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Laurence Tribe

  • 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."

  • ‘We have lost a giant’: Ruth Bader Ginsburg (1933-2020)

    September 19, 2020

    U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87. “Justice Ginsburg personified the best of what it meant to be a judge. She brought a deep intellectual and personal integrity to everything she did,” said John F. Manning ’85, Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “... We have lost a giant.” ... “Very few individuals in history come close to the extraordinary and significant role played by Justice Ginsburg in the pursuit of justice before she joined the bench,” said former Harvard Law School Dean Martha Minow, the 300th Anniversary University Professor at Harvard. ... “The Constitution’s heart aches at Ruth Bader Ginsburg’s passing,” Laurence Tribe ’66, the Carl M. Loeb University Professor, Emeritus, at Harvard Law School. ... Harvard Law School Professor Daphna Renan, who served as a law clerk for Justice Ginsburg during the 2006-2007 term, said: “RBG was tenacious, unflappable, and deeply wise.

  • ‘We have lost a giant’: Ruth Bader Ginsburg (1933–2020)

    September 18, 2020

    U.S. Supreme Court Justice Ruth Bader Ginsburg ’56-58, whose lifelong fight for equal rights helped pave the way for women to take on high-profile roles in business, government, the military, and the Supreme Court, died on Sept. 18. She was 87.

  • Trump should be held accountable for any reckless endangerment at his rallies

    September 15, 2020

    If a president in the performance of his duties lies or intentionally holds back vital information, Americans can die. That was the main takeaway from the Pentagon Papers, which showed multiple presidents understood we were not winning and could not win the Vietnam War but continued sending troops. History almost certainly will find an even more clear-cut example of mendacity in President Trump’s decision to lie about the lethality of the novel coronavirus. We have his own words attesting to his knowledge of the virus’s deadly effects, his confession that he downplayed the threat and reliable estimates of the tens of thousands of Americans who could have been saved had he acted swiftly and responsibly. Trump was certainly carrying out his duties as president (however poorly), so he’s at no risk of criminal or civil liability. This was a moral failing. But what about activities that were specifically not official and were identified as campaign events outside his role as president? In June, Trump held a rally in Tulsa, at a time he knew the virus was airborne and deadly. He also recently held massive indoor rallies in Nevada and Arizona in which the audiences were tightly packed together and masks were not required...Constitutional expert Laurence Tribe explains, “I think Donald Trump’s deliberate exposure of people attending his rallies without masks and without social distancing, given all he has admitted on tape that he knows about how covid is transmitted and how deadly a virus it is, would qualify for state criminal prosecution.” Tribe dismisses arguments that Trump’s rallies are protected by the First Amendment by describing the events as more akin to “tossing firebombs into a crowded theater than merely shouting ‘Fire!’ when there is none and causing a deadly panic.” He adds, “Trump is literally creating a situation in which his audience of thousands ought to be running for the exits to minimize the risk that they will at least become spreaders of a deadly virus but will instead remain in place while Trump holds their attention long enough to make many of them sick. That’s civilly and criminally actionable as reckless endangerment, in my view.”

  • Oracle to partner with TikTok after Trump forces social media app to sell off US operations

    September 15, 2020

    Oracle, the California-based computer technology corporation, announced Monday that it will serve as a business partner, or "trusted technology provider," for the Chinese social media app TikTok. The ownership of TikTok has become politicized lately over unproven beliefs that the company shuttles private user information to the Chinese Communist Party, an assertion that President Trump appears to buy into and which administrative officials say motivated him to sign an executive order that would force TikTok to divest its assets in the United States and relinquish data it had gathered in the US. The news about Oracle partnering with TikTok broke shortly after Microsoft announced that it had been unable to close a deal to purchase the app's US operations...Neither Oracle nor TikTok elaborated on the nature of their arrangement, including whether or not it involves Oracle outright purchasing the company or striking some kind of partnership with them. Oracle itself has strong financial and legislative ties with two congressional Republicans close to the Trump administration, Sen. Steve Daines and Rep. Greg Gianforte, both from Montana. TikTok has faced fire from the Trump administration since July, when Secretary of State Mike Pompeo hinted that Trump was thinking of taking action against TikTok and declared that Americans should only use the short-form video app "if you want your private information in the hands of the Chinese Communist Party." Pompeo made these remarks shortly after TikTok users embarrassed the president by leading a successful campaign to reserve hundreds of thousands of tickets for a Trump rally in Tulsa, which caused the president's campaign to significantly overestimate their anticipated attendance and left most of the stadium empty... "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," Harvard Law professor Laurence Tribe told Salon by email at the time. "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."

