Month: June 2017

Categories
Law

Trump’s travel ban is moot

The White House needs a travel ban why?

On March 6, the president issued an executive order that banned travelers to the United States from Iran, Libya, Somalia, Sudan, Syria and Yemen for 90 days while the government reviewed procedures for vetting visitors from those countries.

Though at least 13 federal courts have blocked the order on constitutional and statutory grounds, the Ninth Circuit ruled in June that the president can proceed with a review to determine what additional procedures, if any, might be needed from the countries subject to the ban that would address security concerns.

Still, the administration has asked the Supreme Court to reinstate the ban and to review decisions by both the Ninth and Fourth Circuits that nullify “a national-security directive of the president,” as Jeffrey Wall, the acting solicitor general, wrote in a brief filed last Wednesday.

Even if the court reviews the executive order, the justices won’t hear arguments in the case until October at the earliest. Which means the administration has at least four months to carry out its review. So review away.

The travel ban will remain blocked, but the White House has cited no reason not to assess the threat. If security is at stake, there’s seemingly no reason to delay. Of course, the White House has cited no evidence that would suggest a threat that Congress didn’t address when it tightened visa procedures 18 months ago.

The State of Hawaii, which challenged the travel ban in the Ninth Circuit, contends as much. “Indeed, there is no need for the court to grant review at all,” the state wrote in its latest brief, noting that by October, “the government will have had almost nine months to complete the review and upgrade of immigration procedures that the order was allegedly designed to accomplish.”

The administration’s actions suggest the travel ban may be motivated less by keeping the nation safe than by keeping the president’s supporters stirring. If so, that’s a political calculation, which the justices don’t review anyway.

Categories
Law

Ninth Circuit misread the law governing the Trump travel ban, government tells Supreme Court

The Ninth Circuit misread the law that underpins the president’s exclusion of visitors to the United States from six majority-Muslim countries, the government argues in a new round of papers that ask the Supreme Court to reinstate the travel ban.

The Immigration and Nationality Act (INA) requires only that the president find entry of a group of visitors to the U.S. would be detrimental to the nation’s interests, regardless of whether Congress comes to the same conclusion, says the government in a brief filed on Thursday. Thus, the appeals court erred when it ruled on June 12 that the travel ban has no basis in the record and therefore exceeds the president’s authority, the government says.

“The court of appeals read into that provision a requirement that, before suspending entry, the president must articulate a factual finding — satisfactory to courts — that support[s] the conclusion that entry of all nationals whose entry he suspends would be harmful to the national interest,” writes the government. “That requirement turns the statute’s text on its head.” [internal quotes omitted]

In its ruling, the Ninth Circuit noted that the executive order containing the ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Sudan, Syria or Yemen — an omission the State of Hawaii and others challenging the ban raised before the appeals court and are likely to assert in their brief, which is due this Tuesday. The executive order cites one example of domestic terrorism by a native of Somalia who came to the U.S. at the age of 2.

Uncertainty alone justifies a ban, White House says

Besides relying on a series of State Department reports from 2016, the administration cited no evidence to support its assertion of a threat to national security posed by residents of the six countries. The omission explains in part why the challengers say the reasons for the ban offered by the White House are a pretext to disfavor Islam in violation of the Establishment Clause.

In its brief to the court, the government says the president imposed the travel ban “in the face of uncertainty over whether these foreign governments that sponsor or shelter terrorism are able and willing to provide” information that would allow the Departments of State and Homeland Security to determine whether entry of visitors from those countries constitutes a threat.

The uncertainty alone justifies a halt for three months on visitors while the administration ascertains whether each of the countries can screen travelers sufficiently, says the government.

The administration also urges the justices to overrule a finding by the Ninth Circuit that the travel bank violate the INA’s prohibition on discrimination based on nationality in the issuance of visas. That bar does not apply to the president’s ability to restrict entry of visitors, the government contends.

