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Laurence Tribe

  • Roe v. Wade Might Be Overturned Soon — This Is Worse Than You Think

    October 20, 2020

    Angel Kai’s heart sank when she found out she was pregnant again. The 20-year-old had delivered her second child only three months prior...It turned out, though, that Angel couldn’t even afford the abortion she knew she wanted. Her health plan was offered under state-funded Medicaid, which, in Texas, only covers abortion in cases of life endangerment, rape, and incest...Before finding Fund Texas Choice, Angel had tried to get an ultrasound at a “crisis pregnancy center,” which is actually a coded name for an anti-abortion clinic. “They told me abortion is murder, and that I would go to hell if I had one,” Angel remembers now, a year later. “But I knew the abortion was the best thing for me to do.” Angel’s story could have looked very different. If she hadn’t learned about the fund, she may have not been able to get the abortion pill. Alternatively, if she lived in a different state, she may have been able to use her health insurance to pay for the abortion, at a clinic much closer to her house...The Supreme Court may get its chance to reconsider Roe v. Wade within the next year, according to multiple experts Refinery29 spoke to...And even if Roe is not overturned in one fell swoop, states could continue passing legislation that chips away at access bit by bit, and the Supreme Court could uphold those state laws, explains Laurence H. Tribe, university professor of constitutional law emeritus at Harvard. If Roe is dismantled, Sussman says that 25 million women of reproductive age live in a state where abortion would be banned. This is perhaps the most likely scenario: That a more conservative Supreme Court will first “hollow out” Roe until there’s almost nothing left. That could look like banning common procedures for abortion, such as Dilation and Evacuation, or even forbidding abortions after brain waves are detected, Tribe says. Right now, with the 17 abortion-related cases held up in federal appeals courts, the Supreme Court has what Tribe describes as a “menu” of cases, and they’ll get to pick and choose which to take. “They’re going to be looking for cases that will give them the maximum opportunity to do the most damage to Roe v. Wade,” Tribe says. “You've heard of death by a thousand cuts? That’s what may happen to Roe, after about a dozen decisions over the next three to four years.”

  • Is Social Security safe from the courts?

    October 16, 2020

    Much has been written about the threat Donald Trump’s Supreme Court nominee, Judge Amy Coney Barrett, poses to the right of women to control our own bodies. It is obvious that the rush to confirm her in time to hear the Republican effort to strike down the Affordable Care Act poses a threat to everyone with preexisting conditions. But is she also a threat to our Social Security? Acclaimed, nationally-recognized Constitutional law scholar, Harvard Law School Professor Laurence H. Tribe says yes, warning: “Don’t underestimate how much a Court remade in Trump’s image could dismantle. Even Social Security could be on the chopping block.” Similarly sounding the alarm is University of Florida chaired law professor and Harvard-trained Ph.D. economist Professor Neil H. Buchanan, who has written: “[O]ne of the most consequential results of Republicans’ theft of a Supreme Court seat could be to seriously undermine — or even declare unconstitutional — one or more of Social Security, Medicare, and Medicaid.” Coming from such knowledgeable sources, those are warnings all of us should take seriously. Because of Social Security’s overwhelming popularity among even self-described Tea Partiers, conservative politicians generally say that they love Social Security. But at candid moments, they make clear that they would like the courts to do what they have been seeking (so far unsuccessfully) to do sneakily, behind closed doorsand by “starving the beast”: End Social Security.

  • How a Biden White House can hold Trump accountable by holding itself back

    October 16, 2020

    An op-ed by Laurence Tribe and Joshua Geltzer: There are many ways a future presidential administration could pursue accountability for Trump-era transgressions. Inspectors general at a range of federal agencies, the Office of Government Ethics, investigators and prosecutors at the Justice Department, or even some new truth commission might each lay claim to some aspect of what is sure to be a considerable task. Here’s who should stay out of it: the White House. The next president will face intense pressure to meddle in the quest for accountability, and he may be tempted — for good reason. Accountability for the Trump years is essential. Under President Trump, the government’s political leaders have abused their powers and the public’s trust in appalling ways, including for personal profit, political benefit and even sheer indulgence. The next administration must not, for our democratic future, treat Trump as having simply made some foolish policy calls or adopted some lousy legal positions. Trump is something worse: a president who has exploited the country rather than serving it; whose behavior in office has been corrupt, improper, unethical and possibly criminal. We need to know how it happened so we can stop it from happening again. But the whole point of such work is to get beyond politics. Political differences on, say, health care, foreign policy and immigration account for the ordinary swings between administrations of different parties. The White House drives those changes, because they represent the campaign platform that got the new president elected, and because it frequently takes White House leadership, even pressure, to steer the federal bureaucracy in a new direction.

