Monday, December 31, 2018
Sunday, December 30, 2018
Saturday, December 29, 2018
by Joyce White Vance (former United States Attorney, Northern District of Alabama)
Friday, December 28, 2018
In Major Move, Census Bureau Offers Up Citizenship Data For Redistricting – Talking Points Memo: In what could be a major change for voting rights and the distribution of political power between urban and rural areas,...
Wednesday, December 26, 2018
Tuesday, December 25, 2018
Monday, December 24, 2018
Sunday, December 23, 2018
Beto O'Rourke is the new Obama. And that's the last thing we need | David Sirota | Opinion | The Guardian
Beto O'Rourke is the new Obama. And that's the last thing we need | David Sirota | Opinion | The Guardian: Betomania may have befallen Washington elites, but replicating an Obama presidency would be a tragedy.
Why another Obama would be a tragedy
Saturday, December 22, 2018
Beto O'Rourke's essay on the Christmas shutdown reveals a man whose thinking out in the open strikes the sae sort of notes as his fellow Columbia college alumnus Barack Obama. He has the same directness, logical train of thought and aspirational approach. The two term Texas Member of Congress shows that he has the intellectual competence to present himself credibly for high office, as his Senate race showed. He is definitely worth watching as 2020 approaches. - gwc
Closed until further notice – Beto O'Rourke – Medium: The government of the greatest country the world has ever known, the wealthiest, most powerful nation on the planet: closed until further notice. This shutdown – hundreds of thousands of our fellow Americans working without pay during the holidays, basic government functions no longer available to the taxpayers who fund them – didn’t have to happen. The Senate passed a compromise government funding bill two days ago, 100–0. The men and women who can’t agree on what to name a post office were able to unite and unanimously agree on how to fund the entire government.
by Eliot A. Cohen (Counselor of the State Department 2007-2009)
Friday, December 21, 2018
Trump's expected nominee for Attorney General William P. Barr (who held the office during the first Bush presidency) is an advocate of the broad view of presidential power known as the "unitary executive". Perhaps angling for a job on rump's team in June 2018 Barr wrote a very detailed memo attacking the obstruction of justice case he understands Special Counsel Robert Mueller to be developing.
Bar admits that "corrupt" intent can make a president's actions criminal and impeachable. He then sets about whittling down Trump's exposure. Former Deputy Attorney General Harry Litman has done a careful analysis of Barr's view. the excerpt below captures the concerns that I had in my cursory reading of the document - which requires mush more thought than I have been able to give it so far. A flood of commentary has already begun.- GWC
Barr’s memo on Mueller embraces a dubious constitutional vision - The Washington Post: Senators must probe Bill Barr on his views about Bob Mueller's investigation.
by Harry Litman
****There are substantial counter-arguments to Barr’s analysis — though he doesn’t spend a lot of time identifying and rebutting possible objections. But it is in fleshing out his statutory conclusion that Barr wanders into constitutional territory that I believe is dubious and, depending on very plausible courses of events in the coming year, alarming.
Barr seems here to suggest that a president cannot commit a crime or violate the Constitution if he is exercising an enumerated executive power, such as appointment, removal or pardon. To date, I am aware of nobody other than Rudolph W. Giuliani and Alan Dershowitz who have advanced this view. It is a royalist mind-set that cannot be squared with the constitutional text and structure, important decisions of the Supreme Court, and our strongest shared intuitions about unconstitutional conduct (for example, the president’s removal of an official for reasons of rank racial prejudice). ***
Hearings, counsel required before suspending driver’s licenses in delinquent child support cases - NJ Superior Court
Responding to Congressional pressure and the problem of substantial delinquencies in court-ordered child support payments - much of it owed to the state which sought to recover welfare payments - New Jersey in 1998 amended its child support act, providing in NJSA 2A:17-56.41 (a) for suspension of driving licenses “as a matter of law” if a child support arrearage equals or exceeds the amount of child support payable for six months or court-ordered health care coverage for the child is not provided for six months”. Judges, on the recommendation of probation officers, issued failure to pay (FTP) warrants by virtue of which the statutes provides the “ obligor's driver's license shall be suspended by operation of law”.
