According to filings in the district court, he was charged with the first theory. Perhaps the second theory is a fallback, but my impression is they want to charge him based solely upon the Secretary of State's decision and fight any effort to review that decision or any materials relied upon the Secretary in forming it. OTOH, Khalil's lawyers appear to be fighting deportation on Constitutional principles, the first and fifth amendments, which don't require looking at the facts concerning Khalil.
All that said, it doesn't seem to me that there will be much discovery in this case, certainly not pertaining to who is paying his lawyers (some of whom identify as pro bono).
The ambition is two hours and forty minutes non-stop btw/ LA and SF, which I understand would make it the fasted high speed train in the world. Hold my triple IPA Euroweenies. The skeptical prediction is four hours and forty minutes once you take into account slower speeds and shared track usage in the metros at the start and finish that are now contemplated. In the abstract I think having more transportation alternatives are great, but particularly if you think self-driving cars are coming quicker than rail lines can be built/updated, then most people will probably find driving on the interstate cheaper and more convenient.
Sure, but dealing with contractor claims on an individual basis, most likely through the Court of Federal Claims, was what the government said needed to happen in the court filings here.
Don't think people should be getting excited about a procedural ruling from the SCOTUS. Assuming the case gets back on an appeal of the preliminary injunction (which is referenced in the SCOTUS order), then we would see how Barrett and others rule on the merits. We just know how four of them would rule right now. OTOH, the government now says they are exercising cancellation provisions in the contracts, which would probably make the whole case moot.
The essay mentions "Obama and the Dreamers, Biden and student loan debt forgiveness." It could have also mentioned Carter's unilateral withdrawal from the Taiwan defense treaty, but the biggest source of unilateral treaty breaking was FDR. FDR was popular and couldn't be challenged. Carter wasn't nearly as popular but he won before the Supreme Court in a fractured opinion.
I am currently looking for a federal grant to pursue litigation that would decisively confirm that the Taiwan defense treaty is still in full force because Carter had no Constitutional authority to withdraw. This work will focus on finding the perfect plaintiff with standing. If successful, I see this project as providing an economic boon in the vicinity of whichever courthouse ends up in charge of enforcing the treaty against those that would deny it's existence.
Yes, that was the argument. The 18th Amendment was the first time a deadline was given for ratification, and Defendant was arguing that the inclusion of a deadline invalidated the Amendment and by extension the criminal statute that enforced the Amendment against him. Even if the deadline was somehow improper, it would still have posed an additional question to be addressed as to whether the remedy would be to void just the deadline or the whole amendment.
The Supreme Court ruled in Dillon v. Gloss (1921) that (1) Article V of the Constitution implies that amendments must be ratified, if at all, within some reasonable time after their proposal. (2)
Under this Article, Congress, in proposing an amendment, may fix a reasonable time for ratification. (3) The period of seven years, fixed by Congress in the resolution proposing the Eighteenth Amendment was reasonable.
A couple of years ago Illinois sued the Archivist to get an order record the ERA and lost. (Illinois was one of the states that didn't ratify timely) While the court recognized that perhaps some aspects of Dillon might be dated, there was no support for the premise of the lawsuit that "Congress lacks the authority to set deadlines for ratification, including the seven-year deadline in the ERA."
The President has no role in the Constitutional Amendment process. The Archivist of the United States (who does not answer to the President) is responsible for recording Amendments which are ratified and she said that she is doing no such thing. This is the equivalent of Biden announcing an amendment to the New Zealand Constitution, preferably one that has some thin controversy around it.
I watched the first half hour of arguments without much background and it seemed to me like all of the Justices were skeptical of TikTok's arguments (but exhibited a lot of uncertainty about a number of issues), but I couldn't keep watching and the first article I saw later that day had the headline that the Justices were skeptical of TikTok ban. Maybe something happened during questioning of the U.S.?
