Sunday, June 30, 2019

Monday, June 24, 2019

Court overrules takings precedent, allowing more suits in federal court - SCOTUSblog

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A local ordinance in Town of Scott, Pennsylvania declared all burial grounds to be open to the public.  An owner of a family burial plot challenged the ordinance as a taking.  The core language of Chief Justice John Roberts for the five member Supreme Court majority in this regulatory taking action is:
  We conclude that a government violates the Takings Clause when it takes property without compensation, and   that a property owner may bring a Fifth Amendment claim under §1983 at that time. That does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation.

Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate. But because the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise.   

Basically the majority overturned a case which held that a cause of action against a state entity does not accrue until after the state has failed to pay just compensation after a condemnation action has been concluded.  The precedent is 34 years young and because it interprets the Constitution is entitled to little deference, according to Chief  Justice Roberts.  The practical effect is to open federal courts to 1983 actions as an alternative to inverse condemnation actions in state courts.  I suppose from a plaintiff's point of view it is attractive because attorneys fees can be recovered under 42 USC 1988.

It is a remarkably nationalist ruling by a conservative majority which has generally inclined toward deference to state sovereignty.  Doesn't bother me because I think federalism is a myth (the sovereign peoples of the Dakotas, etc.) that would be best replaced by the principle of subsidiarity - favoring local decision making subject to  conformity to basic principles.

Opinion analysis: Court overrules takings precedent, allowing more suits in federal court - SCOTUSblog
In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent.
by Miriam Seifter

In its long-awaited opinion in Knick v. Township of Scott, the Supreme Court ruled on Friday that plaintiffs alleging that local governments have violated the takings clause may proceed directly in federal court, rather than first litigating in state court. The opinion overrules a 34-year-old precedent, Williamson County Regional Planning Commission v. Hamilton Bank, triggering a sharp dissent and another debate among the justices about the meaning of stare decisis. The majority opinion also rests on a reading of the takings clause—that a constitutional violation occurs at the moment property is “taken,” even if compensation is paid later—that may have consequences beyond this case.
The takings clause of the federal Constitution provides: “nor shall private property be taken for public use, without just compensation.” This takings case arose from a dispute between petitioner Rose Mary Knick and the township of Scott, Pennsylvania. Knick has a small graveyard on her property, and the township attempted to enforce against her an ordinance requiring such properties to be open to the public during daytime hours. Knick alleged an unconstitutional taking, but a federal court dismissed her suit because she had not first sought compensation in state court.
That brings us to Williamson County. The court held there that the plaintiff could not bring a takings claim in federal court until the plaintiff had pursued an inverse-condemnation action—that is, a lawsuit seeking compensation for the alleged taking—in state court. The Williamson County court drew upon two principles from prior case law: first, that “because the Fifth Amendment proscribes takings without just compensation, no constitutional violation occurs until just compensation has been denied.” Second, the court invoked a line of cases, starting with Cherokee Nation v. Southern Kansas Railway Co. in 1890, for the proposition that governments need not pay compensation at the time of the property deprivation as long as, at that time, they make available a “reasonable, certain, and adequate” mechanism for recovering such compensation after the fact.
The Williamson County decision has generated substantial criticism, due primarily to its effects on local takings plaintiffs. For one, Williamson County’s acceptance of inverse-condemnation suits in state courts as a “reasonable, certain, and adequate” recovery mechanism, and the consequence that local takings plaintiffs must proceed first in state court, means that takings plaintiffs are differently situated from other constitutional plaintiffs, who can go straight to federal court. (Defenders of Williamson County argue this is because the takings clause is different from other constitutional rights—more on that shortly.) Perhaps more strikingly, application of the full faith and credit statute, as the court explained in San Remo Hotel v. City and County of San Francisco,  often means that local takings plaintiffs are barred from federal court altogether, a consequence that Williamson County did not foreshadow or perhaps even foresee.
The majority opinion in Knick, written by Chief Justice John Roberts on behalf of himself and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, overrules Williamson County. The majority concludes that Williamson County’s “state-litigation requirement imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” In reaching this conclusion, the Supreme Court does not rely on any of the narrow rationales described in my earlier posts about the case—including the U.S. solicitor general’s proposed interpretations of Sections 1983 and 1331, and Knick’s supplemental theory based on whether and when the government admits a taking has occurred. Rather, the majority rejects the proposition that the solicitor general (echoed now by the dissent) described as uncontested and over a century-old: that a taking does not occur at the time of the property deprivation so long as an adequate mechanism for compensation is available. Instead, the rule the court announces is that  “a government violates the Takings Clause when it takes property without compensation, and … a property owner may bring a Fifth Amendment claim under § 1983 at that time.”

