Endangered Frog Takes Center Stage as Supreme Court Begins New Term
BY MATTHEW VADUM
October 1, 2018 Updated: October 2, 2018
The federal government shouldn’t be allowed to limit development on private land to help save an endangered species when that species doesn’t actually live there, a lumber company told the Supreme Court on Oct. 1, in a property-rights case that’s being closely watched by environmentalists and conservative advocacy groups.
Environmentalist groups are on edge because though the high court rarely takes up cases involving the Endangered Species Act, it agreed Jan. 22 to hear the case on appeal from the New Orleans-based U.S. Court of Appeals for the Fifth Circuit, which ruled in favor of the U.S. Fish and Wildlife Service (FWS), an agency within the U.S. Department of the Interior.
If the court rules against the government, the power of federal bureaucrats to make such designations under the Endangered Species Act and impose restrictions on the use of privately owned land could be curtailed across the nation. It is unclear how the case will ultimately be decided.
Throughout the hearing, which largely consisted of back-and-forth discussions of the legal meaning of specific terms used in the Endangered Species Act, liberal justices peppered the lumber company’s lawyer with tough questions; conservative justices did the same to the lawyer representing the government.
In the case, lawyers for Seattle-based Weyerhaeuser Co. challenged the government’s critical-habitat designation for the dusky gopher frog, or Lithobates sevosus, an amphibian also known as the Mississippi gopher frog. There may be as few as 75 of these frogs in existence in the wild. It was officially listed as endangered under the Endangered Species Act on Dec. 4, 2001, according to the FWS.
The FWS wants to use existing ponds and dig new ones throughout the Deep South to give the frog a chance at survival. The plan is then to move some of the frogs to the new ponds and protect the land surrounding them. The landowners object because they won’t be able to use the lands in question, which have an economic value attached to them.
Weyerhauser Land
The case goes back to 2012 when the FWS used the Endangered Species Act to declare 6,477 acres in two states, including 1,500 acres in St. Tammany Parish, Louisiana, a “critical habitat” essential to the dusky gopher frog. The declaration followed the settlement of lawsuits filed by the Center for Biological Diversity and Friends of Mississippi Public Lands.
The 1,500 acres are owned by Weyerhaeuser and businessman Edward Poitevent. After almost losing the land during the Great Depression, Poitevent’s family signed a 90-year lease that allowed the land to stay in the family. In the 1990s, Weyerhaeuser took over the lease for its timber operations.
“By locking down land on behalf of a frog that doesn’t live there, the feds froze an estimated $34 million in economic activity,” according to the Pacific Legal Foundation, which represents Poitevent.
“Nor can Edward use his own land for anything else in the future—a literal death knell to his property rights. If overreaching government agents can do this to Edward, they can designate any piece of land a critical habitat for practically any animal. No one’s land is safe.”
Even though the frog is found only in Mississippi, the FWS designated the land as “critical habitat” in Louisiana on the theory that it may one day be inhabitable by the frog. The trial court upheld the FWS finding, and the Fifth Circuit did the same, saying the agency’s decision was entitled to deference because of the 1984 Chevron v. Natural Resources Defense Council decision. In Chevron, the Supreme Court held that courts have to “defer to an agency’s authoritative and reasonable interpretation of ambiguous language found within a statute it administers,” according to a case summary provided by the Supreme Court.
Weyerhaeuser attorney Timothy S. Bishop said Oct. 1 that the government’s proposal for the land in question is unfair to the company.
“If we need to apply for permits … we get to use 40 percent of the land for development and we have to turn 60 percent of it over for frog habitat,” Bishop told the justices. “We don’t think that that is an appropriate use of our land, given that this is not ‘habitat’ to begin with.”
Justice Stephen Breyer, a liberal, seemed somewhat sympathetic to Weyerhaeuser, asking rhetorically if, in addition to using ponds on the land in question to save the frogs, it would be reasonable “to build special hothouses in Nome, Alaska”?
“A decision resting on that strikes me as far-fetched, from a situation where all you have to do in addition is drain six inches of swamp” from a pond to make it hospitable to the frogs, he said.
Who Pays?
Justice Samuel Alito, a conservative, distilled the case during oral arguments, saying what the court was really deciding is which party should bear the costs involved in saving the endangered frog.
“Now, this case is going to be spun, we’ve already heard questions along this line, as a choice between whether the dusky gopher frog is going to become extinct or not,” Alito said. “That’s not the choice at all. The question is, who is going to have to pay and who should pay for the preservation of this public good?”
The head of a grassroots conservative group said endangered-species laws have long been abused.
“The only thing the Endangered Species Act has preserved is liberal power,” Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization, told The Epoch Times.
“It seizes private property, destroys jobs and kills progress, while the data show it’s been a total failure at stopping the ongoing natural process of extinction. Any change to the Act that modernizes it helps, but we can’t embrace science and progress until it is repealed entirely.”
The Supreme Court began its new term shorthanded.
Normally nine justices hear oral arguments, but in the wake of Associate Justice Anthony Kennedy’s retirement July 31, there have been only eight justices. Brett Kavanaugh, President Donald Trump’s nominee to be the ninth justice, was approved 11 to 10 by the Senate Judiciary Committee on Sept. 28 but it is unclear when the full Senate will take up his nomination. After Sen. Jeff Flake (R-Ariz.) requested a fresh FBI investigation of uncorroborated allegations against Kavanaugh, the president asked the FBI to conduct a one-week “supplemental investigation” that “must be limited in scope.”
Sex-Offender Registrations Unconstitutional, Supreme Court Hears
BY MATTHEW VADUM
October 2, 2018 Updated: October 2, 2018
A child rapist’s conviction for failing to register as a sex offender should be set aside because federal rules requiring him to register were created improperly, the offender’s lawyer told skeptical members of the Supreme Court on Oct. 2.
This is the second case of the court’s new term in which the issue is whether Congress delegated too much power to the executive branch, in violation of the Constitution. On Oct. 1, the court heard oral arguments in a case concerning regulations seeking to protect an endangered frog.
At issue is the non-delegation doctrine, a constitutional and administrative law principle that has rarely been invoked lately, and flows out of Article I of the U.S. Constitution. Because “All legislative Powers herein granted shall be vested in a Congress of the United States,” the doctrine holds that Congress isn’t allowed to delegate its lawmaking powers to executive agencies or private entities.
While the high court relied on the doctrine in striking down elements of the New Deal in Schechter Poultry Corp. v. U.S. (1935), the otherwise straightforward legal principle was undermined in the Progressive Era. In 1928, in J.W. Hampton Jr. & Co. v. U.S. the court read language into Article I that doesn’t exist: Lawmaking powers may be delegated so long as Congress lays down an “intelligible principle” on which the recipient of the delegated powers may act.
Although the court acknowledged in Mistretta v. U.S. (1989) that Congress generally isn’t allowed to delegate its legislative powers to another branch of government, it favorably cited its 1928 decision, which held Congress may seek assistance from the other branches.
While a decision to strike down the federal sex-offender registration regulations in question would be truly revolutionary in its ramifications, and call into question the legitimacy of the modern administrative state — replete as it is with unelected bureaucrats exercising vast powers the framers of the U.S. Constitution never intended them to possess—the justices seemed largely unmoved by the arguments presented.
Conviction and Punishment
At oral arguments on Oct. 2, no one disputed that Herman Avery Gundy, 44, who convicted in 2005 of raping an 11-year-old girl, failed in 2012 to register as a sex offender as required by the now 12-year-old Sex Offender Registration and Notification Act (SORNA). However, litigants clashed over the constitutionality of SORNA. Gundy now lives and works in Hagerstown, Maryland, where he is currently registered as a sex offender.
Enacted in 2006, SORNA aimed to close gaps and loopholes under prior laws, as well as to strengthen the nationwide network of sex offender registrations. Registration makes information such as the offender’s name, current location, and past offenses available to local and federal authorities and the public after a sex offender is released into the community. All 50 states, the District of Columbia, and some territories operate sex-offender websites and must comply with SORNA.
In 2008, the U.S. Department of Justice approved guidelines that applied SORNA’s registration requirement to sex offenders from the pre-SORNA era, including Gundy. Gundy objects to this application of the regulations, characterizing it as retroactive even though his non-registration offense took place long after SORNA was enacted.
Gundy is a serial lawbreaker.
In 2005, he pleaded guilty in Maryland to sexually assault. He was sentenced to 20 years in prison, but 10 years were suspended, and he received five years of probation. In November 2010, he completed his Maryland sentence.
The federal Bureau of Prisons (BOP) then relocated him to a Pennsylvania prison to serve a sentence for violating conditions imposed on him during a period of supervised release. In July 2012, BOP moved him to a halfway house in New York. After his release from that facility on Aug. 27, 2012, he remained in the state, according to a case summary provided by the Supreme Court’s press office.
