Category Archives: Constitution

First emoluments clause case gets a hearing in court

Our Twitter-troll-in-chief successfully manufactured a grand distraction of the media this past week by engaging in outrageus behavior with his “Gold Star family” scandal to stop them from reporting on subjects he does not want them to cover.

A subject the media failed to cover this past week while distracted by bright shiny objects was the first court hearing in one of the first emoluments clause cases filed against Donald Trump for his profiting off of his position as president.

Dahlia Lithwick reports, Would $1 Million in Hot Dogs Violate the Emoluments Clause?

In a federal courthouse in Manhattan on Wednesday morning, lawyers for the Department of Justice tried to persuade Federal District Judge George B. Daniels to toss the civil lawsuit accusing the president of violating the Constitution by accepting foreign money while in office. Perhaps the high point of the morning came when a Trump lawyer conceded that if the president were to accept $1 million in hot dogs purchased from an imaginary Trump hot dog business as a gift to sign a foreign treaty, he would probably run afoul of the most obscure constitutional provision you’ve never heard of. Metaphor, meet the president of the United States.

You may recall that back in November everyone was casting about trying to find a name for the phenomenon wherein a presidential candidate who promises to release his tax returns if elected and declines to do so, then promises to divest himself of his foreign business interests from which he would profit as president and fails to do so, and then stands next to a tower of empty folders and tells us ethics rules don’t apply to the White House and he doesn’t care if you’re mad about that. You may also recall that this was around the time the word emoluments became something other than that stuff you use to keep your skin smooth and supple.

The Foreign Emoluments Clause can be found in Article I, Section 9 of the U.S. Constitution, and it bars anyone holding an “office” from accepting presents or emoluments from “any King, Prince or Foreign State” without “the consent of Congress.” (The Constitution actually has three separate emoluments clauses, but only the foreign and domestic clauses came up in oral arguments on Wednesday.) In the simplest possible terms, the Emoluments Clause prohibits government officials from accepting gifts or payments from foreign governments. Here’s the sticky bit: We don’t have a lot of doctrine in this area because it’s never been litigated, chiefly because most presidents haven’t wanted to look like they were cashing in on the office with club fees, Chinese trademarks, and jacked-up hotel drink prices. But this president doesn’t care about any of that.

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Strike three for Trump’s Muslim travel ban

Last week, the U.S. Supreme Court dismissed and remanded to the 4th Circuit Court of Appeals the legal challenge to President Trump’s March 6 executive order, i.e., the “Muslim travel ban.”  The court gave instructions to dismiss the case as moot – that is, no longer a live controversy, because the part of the ban challenged expired during the pendency of the appeal. The justices did not act on Trump v. Hawaii, the challenge that it had agreed to review along with the Fourth Circuit case last June. The Hawaii case challenges a provision of the March 6 order that is still in effect, but will expire later this month (this means that the justices could also dismiss this case). Justices end 4th Circuit travel-ban challenge (SCOTUSblog).

The Trump administration issued a third iteration of its travel ban during the pendency of these appeals at the Supreme Court.

The third iteration of the Trump administration’s Muslim travel ban took strike three looking yesterday (it is baseball playoffs season) in the U.S. District Court for Hawaii, again. Federal judge blocks Trump’s third travel ban:

A federal judge on Tuesday largely blocked the Trump administration from implementing the latest version of the president’s controversial travel ban, setting up yet another legal showdown on the extent of the executive branch’s powers when it comes to setting immigration policy.

The decision from U.S. District Judge Derrick K. Watson in Hawaii is sure to be appealed, but for now, it means that the administration cannot restrict the entry of travelers from six of the eight countries that officials said were unable or unwilling to provide information that the United States wanted to vet the countries’ citizens.

The latest ban was set to go fully into effect in the early hours of Wednesday, barring various types of travelers from Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea and Venezuela. Watson’s order stops it, at least temporarily, with respect to all the countries except North Korea and Venezuela.

In a 40-page decision granting the state of Hawaii’s request for a temporary restraining order nationwide, Watson wrote that the latest ban “suffers from precisely the same maladies as its predecessor.”

Watson also wrote that the executive order “plainly discriminates based on nationality” in a way that is opposed to federal law and “the founding principles of this Nation.”

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President Trump sabotages ‘Obamacare,’ will blow up health care markets out of spite

President Donald Trump, who promised to repeal and replace “Obamacare” on day one in office — “it will be easy” — suffered humiliating deafeats after several failed attempts by Congress. For a man fixated on erasing any legacy of Barack Obama out of jealousy and spite, he has been stewing about ways he can sabotage “Obamacare,” and with it the health care of millions of Americans, outside of congressional action. It is purposeful, malicious and amoral.

The New York Times reports that, as I predicted, Trump has gone nuclear in House v. Price, ending the Cost Sharing Reduction subsidies (CSRs) to insurers for low income Americans. Trump to Scrap Critical Health Care Subsidies, Hitting Obamacare Again:

President Trump will scrap subsidies to health insurance companies that help pay out-of-pocket costs of low-income people, the White House said late Thursday. His plans were disclosed hours after the president ordered potentially sweeping changes in the nation’s insurance system, including sales of cheaper policies with fewer benefits and fewer protections for consumers.

The twin hits to the Affordable Care Act could unravel President Barack Obama’s signature domestic achievement, sending insurance premiums soaring and insurance companies fleeing from the health law’s online marketplaces. After Republicans failed to repeal the health law in Congress, Mr. Trump appears determined to dismantle it on his own.

