

When the Islamic Society of Basking Ridge sought approval to build a mosque, it faced unusual opposition. The Township of Bernards had an ordinance which established a 3-to-1 parking ratio for "churches, auditoriums and theaters." Applications by Jewish and Baptist congregations had been approved in a routine way. The Baptist church was approved even though the plan called for 157 parking spaces, not the 384 required by the parking ordinance. But the board declared that a mosque is not a church. It demanded many more parking spaces. The Islamic Society agreed to more than double the parking spaces, from 50 to 107, for a hall designed to accommodate 150 worshipers. After 39 meetings over three-and-a-half years, the township rejected the Islamic Society's application.

The Islamic Society, supported by numerous amici, challenged the decision under the Religious Land Use and Institutionalized Persons Act (RLUIPA).

In a comprehensive opinion, U.S. District Judge Michael Shipp of the District of New Jersey found, inter alia, that the parking ordinance as construed and applied by the defendants—applicable to churches and synagogues, but not to mosques—violated the nondiscrimination provision of the RLUIPA. The Islamic Society of Basking Ridge, et al v. Township of Bernards, et al, civil action No. 16-1369 (Dec. 31, 2016).

Thursday, February 16, 2017

New ABA Rule, Virginia Ethics Opinion Focus on Substance Abuse by Lawyers and Students

Two recent developments have focused attention on lawyers and disability.  The ABA House of Delegates has approved a rule change that " includes a requirement for lawyers to receive at least one hour of mental health or substance use disorder programming every three years. It also calls for one hour of diversity and inclusion programming every three years."  It was proposed by the American Bar Association Standing Committee on Continuing Legal Education, working with its Commission on Lawyer Assistance Programs.

The problem is not limited to lawyers.  As the Journal of Legal Education has reported law students are reluctant to seek help for substance abuse and mental health concerns.

The second is a new Formal Opinion by the Virginia State Bar discussing the duties of supervisory lawyers. - gwc

Virginia State Bar Legal Ethics Opinion 1886 


In this advisory opinion, the Committee analyzes the ethical duties of partners and supervisory lawyers in a law firm to take remedial measures when they reasonably believe another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public.1  The applicable Rule of Conduct is Rule 5.12 which requires partners or other lawyers in the firm with managerial authority to make reasonable efforts to ensure that all lawyers in the firm conform to the Virginia Rules of Professional Conduct.3  Lawyers in a firm may have an obligation under Rule 8.3 to report an impaired lawyer to the Virginia State Bar if the impaired lawyer has engaged in misconduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness to practice law. However, this opinion addresses the obligations of partners and supervisory attorneys to take precautionary measures before a lawyer’s impairment has resulted in serious misconduct or a material risk to clients or the public. This opinion relies upon ABA Committee on Ethics and Professional Responsibility, Formal Opinion 03-429 (2003) [hereinafter ABA Formal Op. 03-429] for its approach to the issues raised by the mental impairment of a lawyer in a firm.

Scope of the Lawyer Impairment Problem

Studies report that lawyers experience depression, alcohol and other substance abuse at a rate much higher than other populations and 2 to 3 times the general population.4  The incidence of alcohol abuse is higher among lawyers aged 30 or less.5 Besides the potential lawyer impairment caused by substance abuse, the aging of the legal profession presents an increased incidence of cognitive impairment among lawyers.  As of 2016, Virginia State Bar membership records revealed that of the 23,849 active members located in the Commonwealth, 8,366 or 35% are ages 55 or older.  Fifteen percent of these attorneys or 3,584 members are 65 or over.  These numbers reflect that Virginia’s lawyers, like lawyers nationally, are moving into an older demographic profile, and they continue to practice as they age. Moreover, in the years ahead, the number of lawyers that will continue to practice law beyond the traditional retirement age will increase dramatically.6 The substantial percentage of aging lawyers presents both opportunities and challenges for the state bars, and the scope and nature of the challenges and the best way to manage the challenges have been examined by bars around the country.

Question Presented

What are the ethical obligations of a partner or supervisory lawyer who reasonably believes another lawyer in the firm may be suffering from a significant impairment that poses a risk to clients or the general public?