Categories
Law

Civil rights groups sue Chicago over police abuses, seek court oversight

In August 2013, an African-American couple stood outside their home on Chicago’s South Side when officers from the Chicago Police Department (CPD) arrived and began towing their car. The couple asked the police if they could remove personal items from the car before it was towed. One of the officers hit the female member of the couple, who happened to be pregnant and suffered a miscarriage.

The incident, which ended in a settlement with the city, is one of 19 cases charging abuse by the CPD that Chicago settled in the past two years and among a series of wrongs cited by a coalition of black and Latino residents who filed a lawsuit on Wednesday accusing the CPD of using excessive force in violation of their civil rights.

The class action aims to build on a civil rights investigation by the Obama administration, which found a pattern of misconduct and unconstitutional force by the CPD. However since then both Mayor Rahm Emanuel and Attorney General Jeff Sessions have backed away from the idea of court oversight.

“We’re asking the federal court to oversee the police department and to appoint a monitoring team that’s going to oversee enforce a process to bring about the changes that are necessary to redress years of unchecked police abuse and a code of silence,” Craig Futterman, attorney for the plaintiffs and a professor of law the University of Chicago, told reporters. “It’s a sad and scary day when we have our federal government abdicating its responsibility to enforce our nation’s most fundamental laws.”

The class action asks the court to appoint monitors to oversee efforts by the city to change its policing and end a culture that allows police to conceal wrongdoing by their colleagues.

A history of abuses

In support of their accusations, the coalition, which also includes community groups and nonprofits such as Black Lives Matter, documents a history of abuse by police against Chicago’s black and Latino residents.

Over a period of five years that ended in June 2015, black people accounted for 80 percent of the 282 people shot by the CPD despite black people making up just a third of the city’s population, the plaintiffs said in court papers. In the last three of those years, three-fourths of people shocked by police with a Taser gun were black, according to the plaintiffs, who also document a series of abuses that range from use by police of racially charged language to punching people, clubbing them with batons, and slamming them to the ground.

The city says it agrees that reforms are needed but blames the Trump administration for failing to pursue a consent decree. “The substance of the reforms that we are all trying to achieve is not really in question,” Edward Siskel, Chicago’s top lawyer, told the Times. “It is matters of process that we are discussing.”

If the city wants to negotiate a consent decree, “we can do it tomorrow,” Futterman responded.

Besides failing to train police properly, agencies charged with overseeing the CPD frequently fail to determine whether officers’ accounts of encounters with residents match evidence, the plaintiffs contend. Such failures lead police to conclude they can operate with impunity, according to the plaintiffs, who assert that the CPD has proved to be incapable of policing itself.

Categories
Law

Trump travel ban appeal is moot, challengers say

The fate of President Trump’s prohibition on visitors to the U.S. from six majority-Muslim countries may turn on whether the Supreme Court agrees to hear the case at all.

The period of 90 days for the so-called travel ban that took effect in March has expired, the challengers contend in papers filed this week with the court. Thus, the matter is moot, say the challengers, who add it would be premature for the justices to weigh in until the lower courts have resolved the matter on the merits.

Hearing the appeal “would effectively grant the government a victory on the merits,” the State of Hawaii writes in its brief. “Absent the injunction [from the lower courts], the government will have imposed the full travel ban and most of the refugee ban before the October Term begins.”

The Fourth Circuit ruled last month that the travel ban likely violates the Establishment Clause, based on statements by the president that he aimed to keep Muslims out of the U.S. The Ninth Circuit held last week that the president has failed to supply evidence of a threat to national security sufficient to justify the exclusion of 180 million people based on their nationality.

According to Hawaii, the Fourth Circuit correctly considered statements by candidate Trump describing Muslim refugees as a threat in determining “that the stated [national security] rationale is a sham.”

To conclude otherwise would be to authorize presidents to enact policies intended to further unconstitutional aims “by cloaking the policy in neutral terms and a national security rationale,” says Hawaii. “That is not the law.”

