Trump promise to deny New York, Seattle and Portland federal funds is an empty threat, expert says

The Department of Justice on Monday designated New York City, Seattle and Portland, Ore., as jurisdictions that permit “anarchy, violence and destruction,” a distinction that the Trump administration hopes to use to strip those cities of federal funding. But legal experts say the policy may amount to little more than an empty political threat. The list of cities is a response to a Sept. 2 memorandum from the White House outlining a policy under which the Trump administration can decide to restrict federal grant funding. The memo states that violence and destruction have continued “unabated” in Portland, Seattle and New York due to failed leadership and disempowered police forces…The proposal to deny those three cities federal funding is vaguely similar to Trump’s attempt to withhold funds from so-called sanctuary cities, jurisdictions that limit cooperation with federal agencies in the enforcement of immigration law. Courts have issued mixed decisions on whether such an action is legal. But experts told Yahoo News this latest case is cut-and-dried, and say that Trump and Barr are applying arbitrary criteria to decide which cities the administration will deny funding. “It’s clear that only the Congress has the power of the purse,” Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News. “Congress sets the conditions on which grants to states and grants to municipalities can be given and must be given. And the president has to follow those rules.” Tribe said he would expect lower courts to come to this conclusion if Trump actually attempted to revoke federal funding. It’s unclear how exactly the administration plans to follow through. “I think it’s just bluster. It’s just talk,” Tribe said.

Some urge Democrats to expand the Supreme Court if they take power in 2021. Could they do that?

Democrats are furious over the push by President Donald Trump and Senate Republicans to move quickly on a Supreme Court nominee to replace the late Justice Ruth Bader Ginsburg. They vowed to consider options for how they might respond if a confirmation vote is held before the presidential election Nov. 3. Among the potential measures some advocated is the possibility of Democrats expanding the Supreme Court – an idea often referred to as court packing – if they win the White House and majorities in both houses of Congress. Supporters of such a move argue additional justices appointed during a Joe Biden administration would offset the conservative majority, which they said was unfairly established…Harvard Law Professor Mark Tushnet told USA TODAY the size of the court was changed for political reasons several times before 1869. Tushnet who sits on the advisory board of Take Back the Court – a group that advocates for expanding the number of Supreme Court justices as “the only strategy that rebalances the court after its 2016 theft.” Tushnet said Congress expanded the court during the Civil War “to make sure that there’d be a Republican majority on the court. And then, when Andrew Johnson became president, they reduced the size of the court so that he wouldn’t be able to appoint unsympathetic justices.” … Harvard Law Professor Laurence Tribe told USA TODAY that if Democrats expand the court for political reasons, they risk “an unending escalation” in which each party changes the size of the court when it has the political power to do so. Tribe denounced Republicans’ handling of Garland’s nomination and Ginsburg’s vacancy as “hypocrisy” and “unprincipled.” He said changing the court in retaliation is an “understandable impulse,” but in the long run, it could mean sacrificing “the idea of the Supreme Court as a stable institution, one of the few that can provide a kind of ballast for the ship of state.” “And the long run matters,” he said.  Tushnet acknowledged the risks but said Republicans forced Democrats to play “constitutional hardball.”  “If Republicans play hardball, it seems to me perfectly appropriate for Democrats to play hardball in response,” Tushnet said. “When one side plays hardball and the other doesn’t, that can erode democracy, too. And mostly, that’s what we’ve experienced in the United States already.”

