Using The Hatch Act to Muzzle Unpaid Feds Violates First Amendment

Here is a thought. Surely limiting federal employees from political activity while refusing to pay them violates the constitution.

Regardless of that, congress has the power to amend the Hatch Act so that nonpayment constitutes a waiver.

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You Can Figure Out Who has “Caused” a Shutdown

There has been a lot of blather about who “caused” the shutdown, a different question as to whether it is worth it.

Actually, the analysis s very simple.  When one party tries to change the status quo, and is willing to disrupt a larger system to obtain that end, that party is “causing” the crisis.  Trump wants one change in the status quo, hos wall, and is willing to disrupt a big chunk of government.  Even without his having taken ownership, to say that he is not the cause is simply ridiculous.   If the Dems were to try to change immigration policy by a shutdown, they would be causing a shutdown.  If they were using it to restore the prior status quo of a unilaterally changed policy, they would not.

Now whether it is “worth it,” depends on a balancing of harms, but there us a strong presumption against the legitimacy of using disruption to achieve narrow aims.

 

If Trump Is Planning a Pardon for the Arizona Sheriff, He Might Want to Think again.

It does appear to be good law that even Federal Court criminal contempts are pardonable by presidents.  (I had  thought there might be a separation of power claim.)

However, the Supreme Curt has hinted, back in 1925, that a pattern of abuse could lead to impeachment.  The language might also provide some tools to persuade the Court to look differently at the Sheriff’s behavior, and any Trump pardon.

Here is what the court said in In the Matter of Philip Grossman, 267 U.S. 87 (1925)

A pardon can only be granted for a contempt fully completed. Neither in this country nor in England can it interfere with the use of coercive measures to enforce a suitor’s right. The detrimental effect of excessive pardons of completed contempts would be in the loss of the deterrent influence upon future contempts. It is of the same character as that of the excessive pardons of other offenses. The difference does not justify our reading criminal contempts out of the pardon clause by departing from its ordinary meaning confirmed by its common law origin and long years of practice and acquiescence.

If it be said that the President, by successive pardons of constantly recurring contempts in particular litigation, might deprive a court of power to enforce its orders in a recalcitrant neighborhood, it is enough to observe that such a course is so improbable as to furnish but little basis for argument. Exceptional cases like this, if to be imagined at all, would suggest a resort to impeachment rather than to a narrow and strained construction of the general powers of the President.
(Bold added.)

There just are not so many Supreme Court cases about impeachment, so every hint is meaningful.  This might stand for:

The proposition that use of pardons, in a pattern, could result in impeachment,

That acts that go to undermining the constitutional balance are appropriate for impeachment,

The idea hat the impeachment clause phrase “high crimes and misdemeanors,” is not necessarily limited to violations of the criminal code.

I would welcome additional suggestions.  Read and enjoy the full case.

More particularly, with respect to Arizona, the use of a pardon to undermine Federal authority is said to be particularly disturbing, for example in a “neighborhood.”   While the Sheriff is now out of power, such a pardon is far more threatening to Federal authority, than an individual violation of the law in the case the Supreme Court decided.

Indeed, a pardon for conviction for systematic abuses of governmental power in breach of the constitution would seem a classic exception requiring rethinking.

A sheriff’s county-wide pattern and practice of contempt for the constitution and the Federal Courts is far more damaging that an ongoing pattern of pardons for minor violations by individuals in a “neighborhood.”  Indeed, given that the case arose under the Prohibition Act, it is understandable that the Court felt the need to recognize that pardons might represent a threat to the enforcement of the law, and therefore hinted at remedies.

Time for second thoughts, Mr President.

Note:  This is a version of a very recent post on my access to justice blog.

 

 

VP Pence Rushing Home Thursday. Can We Look at the 25th Amendment and Wonder Why?

As The Hill puts it:

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

Pence’s office said the vice president was returning to Washington on Thursday night instead of Friday morning to attend the president’s meeting at Camp David. Those meetings are expected to focus on North Korea.  

Pence deputy chief of staff Jarrod Agen also said the vice president’s other weekend plans had been canceled in case the president needed any follow up.

With an administration this transparent, this should explain it all, but, as the 25th Amendment says in part:

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President. (Bold added; remainder of section text describes resolution process.)

So, you have to wonder about those plans, particularly since N. Korea is supposed to be cooled down.

You also have to wonder if the lack of cabinet resignations displays a support of Trump, or an awareness that the action moment is approaching, and that for cabinet members staying now makes more sense both personally and for the country.

More info and analysis on the 25th here.

 

 

 

 

I have the Perfect Title For the Best Book on the Trump Presidency: One Million Minutes

While the exact number is subject to change when the nightmare ends, the concept is clear.  The book would begin something like this:

The now concluded Trump Presidency consumed one million minutes, five thousand presidential tweets, 100 million dollars in investigations, and ten cabinet firings or resignations.

Those minutes were perhaps the most fragmented, fast moving, chaotic, destructive, shocking, confusing and testing minutes in our nation’s history.

The damage done to nation, planet, international system and human beings will take decades to assess fully. 

Above all, the story of those endless minutes is the story of the ultimate resilience of our institutions, notwithstanding the weaknesses and failures of so many who were to play roles in those institutions as they faced the test.

I am less confident of exactly how the book will end, but I am confident that the ultimate resolution will put us on the road to recovery.

 

Lets Face It — a Constitutional Crisis Is Certain

Calm, measured, careful David Brooks, on the News Hour Friday night, said something like this (reconstructed, not quoted):

Look Trump is transparent.  He has said — if you want to find my corruption go to the tex returns.  And he has said to Mueller, if you got the tax returns, I will fire you. So, we know exactly what will happen.  Mueller will go to the tax returns, Trmp will fire him, and we will have a constitutional crisis of some king.

I conclude that at this point we all actually know that a constitutional crisis is coming.  All that remains to find out is exactly what will trigger it, how the parties align at that point and perhaps how it will end.  Although I am pretty confident of the ultimate outcome.

This reminds me of my mother, who as 15 at the time of the events, saying that after Munich in 1938, everyone knew that war was coming, and that it was almost a relief when it finally did so.  Then people knew what they had to do.  I think it is the same now.

Now, the crisis could come from an attempted firing, it could be triggered by a refusal to comply with court or congressional orders, or less likely, it could be set off by extra-judicial illegal executive actions.  Nor do we know what the triggering event will be about.  It could be the now essentially admitted as to intent, Russia Collusion, the obstruction of justice claim, financial irregularities, or even the emoluments clause, to name just a few of the options.

But the outcome will depend on the willingness of the Courts and Republican politicians to enforce our constitutional norms. While it is clear that almost none of our Republican leaders have read or internalized Profiles in Courage, at some point the pain barrier will be reached.

Finally, I sometimes wonder what the definition of a constitutional crisis is?  Is it when one when of the corrective measures in the constittuion cuts in and works, as it did in 1974, or is it when that mechanisms are not triggered, or fail, causing a braoder legitimacy problem.  I hope we do not find out.