Justices gut federal power to regulate coal plant emissions | Courthouse News Service

The conservative super-majority has created the "major questions doctrine".  It is in sharp contrast to the sorts of review provided by the Administrative Procedure Act. 

Justice Elena Kagan today wrote:

"The current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the 'major questions doctrine' magically appear as get out-of-text-free cards"

- GWC

Justices gut federal power to regulate coal plant emissions | Courthouse News Service

By Kelsey Reichmann

WASHINGTON (CN) — President Biden’s climate agenda got chipped away by the Supreme Court on Friday in a 6-3 ruling in West Virginia v. Environmental Protection Agency.  Chief Justice John Roberts recounts the history of the Clean Air Act:

Since passage of the Act 50 years ago, EPA has exercised this authority by setting performance standards based on measures that would reduce pollution by causing plants to operate more cleanly. In 2015, however, EPA issued a new rule concluding that the “best system of emission reduction” for existing coal-fired power plants included a requirement that such facilities reduce their own production of electricity, or subsidize increased generation by natural gas, wind, or solar sources. The question before us is whether this broader conception of EPA’s authority is within the power granted to it by the Clean Air Act.  

Writing for the conservative supermajority, Chief Justice John Roberts said the power to regulate carbon dioxide emissions lies with Congress, not the Environmental Protection Agency. 

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible ‘solution to the crisis of the day,’” the Bush appointee wrote. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d). A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.” 

Justice Elena Kagan headed a dissent by the three Democrat-appointed justices. 

“Today, the Court strips the Environmental Protection Agency of the power Congress gave it to respond to ‘the most pressing environmental challenge of our time,’” the Obama appointee wrote.  

President Joe Biden called the ruling devastating and said it aims to move the country backward.

US marks ascension of Jackson to Supreme Court | Courthouse News Service

US marks ascension of Ketanji Brown Jackson to Supreme Court | Courthouse News Service

Climate change, voting rights, and abortion at the Supreme Court: just the beginning./Mark Joseph Stern//Slate

Climate change, voting rights, and abortion at the Supreme Court: just the beginning.

By Mark Joseph Stern // SLATE

No single day has better captured the current state of the Supreme Court than Thursday. At 10 a.m., the court issued a devastating assault on the Biden administration’s ability to regulate greenhouse gases in a 6–3 ruling joined by all of the court’s reactionary block. Ten minutes later, it issued a 5–4 opinion that just barely confirmed that the president, rather than a rogue judge in Texas, has authority over border policy, with Chief Justice John Roberts and Justice Brett Kavanaugh lending the lone votes preventing an absolutely insane outcome. Shortly thereafter, the court issued a bombshell orders list that tees up, for next term, one of the most important and dangerous democracy cases in American history, which asks whether state legislatures have near-unlimited authority over election laws.

The court’s most immediately lethal decision remains Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. But do not let Dobbs distract from the onslaught that followed it. If anyone still doubted that the Supreme Court served as the nation’s chief policymaking institution after Dobbs, Thursday should put that to rest. The court is ruthlessly efficient, putting our gridlocked Congress to shame with its speedy and definitive resolution of the most pressing issues facing the country today. It does not require hourslong hearings or endless negotiations to operate. The six-justice conservative majority chooses which conflicts to prioritize, takes up cases that present them, then picks a winner, nearly always for the benefit of the conservative movement and the Republican Party.

Consider the issues that SCOTUS has resolved this term—the first full term with a 6–3 conservative supermajority. The constitutional right to abortion: gone. States’ ability to limit guns in public: gone. Tribal sovereignty against state intrusion: gone. Effective constraints around separation of church and state: gone. The bar on prayer in public schools: gone. Effective enforcement of Miranda warnings: gone. The ability to sue violent border agents: gone. The Environmental Protection Agency’s authority to regulate greenhouse gases at power plants: gone. Vast areas of the law, established over the course of decades, washed away by a court over a few months.

There is no serious risk of another branch overriding these decisions. The squabbling among our elected representatives is, increasingly, a sideshow, with the court nudging along the decline of voters’ ability to shape their democracy. One-third of the court was appointed by a president who lost the popular vote, yet the majority evinces not a shred of caution about overriding the democratic branches or its own predecessors on the bench. It imposes Republican policies far more effectively than the Republican Party ever could. Real power in this country no longer lies in the people. It resides at the Supreme Court.

