Media Mentions

The Trump administration, in twin actions to curb environmental regulations, moved on Thursday to temporarily speed the construction of energy projects and to permanently weaken federal authority to issue stringent clean air and climate change rules. President Trump signed an executive order that calls on agencies to waive required environmental reviews of infrastructure projects to be built during the pandemic-driven economic crisis. At the same time, the Environmental Protection Agency has proposed a new rule that changes the way the agency uses cost-benefit analyses to enact Clean Air Act regulations, effectively limiting the strength of future air pollution controls...Environmental activists and lawyers questioned the legality of the move and accused the administration of using the coronavirus pandemic and national unrest to speed up actions that have been moving slowly through the regulatory process. “When it comes to trying to unravel this nations’ environmental protection laws, this administration never sleeps,” said Richard Lazarus, professor of environmental law at Harvard University...Mr. Lazarus, the Harvard professor, noted that the environmental policy act provides for federal agencies to consult with the White House on whether “emergency circumstances” make it necessary to waive requirements, but does not give power to waive environmental requirements. “The president’s assertion of authority to waive the application of environmental laws in the way described seems wholly untethered from law,” Mr. Lazarus said. Democratic leaders said the administration’s actions would be particularly harmful to communities of color.

An article by Cass Sunstein: What pushed former Defense Secretary James Mattis over the edge, to denounce President Donald Trump, in the strongest possible terms? Only the former general knows for sure, but a clue is provided by the title of his statement: “In Union There Is Strength.” Another clue is provided by the most important words in his text: “Donald Trump is the first president in my lifetime who does not try to unite the American people — does not even pretend to try. Instead he tries to divide us.” With those words, Mattis is signaling a national challenge that goes back to the founding era, that almost derailed the American project from the very start, that helped start the Civil War, and that has had to be managed with great care during every national crisis. Shortly after the American Revolution, the new nation was at grave risk of falling apart. To many people, diverse affiliations and identities made it difficult to speak of the “United States of America.” Under the Articles of Confederation, intense loyalty to states, and competition among states, seemed to outstrip loyalty to the nation. Prominent politicians fueled the divisions. The Constitution was designed to solve that problem. You can see what its framers had in mind if you look an early draft of the document.

An article by Joshua A. Geltzer, Neal K. Katyal, Jennifer Taub and Laurence H. Tribe: The Trump administration’s authoritarian behavior on the streets is being matched by its authoritarian positions in the federal courts. On Monday, as the administration used military force to push peaceful protesters out of Lafayette Square, administration lawyers filed an astonishing brief in the federal appeals court down the street, urging the court to order the trial judge to dismiss the case against Michael Flynn. The brief represents a remarkable new position by the Trump Justice Department: The doors of federal courthouses should be closed to hearing arguments other than those advanced by the department itself, and federal judges may not even inquire into whether the administration has acted improperly. When the Justice Department moved abruptly to drop the Flynn case — after he pleaded guilty (twice) and as he was awaiting sentencing — U.S. District Judge Emmet G. Sullivan took two steps. He appointed a “friend of the court” to argue the position that the Justice Department had suddenly abandoned; and he called a hearing to scrutinize the department’s about-face. The Justice Department told the appeals court that it should take the extraordinary step of intervening in the case — before Sullivan has ruled or even held a hearing — to stop him from doing so. “Simply put, the district court has no authority to reject the Executive’s conclusion,” the department said.

Advocates are calling on the U.S. District Court for Massachusetts to address the growing backlog of citizenship ceremonies created as a result of the coronavirus pandemic. The naturalization ceremonies, which include the citizenship oath, have been on hold since March. The citizenship oath is more than a symbolic gesture. It's the final legal step in the long process of becoming a naturalized U.S. citizen. These ceremonies, often conducted for hundreds of people at a time, have been stalled in light of the coronavirus — and the ever-evolving public health guidelines on social distancing. Sameer Ahmed, an attorney and clinical instructor with Harvard's Immigration and Refugee Clinical Program, estimates nearly 7,000 Massachusetts residents — and more than 100,000 people nationwide — are still waiting to take the citizenship oath. That wait is preventing people from accessing a host of benefits they're entitled to, along with the right to vote in local, state and federal elections. Ahmed said now, during a pandemic that's wreaking havoc on the global economy, eligibility for financial benefits is crucial. "Many are unable to apply for supplemental security income, unemployment benefits, they can't vote in elections," he said. "And many just want the sense of security and belonging of what it means to be an American."