In October 2012, he was arrested and indicted for violating SORNA because he failed to register as a sex offender in New York.
Constitutional Controversy
Gundy’s lawyers attacked the indictment, “arguing among things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the attorney general to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders,” the summary stated.
The trial court initially agreed, tossing the indictment, but the U.S. Court of Appeals for the Second Circuit rejected Gundy’s constitutional argument and remanded the case to the original court for a new trial. This time, Gundy was convicted and sentenced to time served, plus five years of supervised release. Gundy appealed, again on constitutional grounds, to the Second Circuit, to no avail. The Supreme Court agreed March 5 to review his case.
Gundy maintains when Congress delegated authority to the attorney general under SORNA the constitutional separation of powers and non-delegation doctrine which traditionally have held that only Congress has the power to legislate were violated. This power over roughly half a million sex offenders is “quintessentially legislative” and can’t be delegated, he contends.
Principal Deputy Solicitor General Jeffrey B. Wall argued Oct. 2 that SORNA was nothing unusual.
“That kind of implementation is a classic executive function. It is what statutes give to the executive branch all the time.”
In SORNA, Congress “defined the bounds of the people they want into the system going forward, then they said to the attorney general: Your job is to get as many of the existing offenders who fall into that universe into the registries as you can, recognizing there are going to be some practical barriers.”
But in her opening statement, Gundy’s attorney, Sarah Baumgartel, argued SORNA was an affront to the Constitution. While she made her presentation, Baumgartel was interrupted by every member of the court, except for Justice Clarence Thomas, who rarely speaks during oral arguments. (At present, there are only eight justices sitting on the court. President Trump’s nomination of Judge Brett Kavanaugh to the court remains stalled in the Senate.)
“SORNA’s delegation provision grants unguided power to the nation’s top prosecutor to expand the scope of criminal laws and to impose burdensome, sometimes lifetime registration requirements on hundreds of thousands of individuals,” the lawyer said. “It combines criminal lawmaking and executive power in precisely the way that the Constitution was designed to prohibit.”
Baumgartel continued:
“This delegation is unconstitutional … [and] can be distinguished from every delegation that has previously been upheld by this court due to a combination of its total lack of [a] standard and the … nature and significance of the delegated power. Unlike other delegations that this court has approved, SORNA has no standard to guide the attorney general’s exercise of discretion.”
Chief Justice John Roberts then interrupted Baumgartel:
“Well, the government says that they do have a standard and it’s … [to] apply the prohibition or the requirements in the law to the maximum extent feasible.”
Baumgartel replied, saying, “that language does not appear anywhere in the statutory text, nor can it be derived from the sources that the government cites.”
She added, “This is really the fundamental weighing of liberty versus security interests, the sorts of decisions that the people’s legislative body is supposed to make and not supposed to delegate to the chief prosecutor.”
Supreme Court Considers Whether Dementia Makes Death Penalty Cruel
BY MATTHEW VADUM
October 3, 2018 Updated: October 3, 2018
Convicted cop-killer Vernon Madison shouldn’t be executed because he can’t remember committing the 1985 murder that landed him on death row, his attorney told the Supreme Court Oct. 2.
The high court has been asked to consider whether the Eighth Amendment’s ban on cruel and unusual punishment allows the execution of a prisoner whose mental disability leaves him without any recollection of committing the offense that led to the sentence of death.
In this case, Madison suffers from vascular dementia and has experienced several strokes that have led to severe cognitive dysfunction and a degenerative medical condition. His lawyer says Madison is blind, as well as incapable of walking or speaking.
At issue is whether a murderer can escape punishment merely because his body has been ravaged by time and common age-related diseases. Not executing Madison would be unfair to the victim and his family, the government argued. That would also provide incentives to other death-row inmates to drag out the appeals process, as Madison did for years, in the hope that they, too, can hope to live long lives, continuing long after their victims’ bodies have turned to dust.
Madison, now 68, killed on-duty detective Julius Schulte, a 22-year veteran of the Mobile, Alabama, police department, on April 18, 1985.
Madison had broken up with his girlfriend. At the request of neighbors, Schulte was guarding the woman and her 11-year-old daughter while Madison removed his belongings from their house. Madison pretended to leave, and armed with a pistol, hid behind the police car where Schulte was sitting. He put two bullets in Schulte’s head, killing him. He also shot his ex-girlfriend in the back as she attempted to flee. She survived.
It wasn’t a close case. Three eyewitnesses watched Madison murder Schulte and try to murder his ex-girlfriend. Madison was convicted of capital murder and sentenced to death. The state appeals court reversed, finding that prosecutors unfairly excluded blacks from the jury.
At a second trial, Madison was again convicted and capital punishment was ordered. The appellate court reversed this conviction because prosecutors presented inadmissible evidence.
A third trial ended in Madison’s conviction and the imposition of the death penalty; this time, the appeals court refused to reverse.
Madison kept his lawyers busy filing a series of collateral challenges at the state and federal level. All failed. In 2015, the Supreme Court refused to intervene.
Then, beginning in May 2015, he experienced a series of debilitating strokes in prison that caused significant brain damage leading to long-term memory loss. Madison now has encephalomalacia, which means tissue is dead in sections of his brain.
“He also suffers from vascular dementia, cognitive defects, severe memory loss, and other chronic conditions that have decreased his capacity to rationally understand his circumstances,” according to a case summary provided by the Supreme Court’s press office.
Madison’s medical condition convinced the Supreme Court to put his execution on hold. On Feb. 26, the court agreed to review his case.
Precedent
The Supreme Court has ruled previously on similar death-row cases.
In Ford v. Wainwright (1986), the court determined that the Eighth Amendment forbids the execution of an inmate who is mentally incompetent. In Panetti v. Quarterman (2007) the court found that the lower courts should have considered a condemned man’s claim that he suffered from “a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of” his death sentence.
“What the court has said is that our norms, our values are implicated when we do things to really fragile, really vulnerable people,” Madison’s attorney, Bryan A. Stevenson, told the eight justices.
Stevenson said he wasn’t arguing that there should be “a categorical ban on executing people with a certain kind of condition.” Instead, he noted the court has ruled, in the Ford and Panetti cases, that “it is unconstitutional to execute people who are incompetent.”
“The court has said: Look, the death penalty gives the state an incredible power. It’s an awesome power. The authority to execute someone who is not an immediate threat is an awesome power.”
“And that power has to be utilized fairly, reliably, and humanely,” the lawyer said.
“This court’s jurisprudence in Ford and Panetti speaks to the humane part. And what this court said is that if someone is disabled and incompetent and fragile and bewildered and confused, in the way that we have seen, in the context of insanity, in the context of other kinds of mental illness, it is simply not humane to execute them.”
Dementia “in this case,” Stevenson said, “renders Mr. Madison frail, bewildered, vulnerable in a way that cannot be reconciled with executing him because of his incompetency.”
Alabama Deputy Attorney General Thomas R. Govan Jr. told the court that Madison’s health problems have no bearing on the “constitutionality” or “propriety” of the State of Alabama’s pursuit of the death penalty in this murder case.
“Nothing about Mr. Madison’s conditions impact the state’s interest in seeking retribution for a heinous crime.”
Black Voters Beginning to Turn Right as Midterms Near
BY MATTHEW VADUM
October 3, 2018 Updated: October 4, 2018
Support for President Donald Trump is growing among black Americans, but it’s unclear whether that will translate into enough votes for Republicans to retain control of Congress in the midterm elections in one month’s time.
This apparent reversal of fortunes stands in stark contrast to Republicans’ inability in recent decades to attract much support from black voters.
Part of the growth could be due to defections from the Democratic side. Former Democrat Brandon Straka’s #WalkAway movement has been encouraging Americans to share their personal stories of disillusionment with the Democratic Party and abandon, or “walk away,” from the party. The movement encourages voters to reject the influence of the far left on the Democratic Party, which in turn benefits the Republican Party and President Donald Trump. It is difficult to quantify the movement’s actual effects, but it is undeniably stirring things up in American culture.
Recording artist Kanye West’s activism on behalf of the president has also been making waves. When he embraced Trump after the election, he was rewarded with contempt almost universally from the entertainment industry and mainstream media.
The rapper wore a red “Make America Great Again” baseball cap as he laid out an informal anti-Democratic Party manifesto on the 44th season premiere of “Saturday Night Live” on Sept. 29.
“The blacks weren’t always Democrats,” West said.
“You know, it’s like the plan they did, to take the fathers out the home and put them on welfare. Does anybody know about that? That’s a Democratic plan.
“There’s so many times I talk to, like, a white person about this and they say, ‘How could you like Trump? He’s racist.’ Well, uh, if I was concerned about racism I would’ve moved out of America a long time ago.”
West complained that he was “bullied backstage” before the show and was told not to wear his MAGA hat, which he referred to as his “Superman cape.” Wearing the hat means “you can’t tell me what to do,” he told the audience.
