THE TRUMP/VANCE ASSAULT ON EVERYONE'S BIRTHRIGHT CITIZENSHIP

 Donald Trump promises to sign an Executive Order on day one of his new term abolishing Birthright Citizenship. This will trigger litigation thar promises to land in Trump's Supreme Court for final adjudication, Assuming Trump prevails there, the GOP already introduced a Bill to abolish Birthright Citizenship legislatively. JD Vance co-sponsored that Bill. This amounts to an historically unprecedented assault on virtually every American's Citizenship. 

Under Birthright Citizenship proof of birth in the US, via a birth certificate for example, suffices to prove citizenship. The Fourteenth Amendment secures this clear and easy path to Citizenship for all Americans born here, and so operated over the last 156 years. 

With the abolition of Birthright Citizenship no American will qualify for Birthright citizenship without additional proof of parental citizenship. You read that correctly, nearly every voter will face new evidentiary burdens to prove citizenship. Under the GOP approach we will all need to prove the legitimacy of our parents' citizenship.

The Vance sponsored Constitutional Citizenship Clarification Act, introduced on June 5, 2024, purports on its face to totally and instantly abolish Birthright Citizenship.  According to one co-sponsor's website the Act will:

Amend the Immigration and Nationality Act to clarify that no child is eligible for birthright citizenship if their parents are unlawfully present in the United States, present in the U.S. for diplomatic purposes, or engaged in a hostile operation against the U.S.

Notably, the Act proposed by Vance includes no limitation on this "clarification" of who enjoys citizenship and who does not. The Act includes no limitation on retroactive effect and lacks any express limitation providing for prospective impact only. The Constitution only proscribes retroactive criminal sanctions The intent of the Act is to correct errors in prior interpretations of the scope of the Fourteenth Amendment. 

More broadly, the GOP assault on virtually everyone's citizenship seeks to maximize the power of the next Trump Administration to round-up citizens, as discussed in my prior blog post. As such, this amounts to the greatest power-grab of rights over American citizens in history.

 

Trump's Cruel and Racist Attack on All Immigrants: Operation Wetback II

No campaign promise will impose more mass oppression than the zero due process mass round-ups that Donald Trump touts at every rally. 

Former President Donald Trump and his running mate JD Vance continually promise an almost unimaginable assault on American (legally here or otherwise) workers if elected. They want to bring back Operation Wetback from the 1950s but at a much greater magnitude. These promises play a leading role in their campaign for the White House and make an appearance in each and every campaign rally. In fact, at one recent rally Trump promised a "bloody" round-up and removal operation. These round-ups also feature prominently in the GOP platform so the entire party supports mass round-ups.

The original Operation Wetback rounded-up American workers with no due process and summarily dropped them across the border into Mexico. Undocumented as well as legal workers suffered a militarized round-up across the nation. The operation even ensnared unknown numbers of US Citizens and broke-up families consisting of US Citizens and legal workers along with undocumented workers. It amounted to a terror campaign to get immigrants to self-deport. This brazenly racist effort serves as Trump's model.

Trump and Vance promise to round-up as many as 20 million American workers a million at a time. Vance would round-up legal and illegal immigrants alike. Like Eisenhower's approach, legality does not matter, only skin color, which explains the utter cruelty of its implementation.

The mass deportation program the Eisenhower Administration in the 1950s pursued is the closest and best historical corollary to such a proposal:

The only historical comparison to a mass deportation programme came in 1954, when as many as 1.3 million people were deported as part of Operation Wetback, named after a derogatory slur then commonly used against Mexican people. . . . The programme, under President Dwight Eisenhower, ran into considerable public opposition-partly because some US citizens were also deported - as well as a lack of funding. It was largely discontinued by 1955. Immigration experts say that the earlier operation's focus on Mexican nationals and lack of due process makes it incomparable to what a modern-day mass deportation programme would look like. 

President Trump, however, proposes a militarized and no due process round-up that likely would leave the 1950s program in the dust. In a Time magazine interview Trump said: "So if you look back into the 1950s, Dwight Eisenhower . . . was very big on illegal immigration not coming into our country. And he did a massive deportation of people." The former President assumes he can do the job with the National Guard, but Trump promises to use the military if necessary, claiming that no federal law prohibits the use of the military against non-civilians. Indeed, it appears that Trump will accord those ensnared in this military operation zero due process,, as he makes clear in this video, from his speech at the Conservative Political Action Conference (CPAC). He states: "We will pick them up and we will throw them out of our country and there will be no questions asked."

