Monday, June 4, 2018

Pardon Me, Mr. President -- The Sequel

President Trump's Assertion of Self-Pardon Has No Basis In Law

This morning the President tweeted that he has the "absolute right to PARDON" himself, citing "numerous legal scholars."

I don't think so. In November 2016 I posted on the pardon power. Here is the relevant portion of that post:
Although the pardon power is extremely broad, I do not see it extending to Presidents pardoning themselves. While the text of the Constitution does not expressly bar such a "self-pardon," and some have argued to the contrary (according to reports, Nixon considered pardoning himself), I believe that the better argument is that self-pardons are barred. Fundamentally, it is hard to believe that the Framers, with their checks and balances approach and a number of restrictions on self-dealing, intended that the President could pardon himself. It flies in the face of the logic and structure of the Constitution and the separation of powers. (By the way, English legal history up to the Founding era provides no help, because the Crown would not have needed to consider self-pardons based on the legal maxim "rex non potest peccare," which translates to "the king can do no wrong.") 
So, just for the sake of argument, let us assume that since the text is silent this means self-pardons are allowed. Do we then extend such reasoning -- that the President can use his extensive Executive powers to benefit himself -- to a whole host of other powers where a restriction is not expressly spelled out? For example, under the Appointments Clause, could the President appoint himself a Supreme Court Justice (or a judge of any federal court) and still be President? While not barred by the text, the answer logically must be of course not, for there then would be no separation of powers between the Executive and the Judiciary. Similarly, the President earns only what is set as his compensation, and cannot receive any other salary or compensation from the United States or any of the States. Would those who think a self-pardon is acceptable view this provision -- which states that the amount cannot be increased or decreased during the President's term but says nothing about who sets it or how it is to be paid -- as allowing the President to set his own salary, or pay himself directly from the Treasury without Congressional appropriation? I do not think so. Congress has to set the salary and appropriate the money for it pursuant to Article I's requirement that, "[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law. . .." (Indeed, in the First Session of Congress they did just that, with an annual salary of $25,000 payable quarterly out of the Treasury.) Finally, the entire notion of a self-pardon flies in the face of the legal maxim "nemo judex in sua causa," which translates to "no man shall be a judge in his own cause." 
Here is a link to the original post:  Pardon Me, Mr. President: The Presidential Pardon Power

Monday, January 8, 2018

"Freedom for the Thought That We Hate" -- Or What Freedom of Speech Really Means

The First Amendment Protects All Speech and Not Just What is Popular

It seems everywhere we turn these days there is anger and frustration being expressed against individuals or groups that are espousing words and ideas deemed by others somehow to be wrong, disrespectful, or hurtful. In other cases a mere failure to agree with a popular belief becomes the object of scorn. It is happening at football games when players take a knee during the Star Spangled Banner, on college campuses when speakers are shouted down or physically attacked, and in numerous other settings. 

The concept of freedom of speech in the United States has both normative and legal aspects. The normative aspect postulates that free speech is a critical tool for self-governance, as well as a way to promote individual liberty and freedom -- all concepts enshrined in our founding documents and given true meaning over the last several decades. The legal aspect, which developed relatively slowly in our history, is that courts will limit government efforts (of its own accord or to aid other citizens) to ban or suppress the content of speech or otherwise burden or punish expression, which includes the right not to speak.

My goal in writing this post is not to take sides on any specific issues but rather to share some thoughts about a framework for appreciating and understanding what I see as the true meaning of freedom of speech, its essential role in maintaining a free and open society, and why each of us needs to be concerned about the current assault on free speech -- regardless of which side you take on any given issue. 

As you read on, keep in mind the following questions. If the First Amendment was adopted only to protect views on which a majority of people agree, then why do we even need it? And, borrowing from Noam Chomsky, if you don't believe in freedom of speech for people and ideas you despise, do you really believe in it at all?

Sunday, August 27, 2017

The Last Resort: Eagles Sue the Hotel California for Trademark Infringement

Hotel in Mexico Alleged to be Profiting from Rock Classic

Well, I heard some people talkin' just the other day about the recent Classic East concert by 1970s music acts at Citi Field headlined by the Eagles (Steely Dan and Fleetwood Mac were among the others), one of the most successful bands ever based on album sales and tour receipts. They have sold over 100 million units, and a Billboard article suggests that "it is safe to assume that the Eagles have grossed over $1 billion and been seen by 10 million fans worldwide." 