“Thank y’all, for giving me this platform. I know some of y’all don’t agree but y’all be going at that man neck a lot, and I don’t think it’s actually that helpful,” West said, referring to Trump. “Ninety percent of news are liberal.”
Trump himself expressed frustration on Twitter on Sept. 30, questioning why Democrats enjoy so much support from black voters.
“So if African-American unemployment is now at the lowest number in history, median income the highest, and you then add all of the other things I have done, how do Democrats, who have done NOTHING for African-Americans but TALK, win the Black Vote? And it will only get better!”
Polls
Republicans were buoyed by a recent Rasmussen Reports daily tracking poll that pegs the president’s approval rating among black Americans at an impressive 36 percent, which is almost double his support at this time last year.
Critics have called the Rasmussen poll a statistical outlier, but it isn’t the only evidence of a move toward the GOP.
A poll released a week earlier by the liberal National Association for the Advancement of Colored People (NAACP) showed that 21 percent of registered black voters approve of Trump’s job performance.
Black conservative columnist Deroy Murdock was impressed by the polling figures.
“The fact that Trump enjoys the support of one-fifth of black voters in one poll and more than one-third in another is astonishing for someone routinely smeared as a white supremacist. These statistics should trigger klaxons at Democratic headquarters,” he wrote.
Harry Enten, a senior political analyst at CNN who used to do the same job at the politics and statistics website FiveThirtyEight, expressed skepticism about the Rasmussen poll but acknowledged that it “does seem that Trump has gained support among African-Americans since the 2016 election.”
In a column on Aug. 18, he pointed to a new Quinnipiac University poll that gave Trump an approval rating of 41 percent and a disapproval rating of 54 percent. Broken down by race, Trump came out with an approval rating of 9 percent and a disapproval rating of 85 percent among black voters.
“Trump’s average net approval rating (approval rating minus disapproval rating) with blacks right now is -72 points,” Enten wrote. “In other words, he’s shrunk his deficit by 9 points.”
A Pew Research Center study of verified voters in the 2016 election found Democrat Hillary Clinton enjoyed an even larger margin, in this case of 85 percentage points, with black voters, coming in with 91 percent approval versus 6 percent disapproval.
“If this study were correct, it would mean that Trump had doubled his black support since the election,” Enten wrote, adding that a June poll by Pew excluded from his average put Trump’s approval rating among blacks at 14 percent, also a gain since the election.
“It just seems that for whatever reason, the President has picked up a small, but statistically significant, amount of support among African-Americans.”
Whether this shift in sentiment will boost Republicans in the midterm elections is unclear, Enten wrote, but “the importance of even a slight shift in African-American voter sentiment shouldn’t be underestimated.”
“They make up greater than 10 percent of the U.S. electorate, and more in key swing states like Florida, Michigan and Virginia,” he wrote.
President George W. Bush was able to win reelection in 2004, Enten wrote, “in part because he made a small gain among black voters similar to that Trump seems to have made since his own election. If Trump is able to hold on to his additional African-American support, it could aid him in 2020.”
Activists
Conservative activists are optimistic about Republican prospects in November and beyond.
“There is no evidence there is going to be a blue wave in November, but we have to watch for a black wave,” said Star Parker, a former welfare mother who founded the Center for Urban Renewal and Education (CURE), a Washington-based public policy institute that promotes market-based solutions to fight poverty.
“Am I positive and optimistic that the movement will come out in November? Yes, I am,” she said.
The strengthening economy has made black Americans optimistic, Parker explained.
“Blacks are very content with making money, which they haven’t made for a while, and they’re starting to tick up because of President Trump. Black unemployment is the lowest ever, and high school dropouts are being hired,” Parker said.
David Almasi, director of Project 21, the National Leadership Network of Black Conservatives, agreed with Parker.
“Many black households are living paycheck to paycheck, and the growing economy helps them out and they are thanking Donald Trump for that,” Almasi said.
“Unlike most politicians, Donald Trump is someone they’ve known their whole lives and they respect. I’m 50 years old. I’m not cognizant of a world without him.”
Parker explained that blacks have been closely watching the narrative advanced by Democrats and they’ve noticed “how aggressive they’ve become against the interest of the country.”
They’ve been watching with alarm the brutal confirmation battle over Supreme Court nominee Brett Kavanaugh. “When you declare someone guilty before trial it reminds them of Jim Crow,” she said.
“When the Democrats have drawn a line so deeply to message out that you must always believe the woman, or you are a sellout if you don’t, black people are being reminded of black history.
“There are many in their immediate families or their friends’ immediate families who remember. Everybody knows somebody who was falsely accused and is doing hard time.”
The fact that “black entertainment industry celebrities are cooperating with the Trump administration” is promising, she said.
“It’s a movement. There are many who are now looking at his proposals, including prison reform.
“There are many black people, unknown until now, who have now been brought to the table. We’re starting to see that there is an opportunity opening up.
“There are lots of people in distressed zip codes looking for new ideas.”
Candace Owens, communications director for the conservative youth organization Turning Point USA, predicted in July that there would be a “major shift” of black voters away from the Democratic Party before the 2020 election.
Owens opined that black men and women, as opposed to white middle-class women, will become the “most relevant vote” in the country by 2020 because more and more blacks are being exposed to “different ideas” on social media.
“There is going to be a major black exit from the Democrat Party, and they are going to actually have to compete for their votes in 2020,” she told MSNBC. “We’re seeing a major shift happen. And black supporters are leaving the left and going over to the right.”
Supreme Court Weighs US Right to Detain Criminal Aliens Long After Prison
BY MATTHEW VADUM
October 11, 2018 Updated: October 11, 2018
The government loses the right under federal immigration law to detain for deportation proceedings a lawful permanent resident convicted of a serious crime, if it fails to arrest the person the day he completes his criminal sentence, an ACLU lawyer told the assembled justices of the Supreme Court.
It is “appropriate” for the government to detain the person “the same day,” Cecillia D. Wang, deputy legal director of the American Civil Liberties Union, said Oct. 10 during oral arguments before the court. Wang previously worked for left-leaning Justice Stephen Breyer.
The ACLU is the left-wing civil-rights group that spent more than $1 million opposing the nomination of Justice Brett Kavanaugh, who participated in the oral arguments. It was Kavanaugh’s second day of hearing cases at the Supreme Court after being confirmed by the Senate on Oct. 6.
The case comes from California, a hotbed of resistance to President Donald Trump’s drive to enforce the nation’s immigration laws and to undermine the practice of cities declaring themselves sanctuaries that harbor illegal aliens.
The enforcement of long-neglected immigration laws is a priority of the Trump administration, which has intensified immigration-enforcement efforts in California.
California isn’t lifting a finger to help. The state now largely forbids cooperation with federal immigration authorities, presumably a violation of the U.S. Constitution’s Supremacy Clause. State law there now imposes drastic restrictions on communications between local police and federal immigration authorities, including information regarding when criminal aliens are scheduled to be released from local jails.
For years, jailers in California and in other sanctuary jurisdictions have been refusing to honor requests from U.S. Immigration Customs and Enforcement (ICE), a division of the Department of Homeland Security (DHS), to continue to detain persons scheduled to be released, pending transfer to ICE.
In a high-profile case, felon and serial deportee Jose Ines Garcia Zarate was charged with killing Kate Steinle, 32, on a tourist-packed pier on July 1, 2015, after then-San Francisco Sheriff Ross Mirkarimi, a Democrat, defied an ICE detainer notice and put the Mexican national back on the streets.
There was widespread outrage when the defendant was acquitted on serious charges and convicted by a state jury on a mere charge of unlawfully possessing a firearm. Trump spoke of the case repeatedly on the campaign trail.
Immediacy
The case heard by the Supreme Court was an appeal of a decision rendered Aug. 4, 2016, by the oft-overturned U.S. Court of Appeals for the Ninth Circuit. The Supreme Court agreed to review the case on March 19 of this year at the request of the federal government.
With few exceptions, a federal legal provision cited as 8 U.S.C. § 1226(c) directs the government to detain for removal proceedings green-card holders immediately upon completion of their sentences for serious crimes.
The relevant part of the law states the U.S. “shall take into custody any alien who … is inadmissible by reason of having committed any offense covered in section 1182(a)(2) of this title,” which covers crimes of “moral turpitude,” as well as attempts or conspiracies to commit such crimes.
Aliens convicted of other serious crimes, including those for which the person “has been sentenced to a term of imprisonment of at least 1 year,” shall be deemed deportable and taken into custody “when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.”
In the opinion that gave rise to the case at hand, the Ninth Circuit ruled immigration law “unambiguously imposes mandatory detention without bond only on those aliens taken … into immigration custody ‘when [they are] released’ from criminal custody. And because Congress’s use of the word ‘when’ conveys immediacy, we conclude that the immigration detention must occur promptly upon the aliens’ release from criminal custody.”