Controlling the Narrative: Censorship Laws in the Gulf

On August 19, Kuwait’s Parliament amended the country’s press and publication law marking an easing of decades of tight government control over publishing. Kuwait has banned nearly 5,000 books in the last seven years, inviting scrutiny from international and local literary organizations. Gulf Arab states have spent billions of dollars to become literary beacons and cultural hubs, hosting one of the region’s largest book fairs and numerous cultural events. Yet their self-promotion and global outreach are contradicted by strict press and publication laws that regulate the cultural scene. This censorship raises substantial questions about the level of intellectual and cultural freedom in the Gulf…Bahrain revised its 1979 press law in 2002 under the new constitution. However, “the law still regulates all matters of publication and remains one of the most restrictive laws in the region and includes criminal penalties for publication-related offenses,” noted Salma Waheedi, a Bahraini attorney based in the United States and the associate director of the Law and Society in the Muslim World program at Harvard University. “Prohibited content is defined quite broadly and includes any material that offends Islam, national unity, or any state institution, among a much longer list of restrictions drafted broadly and can encompass a wide range of writings,” she added. A new law was drafted in 2019 that eases some penalties of the current law, including prison sentences, fines, and firing journalists. “Moreover, the law includes easing pre- and post-publication censorship, but also incorporates regulations that address online and electronic media and restrictions remain in place, justified on the grounds of security, social cohesion, and morality,” said Waheedi. Many Bahrainis wait for the book fair to find books that would be censored in other places, due to the practical challenge of the government checking thousands of books coming to the fair. Nonetheless, some “flagged” publishers, who often have political publications, do get their books banned, Waheedi added.

The Energy 202: An extra Trump Supreme Court justice may help cement his environmental rollbacks

A more conservative Supreme Court gives the Trump administration a greater chance of making its rollbacks of environmental rules last long after the president leaves office. The death of Justice Ruth Bader Ginsburg could have a profound effect on a number of legal challenges brought against President Trump and his deputies now winding their way through lower courts, legal experts say. Court challenges from blue states and green groups involving many issues — everything from whether Utah canyon land can be drilled, to whether oil companies can be held responsible for killing birds in spills, to  if the federal government can take aggressive action to curb climate change — could be impacted. And even if Trump is defeated in November, the loss of the late liberal icon on the court may also give Joe Biden trouble in implementing a plan to combat climate change. “A further tilt of the Court in the direction it is already going ― skeptical of regulation, unsympathetic to the idea that agencies should have some room to interpret their statutes broadly to solve new problems, and uninterested in reading statutes with their broader purpose in mind, certainly won’t help the cause of environmental protection,” said Jody Freeman, director of Harvard Law School’s environmental and energy law program…A Biden administration, along with Democrats in Congress, will need to craft new environmental laws and regulations extra carefully so as not to run afoul of a more conservative Supreme Court, Freeman said. “All of this underscores the need to use executive power smartly and strategically in a legally defensible way in tandem with passing new legislation on climate and energy policy,” she said.

How a Trump appointment could shape energy policy

A new Supreme Court appointment at the twilight of President Trump’s first term could shift how justices respond to regulatory challenges and dull Chief Justice John Roberts’ swing vote in cases with important energy and environmental consequences. And if Trump loses in November, it could complicate Biden administration efforts to address climate change and make it tougher to roll back Trump’s deregulatory agenda. Court watchers expect Trump’s nominee to replace Justice Ruth Bader Ginsburg, who died Friday at age 87, to fall ideologically to Roberts’ right. That could alter how the court handles administrative law, which governs federal agency actions and can be a key component of regulatory cases…The White House Council on Environmental Quality’s new implementing regulations for a foundational environmental law may also find their way to the Supreme Court. The rules are being challenged in part for allegedly diverging too far from the bedrock National Environmental Policy Act. Conservatives have long challenged how much courts should defer to agency interpretations of NEPA. While Roberts has shown an interest in limiting the scope of that deference — known as Chevron deference — a more conservative justice may want to do away with it entirely, said Jody Freeman, director of the Environmental and Energy Law Program at Harvard Law School. She noted that there has been a “certain instability” in recent major administrative law cases where a single vote could have tilted the outcome. “In many of these big cases, [Roberts] is like a surgeon, wielding the scalpel carefully to achieve his desired outcome, but also doing so carefully to limit collateral damage. He is not looking for upheaval,” said Freeman in an email. “A new conservative justice may not be as cautious or as concerned about ripple effects.” For example, the high court earlier this year also took aim at independent agencies when it struck down the structure of the Consumer Financial Protection Bureau. With an additional conservative vote, the court might have been persuaded to go further and find that all independent agencies are unconstitutional, said Freeman.