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Justice Involvement During COVID-19 and the Possibility of Transitional Justice

Justice Involvement During COVID-19 and the Possibility of Transitional Justice By Rachel A. Ponderrponder1@vols.utk.edu 

New leader for Office of Black Catholic Ministries brings background in social justice - BANPEE GROUP

New leader for Office of Black Catholic Ministries brings background in social justice - BANPEE GROUP

 Black Catholic Ministry and Juneteenth - Interview with Adrienne Curry

As Adrienne Curry prepares to take on a new role as director of the Archdiocese of Baltimore’s Office of Black Catholic Ministries, she hopes to apply her extensive background in the social justice movement and her pastoral experience to support the Black Catholic community in Maryland.

“The bishops said that racism is a sin and it’s an affront to the dignity of the human person,” said Curry, a Chicago native who most recently served as the social action director for the Diocese of Youngstown, Ohio, “but, as they say, Catholic social teaching is our best-kept secret. So part of my job will be to educate people on the principles of Catholic social teaching and apply it to everyday life. So, definitely, eradicating racism is part of that. ”

For the past year, Curry has worked on her doctoral thesis at Lexington Theological Seminary in Kentucky, studying anti-racism in the Diocese of Youngstown. She begins her new role in Baltimore July 5, succeeding Sherita Thomas, interim director of the office.

In announcing the appointment June 17, Baltimore Archbishop William E. Lori said Curry will “advocate for the needs and concerns of the Black Catholic community and work to enhance the efforts of local parishes to eliminate barriers to evangelization, especially barriers of racial prejudice.”

The archbishop said Curry will serve as a member of the archdiocese’s Journey to the Racial Justice Coordinating Council and will help implement his call for racial justice that was discussed in his two pastoral letters, “The Enduring Power of Dr. Martin Luther King Jr.’s Principles of Nonviolence ”and“ The Journey to Racial Justice: Repentance, Healing and Action. ”

Curry ministered in a variety of roles in the Archdiocese of Chicago, including program director for Catholic Relief Services, the US bishop’s Baltimore-based international relief agency. She worked in Lexington as a pastoral associate for parish social ministry. In Youngstown, her responsibilities included overseeing programs of the diocesan Office of Social Action and managing grants from the Catholic Campaign for Human Development.

Scotus: Christian anti-gay schools entitled to state funding Carson v. Makin (06/21/2022)

Maine law provides state funding for students who live in School districts without a secondary school.  The Supreme Court today declared that Maine must provide such funding to schools that deny enrollment to students based on the students own religion, sexual orientation, and gender identity.  So, in the opinion of C.J. Roberts and the usual lineup of conservative Catholics on the Court, freedom of religion - the right to worship in a manner of your own choosing - requires Maine to fund what in any other context would be unlawful and is contrary to the principle of secular public education. - gwc

20-1088 Carson v. Makin (06/21/2022)

Sotomayor dissenting:

***From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction. ....In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds.... See ante, at 16 (BREYER, J., dissenting) (summarizing Bangor Christian Schools’ and Temple Academy’s policies denying enrollment to students based on gender identity, sexual orientation, and religion). The upshot is that Maine must choose between giving subsidies to its residents or refraining from financing religious teaching and practices.

New York Post Editor Sohrab Ahmari’s Strange Journey From Communist to ‘Theocrat’

When Adrian Vermeule's Common Good Constitutionalism was published a few months ago I eagerly read it.  I was intrigued by the conservative Catholic Harvard law prof's appeal to the Catholic social doctrine, and having read his collaboration with Cass Sunstein in a defense of the administrative state in Law & Leviathan.  His was a challenge to both liberals and conservatives  I wrote. 

In an elegantly written book, Vermeule soft-pedaled or skipped the cultural hot button issues that infuriate liberals and drive conservatives.

I moderated a panel discussion with professors Eric Segall, Michael Baur, and James Fleming.  We found his work interesting for my part.

But by you friends you shall know them.

- GWC

New York Post Editor Sohrab Ahmari’s Strange Journey From Communist to ‘Theocrat’

By Lloyd Grove

There are very few character critiques of Sohrab Ahmari, the Iranian-born op-ed editor of the New York Post, that he hasn’t already leveled at himself.