Anyway, the part that stood out to me was TikTok's attorney gave an unsolicited hypothetical in which the Chinese government kidnaps Jeff Bezos and forced him to have the Washington Post publish stories to their liking. He said that even in that case, the government cannot do anything to stop publication, though he kind of said under his breath, maybe require a disclaimer. I thought that a pretty provocative hypothetical to offer suggesting that the interpretation of the First Amendment issue they are being asked to accept is more extreme in its potential applications than here.
Yeah, the right to free expression "carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." (Article 10 of the European Convention on Human Rights)
Of course, maybe some of those conditions apply to interpretations of the U.S. Constitution, but certainly the U.S. starts with a strong presumption against government regulation of speech.
My impression was that Vivek's no-numeric-caps statement was from a speech last summer and he linked to it for further explanation of his position. I imagine the speech is still there. If not, I'm sure tech-savvy people can find it somewhere.
I watched the part Vivek identified, and (1) there is no way no-numeric-caps happens, (2) now people think that Vivek & co.'s hidden goal is no caps, (3) there was no reason to insert no caps into that speech, and (4) a performance standard that limits admission to people who love the U.S. is a BS standard.
Yet the longest serving legislative leader in U.S. history is on trial right now for multiple counts of bribery. The trial started almost three months ago.
The Snyder decision ruled that the bribery statute for state officials was not written to apply to gratuities (payments given as a reward for a past action without a quid pro quo) If Congress wants to ban them, it can amend the statute governing state officials to resemble the statute government federal officials.
And I disagree with the assumption that the SCOTUS should broadly interpret criminal statutes is a way of checking executive power. Gratuities in particular seem to fall in the category of "I know it when I see it" that gives a lot of discretion to law enforcement.
Sounds like a judge realizing he is likely to be reversed and trying to minimize that possibility by making the case as inconsequential as possible.
I stand by my predictions on the Trump criminal lawsuits from the outset, which was the prosecutors better have the goods because the tendency of all the Nixon lawsuits was the expansion of executive power, even in cases Nixon lost. The Nixon lawsuits legitimized the executive privilege analysis for one thing. They also provided immunity from civil suits and exposed the need for FISA courts to guard against searches and seizures purported to be for national security. The one limitation in the Trump immunity case is that it involves a fairly lengthy, complex analysis of what a President does that might discourages prosecutions, but lacks the degree of certainty of a blanket rule that would make the POTUS reckless.
She can't delegate to another DA. The case goes to the Prosecuting Attorneys Council of Georgia to designate a replacement prosecutor. When Willis was recused from prosecuting Senator Burt Jones for his role in the same issues, the Council eventually appointed its own Executive Director to the role. After reviewing the voluminous record he declined to prosecute and released a report.
This weekend I'll be looking for tools to put in the tool box I just purchased for my son's b-day. Or I'll be looking for the list of tools that Michael Cain I believe posted on this site several years ago that I used when my daughter first got her own.
We'll have 96% eclipse, the same as 2017. It's odd that the 2017 and 2024 paths cross around Carbondale, IL.
Justice Jackson explained why she thought the President wasn't listed in Section 3 at oral argument:
"I thought that the history of the Fourteenth Amendment actually provides the reason for why the presidency may not be included. And by that, I mean I didn't see any evidence that the presidency was top of mind for the Framers when they were drafting Section 3 because they were actually dealing with a different issue.
"The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in Congress. And that's a very different lens.
"Your concern is trying to make sure that these people don't come back through the state apparatus and control the government in that direction seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency."
The argument has the benefit of pre-existing legal authority. There is a Roberts majority opinion from the early oughts and there is Justice Story's Constitution law treatise cited in the per curium that support the principle that "officers of the United States" are unelected officials. Someone can distinguish the Roberts decision in that it was dealing with the appointments clause, but it's hard to argue that the distinction is absurd or completely fabricated.
I think the argument lacked public appeal. Justice Jackson liked the argument, she seemed to be trying to persuade Trump's attorney to go with it. If she had written it, there would be broader appeal, but there probably weren't as many votes.
It may have been obvious to you, but it's amusing that the lack of Congressional action was not one of the reasons given by Trump's lawyer in his preliminary summary of their case at oral argument. After he gave two reasons, he opened the floor to questions and Thomas' first question was I didn't hear much in there about self-executing, would you address that?