  • The Ad-Hoc Group of Activists and Academics Convening a “Real Facebook Oversight Board”

    October 15, 2020

    Two hours before Donald Trump boosted the standing of white supremacists at the last Presidential debate, Facebook told Rashad Robinson, the president of the civil-rights organization Color of Change, that it would not remove a potentially incendiary and racially tinged Trump-campaign post. The message in question showed the President’s eldest son, Donald Trump, Jr., calling upon “an army” of Trump supporters to show up at polls across the country, to “protect” the election. The Black community, Robinson would later say, saw the post as a “threat to our ability to express our will for a better future.” But the company, which has become a de-facto arbiter of political speech, interpreted the takedown request as a matter of semantics; Robinson said that it quibbled over the meaning of “army.” Robinson recounted the experience at the launch, over Zoom, of the Real Facebook Oversight Board, an international, ad-hoc cadre of activists and academics convened by the British investigative journalist Carole Cadwalladr... “Our group has come together for one purpose,” Shoshana Zuboff, a Harvard Business School professor emerita and the author of “The Age of Surveillance Capitalism,” said on the Zoom call. “We demand comprehensive action to insure that Facebook cannot be weaponized to undermine the vote.” Jonathan Greenblatt, the director of the Anti-Defamation League, which has been tracking hate groups for decades, observed that Facebook “actively and knowingly has facilitated the flow of poison into the population, and enabled waves of anti-Semitism and racism, Holocaust denialism and Islamophobic conspiracies, disinformation and extremism.” The Harvard Law School professor Laurence Tribe called his participation in the Real Facebook Oversight Board “probably the most important effort in my fifty-year career in the law.” The Real Facebook Oversight Board is a self-appointed proxy for the official Facebook Oversight Board, which was designed to function as a kind of independent appeals court, adjudicating various challenges to the company’s decisions on whether to remove content.

  • Fact-checking Biden’s claim that Barrett’s SCOTUS confirmation process is “not constitutional”

    October 14, 2020

    In the lead up to Monday's confirmation hearings to install Judge Amy Coney Barrett on the US Supreme Court, Democratic presidential candidate and former Vice President Joe Biden raised concerns that the efforts to put Barrett on the court are unconstitutional and exemplify court packing. "The only court packing going on right now, is going on with Republicans packing the court now," Biden told reporters on Saturday. "It is not constitutional what they are doing." Facts First: This is false. Legal experts say there is nothing strictly unconstitutional about Barrett's confirmation process...Asked about Biden's comments, the campaign referred CNN to Laurence Tribe, Professor of Constitutional Law at Harvard Law School. Reached by CNN, Tribe said McConnell's decision to hold a hearing for Barrett despite refusing to do so for Garland goes against the Constitution's founding principles, but acknowledged the Republican-led nomination effort does not violate any specific article of the Constitution. In defense of Biden's claim, campaign spokesman Andrew Bates also added that "The structure and principles of our Constitution stand against this divisive and extreme power grab that Donald Trump and Mitch McConnell are carrying out in order to undo life-saving protections for Americans suffering from preexisting conditions. Ramming through this nomination after millions of Americans have already voted is contemptuous of the essential democratic structure that is the bedrock of the Constitution." "Most of what the Constitution forbids is not written down," Tribe noted. According to Tribe, Barrett's nomination process taking place before the election avoids consent by the governed, misuses the Senate's power of advice and consent, and violates the commitment to honor and decency he believes the framers intended those chosen to serve the American people must uphold. "The sheer power to appoint a Supreme Court justice when you've got the votes is not in question," Tribe said. "The question is what principles apply."