The Boston office of the federal immigration agency that deals with the country’s naturalization process reopened today, 11 weeks after shutting down most in-person services due to the coronavirus pandemic. A spokesperson said that USCIS is following the Trump administration’s three-phase guidelines for reopening the country as well as Department of Homeland Security and health officials’ policies and social distancing safety guidelines. The agency said employees will continue to telework whenever possible. In-person services will be limited to things like getting a passport stamped or scheduling oath ceremonies. No new naturalization requests will be accepted for now. USCIS is charged with processing immigrant visa petitions, naturalization, green card, asylum, and refugee applications. It also makes adjudicative decisions on those applications and manages immigration benefits, including employment authorization...Project Citizenship, an organization that works with immigrants seeking to become citizens, and the Harvard Immigration and Refugee Clinical Program sent a letter today asking federal court judges in Boston to resume citizenship ceremonies. They said they’re concerned that the long wait has left some people ineligible to apply for benefits like unemployment, and has also prevented them voting. The organization is suggesting outdoor ceremonies, remote ceremonies, and even foregoing administration of the oath, with USCIS simply issuing naturalization certificates. “Our concern is that due to COVID-19 safety restrictions, USCIS will likely only be able to naturalize a handful of individuals at each ceremony, said Sameer Ahmed, clinical instructor at the Harvard program. “Given that the federal court previously held large-scale oath ceremonies for hundreds of individuals, we believe that the agency’s current effort will be unable to resolve the significant backlog in a timely manner.”

An article by Nancy Gertner: True to form, President Donald Trump appears poised to blunder into an area fraught with constitutional, not to mention human peril. He has threatened to deploy the United States military if “a city or state refuses to take actions that are necessary to defend the life and property of their residents,” to, as he says, “stop the rioting and looting.” There is an irony here. Trump was unwilling to deploy the considerable authority he had under the Defense Production Act of 1950 to do what needed to be done in the face of the pandemic, but is willing to deploy authority he may well not have — or should not exercise — in the face of protests and civil disorder. Trump refused to invoke the full power of the Defense Production Act, which would enable the government to direct private companies to ensure the procurement of vital equipment needed to fight the coronavirus pandemic. Governors and members of Congress pleaded for its invocation. He relented only to get General Motors to step up ventilator production and 3M to manufacture N-95 masks, but no further. It would be, he said, the equivalent of “nationalizing our business,” which we should not do. “Call a person over in Venezuela, ask them how did nationalization of their businesses work out? Not too well,” he said. But, of course, it’s OK to be Venezuela when Trump threatens federal military force to quell domestic disputes.

Minnesota Attorney General Keith Ellison today announced new criminal charges against the four former Minneapolis police officers who were involved in the May 25 death of George Floyd, an incident that set off protests across the country. Ellison upgraded an earlier charge against Derek Chauvin, who kneeled on Floyd's neck for nearly nine minutes while arresting him for passing a counterfeit $20 bill, and for the first time charged three other officers who were also at the scene, two of whom helped pin Floyd to the pavement. Local prosecutors previously charged Chauvin with third-degree murder, which is punishable by up to 25 years in prison, and second-degree manslaughter, which carries a penalty of up to 10 years. Ellison changed the first charge to second-degree murder, increasing the maximum sentence to 40 years...Ellison apparently agreed with Harvard law professor Laurence Tribe and Minnesota criminal attorney Albert Turner Goins, who argued that the third-degree murder charge against Chauvin was inappropriate. Minnesota law defines that offense as causing someone's death by "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life." Tribe and Goins noted that state courts have interpreted the statute as limiting the charge to "reckless or wanton acts…without special regard to their effect on any particular person." Instead they recommended the sort of second-degree murder charge that Ellison has now filed.