He had argued (1) the POTUS is not an "officer of the United States" as that term is used in the Constitution, and (2) Colorado improperly added a qualification in that Section 3 imposes a restriction on holding office, not being elected to office, and it expressly contemplates Congressional authority to lift the restriction.
From watching Illinois federal corruption trials, I was skeptical that an August 2023 indictment would be resolved by the election date. We are still waiting for the trial of America's longest serving state-house speaker who was indicted March 2022. I would think two years sounds about right from charges to first verdict: Gov. Ryan (2 years, 4 months); Gov. Blagojevich (1 year, 8 months (guilty on one count of lying to the FBI; mistrial on twenty-three)); Alderman Ed Burke (4 years, 11 months).
I think public corruptions laws are not necessarily written very well and ultimately raise Constitutional issues that aren't present for someone accused of possession of contraband or murder. I also still think criminal process is weird in that a lot of legal issues aren't ripe for review until after verdict. For example, all of the legal problems with Bill Cosby's indictment were known before trial.
There are broader legal implications here. There is a cause of action under the equal protection clause for a person intentionally treated differently than others similarly situated without rational basis. If Disney is being treated differently than similarly situated entities without rational basis (animus), then that would be the theory of the case.
I think Disney doesn't argue this because it recognizes other districts are either different or effected, but it's main argument is that due to Disney's unique situation, it faces the "brunt of the harm."
It denied standing as against two defendants, not all. I operate from the assumption that in novel cases like this, litigants won't be certain who is the proper party to sue and so they sue any possible party.
A litigant can always try multiple alternative tacts. I think the issue with the takings clause is that a court won't find that Disney had a property interest in a form of government. If it is to argued to be a regulatory taking, it's still not clear that a change in governance is a regulation of a property interest (something more clear with zoning), and even if it is, it must deprive Disney of all beneficial use of the property in question to be a taking.
Texas lacked standing because the SCOTUS determined that detention and removal mandates are ultimately discretionary acts, like whether to arrest a person for jaywalking. In those situations, a plaintiff is not entitled to enforce a statutory mandate in federal court. (This isn't how Texas characterized it, of course, they wanted the Court to strike the passages in the DHS Final Memorandum that contradicted federal law)
Chicago is almost certainly violating the Constitution by impeding transport of aliens in interstate commerce. I wonder if the administration will file an amicus brief on behalf of the Texas bus companies?
I see the problem a bit differently. We've had two Supreme Court rulings that essentially held that the President does not have to follow immigration law, Biden possesses enforcement discretion to ignore it. That means the only way toward policy goals, whether they be in the direction of open or closed borders, who is in the White House is the only thing that matters.
(The two rulings are Biden v. Texas (2022) (Biden has the discretion to end the Remain in Mexico policy even if assuming for the sake of argument his new policy contradicts immigration law) and U.S. v. Texas (2023) (Biden has the discretion to enact a policy "Final Memorandum" to not detain and remove classes of convicted aliens required to be detained and removed by law))
The second case made clear that democratic accountability for discretionary acts of the President is at the ballot box:
"through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions."
*Comment archive for non-registered commenters assembled by email address as provided.
On “Columbia, Mahmoud Khalil, and Protest Expectations”
According to filings in the district court, he was charged with the first theory. Perhaps the second theory is a fallback, but my impression is they want to charge him based solely upon the Secretary of State's decision and fight any effort to review that decision or any materials relied upon the Secretary in forming it. OTOH, Khalil's lawyers appear to be fighting deportation on Constitutional principles, the first and fifth amendments, which don't require looking at the facts concerning Khalil.
All that said, it doesn't seem to me that there will be much discovery in this case, certainly not pertaining to who is paying his lawyers (some of whom identify as pro bono).