The government rejects this immediacy argument, arguing in a court brief dated Sept. 5, that it’s common sense “that important governmental action is better late than never.” The brief approvingly cites a 2013 case in which the Third Circuit held “[b]ureaucratic inaction—whether the result of inertia, oversight, or design—should not rob the public of statutory benefits.”
The entire purpose of the law under attack “is to protect the public from criminal aliens by keeping them detained during their removal proceedings, without the prospect of release.”
The Meaning of ‘When’
But what happens if, contrary to the requirements of the law, the government fails to arrest potentially deportable criminal aliens when they complete their sentences?
The court heard a litany of examples of bureaucratic incompetence, in which ICE has failed to detain criminal aliens when they finished their custodial sentences, sometimes waiting years to reincarcerate such individuals. Sometimes, as Justice Sonia Sotomayor noted, ICE files a detainer request and doesn’t even bother to show up to take the person into custody.
A visibly annoyed Justice Breyer asked lawyer Zachary D. Tripp, assistant to the Solicitor General, “Is the government’s position that this paragraph, which says ‘shall be arrested upon release,’ applies to a person who has been released 50 years before?”
Tripp sheepishly replied, “Our position is absolutely that this applies, regardless of the time in.”
During Wang’s rebuttal arguments, Justice Kavanaugh noted that, “Congress did not put in a time limit, whether it’s reasonable time, as Justice Breyer says, or a year or two years or six months or 48 hours.”
“Congress knew it wouldn’t be immediate, and yet, Congress did not put in a time limit. That raises a real question for me whether we should be superimposing a time limit into the statute when Congress, at least as I read it, did not itself do so.”
The authority of the federal government to detain lawfully admitted immigrants with serious criminal records for the duration of their removal proceedings, without affording them a detention review, itself was barely discussed during the one hour of oral arguments.
At issue was whether the government forfeits its statutory power to indefinitely detain such permanent residents if it fails to take those individuals into custody immediately after they complete their sentences.
Although the plain wording of the statute doesn’t give the government discretionary authority to refrain from detaining the individuals concerned, the government argues that the act of failing to detain in a timely manner doesn’t irrevocably deprive it of its power to do so later. The green-card holders in the case disagree with this better-late-than-never approach, arguing that the detention must take place promptly upon release or not at all.
Green Card Holders
The case involves three lawful permanent residents of the United States residing in California, who were taken into custody by ICE years after completing sentences for crimes that triggered the mandatory-detention provisions of the immigration statute.
The first individual facing deportation is Mony Preap, a green-card holder since he came to the U.S. as an infant in 1981. He has two 2006 misdemeanor convictions for possession of marijuana and a later conviction for simple battery. Preap was detained by ICE after the battery sentence was complete, even though it was insufficiently serious to trigger the mandatory-detention provision.
The second person concerned is Eduardo Vega Padilla, a lawful permanent resident since he came to the U.S. in 1966 as an infant. He has a drug possession conviction from 1997 and another from 1999. In 2002, he was convicted of owning a firearm despite having a prior felony conviction. ICE detained him 11 years after he finished his sentence for the firearm offense.
The third litigant is Juan Lozano Magdaleno, a green-card holder since 1974 when he came to the U.S. as a teenager. He has a conviction from 2000 for owning a firearm, despite a prior felony conviction. He was convicted in 2007 of for simple possession of a controlled substance and released from jail in January 2008. More than five years later, ICE detained him and held him without bond.
Precedent
A case decided seven months ago may offer a clue as to how the Supreme Court will decide the case.
In Jennings v. Rodriguez, decided Feb. 27 by the high court, the court examined a Ninth Circuit decision upholding a lower court ruling that mandated that immigration detainees be given bond hearings every six months. While that mandate of a bail review every six months may sound reasonable to many, it doesn’t appear in the statute.
In Jennings, Justice Samuel Alito wrote the majority opinion for a 5–3 court, finding the Circuit Court had acted more like a legislature than a court by inventing the requirement of bond hearings every six months. Because the wording of the statute was clear-cut, the Circuit Court erred in filling in the blanks with a detention-review scheme of its own design. A court “relying on that canon … must interpret the statute, not rewrite it,” Alito wrote.
Justice Elena Kagan recused herself in the Jennings case because she acted in it, when she served as President Barack Obama’s solicitor general. But Kagan participated in the oral arguments on Oct. 10.
The case heard Oct. 10 is cited at the Supreme Court’s website as Nielsen v. Preap, No. 16-1363.
Two Long-Stalled Nominees to Justice Department Confirmed
BY MATTHEW VADUM
October 11, 2018 Updated: October 12, 2018
Commentary
The long-delayed nominations of two key Department of Justice officials who will oversee the enforcement of civil rights and environmental laws were narrowly approved by the Senate on Oct. 11, over the strong objections of left-wing activists.
Although the Democrats’ ongoing, unprecedented blockade of President Donald Trump’s nominees across all agencies of the federal government continues, internal resistance within the Justice Department (DOJ) to Trump’s policy agenda is likely to be undermined to an extent, with the two new appointees in place.
Indeed, the confirmation of the two officials, both of whom were nominated in June 2017, may finally give the president firm control over two renegade divisions within the DOJ that are packed with career holdovers from the Obama administration. These staff members have gained a reputation for being more concerned with so-called social-justice activism than with simply enforcing the law and adhering to the tenets of the U.S. Constitution.
Eric S. Dreiband of Maryland was confirmed as assistant attorney general for civil rights in a 50–47 vote. Hours before that, the Senate voted by the same margin to end debate on the nomination and advance to the confirmation vote.
Jeffrey Bossert Clark of Virginia was confirmed as Assistant Attorney General for Environment and Natural Resources by a vote of 52–45. Sen. Joe Manchin (D-W.Va.) and Claire McCaskill (D-Mo.), who are both facing tough re-election fights in states that Trump carried in 2016, both voted “yea.” The Senate had voted 53–44 to end debate on Clark’s nomination, with Manchin and McCaskill again voting “yea.”
Civil Rights Division
It took 21 months for Dreiband to be confirmed, compared to the nine months in President Barack Obama’s first term that it took the Senate to approve radical leftist Tom Perez to the same post. While in the position, Perez helped then-Attorney General Eric Holder carry out what conservatives characterize as a war on police, immigration-enforcement efforts, and electoral integrity.
Dreiband’s nomination is “the most important nomination of Trump’s, after court picks,” former Civil Rights Division attorney and bestselling author J. Christian Adams said in a brief statement emailed to The Epoch Times.
Adams hopes Dreiband will work to undo the damage he says Perez, who is now Democratic National Committee chairman, did to the division.
Perez “used the vast power of the Civil Rights Division to fundamentally transform the country,” Adams wrote in a Washington Times commentary earlier this year. Adams is also president and general counsel for the Public Interest Legal Foundation and author of the 2011 book “Injustice: Exposing the Racial Agenda of the Obama Justice Department.”
There is a great deal of work to be done. Perez refused to prosecute hate crimes committed against white Americans, helping to engineer the dismissal of a case involving two members of the New Black Panther Party, who had been accused of intimidating white voters in Philadelphia on Election Day 2008.
Perez helped to enact the Church Arson Prevention Act, which rested on the false premise that black churches were being targeted with disproportionate frequency by arsonists. He targeted then-Maricopa County, Arizona, Sheriff Joe Arpaio for legal harassment because he disapproved of Arpaio’s tough-on-crime approach, especially with respect to illegal aliens.
Perez favored the use of affirmative action in hiring at higher education and health care facilities. He compared bankers to Ku Klux Klan members. Bankers discriminate “with a smile” and “fine print,” but they are “every bit as destructive as the cross burned in the neighborhood,” he said.
Reflecting the 2016 Election
Adams argued in his column that Dreiband and Clark are essential to returning federal law enforcement to the standards of the pre-Obama era normalcy:
“Messrs. Dreiband and Clark are not needed just to cancel these radical and environmentalist fifth columns. As the Justice Department continues to see trustworthiness slide with the Comey-Strzok-Mueller-McCabe drama, Trump voters want evidence at Justice that Mr. Trump won the election in 2016.
“The Civil Rights Division must fully reflect the results of the 2016 election, where a radicalized anti-police pro-illegal immigrant, anti-election integrity cabal is defanged for good.
“This goes beyond race-neutral enforcement of voting laws. It is more than ensuring equities in employment, education funding, religious liberty, and others. A full reset is necessary.
“The American people must be able to see that when civil rights are on the line, no matter how obscure or unpopular a protected position is, they will have backup in the form of DOJ attorneys when needed.”
The Nominees
Left-of-center advocacy groups typically characterize Dreiband as an enemy of minorities, the poor, and of civil rights in general. Meanwhile, conservatives say Dreiband will be a breath of fresh air at the Civil Rights Division—because he’s a principled conservative, as opposed to a leftist determined to radically transform the country.
