My new op-ed, at column syndicator Inside Sources, on why Trump’s “I was elected to represent the citizens of Pittsburgh, not Paris,” is a powerful slogan critics underestimate at their peril. On the objection that the city of Pittsburgh voted heavily against Donald Trump, I write, “it seems to me it is Trump’s speechwriters rather than his critics who are showing the sounder grasp of what ‘elected to represent’ means. It is not supposed to mean ‘elected by one faction of the country to advance its interests as distinct from the interests of the other faction.’ In fact, we specifically shouldn’t want presidents to feel that they have no responsibility to represent the interests and rights of voters or regions that went strongly against them.”
Probably not, says John Samples: “the fact that designated public forums may be non-physical, coupled with Trump’s status as President of the United States, is probably not a sufficient basis to deem his Twitter account a designated public forum. The courts have generally determined that designated public forums must be owned by the government in an official capacity, or used for official government communication….In effect, Trump’s becoming president does not nationalize the private Twitter account that he used before ascending to the nation’s highest office, and will likely continue to use when his tenure in the White House ends.” [Cato] More: Eugene Volokh (citing ruling on challenge about social media accounts used by officials in Fairfax County, Va.)
I’ve got an op-ed at the New York Daily News about President Trump’s executive order taking a few generally small and measured steps toward accommodation of and favorable legal treatment toward religious belief. Excerpt:
On Wednesday, social media was filled with outcry about the sweeping, “Handmaid’s Tale”-like provisions of the executive order on religious liberty President Trump was preparing to sign Thursday….
What the White House unveiled Wednesday night was far more modest. In fact, it dropped about 96% of the controversial stuff that had circulated in the January draft, including many provisions that in my view were misconceived …
There is also [in the tax section of the order] a cryptic reference to having agencies defer more broadly to speech rights beyond the context of the IRS and campaigns, which lawyers are likely to look at closely in coming days just in case it proves to be something big….
Significantly, according to advance reports, a White House official indicates that there are no plans for any additional executive order on LGBT discrimination issues.
Organized gay groups, committed to keeping their base in a constant state of alarm, will be reluctant to admit that this is a big win for their cause.
It is not clear whether a Thursday tweet from President Donald “Sue the Press” Trump should be interpreted as a serious policy proposal as distinct from an irritable gesture, but if its logic were pursued it might suggest that the chief executive favors extending defamation liability to coverage that is incomplete as opposed to untruthful and would have been fairer if it included points to be made on behalf of a covered personage. That’s not how defamation works under current First Amendment law, though [Jacob Sullum; earlier on Trump and libel]
On “Blue Lives Matter” sentence enhancement, floated as a national idea in one of President Donald Trump’s three executive orders last week on crime, the feds really have no business meddling when local legal systems are appropriately vigorous in prosecuting and punishing a category of offense, as is ordinarily true of injuries to police [Jonathan Blanks, Cato] More views on the executive orders: Tim Lynch/Cato, Harvey Silverglate via Anthony Fisher.
P.S. Some reasons conservatives who favor enhanced penalties for attacks on first responders should oppose using “hate crime” dodge to do so [John Bicknell/Washington Examiner, thanks for quote]
Cass Sunstein, who headed up regulatory review under President Obama, is favorably impressed with the attention to detail of a document that helped flesh out President Trump’s recent executive order on regulation. [Bloomberg] “Other countries have gone much further than Trump’s ‘two-for-one’ order, without any ill effect.” [Hans Bader, CEI; Ryan Bourne, Cato] For 2-for-1 deregulation to work, maybe agencies should get transferable reduction credits to sell to each other [Daniel Takash and Nick Zaiac, The Hill] “Regulatory Reform: A new approach for the Trump era” [Christopher DeMuth Sr., The Weekly Standard via Michael Greve]
More on the fast Trump pace on deregulation in this new Cato podcast in which Caleb Brown interviews Susan Dudley and Peter Van Doren:
My first piece for Quartz: why lawsuits over President Trump’s foreign business interests are likely to be more a nuisance than a knockout blow, even if his opponents identify potential violations of the Emoluments Clause. Excerpt:
Two aspects of the Clause in particular must be causing Trump’s lawyers angst: It’s worded as a no-fault provision, and it sets no minimum threshold. That means a present or emolument could tip the scales, even if it’s meant innocently on both sides and is very small. And the realities of an international hospitality and real estate business make for lots of possible triggers both large and small.
Even if Trump fails to comply with the Clause, however, the courts aren’t obliged to provide a broad remedy. A case that manages to get over the standing hurdle might result in a narrow ruling ordering the president’s business, say, to refund a single disputed payment. Before resorting to wider injunction powers, as groups like CREW urge, judges would need to consider what’s known as the political question doctrine under which the courts have chosen to say out of some issues they see as better suited for other branches of government—or for voters—to address.