Sunday, June 23, 2019

Joe Biden And The Disappearing America - Katherine Miller

Joe Biden And The Disappearing America: Joe Biden’s presidential campaign sometimes seems like a promise to restore us to the Obama years. But what’s been lost? And when did we have it?

Saturday, June 22, 2019

Rules and Precedent: Two Forms of Common Law in Gamble v. United States - Legal Aggregate - Stanford Law School

Rules and Precedent: Two Forms of Common Law in Gamble v. United States - Legal Aggregate - Stanford Law School: The common law plays an outsized role in the Supreme Court’s decision yesterday that the Double Jeopardy Clause does not bar successive prosecutions
The common law plays an outsized role in the Supreme Court’s decision yesterday that the Double Jeopardy Clause does not bar successive prosecutions by the states and the federal government. The petitioner in Gamble v. United States relied on English common law to gloss the original meaning of the Clause and claimed that seventeenth- and eighteenth-century cases and treatises support the notion that, at the time of the Founding, the common law prohibited trying an individual for an offense when another sovereign country had already done so. Justice Alito, writing for the seven-member majority, rejected this argument; he instead reaffirmed the line of Supreme Court cases holding that the Double Jeopardy Clause permits both the federal government and the states to prosecute a defendant because they are separate sovereigns and, therefore, an “offense” against one is not the same as an “offense” against the other. In doing so, he relied on the Supreme Court’s own common law—its prior precedents interpreting the Double Jeopardy Clause.

Professor Bernadette Meyler
Stanford Law Professor Bernadette Meyler

Contending that “something more than ‘ambiguous historical evidence’ is required before we will ‘flatly overrule a number of major decisions of this Court,’” Justice Alito concluded that Gamble failed to adduce a historical basis of a more than “middling” sort for his claim (Gamble, 587 U.S. ___, 11-12 [2019]). In the face of seemingly inconclusive history, the majority in Gamble thus decided to stick with precedent instead of original meaning.
Justice Thomas wrote separately to reject the majority’s understanding ofstare decisis in an opinion that has already been widely discussed—partly because it has been taken as a window into the effort to undermine abortion rights as based merely on constitutional precedent rather than original meaning. Thomas’s long explication of his understanding of English common law and the judicial role of the Supreme Court has additional methodological significance, however. In the opinion, he attempts to bolster the importance of English common law as a source for constitutional rules while at the same time rejecting the Supreme Court’s reliance on precedent—a reliance that he acknowledges emanates from English common law practice. So how does he separate out common law doctrine from adherence to precedent?
According to Justice Thomas’s account, although stare decisis emanated from the common law, precedent did not exert absolute control within that system. As he writes, “the common law did not view precedent as unyielding when it was ‘most evidently contrary to reason’ or ‘divine law,’” and an earlier decision was simply “not law” when it “fail[ed] to conform to reason” (Gamble, 587 U.S. ___, 6-7 [Thomas, J., concurring, 6-7]). On its own, the language Thomas quotes would not prevent judges from basing decisions on their independent assessments of justice and fairness. Thomas insists, however, that “common-law judges were tasked with identifying and applying objective principles of law . . . to particular cases (Gamble, 587 U.S. ___, 7 [Thomas, J., concurring]). Precedent, under Thomas’s account, only helped to identify objective rules rather than itself producing them. With the advent of the Constitution, the rules were codified into “positive law,” a fact that “removes most (if not all) of the force that stare decisis held in the English common-law system” (Gamble, 587 U.S. ____, 8 [Thomas, J., concurring]). The role of objective rules, however, remains. Rather than being diagnosed by judges, they reside instead in the words of the text and its original public meaning; “the key premise,” according to Thomas, is that “words, including written laws, are capable of objective, ascertainable meaning” (Gamble, 587 U.S. ____, 8 [Thomas, J. concurring]).
As Thomas acknowledges though, ambiguities may arise. Put in his language, “Written laws ‘have a range of indeterminacy,’ and reasonable people may therefore arrive at different conclusions about the original meaning of a legal text after employing all relevant tools of interpretation” (Gamble, 587 U.S. ____, 12 [Thomas, J. concurring]). Then and only then would Thomas deem precedent relevant. The Gamble case he views as “a good example” of this very situation (Gamble, 587 U.S. ____, 13 [Thomas, J. concurring]).
But what if ambiguity were a problem not on the periphery of constitutional interpretation but at its core? And whose understanding of the clarity of history should control? In the 5-4 decision in Franchise Tax Board of California v. Hyatt (587 U.S. ___ [2019]) that Justice Thomas authored less than a month ago, he relied on historical claims disputed by four of his colleagues to overrule Nevada v. Hall, 440 U.S. 410 (1979), and hold that the Eleventh Amendment bars states from being sued by individuals in the courts of their sister states. In that case, no one argued that the text dictated the Court’s result. Instead, Thomas asserted, “at the time of the founding, it was well settled that States were immune under both the common law and the law of nations,” and that the states comprising the United States “retained these aspects of sovereignty” (587 U.S. ____, 9 [2019]). The dissenters would surely contest the certainty of these historical assertions.
Nothing in Justice Alito’s opinion in Gamble relies on the rarity or frequency of constitutional ambiguity. And his conclusion that, in the absence of decisive historical evidence to the contrary, precedent should control, comports with common law traditions of judicial adjudication. Yet his opinion leaves open the question of what the Court would or should have done in the absence of earlier decisions about the meaning of the Double Jeopardy Clause. In that circumstance, why should reason not still weigh heavily in the justices’ considerations as it did within the common law tradition Justice Thomas treats? Ambiguous history does not mean no history at all; it simply means that history does not dictate a particular result. In that context, deciding not to protect a right may contravene the historical record just as much as deciding to protect it. When that is the case, it would make sense for the justices to return to the underlying interests that the Constitution was designed to protect in order to craft the best interpretation of a Clause in the present. Such an intervention might look more like Justice Gorsuch’s or Justice Ginsburg’s dissents, which emphasize interpreting the Double Jeopardy Clause in light of protecting liberty, than it would resemble the majority opinion in Gamble.
Bernadette Meyler, JD ’03, is a scholar of British and American constitutional law and of law and the humanities. Her forthcoming book Theaters of Pardoning (Cornell UP, 2019) demonstrates that the representation of pardoning tracks changing conceptions of sovereignty within the plays and politics of seventeenth-century England. 

