Everyone is entitled to his own opinion, but not his own facts.
The legality of the appointment of Matthew Whitaker as Acting Attorney General has been questioned.
I have posted the memorandum filed yesterday in federal court by the State of Maryland challenging his appointment.
I have also posted the memorandum filed by the Justice Department Office of Legal Counsel defending the legality of his appointment.
I will try to update this as further developments warrant.
Yet another voting rights case and another partial victory for those seeking to preserve the right to vote.
In Martin v. Crittenden, the U.S. District Court for the Northern District of Georgia (per May, J.) held that the Gwinnett County, Georgia Board of Election Members:
[A]re hereby ENJOINED from rejecting absentee ballots containing an error or omission relating to the absentee voter’s year of birth and are ORDERED to count such ballots in the November 6, 2018 election [and] are ORDERED to delay certification until such ballots have been counted.
I am old enough to recall that one of the worse things you could be called in a political or social debate was “Un-American.” Well, those who try to suppress voting and limit voting rights are truly and completely Un-American.
CNN and Jim Acosta have filed a lawsuit to reinstate Acosta’s White House press credentials. I have posted a copy of the complaint.
If nothing else, the complaint sets forth in an organized fashion the facts of the matter, as opposed to the lies that emanate from the Trump propaganda machine.
I note that, as of 11:35 P.M., neither the Washington Post nor the New York Times has reported this story. In other words, I scooped them.
Today, the Ninth Circuit affirmed the preliminary injunction enjoining the Dept. of Homeland Security from rescinding the Deferred Action for Childhood Arrivals (“DACA”). The case is Regents of the University of California v. USDHS.
Forget the law. This is what the case is about:
It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school. When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive—indeed, inspiring—young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. DACA also allows recipients to apply for authorization to work in this country legally, paying taxes and operating in the above-ground economy. Garcia, along with hundreds of thousands of other young people, trusting the government to honor its promises, leapt at the opportunity.
Today, a three-judge panel in the United States District Court for the District of Maryland held that the manner in which the boundaries of Maryland’s Sixth Congressional District were drawn was unconstitutional. The case is Benisek v. Lamone. The Court ordered that the boundaries be redrawn in time for the 2020 congressional election.
The plaintiffs argued:
[T]hat in enacting the 2011 law [establishing the district’s boundaries], the State deliberately diluted [the plaintiffs’] votes and burdened their associational interests based on their party affiliation and voting history, in violation of their First Amendment rights.
The Court found that:
- The State specifically targeted voters in the Sixth Congressional District who were registered as Republicans and who had historically voted for Republican candidates.
- The State specifically intended to diminish the value of those targeted citizens’ votes by removing a substantial number of them from the Sixth District and replacing them with Democratic voters for the purpose of denying, as a practical matter, the targeted voters the opportunity to elect the candidate of their choice.
- The State gave effect to its intent by, on net, removing about 66,000 Republican voters from the Sixth District and adding 24,000 Democratic voters in their place.
- The State meaningfully burdened the targeted Republican voters’ representational rights by substantially diminishing their ability to elect their candidate of choice.
- The State also burdened the Republican voters’ right of association, as demonstrated by voter confusion, diminished participation in Republican organizational efforts in the Sixth District, and diminished Republican participation in voting, as well as decreased Republican fundraising.
- These injuries were the direct result of the State’s purpose to convert the Sixth District from a solid Republican district to a Democratic district.
A decision today from the Eastern District of North Carolina illustrates that it even administrations that are environmentally friendly sometimes lose their way.
The decision, in a case captioned Red Wolf Coalition v. U.S. Fish & Wildlife Service, addressed actions and failures to act by the Fish & Wildlife Service during the Obama Administration. In particular, in 2014 and 2015 the Fish & Wildlife Service issued “take authorizations.” (A “take” is defined by the Endangered Species Act to mean “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” 16 U.S.C. § 1532(19). See fn. 6, slip op. at 2.)
The opinion is worth reading if only to get a sense of the complexity of the efforts to save this endangered species, including the sterilization of coyotes to prevent interbreeding and the steps that have to be shown to be fruitless before a take authorization can issue.
In an opinion handed down yesterday, the U.S.D.C. for the District of Maryland (Messitte, J.) denied a Motion for Leave to Appeal (Interlocutory) and for a Stay Pending Appeal filed by President Trump. While the ruling deals with legal principles that are both narrow and very technical, it gives us a window into the approach to the emoluments questions (remember, there are two Constitutional emoluments provisions, both of which are at issue in the case) taken by the Court and Trump.