  • Amy Barrett’s law review articles show how Supreme Court rulings like Roe v. Wade could be challenged

    October 13, 2020

    Amy Coney Barrett told a Jacksonville University audience in 2016 that the Supreme Court is unlikely to overturn a woman’s right to an abortion, the key holding of the landmark Roe v. Wade decision. However, Barrett has written law review articles that outline arguments attorneys theoretically could use in trying to strike down that ruling and other precedents, though the writings are analyses that don't urge specific action or say how she would decide specific cases. Among them: She cited legal experts who do not count Roe v. Wade among "superprecedents" – Supreme Court decisions that are so ingrained in American life that they can't be overturned. The potential for Barrett to join a 6-3 conservative majority that could erase the controversial 47-year-old ruling is expected to be one flashpoint during her Senate confirmation hearings scheduled to start Monday...If the Senate confirms Barrett's nomination, could she provide the legal impetus to overturn the ruling? Legal experts who have examined her writings and court decisions offer conflicting scenarios. "I don’t doubt that Judge Barrett would be more prepared to overturn significant Supreme Court precedents than anyone on the current Court other than perhaps Justice (Clarence) Thomas," said Laurence Tribe, a Harvard Law School expert on constitutional law who had a young Barack Obama as a law school researcher.  "Her writing on the subject is admirably candid even if shockingly unconservative," Tribe said. "She strongly believes that a Supreme Court justice who believes a prior decision, whether about the Constitution or about the meaning of an act of Congress, was wrong should feel free to overrule it without any substantial concern for the importance of stability and predictability in the Court’s jurisprudence."

  • Right-wing QAnon conspiracy theorists see their pages banned across all Facebook platforms

    October 8, 2020

    Facebook announced on Tuesday that it is banning QAnon content across its platforms, an action that it characterizes as part of a larger effort to stop "Militarized Social Movements" from recruiting people through their social media sites. "Starting today, we will remove any Facebook Pages, Groups and Instagram accounts representing QAnon, even if they contain no violent content," Facebook explained in a statement. "This is an update from the initial policy in August that removed Pages, Groups and Instagram accounts associated with QAnon when they discussed potential violence while imposing a series of restrictions to limit the reach of other Pages, Groups and Instagram accounts associated with the movement." ... While many conservatives have taken to social media platforms like Twitter to accuse Facebook of violating QAnon's free speech rights, legal experts agree that the First Amendment only prohibits the government and its leaders from censoring individuals who disagree with them, not private companies. As Rick Hasen, a law professor at the University of California–Irvine, told Salon in May when Trump threatened to retaliate against Twitter for fact-checking two of his tweets, a private company like Facebook and Twitter is "entitled to include or exclude people as it sees fit." (Ironically, any actions undertaken by Trump to punish social media platforms he regards as hostile, legal experts like Hasen and Harvard Law professor Laurence Tribe agreed, would actually violate the First Amendment.)

  • A new Electoral College nightmare: We may face a constitutional crisis if either candidate dies

    October 7, 2020

    Both of the two major parties' presidential candidates are septuagenarians; one of them, former Vice President Joe Biden, was recently in close proximity to a group of coronavirus-positive people, while the other, President Donald Trump, has contracted COVID-19 and is currently in the most crucial phase of infection. The two men's age, and their proximity to a disease that kills about 12% of those in their mid-70s and older, has prompted many outside observers and legal experts to be forced to confront the unthinkable: if President Donald Trump or former Vice President Joe Biden dies before Election Day — or after the election but before the Electoral College convenes — will America enter a constitutional crisis? ... Harvard Law professor Laurence Tribe, when asked what might happen if Donald Trump were to pass before Election Day, warned that things could get messy. "The likeliest outcome of the death you're imagining is that the Republican National Committee would convene in an emergency session," and, utilizing the best legal advice available to them, would "decide how best to accommodate their respective deadlines for qualifying candidates, or more precisely the electoral slates committed to particular candidates, for the presidential election to be held this November 3," Tribe said over email. This process would be complicated, of course, by the fact that millions of Americans have already voted by mail — and their ballots cannot be retroactively changed. To accommodate this, and since it would be "lunacy" to ask people to resubmit their ballots, "my hope would be that the state chapters of the RNC would all agree simply to revise the instructions given to the electors committed at that time to the Trump/Pence slate in each of those States so as to conform those instructions to whatever new ticket the RNC were to choose – say, [Vice President] Mike Pence and [former United Nations Ambassador] Nikki Haley." Yet according to Tribe, that might not be the end of the matter. He noted that some electors could declare that they are only legally bound to support a Trump-Pence ticket and, if they do not want Pence to be president, resign rather than be compelled to cast their ballot for him.