The parties have until Wednesday to file briefs addressing the Ninth Circuit’s ruling

Categories
Film

If only Wonder Woman were an American hero

The new “Wonder Woman” movie is earning raves for its portrayal of the warrior princess from the pages of DC Comics. The strong lead (played by Israeli actress Gal Gadot) has inspired many women and girls to celebrate the strength of the Amazonian superhero, who, as Jill Lepore has chronicled, was created to enshrine a standard “of strong, free, courageous womanhood.”

Still, the movie has come in for criticism as a piece of propaganda. Writing in The New Republic, Josephine Livingstone blasts the film for its gauzy portrayal of good and evil set during World War I, when Wonder Woman, Steve Trevor and a band of brothers fight the god of war.

“It’s a classical comic book interpretation of history, in which random fragments of the past are patched together to create a hero of perfect ideological specificity. Livingston writes. “It’s a movie for kids, a movie intended to teach them what it means to be an American hero.”

If only.

As portrayed by Gadot, Wonder Woman seems beyond America, at least, that is, the America of Donald Trump. She speaks with an Israeli accent all the languages of humanity. In the final scene, she takes flight over Paris, a capital that has suffered a series of real-life attacks and yet rejected the appeals of the far-right. Her golden lasso elicits truth from whomever it corrals.

America has a leader who allegedly lies. He has refused to affirm the commitment to collective defense enshrined in NATO and turned his back on a global agreement to combat climate change that even Exxon Mobil and ConocoPhillips urged him to support.

He has left allies to chart a future without us. The president of France has invited American scientists to move to his country and compared Trump to the Russian president Putin and Turkish president Erdogan.

“Italy agrees that Europeans need to take the future into their own hands,” Prime Minister Paolo Gentiloni told reporters recently, echoing comments by German Chancellor Angela Merkel after she met with Trump.

The U.S. “has come to question the very worth of its mantle of global leadership,” Canadian Foreign Minister Chrystia Freeland, recently told that country’s House of Commons. Canada must “set our own clear and sovereign course,” she said.

Wonder Woman may be a hero but not one that resembles America. Wonder Woman embodies tenderness, compassion, strength and intelligence. That is heroism America can only aspire to.

Categories
Law

A second federal appeals court rejects Trump’s travel ban

A second federal appeals court has refused to reinstate President Trump’s travel ban after concluding that the prohibition exceeds the scope of his authority.

To justify a ban on visitors to the United States for 90 days from six predominantly Muslim countries, the president by law must find that entry of those visitors would harm the interests of the U.S., a conclusion that has no basis in the record put forward by the White House, a three-judge panel of the Ninth Circuit said in an 86-page ruling published on Monday.

The decision offers a different basis for rejecting the ban than one relied on by the Fourth Circuit, which found that the ban disfavors Islam in violation of the Establishment Clause. The government has appealed that ruling to the Supreme Court. (The challengers’ briefs are due today.)

The executive order that enshrines the travel ban does not discuss any instances of terrorism in the U.S. by citizens of Iran, Libya, Somalia, Sudan or Yemen, the Ninth Circuit ruled. (The order cites one example of domestic terrorism by a native of Somalia who came to the U.S. as a child.)

“The order does not offer a sufficient justification to suspend the entry of more than 180 million people on the basis of nationality,” the panel wrote. “National security is not a ‘talismanic incantation’ that, once invoked, can support any and all exercise of executive power under [the Immigration and Nationality Act].” (citation omitted)

Nor, the judges said, does the order include a finding by the president that procedures currently in place for screening visa applicants is inadequate. The ban also contravenes a provision in the immigration law that prohibits discrimination in the issuance of visas, the court said.

The Ninth Circuit narrowed an injunction by a district judge in Hawaii in a way that may offer the Supreme Court an out should the justices want to avoid ruling on the ban’s constitutionality. The panel permitted the administration to proceed with a review of vetting procedures to determine what additional information, if any, is needed from the countries subject to the ban that would allow the government to determine whether to issue a visa.