“My moral opinions were as interchangeable as my clothing styles and musical tastes,” the 36-year-old Ahmari, a secular Shiite Muslim-turned-conservative Roman Catholic, writes in his latest book, The Unbroken Thread: Discovering the Wisdom of Tradition in an Age of Chaos. “I could pick up and drop this ideology or that. I could be a high-school ‘goth,’ a college socialist, a law-school neoconservative. I could dabble in drugs and build an identity around my dabbling. I could get a girlfriend, cheat on her, dump her willy-nilly, and build a pseudo-identity around that, too.”



Since he joined the New York Post in November 2018 from the neoconservative journal Commentary, Ahmari, a clever and gifted writer in his second language (after Farsi), has displayed a dazzling flair for individual self-definition as well as a knack for stoking outrage. The latter has lately been focused on his recently adopted conviction that U.S. government officials at the local, state, and even federal level must act and act now, the First Amendment be damned, to impose a regime of Judeo-Christian and Catholic Church-guided morality on a woke, libertine, money-obsessed American society that is going to hell in a hand-basket.

“That’s the voice of a would-be theocrat speaking, even if he hasn’t yet mustered the courage to acknowledge the conviction,” wrote right-leaning New York Times columnist Bret Stephens, a mentor and friend of Ahmari’s who nonetheless scorched his former protégé’s apparent metamorphosis from “urbane, intelligent and unfailingly good-humored” mainstream conservatism to “the kind of personal nastiness that is supposed to be a virtue in the right’s death struggle against progressive orthodoxies.”


Indeed, Ahmari once tweeted, “To hell with liberal order. Sometimes reactionary politics are the only salutary path.”



"Then there is the illiberal fever gripping American conservatives... The whole beauty of American order lies in keeping in tension these rival forces that are nevertheless fundamentally at peace." - SA, Oct 2017 pic.twitter.com/yFFAtcYKrL

— Shannon Last (@shannon_last) May 5, 2021

Ahmari these days seems to be recommending “a bullying form of politics,” Stephens told The Daily Beast. Nearly a decade ago, as a deputy editorial page editor at The Wall Street Journal, Stephens hired the then-twentysomething Ahmari, awarding him a fellowship that eventually morphed into a full-time job. “We’re not going to destroy one another. We shouldn’t want to destroy one another,” Stephens said.

On the other hand, Stephens added, “If I had to trust my kids’ lives with someone, he would be a good bet.”

Earlier this month, Ahmari—whose wife, Ting, an architect and the mother of their two young children, was born in the Peoples’ Republic of China—prompted a collective aneurysm among his fellow conservatives by tweeting, “I’m at peace with a Chinese-led 21st century. Late-liberal America is too dumb and decadent to last as a superpower. Chinese civilization, especially if it recovers more of its Confucian roots, will possess a great deal of natural virtue.”

Consistent with the Letter and Spirit: Seila Law V. CFPB and the Future of Presidential Removal Power by Patrick J. Sobkowski :: SSRN

Consistent with the Letter and Spirit: Seila Law V. CFPB and the Future of Presidential Removal Power by Patrick J. Sobkowski :: SSRN

Patrick J. Sobkowski

Independent; University of Dayton School of Law

Date Written: July 15, 2021

Abstract

The Supreme Court recently decided Seila Law v. CFPB and Collins v. Yellen, which presented constitutional challenges to the structures of the Consumer Financial Protection Bureau and Federal Housing Finance Agency, respectively. In those cases, a majority of the Court struck down the statutory structure of both agencies, embracing the Unitary Executive Theory. This Note provides an up-to-date prospective analysis of the Court’s and the Executive Branch’s embrace of the theory, and why such an embrace is dangerous.

This Note argues that Congress has and should take the lead in structuring the administrative arm of the federal government. Congress has the institutional capacity to legislate with regard to the structure of the government, and it has historically done so effectively. Furthermore, the Supreme Court and the Executive Branch have been deferential to Congress’s exercise of its power under the Necessary and Proper Clause in carrying into execution the powers granted to the federal government. Deference to Congress allows nuanced legislation that provides institutional mechanisms for effective governance. In making this argument, I draw on relevant primary and secondary historical literature, as well as political science literature on state-building and presidential power.