Justice Ruth Bader Ginsburg remembered by entire generations of lawyers

She entered Harvard Law School in 1956 as just one of a few women enrolled in a class of 500. A few years later, the woman who would one day sit on the US Supreme Court was famously rejected by dozens of New York City law firms because of her gender. But over the decades that followed, Ruth Bader Ginsburg built a remarkable career as a legal and cultural icon who used her intelligence and courage to fight fearlessly for social justice. And after her death was announced on Friday, entire generations of lawyers — women and men alike — grieved for a jurist whose legacy somehow transcended even the highest court in the nation. “Justice Ginsburg personified the best of what it meant to be a judge,” Harvard Law School Dean John F. Manning said in a statement. “She brought a deep intellectual and personal integrity to everything she did. Her powerful and unyielding commitment to the rule of law and to equal justice under law place her among the great Justices in the annals of the Court.” Martha Minow, a former dean of Harvard Law School, recalled Ginsburg’s impact on her own legal career. “I am one of countless people she directly encouraged and deeply inspired to use reason and argument in service of justice and humanity. Justice Ginsburg also showed that it is possible to build deep and meaningful friendships with people despite severe disagreements. At this time of deep social and political divisions, there is much to learn from her life and her commitments,” Minow said in a statement…Nancy Gertner, a retired US district court judge and a professor at Harvard Law School, said Ginsburg had inspired generations of women and wound up a reluctant pop culture icon while approaching the law as “a craftsperson who cared about the court’s precedents and was going to work within them.” “Ruth Ginsburg was more than just a brilliant scholar, and a liberal, which is what the press reduced her to,” Gertner said by phone. “She essentially created the law of gender and race discrimination. From the time she was a lawyer, a litigator, she was raising issues about the nuance of discrimination.”

The Trump administration is banning TikTok and WeChat as of today. Here’s what that means

President Donald Trump’s administration announced on Friday that it is going to restrict access to TikTok and WeChat, two Chinese-owned mobile apps, starting on Sunday — a move that, experts say, raises serious questions about the administration’s acceptance of free speech rights. “The only real change as of Sunday night will be [TikTok users] won’t have access to improved apps, updated apps, upgraded apps or maintenance,” Commerce Secretary Wilbur Ross claimed when speaking to the Fox Business Network. The new policy will ban both of the apps from American app stores and makes it illegal for American companies to process transactions for WeChat or host its internet traffic. The government will impose similar restrictions on TikTok as of Nov. 12 unless the company convinces the administration that its software does not present a national security risk…Trump has previously waged war against social media platforms that were politically threatening to himself. After Twitter attached a fact-check label to two of his tweets in May, Trump retaliated against the company by signing an executive order that could open the company up to litigation based on content posted by its users. Trump made it clear in the days before signing the executive order that he was doing this to social media platforms that supposedly “totally silence conservatives’ voices” and said that “we will strongly regulate, or close them down, before we can ever allow this to happen.” At the time he made those comments, Harvard Law professor Laurence Tribe told Salon by email that “the threat by Donald Trump to shut down social media platforms that he finds objectionable is a dangerous overreaction by a thin-skinned president. Any such move would be blatantly unconstitutional under the First Amendment. That doesn’t make the threat harmless, however, because the president has many ways in which he can hurt individual companies, and his threat to do so as a way of silencing dissent is likely to chill freedom of expression and will undermine constitutional democracy in the long run.”