Trump Claims He 'Inherited A Mess' From Obama

DJT took office 27 days ago - four weeks of confusion and disorder.  He blames it on Barack Obama saying "I inherited a mess".
Suh a mess: recovery from the worst economic crisis since the Great Depression, sixty consecutive months of economic growth, 250,000 new jobs per month, unemployment rate a full point lower than Romney promised to deliver, twenty million more people with health care coverage, eight corruption-free years, a leader of restraint and dignity who was a voice of compassion, and a model of decorum.  Such a mess.

Trump is in a state of hysteria.  Alarming.  - gwc
Trump Claims He 'Inherited A Mess' From Obama

Wednesday, February 15, 2017

Virginia federal judge says prejudice motivated Trump immigration order

Image result for leonie m brinkema
In  an opinion issued this week in Tarek Aziz v. Donald J. Trump federal District Judge Leonie M. Brinkema found that the President's Executive Order - halting immigration from seven Muslim majority countries -was motivated by intentional discrimination based on religion.  In the action - joined by the Commonwealth of Virginia - the court cited Trump's call for a "total and complete shutdown of Muslims entering the United States".  The Court also cited former New York Mayor Rudy Giuliani's statement that Trump had asked him to help, saying "show me the way to do it legally".

The court also cited a statement by ten former high ranking security officers (including four whose information is recent) that there have in fact been no terrorist acts committed in the U.S. by citizens of the seven affected countries.  The result is a unique finding by a court that religious animus motivated a facially non-discriminatory order of the President.
The court found that the state's unrebutted evidence showed that they were likely to prevail on the merits - proving that the Order violated the First Amendment bar on the establishment of a state religion. The court therefore enjoined the Executive Order.

We can hope that this is a first swallow of spring: that courts will  prove themselves a bulwark against the erratic and dangerously authoritarian occupant of the White House.

Trump Calls On Only Conservative Outlets For Three Straight Press Conferences

President of all the people.
Trump Calls On Only Conservative Outlets For Three Straight Press Conferences
President Donald Trump called on exclusively conservative news outlets for his third press conference in a row on Wednesday, leading CNN White House correspondent Jim Acosta to comment afterward: “The fix is in.”
Over three press conferences with world leaders – Japanese Prime Minister Shinzo Abe, Canadian Prime Minister Justin Trudeau and Israeli Prime Minister Benjamin Netanyahu – Trump called on two outlets in each, respectively: the New York Post and Fox Business; Sinclair Broadcasting-owned WJLA and the Daily Caller; and Christian Broadcasting News and

Sunday, February 12, 2017

Syria - 2 Oscar nominated documentaries humanize the war and the exodus

Image result for Watani: My Homeland – dir. Marcel MettelsiefenImage result for white helmets aleppo
The Oscar nominated documentary The White Helmets was shot on location by Khalid Khateeb -  a 21year old Syrian volunteer for the White Helmets - the Syrian Civil Defense.  The rescuers rush to the sites of bombings in Aleppo and elsewhere to extract people from collapsed buildings.  Khateeb was the videographer who  risked his life  to film the heroism of the "White Helmets"-   It is a powerful story of brave men.

Watani: My Homeland is the story of the wife and four children of a Free Syrian Army fighter who was betrayed and captured by ISIS in Aleppo. Preseumed dea, his wife and kids are able to emigrate to Germany.
Watani: My Homeland – dir. Marcel Mettelsiefen, 39 minutes
Four young children live with their mother and father, a Free Syrian Commander, in a warzone in Aleppo, Syria. During filming their father is captured by ISIS.  The children flee with their mother to Goslar, Germany, in a years-long journey that will test them all as they try to find a safe home in a foreign country.

The White Helmets – dir. Orlando von Einsiedel, 41 minutes
In the chaos of war-torn Syria, unarmed and neutral civilian volunteers known as “the white helmets” comb through the rubble after bombings to rescue survivors. Although they have already saved more than 60,000 lives since 2013, these brave first responders continue to place themselves in danger every day.