On “Of Amtrak, AI, and Arguing About Trains on the Interwebs”
The ambition is two hours and forty minutes non-stop btw/ LA and SF, which I understand would make it the fasted high speed train in the world. Hold my triple IPA Euroweenies. The skeptical prediction is four hours and forty minutes once you take into account slower speeds and shared track usage in the metros at the start and finish that are now contemplated. In the abstract I think having more transportation alternatives are great, but particularly if you think self-driving cars are coming quicker than rail lines can be built/updated, then most people will probably find driving on the interstate cheaper and more convenient.
On “SCOTUS Does Not Exist to Please You, Especially Amy Coney Barrett”
Sure, but dealing with contractor claims on an individual basis, most likely through the Court of Federal Claims, was what the government said needed to happen in the court filings here.
"
Don't think people should be getting excited about a procedural ruling from the SCOTUS. Assuming the case gets back on an appeal of the preliminary injunction (which is referenced in the SCOTUS order), then we would see how Barrett and others rule on the merits. We just know how four of them would rule right now. OTOH, the government now says they are exercising cancellation provisions in the contracts, which would probably make the whole case moot.
On “In Times Without Norms, All Laws Fall Silent”
The essay mentions "Obama and the Dreamers, Biden and student loan debt forgiveness." It could have also mentioned Carter's unilateral withdrawal from the Taiwan defense treaty, but the biggest source of unilateral treaty breaking was FDR. FDR was popular and couldn't be challenged. Carter wasn't nearly as popular but he won before the Supreme Court in a fractured opinion.
I am currently looking for a federal grant to pursue litigation that would decisively confirm that the Taiwan defense treaty is still in full force because Carter had no Constitutional authority to withdraw. This work will focus on finding the perfect plaintiff with standing. If successful, I see this project as providing an economic boon in the vicinity of whichever courthouse ends up in charge of enforcing the treaty against those that would deny it's existence.
On “President Biden Affirms the Passage of the ERA”
Yes, that was the argument. The 18th Amendment was the first time a deadline was given for ratification, and Defendant was arguing that the inclusion of a deadline invalidated the Amendment and by extension the criminal statute that enforced the Amendment against him. Even if the deadline was somehow improper, it would still have posed an additional question to be addressed as to whether the remedy would be to void just the deadline or the whole amendment.
"
The Supreme Court ruled in Dillon v. Gloss (1921) that (1) Article V of the Constitution implies that amendments must be ratified, if at all, within some reasonable time after their proposal. (2)
Under this Article, Congress, in proposing an amendment, may fix a reasonable time for ratification. (3) The period of seven years, fixed by Congress in the resolution proposing the Eighteenth Amendment was reasonable.
A couple of years ago Illinois sued the Archivist to get an order record the ERA and lost. (Illinois was one of the states that didn't ratify timely) While the court recognized that perhaps some aspects of Dillon might be dated, there was no support for the premise of the lawsuit that "Congress lacks the authority to set deadlines for ratification, including the seven-year deadline in the ERA."
"
The President has no role in the Constitutional Amendment process. The Archivist of the United States (who does not answer to the President) is responsible for recording Amendments which are ratified and she said that she is doing no such thing. This is the equivalent of Biden announcing an amendment to the New Zealand Constitution, preferably one that has some thin controversy around it.
On “SCOTUS Upholds TikTok Ban: Read It For Yourself”
I watched the first half hour of arguments without much background and it seemed to me like all of the Justices were skeptical of TikTok's arguments (but exhibited a lot of uncertainty about a number of issues), but I couldn't keep watching and the first article I saw later that day had the headline that the Justices were skeptical of TikTok ban. Maybe something happened during questioning of the U.S.?
Anyway, the part that stood out to me was TikTok's attorney gave an unsolicited hypothetical in which the Chinese government kidnaps Jeff Bezos and forced him to have the Washington Post publish stories to their liking. He said that even in that case, the government cannot do anything to stop publication, though he kind of said under his breath, maybe require a disclaimer. I thought that a pretty provocative hypothetical to offer suggesting that the interpretation of the First Amendment issue they are being asked to accept is more extreme in its potential applications than here.