Sedition Laws Are the Last Resort of Weak Governments

An article by Noah FeldmanAttorney General William Barr can’t seem to get out of the headlines. Maybe he doesn’t want to. Just this week, the Wall Street Journal reported that Barr suggested to federal prosecutors that they consider charging protesters with sedition — an archaic criminal charge that hasn’t been regularly used by federal authorities since the McCarthy era. Barr also reportedly mused about finding a way to prosecute Seattle Mayor Jenny Durkan for establishing a police-free protest zone in her city. Then, in a speech at Hillsdale College, Barr defended his penchant for overruling prosecutors, comparing them to children in a Montessori school. For any normal attorney general, this week’s controversies would have marked a crisis accompanied by demands that he resign and serious speculation that he would be forced to do so. Not so for Barr, who clearly enjoys President Donald Trump’s support. Barr, more than any attorney general in memory, is inserting himself into the business of criminal prosecution by proposing unorthodox strategies that serve the president’s political ends. Start with the sedition prosecution proposal. To my mind, it’s the most shocking of Barr’s statements. Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so. It’s the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is. Sedition prosecutions in the U.S. have a particularly shameful history. The 1798 Sedition Act was used in a nakedly partisan manner by John Adams’s Federalist administration to prosecute Republican newspaper editors. Dozens were jailed and fined. Although the law was never formally struck down by the courts, it has come to be a model of the kind of law that violates free speech.

Ginsburg Cleared Path to Include the Excluded

An article by Cass Sunstein: It was 1985, I think. The Federalist Society was hosting a conference in Washington on equality. I was a young professor, the token liberal on a panel, and its least distinguished member. The experience was brutal. Professor Paul Bator, a famous scholar who had been my teacher not long before, was on the panel, and at one point he whispered in my ear. “Just stop talking,” he said. “No one in the room wants to hear you.” Humiliated, I retreated to my hotel room. At about 9 p.m., the phone rang. The voice on the other line said: “Hi Cass, it’s Ruth Ginsburg. We haven’t met, but I wanted to say that you did a wonderful job. It was a tough panel and such a tough crowd — you were great!” We talked for a long time, about equality, the Constitution, rationality and respectful disagreement. I hadn’t done a wonderful job, not close, but she sensed my vulnerability and she wanted to help. That defined much of her life, as a person and as a justice. She was kind; she was also steely. She was serious; she also had a twinkle in her eye, and she was full of mischief. Two opinions help explain what she was all about. The first, decided in 1996, was United States v. Virginia, in which she wrote the Court’s historic opinion striking down the refusal of the Virginia Military Institute to admit women. She declared that the Constitution does not allow federal or state governments to deny women the “equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.” In defending its discriminatory practice, Virginia pointed to the differences between men and women. Ginsburg responded that those differences are “cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity.” They may not be invoked, she wrote, “to create or perpetuate the legal, social, and economic inferiority of women.”

Remove the natural born citizen clause from the Constitution. Let immigrants be president.

An article by Randall Kennedy and Ilya Somin: This presidential election season joins the last several in being attended by accusations that certain candidates are ineligible because of the requirement in Article II of the Constitution that the president be not only a citizen, but a “natural born” citizen. This time around, some have claimed that Sen. Kamala Harris is ineligible for the presidency because, though born in the United States, her parents were immigrants who had not become citizens by the time of her birth. We believe this claim is untenable. But the need to address the matter at all highlights why eligibility distinctions that turn on place of birth or status of parent ought to be abolished. That eligibility for our highest political office is conditioned by an invidious discrimination buried in the Constitution itself should be highly disturbing. In 2016, the targets were Republican candidates Ted Cruz (born in Canada to U.S.-citizen parents who had immigrated from Cuba) and Marco Rubio (also the son of Cuban immigrants). In 2008 and 2012, Barack Obama, was assailed by “birthers”who falsely claimed he was born outside the United States. Obama’s 2008 GOP opponent, John McCain, came under attack because he was born in what was then the Panama Canal Zone. Such episodes are all too likely to recur. In an increasingly diverse society, it will often be possible to claim tendentiously that some candidate or other is ineligible.