Safe and sanitary - the limits of advocacy

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The United States appealed the order of District Court Judge Dolly M. Geer enforcing a settlement agreement in the Florio v. Meese/[Barr] class action regarding aliens conditions of confinement in which, as the government now notoriously argued in its brief
The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items. 

The news has been full of debate about the unwillingness of DOJ  attorney Sharon Fabian to concede at oral argument before the Court of Appeals in San Francisco that soap, toothbrushes, and beds are necessities implied by the term "facilities that are safe and sanitary" in the 1994 settlement agreement between the U.S. and the Flores class of detained minor immigrants.   UPDATE: The 9th Circuit Court of Appeals has ruled in a published opinion that the District Judge reasonably interpreted "safe and sanitary" as a 
commonsense understanding of what the quoted language requires. Assuring that children eat enough edible food, drink clean water, are housed in hygienic facilities with sanitary bathrooms, have soap and toothpaste, and are not sleepdeprived are without doubt essential to the children’s safety.6 The district court properly construed the Agreement as requiring such conditions rather than allowing the government to decide whether to provide them.

The video of oral argument [below] has made the implacable justice department lawyer an object of social media derision as she refused to yield ground to the dismay of an incredulous panel of three circuit judges.  One of the judges, Japanese American A. Wallace Tashima, had been interned as a child during World War II.  The news story will soon disappear in the tsunami of debate about how we treat the wave of refugees seeking refuge here.  But for those of who teach lawyers about the nature and limits of zealous advocacy it is a 'teachable moment'.

Much sharp commentary in the Twittersphere  has been focused on Sarah Fabian the DOJ lawyer  who as the voice of the government at oral argument met with a dismissive, even derisive reception by a panel of the 9th Circuit Court of Appeals.  Some have suggested she should be disciplined, others such as former DOJ spokesman Matthew Miller say she should have refused to sign the DOJ brief.  But LDF President and Counsel Sherrilyn Ifill has taken exception to the attacks on the lawyer:

As the French and Spanish words for our trade capture - Avocat and Abogado - we represent others - we don't speak for ourselves in litigation or advocacy on behalf of clients.  AS the ABA's Model Rules say a lawyer "zealously asserts the client's position under the rules of the adversary system".[RPC Preamble and Scope] So the Rules of Professional Conduct make clear [RPC 1.2 (b)] that representation of a client "does not constitute an endorsement of the client's political, economic, social or moral views or activities."  But we are limited by the strictures of obeying the general laws and limiting our advocacy to "a good faith effort to determine the validity, scope, meaning or application of the law." [RPC 1.2 (d)]. Similarly RPC 3.1 proscribes "frivolous" arguments, and prescribes "meritorious claims and contentions".  Groundless argument may merit sanction for litigation misconduct under Federal Rule of Civil Procedure 11, or at least theoretically professional discipline.  [Notably DOJ lawyers are practically immune from discipline by the state courts that license them; though subject to its Office of Professional Responsibility.]