You could say life's been good to the band members, but they have worked to establish the Eagles as a major success in the music industry over the past several decades. They view their success as hard earned, so it is no surprise that the band filed a trademark infringement lawsuit against the owners of a Mexican hotel named Hotel California, which just happens to be the title of the band's classic hit album and song. Both have been a huge part of the band's success; the song won the Grammy for Record of the Year (the album lost out to Fleetwood Mac's Rumours), and the album is number 18 on the list of all-time best selling albums as certified by the Recording Industry Association of America. 

The lawsuit was filed in May and is currently pending in federal court in the city of Los Angeles. So what is it really all about? The heart of the matter is whether the hotel is infringing the trademark rights that the Eagles claim to have in the words "Hotel California" as they relate to the sale of merchandise using those words. What it all comes down to is the question of whether they have the sole, legally enforceable right to commercially exploit the value that the iconic, signature song Hotel California brings to merchandise that the band claims it has been selling for a long time.

Sunday, July 2, 2017

The New York Times Flunks American History

Historical Facts and Dates Matter

Declaration of Independence
The New York Times has included with today’s edition an annotated copy of the U.S. Constitution. I certainly applaud broad dissemination of the Constitution, but I find it quite odd that the Times has chosen July 2, and a day that is part of the July 4th holiday weekend, as the day to distribute a document that was signed on September 17. (Check out my earlier post on this topic: "The Constitution Was Established On This Day In 1788".

This is the time of year when we celebrate the Declaration of Independence. John Adams believed that we would celebrate our independence today because it was on July 2, 1776 that the Continental Congress actually declared independence from Great Britain. In a letter to Abigail Adams from Philadelphia on July 3, he wrote that “[t]he Second Day of July 1776, will be the most memorable Epocha, in the History of America. I am apt to believe that it will be celebrated, by succeeding Generations, as the great anniversary Festival.” (Check out my earlier post on this topic: "Independence Day".) 

While Adams was off in his prediction, at least he was extremely close. The New York Times, not so much.

Maybe The New York Times plans on distributing a copy of the Declaration on September 17. Or maybe its editors just don't care about historical facts. For those of you who would like to look at a copy now, here is a link to a transcript of the Declaration: Declaration of IndependenceAnd for those of you who do not subscribe to The New York Times, here is a link to a transcript of the Constitution: Constitution.

As for The New York Times, here is a link to the questions that are used to naturalize new citizens; note that suggested answers are included as well: Civics (History and Government) Questions for the Naturalization Test

Wednesday, June 7, 2017

Justices Clear "Travel Ban" for Possible Early Arrival at Supreme Court

Court Could Quickly Decide to Hear Case on the Merits

Great Hall Leading to the Courtroom
The next few weeks may lead to a dramatic ending to what has so far been a fairly mundane Supreme Court term. Last Friday, the Court responded in rare fashion to the Administration’s request late Thursday night that it review the May 25th decision of the Fourth Circuit Court of Appeals upholding a nationwide injunction against President Trump’s revised “Travel Ban," formally known as Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13780). 

Rather than follow its normal process, the Court ordered that a response to the petition for certiorari (the formal name for seeking review) be filed on or before June 12th, which is quite an accelerated schedule and departure from practice; indeed, a response to a petition is only required in cases involving death sentences unless, as here, one is ordered by the Court. In addition, the Court ordered that respondents file that same day a response to the Administration's request for a stay of the Fourth Circuit’s decision pending the disposition of the certiorari petition. 

The normal process for deciding whether to review cases under certiorari jurisdiction is much longer, especially for cases seeking review late in the Court's term. The expectation was that the Court – which has broad discretion over which cases to accept for review – would not decide until its next term starting in October whether to accept the case; if it did, then the case would be briefed, argued, and decided by June 2018. It is also interesting to note that this case is at the preliminary injunction stage, which is atypical for Supreme Court review.