Collateral Damage: The Arpaio Pardon and Separation of Powers - Lawfare

Metaphoric mastery.
Collateral Damage: The Arpaio Pardon and Separation of Powers - Lawfare
by Josh Blackman (South Texas College of Law)
***As a constitutional matter, the pardon power belongs to the President, and the President alone. If Trump wants to reverse the processes established by his predecessors, that is entirely within his prerogative. But the Executive Branch had imposed long-standing institutional constraints on that awesome power with very good reason. Here, Trump has untied himself from the mast, retweeted the Sirens' call, and crashed into the shoals.***

Fordham Backs Ignatian Call to Maintain DACA

Dear Members of the Fordham Community,

This week I signed the Ignatian Network’s letter: Maintain Deferred Action for Childhood Arrivals (DACA), thus recommitting the University to the principles that have guided Fordham throughout its history. I urge you all to do likewise.

I know that Father McCarthy has already shared the letter with you: I follow up on his message to stress the importance that the University attaches to this issue. Fordham sees and embraces undocumented students as valued and loved members of our community. The University stands with these students, and we will do all we can to be effective advocates for them.

Fordham Seeks Clarification on Status of Undocumented Students

University Statement on the Status of Refugees and Immigrants

Father McShane Joins With University Presidents in Support of Undocumented Students

I do not have to remind you that we live in deeply unsettled times. The rise of hate speech and undisguised hostility toward immigrants and anyone considered other, the horrific drowning of Houston and parts of Louisiana with its attendant loss of life and human suffering (including some families in the University community), and political and cultural divisions that seem to grow deeper by the day, call us urgently to live out the lessons of the Gospel and our Jesuit principles.

We must do what is in our power to aid and protect the most vulnerable among us, at the University, and around the globe. Here, at Fordham, in one of the world’s capital cities, some of us live lives of relative ease and privilege. I call on you to join me in whatever way you can help heal our society and our world.

You and your loved ones are in my prayers, today and always.

Sincerely,

Joseph M. McShane, S.J.

President, Fordham University

Trump Ignores Mexico's Offer to Help Victims of Hurricane Harvey | Foreign Policy

Trump Cares More About Ideology Than the Victims of Hurricane Harvey | Foreign Policy
by Jeffrey Lewis

At this dark time, Mexico offered to help, as good neighbors do.

It did so despite the seemingly endless barrage of insults that Trump has directed toward the country, including this past week’s repetition of the claim that Mexico will pay for his delusional border wall (something it has made clear it will not do).

Mexico’s offer of aid is not empty or symbolic.

Bedeviled by seismic activity and in the path of many a hurricane, Mexico has developed some of the most effective search and rescue capabilities of any country in the world, and its military excels at domestic disaster recovery missions.

Having that kind of experience and expertise in Texas and Louisiana right now to supplement the work of the Federal Emergency Management Agency, state and local governments, and volunteer first responders could radically improve the states’ abilities to aid their people.

Mexico has also been generous toward its northern neighbor in the past during times of crisis.

In the wake of Hurricane Katrina in 2012, the Mexican government offered, and the George W. Bush administration wisely accepted, assistance that saw Mexican troops on U.S. soil for the first time since the Mexican-American War. Mexican soldiers distributed more than 170,000 meals, delivered more than 184,000 tons of supplies, and provided more than 500 medical consultations to people across Louisiana and Mississippi.

Bush, a Texan who understood the importance of what he characterized as perhaps America’s most important relationship, personally thanked the Mexican soldiers providing assistance in Biloxi, Mississippi.

But the Trump administration has failed to take Mexico up on its offer to help with recovery efforts. This refusal increases the danger that the people of Texas and Louisiana face with each passing moment.

It’s Time: Congress Needs to Open a Formal Impeachment Inquiry - Lawfare

It’s Time: Congress Needs to Open a Formal Impeachment Inquiry - Lawfare

by Jane Chong and Benjamin Wittes

Last Tuesday, the New York Times published a foggy story noting that Senate majority leader Mitch McConnell "has mused about whether Mr. Trump will be in a position to lead the Republican Party into next year’s elections and beyond."