The issues and highlights of the oral argument are well presented in this blog post by Jerry Lambe at Dan Abrams Law & Crime.  In the video of oral argument below the most controversial part begins at 24:00

Friday, June 21, 2019

Bolton Keeps Trying to Goad Iran Into War - Peter Beinart - The Atlantic

Bolton Keeps Trying to Goad Iran Into War - The Atlantic: Throughout its history, America has attacked countries that did not threaten it.
by Peter Beinart

The conventions of mainstream journalism make it difficult to challenge America’s self-conception as a peace-loving nation. But the unlovely truth is this: Throughout its history, America has attacked countries that did not threaten it. To carry out such wars, American leaders have contrived pretexts to justify American aggression. That’s what Donald Trump’s administration—and especially its national security adviser, John Bolton—is doing now with Iran.

Safe and sanitary doesn't compel tooth brushes an soap for detainees - Justice Lawyer

Thursday, June 20, 2019

Justice Alito just wrote the most terrifying sentence to appear in a Supreme Court opinion in years – ThinkProgress

Justice Alito just wrote the most terrifying sentence to appear in a Supreme Court opinion in years – ThinkProgress

Artifact or Establishment? American Legion v. American Humanist Assn.

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 On a bluff at George's Harbor, St. George, Maine is a granite cross.  The Weymouth cross was erected in 1907 by the State of Maine.  On Allen Island, it marked the tercentennial of Maine.  George Weymouth - captain of the Archangel - erected a cross and held the first religious ceremony by Englishmen.  That 1605 event was commemorated in 1905 by the State with warships, dignitaries, and Governor in attendance.
The scenic spot - on Islands now owned by the Wyeth family - is a favorite of mine.  The cross marks, of course a religious ritual by agents of James the Stuart King of England, soon to be conquerors.  
Today the United States Supreme Court 7-2 allowed to stand the Bladensburg war memorial cross in Maryland.  I concur in the judgment.  American Legion v. American Humanist Assn, No. 17-1717 | Casetext 
The Georges Harbor "Weymouth cross" on a remote island on the coast of Maine commemorates a criminal enterprise - the settlement of North America.  The cross identified the State with the efforts and culture of the first Englishmen to explore and soon settle the region.
We would not erect such a cross today - not in Maine which has just renamed the October holiday Indigenous Peoples Day.   But it is an historical artifact - evidence of both the original event, and the obliviousness of the conquerors' successors - the State's white overwhelmingly Christian majority of 1905.  I would leave to the State the burden of explaining how our understanding has changed.  Perhaps on the occasion of Maine's first Indigenous Peoples Day 2019.

Andrew Bacevich, The Fake News of D-Day | TomDispatch

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Tomgram: Andrew Bacevich, The Fake News of D-Day | TomDispatch
***[Unlike Angela Merkel] Russian President Vladimir Putin did not, however, make the guest list [for the D-Day 75th anniversary ceremonies]. In liberal circles, Putin has, of course, made himself persona non grata. Yet excluding him obviated any need for Trump and other dignitaries in attendance to acknowledge, even indirectly, the Soviet role in winning World War II. Although the Red Army was never known for finesse or artfulness, it did kill an estimated four million of Merkel’s countrymen, who were thereby not on hand to have a go at killing Donald Trump’s countrymen. 
If war is ultimately about mayhem and murder, then the Soviet Union did more than any other belligerent to bring about the final victory against Nazi Germany. Without for a second slighting the courage and contributions of our Canadian, Polish, Norwegian, and Australian comrades -- bless them all -- it was the Red Army that kept General Dwight Eisenhower’s expeditionary command from being pushed back into the Channel. In other words, thank God for the godless communists. 