"
Yeah, the right to free expression "carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." (Article 10 of the European Convention on Human Rights)
Of course, maybe some of those conditions apply to interpretations of the U.S. Constitution, but certainly the U.S. starts with a strong presumption against government regulation of speech.
On “The Shakedown”
My impression was that Vivek's no-numeric-caps statement was from a speech last summer and he linked to it for further explanation of his position. I imagine the speech is still there. If not, I'm sure tech-savvy people can find it somewhere.
I watched the part Vivek identified, and (1) there is no way no-numeric-caps happens, (2) now people think that Vivek & co.'s hidden goal is no caps, (3) there was no reason to insert no caps into that speech, and (4) a performance standard that limits admission to people who love the U.S. is a BS standard.
"
"basically legalized bribery last year"
Yet the longest serving legislative leader in U.S. history is on trial right now for multiple counts of bribery. The trial started almost three months ago.
The Snyder decision ruled that the bribery statute for state officials was not written to apply to gratuities (payments given as a reward for a past action without a quid pro quo) If Congress wants to ban them, it can amend the statute governing state officials to resemble the statute government federal officials.
And I disagree with the assumption that the SCOTUS should broadly interpret criminal statutes is a way of checking executive power. Gratuities in particular seem to fall in the category of "I know it when I see it" that gives a lot of discretion to law enforcement.
On “Trump Sentenced to Unconditional Discharge in NY Criminal Case”
Sounds like a judge realizing he is likely to be reversed and trying to minimize that possibility by making the case as inconsequential as possible.
I stand by my predictions on the Trump criminal lawsuits from the outset, which was the prosecutors better have the goods because the tendency of all the Nixon lawsuits was the expansion of executive power, even in cases Nixon lost. The Nixon lawsuits legitimized the executive privilege analysis for one thing. They also provided immunity from civil suits and exposed the need for FISA courts to guard against searches and seizures purported to be for national security. The one limitation in the Trump immunity case is that it involves a fairly lengthy, complex analysis of what a President does that might discourages prosecutions, but lacks the degree of certainty of a blanket rule that would make the POTUS reckless.
On “Fani Willis Disqualification Ruling: Read It For Yourself”
She can't delegate to another DA. The case goes to the Prosecuting Attorneys Council of Georgia to designate a replacement prosecutor. When Willis was recused from prosecuting Senator Burt Jones for his role in the same issues, the Council eventually appointed its own Executive Director to the role. After reviewing the voluminous record he declined to prosecute and released a report.
On “Supreme Court Strikes Down “Bump Stock Ban” 6-3”
The decision didn't involve the Second Amendment.
On “Weekend Plans Post: Prep (Maybe) For The Eclipse”
This weekend I'll be looking for tools to put in the tool box I just purchased for my son's b-day. Or I'll be looking for the list of tools that Michael Cain I believe posted on this site several years ago that I used when my daughter first got her own.
We'll have 96% eclipse, the same as 2017. It's odd that the 2017 and 2024 paths cross around Carbondale, IL.
On “Supreme Court Restores Trump to Colorado Ballot”
Justice Jackson explained why she thought the President wasn't listed in Section 3 at oral argument:
"I thought that the history of the Fourteenth Amendment actually provides the reason for why the presidency may not be included. And by that, I mean I didn't see any evidence that the presidency was top of mind for the Framers when they were drafting Section 3 because they were actually dealing with a different issue.
"The pressing concern, at least as I see the historical record, was actually what was going on at lower levels of the government, the possible infiltration and embedding of insurrectionists into the state government apparatus and the real risk that former Confederates might return to power in the south via state-level elections either in local offices or as representatives of the states in Congress. And that's a very different lens.
"Your concern is trying to make sure that these people don't come back through the state apparatus and control the government in that direction seems to me very different than the worry that an insurrectionist will seize control of the entire national government through the presidency."
"
The argument has the benefit of pre-existing legal authority. There is a Roberts majority opinion from the early oughts and there is Justice Story's Constitution law treatise cited in the per curium that support the principle that "officers of the United States" are unelected officials. Someone can distinguish the Roberts decision in that it was dealing with the appointments clause, but it's hard to argue that the distinction is absurd or completely fabricated.