  • Harbor from the Holocaust

    September 14, 2020

    Harbor from the Holocaust is the story of nearly 20,000 Jewish refugees fleeing Nazi-occupied Europe during World War II, to the Chinese port city of Shanghai. Explore the extraordinary relationship of these Jews and their adopted city of Shanghai, even through the bitter years of Japanese occupation 1937-1945 and the Chinese civil war that followed. Featuring Harvard professor Laurence Tribe.

  • Trump signs memo to defund ‘lawless’ cities but experts raise legality doubts

    September 4, 2020

    Donald Trump signed a memo on Wednesday that threatened to cut funding to Democratic-led cities that the administration has characterized as “lawless” and “anarchist jurisdictions”, using his office to launch an extraordinary – if legally ineffective – attack on his political opponents ahead of the November election. “My administration will not allow federal tax dollars to fund cities that allow themselves to deteriorate into lawless zones,” the memorandum reads. “It is imperative that the federal government review the use of federal funds by jurisdictions that permit anarchy, violence, and destruction in America’s cities.” The document compels William Barr, the attorney general, to develop a list of jurisdictions that “permitted violence and the destruction of property to persist and have refused to undertake reasonable measures to counteract these criminal activities” within the next fortnight. It also instructs Russell Vought, the White House budget director, to issue guidance in the next month on how federal agencies can restrict or disfavor “anarchist jurisdictions” in providing federal grants...Even if federal agencies are able to find justification to reduce funding to certain cities, perhaps via grants linked to law enforcement, any funding restrictions are unlikely to hold up to legal challenges, he added. “The president obviously has no power to pick and choose which cities to cut off from congressionally appropriated funding,” said Laurence Tribe, a constitutional law scholar at Harvard, and recently the co-author of To End a Presidency: The Power of Impeachment. Trump “has no defunding spigot. The power of the purse belongs to Congress, not the Executive. Donald Trump must have slept through high school civics,” Tribe said in an email.

  • Longtime Oregon Supreme Court justice and Eugene resident Hans Linde dies at age 96

    September 4, 2020

    Oregon law professor who rose to national prominence as an Oregon Supreme Court justice, died Monday. He was 96. Linde was regarded as a prolific legal scholar who made groundbreaking arguments in the role that state constitutions could play in protecting civil liberties. “Hans Linde was one of the giants of the American judiciary,” Harvard law professor Laurence Tribe said. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.” Linde became an associate law professor at UO in 1954, spent the next four years as a legislative assistant to Oregon Sen. Richard Neuberger and returned to the UO law school as a professor in 1959...Tribe, the Harvard law professor, said Linde's work to ensure civil liberties is as important today as ever. "In a time when the very survival of our constitutional republic is under threat," Tribe said, "work that he did decades ago is likely to come to the fore and provide a fertile resource for scholars, lawyers and judges struggling to save constitutionalism and the rule of law."