Wednesday, June 19, 2019

Voters understand Medicare-for-all better than Bernie does | xpostfactoid

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Voters understand Medicare-for-all better than Bernie does | xpostfactoid: If Democrats get a chance to move on healthcare reform, voters expect...Medicare for America
by Andrew Sprung

Be that as it may, respondents' expectations point toward a reformed system in which Medicare is available to all, while employer-sponsored insurance and private individual market insurance continue to exist alongside it. The public plan covers most but not all of the population, and it includes deductibles and copays.

That's an accurate description of the Medicare for America bill introduced in the House by Reps Rosa DeLauro and Jan Schakowsky. That bill would allow anyone to buy into a revamped, comprehensive "Medicare" program on a sliding scale requiring premiums ranging from 0-8% of income ($0 for anyone with income up to twice the Federal Poverty Level). They could also buy into tightly regulated private alternatives, and employers could continue to offer insurance, required to meet a standard close to the current employer norm. People with incomes over 200% FPL would have to pay coinsurance for many services. It's true that deductibles have been eliminated in the bill's latest version, but annual out-of-pocket maximums can go as high as $3,500 individual/$5,000 family.

This is not to suggest that Kaiser survey respondents are any more familiar with the Medicare for America bill than they are with the Medicare for All bills (doubtless they are less so).  But a lot of presidential candidates are talking up Medicare buy-ins, and by whatever osmosis, the majority expectation for a Democratic administration/Congress (who else would try to put over a national health system?) lands quite close to the Medicare for America design. Perhaps that's not so surprising, as Medicare for America is only the latest iteration of a basic healthcare reform architecture that predates the Affordable Care Act.

Maybe the takeaway from the Kaiser survey has been inverted. The point isn't that voters misunderstand the Medicare for All bills introduced by Sanders in the Senate and Jayapal in the House -- but rather that the particulars of those bills haven't registered because voters don't consider them realistic or desirable.

These survey responses reflect reality. Democrats are not going to pass legislation that offers more comprehensive coverage than any national health plan on the planet. They're not going to pass a bill that requires more than doubling federal tax revenue. They're not going wipe out the private health insurance industry in 2-4 years, and they're not going to subject providers exclusively to Medicare payment rates within the same time period. They are not going to take on every segment of the mammoth U.S. healthcare industry and concede nothing to any of them.

Tuesday, June 18, 2019

Civil Gideon: NJ Court Affords Counsel in Child Abuse and Neglect Cases

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Civil Gideon - Right to Counsel in Child Abuse Allegation by Division of Children and Families 

Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel.  From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment.  In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.

The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination. 
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.  

The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve - without compensation - in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases.  There too funding has not been appropriated.   In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended.  The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds.  The statewide Office of the Public Defender stands ready - if funded - to provide competent representation.  But I have my doubts about whether the Governor and Legislature will address this problem. - gwc

Catholic Social Services Properly Denied Injunction in Foster Care Case | New Jersey Law Journal

Catholic Social Services Properly Denied Injunction in Foster Care Case | New Jersey Law Journal

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by the  Editorial Board - New Jersey Law Journal

An outbreak of yellow fever in 1797 spurred the formation of what is now Catholic Social Services of the Roman Catholic Archdiocese of Philadelphia (CSS). Rooted in the corporal works of mercy, a principal mission of CSS is the care of vulnerable children. But what began as a voluntary mission of mercy has been transformed. Today the care of foster children is a highly regulated public service, much of which is carried out by private agencies which contract with cities, towns and states. CSS was one of 30 agencies that contracted with the City of Philadelphia for foster care services. Unable to reach an agreement with the city, CSS’s contract expired. It has not been renewed.
CSS objects to the terms set by city nondiscrimination law. It accepts that it is subject to governmental oversight, but an element of the Catholic Catechism leads it to refuse to place children with same-sex couples. CSS will only certify foster parents who are either married or single; it will not certify cohabiting unmarried couples, and it considers all same-sex couples to be unmarried, according to the Third Circuit’s opinion in Fulton and Catholic Social Services v. City of Philadelphia.
Although there is no record of any same sex-couple challenging the agency, the city terminated the CSS contract. CSS sought a preliminary injunction requiring the city to renew its contact and permitting it to turn away same-sex couples who wish to be foster parents. The injunction was denied in the district court, and the denial affirmed on appeal.
In its opinion, the Third Circuit asks, did Philadelphia “have the authority to insist, consistent with the First Amendment and Pennsylvania law, that CSS not discriminate against same-sex couples as a condition of working with it to provide foster care services? Or, inversely, has CSS demonstrated that the City transgressed fundamental guarantees of religious liberty? At this stage and on this record, we conclude that CSS is not entitled to a preliminary injunction.”

