Sunday, April 22, 2018

At Supreme Court, Originalism's Illusory Promise Exposed

      "The life of the law has not been logic," the great Supreme Court justice Oliver Wendell Holmes Jr. once proclaimed, "it has been experience." Holmes' embrace of legal realism in a series of lectures before his judicial career challenged the legal formalists of the era who saw law as nothing more than "syllogisms" or "the axioms and corollaries of a book of mathematics.".
      The formalists of the 19th century stunted the development of the law by preventing workers or others from joining together to protect their interests or recover for the often deadly injuries of the industrial era. Today, a new generation of legal formalists are defying Holmes' practical wisdom by looking not to experience or even to logic, but to what they believe can be discerned as the "original meaning" of the Framers who wrote the U.S. Constitution some 225 years ago.
      Originalists promise in part that originalism can yield definite answers to hard legal issues and thus force judges to decide cases solely on the basis of law instead of their personal views. But the promise is an illusion, as seen in the dueling opinions of the two originalist justices Clarence Thomas and Neil Gorsuch in the Supreme Court's closely divided decision last week [April 17] in an important immigration law case.
      Thomas and Gorsuch clashed on the question of whether the Due Process Clause authorizes courts to strike down laws as unconstitutional on account of vagueness. The two justices came out on opposite sides of the 5-4 decision in Sessions v. Dimaya, with Gorsuch joining the four liberal justices in ruling in favor of the immigrant in the case. Thomas joined with three other conservatives in the main dissent and wrote a separate, history-based dissent for himself alone.
      Thomas and Gorsuch disagreed about the significance of old court decisions dealing with vague laws from 18th century England and 18th and 19th century America. The debate was worthy of an advanced seminar in legal history, but for Filipino immigrant James Dimaya the stakes were anything but academic.
      Dimaya, who immigrated legally to the United States at age 13 in 1992, was facing deportation because of two burglary convictions a decade ago in his adopted home in the San Francisco Bay area. The government moved to deport him under a provision in immigration law that mandates removal for anyone convicted of a "crime of violence." The provision defines that term as a "felony . . . that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
      Three years ago, the Supreme Court ruled a similarly phrased provision in the federal Armed Career Criminal Act (ACCA) as unconstitutional under the so-called void-for-vagueness doctrine. Thomas agreed with the result in Johnson v. United States (2015), but in a separate opinion he called the void-for-vagueness doctrine inconsistent with the original meaning of the Bill of Rights' Due Process Clause..
      In the new case, Gorsuch noted that none of the other justices had responded to Thomas's view and took on the task himself. Reviewing the cases, Gorsuch concluded that void for vagueness "serves as a faithful expression of ancient due process and separation of powers principles . . . ." Thomas reiterated his "doubts about whether the vagueness doctrine can be squared with the original meaning of the Due Process Clause."
      Paradoxically, Thomas and Gorsuch both favorably cited a 19th century decision by Supreme Court Justice Bushrod Washington as evidence for their opposing views. Presiding as circuit justice in a Pennsylvania case, Washington found a federal law prohibiting seamen from making a "revolt" too vague to allow the government's case to go to the jury.
      Commenting on the two opinions, Evan Bernick, a lecturer at Georgetown Law School and a fellow with the school's originalist Center on the Constitution, sees "not a lot of difference" between Thomas and Gorsuch. Thomas, he explains, would apply vagueness doctrine "on a retail basis" — one case at a time — while Gorsuch would strike down a vague law in its entirety as serving the original purpose of the Due Process Clause.
      Eric Segall, a law professor at Georgia State University and a sometime critic of originalism, sees the difference between the two justices as an example of the difference between an "old" originalism that emphasized judicial deference and a "new" originalism better disposed to so-called "judicial engagement." The shift, in Segall's view, shows that originalism has become "a political symbol" more than a legal methodology. "Once you say no deference," he explains, "given the indeterminacy of history, originalism will not be able to limit judicial choices."
      Bernick and other originalists, such as Case Western Reserve law professor Jonathan Adler, reject the criticism. "No method of interpretation is entirely determinate," Adler replies. Originalism constrains the range of outcomes in constitutional cases, he argues, "but it does not reduce every single case to a single permissible outcome." Bernick similarly views originalism as "marginally more discretion-reducing" than other methods of constitutional interpretation.
      Originalists achieved their biggest victory to date in the Second Amendment gun-rights decision in Heller (2008), written by the godfather of originalism, the late justice Antonin Scalia. Writing for the four dissenters, Justice John Paul Stevens argued just as strongly as Scalia that original meaning pointed the other way. "History is always going to be unclear," Segall contends. With Gorsuch proudly identifying himself as a "committed originalist," legal history may figure prominently in future cases too, but Court watchers should not expect history to provide definite answers.

Saturday, April 14, 2018

Trump Worse Than Nixon for Rule of Law?

      President Richard Nixon's decision to fire Watergate prosecutor Archibald Cox came like a bolt out of the blue on what was otherwise a slow-news, football weekend in October 1973. In the pre-cable news era, all three major television networks interrupted their programming to report that Cox had been fired by the previously unknown solicitor general, Robert Bork, after Attorney General Elliott Richardson and his deputy William Ruckelshaus had resigned rather than carry out Nixon's justice-obstructing order.
      Recalling the episode now 45 years later, Nick Ackerman, one of Cox's assistants, recalled on MSNBC that he left the office that night with several investigative files to safeguard them from possible disappearance or destruction. The precaution proved to be unnecessary. The reaction to the "Saturday Night Massacre" was so instantaneous and so intense that Nixon was forced to acquiesce in the appointment of a new Watergate prosecutor, Leon Jaworski.
      With rampant speculation that President Trump is now on the verge of removing special counsel Robert Mueller from the Russiagate investigation, Nixon is now being recalled, whatever his other faults, aa a believer of sorts in the rule of law. By comparison, Trump appears in this recollection to be a greater threat to the rule of law: a president who might pull out all stops — legal or not, constitutional or not — to thwart the investigation into the Trump campaign's interactions with election-meddling Russian agents.
      Nixon likely had legal authority to remove Cox, his independence at the time unprotected by statute or Justice Department regulation. Richardson and Ruckelshaus refused Nixon's order on the ground that each had promised the Senate in their confirmation hearings to safeguard Cox's position. Today, by contrast, Mueller is protected from removal by a Justice Department regulation that allows Mueller to be removed only "by the personal action of the Attorney General" for "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause."
      With Attorney General Jeff Sessions recused from the Russia investigation, the removal power lies instead with the deputy attorney general, Rod Rosenstein, who has publicly defended Mueller's conduct in office up till now. Trump's supporters and surrogates envision indirect steps to oust Mueller — for example, by firing Rosenstein and relying on Solicitor General Noel Francisco to be as compliant to the president's wishes as Bork was 45 years ago. As another alternative, Trump could order Sessions or Rosenstein to rescind the regulation or perhaps use his supposed unitary executive power to nullify the regulation himself.
      The speculation about Mueller's possible removal intensified after the Mueller-approved FBI raid on the New York City offices of Trump's personal attorney, Michael Cohenr, on Monday (Aprl 9), and intensified further after NBC News' report on Thursday (April 12) that Mueller's office was said to be ready to report four findings regarding Trump and obstruction of justice.
      Trump was widely reported to be beyond boiling-mad after news of the raid on Cohen's office broke on Monday morning. He interrupted a meeting of his national security advisors for an extended tirade against Mueller, for his "witch hunt," and Sessions for his "big mistake" to recuse himself from overseeing the Russia investigation. Trump said that FBI agents had "broken into" Cohen's office; that was his description of the lawful execution of a no-knock search warrant signed by a federal magistrate judge in New York.
      Trump surrogates later described the raid as "Gestapo-like," but Cohen himself said FBI agents acted professionally throughout. The raid, actually carried out by the U.S. attorney's office for the southern district of New York, apparently sought information about Cohen's possible involvement in paying "hush money" to porn star Stormy Daniels or other women to quash accusations of Trump's sexual infidelities in the run-up to the November election. Rep. Chris Collins, a New York Republican who was the first in Congress to endorse Trump, was among those who described the raid as going beyond Mueller's authority. In fact, the letter appointing Mueller gives  him authority to take on other matters discovered in the course of the Russia investigation.
      The week ended with NBC's potentially explosive report that Mueller was prepared to give Congress a bill of particulars about Trump's possible obstruction of justice. The report was described as including four findings regarding Trump's firing of FBI director James Comey, his role in crafting the misleading June 2016 statement concerning the Trump Tower meeting with Russian reprsentatives; the White House's discussion of possibly pardoning witnesses in the Russiagate investigation, and his attempt to pressure Sessions into withdrawing his recusal from the case.
      With the accusatory report possibly imminent, Harvard law professor Noah Feldman imagined the hyper-mercurial Trump ready to do almost anything to raise the drawbridges around the White House. "What if Donald Trump tries to fire Robert Mueller — and fails?" Feldman asked in a column forBloomberg. The result, he went on to warn, "could be a constitutional crisis" with neither of them willing to back down and the courts unwilling to intervene for a definitive resolution..
      Nixon "allowed the Constitution to prevail," MSNBC's Lawrence O'Donnell recalled on his program last week. "Donald Trump is no Richard Nixon," he went on, in an oddly unfavorable comparison. The political landscape is also different from 1973: Nixon had few defenders on the Cox firing. But Trump's base, and his Fox News chorus, likely would cheer him on in his defiance. The rule of law could wind up lying seriously wounded at his feet.