Noah Feldman, Harvard Law professor and Bloomberg Opinion columnist, discusses his column: "Can Trump Send In the Military? Probably, Yes." Hosted by Lisa Abramowicz and Paul Sweeney.

An article by Peter Brann and James Tierney: Last Friday, the partisan leadership at the U.S. Department of Justice in Washington claimed that it knew better than Gov. Mills what should be done in Maine in the COVID-19 pandemic. They argued to a federal court in Maine that Gov. Mills’ emergency order mandating a 14-day self-quarantine for out-of-state visitors was unconstitutional (which is rich irony, given that they have also argued in favor of banning altogether persons in affected countries from even entering the country to slow the virus’ spread). Later the same day, U.S. District Judge Lance Walker rebuffed their efforts, finding: “The governor’s executive orders are informed by a desire to preserve public health in the face of a pandemic. Striking down the quarantine order would seriously undermine her efforts and, based on the current record, would effectively disregard the balance of powers established by our federal system.” The decision is preliminary, and so there is little doubt that the Justice Department will press its arguments, safe in the knowledge that they will not have to suffer the consequences if our parents, children and neighbors are infected by asymptomatic out-of-staters coming to Maine. If today’s Justice Department had only considered its own prior actions, it would know better.

An Ohio federal judge overseeing sprawling opioid multidistrict litigation adopted the recommendation of a Harvard Law School professor that more information is needed before he can approve a request for a common benefit fund setting aside $3.3 billion in attorney fees. U.S. District Judge Dan Aaron Polster ordered more briefing Wednesday following a report from William B. Rubenstein, the professor who was brought in to assess the plaintiffs' request. The judge issued a set of questions based on the report to the plaintiffs and other interested parties. Rubenstein told the court in his report Wednesday that the MDL's "truly unique" structure and nature means the court should proceed cautiously, saying the request for a common benefit fund "tests uncharted waters." While a common benefit fund is usually put in place in anticipation of an aggregate settlement, at this point in the opioid MDL, it's unclear whether such a settlement is even feasible, what structure it would take, and which defendants will settle, Rubenstein said. In addition, there are numerous different types of suits in the MDL, some with many plaintiffs and some with few, and dozens of defendants involved in different aspects of the pharmaceutical chain, Rubenstein said. As such, smaller settlements that might be taxed to support the benefit fund could take very different forms, he said. "A single common benefit assessment levied on multiple different types of settlements involving many different types of plaintiffs and multiple defendants runs the risk of being too crude an approach," he said.

An article by Noah Feldman: At a hastily arranged Rose Garden press conference on Monday, President Donald Trump announced his intention to invoke the Insurrection Act of 1807 to send federal troops into the states unless governors were able to “dominate” protesters using National Guard soldiers. Then, after the Secret Service fired tear gas and rubber bullets at what appeared to be peaceful protesters in Lafayette Park, Trump walked a few hundred feet across the park for a photo op in front of a boarded-up church opposite the White House. Given Trump’s track record of announcing legally problematic measures and not implementing them, it could be that his plan to invoke the Insurrection Act is no more meaningful than was his walk in the park. Nevertheless, it’s worth looking closely at the law in question. The Posse Comitatus Act of 1878 might ring a faint bell in your mind — it’s the law that says the president can’t use the military to enforce the law without authorization from Congress. The Insurrection Act is even more obscure. But it’s also more important right now. That’s because it is an act of Congress that authorizes use of the military to enforce the law in some circumstances. In other words, it functions as an exception to the Posse Comitatus Act.