Friday, June 14, 2019

Trump to Justices: Put yourselves in my shoes!

Pursuing their monarchical presidency argument Donald Trump's lawyers - in their D.C. Circuit brief on appeal in the Mazars accounting subpoena case - make a sort of Golden Rule argument.  Looking ahead to the United States Supreme Court which will soon be confronted with deciding whether  Trump's accountants must heed a House Oversight Committee subpoena for his financial records.  Put yourselves in my shoes, say Trump's lawyers to the Justices who have exempted themselves from the Code of Conduct of United States Judges:

[A]lthough “Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income” and the Justices comply with them, the Court has never decided “whether Congress may impose those requirements on the Supreme Court.” **. In short, “the limits of Congress’s power” in this area have “never been tested.” 
Yet replace “President” with “Justices” and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records— even for many years before they joined the Court. There would “be little doubt” that “Congress’s interest in the accuracy of the [Justices’] financial disclosures falls within the legislative sphere.” *** 
Whether they are “abiding by the Foreign Emoluments Clause is likewise a subject on which legislation … could be had.” ***. “So, too, is an investigation to determine whether [the Justices have] any conflicts of interest” (even though those laws do not currently apply to them), given that “exposing conflicts” and “shed[ding] light” are “entirely consistent with potential legislation in an area where Congress already has acted.” *** 
Finally, the subpoena would be “justified based on
Congress’s ‘informing function’” since, according to the district court, Congress has “sweeping authority to investigate illegal conduct of a [Justice] before and after taking office.” ***

FEC Chair: report foreign interference to the FBI

Thursday, June 13, 2019

No to the Monarchical Presidency

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No to the Monarchical Presidency
by George W. Conk 

This morning’s White House disparagement of the Office of Special Counsel’s recommendation that Counselor Kellyanne Conway be removed illustrates a deeper, more threatening point about the necessity for Congressional oversight of the monarchical presidency.  The deeper point is to be found in Trump’s recently filed brief challenging subpoenas of his financial records issued by the House Oversight Committee. 

Congress has no power to subject him to conflict of interest laws, Trump argues.  This challenge, shocking as it is, may be well crafted to appeal to a Supreme Court whose conservative majority has harbored an affinity for Presidential prerogatives and hostility to the scope of Congressional power.

Article II of the U.S. Constitution twice imposes a duty of “faithful execution” on the President, who must “take Care that the Laws be faithfully executed” (§2) and take an oath or affirmation to “faithfully execute the Office of President.” (§ 3)   Who can determine what those fiduciary duties mean and whether they have been carried out?  Flawed though it may be in other respects, the Constitution as written in 1787 answers with admirable clarity.  

The Congress is empowered to do all things Necessary and Proper (Art.  I, § 8) to carry out its broadly enumerated powers, such as to give flesh to what constitutes faithful execution of the laws.  And because law enforcement is the province of the Executive who could assert for himself the sovereign immunity that kings of England had claimed the House of Representatives has the authority to define and to charge the President with “high crimes and misdemeanors”.  The fear of a monarchical president pervades James Madison’s Notes of the Federal Convention, and the pseudonymous Publius “op-eds” by Alexander Hamilton, James Madison, and John Jay now known as The Federalist Papers.

Remarkably, if unsurprisingly, Donald J. Trump has now asserted the powers of the monarchical presidency.  The lawyers for Trump personally and his businesses have appealed to the D.C. Circuit Court of Appeals to overturn the order by District Judge Mehta that the Mazars accounting firm turn over  financial records of the president and his businesses, as demanded by the House’s Oversight Committee.  Trump, through his lawyers, claims the sort of immunity that Henry VIII demanded when he put his Chancellor Thomas More’s head on the chopping block.

Trump asserts in his brief in the D.C. Circuit:
[T]he legislation that the Committee is contemplating targets “an area in which Congress is forbidden to legislate.” The Committee asserts that Congress can extend federal conflict-of-interest restrictions to the President or impose more stringent financial-disclosure requirements on him. But the office of the President (like the Supreme Court and unlike other offices and courts) is created by the Constitution—not Congress. Accordingly, Congress cannot expand or alter the office’s qualifications.

Like King Henry, Trump believes he can do whatever he damn pleases.  Lest one think that hyperbolic, his lawyers go on to say

Nor can Congress interfere with the President’s “responsibility to take care that the laws be faithfully executed.”  The species of legislation that the Committee has in mind here would do both.