Sunday, April 8, 2018

Trump's Not-So-Great Retreats on Foreign Policy

      President Trump used his first overseas trip in May 2017 with its initial stop in Riyadh, Saudi Arabia, to signal a sharp break from the Obama administration policies aimed at using U.S. influence to promote human rights in the Arab world. Trump evidently relished the lavish ceremony his Saudi hosts put on for him and reciprocated by sidestepping any mention of such issues as the kingdom's repressive policies on political dissent. "We are not here to lecture," Trump declared. "We are not here to tell people how to live . . . "
      Trump also gave a shoot-out to the other major U.S. ally in the region by predicting improved relations with Bahrain in place of the strains created by Obama-era criticisms of the Sunni government's repression of its Shiite majority population. Seemingly emboldened, the Bahraini government followed only two days later with a raid on the home of the leader of the Shiite opposition that left five protesters dead and more than 50 arrested..
      The sequence of events is emblematic of what a leading human rights advocate calls the "complete sidelining" of human rights in U.S. foreign policy under Trump. Writing in the current issue of Foreign Affairs, Sarah Margon, Washington director of Human Rights Watch, goes so far as to call the Trump administration —  "and the president himself" —  "one of the greatest threats to human rights in decades."
     Margon notes in the article that Trump has not only backed away from criticizing foreign governments with spotty records on human rights but has gone further by actively encouraging repressive policies. One month before the overseas trip, Trump congratulated Turkish president Recep Tayyip Erdogan for winning a disputed referendum that fortified his authoritarian rule. In the same month, he called Philippine President Rodrigo Duterte to congratulate him on his "unbelievable job on the drug problem" — a brutal crackdown of extrajudicial killings that has cost more than 12,000 lives.
      With the United States withdrawing from the field, human rights leadership is now passing to other countries, according to Margon. She cites two encouraging events from recent meetings at the U.N. Human Rights Council in Geneva. The Netherlands helped win approval of an independent investigation of the Saudi-led campaign in Yemen despite opposition not only from Saudi Arabia but also from the United States itself. Iceland took the lead in collecting support from 38 other countries for a joint statement condemning Duterte's war on drugs.
      Margon professes encouragement from the events. "We've seen some movement on issues without American leadership, which is important," she says. With Trump in power, "ad hoc coalitions of like-minded countries will need to become the norm," she writes in the article.
      Margon was one of two authors to appear at a Council on Foreign Relations event in Washington last week [April 6] to launch the March/April issue of Foreign Affairs, with its provocatively titled collection of articles, "Letting Go: Trump, America, and the World." Human rights is not the only and perhaps not even the most important area of retreat that Trump is leading on U.S. foreign policy.
      In his article, Jake Sullivan, a senior fellow at the Carnegie Endowment for International Peace, laments Trump's backing away from what he calls "the post-World War II system of norms, institutions, and partnership that has helped manage disputes, mobilize action, and govern international conduct." Sullivan, who worked in Hillary Clinton's campaign after having served previously in the State Department and in Vice President Joe Biden's office, says these multilateral arrangements have been more successful, even in recent years, than detractors acknowledge.
      As examples, Sullivan cites the mostly successful efforts to contain nuclear proliferation and to recover from the 2008 financial crisis and worldwide recession. He counts as well the Paris climate agreement despite Trump's withdrawal from the accord. "All of these problems require some mode of international cooperation," Sullivan remarked from the stage. The United States, he added, "has been" and "has to be" the catalyst.
      Sullivan recalled in his remarks that he came face to face with one of the detractors while out on the 2016 campaign trail in Ohio. Speaking in Clinton's behalf, Sullivan spoke warmly of her support for "the liberal international order." His remarks finished, one woman in the audience approached him to say: "I don't know what that is, but I don't like any of those three words."
      Like Trump, that Ohio voter apparently sees the post-World War II order that won the Cold War and embodied the American century as more burden than benefit for the American people. Sullivan aptly remarked, on the other hand, that these systems "have served to the United States' advantage."
      Trump is a threat, in large part because of his basic misunderstanding of foreign policy in all its particulars — from trade to security. The threatened pullout from the North American Free Trade Agreement, Sullivan warned, would be "a huge self-inflicted wound." Even if some European countries have fallen short in their NATO obligations, several of them have provided critical support for U.S. policies not only in Europe, but also in, for example, Afghanistan and Iraq.
      In the end, Sullivan thinks the international order sufficiently resilient to withstand one four-year term for Trump, though not necessarily a second. Margon too expects human rights to remain on the international agenda even with Trump's retreat. At this point, one can say no more than this: Time will tell.

Saturday, March 31, 2018

To Impeach Thomas,Too Little, Too Late

      Clarence Thomas should never have been confirmed as a Supreme Court justice. His professional qualifications for the lifetime post were paper thin as of 1991, with only a little over a year on the federal appeals court for the District of Columbia. His temperament as displayed on the bench, in his eight years at the Equal Employment Opportunity Commission (EEOC), and in public speeches and remarks was blatantly injudicious.
      Thomas very likely committed perjury while under oath before the Senate Judiciary Committee when he denied the accusations of sexual harassment made by law professor Anita Hill. Newly uncovered evidence tends to substantiate Hill's accusations and thus buttress the suspicion that Thomas's Senate confirmation by the historically narrow margin of 52-48 was ineradicably tainted. Thomas also dissembled before the committee by responding to persistent questioning that he had never "debated" abortion. That evasion was unmasked by his dissenting vote in his very first term to overturn Roe v. Wade.
      With this new evidence, journalist Jill Abramson, co-author with Jane Mayer of a critical account of the confirmation in Strange Justice, argued in an article in New York magazine in mid-February that it is "time to raise the possibility of impeachment" to examine the "overwhelming evidence" of Thomas's past perjury and post-confirmation accusations of sexual harassment. The call has gone nowhere in the Republican-controlled Congress, which views control of the Supreme Court as its signature accomplishment of the post-Scalia era..
      The evidence against Thomas, even if believed, is too little and too late, however, to warrant the extraordinary step of impeaching a Supreme Court justice. Thomas may not deserve his seat on the Supreme Court, but the country and the Court itself cannot withstand another traumatic episode in the politicization of the nation's last, best hope for equal justice under law.
      History has judged the only impeachment of a Supreme Court justice ever to have been a mistake, however unworthy the justice in question. The early 19th century justice Samuel Chase was an openly partisan Federalist when riding circuit: he openly advocated prosecuting political opponents in what was then called the Republican Party, but he survived impeachment in the Republican-controlled Senate in 1805. President Thomas Jefferson fretted afterward that impeachment was a toothless weapon against entrenched Federalist judges, but history has deemed Chase's acquittal to have helped establish an important safeguard for the independence of the judiciary.
      Impeachment has been of some use, however, in removing corrupt or dishonest judges from lower federal courts, according to a compilation by the Congressional Research service. Among dozens of investigations, 14 lower federal court judges besides Chase have been impeached, including five since 1986. In all, eight have been removed after Senate convictions and four others resigned with impeachment proceedings pending. As Abramson notes, three of those removed in the modern era faced charges for lying: two for perjury (Alcee Hastings and Walter Nixon, both in 1989) and the third for false financial disclosures (Thomas Porteous, in 2010).
      The post-confirmation allegation of sexual harassment by Thomas surfaced in October 2016 from an Alaska lawyer, Moira Smith, who was prompted to go public with a 17-year-old episode after the controversy over Donald Trump's Hollywood Access tape. In her account, as reported by Marcia Coyle in National Law Journal, Smith said that she had felt honored to attend a social dinner with Thomas in 1999 and then embarrassed to have been groped twice by the justice and pressured to sit next to him for the dinner. Thomas denied the accusation.
      In her magazine article, Abramson, who covered the Thomas confirmation for The Wall Street Journal and then served in senior management positions at The New York Times for 17 years, recapitulates the evidence that was available back in 1991 but never formally presented in a public hearing. Joe Biden, then the chairman of the Senate Judiciary Committee, made the fateful — and now apologized for — decision not to call additional witnesses after Hill's dramatic testimony and Thomas's indignant denials.
      Three of those witnesses, including Angela Wright Stanton, a former EEOC staffer like Hill, would have provided similar depictions of Thomas's sexually aggressive conduct while chairman of the agency. Three others would have testified about Thomas's collection of Playboy magazines and his interest in porn videos. It is unknowable whether the testimony would have changed the minds of some in the public or in the Senate. But Stanton has now written an op-ed for Huffington Post that echoes Abramson's call to consider impeachment against Thomas.
      Two other women have belatedly accused Thomas of sexual harassment. Lillian McEwen, who dated Thomas around the same time as Hill's tenure at the EEOC, described a pattern of sexual aggressiveness to Michael Fletcher, co-author with his then Washington Post colleague Kevin Merida of a critical biography of Thomas in 2007. In addition, Abramson reports that an attorney, Karen Walker, has quoted a former BNA reporter, Nancy Montwieler, as recounting sexual harassment by Thomas while she covered the EEOC. But Montwieler refused to confirm the account when Abramson tracked her down in February and then sent Abramson an email denying having made any accusation.
      In short, the new evidence for present-day impeachment is weak, far too weak to expose the Supreme Court to what would inevitably be an intensely partisan proceeding. History does not allow do-overs. The Moving Finger writes, the poet reminds us, and having writ, moves on.