Even if you’re sitting at home on your couch, there’s a chance you could be arrested for protesting. How? If the police force in your area is using any kind of facial recognition software to identify protesters, it’s possible you could be misidentified as one. Most facial recognition was trained to identify white male faces, experts told Digital Trends, which means the probability of misidentification for anyone who is not white and not a man is much higher...A facial recognition system prone to false positives could cause innocent people to be arrested, according to Mutale Nkonde, a fellow at the Berkman Klein Center of Internet & Society at Harvard University and a non-resident fellow at the Digital Civil Society Lab at the Stanford Center on Philanthropy and Civil Society. “Police will use the mug shots of people who have been committed for other crimes to train facial recognition, arguing that if you’ve committed one crime, then you’ve committed another,” Nkonde said. “First off, that’s unconstitutional. Second, that means that if you’ve been arrested for looting in the past, but haven’t looted recently, the police could now come arrest you for looting in May or June because your picture is in the system and it may have turned up a false positive.”

An officer shoving a protester to the ground. Two New York Police Department cars ramming demonstrators. Police using batons, bicycles and car doors as weapons. These are becoming defining images of the protests against police brutality of black people that have swept the nation, sparked by the killing of George Floyd in Minneapolis. Countless videos of these moments have been shared on social media. Among the most-seen of them: a compilation video created on Saturday. Jordan Uhl, a political consultant and activist in Washington, D.C., wanted to make sure as many people saw these videos as possible. Encouraged by a friend, he edited together 14 clips, including one from a reporter at The New York Times of an officer accelerating and opening a car door that hit protesters...Mutale Nkonde, a fellow at the Berkman Klein Center for Internet and Society at Harvard University, said that Mr. Uhl’s video “really reinforces that black protests, white protests and all social justice protests generally are not violent in nature. It moves us away from the ‘there are bad people on both sides’ or ‘there are good people on both sides’ argument and really highlights law enforcement’s aggressive attitude toward black people displaying their rights.”

Several hundred new accounts and thousands of new tweets representing a surge in inauthentic social media activity have sprung up around the Black Lives Matter protests happening around the U.S. Specifically, 30%-49% of people tweeting about the protests might be bots at any given time, according to research by Kathleen Carley, a professor of computer science at Carnegie Mellon University. Over the last five days of May, Carley said, she saw 625,375 tweets and 413,900 users that qualified as suspected inauthentic activity. “About 30% of those tweets are guaranteed to be bots,” Carley told Digital Trends. “There’s another bunch that appear to be bot-like.” Carley also noted that the bots seemed to be spreading different narratives than the humans were...Oumou Ly, a staff fellow at the Harvard Berkman Klein Center, noted that most of the disinformation seems to be coming from the far-right. “The online information environment is very asymmetric,” she told Digital Trends. “The right participates more often and in a more sustained way in spreading disinformation because they have more to gain politically from it. It’s part of their political strategy.”

As coronavirus cases have spread, law firms across the nation have been stepping up to help, from providing pro bono legal assistance to fundraisers and donations. Law360 rounds up some of the latest charity efforts from the legal community in response to the pandemic. Clyde Bergstresser, a malpractice attorney at Boston-based boutique Bergstresser & Pollock PC, has launched a charity with the support of other attorneys in the community to raise money to support the frontline health care workers battling the coronavirus. Joining Bergstresser in the effort are his colleague Russell Pollock, Choate Hall & Stewart LLP partner Joan Lukey, Prince Lobel Tye LLP partner Walter Prince, Morgan Lewis & Bockius LLP partner Jonathan Albano, Smith Duggan Buell & Rufo LLP partner Christopher Duggan and former U.S. District Judge and current Harvard Law School lecturer Nancy Gertner.