In his legal career, Dreiband has stood up for religious freedom, arguing against the government forcing religious-minded employers to violate their conscience by providing employees with birth control.
Dreiband previously served as general counsel of the United States Equal Employment Opportunity Commission (EEOC), where he headed litigation teams charged with enforcing, among other things, the Civil Rights Act of 1964. Before that, he was deputy administrator of the Department of Labor’s Wage and Hour Division, where he enforced the Fair Labor Standards Act, the Family and Medical Leave Act, and other laws.
Clark is described by environmentalists as a friend of polluters.
Senate Minority Whip Dick Durbin (D-Ill.) painted an unflattering picture of Clark, describing him as “a favorite of the Federalist Society, having chaired that group’s environmental law and practice group.” His nomination has been “strongly opposed by groups that care about protecting the environment,” he told The Hill newspaper.
In remarks on the Senate floor this week, Durbin noted with disapproval that as a lawyer, Clark represented BP, which was responsible for the Deepwater Horizon oil spill of 2010. He also said Clark said in 2014 that the science of climate change was “contestable.”
E&E News reports that in his new post, “Clark will lead the federal government’s litigation positions in cases dealing with pollution control laws, public lands, natural resources, wildlife, and tribal issues.”
Democrats Line Up Against Trump’s New Public-Charge Policies for Immigrants
BY MATTHEW VADUM
October 14, 2018 Updated: October 14, 2018
The Trump administration’s decision to move forward with a long-awaited regulatory overhaul aimed at encouraging financial self-sufficiency among prospective immigrants to the United States is being met with opposition by Democrats, who characterize it as an attempt at “radically reshaping our legal immigration system.”
The plan consists of a move to enforce the largely ignored public-charge provisions of the nation’s immigration laws that require would-be immigrants to be able to support themselves without relying on government aid. The administration hopes to enact a new regulation in the form of a 183-page draft rule that the U.S. Department of Homeland Security (DHS) unveiled on Sept. 21.
The agency formally triggered a 60-day public comment period by publishing the document in the Federal Register on Oct. 10. More than 7,000 public comments had been filed as of Oct. 14, according to the Regulations.gov website.
Relying on a confidential source close to the DHS rulemaking process, The Epoch Times reported on Sept. 9 that the proposed rule defining the phrase “public charge” under Section 212(a)(4) of the Immigration and Nationality Act was expected to be made public that month or soon after.
President Donald Trump is following through on a campaign promise. America’s immigration policies must promote “the well-being of the American people,” he said in August 2016.
“Our enforcement priorities will include removing criminals, gang members, security threats, visa overstays, public charges,” Trump said. He defined public charges as “those relying on public welfare or straining the safety net along with millions of recent illegal arrivals and overstays who’ve come here under this current corrupt administration.”
According to an analysis by the Henry J. Kaiser Family Foundation, the federal government has long had the authority to “deny an individual entry into the U.S. or adjustment to legal permanent resident (LPR) status—i.e., a green card—if he or she is determined likely to become a public charge.”
Under the proposed regulation, “officials would newly consider the use of certain previously excluded programs, including Medicaid, the Supplemental Nutrition Assistance Program, the Medicare Part D Low-Income Subsidy Program, and several housing programs, in public-charge determinations.”
This, in turn, would decrease participation in these taxpayer-funded programs, according to the analysis.
Depressing demand for public benefits is alarming to some.
A group of left-leaning federal lawmakers, including Sen. Bernie Sanders (I-Vt.) and 21 Democratic senators, including 2020 presidential hopefuls Kamala Harris (Calif.), Kirsten Gillibrand (N.Y.), Cory Booker (N.J.), and Elizabeth Warren (Mass.), filed a comment on the proposed regulation. They attacked the draft rule because, in their words, it would have a “serious chilling effect … on millions of hardworking families and children across this nation.” The rule, if finalized, “would mark a fundamental change from our nation’s historic commitment to welcoming immigrants, radically reshaping our legal immigration system.”
The U.S. Conference of Mayors submitted a comment asserting the new regulation “would ultimately punish immigrants” and “force families to choose between the help they need and the people they love.” The letter was signed by 90 mayors, including Eric Garcetti (D) of Los Angeles, Bill de Blasio (D) of New York, Rahm Emanuel (D) of Chicago, Muriel Bowser (D) of Washington, Martin Walsh (D) of Boston, Libby Schaaf (D) of Oakland, California, and Ted Wheeler (D) of Portland, Oregon.
Garcetti separately filed a comment calling the regulation an “anti-family measure” that “would punish American-born children and penalize immigrants who work hard, pay taxes, and play by the rules.”
The rule, he wrote, “would not only increase the number of immigrants denied entry/green cards because of the likelihood that they would become dependent on government benefits, but it would also dissuade our nation’s most vulnerable individuals and families from seeking assistance for fear of denial of permanent residency and a path to citizenship.”
Sal Rosselli, president of the National Union of Healthcare Workers, filed a comment that called regulation an “attack on human dignity” that “reflects an anti-democratic gesture by the Trump administration, and is a gross violation of basic human rights to shelter, health, and food.”
The Trump administration says it is tying up loose ends.
Francis Cissna, director of U.S. Citizenship and Immigration Services (USCIS), an agency within DHS, explained in August that the purpose of the rule was “not to reduce immigration or, in some diabolical fashion, shut the door on people or anything like that.
“The goal is simply to enforce a ground of inadmissibility to this country that’s been on the books for … more than 100 years.”
Trump Seeks to Remake 9th Circuit Court of Appeals
BY MATTHEW VADUM
October 17, 2018 Updated: October 18, 2018
Frustrated by Congress’s failure to break up the overworked, often-overruled U.S. Court of Appeals for the Ninth Circuit, President Donald Trump is attempting to dilute what he considers to be the liberal bias of the San Francisco-based 29-seat circuit court by nominating three new conservative judges.
The three nominees are California-based litigators Daniel Collins and Kenneth Lee, along with Assistant U.S. Attorney Patrick Bumatay, all of whom worked for Republican administrations and are reportedly members of the Federalist Society, a conservative-constitutionalist group.
None of the three were approved by their home-state senators, Democrats Dianne Feinstein and Kamala Harris, as part of the so-called blue-slip process. While the White House had been involved in negotiations with the two lawmakers for some time, the talks broke down over the summer, the Sacramento Bee reported Oct. 11.
“Last night, the White House moved forward without consulting me, picking controversial candidates from its initial list and another individual with no judicial experience who had not previously been suggested,” Feinstein said.
Harris spokeswoman Lily Adams said, “Instead of working with our office to identify consensus nominees for the Ninth Circuit, the White House continues to try to pack the courts with partisan judges who will blindly support the president’s agenda, instead of acting as an independent check on this administration,”
Evolution of the Blue Slip
For a long time, as a courtesy, presidents have entered into discussions with senators in states where their judicial nominees reside. They have generally refrained from moving forward unless the senators returned a blue slip in support of the would-be judge.
But in today’s super-heated political environment, complete with full-on, in-your-face political campaigns on judicial nominees led by teams of lawyers and activists, the president and Senate Republicans have abandoned the custom, enraging Democrat lawmakers in California and anywhere else judicial nominations are pending.
The blue slip “seems quaint these days, a relic of a bygone era in which actual qualifications, not ideology, were the issue in Senate confirmation votes that, anyway, required a filibuster-proof 60 votes,” Thomas Lifson opined at American Thinker.
Curt Levey, president of the Committee for Justice, which advocates for constitutionally limited government, acknowledged in an interview with The Epoch Times that the “blue slip” has changed over the years.
Blue slips used to carry the weight of a veto over nominations in the past, depending on who chaired the Senate Judiciary Committee at the time, he said.
Current Senate Judiciary Committee Chairman Chuck Grassley’s (R-Iowa) position is that the lack of a positive blue slip won’t prevent a Circuit nominee from advancing, if the administration has consulted with the home-state senators, Levey explained.
“There should be some consultation with the home-state senators, but the president doesn’t have to listen to what they say,” he added.
Bane of Conservatives
Conservatives who follow judicial affairs believe that no other court compares to the Ninth Circuit. In 2012, the Supreme Court reversed 86 percent of the decisions it reviewed from that court. This year, the Supreme Court has reversed at least seven Ninth Circuit decisions. The figure for the past decade is 115.
The Circuit, which some critics call the “Ninth Circus” or the “Nutty Ninth,” previously struck down the Pledge of Allegiance because it contained the phrase “under God.” It has also found that citizens have no constitutional right to own guns.
Trump was especially incensed last year when judges in the Ninth Circuit ruled against Executive Order 13769, a temporary ban on the admission of aliens from the terrorism-prone nations of Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. The idea behind the short-term prohibition on visitors from those countries was to give the new administration an opportunity to formulate a policy to keep Americans safe from terrorism.