The time for musing has passed. It’s now time to begin a serious conversation about the impeachment and removal of President Trump by opening a formal impeachment inquiry.

The evidence of criminality on Trump’s part is little clearer today than it was a day, a week, or a month ago. But no conscientious member of the House of Representatives can at this stage fail to share McConnell’s doubts about Trump’s fundamental fitness for office. As the Trump presidency enters its eighth month, those members of Congress who are serious about their oaths to "support and defend the Constitution" must confront a question. It’s not, in the first instance, whether the President should be removed from office, or even whether he should be impeached. It is merely this: whether given everything Trump has done, said, tweeted and indeed been since his inauguration, the House has a duty, as a body, to think about its obligations under the impeachment clauses of the Constitution—that is, whether the House needs to authorize the Judiciary Committee to open a formal inquiry into possible impeachment.

It’s not a hard question. Indeed, merely to ask it plainly is also to answer it.>>>

Arpaio Pardon Would Show Contempt for Constitution

President Trump Pardons Sheriff Joseph Arpaio

The President...shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.
Article II, Section 2, Clause 1

Ex parte Garland 71 U.S. 333 (1866)

Arpaio Pardon Would Show Contempt for Constitution - Bloomberg
by Noah Feldman // Bloomberg View

Is Accepting a Pardon an Admission of Guilt?
by Eugene Volokh //WaPo

Trump's Law and Order is Weak on the Law
by Maggie Haberman // NY Times

Trump's Pardon Follows the Law Yet Challenges It
by Adam Liptak // NY Times

WASHINGTON — President Trump’s decision to pardon Joe Arpaio was characteristically unconventional. It came late on a Friday night as a hurricane bore down on Texas. It concerned a crime some said was particularly ill-suited to clemency, and it was not the product of the care and deliberation that have informed pardons by other presidents.

But it was almost certainly lawful. The Constitution gives presidents extremely broad power to grant pardons.

Last month, a federal judge found Mr. Arpaio, a former Arizona sheriff, guilty of criminal contempt for defying a court order to stop detaining immigrants based solely on the suspicion that they were in the country illegally. The order had been issued in a lawsuit that accused the sheriff’s office of violating the Constitution by using racial profiling to jail Latinos. Mr. Arpaio had faced a sentence of up to six months in jail.

Mr. Trump thus used his constitutional power to block a federal judge’s effort to enforce the Constitution. Legal experts said they found this to be the most troubling aspect of the pardon, given that it excused the lawlessness of an official who had sworn to defend the constitutional structure.

Noah Feldman, a law professor at Harvard, argued before the pardon was issued that such a move “would express presidential contempt for the Constitution.”

Continue reading the main story

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Continue reading the main story

“Arpaio didn’t just violate a law passed by Congress,” Professor Feldman wrote on Bloomberg View. “His actions defied the Constitution itself, the bedrock of the entire system of government.” By saying Mr. Arpaio’s offense was forgivable, Professor Feldman added, Mr. Trump threatens “the very structure on which his right to pardon is based.”

It was the first act of outright defiance against the judiciary by a president who has not been shy about criticizing federal judges who ruled against his businesses and policies. But while the move may have been unusual, there is nothing in the text of the Constitution’s pardons clause to suggest that he exceeded his authority.

The president, the clause says, “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.”

The pardon power extends only to federal crimes. Otherwise, presidents are free to use it as they see fit. As the Supreme Court put it in an 1866 decision involving a former Confederate senator, Ex Parte Garland, the power “is unlimited.”

“It extends,” the court said, “to every offense known to the law.”

In a tweet last month, Mr. Trump indicated that he had studied the matter in the context of the investigation of ties between the Trump campaign and Russia. “All agree the U.S. president has the complete power to pardon,” he wrote.