Friday, February 10, 2017

Lawyer disciplined for failure to investigate client //Legal Profession Blog

A powerful dissent by one member of an Illinois disciplinary board argues the decision imposes a heavy burden on lawyers to investigate their clients' purposes when drafting wills, powers of attorney, etc. The lawyer, at the request of a  client, drafted papers transferring an ailing  friend's house to the non-client. The lawyer charged $200.  There was overreaching and the house was transferred under duress.   In such suspicious circumstances the lawyer was found to have breached his duty to protect a non-client third party.The law decision could drive clients to Legal Zoom observed the dissenter!
Legal Profession Blog
by Michael Frisch

A recommendation for sanction by an Illinois Review Board is summarized in the headnote below.
The bar matter is unusual in that it raises a novel question of real consequence, namely whether the concept of third party beneficiary liability extends into an enforceable disciplinary obligation.
Respondent was charged in a one-count amended complaint with violating multiple Rules of Professional Conduct. The charged misconduct arose out of Respondent's drafting of a power of attorney and quitclaim deed at the request of a client. The client told Respondent that his friend, who was in the hospital, wanted to give the client his house and property, and asked Respondent to draft a power of attorney to enable the client to handle his friend's affairs. Without speaking to the client's friend or conducting any investigation of the friend's wishes or competency, Respondent drafted the documents requested by the client, who, using the documents, then withdrew all the money from his friend's bank account and took possession of his house.
Based on these events, the Administrator charged Respondent with failing to provide competent representation; failing to consult with a client concerning the objectives of the representation and means by which they are to be accomplished; failing to explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation; engaging in a conflict of interest; and permitting a person who employed and paid the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering the legal services, in violation of Rules 1.1, 1.2(a), 1.4(a)(2), 1.4(b), 1.7(a), and 5.4(c), respectively, of the 2010 Illinois Rules of Professional Conduct.
After a hearing, a majority of the hearing panel determined that Respondent owed no duties to the friend, and therefore could not be found to have committed the charged misconduct. It recommended that the amended complaint be dismissed. One hearing panel member dissented, finding that the friend was the intended third-party beneficiary of the attorney-client relationship and therefore that Respondent owed a duty to him, and had engaged in misconduct by failing to meet that duty.
The Administrator filed exceptions, challenging the majority's finding of no misconduct and arguing that Respondent should be suspended for 90 days for his misconduct.
A majority of the Review Board panel reversed the Hearing Board's finding of no misconduct. The majority found that the friend was an intended beneficiary of the attorney-client relationship between Respondent and his client, and therefore that Respondent owed a duty to the friend but failed to meet it. For his misconduct, the majority recommended that Respondent be reprimanded and required to complete the ARDC Professionalism seminar.
One member of the review panel dissented...

Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys

Professional Responsibility Blog: Idaho Supreme Court abandons actual innocence requirement for legal malpractice actions against former criminal defense attorneys
by Professor Alberto Bernabe
Just about a year ago I reported (here) that the two most recent decisions on whether a convicted criminal defendant had to prove actual innocence in order to recover for malpractice against his or her former lawyer had broken away from the majority view on the issue.  A few months later, however, the Washington State Supreme Court reversed the trend by adhering to the majority view and holding that a criminal defendant must establish actual innocence to sue the defense attorney for malpractice.

Now comes news that last week the Idaho Supreme Court has abandoned the actual innocence rule in a case called Molen v. Christian.  In part, the court concluded:
We hold that actual innocence is not an element of a criminal malpractice cause of action. Requiring a criminal malpractice plaintiff to prove actual innocence is contrary to the fundamental principle that a person is presumed innocent until proven guilty beyond a reasonable doubt. Further, a criminal defendant can be harmed separately from the harm he or she incurs as a result of being guilty of a crime. . . .  Additionally, as a practical matter, requiring actual innocence would essentially eliminate a defense attorney’s duty to provide competent counsel to a client he or she knows to be guilty. For the foregoing reasons, we hold that actual innocence is not an element of a criminal malpractice cause of action.
This means that three of the last four jurisdictions to consider the issue have rejected the majority approach, which makes me wonder if what is the majority has now shifted.  I have not done a state by state survey recently, so I don't know for sure.  However, I have not read anyone make that claim yet, so I assume the majority approach is still to require a showing of actual innocence.  If someone has information about the actual count of how many states follow each approach, please let me know. 