Keywords: separation of powers, appointments, constitution, supreme, court, removal, president, bureaucracy, delegation

Suggested Citation:

Sobkowski, Patrick, Consistent with the Letter and Spirit: Seila Law V. CFPB and the Future of Presidential Removal Power (July 15, 2021). 47 U. Dayton L. Rev. 163, Available at SSRN: https://ssrn.com/abstract=3887687

Opinion | The Supreme Court May Rein In Efforts to Protect the Climate - The New York Times

Opinion | The Supreme Court May Rein In Efforts to Protect the Climate - The New York Times

By Sambhav Sankar

Mr. Sankar is the senior vice president of programs at Earthjustice, an environmental law group.


If you continue to harbor doubts that the Supreme Court’s conservatives are advancing an ideological agenda, the next few weeks will probably lay those to rest.

Before breaking for the summer at the end of this month, the court is likely not only to strike down or severely curtail the constitutional right to an abortion and expand gun rights but also to undermine important environmental protections.

From my perspective as an environmental lawyer and a former clerk for Justice Sandra Day O’Connor, a case that looms large is West Virginia v. Environmental Protection Agency, which should be decided within weeks. The justices will determine how much authority the E.P.A. has to address the climate crisis by regulating emissions of climate-warming carbon dioxide from power plants.

The Obama-era regulation at issue never went into effect because the Supreme Court’s conservatives suspended the rule. And it never will go into effect because the Biden administration is in the process of proposing a new rule. So there is no dispute to resolve yet, and thus no “case or controversy” that would support the court’s jurisdiction.

***

Why is the court going beyond calling balls and strikes, as Chief Justice John Roberts memorably described his role, to take a case it arguably doesn’t have jurisdiction to hear? Some of the court’s conservatives seem eager to assist polluting industries by undercutting the power of agencies to regulate in the public interest. More specifically, certain justices have signaled their interest in sharply limiting the E.P.A.’s authority to regulate greenhouse gas emissions in the West Virginia case by invoking and expanding a “major questions” doctrine. That doctrine invites unelected judges to second-guess Congress when lawmakers give an agency the authority to regulate on matters that have “major” political or economic significance.

Agencies need latitude to regulate in a world of novel problems and scientific complexity. Congress routinely gives them expansive authority through broadly-worded statutes. And Congress puts its own limits on agency discretion. Laws like the Administrative Procedure Act require that agency actions be consistent with science and informed by public input. Further, Congress has ample tools to get a wayward agency back on track: confirmation and oversight hearings, budget instructions, or even statutory amendments if necessary.

Expanding the major questions doctrine would destabilize this legislative balance and shift power to the courts. The doctrine would leave agencies with little power to tackle new and pressing environmental problems like climate change without a steady stream of statutory instructions at a degree of detail that an inexpert and political entity like Congress is unequipped to provide. Worse, the doctrine is uncertain and manipulable. Even conservative justices struggle to define what triggers a “major question” review. Virtually any environmental regulation worth issuing has “major” impacts on some industry, so the doctrine invites polluters to challenge regulations and gives sympathetic judges a potent tool for striking them down.

OPINION CONVERSATIONThe climate, and the world, are changing. What challenges will the future bring, and how should we respond to them?

• What does climate change look like around the world?
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Even more concerning, West Virginia v. E.P.A. may be only the beginning. In its next term, the Supreme Court will likely take up another important environmental case: Sackett v. E.P.A., which concerns the geographic reach of the Clean Water Act.

Once again, the court agreed to take up a case it would normally have declined: Appeals courts have consistently agreed on the scope of the statute relevant to the Sackett case, and the E.P.A. and the Army Corps of Engineers will likely soon finalize a new proposed rule to provide further clarity on how the law should work. So again, the court appears to be reaching out aggressively to hear a case that could advance a deregulatory policy agenda: restricting the scope of one of the country’s most important environmental laws, administered by an agency mandated to protect the public health and environment.

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The Clean Water Act prevents polluters from dumping waste into the nation’s waters without a permit. Conservative groups and extractive industries want the court to hold that the law does not protect certain wetlands, which would benefit polluting industries to the detriment of downstream waters and people.

Americans are increasingly concerned about the environment, and two-thirds of us think our government should do more to protect it. Why then do the Supreme Court’s conservatives seem to be going so far out of their way to hamstring federal efforts to regulate polluters and slow climate change?