Behold Our Child King = Peter Wehner - NY Times

In case you think Wehner is a RINO, think again.  He is as died in the wool as one can be - praised by Robert George as "the conscience of the conservative movement".
Behold Our ‘Child King’ - The New York Times

by Peter Wehner (After serving in the Reagan and George H.W. Bush Administrations, Wehner was deputy director of speechwriting for President George W. Bush and a senior adviser to the Romney-Ryan 2012 presidential campaign.)
consevative as you get.
***A confrontation is inevitable. The alternative is to continue to further tie the fate and the reputation of the Republican Party to a president who seems destined for epic failure and whose words stir the hearts of white supremacists.

We are well past the point where equivocations are defensible, and we’re nearly past the point where a moral reconstitution is possible. The damage Mr. Trump has inflicted on the Republican Party is already enormous. If the party doesn’t make a clean break with him, it will be generational.

Trump Takes Aim at the Press, With a Flamethrower - The New York Times

Trump Takes Aim at the Press, With a Flamethrower - The New York Times
by Jim Rutenberg

Every time you think President Trump’s anti-press rhetoric can’t get worse, he finds a way of surprising you and not surprising you all at the same time.

That he will attack journalists on a regular basis should be expected at this point, and it is. The surprising part comes when he manages to outdo himself. After all, he couldn’t possibly top “enemy of the people,” could he?

Yet there he was in Phoenix on Tuesday, telling a crowd of thousands of ardent supporters that journalists were “sick people” who he believes “don’t like our country,” and are “trying to take away our history and our heritage.”

The moment matters. Mr. Trump’s latest attack on the media came at a time of heightened racial tension stoked by a white supremacists’ rally in Charlottesville, Va., and continuing now in the national debate over removing statues that commemorate Confederate figures from the Civil War. Mr. Trump’s speech in Phoenix reprised a question spawned by his raucous rallies during the presidential campaign: How long before someone is seriously hurt, or worse?

“Coming off the violence in Charlottesville, with tensions so high and the kindling so dry, it felt like President Trump was playing recklessly with fire, singling out a specific group of people — the media — for disliking America and trying to erase our country’s heritage,” Jim VandeHei, chief executive of the Axios news website, told me. “He’s just wrong to paint so wildly with such a broad brush, and, worse, putting reporters at real risk of retribution or violence.”

Why Vietnam Was Unwinnable - The New York Times

Why Vietnam Was Unwinnable - The New York Times
by Kevin Boylan

Although the United States undoubtedly had the means to prevail in Vietnam, the war was unwinnable at the level of commitment and sacrifice that our nation was willing to sustain. As the renowned historian George Herring put it, the war could not “have been ‘won’ in any meaningful sense at a moral or material cost most Americans deemed acceptable.”

Perhaps the key lesson of Vietnam is that if the reasons for going to war are not compelling enough for our leaders to demand that all Americans make sacrifices in pursuit of victory, then perhaps we should not go to war at all. Sacrifice should not be demanded solely of those who risk life and limb for their country in combat theaters overseas.

Kevin Boylan is a military historian at the University of Wisconsin-Oshkosh and the author of “Losing Binh Dinh: The Failure of Pacification and Vietnamization, 1969-1971.” He worked for the Department of Defense and Army staff’s War Plans Division from 1995 to 2005.

The Real Threat to America Comes From Americans | Foreign Policy

The Real Threat to America Comes From Americans | Foreign Policy
by Kim Ghattas

This month, a man was arrested in Oklahoma City for trying to detonate 1,000 pounds of explosives in a cargo van parked downtown. The attack, he hoped, would cripple the government and start a revolution. Last October, three men were arrested in Kansas for plotting to bomb an apartment complex and a mosque using four cars laden with explosives.