After Silence From Xi, Trump Endorses One China Policy - The New York Times

We have pursued the contradictory one China policy in which we recognize the PRC and maintain no official ties with Taiwan - the Republic of China.  We have however sold billions of dollars of arms to the island which China claims but cannot control.
After initial bluster about abandoning that policy Trump has now eaten some crow.  We will continue to endorse the longtanding commitment. - gwc
After Silence From Xi, Trump Endorses One China Policy - The New York Times
by Mark Landler and Michael Forsythe
WASHINGTON — When the White House announced this week that President Trump had sent President Xi Jinping of China a letter wishing him a happy Chinese New Year, it did not disclose a major reason for the friendly gesture: Mr. Xi had not, at that point, gotten on the phone with Mr. Trump.
That changed on Thursday night, when the two leaders had what the White House described as a “lengthy conversation” during which Mr. Trump agreed to honor the “One China” policy the president had previously refused to commit to uphold.
Stung by an earlier, and unorthodox, telephone call between Mr. Trump and the president of Taiwan, Mr. Xi had not spoken to the American leader since Nov. 14, the week after he was elected. Administration officials had predicted a conversation would come only after Mr. Trump publicly committed to recognizing a single Chinese government in Beijing.
And so Mr. Trump, during what the White House called “a lengthy telephone conversation,” formally and officially bent to Beijing.
Continue reading the main story
“The two leaders discussed numerous topics and President Trump agreed, at the request of President Xi, to honor our One China policy,” the White House said in a statement released late Thursday night. It said the discussion was “extremely cordial” and that the presidents “extended invitations to meet in their respective countries.”

Thursday, February 9, 2017

Page views

I don't know what these numbers represent. Why do I get so many page views when there are only five followers?  Maybe email subs don't count? Or they're just keyword searches?  Whatever .... the total is over a million now since 2010.

Pageviews today
Pageviews yesterday
Pageviews last month
Pageviews all time history

What The GOP's Obamacare Debate Is Really About

Masquerading as a policy debate about health care is the fight about money.  Lower taxes resonates with everyone.  But `I don't want to pay for them' is behind each  rationale for cutting Medicaid (code: Block Grant), reforming Medicare (code: corruption, bankruptcy), and Obamacare individual policies (code: unaffordable, choice).  David Kurtz discusses the politics of it. - gwc
What The GOP's Obamacare Debate Is Really About //TPM
by David Kurtz

The key thing to understanding the debate over health care policy in the United States is that it's not really about health care policy, it's about money.

This may sound weird on first read, but there's actually not a lot of disagreement about the basic contours of health care policy. It seems like there is. But most of the policy debates are proxies for the underlying disagreements over whether and how much government should spend on health care.

The political challenge for Republicans has always been how to mask their ideological preference not to spend much (or any) on health care. To do that, they've mounted a sustained decades-long attack on any reform efforts as too costly, inefficient, unworkable, and a threat to liberty. At the same time, they've had to come up with a proposals of their own to make it sound like they actually have a workable health care policy: tax credits, health savings accounts, high risk pools, etc.

Those conservative policy proposals are not in and of themselves entirely bad ideas. In theory, they are trying to achieve the same ends as progressive health care policies. Again, to bang the drum: There's not that much disagreement over what health care policy needs to accomplish. But conservatives tend to want to underfund their own policies, too, and that means in general that they can't possibly accomplish what their progressive policy counterparts would in terms of coverage or care.

Judicial independence 'not up for negotiation,' ABA President Klein says in speech addressing Trump tweets

In a speech to the ABA House of Delegates - not a tweet - the President of the American Bar Association has renounced Trump's repeated attacks on judges.
Judicial independence 'not up for negotiation,' Klein says in speech addressing Trump tweets//ABA Journal
ABA President Linda A. Klein, speaking to the association’s House of Delegates on Monday, issued a call to arms for lawyers to defend the rule of law in response to a spate of attacks on law in general and the judiciary in particular by the Trump Administration, though the name went unmentioned.
“Make no mistake, personal attacks on judges are attacks on our Constitution,” Klein said during the ABA Midyear Meeting in Miami. “Let us be clear. The independence of the judiciary is not up for negotiation.”
Klein, an Atlanta lawyer and senior managing shareholder of Baker Donelson, noted that there has been a lot of talk about protecting borders, and that every country has a right to do so. But the United States has due process protections even for noncitizens. Klein said lawyers need to take the lead in what is “our defining season.”
In response to President Donald Trump’s recent executive order on refugees and immigrants, Klein said that those swept up in immigration enforcement should be given hearings before impartial immigration judges. “We are very proud of lawyers around the nation who flocked to airports where immigrants were detained,” she said. “It is important that lawyers represent their clients’ interests—even unpopular interests—without fear of retaliation or persecution.”
Klein defined another, most important border: “It’s our Constitution and the rule of law it embodies. And we as lawyers are called upon to protect it. As Winston Churchill put it, ‘Never give in. Never, never, never, never!’”