  • Amy Coney Barrett’s Judgment Day

    October 7, 2020

    Watching the footage now, you can almost see the virus particles swirling in the air, an ominous cloud sprinkling the Supreme Court nomination ceremony in the White House Rose Garden, as Judge Amy Coney Barrett stands behind the podium and in her Jennifer Coolidge-on-helium voice tells Donald Trump that she’s “deeply honored by the confidence you have placed in me.” There they were, a mostly white crowd of Republicans packed together, shank to flank,  hugging, kissing, handshaking, close talking, backslapping, thumbing their exposed noses at the CDC’s social distancing guidelines. The overwhelming majority of attendees declined to wear face masks, including the guest of honor, her husband, and their seven young children...But how about her judgment? It’s “quite bad,” says Laurence Tribe, a constitutional law scholar at Harvard. Over the course of the past week, Judge Barrett has demonstrated “the judgment of someone whose eagerness to please her benefactor trumps (no pun intended) her concern for the health and even survival of others.” ... “Those hearings should be canceled,” said Tribe. “The idea of rushing this confirmation through at breakneck speed to fill the lifetime vacancy created by Justice Ginsburg’s recent death now that the election of the next president is not just imminent but already underway is little short of insane, especially in the face of the pandemic and in light of how the [Merrick] Garlandnomination was handled.”

  • Retained by the People: The Ninth Amendment

    October 1, 2020

    It has been called a dead letter, an inkblot, the most important amendment in the Constitution. Although the Ninth Amendment was ratified in 1791, its history and purpose are contested to this day. It reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” But what does this mean? How have the courts interpreted it? What does it say about the role of government in protecting our rights? Three distinguished law professors, Laurence H. Tribe, Randy E. Barnett, and Michael W. McConnell, take on these questions and more in Retained by the People.

  • Could Trump steal the election? Here’s one way to find out.

    October 1, 2020

    The disastrous debate that unfolded in Ohio should prompt us to take the possibility that President Trump will try to steal the election far more seriously — even as it also renders that outcome much less likely to succeed. Trump exhorted his far-right army to mobilize for a sustained conflict over the election results. He refused to say whether he’d accept a legitimate loss. And he confirmed he’s expecting the Supreme Court to help invalidate countless legally cast ballots...The short version is this. At Amy Coney Barrett’s confirmation hearing, Democrats can press a line of questioning that might illuminate whether Trump can pull off one of his most-discussed means for rigging the election: getting a GOP state legislature to appoint substitute pro-Trump electors to the electoral college, regardless of the popular vote in that state...Could this work? To be clear, it shouldn’t. The Constitution does assign to each state the authority to “appoint” its electors, in a “manner” that the legislature “may direct.” But in a terrific piece, three legal scholars — Grace Brosofsky, Michael Dorf and Laurence Tribe — explain that precedent shows this means the legislature must “direct” how the state appoints its electors by making laws that create and define the process for doing so. Virtually all states have made laws that provide for electors to be appointed in accordance with the popular vote outcome in them. (Maine and Nebraska do this by congressional district.) Thus, those scholars argue, legislatures can’t appoint pro-Trump electors without making a new law providing for appointment of electors based on legislators’ own will, not that of the voters.