But judges in the Ninth Circuit and the Fourth Circuit Court of Appeals blocked enforcement of the order, citing statements Trump made on the campaign trail—itself a significant departure from judicial norms—that they claimed showed the president’s animus toward Muslims. Egged on by the ACLU, the media inaccurately tagged the order as a “Muslim ban,” even though visitors from most Muslim-majority countries in the world weren’t affected by it.
Seattle-based Judge James L. Robart issued an injunction against the order Feb. 3. A panel of the Ninth Circuit followed suit Feb. 9.
Eventually, the Supreme Court sided on the merits with Trump, finding 7–2 in December 2017 that a subsequent presidential directive on the same subject matter, Presidential Proclamation 9645, was constitutional. The Supreme Court ruling struck down lower court judges’ findings that the president acted improperly in imposing a temporary travel ban on individuals from Islamic, terrorism-infested nations.
“This a substantial victory for the safety and security of the American people,” U.S. Attorney General Jeff Sessions said at the time.
Restructuring
The Ninth Circuit is vast, covering Alaska, Idaho, Montana, Oregon, Washington, Hawaii, Nevada, Arizona, California, Guam, and the Northern Mariana Islands.
Republicans have been talking for years about splitting up the Circuit, which has the heaviest caseload of all U.S. appeals courts, into separate circuits, but they haven’t succeeded in Congress.
A bill that would reform the Ninth Circuit is moving forward in the nation’s legislature. HR6754, a bill spearheaded by Rep. Darrell Issa (R-Calif.) that would restructure, but not break up, the Ninth Circuit, was approved 16–5 on Sept. 13 by the House Judiciary Committee, Law.com reports. That measure would divide the Ninth Circuit into three regional divisions.
“The bill would also create a circuit-wide division, with a chief judge and four judges from each of the newly created regional divisions. This body would hear tax cases, appeals on final agency actions, and decisions on which the regional divisions have split. The proposal would also add five judgeships, bringing the total number to 34.
“For years, many have called for this court to be divided, but there remains widespread disagreement on how those divisions should be made,” Issa said.
“By dividing the Ninth Circuit into regional divisions that effectively function as individual appellate courts, we open the door to determining whether a circuit split would be feasible while, at the same time, preserve the current Ninth Circuit as a single appellate court,” he added.
Issa’s legislation and Trump’s three new Ninth Circuit nominations may satisfy some conservatives, at least for a while.
“The thinking among conservatives is that if we cannot have a conservative majority on the Ninth Circuit, then, at the very least, let’s not subject the conservative states in that circuit to the liberal majority,” Levey said.
White House Counsel Don McGahn Exits After String of Judicial Confirmation Victories
BY MATTHEW VADUM
October 18, 2018 Updated: October 18, 2018
President Donald Trump’s White House counsel, GOP establishment lawyer Donald F. McGahn II, resigned from his post Oct. 17, according to multiple media reports. McGahn was key in getting two controversial nominees onto the Supreme Court and ran Trump’s legal defense in the saga arising from the Russian electoral collusion theory.
McGahn’s resignation clears the way for his replacement, Pat A. Cipollone, a specialist in defamation defense and complex litigation. Cipollone’s talents could prove useful for Trump if Democrats—who promise extensive investigations of Trump—recapture the House of Representatives in the Nov. 6 elections.
Judicial Confirmations
McGahn became a ubiquitous, if unrecognized, figure in America’s living rooms during the recent confirmation hearings of Supreme Court Justice Brett Kavanaugh, usually appearing on TV seated behind the nominee’s left shoulder.
As the architect of the White House’s strategy on judicial nominations, McGahn gets credit for the confirmation of Kavanaugh and Supreme Court Justice Neil Gorsuch, along with the confirmation of 29 appeals court judges and 52 district court judges.
When Justice Antonin Scalia died in February 2016, McGahn was Trump’s campaign attorney. It was McGahn’s idea that candidate Trump make and publicize a list of conservative judges from which he could select Scalia’s replacement, if elected.
“That list would prove to be a key selling point for Trump among social conservatives, who otherwise might have been skeptical of a thrice-married billionaire from New York City,” according to NPR.
“McGahn oversaw the president’s judicial selection process, picking nominees who are uniformly conservative—often suggested by the Federalist Society or the Heritage Foundation—and typically young—capable of shaping the federal courts’ decisions for decades to come.”
Senators Praise
After Trump took to Twitter to preview McGahn’s departure Aug. 29, federal lawmakers paid tribute to the attorney.
“Don is the most impressive White House Counsel during my time in Washington, and I’ve known them all,” Senate Majority Leader Mitch McConnell (R-Ky.) said at the time. “Don’s significance to the judiciary, the White House and the nation cannot be overstated, and I look forward to his continued efforts on behalf of our country.”
George Hartmann, a spokesman for Senate Judiciary Committee chairman Chuck Grassley (R-Iowa), said in August that the senator “has appreciated Mr. McGahn’s work over the last two years and has considered him integral to the president’s record-breaking success on filling judicial vacancies.”
Tumult
But McGahn’s nearly two years inside the White House were filled with tumult.
Critics blamed him unfairly for Trump’s executive orders banning travel from Islamic terrorism-producing nations and punishing so-called sanctuary cities for harboring illegal aliens, claiming the orders were open to attack because they were supposedly poorly written.
Not all of his judicial picks made it through the Senate. According to Time magazine, McGahn tried to select judicial candidates who were “too hot for prime time … the kind of people that make some people nervous.”
He also reportedly made White House officials antsy by sitting down with investigators working for special counsel Robert Mueller “for about 30 hours in at least three interviews, without his lawyer offering a full debrief to the president’s attorneys on what was said during those sit-downs,” the Washington Examiner reported.
Trump wrote in a tweet on Aug. 18 that he “allowed” McGahn “and all other requested members of the White House Staff, to fully cooperate with the Special Counsel.”
McGahn pressed Trump not to fire Mueller, reportedly threatening to resign if Trump followed through with the dismissal, and argued with the president over his reported desire to pardon his former campaign manager Paul Manafort, who was convicted of offenses that arose out of Mueller’s Russia investigation but had nothing to do with the Trump campaign.
Trump himself denied McGahn lobbied him about Mueller. On Aug. 30, he wrote on Twitter that McGahn “was NOT responsible for me not firing Bob Mueller or [Attorney General] Jeff Sessions. So much Fake Reporting and Fake News!”
Nevertheless, it was around two weeks after McGahn’s cooperation was reported that the president announced Aug. 29 on Twitter that his counsel would soon be leaving.
Another one of Trump’s attorneys, former New York Mayor Rudy Giuliani, said McGahn’s discussions with Mueller had nothing to do with his decision to leave the White House.
Next Steps
It is unclear what McGahn will do next. He could return to private legal practice and represent Trump’s reelection campaign. Formerly with the powerhouse law firms of Patton Boggs and Jones Day, he served as general counsel to the National Republican Congressional Committee and as counsel for the Illinois Republican Party. McGahn became a member of the Federal Election Commission in July 2008, serving as its vice chairman from January 2013 to 2015.
Trump said Oct. 16 before news broke of McGahn’s resignation that he would be replaced by Cipollone, whom the president recently described as “a great guy” who was “very talented.” Cipollone is identified as a litigation partner at the law firm of Stein Mitchell Cipollone Beato and Missner. He “also has substantial expertise in defamation counseling and litigation on behalf of corporations, organizations, and public figures, including prepublication negotiations and/or litigation with major media organizations,” according to his online biography.
Supreme Court Agrees to Hear Cable-Access TV Case That May Affect Social-Media Giants
BY MATTHEW VADUM
October 22, 2018 Updated: October 22, 2018
The Supreme Court has decided to review a New York case that could conceivably give Americans an opportunity to shape online content, as well as put a foot in the door to mount court challenges against censorship-prone social-media companies on grounds of free speech.
The case comes as activist complaints of harassment and viewpoint-based discrimination against companies such as Twitter, Facebook, and Google continue to grow. Conservatives, in particular, say that the social-media giants have been especially resolute in their determination to crack down on their political expression after Democrat Hillary Clinton, whom they strongly favored, was unexpectedly defeated by Republican Donald Trump in the 2016 presidential election.
Facebook and Twitter have seized upon claims of Russian meddling in the U.S. electoral process to justify curtailing free expression and have reportedly purged and undermined the pages and accounts of those who support the president.
Denied Access
The case itself doesn’t arise from the world of social media. Two content producers, DeeDee Halleck and poet Jesus Melendez, say that the public-access TV network Manhattan Neighborhood Network (MNN) suspended them for criticizing the network.
According to MNN, Melendez and Halleck featured themselves in a video that included “harassing and threatening language directed toward MNN staff during a long diatribe.” The video titled “The 1% Visit El Barrio” showed Melendez outside of one of MNN’s properties saying:
“Our people, our people, people of color, are in control of this building and I have to wait until they are fired, or they retire, or someone kills them so that I can come and have access to the facility here.”