The reason is that the court’s five most conservative justices were seemingly selected primarily for their fidelity to an agenda that is so far outside the legal mainstream that even Charles Fried, President Ronald Reagan’s conservative solicitor general, called it “reactionary.” Moreover (and not coincidentally), they were confirmed by senators who together were elected with fewer votes than senators who opposed their confirmations. Three of them — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — were nominated by a president who lost the popular vote.

This profound disconnect between the will of the people and the court’s deregulatory agenda on the environment could not come at a more dangerous time. The Intergovernmental Panel on Climate Change warns that our window to avert irreversible climate harm is closing fast. If the Supreme Court chooses this moment to pursue an agenda of limiting federal regulatory power, it will serve the interests of corporations — particularly fossil fuel companies — while pushing people and the planet closer and closer to the point of no return.

Sambhav Sankar is the senior vice president of programs at Earthjustice, an environmental law group.

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Con

Cline deends Vermeule from"Originalist-Cherry-Picking" - FedSoc Harvard Journal of Law & Public Policy

Timon Cline, writing in the FedSoc Harvard Journal of Law & Public Policy, rebuts 11th Circuit federal appeals court judge and prominent conservative  William Pryor's recent attack on Adrian Verneule's book Common Good Constitutionalism.

Cline-Originalist-Cherry-Picking-vF-1.pdf

by Timon Cline1 [Deputy Attorney General - New Jersey, and Westminster Theological Seminary]

For a legal theory self-professedly predicated on history and historical meaning, originalism is consistently bad at history. Originalists excel, however, at cherry-picking the record—ironic for a political strategy hatched to combat the Warren-era’s so-called judicial activism. Justice John Paul Stevens aptly and memorably identified this conspicuous selectivity of the originalist majority in his Van Orden v. Perry dissent.2 

In his assault on “living common goodism,” as he pejoratively refers to the classical legal tradition lately recovered by Adrian Vermeule and Conor Casey, Circuit Judge William Pryor is nothing if not a faithful practitioner of originalist historiography. 3 His recent Federalist Society speech, subsequently published in the Federalist Society Review [Against Living Common Goodism], is a representative instantiation of this impulse. Reason and National Review were predictably ecstatic, 4 as they were about his Heritage Foundation lectures last fall. 5

 In their response to Pryor, Vermeule and Casey intentionally sidestep some of the historical questions raised by Pryor.6 Indeed, Vermeule (rightly) makes clear in his book that while the American founders should be generally conceived as classical lawyers, his project is not predicated on any kind of filial piety as such.7 As Vermeule well knows, this is a low hanging, irresistible fruit for originalists

***

As Vermeule has insisted more than once against this persistent, presumptuous jab, interpretive method and institutional allocation are distinct inquiries. Pryor, like most originalists, melds them into one. But what common good constitutionalist are arguing is that as a heuristic, a governing political rationality and justification of authority, the common good should influence all law making, whether legislative or judicial.82 In fact, following Harlan (and Aquinas), Vermeule believes that “judges do and should broadly defer to political authorities, within reasonable boundaries.”83 The rub, however, is when it comes to tough cases. At that point, the originalist dutifully refers to the textual restraints imposed upon him—ius is subjected to lex, to the detriment of iustitia—whereas the classical lawyer recognizes the priority of the higher law whether manifested in statute, constitution, custom, or principles of natural justice preserved in the synderesis of all reasonable creatures. 84 Even if Pryor may claim Iredell for his camp, Vermeule may easily claim Chase and many others beside. If Judge Pryor really wants to put “living common-goodism” down, he will have to extend beyond the tired originalist cherry-picking historiography that requires little more of its proponents than citation of a “favorite founder.”85 

Book review of Ways and Means: Lincoln and His Cabinet and the Financing of the Civil War by Roger Lowenstein - The Washington Post

Book review of Ways and Means: Lincoln and His Cabinet and the Financing of the Civil War by Roger Lowenstein - The Washington Post

by John Fabian Witt // Yale Law School

 

Emancipation and the Law of War: A Different Take on the Feldman-Oakes Battle/John Fabian Witt

Preliminary Emancipation Proclamation - LOC

Lincoln's 1862 emancipation proclamation has often been legally justified by its claim that - in the war to end slavery - the slaves were nonetheless property which the combatants were entitled to seize as contraband. In fact the slaves welcomed behind Union lines were referred to as contrabands.  The same legal status as is cocaine seized in a police raid.