Fintan O’Toole: Welcome to Trumperica

Fintan O’Toole: Welcome to Trumperica
by Fintan 'Toole // Irish Times Literary Editor

Probably the smartest thing anyone said about Donald Trump before his election was the explanation by Salena Zito in The Atlantic of why he could get away with making wildly exaggerated or flatly false statements: “When he makes claims like this, the press takes him literally, but not seriously; his supporters take him seriously, but not literally.”
And yet Zito’s insight has turned out to be insufficient. In the mad days that have followed his inauguration, it has become clear that Trump takes himself both literally and seriously.
He mistakes his own impulses for facts. He does not know the difference between self-aggrandising symbolic gestures and lived human realities, and this tiny-minded literalism has very serious consequences for millions of people.
The most important thing to understand about the executive order keeping immigrants and refugees from seven Muslim countries out of the US is that it has no relationship whatsoever to its stated purpose. That purpose is, supposedly, to keep America safe from terrorism. The order is actually called “Protecting the Nation From Foreign Terrorist Entry Into the United States”.

Memory of 9/11

As the chaos, anguish and shame erupted last weekend, Trump’s surrogates and supporters repeatedly evoked the memory of the 9/11 terrorist attacks.
But Trump’s order would do absolutely nothing to prevent a repeat of those attacks. Fifteen of the 19 hijackers were Saudis. Saudi Arabia continues to be the primary sponsor of the extremist versions of Islam that feed into militant jihadism. Yet Saudi Arabia is not one of the seven countries whose citizens are affected by Trump’s order.
On the contrary, the Saudi government this week reiterated its delight at Trump’s accession to the presidency and declined to utter the smallest criticism of the order.
By contrast, not one American has been killed since 9/11 by any immigrant or refugee from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – the countries targeted by Trump. Every jihadist who carried out a lethal attack inside the United States since 9/11 was a citizen or legal permanent resident of the US itself.

Trump attacks federal judges in unusually personal terms - LA Times

Trump attacks federal judges in unusually personal terms - LA Times
by Brian Bennett
President Trump has launched an assault on the independence of the judiciary, accusing federal judges of playing politics by suspending his travel ban and suggesting they risk national security by restricting his ability to block visitors from seven Muslim-majority countries.
His attacks drew a striking rebuke Wednesday from appeals court Judge Neil M. Gorsuch, his nominee for the vacant seat on the Supreme Court, who called the president’s remarks disheartening and demoralizing in a meeting with a Democratic senator.
Trump punctuated a flurry of tweets and statements in recent days with a high-profile speech that marked an escalation of the president’s use of the bully pulpit by attacking judges personally.
“If these judges wanted to, in my opinion, help the court, in terms of respect for the court, they do what they should be doing,” Trump said earlier Wednesday, coaxing judges to rule in his favor with a typically free-form remark to a gathering of police chiefs in Washington.

Wednesday, February 8, 2017

Oral Arguments For Trump Immigration Ban Hearing, Ninth Circuit Court of Appeals | Audio | RealClearPolitics

 “I listened to a bunch of stuff last night on television that was disgraceful,” Mr. Trump said. “I think it’s sad. I think it’s a sad day. I think our security is at risk today.” 
If the U.S. does not win this case as it so obviously should, we can never have the security and safety to which we are entitled. Politics!
Tweet by @realDonaldTrump

That "bunch of stuff" was the oral argument before a panel of the United States Court of Appeals in the State of Washington's lawsuit seeking to void the Executive Order suppressing immigration from seven mideast countries.
Trump's renewed attacks on the courts led Supreme Court nominee Neil Gorsuch to privately describe the statements as "disheartening and demoralizing".  Majority Leader Mitch McConnell described the insults as "self destructive".