  • El Paso Looks To Send Border Wall Suit Straight To Justices

    September 3, 2020

    El Paso County, Texas, and an immigration advocacy group urged the U.S. Supreme Court on Wednesday to take up their challenge to President Donald Trump's diversion of billions in defense dollars to border wall construction before the Fifth Circuit weighs in. El Paso and the Border Network for Human Rights request to leapfrog over the Fifth Circuit contends that their challenge to the border wall transfers poses different legal questions than the ones the Sierra Club used to convince a California court to put a nationwide bar on the funding diversions. The Trump administration has asked the Supreme Court to review the California injunction order, which was upheld by the Ninth Circuit. But El Paso argued that the high court must hear all the border wall challenges at once to fully resolve the issue...Laurence H. Tribe, a Harvard University Law Professor and co-counsel for the plaintiffs, pointed out that the Supreme Court has allowed the government to skip the court of appeals and bring a case right to nation's justices. "[The Supreme Court] should certainly grant El Paso County's request to have the issues in its case heard now," he said in a statement. The Supreme Court granted two "cert before judgment" petitions over the Trump administration's rescission of the Deferred Action for Childhood Arrivals program at the request of the solicitor general, according to the instant petition...El Paso and the border group are represented by Kristy Parker, Justine Florence and Deana K. El-Mallawany of The Protect Democracy Project Inc., Richard Mancino and Shaimaa M. Hussein of Willkie Farr & Gallagher LLP, Anton Metlitsky, Bradley N. Garcia and Ephraim McDowell of O'Melveny & Myers LLP, Stuart Gerson of Epstein Becker Green, David Bookbinder of Niskanen Center and Laurence H. Tribe of Harvard Law School.

  • Hans A. Linde, Iconoclastic Legal Scholar, Dies at 96

    September 3, 2020

    Hans A. Linde, a prolific legal scholar who served on the Oregon Supreme Court and made groundbreaking arguments about the role that state constitutions can play in guarding civil liberties, died on Monday in Portland. He was 96. His death was confirmed by his son, David, the chief executive of the film and television production company Participant...In the early 1970s, as the U.S. Supreme Court grew more conservative following President Richard M. Nixon’s appointment of four justices, Justice Linde published articles urging lawyers to bring civil rights cases in state courts and to make arguments grounded in the provisions of state constitutions. Those provisions often offered protections beyond those guaranteed by the federal Bill of Rights, he wrote, and decisions made on purely state-law grounds are generally not subject to review by the U.S. Supreme Court “Much of the stuff that goes to the Supreme Court would never have to go there,” Justice Linde said in an interview with The New York Times in 1990, the year he retired from the bench, “if lawyers abandoned this notion that the federal courts are the big leagues and the state courts are the farm teams.” Lawyers listened. Many of the gay rights movement’s early judicial victories, for instance, were won in state courts...Indeed, Justice Linde’s scholarly and judicial work was wide-ranging and penetrating, touching on free expression, the death penalty, contracts, torts and criminal law. “Hans Linde was one of the giants of the American judiciary,” the Harvard law professor Laurence H. Tribe said by email. “His brilliant work both as a law professor, and for a little over a dozen years as a justice on Oregon’s highest court, addressed not just important issues of state law but also unsettled questions of federal constitutional law in a series of opinions, articles and books that were justly influential throughout the nation and ultimately the world.”

  • Congress should warn Trump’s lawbreakers that there will be consequences

    August 31, 2020

    With about two months to go until Election Day, President Trump has abandoned any pretense of following, let alone enforcing, the laws he has sworn to uphold. He directed government employees to assist him in putting on a political extravaganza at the White House. His secretary of state dialed in from Jerusalem for a purely political role as Trump’s cheerleader at the Republican National Convention, in violation of both the Hatch Act and his own departmental guidelines. Trump instructed his director of national intelligence to refuse to brief members of Congress in person on efforts to disrupt the 2020 election, a choice House Speaker Nancy Pelosi (D-Calif.) and House Intelligence Committee Chairman Rep. Adam B. Schiff (D-Calif.) declared “a shocking abdication of its lawful responsibility to keep the Congress currently informed, and a betrayal of the public’s right to know how foreign powers are trying to subvert our democracy.” And Postmaster General Louis DeJoy has instituted measures that have slowed the mail, even as more Americans will rely on the Postal Service to cast their ballots. The way to handle Trump is to beat him at the polls. But what about the aides who participate in illegal activities or block Congress from performing oversight? ... “It’s well past time for Congress to lose its subpoena inhibitions, now that the Roberts court has unanimously rejected the administration’s claims of absolute presidential immunity in a ringing reaffirmation of the principle that no executive official is above the law,” says constitutional scholar Laurence Tribe. “The White House participants who engaged in flagrant Hatch Act violations should all be held in contempt if they defy facially valid congressional subpoenas, and there’s no legitimate basis for the new administration to give such participants a bye just because the president personally isn’t covered by the Hatch Act.”