Trump will also not rule out the use of detention camps. Trump's top immigration advisor, the notoriously racist Stephen Miller, said: "Because of the logistical challenges…you would need to build an extremely large holding area for illegal immigrants that at any given points in time . . . could hold upwards of 50, 60, 70,000 illegal aliens while you are waiting to send them . . . somewhere that would be willing to accept them.” Presumably, citizens ensnared in these round-ups would hold some means of getting released.

Make no mistake, Trump promises cruel and brutal treatment for those rounded-up, otherwise why would he work so hard to dehumanize and demonize migrants? Alfonso Aguilar, of the American Principles Project's Latino Partnership, states: "The Eisenhower mass deportation policy was tragic, human rights were violated. People were removed to distant locations without food and water. There were many deaths, unnecessary deaths. Sometimes even U.S. citizens of Hispanic origin, of Mexican origin were removed. It was a travesty. It was terrible. Immigrants were humiliated." In her book Impossible Subjects, Mae Ngai writes that many Mexicans were deported by ship. A congressional investigation, according to the book, compared the conditions on the ship to that of an "eighteenth century slave ship."

Trump and his MAGA cult consistently dehumanize migrants and propagate the most heinous lies about them--calling them animals and wrongfully accusing them of eating pets. They do this to pave the way for unspeakable evil. This evil plotting constitutes the core of their campaign and features in every rally and every campaign event. Dehumanization and demonization is the way to get many people to engage in deeply immoral and evil misconduct.

Miller himself admits that much of this will occur pursuant to a "shock and awe blitz of Executive Orders" such that the slow-moving courts will not keep pace with the Trump plan. Miller promises that the next Trump Administration will not include those counseling compliance with law; instead, officials will prepare to move quickly on Day 1.“Trump will unleash the vast arsenal of federal powers to implement the most spectacular migration crackdown,” Miller led the Trump Administration's family separation policy which courts found unlawful but which still inflicted permanent cruelty upon children, many of whom remain separated from their families. As of mid-2024, Trump's policy of family separation still violates the law and about 1100 children still remain separated from their families despite a federal injunction to the contrary, and despite a Biden task force charged with repairing this manifest cruelty. 

Many of the barriers and guardrails that stopped Trump from pursuing unlawful conduct such as these round-ups are now weakened or simply gone. The judiciary includes many more Trump appointees compared to 2016. Trump now prepares for a second term with a greater focus on appointing compliant and obedient underlings. Indeed, he wants to eliminate the civil service. His lawyers already laid out arguments for the use of little used laws like the Alien Enemies Act

Worse yet this fast-moving mass round-up campaign will combine with Trump's promise to abolish birthright citizenship to create a perfect storm of lawless cruelty, which I will focus upon in my next post.

An Update on All of Trump's Crimes and Alleged Crimes

 On August 27, 2024, Special Prosecutor Jack Smith announced a Superseding Indictment Against Donald Trump arising from Trump's misconduct on January 6, 2021. The January 6 Insurrection already led to over 1400 indictments, 950 convictions, and landed over 600 protestors in jail. The Superseding Indictment seeks to restate the crimes alleged against former President Trump in light of the Supreme Court's novel and unprecedented decision in United States v. Trump granting Presidents a new-fangled immunity for official acts. In sum, according to the outstanding website January 6: And Why  it Matters:

While the core of the case remains unchanged with the four original charges intact, the revised indictment refines the scope of the accusations. Notably, it excludes certain claims, such as those involving attempts to use the Justice Department to support Trump’s false election fraud allegations.

This case will not go away absent an order to Jack Smith that he desist from prosecution. That will not happen unless Donald Trump assumes the Presidency. On the other hand, Trump will likely move to dismiss the Superseding Indictment and the trial judge could well partially grant that motion. Whatever remains of this case will very likely go to trial well after election day on November 5, 2024, and even if a jury convicts Trump litigation will continue about the scope of Presidential immunity leading to further Supreme Court review.

But what about the other criminal cases against Donald Trump?

In one criminal action brought in  Florida federal court, Special Counsel Jack Smith filed an appeal with the Eleventh Circuit Court of Appeals of the dismissal of all charges relating to Trump's alleged pilfering and mishandling of government documents including classified documents. Judge Aileen Cannon ruled that Smith's appointment as Special Prosecutor did not comply with law.  Special Counsel Smith just filed an appellate brief and Trump will file a response; but, this appeal will not conclude before the election and any decision will then face Supreme Court review. Consequently, the election could well decide this matter instead of a jury.

