Archive for the ‘Law’ Category
I only read the NY Times article and not the text of the decision or the dissent, but I think it’s pretty clear what happened. After the trial was over, two jurors went to the judge and told on another juror who they said made racist remarks about the defendant.
Thus, the Supreme Court holds that a mistrial can be declared based on the jurors’ testimony, overturning hundreds of years of tradition that what happens in the jury room is totally secret.
Justice Kennedy joined with the liberals on this one. Obviously what they believe is that racism is so evil that it can’t be ignored. So now, jurors can say any mean or moronic thing about the defendant that they want and the conviction can’t be overturned, as long as it’s not racist, because racism is going too far, it’s just too evil to be ignored.
The video is found on this page [link has been fixed].
For more context, here’s a link to an older YouTube video where Milo pretty much says the same thing (so his views were already out there).
This is the first time I’ve ever watched this guy speak. I have no idea where he came from all of a sudden or how he became a famous alt-righter (now called the new right because the MSM declared that alt-right=racist) without me being aware of who he is.
I think that Milo is telling us that among gay men, relations between adult men and teenage boys is a lot more commonplace than the gays normally let straight people know about. Milo has also stated the opinion that such relationships are often beneficial for the boys involved, because they benefit from an older gay teaching them the gay ropes and helping them feel good about their gayness. If it’s true that gay men commonly believe this, than Milo is doing us a service by pointing this out, and shooting the messenger won’t change that fact. It’s a message that won’t come from the liberal mainstream media which will never publish anything about gays that straight people would find icky.
Milo also has an opinion, and it’s an opinion that has been expressed here in the comments of my blog, that people become sexually mature before they turn 18 or some other arbitrary age-of-consent, and it’s not “pedophilia” if you are sexually attracted to sexually mature teenagers, whether you are attracted to male or female teenagers.
Milo is personally expressing an opinion. How can laws ever get changed for the better if people aren’t allowed to say they disagree with them the way they are? Milo has not admitted to violating any statutory rape laws as an adult.
Who knew it was illegal for a citizen “without the authority of the United States” to talk to foreign governments? Haven’t Jimmy Carter and a whole bunch of other famous people, especially liberal Democrats, been doing exactly that for decades? (Actually, upon doing research, it turns out that people have been doing that since at least 1798 when George Logan talked to France, which pissed of Congress so much that they passed the Logan Act in 1799, named after the guy who pissed them off.)
According to the Wikipedia article on the Logan Act,
1. Only one indictment under the Act in 1803, and that guy was never even prosecuted beyond an indictment.
2. District Court in Waldron v. British Petroleum Co., 231 F. Supp. 72 (S.D.N.Y. 1964) said the act was probably unconstitutional but did not rule on the question.
3. Constitutionality of the Logan Act has been publicly questioned by the House Committee on Standards of Official Conduct.
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A commenter writes: “democratic senator tulsi gabbard went to syria in january, where she met with assad. she then went on talk shows, admitted this, and no one is saying she violated the logan act.”
Exactly! But I would say it with uppercase letters where norms of style dictate.
It was obviously a mistake. The Trump administration would surely be smart enough to make sure the first intentional arrest of someone granted illegal amnesty by the Obama administration would happen outside of the territory of the hostile 9th circuit.
So I just heard.
If true, smart move. It would be dangerous to take this to the Supreme Court before Neil Gorsuch is confirmed. Better to let it go back to district court and come back up.
Overriding the courts should be done as a last resort and not a first resort.
Let’s remember how Franklin D. Roosevelt did it.
1. He urged that Congress not worry about constitutionality when creating new statutes. Just do what’s right.
2. Supreme Court packing legislation. It wasn’t actually passed by Congress. But the precedent is there and so it’s the logical next step for Trump, as he can point out that such a maneuver was previously done by a Democratic president. Historians believe that the threat of packing legislation scared the Supreme Court into being less confrontational.
3. FDR ultimately beat the Supreme Court by being president for longer than a majority of them had any life in them. Over the course of his four terms in office, he appointed seven justices, and unlike some of the crappy appointments by recent Republican presidents, every single one of FDR’s appointees agreed with him on the issue that was important back then, the power of the federal government to create economic regulations.
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OK, I believe the opinion goes where no court has gone before, and holds that non-citizens, who are not currently in the United States, now have Constitutional rights to 5th Amendment Due Process and 1st Amendment Free Exercise of religion. (However it should be pointed out that the sides are arguing over a TRO, so this is not a final determination that aliens now have these rights, but a prediction that when this case comes back to the same panel of judges, they will hold that aliens have such rights.)
This seems to be in direct contradiction to Kleindienst v. Mandel 408 U.S. 753 (1972) which held that a Belgian journalist could be denied entry to the United States because he believed in communism.
Did I not warn you that liberal judges would do stuff like this? Republicans in Congress had better confirm Neil Gorsuch ASAP.
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And the two cases cited by the 9th Circuit to support this outrageous decision?
1. Zadvydas v. Davis 533 U.S. 678 (2001). This was a habeas corpus case. The alien was being held in detention too long. It has been long established that non-citizens have certain due process rights if they are present inside the country. It has nothing to do with denying entry to non-citizens.