In these febrile days, where terrorists have sought to wreak fear and chaos from Orlando to Paris, and now Barcelona, you’d expect wall-to-wall coverage on cable news about these foiled plots. Terrorism experts would be wheeled out to opine for hours on all angles, from the explosives used to the profile of the would-be attackers to how and why they were radicalized.***

W.E.B. DuBois on Robert E. Lee – CIVIL WAR MEMORY

W.E.B. DuBois on Robert E. Lee – CIVIL WAR MEMORY

Robert E. Lee

Each year on the 19th of January there is renewed effort to canonize Robert E. Lee, the greatest confederate general. His personal comeliness, his aristocratic birth and his military prowess all call for the verdict of greatness and genius. But one thing–one terrible fact–militates against this and that is the inescapable truth that Robert E. Lee led a bloody war to perpetuate slavery. Copperheads like the New York Times may magisterially declare: “of course, he never fought for slavery.” Well, for what did he fight? State rights? Nonsense. The South cared only for State Rights as a weapon to defend slavery. If nationalism had been a stronger defense of the slave system than particularism, the South would have been as nationalistic in 1861 as it had been in 1812.

No. People do not go to war for abstract theories of government. They fight for property and privilege and that was what Virginia fought for in the Civil War. And Lee followed Virginia. He followed Virginia not because he particularly loved slavery (although he certainly did not hate it), but because he did not have the moral courage to stand against his family and his clan. Lee hesitated and hung his head in shame because he was asked to lead armies against human progress and Christian decency and did not dare refuse. He surrendered not to Grant, but to Negro Emancipation.

Today we can best perpetuate his memory and his nobler traits not by falsifying his moral debacle, but by explaining it to the young white south. 

Trump's Charlottesville Reaction Emboldens the Far-Right - The Atlantic

Trump's Charlottesville Reaction Emboldens the Far-Right - The Atlantic
*** Clare Foran (: What did you think about the criticism that there wasn’t an adequate police response to the violence in Charlottesville?

Michael German: Well, what I believe we’ve seen over the past several months, and what we saw take place in Charlottesville, too, is that police are not aggressively policing these protests to prevent violence. In April, nearly a dozen people were injured in Berkeley when self-styled alt-right activists promoted and engaged in acts of violence and militia members showed up to tell reporters they would “enjoy” attacking counter-protesters. Violence broke out at a pro-Trump rally in Huntington Beach, California, in March. And in Portland, at an alt-right rally in June, a militia member reportedly aided the Department of Homeland Security in making an arrest.
These militia groups show up saying that they are there to serve as security at these protests, and we saw that in Charlottesville, too, but even in an open-carry state you can’t set yourself up as a security force or a security guard without a license to do so. That’s not legal, and it’s not legitimate. So why is the state allowing them to serve as security at these protests?

It’s also clearly very different than the way we’ve seen police react to nonviolent protests like the Occupy Movement, or the protests at Standing Rock, where we saw an extremely aggressive policing take place. We did not see that kind of a police response in Charlottesville***

Campo dei Fiori by Czeslaw Milosz | Poetry Foundation

Warsaw 1943
What one with eyes open saw as the ghetto burned.
Campo dei Fiori by Czeslaw Milosz | Poetry Foundation

I thought of the Campo dei Fiori

in Warsaw by the sky-carousel

one clear spring evening

to the strains of a carnival tune.

The bright melody drowned

the salvos from the ghetto wall,

and couples were flying

high in the cloudless sky.

At times wind from the burning

would drift dark kites along

and riders on the carousel

caught petals in midair.

That same hot wind

blew open the skirts of the girls

and the crowds were laughing

on that beautiful Warsaw Sunday.

Someone will read as moral

that the people of Rome or Warsaw

haggle, laugh, make love

as they pass by the martyrs' pyres.

Someone else will read

of the passing of things human,

of the oblivion

born before the flames have died.

But that day I thought only

of the loneliness of the dying,

of how, when Giordano

climbed to his burning

he could not find

in any human tongue

words for mankind,

mankind who live on.