Looking ahead to the Supreme Court the Trump lawyers argue that the same principles apply to the high court which has exempted itself from the Code of Conduct of United States Judges.  Supreme Court Justices and Presidents, Trump argues, have the last word on what their personal conduct shall be.  It is the sort of argument that causes sleep to be lost as  Trump has now told ABC’s George Stephanopoulos that he would accept “oppo research” from foreign powers and would not report it to the FBI.   Because the power to impeach is the deepest locus of exclusive Congressional jurisdiction the House would be well advised to establish a committee of inquiry to determine if impeachment of the President is warranted.

Wednesday, June 12, 2019

Guide to the Mueller Report’s Findings on “Collusion” - Just Security

Guide to the Mueller Report’s Findings on “Collusion” - Just Security: Essential reading on the Mueller Report: an annotation plus key findings, drawing on investigative reports and Special Counsel court filings.
by Ryan Goodman

Special Counsel Robert Mueller’s final report focuses only on whether crimes were committed. It addresses two Russian conspiracies to interfere in the 2016 election—one involving a social media influence campaign and the other involving the hacking and dissemination of stolen emails. The Report then addresses whether Trump Campaign associates knowingly entered an agreement with the Russian government to assist those conspiracies.
As many experts have noted, what’s missing from the Mueller Report is the Special Counsel’s counterintelligence findings. We don’t know what the Special Counsel’s Office or the FBI have assessed, for example, with respect to whether Trump associates engaged in reciprocal efforts with Russian agents without entering a criminal agreement to do so, whether Americans have been witting or unwitting Russian assets, and what leverage or influence Moscow may have over particular individuals.
As a shorthand, we may use the term “collusion” to refer to these kinds of activities, which would be implicated in a counterintelligence analysis—though, as Asha Rangappa and I have written, the more analytically precise issues to consider are whether Trump Campaign associates “coordinated with, cooperated with, encouraged, or gave support” to the Russia/WikiLeaks election interference activities. Those are important questions regardless of whether such activities amounted to crimes, regardless of whether individuals’ actions and intentions can be proven beyond a reasonable doubt, regardless of whether Americans acted as unwitting Kremlin assets in support of Russian operations, and regardless of whether individuals and organizations can be prosecuted without endangering First Amendment interests.
Although the Mueller Report does not squarely address these questions of “collusion” that fall outside the scope of potential criminal liability, it can be mined for substantive information that provides some meaningful answers.
What follows is a detailed guide to the Mueller Report’s evidence on collusion. The analysis discusses affirmative evidence and countervailing evidence in the Report, references the Special Counsel’s court filings and reliable news reports that help shed additional light on information in the Report, and identifies significant loose ends that the investigation was unable to answer.
I. Summary of Major Findings
The redacted Mueller Report documents a series of activities that show strong evidence of collusion. Or, more precisely, it provides significant evidence that Trump Campaign associates coordinated with, cooperated with, encouraged, or gave support to the Russia/WikiLeaks election interference activities. The Report documents the following actions (each of which is analyzed in detail in Part II):

Sunday, June 9, 2019

A Drama of Trump’s Own Making Ends With a Familiar Hero

A Drama of Trump’s Own Making Ends With a Familiar Hero

Saturday, June 8, 2019

The Donald Thinks D-Day Is About Him - Roger Cohen - The New York Times

The dreadful truth is that Americans have elected and cowered before a vaininglorious buffoon whose vanity is captured by this photo with its focal center Trump and his ice queen spouse, she of the somehow both vacuous and fraudulent Be Best pose. - gwc 
Photo: Doug Mills/New York Times
Opinion | The Donald Thinks D-Day Is About Him - The New York Times: To have Trump commemorate the Normandy landings is to understand the word impostor.
by Roger Cohen

PARIS — How small he is! Small in spirit, in valor, in dignity, in statecraft, this American president who knows nothing of history and cares still less and now bestrides Europe with his family in tow like some tin-pot dictator with a terrified entourage.

To have Donald Trump — the bone-spur evader of the Vietnam draft, the coddler of autocrats, the would-be destroyer of the European Union, the pay-up-now denigrator of NATO, the apologist for the white supremacists of Charlottesville — commemorate the boys from Kansas City and St. Paul who gave their lives for freedom is to understand the word impostor. You can’t make a sculpture from rotten wood.

It’s worth saying again. If Europe is whole and free and at peace, it’s because of NATO and the European Union; it’s because the United States became a European power after World War II; it’s because America’s word was a solemn pledge; it’s because that word cemented alliances that were not zero-sum games but the foundation for stability and prosperity on both sides of the Atlantic.