2. INS v. Chadha 462 U.S. 919 (1983). This was an appeal from a decision by the Immigration Court (which as I previously pointed out is not a real Article III Court, but Congress created a right of appeal to the federal Circuit Court). So once again, the non-citizen was inside the United States and had personal standing. The decision to invalidate an immigration-related statute was based on a very weird separation of powers issue and had nothing to do with non-citizens having rights under the Bill of Rights (except for certain due process rights on account of being within the United States, but which are still more limited that those of American citizens).
Arizona v. United States 567 U.S. ___ (2012) is a decision in which Roberts and Kennedy joined the liberal wing of the court and smacked down Arizona’s right to independently enforce federal immigration law. Kagan did not participate, so it was a 5-3 decision.
Although perceived as an anti-immigration-enforcement case, the legal reasoning of the case is really about how executive power with respect to immigration preempts anything the states want to do differently.
The background is that Arizona, tired of Obama refusing to enforce the immigration laws, and claiming that illegal immigrants were causing crime and using up government resources, took matters into its own hands and empowered its state law enforcement officers to enforce the federal immigration laws that Obama refused to enforce.
Justice Kennedy, writing for the majority, slapped down the state of Arizona and said that executive branch of the federal government gets to decide what immigration laws are enforced and what immigration laws aren’t enforced, and if the President doesn’t want to enforce the laws, then the States aren’t allowed to override the President by enforcing them themselves.
Although not directly related to the Trump EO currently before the Ninth Circuit, the overall guiding philosophy of the decision is that the President can do whatever he wants with respect to immigration, and if that hurts that states, well too bad, so sad.
Arizona v. United States is, however, directly related to the issue of sanctuary cities. The Department of Justice, now led by Jeff Sessions, can sue the sanctuary cities the way the federal government previously sued Arizona, and demand that they stop the sanctuary nonsense because Trump’s EOs with respect to immigration preempt anything a city wants to do differently. The DOJ just has to cite Arizona v. United States and it should be a slam-dunk victory for the Trump administration. That is, if the courts are honest about following precedent.
Standing in Article III courts, something that the average person doesn’t know anything about, but luckily for me, I took Professor Berch’s Federal Courts class.
In 2015 (back when Obama was President), there was an op-ed in the New York Times urging the Supreme Court to hold that states should never have standing to challenge an executive order, not under any circumstances. I wonder if those two law professors still believe that, and if the New York Times would still print an op-ed urging such a thing?
In Texas et al. v. United States, 787 F.3d 733 (5th Cir. 2015), the Fifth Circuit did hold that states had standing to challenge an executive order on the basis that states would be required to issue drivers’ licenses to illegal immigrants.
I see two ways in which Washington’s claim of standing in the current case before the 9th Circuit differs from the Texas case.
1. Obama’s EO required the states to do something, issue drivers’ license, while Trump’s EO poses no direct burden on the states to do anything.
2. Obama’s EO had no other party who could claim injury other than the states. The Supreme Court, for example, has long held that individual citizens have no standing based on their status as taxpayers or because of a general dislike for a federal law or regulation which doesn’t affect them directly.
But in the case of Trump’s EO, the logical party to have standing would be a person who was denied entry to the United States because of the EO. (Although the reason they are not suing is because of previously established law that non-citizens lack standing in immigration matters in Article III courts. The immigration “courts” are actually tribunals run by the DOJ and are not real courts. It’s all part of the longstanding principle that immigration policy is outside the purview of Article III courts and rests with the President and Congress.)
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On a slightly different topic, I have this advice for Trump:
Do not treat the courts the way you treat the news media or some celebrity whom you dislike. If you want to say something about a case, you may speak to the legal issues, but personally-directed put-downs against judges are going to hurt you and not help you.
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To expound on how Trump treats judges, don’t forget that the federal judiciary is an independent branch of government, and that all federal judges, regardless of whether they are liberal or conservative, agree that the judiciary is independent and they desire to maintain the power of their branch of government. Any attempt at bullying judges with insults is going to hurt him by turning conservative judges against him.
Trump can and should make a public legal case for why his order is constitutional, but it if it’s not done in a way that respects the federal judiciary, it will backfire on him.
Trump has plenty of lawyers working for him, he should task one with helping him comment about litigation in a manner that won’t offend the federal judges.
The Temporary Restraining Order:
1. Offers no legal explanation as to why the judge thinks the case will succeed on the merits.
2. No explanation of what the “irreparable harm” is, only the vague sentence that the executive order “adversely affects the States’ residents in areas of employment, education, family relations, and freedom to travel.” There is no attempt to balance those harms against the possibility that among refugees and travelers from the seven banned countries are those who pose a threat to the safety and security of the United States. The law of TROs requires a balancing of the harms.
3. The only explanation of why the states of Washington or Minnesota have any standing or will suffer any harm is a mention of “parens patriae.” This is a doctrine that is normally used to allow the states to stand in for citizens of the states who don’t have the capacity to represent themselves, such as children or the mentally incapacitated. No case law is cited for this unprecedented expansion of the concept to adult citizens of foreign nations.
4. There is no discussion of the “public interest” which is one of the four factors district courts must consider in granting a TRO, nor is there any mention of the deference normally given to the President on matters of national security and foreign relations.