I think the argument lacked public appeal. Justice Jackson liked the argument, she seemed to be trying to persuade Trump's attorney to go with it. If she had written it, there would be broader appeal, but there probably weren't as many votes.
"
It may have been obvious to you, but it's amusing that the lack of Congressional action was not one of the reasons given by Trump's lawyer in his preliminary summary of their case at oral argument. After he gave two reasons, he opened the floor to questions and Thomas' first question was I didn't hear much in there about self-executing, would you address that?
He had argued (1) the POTUS is not an "officer of the United States" as that term is used in the Constitution, and (2) Colorado improperly added a qualification in that Section 3 imposes a restriction on holding office, not being elected to office, and it expressly contemplates Congressional authority to lift the restriction.
On “Donald Trump’s Rights as a Criminal Defendant Outweigh Ours as an Electorate”
From watching Illinois federal corruption trials, I was skeptical that an August 2023 indictment would be resolved by the election date. We are still waiting for the trial of America's longest serving state-house speaker who was indicted March 2022. I would think two years sounds about right from charges to first verdict: Gov. Ryan (2 years, 4 months); Gov. Blagojevich (1 year, 8 months (guilty on one count of lying to the FBI; mistrial on twenty-three)); Alderman Ed Burke (4 years, 11 months).
I think public corruptions laws are not necessarily written very well and ultimately raise Constitutional issues that aren't present for someone accused of possession of contraband or murder. I also still think criminal process is weird in that a lot of legal issues aren't ripe for review until after verdict. For example, all of the legal problems with Bill Cosby's indictment were known before trial.
On “Disney Lawsuit Against DeSantis Dismissed: Read It For Yourself”
There are broader legal implications here. There is a cause of action under the equal protection clause for a person intentionally treated differently than others similarly situated without rational basis. If Disney is being treated differently than similarly situated entities without rational basis (animus), then that would be the theory of the case.
I think Disney doesn't argue this because it recognizes other districts are either different or effected, but it's main argument is that due to Disney's unique situation, it faces the "brunt of the harm."
"
It denied standing as against two defendants, not all. I operate from the assumption that in novel cases like this, litigants won't be certain who is the proper party to sue and so they sue any possible party.
"
A litigant can always try multiple alternative tacts. I think the issue with the takings clause is that a court won't find that Disney had a property interest in a form of government. If it is to argued to be a regulatory taking, it's still not clear that a change in governance is a regulation of a property interest (something more clear with zoning), and even if it is, it must deprive Disney of all beneficial use of the property in question to be a taking.
On “MAGA Isn’t Serious About the Border”
Texas lacked standing because the SCOTUS determined that detention and removal mandates are ultimately discretionary acts, like whether to arrest a person for jaywalking. In those situations, a plaintiff is not entitled to enforce a statutory mandate in federal court. (This isn't how Texas characterized it, of course, they wanted the Court to strike the passages in the DHS Final Memorandum that contradicted federal law)
Chicago is almost certainly violating the Constitution by impeding transport of aliens in interstate commerce. I wonder if the administration will file an amicus brief on behalf of the Texas bus companies?
"
I see the problem a bit differently. We've had two Supreme Court rulings that essentially held that the President does not have to follow immigration law, Biden possesses enforcement discretion to ignore it. That means the only way toward policy goals, whether they be in the direction of open or closed borders, who is in the White House is the only thing that matters.
(The two rulings are Biden v. Texas (2022) (Biden has the discretion to end the Remain in Mexico policy even if assuming for the sake of argument his new policy contradicts immigration law) and U.S. v. Texas (2023) (Biden has the discretion to enact a policy "Final Memorandum" to not detain and remove classes of convicted aliens required to be detained and removed by law))
The second case made clear that democratic accountability for discretionary acts of the President is at the ballot box:
"through elections, American voters can both influence Executive Branch policies and hold elected officials to account for enforcement decisions."
*Comment archive for non-registered commenters assembled by email address as provided.