Sunday, March 25, 2018

Scalia's Legacy: The Abiding Contradictions

      Antonin Scalia knew how to dish it out, but he wasn't so good at taking it. Thus, Supreme Court watchers can be sure that the late justice would have nothing good to say about the myth-puncturing critique of Scalia's career that law professor Richard Hasen dishes out in his new book The Justice of Contradictions.
      From his earliest days after joining the Court in 1986, Scalia proclaimed himself to be the apostle of judicial restraint by virtue of his two signature jurisprudential theories: textualism and originalism. In Scalia's telling, a scrupulously scientific focus on statutory text and original constitutional meaning leaves judges, even Supreme Court justices, nothing to do but apply established canons of construction to provide the correct answer to even the most baffling of legal issues.
      Hasen, professor of law and political science at the University of California-Irvine, rightly notes the "hubris" in Scalia's espousal of textualism and originalism. With a quarter-century of teaching law to his credit, Hasen proceeds to deflate Scalia's puffery by proving with clear and convincing evidence that Scalia was simply wrong in claiming for himself to have been consistent in applying his touted techniques.
      Going back to Scalia's earliest years on the Supreme Court, Hasen finds a Scalia opinion in a decision that opens by declaring that a "literal" interpretation of the statute at issue would lead to "an absurd, and perhaps unconstitutional, result." And so, in a concurring in the judgment opinion in Green v. Bock Laundry Machine Co. (1989),  he reads the word "defendant" in a federal evidentiary rule to include "civil plaintiffs" as well.
      Hasen contrasts this willingness to save the rule with Scalia's "relentlessly literal reading" of part of President Obama's Affordable Care Act a quarter-century later in his dissenting opinion in King v. Burwell (2015). The majority sensibly read an inartfully drafted provision to authorize subsidies for individuals buying health insurance not only from the exchanges "established by a state," but also those established by the federal government in states that refused to participate. Scalia wrote a scorching dissent that, had he prevailed, would have doomed Obamacare: an absurd result unless, like Scalia, one wanted the project to fail.
      Scalia's adventures in constitutional originalism were equally susceptible to flexible adaptation to his policy views in Hasen's telling. To establish an individual right to possession of firearms in District of Columbia v. Heller (2008), Scalia scrubbed the Second Amendment of the prefatory clause tying the "right to keep and bear arms" to "a well-regulated militia." He equally had to ignore the pre-Bill of Rights history of colonial and state laws limiting personal possession of firearms.
      Original meaning also carried no weight with Scalia in his interpretation of the Fourteenth Amendment's Equal Protection Clause to prohibit any preferential treatment for disadvantaged minorities in modern-day affirmative action policies. One of Scalia's law clerks noted to the justice that the post-Civil War Congress that approved the Fourteenth Amendment also enacted laws specifically aimed at benefiting the newly emancipated African Americans. The clerk suggested Scalia needed to explain the discrepancy, but the justice never did.
      More than any justice in history, Scalia engaged in sharp, personal criticism of those who disagreed with him, even his Supreme Court colleagues. Yet, as Hasen notes, Scalia "bristled" at criticism and was dismissive of critics. He famously rebuffed any re-examination of the blatant partisanship in Bush v. Gore (2000) with blunt advice: "Get over it," he said. Hasen also recounts Scalia's non-response to a query from the noted constitutional law scholar Jeffrey Rosen on how to reconcile his originalism with the school desegregation decision in Brown v. Board of Education (1954). "No theory is perfect," Scalia answered.
      Scalia may have accepted Brown, but he refused to bow to other constitutional landmarks. Five decades after the landmark privacy decision in Griswold v. Connecticut (1965), Scalia told an interviewer flatly that there is no right to privacy; Griswold, he said, was simply "wrong." Nor did Scalia ever accept that the Fourteenth Amendment applied to sex discrimination: the signature legacy of Ruth Bader Ginsburg's pre-Supreme Court career. And he fulminated in two of the landmark gay rights decisions against what he insisted on calling "the homosexual agenda" despite ignoring the suggestion from one of his law clerks that the phrasing was gratuitously incendiary.
      Hasen acknowledges that Scalia was "full of charm," well liked from all accounts by his fellow justices, even those on the opposite side such as Ginsburg. But his book reminds Court watchers of the wretched state of equal justice under law that Scalia would have left as his legacy had his views prevailed. Women would be powerless against official sex discrimination. Gay men and lesbians could be prosecuted for intimate relationships. Corporations could give unlimited amounts of money directly to candidates for federal office.
      Apart from his questionable jurisprudence, Hasen is perhaps most critical of Scalia for single-handedly coarsening judicial discourse at the Court and in law world generally. Sometimes, the sneering may have seemed light-hearted, as when Scalia accused the majority in King v. Burwell of "jiggery-pokery." But often his sneering had a sharper edge. Scalia's rhetoric served to make the Court "a more politicized, and perhaps more political, institution," Hasen writes. In the end, Hasen concludes, Scalia "helped to delegitimize the institution he was trying to save." His legacy, in short: an abiding contradiction.

Sunday, March 18, 2018

Time for Court to Stop Abuse of First Amendment

      The Supreme Court will be asked on Tuesday [March 20], in the name of the First Amendment, to nullify a California law requiring anti-abortion women's health clinics to tell women where they can obtain information about free or low-cost abortion services. The case, National Institute of Family and Life Advocates v. Becerra, represents the third time this term that political conservatives have urged justices committed to an originalist interpretation of the Constitution to find in the Free Speech Clause meanings that James Madison and the other Framers could never have intended or contemplated.
      The anti-abortion pregnancy resource centers represented by the trade association known by its initials as NIFLA are well within their First Amendment rights to try to dissuade "abortion-vulnerable women" from terminating their pregnancies. But it is an abuse of high order for them to invoke the First Amendment as an exemption from the kind of government-mandated disclosure well recognized in health care and countless other contexts.
      The California Reproductive FACT Act — FACT is an acronym for "Freedom, Accountability, Comprehensive Care, and Transparency — seeks to counter what critics of these so-called crisis pregnancy centers depict as their blatantly misleading practices. The law, enacted in 2015, requires centers that are licensed as medical clinics to post a notice about the availability of free or low-cost family planning services, complete with a telephone number of the local social services center. A second, narrower provision requires unlicensed centers to post a notice that they are not licensed and have no licensed medical provider on staff.
      The misleading tactics by these centers — they number more than 3,000 nationwide — have been well documented in investigative news stories and in a thorough report three years ago by the abortion-rights group NARAL Pro-Choice America. The billboards, public transit ads, and online advertising all convey to women — "pregnant and scared" — a welcoming environment that offers medical services and counseling to help them through a personal crisis.
      Instead, the women who visit these clinics are given misleading information about the risks of abortion and subjected to anti-abortion moralizing. Autumn Burke, the California legislator who cosponsored the bill, recalled to Newsweek that she started working on the issue after a chance visit to one of the centers in downtown Los Angeles. She spotted the clinic while on an unrelated errand and picked up an informational pamphlet from the center that repeated the discredited falsehood that abortions are linked to breast cancer.
      The NARAL report, based on undercover investigations of centers in 10 states across the nation, found that counselors at what NARAL calls "fake health centers" misinform women that they will be unable to bear children in the future if they have an abortion. They also counsel women to postpone a decision on whether to have an abortion — contradicting the accurate medical advice to terminate a pregnancy as early as possible to avoid possible complications.
      NIFLA calls the disclosure for licensed clinics a "compelled abortion referral" and insists that it cannot be constitutional to require a clinic opposed to abortion to provide that information to patients. It calls the other provision a "negative disclaimer" and finds it equally unconstitutional to require centers to disparage the services they offer. The arguments do not hold water. Mandatory disclosure laws often require commercial businesses to tell customers about availability of information elsewhere and often require negative disclosures about their products or services — for example, the building energy use now required for real estate transactions in many jurisdictions.
      In its amicus brief defending the California law, the progressive Constitutional Accountability Center rightly argues that the measure promotes First Amendment values by ensuring that consumers have access to accurate information about their rights to state-funded care and how to access these benefits. A decision to strike down the law could have ramifications for disclosure laws generally, the brief warns.
      Moreover, the anti-abortion lobby is guilty of hypocrisy of the highest order in claiming a constitutional harm from government-compelled speech. Anti-abortion forces are responsible for what the Guttmacher Institute counts as 29 states that require women's health clinics to provide various bits of false or misleading information to women planning to terminate a pregnancy. Most commonly, two-thirds of the states require women be warned of future fertility issues; among other warnings, 13 states require women be told that a fetus feels pain after 20 weeks, and smaller numbers require warnings about breast cancer or depression. Not true: any of it.
      Political liberals who have long cherished freedom of speech might welcome the legal and political conservatives who now embrace free speech so enthusiastically but for their twisting of the First Amendment for political ends as seen in two high-profile cases already argued this term. In Masterpiece Cakeshop, the justices have been asked to give a commercial baker a First Amendment exemption to discriminate against a same-sex couple ordering a wedding cake. In Janus, a disaffected state employee wants a free-speech exemption from a mandatory fee to the public employee union that represents him on workplace issues.
      Principled conservatives should see these for the phony free-speech claims that they are. But the arguments in the two earlier cases point tentatively to rulings by the conservative majority that exploit rather than enforce the First Amendment. A genuinely free-speech Court would have more respect for the First Amendment than to allow such abuse.