But John Witt shows that it's not so simple.  That Lincoln's actions - the Emancipation Proclamations  were not justified by the then existing laws of war.  His order transformed the law and the nation. 

- GWC

Balkinization: Emancipation and the Law of War: A Different Take on the Feldman-Oakes Battle at The NYRB

Emancipation and the Law of War: A Different Take on the Feldman-Oakes Battle at The NYRB

BY: John Fabian Witt //Yale Law School

Over at the New York Review of Books, Noah Feldman and Jim Oakes are carrying on a classic NYRB pitched battle over Oakes’s review of Feldman’s recent book The Broken Constitution.  Nearly two centuries after the antislavery world of William Lloyd Garrison, Lysander Spooner, Salmon Chase, and Frederick Douglass debated the status of slavery in the Constitution, the controversy still generates heat.  Oakes’s lead role in criticizing the 1619 Project lurks in the wings.  Feldman takes up the cudgel wielded in recent years by scholars like Paul Finkelman and activist-journalists like Nikole Hannah-Jones. 

Did Lincoln break the Constitution (as Feldman argues) or vindicate it (as Oakes insists)?  The debate will never end, because of course the answer is some of both.  The answers historians and lawyers give to the question tell us as much about historians and lawyers as they do about the Civil War Constitution. 

But when Oakes weighs in on the legality of Emancipation, he repeats a particular mistake about international law that warrants attention.  Oakes wrongly states in his review that from the end of the Revolutionary War forward, the “United States repeatedly acknowledged the rights of belligerents to emancipate slaves of enemies during wartime.”  Now in his latest NYRB riposte Oakes asserts that “Alexander Hamilton, Edmund Randolph, John Jay—indeed, just about every one of the Founders who went on record—affirmed that under the law of nations belligerents could emancipate enemy slaves in an effort to win a war or suppress a rebellion.”  Neither proposition is true, nor is it true (as Oakes further claims) that the topic is “entirely missing” from Feldman’s book. 

The truth is that until the Civil War American soldiers, statesmen, and jurists overwhelmingly adopted the view that belligerents could not lawfully free enemy slaves in wartime.  I dedicated much of the first half of my book Lincoln’s Code to this proposition.  A militarily weak slave society was desperately committed to the legal position.  And Feldman’s book recites precisely the relevant history.

As I showed in Lincoln’s Code, the American tradition on the question began with the bitter reaction of American leaders to the Lord Dunmore’s 1775 proclamation of emancipation for slaves making it to British lines.  The Declaration of Independence labeled Dunmore’s act an international atrocity, charging the King before the tribunal of “a candid world” with having “excited domestic insurrections amongst us.”  Accordingly, Americans negotiating the Treaty of Paris in 1783 sought to bar British forces from “carrying away any Negroes” upon evacuation.  George Washington took bitter exception when at least 3,000 formerly enslaved people left New York Harbor with British forces.  Treaties of friendship and commerce in the 1790s and early 1800s prohibited wartime confiscation of private property, which American statesmen understood to include slaves.  The text of the Treaty of Ghent at the end of the War of 1812 required that the British restore slaves and other private property to American owners.  For more than a decade thereafter, John Quincy Adams pursued slaveholders’ claims for compensation pursuant to the Treaty, arguing that seizing slaves had been contrary to the laws and usages of war.  It is no wonder, then, that when fighting broke out in the U.S. Civil War, many leading jurists North and South took the conventional U.S. view that proposals for emancipation were a lawless invitation to atrocity and slaughter.  The famous Lieber Code of international laws of war, drafted by Francis Lieber and issued by Lincoln in 1863, finally reversed this long tradition.  Indeed, as historian Matthew Mancini and I have argued, it was precisely the long tradition on the laws of war question that prompted the Lincoln administration to take the unprecedented step of issuing the code in the first place. 