Fordham University Statement on Charlottesville

University Statement on Charlottesville

Dear Members of the Fordham Family,

You have likely heard of the ugly events that took place in Charlottesville on Saturday. Fascism, Nazism, and Racism were literally on the march, and at this point we know of one person killed and at least 19 injured, believed to be the victims of the action of a deluded and hateful member of the racist mob that gathered in Charlottesville for a white supremacy rally. I know you join me in mourning both the woman who was killed, and the two police officers who died when their helicopter crashed that afternoon. Our thoughts and prayers are with their families, and with the people who were injured and their loved ones.

I am a historian, and I can assure you that the marchers, and almost certainly the person who drove into the crowd of peaceful demonstrators, are on the wrong side of history (I say “almost” because it is still possible, if unlikely, that the act was unintentional). I believe that rights for people of color, LGBT people, Jewish people, immigrants—and all of the would-be targets of Saturday’s marchers—will continue to expand and be protected in our country. If this incident has a silver lining, it is the swift, bipartisan rejection of the marchers’ rhetoric, beliefs, goals and actions.

As a priest, as a university president, and as a human being, my heart goes out to the intended targets and victims of the march, victims who number in the millions, and who include marginalized people everywhere, and anyone who cares about decency, compassion, and justice. Fordham University stands against everything the marchers represent—the hate, the bigotry, the profound ignorance, the casual cruelty, and the violent and vicious expression of those views. Such ideas and sentiments have no place in a civilized society, and of course are completely antithetical to both the Gospel values and Jesuit beliefs that have always guided the University.

I know many of you will not be back on campus for another ten days or so: the University will certainly support events for members of the University community who wish to come together for reflection and prayer in the wake of the events in Charlottesville.

Finally, to those who feel targeted by the Charlottesville marchers, know that the Fordham community supports you and is here for you. Though it may not seem so in moments like this, decency and compassion do prevail. We will get though this trying time together.

Sincerely,

Joseph M. McShane, S.J

HSK Test Tips Written Chinese

HSK Test Taking Tips
Written Chinese

Environment, Law, and History: Tort and environmental regulation

Environment, Law, and History: Tort and environmental regulation

Tort and environmental regulation

by David Schorr

Douglas Kysar recently posted "The Public Life of Private Law: Tort Law as a Risk Regulation Mechanism", which, among other things, takes issue with the supposed inability of tort law to deal with complex environmental issues; or as the New York Court of Appeals put it in the leading case of Boomer v. Atlantic Cement Co., "the judicial establishment is neither equipped... nor prepared to lay down and implement an effective policy for the elimination of air pollution".

Kysar argues that "rather than common law litigation being displaced by more sophisticated regulatory approaches, the latter instead may well have depended on the former for their sophistication", and backs up his claim with a case study (in order not to spoil the suspense in his article, after the jump):

In Renken v. Harvey Aluminum (Incorporated), 226 F. Supp. 169 (1963) (there are a number of reported decision in this dispute), the plaintiffs (after much interesting drama) won a judgment ordering the polluter to install specific pollution control technology. Later, Kysar reports, the plaintiffs' lawyers were turned to for their expertise in implementing the "best available technology" standard at the heart of federal environmental legislation.

Judge John F. Kilkenny

Judge Kilkenny of the Federal District Court of Oregon did not, Kysar writes,

let the potential “publicness” of the issues distract him. His opinion remains tightly focused on the particular relationship of wrongdoing at bar and he does not fret over whether the remedy ordered could more effectively be promoted through legislative or administrative means. Such a focus is critical, for tort law and regulation are complements rather than substitutes—an idea all too often forgotten in the debate over how best to govern the causes and consequences of environmental, health, and safety threats

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Donald Trump: Chickenhawk in Chief - The Atlantic