Sunday, March 11, 2018

High Court Rules Out Bail in Immigration Cases

      The Supreme Court has given the government free rein to jail thousands of immigrants in substandard detention facilities for months on end with no chance whatsoever to appear before a judge to try to be released on bail.
      In different times, news of the Court's due process-denying decision in Jennings v. Rodriguez would have gotten wide attention on front pages and home pages of major newspapers. But, as the Washington Post columnist Ruth Marcus aptly pointed out in noting the back-page coverage of the ruling,  "the Trump administration's soap opera occupies so much media attention that other matters of enormous importance go unremarked."
      The 5-3 decision on Feb. 27 pitted the Court's five Republican-appointed conservatives, including the moderate justice Anthony M. Kennedy, against three Democratic-appointed liberals, with one of their number — Elena Kagan — recused because of her previous role as U.S. solicitor general. The decision says less about partisan politics, however, than about the divide on the Court between the sterile textualism of the conservatives and the liberal justices' whole-law approach to reading statutes.
      The federal immigration statutes at issue in the case provide in stark language that certain aliens "shall be detained" at the border upon seeking admission into the United States, including those applying for asylum as they flee persecution in their home countries. A separate provision provides that aliens already in the United States "shall be detained" as the government seeks to deport them based on prior criminal convictions or terrorism-related connections.
      Writing for the majority, Justice Samuel A. Alito Jr. needed to know nothing more. The laws say nothing about bail hearings: end of case. But the federal appeals court in California invoked a well-recognized doctrine known as "constitutional avoidance" in concluding that the laws would be unconstitutional unless they were construed to provide for bail hearings.
      For the liberal dissenters, Justice Stephen G. Breyer felt so strongly about the case that he exercised the occasionally invoked prerogative to summarize his dissent from the bench. His 33-page written opinion, longer than Alito's for the majority, details the humanitarian wreckage and legal injury that the decision inflicts.
      The right to bail, Breyer emphasized, has been part of Anglo-American law ever since the 18th century English jurist Blackstone recognized the opportunity for bail "in any case whatsoever." The Bill of Rights prohibits "excessive bail" in the Eighth Amendment: no bail whatsoever seems worse. Breyer also stressed that federal and state law uniformly allow bail for criminal defendants except in limited circumstances. No evidence suggests that the risk of flight is greater for aliens trying to enter the country than for criminal suspects,  Breyer remarked.
      Most of the aliens held at the border have done nothing wrong, Breyer explained. The asylum applicants — they numbered 7,500 in 2015 —  have already provided preliminary information to support their claim to a U.S. consular official in their home countries. Two-thirds of them eventually receive asylum, but only after detentions in facilities within the United States that can last a year or even, in one case, two-and-a-half years.
      Others detained at the border are held in limbo because they are neither admissible or inadmissible without further investigation. Breyer had no data on their numbers or the lengths of their detentions, but one can assume that they too lingered and languished in what Breyer called "inappropriately poor" conditions as the immigration system's wheels ground slowly.
      The third group in the class action consisted of immigrants living in the United States facing deportation because of criminal convictions or possible ties to terrorism. The ex-offenders, Breyer explained, had already served their sentences: more than half of them for less than six months. Many of them are found to be deportable, but 40 percent of them are eventually granted relief from removal. In the meantime, however, they too are detained for periods that range up to and past a full year and, in one case, for nearly four years.
      None of these disquieting details can be found in the majority opinion. In Scaliaesque fashion, the five justices see nothing beyond a few words in the statutory text: "shall be detained." They look for words, not meaning; law, not justice. Congress, quite simply, could not have meant to deny the chance for bail to immigrants held for months or even years with no chance whatsoever to make their case for release before a judge required to give their plea due consideration.
      A statute with that effect offends the words of the Constitution--for example, the Fifth Amendment's prohibition against deprivations of liberty without due process of law. Rather than read the statute with the tunnel vision of a lexicographer, Breyer and the other dissenters would read it as requiring periodic bail hearings "without doing violence to the statutory language or to the provisions' basic purposes."
      Inside this clouded decision, however, there is a silver lining. The plaintiffs' constitutional claims have not yet been decided. The federal appeals court skirted the question by construing the statutes to avoid finding them unconstitutional.
      The majority express no view on the issue in sending the case back to the Ninth Circuit for a ruling. Breyer and his colleagues were ready to decide the issue now. Instead, Breyer closes by citing the Declaration of Independence's "unalienable" right to liberty in hoping for an eventual ruling to grant "the basic right to bail" for thousands of aliens yearning for nothing more than to breathe free.

Sunday, March 4, 2018

No Minds Changed in Union Fees Case

      If Supreme Court arguments were scored in the manner of high school debate tournaments, liberal justices would be credited with a hands-down win in last week's showdown on the fees that public employee unions charge to non-members for representing them in labor negotiations and workplace issues.
      Through active questioning from the bench during the hour-long session on Janus v. AFSCME [Feb. 26], the liberal justices demonstrated the disquieting consequences of the conservatives' apparent determination to overrule a 40-year-old precedent important to the financing of public employee unions. That decision, Abood v. Detroit Board of Education (1977), allows public employee unions, if permitted by state law, to charge non-members their "fair share" of the union's costs in representing members and non-members alike on work-related matters.
      The liberal justices showed that overruling Abood would cast doubt on analogous decisions in several other areas and could unsettle labor contracts negotiated by governments in 23 states and hundreds of municipalities. And they also laid bare the real purpose behind the case: not so much to vindicate the claimed free speech interests of the dissident Illinois state employee Mark Janus, but to diminish the resources for public employee unions and reduce their political influence.
      The conservative justices were somewhat restrained during the argument, possibly confident of the outcome. The Court divided 4-4 two years ago on whether to overrule Abood, with one seat vacant after Justice Antonin Scalia's death. The individual votes were not announced, but the justices undoubtedly split along conservative-liberal lines. Now with the conservative justice Neil Gorsuch filling the ninth seat, the conservatives perhaps saw no need to make their case from the bench.
      The senior liberal justice Ruth Bader Ginsburg opened the questioning by asking Janus's lawyer, William Messenger of the anti-union National Right to Work Foundation, about the potential domino effect of overruling Abood. "If you are right," Ginsburg asked, "what about three things...?" She listed student activity fees, mandatory bar association payments, and agency shop fees in the private sector: all of them upheld in Supreme Court precedents.
      Messenger's answer served to underline the hoped-for judicial activism at the heart of the case. The government had legitimate interests in requiring all students to pay into an activity fund and in requiring all lawyers to contribute to the regulation of the legal profession. He left unspoken the implicit argument to dismiss as insubstantial the government's interests in having strong unions as negotiating partners to promote employee morale and labor-management relations.
      Sotomayor reminded him on the point: "I'm sorry," she said, interrupting. "I thought that we had always recognized that the government as employer had a compelling interest in regulating its employment decisions."
      Kagan joined next to note that 23 states and "thousands" of municipalities have negotiated contracts with labor employee unions under the Abood framework. "I don't think that we have ever overruled a case where reliance interests are remotely as strong as they are here," Justice Elena Kagan told Messenger. "The contracts will survive," Messenger reassured Kagan, hardly reassuring from a fierce critic of unions after mischaracterizing the issue one sentence earlier as all about "compulsory unionism."
      To be clear, Janus claims a free-speech issue on the ground that the union's negotiations with the government employer are all matters of public concern, not private employer-employee relations. Kagan got the U.S. solicitor general, Noel Francisco, to agree to that proposition even though it could bedevil the federal government and all other government employers in disciplining public employees.
      The free-speech argument is debunked by no less a First Amendment expert than UCLA law professor Eugene Volokh. "There is no First Amendment right not to subsidize speech one disagrees with," Volokh wrote in a friend-of-the-court brief on the union's side joined by another politically conservative academic, the University of Chicago law professor William Baude. They opined that Abood actually went too far by giving dissident non-union members the right to opt out of paying for unions' political activities beyond the collective bargaining role.
      However tenuous the First Amendment arguments, the conservative justices were all in. "When you compel somebody to speak, don't you infringe that person's dignity and conscience?" Justice Samuel A. Alito Jr. asked of the Illinois solicitor general, David Franklin, defending the law. Franklin answered firmly. "What we're talking about here is a compelled payment of a fee," Franklin said. "So it's one step removed from compelled speech."
      Other conservatives seemed to be lying low. Chief Justice John G. Roberts Jr. had only a few question; Gorsuch, with the decisive vote, had none at all. And it fell to the ordinarily mild-mannered justice Anthony M. Kennedy to make the bluntest attack on public unions. He mocked Franklin's argument by suggesting that the government merely wanted the union to "be a partner with you in advocating for a greater size workforce, against privatization, against merit promotion, for teacher tenure, for higher wages, for massive government, for increasing bonded indebtedness, for increasing taxes?" Note to Kennedy: GM and UAW agree on the need for strong automobile industry.
      By the hour's end, no minds had been changed: Justice Stephen G. Breyer's plaintive plea for a compromise of some sort went uncommented on by the conservatives. Outside, anti-union demonstrators carried placards pleading, "Unrig the system." In this case, however, the fix is in: decision in June, but no suspense about the outcome.

Sunday, February 25, 2018

"Power, Not Reason" on Fees in Public Unions Case?