The Court summarized Trump’s definitional approach to the meaning of term “emolument” as follows:
The President insists here, just as he did in his original brief, that his interpretation of what an “emolument” is– based on his reading of text, his review of contemporaneous definitions of the term, his understanding of the purpose of the Clauses, his take on historical evidence, and executive branch precedent and practice—is one as to which substantial grounds of disagreement exist, presumably in the sense that fair minded jurists might reasonably reach contradictory conclusions. The Court finds this a dubious proposition. Even now it remains unclear, as it did in connection with the President’s original motion to dismiss, exactly how he came to his view of the meaning of “emolument.” What he said in his Motion to Dismiss and repeats now is that the President would have to receive payments for his services as President for the payments to qualify as prohibited “emoluments;” in other words, over and above the salary he receives for his services as President, the Federal government, and foreign and state governments would have to make specific payments to him (or possibly provide non-monetary benefits) for Presidential acts before they would be constitutionally impermissible. By every reasonable metric, this appears to describe what is tantamount to a bribe, so above all else the President’s definition of the term “emolument” is exceedingly strained. To be sure, it may be a difference of opinion, (“emoluments… of any nature whatsoever”), but, in candor, as much as anything it appears to be little more than a lawyerly construct to establish a “difference of opinion,” but not necessarily one as to which fair minded jurists might reach contradictory conclusions.
Slip op. at 11-12 (emphasis by the Court; internal citations omitted).
The Court made short shrift of Trump’s argument:
All this said, as the Court had occasion to point out in its earlier opinion, even accepting the President’s proposed definition of “emolument,” Plaintiffs have still plausibly stated a claim in this case. For instance, insofar as foreign governments have expressly stated in the media that they are patronizing the President’s hotel precisely because he is the President, and insofar as foreign governments such as Kuwait and Saudi Arabia have demonstrably done so, their payments could still constitute an “emolument” foursquare within the President’s definition of the word, especially if, what appears likely, the payments to his hotel are being made with an expectation of favorable treatment by the President in matters of foreign policy. As a result, even if the appellate court were to disagree with this Court’s definition of “emolument” and embrace the President’s, Plaintiffs’ claims in this case would still remain viable under the definition of “emolument” the President himself appears to embrace.
Slip op. at 15 (internal citations omitted).
Finally, the opinion shows that the Court is on to Trump’s game:
[T]here is genuine concern on the part of Plaintiffs, indeed the Court shares it, that if the President is permitted to appeal the Court’s decisions in piecemeal fashion, ultimate resolution of the case could be delayed significantly, perhaps for years, since it is quite likely the President would seek to appeal an adverse decision from the Fourth Circuit to the U.S. Supreme Court. That, as a matter of justice, cannot be countenanced. There is no substantial disagreement over the meaning of the term “emolument” in the sense that reasonable jurists, much less courts, would disagree, nor would resolution of that question in favor of the President on appeal be likely to materially advance the ultimate termination of the proceedings or otherwise streamline the proceedings in any material respect.
Slip op. at 15-16.
The Eleventh Circuit Court of Appeals denied Brian Kemp’s request for an emergency stay of the injunction in the Martin case. I posted the District Court’s injunction here. The Court’s order stated that the panel’s vote was 2-1 and that formal opinions will follow.
In the same case, there was a further order by the District Court. The Court (per May, D.J.) found that the imminence of the election required it to deny the requested relief (“Plaintiffs ask the Court to permit an absentee voter whose ballot is rejected to provide elections officials with a cure affidavit up until the close of business on the Friday after election day.”)
Finally, in another District Court case, (per Ross, D.J.) the Court ordered Kemp act immediately as follows to:
1. Allow county election officials to permit eligible voters who registered to vote, but who are inaccurately flagged as non-citizens to vote a regular ballot by furnishing proof of citizenship to poll managers or deputy registrars.
2. Update the “Information for Pending Voters” on the Secretary of State’s website so that it provides (a) clear instructions and guidance to voters in pending status due to citizenship and (b) a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
3. Direct all county registrars, deputy registrars, and poll managers on how to verify proof of citizenship to ensure that they can properly confirm citizenship status consistent with this order
4. Issue a press release (a) accurately describing how an individual flagged and placed in pending status due to citizenship may vote in the upcoming election, as set forth herein; and (b) providing a contact name and telephone number that individuals may call with questions about the pending status due to citizenship.
5. Direct the county boards of elections to post a list of acceptable documentation to prove citizenship, which includes a naturalization certificate, birth certificate issued by a state or territory within the UnitedStates, U.S. passport, and other documents or affidavits explicitly identified by Georgia law and listed on the Georgia Secretary of State’s website, at polling places on Election Day.
Trump may be on to something about unrestricted immigration. For instance, in an opinion handed down yesterday by the United States District Court for the District of North Dakota, immigrants and their descendants may have succeeded in denying voting rights to the descendants of those who were already in this country.