Donald Trump: Chickenhawk in Chief - The Atlantic
by James Fallows

Urban myth: Were Vietnam vets really insulted when they returned? - NYTimes.com

Donald Trump, a chickenhawk, is making vitriolic attacks on Sen.Richard Blumenthal for placing himself among those who "returned" from Vietnam.  And suffered from derision and insult.
Such self-aggrandizement is offensive.  Blumenthal got deferments (as did I - M.  And then suffered insults.  There is NO EVIDENCE of such events.  As an activist against the war in Vietnam I do not recall a single word spoken against the troops.  They were, of course draftees.  And we were all subject to the draft.  We did denounce the war and tactics like carpet bombing, use of napalm, strategic hamlets, deforestation via agent orange, and the entire effort as a neo-colonial sequel to the French suppression of a legitimate movement for national independence.
Blumenthal’s Words Differ From His History - NYTimes.com

In an interview, Jean Risley, the chairwoman of the Connecticut Vietnam Veterans MemorialInc., recalled listening to an emotional Mr. Blumenthal offering remarks at the dedication of the memorial. She remembered him describing the indignities that he and other veterans faced when they returned from Vietnam.

“It was a sad moment,” she recalled. “He said, ‘When we came back, we were spat on; we couldn’t wear our uniforms.’ It looked like he was sad to me when he said it.”

Ms. Risley later telephoned the reporter to say she had checked into Mr. Blumenthal’s military background and learned that he had not, in fact, served in Vietnam.

Fordham's labor relations difficult

https://www.ncronline.org/news/people/fordham-endures-disputes-over-faculty-health-care-unionizing

"Lock her up" the Trump fans cheered at Thursday evening's Trump rally in West Virginia. The bases of this ugliness are complex. Whites have long acquiesced in segregation and blatant discrimination against Black people. But no such tolerance is shown for affirmative action. At Fordham we definitely look to recruit
minority students and faculty. African American and Hispanic faculty are well represented and strongly credentialed. But we are below the norm on student body diversity.

Why? Fordham is a competitive school admitting about 1/3 of applicants. Median LSAT scores of matriculated J.D. students are about 165 - in the top 10% of test takers. That sharply limits the number of minority students because as explained below, few score very high. - gwc
"Students seeking admission to the nation's highest-ranked law schools such as Yale, Harvard, and Stanford have a mean LSAT score of about 170. Data obtained by JBHE from the Law School Admission Council shows that very few blacks nationwide score at this level.

In 2004, 10,370 blacks took the LSAT examination. Only 29 blacks, or 0.3 percent of all LSAT test takers, scored 170 or above. In contrast, more than 1,900 white test takers scored 170 or above on the LSAT. They made up 3.1 percent of all white test takers. Thus whites were more than 10 times as likely as blacks to score 170 or above on the LSAT. There were 66 times as many whites as blacks who scored 170 or above on the test.
Even if we drop the scoring level to 165, a level equal to the mean score of students enrolling at law schools ranked in the top 10 nationwide but not at the very top, we still find very few blacks. There were 108 blacks scoring 165 or better on the LSAT in 2004. They made up 1 percent of all black test takers. For whites, there were 6,689 test takers who scored 165 or above. They made up 10.6 percent of all white students who took the LSAT examination.

The nation's top law schools could fill their classes exclusively with students who scored 165 or above on the LSAT. But if they were to do so, these law schools would have almost no black students."
http://www.jbhe.com/news_v…/51_graduate_admissions_test.html
gwcl

MDL panel reluctant to consolidate cases

http://m.therecorder.com/#/article/1202794152126/MDL-Panel-Appears-Reluctant-to-Consolidate-Cases?kw=MDL%20Panel%20Appears%20Reluctant%20to%20Consolidate%20Cases&et=editorial&bu=New%20Jersey%20Law%20Journal&cn=20170801&src=EMC-Email&pt=Daily%20News%20Alert&_almReferrer=android-app:%2F%2Fcom.google.android.gm

Prosecutors rarely punished

She Was Convicted of Killing Her Mother. Prosecutors Withheld the Evidence That Would Have Freed Her. https://nyti.ms/2hjPx4e