  • A High-Stakes Test for Joe Biden’s Love of Senate Tradition

    September 28, 2020

    Joseph R. Biden Jr. was trying to demonstrate the lasting power of the federal judiciary. So he did the math. Addressing a Michigan law school audience in April 1991, then-Senator Biden said that if trends in life expectancy held, a justice freshly confirmed around that time would “be making landmark decisions in the year 2020.” “I’ll be dead and gone, in all probability,” Mr. Biden told the crowd. He was half right: Nearly three decades later, the man whom the Senate confirmed that year, Justice Clarence Thomas, is still rendering decisions — the eldest jurist, if President Trump has his way, of a soon-to-be 6-to-3 conservative majority. But Mr. Biden is indeed alive, left to consider what the court’s emerging tilt would mean for the Democratic agenda if he wins the White House — and for his own attachment to the Capitol’s bygone harmony and mores. After a half-century in public life, with a lead role in several indelible confirmation dramas through the years, Mr. Biden could, if elected, be saddled with a Supreme Court primed to counteract his policy aims on health care, abortion and other defining issues. Many Democrats now believe that adding seats to the court is the urgent remedy, an extraordinary step that has not been seriously contemplated since the administration of Franklin D. Roosevelt. They argue that the court’s legitimacy has already eroded amid the Republican confirmation maneuvers of the last four years. Yet for Mr. Biden, a proud man of the Senate, such an effort would amount to the sort of norm-razing exercise that might strike him as an escalation too many...Laurence H. Tribe, the Harvard Law School professor who helped prepare Mr. Biden for the Bork hearings, said Mr. Biden had tended to resist pressure to subject nominees to explicit partisan screening, even after the process had grown more openly ideological. “I don’t think he ever came close to articulating a ‘Biden test’ for what’s acceptable,” Mr. Tribe said. But, he added, Mr. Biden was concerned about nominees who would lead to the court’s “being way out of kilter and out of sync with the country as a whole.”

  • There are very few rules dictating who can be a Supreme Court Justice. Here’s a look at the requirements

    September 28, 2020

    President Trump intends to nominate Amy Coney Barrett to fill Ruth Bader Ginsburg's Supreme Court seat. The nomination process has sparked some questions, and the Verify team exists to get those answers. QUESTION: Who is eligible to be nominated to the Supreme Court? Are there any restrictions? ANSWER: There is essentially only one restriction: A person impeached and convicted by Congress in a verdict that bars you from federal office. PROCESS: Questions about the Supreme Court nomination process have started popping up online since the passing of Justice Ruth Bader Ginsburg. We took this question to the experts: What are the qualifications for becoming a Supreme Court Justice? ...Our experts told us there is essentially one restriction that bars someone from being nominated to the Supreme Court — impeachment. Law Professor Laurence Tribe told us in an email that someone who is impeached and convicted by Congress in a verdict that bars that person from holding federal office in the future cannot be nominated to the Supreme Court.

  • This marks President Trump’s third Supreme Court pick in one term

    September 28, 2020

    Laurence Tribe, Harvard Law professor emeritus, and Ken Starr, former Independent Counsel, join 'Fox News Sunday.'

  • Ginsburg’s Death Fuels Push For Progressive Mass. Top Court

    September 25, 2020

    With the recent deaths of U.S. Supreme Court Justice Ruth Bader Ginsburg and Massachusetts Chief Justice Ralph D. Gants, legal experts say Bay State Gov. Charlie Baker faces added pressure to appoint progressive state justices to fill Justice Gants' seat and another vacancy to offset a rightward shift on the nation's highest court. Baker, a moderate Republican with high favorability ratings in deep-blue Massachusetts, was already in the process of filling one state Supreme Judicial Court position due to the impending retirement of Justice Barbara A. Lenk when Justice Gants died Sept. 14 at age 65 following a heart attack. Justice Gants' legacy includes a keen focus on individual liberties, criminal justice reform and access to justice. Bay State court watchers say replacing him with someone who shares similar values will be even more critical if President Donald Trump succeeds in appointing a conservative to the U.S. Supreme Court to replace Justice Ginsburg, who died Sept. 18. "It's crucial that Governor Baker reclaim the leadership role of the Commonwealth of Massachusetts in having a Supreme Judicial Court that leads rather than follows its sister states and the federal courts when it comes to protecting human rights and the dignity and equality of all residents of the Commonwealth," said Laurence Tribe, a professor of constitutional law at Harvard Law School, adding that Baker must find "a brilliant and progressive jurist" to replace Justice Gants. "Anything less would be an abdication of Baker's responsibility to be governor for the entire Commonwealth and not just a right-leaning fringe that might have provided at best a sliver of his support in the last general election," Tribe told Law360 in an email.