Without the subsidies, insurance markets could quickly unravel. Insurers have said they will need much higher premiums and may pull out of the insurance exchanges created under the Affordable Care Act if the subsidies were cut off. Known as cost-sharing reduction payments, the subsidies were expected to total $9 billion in the coming year and nearly $100 billion in the coming decade.

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(Update) The madness of King Donald – a ‘containment policy’ will not work

Last Thursday, President Trump told Defense Secretary Jim Mattis and his top generals in a White House meeting that he wanted military options for North Korea at a “much faster pace.” Mattis urges military ‘to be ready’ with options on North Korea.

On Thursday evening, Trump with a group of military families and made a cryptic comment that this was “the calm before the storm.” What Did President Trump Mean by ‘Calm Before the Storm’?

President Trump was clearly looking to make some kind of news, but about what, exactly, was not clear.

* * *

Mr. Trump summoned reporters who were still at work to the State Dining Room, where he was throwing a dinner for military commanders and their spouses.

Gesturing to his guests, he said, “You guys know what this represents? Maybe it’s the calm before the storm.”

“What’s the storm?” asked one reporter.

“Could be the calm before the storm,” Mr. Trump repeated, stretching out the phrase, a sly smile playing across his face.

“From Iran?” ventured another reporter. “On ISIS? On what?”

“What storm, Mr. President?” asked a third journalist, a hint of impatience creeping into her voice.

When pressed to explain what he meant, Trump said: “You’ll find out.”

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This week in the GOP’s war on the civil rights of women and LGBTQ

The House on Tuesday approved a bill banning most abortions after 20 weeks of pregnancy, advancing a key GOP priority for the third time in the past four years — this time, with a supportive Republican president in the White House. The purpose of the bill is to create a direct legal challenge to Roe v. Wade, which provides for access to abortion in the first 24 weeks.  With Trump’s backing, House approves ban on abortion after 20 weeks of pregnancy:

The bill, known as the Pain-Capable Unborn Child Protection Act, is not expected to emerge from the Senate, where most Democrats and a handful of moderate Republicans can block its consideration. But antiabortion activists are calling President Trump’s endorsement of the bill a significant advance for their movement.

The White House said in a statement released Monday that the administration “strongly supports” the legislation “and applauds the House of Representatives for continuing its efforts to secure critical pro-life protections.”

The bill provides for abortions after 20 weeks gestation only when they are necessary to save the life of the mother or in cases of rape or incest. Under the bill, abortions performed during that period could be carried out “only in the manner which, in reasonable medical judgment, provides the best opportunity for the unborn child to survive” — note, not the life of the mother — and would require a second physician trained in neonatal resuscitation to be present.

How Arizona’s congressional delegation voted:

Stricter Abortion Ban: The House on Oct. 3 voted, 237-189, to outlaw abortions after 20 weeks of fertilization on the belief that the fetus can feel pain by then. This repudiates Roe v. Wade’s ruling that abortion is legal up to viability that occurs at about 24 weeks or later. A yes vote was to pass HR 36

Voting yes: Martha McSally, R-2, Paul Gosar, R-4, Andy Biggs, R-5, David Schweikert, R-6, Trent Franks, R-8

Voting no: Tom O’Halleran, D-1, Raul Grijalva, D-3, Ruben Gallego, D-7, Kyrsten Sinema, D-9

Women’s Health Exemption: The House on Oct. 3 defeated, 181-246, a bid by Democrats to add an overall woman’s health exemption to HR 36 to go with exemptions already in the bill in cases of incest or rape or to save the mother’s life. A yes vote was to permit abortions after 20 weeks if necessary to protect the mother’s health.

Voting Yes: O’Halleran, Grijalva, Gallego, Sinema

Voting No: McSally, Gosar, Biggs, Schweikert, Franks

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Amend the Constitution to reform the U.S. Senate

While the U.S. Supreme Court grapples with the question of ending partisan gerrymandering of House seats, little attention is paid to the truly undemocratic Senate where each state, regardless of population, has two senators, the result of the Connecticut Compromise between the large states which wanted equal representation in Congress based on population, and the smaller states that worried about losing autonomy to the larger states. The undemocratic nature of the Senate offended many of the framers but it was necessary in order to obtain ratification of the Constituion by the states. It was a compromise of political expediency that has long since outlived its purpose.

America has developed from a rural agrarian society in 1787 to an urban population overwhelmingly concentrated in large metropolitan cities. This has resulted in the United States now being a non-majoritarian democracy, in which small rural states weild a disproportionate share of political power over the majority living in more populous states.

Population Map

E.J. Dionne Jr., Norman J. Ornstein and Thomas E. Mann,the authors of “One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate, and the Not-Yet-Deported,” explain this dynamic in an op-ed today, Why the majority keeps losing on guns:

Why does our political system make it impossible even to consider solutions to gun violence? After the massacre in Las Vegas that has so far taken nearly 60 lives and left more than 500 injured, the first reaction of the many politicians who carry water for the gun lobby was to declare it “premature” to discuss measures to keep guns out of the wrong hands.

The “premature” word echoed from President Trump’s White House on down, and those who used it were really saying that Congress would never enact even modest efforts to prevent mass shootings. This is damning evidence of the stranglehold that far-right lobbies have on today’s Republicans, who extol law and order except when maintaining it requires confronting the National Rifle Association.

But something else is at work here. As we argue in our book, “One Nation After Trump,” the United States is now a non-majoritarian democracy. If that sounds like a contradiction in terms, that’s because it is. Claims that our republic is democratic are undermined by a system that vastly overrepresents the interests of rural areas and small states. This leaves the large share of Americans in metropolitan areas with limited influence over national policy. Nowhere is the imbalance more dramatic or destructive than on the issue of gun control.

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