      Justice Thurgood Marshall let out an anguished wail in 1991 when the Supreme Court overruled a decision barely four years old to prohibit the use of victim impact statements in death penalty trials. "Power, not reason, is the new currency of this Court's decisionmaking," Marshall wrote in his dissent in Payne v. Tennessee (1991).
      Marshall had been part of the 5-4 majority in the earlier decision, Booth v. Maryland (1987), that found an unacceptable risk of prejudice in allowing surviving family members to air their opinions in the sentencing phase of a capital murder trial. With two new justices four terms later, the Court had specifically asked lawyers to address the question of whether to reconsider the still new precedent.
      Marshall, in his final opinion before he announced his retirement the same day, was especially sharp in criticizing his colleagues for disregarding stare decisis — the legal doctrine that calls for following rather than overturning prior decisions. "Neither the law nor the facts supporting Booth . . . underwent any change in the last four years," Marshall wrote of the new 6-3 decision. "Only the personnel of this Court did."
      The Court confronts a similar situation on Monday [Feb. 26] as a fortified bloc of conservative justices prepare to jettison a 40-year-old precedent important to public employee unions for no good reason except their raw power to do it. Conservative justices with little regard for organized labor are set to deal a body blow to the financing of public sector unions. Their anticipated decision will eliminate public employee unions' ability to require non-union members to pay their "fair share" of the costs of representing them in collective bargaining and other workplace issues.
      The precedent at issue, Abood v. Detroit Board of Education (1977), has rankled anti-union forces for decades despite the protection that the decision bestowed on dissident non-union teachers in the instant case. Led by Justice Samuel A. Alito Jr., the Roberts Court has taken pot shots at the decision in three cases over the past six years and now appears ready to overturn it with Justice Neil Gorsuch expected to use the stolen ninth seat to cast the decisive fifth vote.
      In the first of those decisions, Alito dumped on Abood as "an anomaly" without recognizing that it established for public sector unions the same legal framework that applies to unionized companies in the private sector. Abood dealt with what economists call the "free rider" problem: the natural tendency for someone to avoid paying if possible for some publicly available benefit or service of some sort.
      Federal labor law requires that a union, once certified by a majority of workers in a democratic election, represent and advocate for the interests of all the workers even those who voted against or refuse to join the union. Workers cannot be required to join a union as dues-paying members, but non-union members can be required to pay a so-called agency shop fee to cover the union's costs in representing them along with union members.
      In Abood, a somewhat fractured Court crafted a compromise of sorts by limiting the state laws authorizing agency shop fees for public employee unions to some extent. To avoid a compelled-speech issue, the mandatory fees paid by non-union members could be used only for workplace issues, not for the union's political or lobbying activity. The non-union members could opt out of paying for those activities and claim a partial refund based on the percentage of the union's budget devoted to non-collective bargaining activities.
      A decade later, the Court's decision in Chicago Teachers Union v. Hudson (1986) regularized that limitation by requiring public employee unions to send members and non-members alike a notice about their right to opt out of paying that portion of the fees devoted to non-collective bargaining activities. The procedure entailed some difficult line-drawing to identify the political activities that objecting non-union members could avoid paying for, but overall the Hudson notice system proved to be workable.
      Back in 1991, Chief Justice William H. Rehnquist answered Marshall's dissent on victim-impact statements by stating the obvious that the doctrine of stare decisis "is not an inexorable command." Precedents are not sacrosanct, never to be overruled. If they were, Plessy v. Ferguson would still be on the books and racial segregation still the law of the land. Even so, respect for precedent requires some special justification for overruling a prior decision — justification that Marshall found lacking in the Booth  to Payne sequence on victim impact statements.
      The plaintiffs in the new public sector union case, Janus v. AFSCME, have not carried the burden of showing that Abood is unworkable in the light of four decades of experience or unsound as a matter of legal doctrine. To reiterate: Abood protects objecting non-union teachers, for example, from being forced to pay for teachers' union lobbying or election campaigning.
      Nothing has changed in the past 40 years except the growing strength of anti-union forces who want to use the courts to undercut the laws enacted in nearly half the states to authorize public sector unions for the benefit of public employees and public sector labor-management relations. With a decision likely in June, expect a conservative majority to wrap themselves in a vision of the First Amendment that gives an invented constitutional right to free-riding government workers who take the benefits of union representation without paying for them.

Sunday, February 18, 2018

Kennedy "Most Consequential" Justice of Era

      Anthony Kennedy marks the end of his thirtieth year as a Supreme Court justice on Sunday [Feb. 18], currently the fifteenth longest tenure of the Court's 112 members in its 230-year history. Kennedy's precedent-setting or -breaking opinions on issues ranging from abortion, affirmative action, capital punishment, and gay rights to campaign finance and religious liberty represent a monumental legacy that marks him as the most consequential justice of his time on the Court.
      Kennedy may also be remembered as the last Supreme Court justice ever to be confirmed by a unanimous Senate floor vote. Kennedy was confirmed on a 97-0 vote by the same Democratic-majority Senate that sixteen weeks earlier had soundly rejected President Ronald Reagan's first choice for the vacancy, the archconservative federal appeals court judge Robert Bork. The bipartisan acclaim for Kennedy now appears as a long-gone relic of a different era of Supreme Court politics.
      Three decades after Kennedy's confirmation, his approval rating —  if justices were polled just like presidents —  surely would be significantly lower. Many conservatives would vote thumbs down because of his role in preserving the Roe v. Wade abortion rights ruling and in extending constitutional rights to gay men and lesbians. Some liberals might also turn thumbs down by citing Kennedy's pivotal votes in 5-4 decisions to gut campaign finance laws and jeopardize gun safety laws in the name of the Second Amendment.
      The shorthand description of the various justices as liberal or conservative routinely used by Court watchers may amount to an oversimplification, but Kennedy's opinions and votes defy a one-word label. One veteran Kennedy watcher, however, sums him up as a "modest libertarian." Helen Knowles, an associate professor of political science at State University of New York in Oswego and author of the appreciative volume The Tie Goes to Freedom, sees three pillars in Kennedy's judicial philosophy: tolerance of diverse views, treating every individual with dignity, and respecting liberty but insisting liberty be used responsibly.
      Knowles joins this writer in doubting the rampant speculation about Kennedy's possible retirement. "I don't think he's going anywhere soon," says Knowles. As he approaches age 82 in July, his health appears to be good. Thus, his legacy remains a work in progress that Knowles notes will be shaped in part by Kennedy's eventual vote in the gay wedding cake case argued in December. "The case involves two very central parts of his jurisprudence: both gay rights and free speech," she notes.
      Kennedy has not tried to set out an overarching judicial philosophy as two of his longtime colleagues have done: the late justice Antonin Scalia, in his books extolling originalism and textualism, and Stephen Breyer, in his book elaborating on "active liberty" as a lodestar of judicial decision-making. Kennedy is instead as modest as Knowles describes and, unlike Scalia, has never to my knowledge mocked or derided justices or others for disagreeing with his views or opinions.
      As successor to Justice Lewis F. Powell Jr., Kennedy moved into a "swing-vote" position on the Court that he shared with Justice Sandra Day O'Connor for the next 18 years. Kennedy played his pivotal role differently from O'Connor. As a former Arizona legislator, O'Connor was to some extent a finger-in-the-wind justice who seemed to look for politically acceptable compromises on hard issues, such as abortion. Kennedy is made of sterner stuff.
      In general, Kennedy holds his views firmly, with no corner-cutting compromises, but he can also hesitate Hamlet-like with hard decisions. By happenstance, he was with a reporter on the day he joined O'Connor and David H. Souter in the 1992 decision that largely reaffirmed Roe v. Wade. Before taking the bench, he mused out loud about "crossing the Rubicon." 
      As Knowles and others have pointed out, Kennedy is the strongest and most consistent free-speech advocate on the current Court. Thus, according to the leaked accounts, it was Kennedy who pushed for the broad, precedent-overruling decision in Citizens United v. Federal Election Commission (2010)  to free corporate spending in political campaigns instead of the narrower ruling that could have resolved the instant case.
      Kennedy may know his own mind well, but he shows that he can hold seemingly contradictory positions in his mind from case to case. He has voted repeatedly to uphold capital punishment, but he also joined or wrote decisions to bar the death penalty for the intellectually disabled, for juvenile offenders, and in rape cases. He has been a strong vote in recent religious liberty decisions, but he also wrote the 1992 decision that barred school-sponsored prayer at graduation ceremonies.
      Time after time, Kennedy has either written or joined 5-4 decisions, attesting to his pivotal role on an ideologically divided Court. Through 29 terms so far, Kennedy has registered the lowest number of dissenting votes in all but a few. Consciously or not, Kennedy appears to have responded to the recent effort by legal conservatives to push or pull the Court to the right by, if anything, moving somewhat to the left.
      Thus, Kennedy cast pivotal votes in two critically important cases in 2016: his first ever vote to uphold use of race in university admissions in his decision in Fisher v. University of Texas and one of his rare votes to strike down state restrictions on abortion procedures in a decision he assigned to Breyer, Whole Woman's Health v. Hellerstedt. Those decisions underscore that Kennedy decides cases, judge-like, one case at a time, and that he remains the one justice never to be taken for granted.