  • It’s not just Roe v Wade. Trump’s Supreme Court pick could challenge Brown v Board of Education

    September 24, 2020

    Justice Ruth Bader Ginsburg’s death leaves an opening in the court’s four-strong liberal bloc, which could be filled by Donald Trump and the Republican Senate majority. Democrats and women’s rights advocates are once again sounding the alarm about the damage that could be wrought by a 6-3 conservative majority in the Supreme Court. Partisanship and heated political rhetoric have accompanied nearly every Supreme Court confirmation since the Senate’s 1987 vote to reject Judge — and Watergate villain — Robert Bork, concealing what legal experts and political insiders say is a pattern of Trump nominees declining to support one of the highest court’s bedrock civil rights rulings. The Supreme Court first affirmed a woman’s right to terminate a pregnancy in the 1973 case Roe v. Wade. Ever since then, Republicans and their religious fundamentalist allies have made packing the judiciary with like-minded jurists a high priority. They have redoubled their efforts in the 18 years since George H W Bush appointee David Souter joined Justices Anthony Kennedy and Sandra Day O’Connor in upholding Roe’s “essential holding” in Planned Parenthood v. Casey...Another veteran observer of the judicial confirmation process, Harvard Law School Emeritus Professor Laurence Tribe, said the trend of judicial nominees refusing to endorse Brown is both unprecedented and troubling because of what it could signal about those jurists’ views on other significant constitutional questions. “No federal court nominee, other than these Trump nominees, in the 66 years since 1954 of whom I’m aware — and certainly none who was confirmed — has declined to endorse that landmark ruling as correctly decided,” Tribe said. “That Trump nominees have routinely done so is simply jaw-dropping, and it’s a short step from that refusal to an insistence on being agnostic about whether the Bill of Rights binds the states by virtue of the 14th Amendment or whether the Equal Protection Clause applies to women.”

  • Another conservative justice on the Supreme Court could mean big changes for abortion and affirmative action cases

    September 24, 2020

    This past summer, the fate of abortion rights in the country hung by a thread. The Supreme Court, which saw its socially moderate swing vote Anthony Kennedy retire in 2018, appeared poised to uphold a Louisiana law that sharply curtailed access to abortions — a decision that would likely set off a cascade of similar laws across the country. Instead, conservative Chief Justice John Roberts, who had voted in favor of allowing a similar measure in Texas just four years earlier, changed his mind. He joined the court’s four liberals to strike down the Louisiana law, citing the earlier precedent and giving abortion rights' activists a surprising victory — and temporary relief. That relief has turned to dread among liberals, now that President Trump, aided by a Senate Republican majority that has reversed its earlier position on election-year nominees, seems all but certain to replace one of those liberals, Ruth Bader Ginsburg, with a conservative stalwart he plans to announce on Saturday...A third Trump-appointed justice, both conservative and liberal legal scholars agree, puts Roe v. Wade fully on notice, capping decades of effort by antiabortion activists. “Nothing of significance would be left of Roe v. Wade, whether they expressly overturn it or crush it in two or three blows — it would be gone,” said Laurence Tribe, a liberal constitutional law scholar at Harvard Law School... “It would be the most right wing court in the history of the republic,” Tribe said. “Far more conservative even than the court that Roosevelt confronted when he came into power.” Democratic lawmakers have seized that argument, painting Trump’s appointment as a mortal threat to the Affordable Care Act, which faces a court challenge this fall that will be heard a week after the presidential election. Trump’s nominee could be confirmed and seated in time to hear the case...With Roberts no longer able to join four liberals and swing decisions, Democrats must now hope that Kavanaugh and Neil Gorsuch — Trump’s first court nominee — may become the new swing votes in high profile cases compared with justices Clarence Thomas and Samuel Alito, who have a longer track record of conservative rulings. It’s a sign of the entirely new context the court is entering. “We are confronting a world where Gorsuch and Kavanaugh will look like moderates,” Tribe said.

  • No hiding behind Pence’s skirt on the Supreme Court nomination

    September 24, 2020

    An article by Laurence TribeIn the coming weeks, certain Republican senators running for reelection will find it convenient to tell opponents of President Trump’s Supreme Court nomination that they bear no responsibility for the damage this rushed appointment will do to the Affordable Care Act, Roe v. Wade, and other court rulings their moderate supporters care about. They will say that even if they did join Senators Lisa Murkowski of Alaska and Susan Collins of Maine in voting against confirming a precedent-shattering nominee this close to the election, the vote would be 50-50 and Vice President Mike Pence would break the tie to put that nominee on the court. They are wrong. While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court. You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” Hamilton contrasted that rule with how appointments worked back then in his home state of New York, where the governor actually did have the power to break ties to confirm nominations to New York state offices. Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

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

    September 22, 2020

    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?

    September 22, 2020

    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."

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

    September 21, 2020

    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."