Halleck, co-founder of Paper Tiger Television and Deep Dish Satellite Network, is a left-wing academic and activist.
In arguing that the Supreme Court ought to take the case, MNN said the high court could use the case to come out with a perhaps definitive policy governing how social-media companies regulate content on their platforms.
The New York-based U.S. Court of Appeals for the Second Circuit ruled in favor of Halleck and Melendez, finding that the public-access channel on which they appeared “is the electronic version of the public square.”
“The employees of [MNN] are not interlopers in a public forum; they are exercising precisely the authority to administer such a forum conferred on them by a senior municipal official,” U.S. Circuit Judge Jon Newman wrote.
Members of the Supreme Court voted at their private conference Oct. 12 to review the case. This was the first such conference that new Associate Justice Brett Kavanaugh participated in.
Public Forums
Amy Howe at SCOTUSblog described the case, an appeal from the Feb. 9 decision by the Second Circuit, known as Manhattan Community Access Corp. v. Halleck, as “relatively low-profile but potentially significant,” because it implicates the free-speech guarantees of the First Amendment to the U.S. Constitution.
In the matter before the high court, the Second Circuit determined that the private operator of MNN, a public-access cable television network of seven channels in New York City that doesn’t receive government funding, was a “state actor.”
In this context, a state actor is someone or something capable of being sued for infringements of the First Amendment because it is acting on behalf of a government.
MNN exists because of a New York regulation that forces cable-TV networks with 36 or more channels to provide “at least one full-time activated channel for public-access use.” Such a channel or channel must be open to the “public on a first-come, first-served, non-discriminatory basis.”
According to court documents filed, Howe writes, the Second Circuit’s ruling “not only ‘threatens the viability’ of ‘public-access channel operators around the country,’ but it also raises a broader question: whether private property can be a public forum, a place traditionally open for public speech and debate, where the protections of the First Amendment are the strongest.”
This is important, according to a friend-of-the-court filing by Chicago Access Corporation, a foundation that runs public-access TV channels in that city, because “courts are increasingly being asked to consider whether privately owned internet platforms like Twitter and Facebook can ever be public forums.”
Oral arguments in the case haven’t yet been scheduled.
Children’s Climate-Change Suit Temporarily Halted by Chief Justice Roberts
BY MATTHEW VADUM
October 23, 2018 Updated: October 23, 2018
Chief Justice John Roberts temporarily blocked the scheduled Oct. 29 start of the trial of an unusual lawsuit in Oregon, in which a group of young people is seeking a declaration that the Constitution requires the federal government to take action against climate change.
A limited-government group praised the decision.
“The Supreme Court is acknowledging what we have really known all along: this is a policy issue that belongs in the Halls of Congress, not the courts,” Frank Maisano of the Policy Resolution Group told The Daily Caller.
The legal proceeding, according to critics, is a political stunt aimed at raising public awareness of environmentalist groups’ controversial claim that the consumption of oil and other fossil fuels boosts the emission of greenhouse gases which in turn leads to changes in the earth’s climate that could prove catastrophic in the long term.
If the lawsuit succeeds at trial, the government could be required to develop a far-reaching policy to crack down on the emission of greenhouse gases throughout multiple sectors of the economy, a move that could inflict long-lasting damage on the economy without necessarily having much, if any, impact on climate change.
The government already has significant regulatory power to curtail pollution, including the emission of greenhouse gases, but the Trump administration doesn’t wish to gain additional regulatory power in this arena. In fact, President Donald Trump has been on a crusade to cut bureaucratic red tape at the government, in order to promote economic expansion and job growth.
The Trump administration, and before it, the Obama administration, have tried to have the lawsuit dismissed. The U.S. Court of Appeals for the Ninth Circuit rejected a request in March by the Trump administration to throw out the case, saying such a move would be premature. The full Supreme Court itself was asked to review the case earlier this year, but declined to do so.
The lawsuit, filed in U.S. District Court in Oregon on Aug. 12, 2015, by 21 young plaintiffs who then ranged in age from 10 to 21, is known as Juliana v. United States. In it, the plaintiffs claim the United States has known for more than 50 years that carbon dioxide “pollution from burning fossil fuels was causing global warming and dangerous climate change, and that continuing to burn fossil fuels would destabilize the climate system on which present and future generations of our nation depend for their well-being and survival.”
Despite knowing that the use of fossil fuels would “significantly endanger” the plaintiffs, the government continued allowing those fuels to be used and sources of the fuels to be developed, the legal complaint states.
Specifically, the lawsuit singles out the Jordan Cove liquefied natural gas (LNG) terminal in Coos Bay, Oregon, which it claims “will significantly increase the harm” caused by fossil fuels and “enhances the cumulative danger caused” by the government’s actions protecting and promoting the use of fossil fuels.
The plaintiffs want the court to declare that the government has “violated” and continues to violate the plaintiffs’ “fundamental constitutional rights to life, liberty, and property by causing dangerous [carbon dioxide] concentrations in the atmosphere and dangerous government interference with a stable climate system.” The plaintiffs are seeking an injunction preventing the government “from further violations of the Constitution underlying each claim for relief.”
In a legal memorandum dated Oct. 19, Roberts ordered the beginning of the trial delayed, and temporarily halted the pre-trial fact-finding process, Bloomberg News reports. The chief justice gave plaintiffs until Oct. 24 to respond to the Trump administration’s emergency request, dated Oct. 18, to prevent the trial from moving forward.
“We are confident once Chief Justice Roberts and the full court receive the youth plaintiffs’ response to defendants’ mischaracterization of their case, the trial will proceed,” said plaintiffs’ attorney Julia Olson.
Supreme Court Hears Gasoline Tax Case From Yakama Indian Nation
BY MATTHEW VADUM
October 30, 2018 Updated: October 30, 2018
A longstanding federal treaty with the Yakama Indians prevents Washington state from collecting taxes on gasoline sold by a Yakama-owned business, an attorney for the enterprise told members of the Supreme Court Oct. 30, in a case that could have larger implications for states’ abilities to collect taxes from tribal businesses nationwide.
During oral arguments, justices seemed skeptical of the contention that the state shouldn’t be allowed to collect the tax in question, and supportive of enforcing the provisions of the treaty to benefit the Indians covered by it.
If the Supreme Court fails to reverse the state court ruling that is being appealed, “a massive loophole in state tax regimes” would be created, “allowing Yakama businesses to avoid taxes nationwide simply by transporting goods over highways,” the state argued in a court brief. It would also give Yakama Indians “an unwarranted economic advantage over other tribes and non-tribal businesses.”
A failure to reverse could also adversely affect state revenues in any states with Indian lands and inspire further challenges to states’ authority to collect taxes.
The case concerns Cougar Den Inc. in Washington state, which imports gasoline into the Yakama reservation for sale at Yakama gas stations from nearby Oregon. The gas travels over 27 miles of Washington state highway that overlaps with traditional Indian trading routes.
In March 2013, Cougar Den—owned by Kip Ramsey III, a recognized member of the Yakama Indian Nation—began shipping motor vehicle fuel from Oregon to the reservation and selling the fuel at tribal gas stations. Cougar Den paid applicable federal and tribal taxes on the fuel sold, but did not pay taxes to Washington state.
The state sued the business in December 2013 for failing to pay $3.6 million in excise taxes on the fuel. Cougar Den challenged the tax, arguing that because it was owned by a member of the Yakama tribe, the business was exempt from certain taxes under the right to travel guaranteed in an 1855 treaty entered into with the United States. While the treaty doesn’t reference taxes, fuel, or off-reservation trading rights, it does provide tribal members with “the right, in common with citizens of the United States, to travel upon all public highways,” court documents state.
An administrative law judge sided with the company, accepting its treaty-based arguments. A state official reversed the judge’s ruling. The case then moved to county court, which overturned the official. The state appealed that decision to the Washington Supreme Court, citing a 1973 U.S. Supreme Court decision, Mescalero Apache Tribe v. Jones, which held that “outside Indian country, Indians are subject to generally applicable state taxes ‘[a]bsent express federal law to the contrary,’” and that exemptions to state taxes “are not granted by implication” and there must be “a definitely expressed exemption[.]”
The state lost. The state supreme court found for Cougar Den, citing the treaty. Such treaties must be interpreted with ambiguities being resolved in Indians’ favor, the court found. Yakama Indians’ right to travel outside the reservation and trade their goods without conditions or restrictions being imposed on them by the state had to be respected, the court held.
Answering a question from Justice Brett Kavanaugh, Cougar Den lawyer Adam G. Unikowsky said the terms of the treaty must be upheld.
The Yakama gave up huge swaths of land in exchange for “the right to travel” across it, he said.