Strangely, Oakes knows all of this history very well.  For one thing, he and I debated the question at Yale in 2013 and co-taught a course on the subject in 2014.  The next year, in his book The Scorpion’s Sting, Oakes tried unaccountably to develop his claim about a long history of U.S. support for the legality of wartime emancipations.  His effort there, as I told him at the time, is marred by apparently willful blindness to a crucial legal distinction.  As a matter of eighteenth- and nineteenth-century international law, a state’s authority to free the slaves of its own nationals in wartime was uncontroversial, just as a state’s rearrangement of its internal resources in wartime would not be an issue of international humanitarian concern today.  By contrast, the emancipation of enemy slaves was crucially a matter of international law concern.  American statesmen and soldiers insisted that freeing an enemy’s slaves in wartime was impermissible.  Such efforts with respect to enemy slaves, Americans contended, amounted to illegitimately targeting non-military private property and to inviting internecine humanitarian nightmares. 

KEEP READING

Eastman and Chesebro: What MAGA Had Planned For Pence On Jan. 6 //Talking Points Memo

Shocked to learn that Kenneth Chesebro - co-lead attorney for plaintiffs in the landmark evidence case Daubert v. Merrell Dow Pharmaceuticals - has gone MAGA.  His December 13, 2020 memo to Rudy Giuliani spelled out the "president of the Senate strategy".  Key was for Mike Pence to declare himself the final word on which states' electors' votes should be counted. 

I have had some experience with Chesebro - positive experience. One Saturday morning in the spring of 1992 I saw a brief item in the Times.  The Supreme Court had granted cert in Daubert v. Merrell Dow.  I had been waiting for such a move by the court.

FedSoc types had been boosting a book called Galileo's Revenge - Junk Science in the Courtroom.  Shills for the pharma companies like Vice President Dan Quayle claimed shoddy science was pushing good drugs from the marketplace.

I had represented the Association of Trial Lawyers before the New Jersey Supreme Court - successfully arguing against rigid application of the statistical measure `2.0 risk ratio' as the standard for proving probable cause of disease.  The New Jersey Supreme Court had rejected that approach in Landrigan v. Celotex.

Figuring that if if it were me whose cert petition the Supreme Court had granted I wrote I would be in my office the next morning, I called Chesebro in his Cambridge office.  A Laurence Tribe protege - like many Harvard grads - he picked up the phone. I reported our New Jersey win and offered to lend a hand - an offer he welcomed.  With Michael Gottesman of Georgetown and Chesebro as co-lead counsel ATLA coordinated a quiver of friend of the court briefs.  One was my initiative.  With the late Brian Koukoutchos I co-authored a brief embraced by Stephen Jay Gould, the Harvard evolutionary biologist and historian of science.  Labeled the Brief of Historians and Philosophers of Science we argued that Thomas Kuhn's Structure of Scientific Revolutions refuted as a false claim the Quayle attack: that only consensus scientific opinion should be admitted in evidence.  The conservatives lost.  There is such a thing as "shaky but admissible evidence", wrote Justice Harry Blackmun in Daubert.  

- GWC

What MAGA Had Planned For Pence On Jan. 6

By Josh Kovensky

|

June 1, 2022 12:53 p.m.

234

One of the still-murky aspects of Jan. 6 and its preparation has to do with the effort to pressure Mike Pence into unilaterally throwing out elector slates from states that Trump lost.

A newly released memo, unveiled by the Jan. 6 Committee last week in a lawsuit against John Eastman, adds more detail to what Trump’s legal team had in mind for Pence.

The memo comes in the form of a Dec. 13, 2020 email — flagged by Politico — from attorney Kenneth Chesebro to Rudy Giuliani.

Chesebro told Giuliani in the message that he was sending “some quick notes on strategy” along after he had lost a more extensive memo “due to a reboot on the hotel computer.”

What follows is a multi-page plan for how Pence was to conduct himself before Jan. 6 and on the day of, and what the consequences of the plan for Pence may have been. Even if the effort failed to install Trump for a second term, Chesebro wrote, “much will still have been accomplished in riveting public attention on election abuses, and building momentum to prevent similar abuses in the future.”

Chesebro, an appellate attorney with a Harvard Law pedigree, reportedly joined the Trump legal team in November 2020, after sending memos to attorneys working to subvert the election which advocated for the use of “alternate electors.”

Per the plan, swing states that Biden won were supposed to submit pro-Trump electors — a key part of a broader plan to subvert the election results by presenting Pence on Jan. 6 with a supposed choice between competing interpretations of who swing states selected for president.