At a meeting yesterday with President Donald Trump, sheriffs complained “that they were under pressure to ease the practice” of civil asset forfeiture, that is, seizing cars, houses, and bank accounts whether or not the owners had been convicted of any crime. Per Reuters, Trump “voiced disagreement with lawmakers who want to change asset forfeiture laws” and “said members of the U.S. Congress would ‘get beat up really badly by the voters’ if they interfered with law enforcement’s activities.”
One reason reform of civil asset forfeiture has made rapid progress lately in legislatures around the country, including my own state of Maryland, is that the public strongly disapproves of the current state of the law when it is explained. In December Cato released a polling study on criminal justice issues, led by my colleague Emily Ekins. Among its findings: “Fully 84% of Americans oppose the practice of police taking ‘a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.’ Only 16% approve.” The strong majority extends across all groups of respondents, including Republicans (76%) and those with a highly favorable attitude toward police (78%). Asked what should happen with the proceeds of seizures upon conviction, only 24% of the public favored letting local police departments keep the seized goods or cash, while 76% said it should go instead to state-level coffers. which would reduce the incentive for zealous seizure.
The same opinion survey found that 64% of the American public held a favorable view of their local police, a consensus extending across both parties and all major ideological groups. So if the survey is accurate, the American public supports police while opposing civil asset forfeiture. More: statement from Matt Miller, managing attorney of the Texas office of the Institute for Justice.
Even as progressives rediscover the separation of powers and other limitations on executive action these days, many conservatives as quickly forget them [Greg Weiner, Law and Liberty]
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” President Donald Trump tweeted on Saturday morning. It was one of a series of tweets assailing the temporary restraining order issued by a federal judge in Washington state momentarily barring enforcement of the President’s executive order on visas and border crossing. Wait till he gets to the so-called Ninth Circuit!
It is still unusual to encounter the epithet so-called in high official pronouncements, in the United States at least (Pravda used to be fond of tak nazyvayemyye back in the day). But we have come to expect Trump to break new ground in judicial disrespect following his attacks last year as a candidate on federal judge Gonzalo Curiel of the Southern District of California, who was presiding over the Trump University case. I wrote then:
…In his rambling remarks, Trump also referred to Judge Curiel as “Mexican”: the jurist, previously the chief federal prosecutor for drug cases in southern California, was born in Indiana. Stoking by repetition, as his crowd of thousands booed, Trump called the federal judge “a hater of Donald Trump, a hater. He’s a hater,” and said he should be placed under investigation by the court system. I wonder whether anyone will be shocked if the judge requests personal protection for himself and his family as the trial proceeds.
Obama’s 2010 State of the Union remarks railing at the Justices of the Supreme Court in their presence regarding Citizens United were bad. This is far worse: the case is still in progress, Trump is a party, and the attack is on a single judge who will now find his task of ensuring a fair trial complicated. Trump, who speaks regularly around the country, chose to unleash the diatribe in the locality where the judge and others who will participate in the case, such as jurors, work and live.
As I noted at the time, the norm of not personally attacking judges has been eroding for years, not only at the hands of President Barack Obama (who publicly scolded judges not only in his 2010 State of the Union speech but also repeatedly during the court review of ObamaCare, as Josh Blackman documents) but from influential opinion leaders as well. One might cite in particular the extraordinarily vicious interest-group-led campaigns against judicial nominees, currently being cranked up against Judge Neil Gorsuch of the Tenth Circuit but familiar from a dozen earlier nominee battles as well.
In the mean time, like his remarks on Judge Curiel, Trump’s comments on Judge Robart could complicate the efforts of his own lawyers in court: “Either they have to defend the statements that Judge Robart is a ‘so-called judge,’ which you can’t do, or they have to distance themselves from the president, who is their boss,” as University of Pittsburgh law professor Arthur Hellman put it.
And the problems get more serious from there. Writes William Baude: “to call him a ‘so-called’ judge is to hint that he is not really a judge, that he lacks judicial power. It is just a hint, but it flirts with a deadly serious issue.”
That issue arises from the difference between criticizing the quality of a judicial decision and criticizing the authority of the judge to issue it:
If the court has authority, then the parties are legally required to follow its judgment: even if it is wrong; even if it is very wrong; even if the President does not like it. But if the court does not have authority, then perhaps it can be defied. So the charge of a lack of authority is a much more serious one. It is the possible set-up to a decision to defy the courts — a decision that is unconstitutional if the court does indeed have authority to decide the case.