“It is a little bit of a bait and switch to the Yakamas to say, well, now we’re going to basically exploit the fact that you have to travel across this stretch of land to impose this tax that we wouldn’t otherwise be able to impose, and, by the way, the effect of the tax is to mimic a tax on the reservation—on on-reservation retailers.”
Unikowsky said that, in his view, “it’s very natural and consistent with what I think the expectation of the Yakamas would have been, that they could continue traveling across that land with their goods as they were already doing it at the time—and that means—that means transporting without paying a fee or owing an obligation to the states.”
That the Yakama people gave up a lot in exchange for the protections of the 1855 treaty was a continuing theme during oral arguments.
“To state the obvious, the value, current value of the land the tribe gave up is enormous, right?” Kavanaugh asked.
“It’s a third of the State of Washington, I believe, Your Honor,” the attorney replied.
While questioning Assistant to the U.S. Solicitor General Ann O’Connell, Justice Sonia Sotomayor said, “The one difference that you can’t get around is they didn’t sign a treaty and give away that much real estate to get nothing in return, to be treated exactly like every other citizen in traveling the highway.”
Republicans, Democrats Both Scrambling to Get Out the Vote
BY MATTHEW VADUM
October 31, 2018 Updated: November 1, 2018
WASHINGTON—Republicans and Democrats are duking it out, pouring vast resources into one of the most hotly contested midterm congressional elections in recent decades.
Although Republicans have shattered their own record for voter contacts, Democrats enjoy a financial advantage in the election cycle and enter the final days of the campaign with more cash on hand to launch last-minute get-out-the-vote (GOTV) efforts and advertising blitzes.
Passions are running high on both sides: Violent attacks on Republican candidates and their campaign offices, as well as public harassment of Republican lawmakers and senior Trump administration officials, have become increasingly common in recent months.
Events in the news such as the caravan of would-be migrants from Latin America marching toward the nation’s southern border have turned up the political heat. The arrest of a purported Trump supporter who mailed explosive devices to prominent Democrats and the deadly weekend attack at a Pittsburgh synagogue have inflamed Democrats and journalists and diverted attention from President Donald Trump’s closing arguments.
Republican voters are enraged over the treatment of Supreme Court Justice Brett Kavanaugh during his recent confirmation hearings. On Oct. 10, a Rasmussen Reports poll showed Republicans were angrier than Democrats about the Kavanaugh controversy and were more likely to vote as a result of it.
GOP Optimism
In an interview with The Epoch Times, Washington-based GOP strategist Michael Zak said he’s optimistic about his party’s chances next week.
“President Trump certainly knew what he was doing when he chose Ronna McDaniel to head the RNC,” said Zak, author of the book, “Back to Basics for the Republican Party.”
“In the 2016 election, she ran a superb get-out-the-vote campaign in Michigan, which carried the state for the GOP. This year, the RNC is on track to repeat that successful initiative nationwide. I am certain that Republicans will do much better in the midterms than the Democrat media predicts.”
The fact that the Democrats have outpaced the Republicans on fundraising won’t matter in the end, he said. “Countering the Democrats’ money advantage is the Republicans’ edge in enthusiasm.”
Republicans claim to have made a record-breaking number of voter contacts.
The Republican National Committee (RNC) told the Washington Free Beacon that it has contacted 58 million voters as part of its GOTV effort. The GOP’s ground game operation is now active in 28 states. If digital GOTV outreach is included, the party expects to have carried out “billions of voter engagements by Election Day on Nov. 6.” The party says it has 540 paid staffers and north of 200,000 volunteers.
Part of this effort is the Republican Leadership Initiative Fellowship, which Republicans have called a “game changer” that helped to elect Trump. The program boasts 25,000 fellows, which is five times the size of its voter-outreach force in 2016.
The fellows are trained as “neighborhood team leaders” and “core team leaders” and groomed as permanent field organizers, participating in a six-week training program that covers political organizing activities, such as recruiting volunteers, gathering and interpreting data, and leading voter contact activities such as knocking on doors and phone-banking.
“They are critical to our permanent, on-the-ground presence and largely considered our ‘eyes and ears’ as they have a constant pulse of the community,” according to the RNC.
Democratic ‘Strong Efforts’
On the other side, Maria Simpson, a longtime Democratic operative, said her party is making “strong efforts to target women and minority voters.”
Grassroots Democrats “down here in southern Virginia are very fired up” as a result of the bitter confirmation fight over Kavanaugh and are sympathetic to the “#MeToo” movement that is about raising awareness of sexual harassment and sexual assault.
But she was reluctant to make a prediction about whether Democrats will recapture the House of Representatives. “Based on how unpredictable voters can be, I would be very cautious about how it will turn out,” Simpson said.
“Ever since Dewey versus Truman everybody should have some level of humility,” she said, referencing the 1948 election in which pollsters incorrectly predicted GOP challenger Thomas E. Dewey would unseat President Harry Truman.
Democrats point to various anecdotes to suggest their voter outreach program is on the march. The party is gambling heavily on getting minority voters to the voting booth.
The Democratic Congressional Campaign Committee, which supports House candidates, is spending $25 million on voter outreach aimed at blacks, Latinos, Asians, millennials, and women, Vox reports.
The Democratic National Committee has plowed more than $3 million into organizing and voter registration in 15 states in the off-year election, NBC News reports. DNC Chairman Tom Perez has pushed back after his party was criticized for not putting enough effort into Latino voter outreach. “I knew when I took this job, we needed to up our game in every community,” he said.
A quilt of black activist groups is trying to turn out minority voters for Democrats.
BlackPAC is spending $8 million on radio ads and mailers in Georgia and nine other states. PowerPAC Georgia is spending $5 million on turning out black voters outside metropolitan Atlanta. Collective PAC is conducting a national text-messaging program aimed at 2 million black voters in at least five states. The Black Economic Alliance is spending $2.6 million on GOTV efforts in 15 national and state races. Color of Change PAC, which is backed by labor unions and billionaire Tom Steyer, is spending $5 million to reach 1 million black voters.
Record Turnout?
Voter turnout in the Nov. 6 off-year congressional elections may break records if recent polling is to be believed, although past experience suggests that indications of high voter interest should be taken with a grain of salt.
A recent NBC News/Wall Street Journal poll showed 65 percent of respondents had high interest in the election. The most comparable expression of interest from voters in recent years was 2006, when 61 percent indicated they were highly interested in that midterm election.
But the 65 percent interest figure probably won’t translate into 65 percent turnout.
Historically, most voters skip national elections in which there is no presidential race. Non-presidential elections often see a drop of 20 percentage points in voter turnout from the preceding presidential election. For example, voting-eligible turnout rates hovered around 60 percent in the past four presidential elections, according to the United States Election Project. In off-year elections over the same period, turnout topped 40 percent only in 2010 and 2006, falling to 36.7 percent in 2014.
Put another way, despite 61 percent of voters expressing interest in the 2006 election, only 40.4 percent of eligible voters bothered to cast a ballot that year. That said, evidence suggests that in the current election voters who identify as Republicans are voting early in greater numbers than Democrats.
“GOP-affiliated voters have surpassed Democratic-affiliated ones in early voting in Arizona, Florida, Georgia, Indiana, Montana, Tennessee and Texas, the data showed. Only in Nevada have Democratic-affiliated voters exceeded Republican-affiliated voters so far in early voting, according to the data,” NBC reported Oct. 28.
The Odds
The Real Clear Politics polling average for the so-called generic congressional ballot question gives Democrats a 7.5-percentage point lead over Republicans.
Conventional wisdom holds that Republicans are unlikely to hang onto the 435-seat House. Based on current standings, Democrats would need to pick up a net 23 seats to take control. Since World War II, the party occupying the White House has on average lost 26 House seats in midterm contests.
According to FiveThirtyEight, “Democrats are favored to win a majority of seats if they win the popular vote by at least 5.6 points.” The website gives that party an 85.4 percent chance of wresting control of the House from Republicans, who are given a mere 14.6 percent chance of maintaining control. Republicans maintaining control of the Senate seems an increasingly safe bet. FiveThirtyEight calculates there is an 84.7 percent chance Republicans maintain control, versus a 15.3 percent chance Democrats take over.
Republicans currently have 51 seats in the 100-seat chamber, compared to the Democrats’ 49 seats (which includes two Independents who caucus with the Democrats). Democrats are defending 26 Senate seats; Republicans are defending nine.
Democrats have outraised Republicans in House and Senate races in the current election cycle, and have a cash advantage in the closing week of the campaign.
In House races, Democrats have raised $923 million, spent $801.1 million, and have $261.3 million remaining in cash on hand, according to Center for Responsive Politics figures. Republicans have raised $612.4 million, spent $547.3 million, and have $201 million in cash.
In Senate races, Democrats have raised $540.1 million, spent $459.8 million, and have $168.6 million in cash. Republicans have raised $395.8 million, spent $342.6 million, and have $153.2 million in cash.