In Trenton Superior Court Judge Mary Jacobson has ruled that this “automatic” suspension of driving privileges violates both “due process” and “fundamental fairness”. Relying on our State Constitution in her 187 page opinion in Kavadas v. Martinez as Chief Administrator of the Motor Vehicle Division, the Mercer County Assignment judge enjoined such automatic suspensions and gave the State 120 days to devise regulations to eliminate this practice by which some 20,000 people each year have lost their driving licenses without notice or an opportunity to be heard.
The obligation to pay child support depends on the ability to comply with court-ordered child support payments. Delinquency is concentrated among low income parents with support obligations. It is only willful failure to pay that is enforceable and sanctionable. Jacobson therefore ordered the state to provide counsel to indigent obligors who seek to demonstrate their inability to pay, typically due to changed circumstances such as job loss, ill health, etc. Building on the landmark ruling in Pasqua v. Council (2006), in an opinion by Justice Barry Albin the state Supreme Court required that “attorneys be appointed to assist indigent non-custodial parents facing incarceration at child support enforcement hearings”.
Aside from the automatic license suspensions enjoined, in some circumstances a hearing officer may recommend or a judge may order suspension of a license as a punitive and coercive measure. Plaintiffs, represented by the lawyer who prevailed in Pasqua, sought to extend the right to appointed counsel to all indigent obligors who faced serious consequences for failure to pay child support. Judge Jacobson extended the Pasqua principle to some civil enforcement of litigants’ rights hearings. She explained that “both due process and fundamental fairness require courts to provide counsel to indigent obligors at any hearing at which a hearing officer may recommend a driver’s license suspension to a court, or at any hearing when the family court itself is considering a driver’s license suspension.”
In her comprehensive opinion Judge Jacobson took note of a 2006 study by the Bloustein School of Planning and Public Policy with the New Jersey Motor Vehicle Commission - Motor Vehicles Affordability and Fairness. The report “found that 42% of individuals who had their licenses suspended lost jobs as a result of the suspension, 45% of those who lost jobs could not find another job, and 88% of those that were able to find another job reported a decrease in income.” Jacobson wrote that “[e]ven though most of the Report’s findings addressed license suspensions in general and did not focus on child support-related suspensions, it is reasonable to assume that the affected dependents likely included many children who are the subject of child support orders, and the very individuals that the automatic license suspensions were intended to benefit.” The Bloustein/MCV report also found that in low income areas “child support suspension rates for drivers...were ten times higher than the Statewide average.”
Judge Jacobson’s ruling addresses an important public problem. It is to be hoped that Philip Murphy, the state's Democratic Governor, his Attorney General, and the Division of Family Development will work diligently and earnestly to produce the new regulations which the court has granted 120 days to formulate. Judge Jacobson declined to make her order retroactive. Thousands of parents - especially low income -doubtless remain stranded without driving privileges. Their status is something which the Legislature can and should address.
Finally, as the judge urged, the Legislature should “remove the provision directing automatic suspension of drivers licenses upon issuance of a support-related warrant.” Judge Jacobson opined that “[s]uch an amendment would also end New Jersey’s outlier status as the only state utilizing this linkage and would restore the procedural protections originally afforded to obligors facing driver’s license suspensions.”
- George Conk
December 14, 2018
Only Roberts respected the plain language. One is entitled to seek asylum regardless of point of entry.
Auto, Thomas, For such, Kavanaugh backed Trump.
by Marty Lederman December 21, 2018
DOJ doesn’t dispute that this is such a case. Subsection (d), in turn, provides that “[w]here an employee’s participation in a particular matter involving specific parties would not violate 18 U.S.C. 208(a), but would raise a question in the mind of a reasonable person about his impartiality, the agency designee may authorize the employee to participate in the matter based on a determination, made in light of all relevant circumstances, that the interest of the Government in the employee’s participation outweighs the concern that a reasonable person may question the integrity of the agency’s programs and operations.” The regulation goes on to provide that several specific “factors . . . may be taken into consideration,” including:
Thursday, December 20, 2018
William Barr's Memo Makes Compelling Case that Trump Must Be Impeached | emptywheel: A lot of people are reading William Barr's memo on why an imaginary Mueller investigation that has nothing in common with the real one is improper and worrying that he'll tamper with the Mueller probe. But given the actual facts, the memo can be used to make the case for impeachment.