Sunday, February 11, 2018

Trump's Judges Pose Danger to LGBT Rights

      The Supreme Court's decision recognizing marriage rights for same-sex couples holds out the promise of legal and social equality for gay and lesbian Americans, but only the promise: not yet the reality. Already, next-generation issues are pending at the high court, in lower federal and state courts, and in federal and state agencies, with same-sex couples still experiencing outright hostility or bureaucratic indifference when claiming rights enjoyed by opposite-sex couples.
      The Supreme Court similarly held out the promise of racial equality in 1954 with its landmark school desegregation decision in Brown v. Board of Education. Six decades later, however, the promise of that decision has yet to be realized, with the Supreme Court now in retreat on the need to diversify racially isolated schools.
      The practicalities of judicial administration required the Warren Court to leave the implementation of the school desegregation decision to lower federal court judges. President Dwight Eisenhower was ambivalent at best about Brown, but fortunately for history's sake he appointed to the federal bench in southern states judges who took their responsibilities seriously to follow the law laid down by the Supreme Court.
      Fast forward to today. With the future of LGBT rights still quite uncertain, President Trump has turned to a number of unreconciled opponents of LGBT rights to fill federal court seats. The justice he appointed to the Supreme Court may harbor no ill will toward LGBT individuals, but Neil Gorsuch has already voted in one significant case against granting the same rights to same-sex couples as enjoyed by opposite-sex couples.
      Gorsuch dissented from the Court's decision in June in Pavan v. Smith to require an Arkansas state agency to list both a biological mother and her wife as parents on their child's birth certificate just as the state would do for the husband in an opposite-sex couple who gave birth through assisted reproduction. The same issue of common-law parentage is now pending in federal court suits filed by gay couples challenging the State Department's refusal to allow a non-biologically related father to transfer his citizenship to a child born abroad.
      Other pending issues are more straightforward. The Supreme Court heard arguments in December to decide whether commercial businesses can refuse to serve LGBT individuals based on moral or religious objections — for example, to same-sex weddings. The justices are also being asked to determine whether the federal civil rights law that prohibits sex discrimination also applies to discrimination on the basis of sexual orientation or gender identity.
      Judges on lower federal courts will play a role in determining some of the future issues and implementing eventual Supreme Court decisions. LGBT advocacy groups warn that many of Trump's judicial nominees have records of outright opposition or indifference to LGBT rights.
      Lambda Legal identified Gorsuch and 15 other Trump nominees as having anti-LGBT records in a detailed analysis last fall. The report noted, for example, that Gorsuch joined an opinion while on the Tenth Circuit to allow the state of Oklahoma to deny hormone treatments to a transgender female inmate.
      Other Trump nominees evinced similar indifference to LGBT rights on the bench. While on the Texas Supreme Court, Don Willett joined an opinion denying benefits to the spouses of gay or lesbian public employees. On the Michigan Supreme Court, Joan Larsen refused to recognize parental rights for a lesbian parent after a marital breakup. Both Willett and Larsen withstood opposition from LGBT and other civil rights groups to win confirmation on mostly party-line votes to federal appeals courts in their circuits.[
      Willett and Larsen are among many Trump nominees with judicial views generally hostile to the courts' role in extending or protecting individual rights. Larsen, for example, criticized the Supreme Court's decision in Lawrence v. Texas to strike down state laws banning gay sex as "revolutionary" because it cited foreign law.
      Some other nominees have been more explicit in opposing LGBT rights. As a board director of the Nebraska Family Alliance, Steven Grasz opposed recognition of same-sex marriages and supported the use of gay conversion therapy. He was confirmed to the federal appeals court for the Eighth Circuit.
      As a member of the Tennessee legislature, Mark Norris sponsored or supported a variety of anti-LGBT bills, including a "don't say gay" bill to prohibit teachers from discussing homosexuality in schools. Norris is awaiting a Senate floor vote on his nomination to the U.S. District Court in Memphis after the Judiciary Committee recommended confirmation on an 11-10 party-line vote.
      One of Trump's anti-LGBT nominees, however, proved too much for the committee to swallow. Jeff Mateer, an assistant in the Texas attorney general's office nominated for a federal district court, withdrew after news coverage of remarks he made while with a religious liberty group describing transgender individuals as "part of Satan's plan."
      As a candidate, Trump sometimes professed support for LGBT rights, but he also sought and relied on support from evangelicals and other social conservatives. As president, Trump has pleased his political base by opposing transgender rights in public schools and supporting anti-LGBT discrimination at the Supreme Court. But long after Trump is gone, the judges he is naming to the federal bench will still be there, slowing if not reversing the movement toward equal rights for LGBT Americans.

Sunday, February 4, 2018

On Immigration, Trump Lies, Panders to Base

      President Trump has shown himself in his campaign and in office to be reflexively averse to dealing with the details of policy or legislation, but he appears to have a good grasp of what he wants to do on immigration. Sadly, the president's plans for what he calls immigration reform are based on outright falsehoods about current policy and on menacing appeals to the worst elements of his political base.
      Trump made a pretense of offering a bipartisan compromise to pro-immigration Democrats as part of his State of the Union address [Jan. 29]. He is proposing a path to citizenship not only for the estimated 800,000 "Dreamers" brought to the United States as minors but also for their families: an estimated 1.8 million non-status immigrants in all. Trump combined that carrot, however, with a package of sticks rightly rejected by the other side: sharp cuts in legal immigration and a reckless increase in border enforcement staffing.
      Begin with Trump's two overarching falsehoods on current immigration policy. Trump and his supporters are simply wrong in his attack on so-called "chain migration" to depict current family unification policies as allowing immigrants to sponsor an unlimited number of family members. The proposed remedy is heartless to the max. The White House "framework" on immigration proposes to "promote nuclear family migration" by limiting sponsorships to spouses and minor children: siblings and parents need not apply.
      Trump is also wrong in saying that the current diversity visa lottery system "selects individuals at random to come into the United States without consideration of skills, merit or public safety" (emphasis added). In fact, eligibility for the lottery — with merely 50,000 slots per year —  requires proof of education and employment and a security background check.
      Unsurprisingly, black and Hispanic immigrants would be roughly twice as likely to be affected by the administration's proposals than white immigrants, according to an analysis by economist Michael Clemens,a fellow with the Center for Global Development, Clemens, who is affiliated with the avowedly conservative Hoover Institution, used 2016 figures for immigrants admitted through the lottery to estimate that the changes would reduce the number of black immigrants by 64 percent and the number of Hispanics by 58 percent while the number of white immigrants would be cut by roughly one-third.
      Were there any doubt, the analysis underscores the inherent racism in Trump's proposals. Yet pro-immigration advocates emphasize that seeking to curtail legal immigration is the very opposite of making America "great" again. The foreign-born living in the United States have risen over the past 25 years to reach 13.7 percent in 2015, according to the U.S. Census Bureau, but that percentage is below the historic high in this "nation of immigrants" of 14.8 percent in the 1890s.
      Trump openly appealed in his campaign to the nativist element in the U.S. population with his anti-immigrant rhetoric. With his rhetoric now embodied in legislative proposals, Trump is drawing opposition not only from liberal pro-immigration groups but also from the U.S. Chamber of Commerce and such mainstream conservatives as columnists David Brooks and Michael Gerson.
      Writing on the business lobby's blog in advance of Trump's State of the Union address, Chamber president Tom Donohue called for legalizing the status of the 1 million immigrants already in the country and also for continuing to welcome legal immigration for the economy's sake. "Without qualified workers," Donohue wrote, "American businesses and the U.S. economy can’t grow."
      David Brooks added his voice to the pro-immigration argument the same day in his scheduled column in The New York Times. "[T]he evidence for restricting immigration . . . is pathetically weak," Brooks said. Far from hurting the country, immigrants are providing the "antidote" to an overall loss of "dynamism," socially and economically.
      Gerson, a speechwriter alumnus of the compassionate conservatism of the George W. Bush White House, similarly discounted the factual evidence for Trump's arguments "as uniformly exaggerated or wrong" in a critique of the State of the Union published in The Washington Post on Friday [Feb. 2]. "There is little evidence that migrants take jobs from middle-class Americans," Gerson wrote. He debunks the fear of immigrant crime as well. "There is no evidence that immigrants have higher rates of crime," he writes. "The opposite is true."
      Trump is once again factually wrong to claim an increase in illegal border crossings when the numbers appear to be falling. Yet to combat the non-existent menace, Trump wants a $25 billion trust fund for his "beautiful" wall and a 50 percent increase in border enforcement resources for Immigration and Customs Enforcement (ICE). Environmental experts view the supposed wall as a threat to wildlife and endangered species. Immigration advocates warn of the risks of adding so many ICE agents without effective safeguards against corruption and abuse.
      Anti-immigrant hysteria has been part of American history time and time again through the years, but never before has a U.S. president made it such a central part of his campaign or his presidency. As with some of his other policies, the only way for Trump to make America great is to change his policies and his rhetoric. As president, he should be trying to bring Americans together instead of continuing to divide the country by race, ethnicity, and national origin.