Gorsuch will face challenging questioning  as he is pressed by Democrat sto demonstrate that he has the spine to stand up against his benefactor who gave him the judge the opportunity of a lifetime.
-  gwc

Full Replay: Oral Arguments For Trump Immigration Ban Hearing, Ninth Circuit Court of Appeals | Video | RealClearPolitics

Tuesday, February 7, 2017

Balkinization: How to tell if you are in a constitutional crisis

Let's chill on the overheated rhetoric.  When Trump refuses to obey a court order - that will be a crisis.  Until then it is just hardball. - gwc
Balkinization: How to tell if you are in a constitutional crisis
by Jack Balkin

***Constitutional crises come in three types. In the first kind, politicians (or military officials) announce that they won't obey the Constitution. In our system of government, government officials are supposed to obey judicial orders specifically directed to them. (That is true even if they believe that the judge has interpreted the law incorrectly.) Therefore defying a direct judicial order would also be tantamount to precipitating a constitutional crisis. When government officials (or the military) publicly announce that they will no longer play by the rules of the Constitution, the Constitution has failed. Constitutional crises of this type are very rare in American history.

Second, the Constitution might fail because it keeps political actors from preventing a looming disaster. These situations are even rarer because political actors (and the courts) usually conclude that the Constitution allows them to escape disaster.

Third, a constitution might fail because lots of people refuse to obey it-- there are riots in the streets, states secede from the Union, the army refuses to obey civilian control, and so on. 

When people are upset at what government officials have done, they often call these actions constitutional crises. However, most of these situations aren't really constitutional crises, because there is no real danger that the Constitution is about to break down.  The vast majority of uses of the term "constitutional crisis" are hyperbole.

Sometimes when people call something a constitutional crisis, they really mean that there is a heated dispute about the best interpretation of the law or the Constitution, and that their political opponents are interpreting the law or the Constitution in the wrong way. That in itself, however, is not a constitutional crisis, because disputes about the best interpretation of the law and of the Constitution are a normal feature of American politics. Many, but not all of those disputes, are eventually settled in the courts. Others are settled through politics. Settlement of serious disputes through the courts or politics is not a constitutional crisis. It is how a constitution is supposed to work.

Sometimes what people call constitutional crises are really what Mark Tushnet has called "constitutional hardball." This is a situation in which political actors stretch or defy political conventions that were previously considered unspoken rules of fair play in politics but were not clearly legally required. 

Thursday, February 2, 2017

Trump Vows to ‘Destroy’ Law Banning Political Activity by Churches - The New York Times

If I were at The Becket Fund - the right wing religious liberty public interest law firm - I would be asking "do we go to Congress or the courts?"  After Citiens United, aren't restrictions on political activites by tax exempt churched the logial next step?  Theymight even get the ACLU to sign on - like they did for Citizens United. - GWC
Trump Vows to ‘Destroy’ Law Banning Political Activity by Churches - The New York Times
by Mark Lander
WASHINGTON — President Trump vowed Thursday to overturn a law restricting political speech by tax-exempt churches, a potentially huge victory for the religious right and a gesture to his political base.
Mr. Trump said his administration would “totally destroy” the Johnson Amendment, which prohibits churches from engaging in political activity at the risk of losing their tax-exempt status.
Repealing the law would require approval by Congress. Certain tax-exempt organizations — in this case, churches — are not allowed to openly endorse or campaign for political candidates. If they do, under existing law, they risk losing the benefits of their tax-exempt status.
Speaking to a gathering of religious leaders, the president also defended his immigration policy, brushed aside concern about his harsh phone calls with foreign leaders, and ridiculed Arnold Schwarzenegger for his poor ratings in replacing Mr. Trump as host of “Celebrity Apprentice.”
He did not mention an executive order on religious freedom, which critics said would restrict the rights of lesbians and gay men; a draft of the order has circulated, but administration officials have denied that it will be adopted.
In addressing the issue of churches and political speech, Mr. Trump said, “I will get rid of and totally destroy the Johnson Amendment and allow our representatives of faith to speak freely and without fear of retribution.”
He added that “freedom of religion is a sacred right, but it is under serious threat.”