Of this, Trump understands nothing. Therefore he cannot comprehend the sacrifice at Omaha Beach 75 years ago. He cannot see that the postwar trans-Atlantic achievement — undergirded by the institutions and alliances he tramples upon with such crass truculence — was in fact the vindication of those young men who gave everything.

Levinson v. Calabresi on our dysfunctional Constitution

Thursday, June 6, 2019

Just remember - the Godfather loves you...John Dowd to Michael Flynn

Just remember ..The Godfather loves you...

America’s Standard of “Normal Nation” in the Middle East – LobeLog

Will Americans ever show themselves to be capable of governing themselves in a normal fashion?
America’s Standard of “Normal Nation” in the Middle East – LobeLog

by Pouya Alimagham [historian of the modern Middle East at Massachusetts Institute of Technology, and author of the forthcoming Contesting the Iranian Revolution: The Green Uprisings (Cambridge University Press). Follow him on Twitter @iPouya.]
On June 2, 2019, Secretary of State Mike Pompeo stated that the United States would be willing to engage with Iran as long as “the Iranians…behave like a normal nation.”
Aside from the condescension of talking to Iranians as if they are children who need to “behave,” Pompeo’s remark begs the question as to what it means to act like a “normal nation.” A brief look at US-Iran relations before the Iranian Revolution and a short survey of America’s long-time allies in the Middle East today help shed light on how America’s foreign policy establishment defines “normal” behavior.
Iran under the Shah
Before the revolution in 1979, Iran was ruled by Muhammad Reza Shah Pahlavi—an autocrat installed by the United States and UK after they orchestrated the overthrow of Iran’s democratically elected government in 1953. Prime Minister Mohammad Mossadeq had defied imperial Britain by nationalizing the country’s oil resources for the benefit of the underdeveloped nation. A trained lawyer, he even successfully defended his case at the World Court—a legal decision that the British rejected.
After the coup, the United States helped the shah establish the notorious internal intelligence agency, SAVAK. The CIA trained SAVAK personnel in the most brutal forms of modern, scientific torture to ensure the longevity of the shah’s rule against a population that increasingly saw him as an American puppet. As a result, according to Amnesty International, the shah’s regime became one of the world’s worst violators of human rights. The Iranian opposition, which had long reeled under SAVAK’s heavy boot, predictably blamed the United States for the shah’s repression.

Lavish living by Catholic hierarchy is moral corruption | National Catholic Reporter

Image result for college of cardinal
I cringe when I see the Roman rituals - the lordly rites.  I know how the priests and nuns who educated me lived: nothing like that.  If it is even possible for the Catholic Church here to regain its moral stature modesty, not pomp, will be the path. - gwc
Lavish living by Catholic hierarchy is moral corruption | National Catholic Reporter
by Michael Sean Winters
In the late 19th and early 20th centuries in this country, Catholic bishops were leaders of their mostly immigrant communities, and people took pride when their bishop built a grand house for himself. The cardinal's residence in Brighton, Massachusetts, was a magnificent Italianate affair, more like the Livadia Palace of the tsars in Yalta than a New England manse. I once stayed at a B & B in San Francisco that had been the archbishop's house, and it was quite grand. Chicago's cardinals lived in a mansion that famously has 19 chimneys. But Cardinal Sean O'Malley sold the mansion in Brighton and moved into the cathedral rectory, Archbishop Salvatore Cordileone lives in an apartment on the campus of the cathedral in San Francisco, and Cardinal Blase Cupich lives in the rectory at Holy Name Cathedral. This must become the norm, not the exception.
The irony is that the mansions — indeed the entire infrastructure of the church in the U.S. we know — were built with money from the people in the pews.
The report on Bransfield exposes a deeper kind of corruption, one that worries me more than the fact that a particular bishop spent too much on booze and fresh flowers. In our time, bishops, like university presidents, must spend a lot of their time sucking up to rich people and raising money. They learn how to host them at their homes in style and which restaurants are posh enough for high-dollar donors. The boards of our Catholic institutions are populated with wealthy Catholics. The connection with the working men and women atrophies. Soon, large building projects by Catholic organizations are built with non-union labor, a bishop learns a little too much about high-end wines, the concerns of the wealthy become the concerns of the hierarchy, and the situation of the working class is increasingly remote. "I come to proclaim good news to the upper middle class and the uber-rich" said Jesus in Luke 4, or something like that.