Federal Appeals Courts Halts Emoluments Case While Trump Appeals – Talking Points Memo:
A federal appeals Thursday froze a lower court case accusing Trump of violating the Constitution’s emoluments clause, halting discovery in the matter pending the resolution of the appeal.
A Lawyer’s Duty to Inform a Current or Former Client of the Lawyer’s Material Error - ABA Formal Opinion 481
Trump is about to get his wish: Once and future Attorney General William Barr, a Federalist Society stalwart thinks the executive branch is an arm of the President therefore any policy of his must be respected. This is the plenary power doctrine.
Ian Millhiser has not blinked from pointing out that the Supreme Court has been an enemy of democracy throughout our history - with a brief window of 1954 - 1968. It is at one of its lowest points now. - gwc
Let’s Think About Court-Packing : Democracy Journal: Yes, it’s a dangerous tactic. But so is permitting a reality in which Republicans win rigged elections and the Supreme Court winks.
by Ian Millhiser // Center for American Progress
Wednesday, December 19, 2018
by David Corn
- Trump, while campaigning for president, had a secret deal in Russia for which his attorney sought Putin’s help. Trump lied to the public about this.
- Trump’s campaign was informed that Moscow intended to intervene to help Trump. It said nothing about this information, essentially encouraged the Kremlin, and denied Moscow’s involvement once the Russian hack-and-dump attack became publicly known.
- Trump, after being told the Kremlin was attempting to subvert an American election, claimed no such thing was happening. He covered for Putin.
Is it possible for an American Vice President to carry out a criminal enterprise inside the White House and have nobody remember? To have one of the most brazen political bribery scandals in American history play out before the country while nobody’s paying attention? In her first original podcast, MSNBC’s Rachel Maddow goes back 45 years to dig into a story that got overshadowed in its day.
ON December 18 the ABA Administrative Law section hosted a telephone webinar on the Vacancies Act, the Constitution, and the Appointment of Matthew Whitaker.
• Marty Lederman, Visiting Professor of Law, Georgetown Law School
• Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School
• Anne Joseph O’Connell, Professor of Law, Stanford Law School
• Stephen Vladeck, A. Dalton Cross Professor in Law, University of Texas School of Law
Jennifer Mascott will shed light on early historical practices and discuss how these practices might shape the current constitutional analysis. Marty Lederman will suggest that the Department of Justice’s succession act should be read to prevent Whitaker from serving as Acting Attorney General in order to avoid a serious constitutional question. Anne Joseph O’Connell will moderate the discussion and provide some data on modern practices.
Tuesday, December 18, 2018
Do you recall him discussing this in 2016? I didn't think so.
Letter of intent and term sheet October 28, 2015
by Samuel Moryn
Monday, December 17, 2018
by Paul Waldman
How Russia did it - the New Knowledge white paper - Tactics and Tropes of the Internet Research Agency
How the Russians did it.
The tactics and tropes of the Internet Research Agency
Sunday, December 16, 2018
A year after a groundbreaking series on race in Boston, has anything gotten better? https://www.bostonglobe.com/metro/2018/12/16/year-after-groundbreaking-series-race-boston-has-anything-gotten-better/MRxbVP6w9fWSQWkS2g81rL/story.html
John Gibbons Dies at 94; Argued for Rights for Guantánamo Detainees - The New York Times: As a lawyer, he put his faith in equal access to the courts for all, including rioters in Newark in the 1960s; he also served as a federal appellate judge.
John J. Gibbons, a lawyer who persuaded the authorities in Newark to provide access to the courts for people detained during riots in 1967 and nearly 40 years later argued successfully before the Supreme Court that foreign prisoners at the Guantánamo Bay Naval Base in Cuba had legal rights too, died on Dec. 9 in Maplewood, N.J. He was 94.
His death, at an assisted living facility, was confirmed by his daughter Mary Gibbons Whipple, a Superior Court judge in New Jersey.
Mr. Gibbons also spent 20 years as a judge on the United States Court of Appeals for the Third Circuit, which is based in Philadelphia; he was its chief judge for three years.
The Guantánamo detainees — 16 were involved in two consolidated cases — contended that they had been denied access to lawyers and federal courts in violation of their due process rights. Lawyers representing the administration of President George W. Bush responded that the courts had no jurisdiction over the base because the detainees were not American citizens and not on American soil.