Sunday, January 28, 2018

Ginsburg, Gorsuch Don't Play Well Together

      Justice Ruth Bader Ginsburg had her doubts about Neil Gorsuch long before President Trump chose him to join Ginsburg on the Supreme Court as successor to Ginsburg's longtime pal, Antonin Scalia. Now that she and Gorsuch are colleagues, the early report cards show that the two justices do not play well together.
      Gorsuch went up against Ginsburg for the second time in his short tenure by leading four dissenters last week in a long riposte to Ginsburg's opinion for a five-justice majority in the kind of complex procedural case that is Ginsburg's forte. The two justices — Ginsburg, the oldest, and Gorsuch, the youngest — had a similar face-off in a decision at the end of the previous term in a case that, like this week's, played to Ginsburg's strength and to Gorsuch's swaggering self-confidence.
      Rewind the tape to recall Ginsburg's ill-advised comments last summer about the worrying prospects of a Trump presidency for the country and for the Court itself. "For the country, it could be four years," Ginsburg opined in an interview with The New York Times' Adam Liptak in mid-July as Trump was emerging as the presumptive Republican nominee. "For the Court, it could be —  I don't even want to contemplate that," Ginsburg went on.
      Ginsburg eventually apologized for her remarks and promised to be "more circumspect" in the future. While Ginsburg fretted about a Trump presidency, she probably expected that President Obama's choice for Scalia's seat, Judge Merrick Garland, would eventually join her on the Court. Trump's election paved the way instead for Gorsuch's nomination and eventual confirmation on a historically narrow, mostly party-line Senate vote.
      Ginsburg joined the other justices for Gorsuch's oath-taking in a White House rose garden ceremony on April 10. The Washington Post published a picture of the justices at the ceremony, with a caption that noted the justices' applauding after the swearing-in. A keen-eyed reader noted on Twitter, however, that Ginsburg was in fact not applauding.
      With Gorsuch barely in his third month on the Court, he took on Ginsburg in dissent in a complex case on the appellate route for a discharged federal employee to challenge an unfavorable ruling in a so-called "mixed motive" claim. Writing for a seven-justice majority in Perry v. Merit System Protection Board, Ginsburg construed the applicable statute to direct the employee's appeal — with its mix of civil service and other illegal discrimination claims — to a federal district court instead of a federal court of appeals with more deferential review.
      Gorsuch apparently forgot that Ginsburg was studying Swedish civil procedure before he was even born. Undeterred, he accused Ginsburg of rewriting the statute instead of faithfully construing its convoluted text. "If a statute needs repair," Gorsuch wrote in a snarky dissent joined by Justice Clarence Thomas, "there’s a constitutionally prescribed way to do it. It’s called legislation."
      When the new term opened, Gorsuch and Ginsburg were at it again. Gorsuch skeptically asked during the Oct. 3 arguments in the Wisconsin gerrymandering case, Gill v. Whitford, about the source of the Court's authority to review state legislative district maps. As Jeffrey Toobin noted in The New Yorker, Ginsburg answered with a none-too-subtle bench slap. “Where did ‘one person, one vote’ come from?” Ginsburg asked, in an unmistakable reference to the Court's early decisions from the 1960s allowing federal court challenges to malapportioned state legislatures.
      Fast forward to last week's decision in Artis v. District of Columbia [Jan. 21]. The issue was how to interpret another complex federal statute: one that "tolled" the statute of limitations on a plaintiff's state law claim while the claim was pending in a federal court as related to a distinct federal law claim. The law, 28 U.S.C. §1367(d), gave a plaintiff 30 additional days to file in state court after a federal court dismissal of the federal claim.
      Stephanie Artis, the discharged D.C. health inspector, lost her federal court case and then refiled her claims under D.C. law in D.C. Superior Court, 59 days after the dismissal of her federal court case. The District argued and the D.C. courts agreed that Artis had filed too late, but Ginsburg wrote for a 5-4 majority in holding that the District's three-year statute of limitations had been "held in abeyance" — that is, "tolled" — while her case was in federal court.
      Ginsburg said she was following the "dictionary definition" of "tolled," but the committed textualist Gorsuch instead read the federal law to provide a 30-day grace period instead of stopping the clock on the District's three-year statute of limitations. The case, he said, represented a constitutionally dubious "intrusion" on "traditional state functions." Ginsburg countered by accusing Gorsuch of "unsettling" the definition of "tolled" in his interpretation of the act and by citing an earlier precedent that described the federal provision as "conducive to the due administration of justice in federal court."
      Gorsuch's opponents made much during the confirmation fight of Gorsuch's dissenting opinion in what came to be called the "Frozen Trucker Case." In that case, he would have narrowly interpreted a federal truck safety law so as to leave a stranded trucker with no legal alternative to risking freezing to death while waiting for his company to send a rescue.
      Tellingly, Gorsuch's two dissents so far in argued cases —  in Perry and now in Artis — have both sought to impose his narrow construction of federal statutes in a way to disadvantage workers challenging adverse personnel actions. Gorsuch answered his critics at the Senate confirmation hearings by insisting that there were "plenty of" cases where he had ruled in favor of the proverbial "little guy." At the Supreme Court, however, so far: not so much.

Saturday, January 20, 2018

To Make America Great, Trump Has to Go

      One year into the Trump presidency, America is not "great again," but divided at home and diminished abroad. The president's actions and statements have reduced the United States' global leadership, eroded democracy at home, weakened the country's commitment to economic and social justice, encouraged racial and religious bigotry, and deepened the ethical swamp that he promised to drain.
      These conclusions emerge in year-one assessments from, among other organizations, the respected nonpartisan human rights group Freedom House. The group's annual report, released this week [Jan. 16], paints a picture of democracy in serious crisis worldwide and endangered in the United States accompanied by a blistering critique of President Trump's policies.
      With democracy already in retreat, Freedom House blamed Trump for "the accelerating withdrawal of the United States from its historical commitment to promoting and supporting democracy." Far from promoting democracy, Trump has "expressed feelings of admiration and even personal friendship for some of the world's most loathsome strongmen and dictators" — Russia's Vladimir Putin and Filipino president Rodrigo Duterte by name.
      In the United States itself, Freedom House also found an accelerating decline in political rights and civil liberties based on a rare three-point drop from 89 to 86 in its scoring system within a single year. Trump was accused of using attacks on the media and the judiciary to threaten their legitimacy. The report cited the "pressure" on those institutions in listing the United States among 10 countries that face "turning points in their democratic trajectory" during the coming year.
      Domestic civil rights and civil liberties groups were even more dispirited in their one-year assessments. Sherilynn Ifill, president of the NAACP Legal Defense and Educational Fund, described Trump's first year as "an affront to civil rights." Ifill's article cited, among other policies, the Justice Department's reversals in key voting rights cases, including federal court challenges to Texas's voter ID law and Ohio's aggressive deregistration of inactive voters. With police and minority community relations tense in many cities, Ifill also noted Attorney General Jeff Sessions's decision to stop monitoring local police departments for violations of constitutional or civil rights.
      Trump's men at Justice, Sessions and Solicitor General Noel Francisco, also worked to diminish or challenge LGBT rights through the year, as detailed in a downcast report by the Boston-based Fenway Institute. The solicitor general's office argued in a critical Supreme Court case for giving some commercial businesses the right to discriminate against LGBT individuals based on religious or moral objections — for example, to same-sex weddings. The report also noted the administration's rescission of the Education Department policy that public schools allow transgender pupils to use bathrooms or locker room facilities based on their gender identity.
      Beyond these policy retreats, the administration has also contributed to increased religious, racial, and ethnic intolerance — most notably, in the federal court-blocked ban on travel to the United States by people from half a dozen predominantly Muslim countries. Trump has demonizied and denigrated immigrants from Mexico, Central America, and other "shithole countries." Worse, he has given aid and comfort to white supremacists by saying, after the violent confrontation with civil rights forces in Charlottesville, Va., that there were "good people on both sides."
      Trump's supporters and apologists answer this critique by pointing to his appointment of federal judges, including Supreme Court Justice Neil Gorsuch. But Gorsuch and the record first-year pace of judicial appointments bode ill for equal justice in the long term. None of the Trump judges shows much sympathy for the courts' role in protecting civil rights, and several have records of overt hostility to LGBT rights. At the Supreme Court, Gorsuch dissented from a decision to protect married lesbian couples' ability to list both women as parents on a child's birth certificate.
      Trump's defenders also cite the relatively good economic times as evidence of his success in office. But the job growth that Trump touts is actually the slowest since 2010 and wage growth has likewise been slow. In a setback for economic justice, the trillion-dollar tax cut that Trump pushed through the Republican-controlled Congress bestows most of its benefits on well-to-do taxpayers at the expense of future generations. The year-long fight over Obamacare may end with millions thrown off health insurance. Other deregulatory initiatives have reduced protections for workers, consumers, investors, and the environment.
      Meanwhile, the watchdog group Citizens for Ethics and Responsibility in Washington (CREW) labeled Trump's first year "the most unethical presidency" in U.S. history. Trump's very presence in the White House, with business interests undisclosed and undivested, amounts to an ongoing violation of the Constitution's Foreign and Domestic Emoluments Clauses, an issue that CREW is litigating in court. CREW's report notes the conflict of interest in Trump's 100-plus visits to Trump properties and the even more unsavory conflicts in the appointment of industry insiders to executive branch posts regulating their former industries.
      Trump has no interest in changing any of these policies, so the country will move again toward greatness only with a new president. Unfortunately, the two constitutional methods for removing him — the 25th Amendment or impeachment — lack political support even though most Americans disapprove of Trump's performance. A nation divided and diminished looks anxiously to the future with the very idea of America under severe stress as the Huckster in Chief makes empty promises to make America "great again." Fittingly, Trump's first year ends today [Jan. 20] with a partial government shutdown as the self-styled dealmaker balks at any bipartisan compromise to resolve the growing impasse between Republicans and Democrats on Capitol Hill.

Sunday, January 14, 2018

On Partisan Gerrymandering, Time's Up?