That leaves the possibility the administration would revise the procedures and dispense with the need for a moratorium on issuing visas, a conclusion that could render the appeal moot. Of course, whatever rationale the White House were to cite for revising the vetting procedures would need to be grounded in national security and not merely be a pretext for banning Muslims, which would subject the revised procedures to continued constitutional challenges.

Categories
Politics

Both the Democratic and Labour parties are struggling to win over working-class voters

The United Kingdom’s Labour Party and the Democratic Party in the United States share a problem, which is their struggle to win over working-class voters.

Despite adding 32 seats in Thursday’s general election, the Labour Party, led by Jeremy Corbyn, who espouses left-wing populism, lost working-class votes at the expense of the Conservatives, who gained such votes despite losing their parliamentary majority.

The higher the share of people with a university degree, the better Labour fared  – and the larger the swing to Labour from the Conservatives. Despite the election being seen by many as a disaster for the Conservatives, the party has gained working-class votes.

Is the Labour Party under Corbyn capable winning more than 40.3% of the vote, as it did on Thursday? And if not, what must Labour do to reclaim a majority? Dump Corbyn, centrists say. “We could have won this election if we had a half-decent leader, as [May has] imploded,” one anti-Corbyn Labour candidate told BuzzFeed News.

The challenge on this side

Democrats here in the U.S. confront a similar challenge. Donald Trump became president in part by winning significant support in the Midwest and Rust Belt among whites without a college education.

But the distance that Democrats find themselves from such voters may be farther than they think. Writing in the Times, Tom Edsall surveys the extent of Democratic losses among working-class voters, which, it happens, was not limited to whites.

As many as 9.2 million people who voted to re-elect Barack Obama voted for Trump, based on estimates cited by Edsall. Many of the counties that switched to Trump from Obama are concentrated in the Midwest and Rust Belt.

Amazingly for the party of Franklin Delano Roosevelt and Lyndon Johnson, “Obama-Trump voters were more likely to think more Democrats look out for the wealthy than look out for poor people,” Geoff Garin, a pollster whose firm conducted the surveys and focus groups, told Edsall.

Edsall quotes Stan Greenberg, a Democratic pollster, who wrote recently that “Democrats don’t have a ‘white working-class problem.’ They have a ‘working-class problem,’ which progressives have been reluctant to address honestly or boldly.” (In his latest column, Frank Bruni reports on Democrats’ difficulties connecting with voters in New York’s Hudson Valley.)

The data that Edsall summaries shows a pullback in support for Democrats among working-class voters of all races, including many turned off by the party’s support for trade agreements that voters perceive as costing jobs, as well as a perception of the party’s being out of touch with the economic stress of voters, particularly older ones, in small town and rural America.

“For all the harm he has done, continues to do and proposes to do, Trump has successfully forced Democrats to begin to examine the party’s neglected liabilities, the widespread resentment of its elites and the frail loyalty of its supporters,” Edsall writes.

Categories
Law

A rule of evidence suggests the Comey memos can be trusted

President Trump on Friday accused James Comey, the fired FBI director, of lying under oath to Congress when Comey told senators the president asked him to pledge his personal loyalty and to drop an investigation into fired national security adviser Michael Flynn.

Trump told reporters he would be willing to restate the accusation under oath to Robert Mueller, the special counsel investigating ties between the president’s campaign and Russia. That set up a “he-said, he-said” between Trump and Comey, who has a reputation for integrity. (Trump, not so much.)

Unfortunately for Trump, Comey documented in a series of memos the nine one-on-one conversations between the men in the four months that followed Trump’s victory in November. And while such memoranda would ordinarily be kept out of court under the rule against hearsay, the Comey memos likely fall into an exception to the rule for statements made while an event is occurring or immediately thereafter.

Comey testified that he gave the memos to Mueller. Of course, even if Mueller’s investigation finds evidence to suggest the president obstructed justice, the Justice Department would not charge a sitting president. Any evidence the special counsel were to uncover would be considered by Congress as part of impeachment, which is the remedy the Constitution provides for presidential wrongdoing.