President Trump on Monday vowed to send the military into American cities if any city or state “refuses” to take the steps necessary to quell the violent protests erupting around the country. The Insurrection Act of 1807 does give the president broad authority to deploy federal military forces to a state or to federalize a state’s national guard to deal with a rebellion or other domestic unrest that is preventing the enforcement of federal law — even over the objection of the state’s governor, legal scholars say. But governors and Democratic attorneys general around the country were quick to declare that the law does not apply to the current unrest, which has involved peaceful protests as well as looting and violence. They say that local law enforcement has not been overwhelmed...Some scholars agree with Healey that the Insurrection Act cannot be used in the current situation — but they don’t necessarily think that will stop Trump from using the law. Unlike in the school desegregation battles of the 1950s and 1960s, the states do not appear to be flouting federal law or federal court orders. “I would say that’s an unconstitutional use of the military because there is no real rebellion against the US,” said Laurence Tribe, a constitutional law professor at Harvard Law School. Treating ordinary American citizens engaged in civil protest as insurrectionists “turns the law upside down,” he said.

President Donald Trump, responding to sometimes-violent protests following the death of George Floyd at the hands of police, said he would send in the U.S. military to “quickly solve” the problems of looting and rioting if the nation’s mayors and governors did not act forcefully enough. The use of the armed forces within U.S. borders is strictly governed by federal law, however, and there would be serious questions about the legality of such a move...Would the law allow Trump to act alone in the current situation? Many legal experts believe it would. Noah Feldman, a Harvard University law professor and Bloomberg Opinion columnist, says the broad language of the Insurrection Act means Trump “might have a case” that the rioting and looting “is obstructing execution of federal law to the extent that local police and the National Guard can’t successfully stop violence on the streets.”

Sixty-five Harvard law professors have condemned President Trump's actions in response to protests over the killing of George Floyd. In a letter, the professors say the president's tweet saying "when the looting starts, the shooting starts," commits federal authority in a way that violates the law. Harvard law professor Christine Desan signed the letter and also denounced the president's threat to deploy the military to quell protests. "One message I hope the letter sends is to remind us all that the Army — and for that matter the police forces — are not his army," Desan said. "It's not Trump's army that he’s deploying. It’s our army, our military, and we have the right and responsibility to make sure that that military is used responsibly." The letter was addressed to Harvard law students.

An article by Cass Sunstein: With widespread grief and protests over the killing of George Floyd, the U.S. is badly in need of national leadership. Ideally, the president, or someone with a great deal of stature and trust, would provide it. In an analogous time, Robert F. Kennedy did exactly that, with what is generally considered one of the most moving speeches in U.S. history. Like the Gettysburg Address, which it resembles, it is elegiac — and short. And as with Lincoln’s great speech, every word rings true. But if you listen to it today, you would be right to feel some discomfort. For all its gentleness and sensitivity, it is missing something important: an acknowledgment of the past and present effects of white racism. The day was April 4, 1968. Kennedy was in Indianapolis, running for the Democratic nomination for president. Martin Luther King Jr. had just been killed. RFK announced King’s assassination to an audience that was largely African-American. People were worried about riots. Kennedy began simply: “Martin Luther King dedicated his life to love and to justice for his fellow human beings, and he died because of that effort.” He addressed the question of the proper response: “For those of you who are black — considering the evidence there evidently is that there were white people who were responsible — you can be filled with bitterness, with hatred, and a desire for revenge.”

A podcast by Noah Feldman: Jason Furman, a professor of the Practice of Economic Policy at the Harvard Kennedy School, explains why we don't need to be too concerned about the mounting federal debt caused by the coronavirus pandemic.

A letter from group of Harvard Law School faculty: We write to condemn a series of acts by President Trump and other public servants that endorse violence and are inconsistent with a democratic legal order. Their life-and-death impact is divisive and exacerbates political unrest and extreme economic distress, particularly in communities of color.  The injustices animating current protests go far beyond the President’s actions.  We focus on those actions here because they expose structural racism and our collective responsibility for change. On May 29, the President responded to protests in Minneapolis with a tweet that pledged federal control to the effect that “when the looting starts, the shooting starts.” The statement promised indiscriminate violence on its own terms. In addition, the phrase, famously uttered by a southern police chief who embraced police brutality during the Civil Rights Era, aligned U.S. military action with violent reprisals against protesters. Finally, as in the Civil Rights Era, the statement pledged violent state action against those who protest race-based injustices.