      Politicians have been making mischief out of legislative or congressional district maps for more than two centuries, ever since the early 19th century Massachusetts governor Elbridge Gerry unwittingly lent his name to the disreputable practice. But only now, two decades into the 21st century, has a federal court found, for the first time ever, an instance of partisan gerrymandering so blatantly political as to violate the Constitution, for that reason and no other.
      The Supreme Court first said that partisan gerrymandering might be unconstitutional as such in an inconclusive decision three decades ago, Davis v. Bandemere (1986). The justices and lower courts have struggled ever since with trying to find a manageable standard to define when political line drawing goes too far. The federal court that struck down North Carolina's congressional redistricting plan last week [Jan. 10] resolved that conundrum by boldly declaring it constitutionally unacceptable to draw lines to advantage one party or disadvantage another.
      The three-judge court's unanimous decision in Common Cause v. Rochco lifted the hopes of good-government groups that courts would finally a way to tame the beast of gerrymandering. Those hopes fell just one day later, however, with the decision by a fractured three-judge court in Agre v. Wolf [Jan. 11] to reject a similar challenge to congressional redistricting in Pennsylvania. The two cases have parallel facts: in both, Republican-controlled legislatures drew congressional districts with the undisguised intent — and the eventual effect — of imbalancing the states' congressional delegation in the GOP's favor.
      The dueling decisions underscore the Supreme Court's critical role, with two other cases already under review this term, in deciding whether courts can and should tell politicians that time's up for partisan gerrymandering. The two cases, Gill v. Whitford and Benisek v. Lamone, show that both major parties play the  game when they can. Wisconsin's Republican-controlled legislature drew legislative maps in 2011 to help the GOP win a lopsided majority in the state assembly, while Maryland's Democratic-majority legislature drew congressional district lines to leave Republicans with only one of the state's eight seats in the U.S. House.
      The legal challenge brought by the good-government groups Common Cause and League of Women Voters along with named North Carolina voters was aided by Republicans' candor in explaining their motivation in drawing new congressional district lines. Thomas Hofeller, the redistricting consultant hired by the North Carolina Republicans, candidly testified that he drew the lines "to minimize the number of districts in which Democrats would have an opportunity to elect a Democratic candidate.”
      Of the two decisions last week, Judge James Wynn's 191-page opinion in the North Carolina case is the more carefully reasoned and more carefully documented. North Carolina Republicans predictably denounced Wynn as an activist Democrat, but Wynn was appointed to his position on the Fourth U.S. Circuit Court of Appeals by President Obama with bipartisan support from the state's two senators, Democrat Kay Hagen and Republican Richard Burr. He had previously served 26 years as a Navy lawyer and 10 years on North Carolina appellate courts.
      Wynn deftly answered Justice Anthony M. Kennedy's pivotal opinion in an earlier decision, Vieth v. Jubelirer (2004), where four conservative justices voted to bar political gerrymandering challenges altogether. Kennedy joined in the 5-4 decision to reject the challenge to Pennsylvania's congressional redistricting, but left the door open to future cases while all but begging for "clear, manageable and politically neutral standards" to apply to partisan gerrymandering.
      In Wynn's analysis, no "constitutionally cognizable interest" is served by district lines that are drawn for partisan reasons and durably produce the intended partisan effect. On that basis, he concluded, "a judicially manageable framework for evaluating partisan gerrymandering claims need not distinguish an 'acceptable' level of partisan gerrymandering from 'excessive' partisan gerrymandering."
      Wynn's opinion was unanimous for the most part, joined by two district court judges from North Carolina: William Britt, appointed by President Jimmy Carter, and William Osteen, appointed by President George W. Bush. Wynn concluded that North Carolina's redistricting violated voters' equal protection rights and political rights under the First Amendment and also went beyond the state legislature's authority under the clause in the U.S. Constitution giving states authority to "regulate" congressional elections. In a partial dissent, Osteen disagreed only on the First Amendment claim, which he said would bar any consideration of political affiliation in redistricting.
      The ruling in the Pennsylvania case was written by Judge D. Brooks Smith, who was appointed to the federal district court in Pittsburgh by President Ronald Reagan and  elevated to the Third U.S. Circuit Court of Appeals by the second president Bush. In his 73-page opinion, Smith insisted on the need for the still absent manageable standard for judging gerrymandering cases and instead relegated any complaints about the practice to Congress or state legislatures.
      Smith's opinion might have held water 60 years ago, but not since the Supreme Court opened the door to reapportionment cases with its initial decision in Baker v. Carr (1962). The court came up with a manageable standard for those cases: "one person, one vote," with only minimal population variations between districts. In the same way, the Court over the past 25 years has settled on a less precise rule for use of race in drawing district lines: some but not too much.
      Neither of the other two judges joined Smith's opinion. Judge Patty Shwartz, an Obama appointee to the Third Circuit, concurred in rejecting the challenge only on the ground that the voters lacked standing to challenge the overall statewide map. Judge Michael Baylson, a Republican-appointed district court judge from Philadelphia, wrote a 148-page dissent that would have rejected the Pennsylvania map as an unconstitutional gerrymander based on evidence and legal grounds parallel to those given in Wynn's opinion in the North Carolina case.
      Baylson opened his dissent with a plaintive cry. Gerrymandering, he wrote, "is a wrong in search of a remedy." Political reform is not impossible: several states have moved toward independent commissions to draw legislative and congressional districts. But the United States inherited from the English common law the fundamental principle that for every wrong, there must be a remedy. The Supreme Court can provide a remedy and, because it can, it must. Gerrymandering: your time is up.

Sunday, January 7, 2018

Trump Plays Fast and Loose With 1st Amendment

      The staff assistant assigned to brief presidential candidate Donald Trump on the U.S. Constitution is reported to have gotten only as far as the Fourth Amendment before Trump's attention flagged, according to the account in the tell-all book Fire and Fury by journalist Michael Wolff. "I got as far as the Fourth Amendment," Sam Nunberg is quoted as saying, "before his finger is pulling down on his lip and his eyes are rolling back in his head."
      Apparently, Trump's attention was wandering even earlier. His actions as candidate and as president demonstrate that he lacks any understanding of the First Amendment —  at least, the prohibition against abridging the freedom of the press.
      The most recent evidence of Trump's ignorance of, or indifference toward, freedom of the press comes from his lawyer's letter [Jan. 3] threatening a lawsuit to try to ban Wollf's book. Charles Harder, the Beverly Hills lawyer in the lawsuit that put the gossip site Gawker out of business, warned the Henry Holt publishing house on Trump's behalf of a possible suit to prevent publication of the book because of allegedly libelous material about Trump.
      Harder had sent a similar cease-and-desist letter to ex-Trump aide Stephen Bannon the day before, threatening the fired White House adviser with legal action for allegedly violating a nondisclosure agreement signed before signing up with the Trump campaign. Bannon is quoted extensively in Wolff's book with sharp criticisms of the man he helped install in the Oval Office.
      Both letters, written presumably with Trump's knowledge and approval, play fast and loose with the First Amendment's protections for freedom of speech and freedom of the press. The enforceability of nondisclosure agreements is a recurrent and somewhat murky issue in employment and trade secret law. The judicial precedents against prior restraints, on the other hand, are well established and well known and leave no room for courts to ban a book or a newspaper story except in the most extraordinary circumstances.
      Legal journalist Colin Kalmbacher summarized the major decisions in commentary published on Dan Abrams' legal news site Law and Crime. Recapping from Media Law 101, Kalmbacher recalled that the Supreme Court first extended the First Amendment to state governments in a decision, Near v. Minnesota (1931), that struck down a local ordinance prohibiting the publication of a "malicious, scandalous, or defamatory newspaper."
      Trump's displeasure with Wolff's book parallels the history in Near. The case originated with an effort by Minneapolis officials in 1927 to invoke what was called the "Minnesota Gag Law" to shut down The Saturday Press, a muckraking rag published by the openly anti-Semitic J.M. Near. The local judge issued an order ordering the newspaper to suspend publication, an order that the Minnesota Supreme Court upheld.
      As a First Amendment hero, Near falls far short of the ideal, but the U.S. Supreme Court's decision in his favor is a landmark in First Amendment law and a shield for all who claim its protections against government censorship. Writing for the 5-4 majority, Chief Justice Charles Evans Hughes said that the First Amendment allows a court-imposed prior restraint only if the publication would reveal critical military information, amount to obscenity, or directly incite violence.
      Kalmbacher noted a second precedent: the 9-0 decision in Nebraska Press Ass'n v. Stuart (1976) that threw out a judge's order prohibiting coverage of a high-profile murder trial. Oddly, Kalmbacher skipped over the more applicable precedent five years earlier in the Pentagon Papers case. The 6-3 decision in New York Times v. United States (1971) rejected the Nixon administration's effort to prevent the Times and the Washington Post from publishing excerpts of the classified study of Vietnam War policymaking.
      Those precedents leave no room whatsoever for Trump or his lawyer to block publication of Wolff's book even if the still unspecified defamatory statements meet the stringent "actual malice" standard of the earlier precedent, New York Times v. Sullivan (1964). In any event, the publishing house responded not by cowering in fear, but by moving the book's publication date up to Friday [Jan. 5].
      Charles Tobin, a Washington, D.C., lawyer who represents media interests, similarly doubted Trump's ability to silence Bannon under the supposed nondisclosure agreement. The case law establishes that a prior restraint is allowed only if "a government interest of the highest order" is at stake, Tobin explained. "The interest of a thin-skinned president" would not meet that standard, he reasoned.
      The legal basis for Harder's letters was so weak as to raise questions why he wrote them at all. The letters, Tobin suggested, "were more about public image and political grandstanding than legal merit." By week's end, Trump had sued neither Bannon nor Henry Holt. Several news stories noted Trump's penchant for threatening to file legal actions without ever actually filing them.
      Legal bluster may be part of the game for real estate developers or TV celebrities, but Trump is no longer private citizen. As president of the United States, he took an oath to "preserve, protect, and defend" the Constitution of the United States, including the First Amendment. Wolff's book summed up the views of many in Trump's circle that he was and remains unfit for the office. Day by day, tweet by tweet, Trump proves his critics to be right, whether they are inside or outside the White House.