The room where it happened

Still, the exception to the hearsay rule for so-called present sense impressions such as those Comey typed up within minutes of concluding his conversations with Trump underscores the trustworthiness the law accords statements by someone who remains stressed by the event that triggered them. As Comey states in the prepared testimony he delivered to the Senate Intelligence Committee:

“To ensure accuracy, I began to type [the notes from his first conversation with Trump] on a laptop in an FBI vehicle outside Trump Tower the moment I walked out of the meeting. Creating written records immediately after one-on-one conversations with Mr. Trump was my practice from that point forward.”

Trump has tweeted that he may have recordings of the conversations, but on Friday he appeared to walk back the assertion. “Oh, you’re going to be very disappointed, don’t worry,” he told a reporter who asked if there are tapes. The leaders of the House Intelligence Committee have asked the White House to produce any such tapes by June 23.

Categories
Law

Trump’s tweets can (and will) be used in court

After President Trump took to Twitter on Monday to defend the merits of his “travel ban” (his words) on visitors to the U.S. from six predominantly Muslim countries, a series of surrogates stepped forward to try to undo the damage to the administration’s defense of the ban in the courts.

Sebastian Gorka, an adviser to Trump, told CNN that tweets “are not policy… [they’re] social media.” In short, Gorka reasoned as follows: Only policy binds the president. Tweets are not policy. Therefore, tweets cannot bind the president.

The premises put forward by Gorka miss the point. Tweets are statements. Under the Federal Rules of Evidence, out-of-court statements, including those made on social media, will be excluded as hearsay if they are used to prove the truth of the matter asserted.

But a statement that would otherwise be hearsay falls outside the definition of hearsay (and therefore can be used in court) if a party to the litigation (insert Trump) said it, and the statement is offered against that party by his opponent (insert those challenging the travel ban).

If you wonder whether Trump is a party to the litigation over his travel ban, here’s how his lawyers captioned the brief they filed on Thursday asking the Supreme Court to revive the ban, which has been blocked by the Fourth Circuit:

Statements via social media are still statements

A statement made through social media fits the exclusion from hearsay so long as it is offered against, not by, the party who made it. As District Judge J. Michelle Childs explains in an article for the American Bar Association:

Social media sites seem designed specifically for users to assert their views, relate their experiences, manifest agreement with others’ opinions, and acknowledge others’ activities. Courts have found these activities to come under [the rule’s] exclusion from hearsay by admission. For example, a plaintiff’s sexually explicit Facebook comments were not hearsay when used by the defendant to show that the defendant’s remarks concerning similar conduct should not be considered harassment against the plaintiff.

Of course, Trump’s lawyers know this, which is how we know that no lawyers reviewed his tweets. The lawyers for those challenging the travel ban know it, too, which is why they welcomed the tweets. Here’s reaction from Neal Katyal, who argued on behalf of the challengers in the Ninth Circuit:

And here’s reaction from Omar Jadwat, the attorney who persuaded the Fourth Circuit to suspend the travel ban:

Trump’s lawyers argue that if you set aside statements by Trump and his surrogates during the campaign (and a few statements following the inauguration) you’ll see that the appeals court erred in enjoining the travel ban. The presidential oath of office transformed Trump into the chief executive, whose determinations regarding immigration policy are entitled to deference by the courts, say his lawyers:

Taking that oath marks a profound transition from private life to the Nation’s highest public office, and manifests the singular responsibility and independent authority to protect the welfare of the Nation that the Constitution reposes in the President.

Trump shattered that notion in five 140-character outbursts. Expect to read his tweets in papers the Supreme Court has asked the challengers to file by this Monday. Yet in the end, the travel ban will fall not because the president tweeted about it. The travel ban will fall because it disfavors a particular religion in violation of the Constitution.

Categories
News

Trump pulls US out of the Paris climate agreement

https://twitter.com/drvox/status/869961747473473536