In another criminal action in New York state court, a jury Trump helped pick from his native state, unanimously found Trump guilty of all 34 felony counts alleged against him. Trump's guilt rested on evidence beyond a reasonable doubt. According to Politico:

On May 30, 2024, Trump became the first U.S. president to become a convicted felon. After a six-week trial . . . he was found guilty of falsifying business records in connection with a payoff to Stormy Daniels, a porn star who claimed she had a sexual encounter with him. By buying Daniels’ silence, the payoff avoided a possible sex scandal in the final weeks of the 2016 presidential campaign. Michael Cohen, Trump’s personal attorney and “fixer” at the time, sent the $130,000 hush-money payment to Daniels in October 2016, and then, while Trump was president, he reimbursed Cohen in a series of installments processed by Trump’s company. A unamimous 12-person jury found that Trump fraudulently disguised those installments as corporate legal expenses in violation of New York law.

In short, Trump defrauded voters in election 2016 by covering up his adulterous affair with a porn star. 

Currently, Judge Juan Merchan will rule on the impact of the Supreme Court's new-fangled immunity defense on September 16, 2024, and will sentence Trump for these felony convictions for these 34 felony convictions on September 18, 2024. Experts disagree on the likelihood of prison for these felonies.

Trump also faces felony charges in Georgia for alleged criminal efforts to change the outcome of election 2020 in Georgia. As stated at Politico:

Trump’s efforts to overturn his loss in the 2020 election were perhaps most aggressive in the state of Georgia. Multiple recounts confirmed that Joe Biden narrowly prevailed in the race for the state’s 16 electoral votes. But Trump and his allies spread lies about voter fraud, urged Georgia officials and state lawmakers to reverse Biden’s win and plotted to send fake electors to Washington. On Jan. 2, 2021, Trump called Georgia’s secretary of state, Brad Raffensperger, and urged him to “find” 11,780 votes — the number needed to overcome Biden’s victory. Fulton County District Attorney Fani Willis charged Trump and 18 of his allies for these efforts, alleging a wide-ranging criminal enterprise.

Essentially Trump refused to accept the reality of his defeat in Georgia and allegedly resorted to criminal measures to change the outcome. Trump filed an appeal arguing that District Attorney Fani Willis should be removed due to a a romantic relationship with a special prosecutor. Willis' team filed an appeal of a dismissal order of six counts of the indictment. Trump also filed a motion asserting Presidential Immunity. Consequently, this criminal action is hopelessly stalled and will not be resolved for years.

The above summary of the criminal actions pending against Trump suggests the following:

1)    Somewhere American law went wrong. The people no long hold sufficient confidence in the fairness and impartiality of our system of justice. Otherwise, Trump supporters would not so readily fall prey to the Big Lie that all these criminal proceedings arise from a vast Democratic and deep state conspiracy to get Trump. No evidence supports this Big Lie. We need to rebuild confidence in the American criminal justice system.

2)    The rule of law in America failed to hold President Trump accountable for the wrongdoing in connection with contesting the election of 2020, and especially the Insurrection of January 6, 2020. Many others sit in jail. Still more pleaded guilty. There is little doubt Trump led those efforts. He did so openly on television, and in recorded phone calls. Yet, Trump suffered no adverse legal consequences for his role. This failure of the rule of law must lead to reform. Citizens must view criminal justice as fair and non-partisan. It also needs to apply swiftly, even to the rich and powerful.

3)    We need enhanced legal education in primary and secondary schools as well as at the college level. The judicial power in the US is highly fragmented. The split starts with 51 differing sovereigns each with a largely independent judicial power. Yet, many apparently believe that Joe Biden or the Democratic Party holds the ability to influence the independent judicial branch across jurisdictions. This, despite a complete lack of evidence of any improper influence. We should certainly reinforce the independence of the judicial power while simultaneously increasing transparency and accountability. At the same time citizens require more education regarding the structure and protections already in place to maintain a fair and non-partisan criminal justice system.

4)    A Trump victory at the polls will destroy the quest for a fair and non-partisan criminal justice for decades to come, as he has promised to eliminate independence in criminal enforcement at the federal level and to use the system to exact retribution and revenge upon his political opponents. 

BIDEN V. TRUMP II: WHO IS GENERAL JOHN KELLY & WHY DOES HE CONDEMN TRUMP?

Donald Trump's longest serving and hand-picked Chief of Staff, Four Star Marine General John Kelley, recently confirmed that Trump called those serving in the military "suckers" and those making the ultimate sacrifice for our nation and our freedom "losers." These comments now confirmed through numerous sources prove Trump's unfitness for office. Some background:

During the June 27 debate Joe Biden stated directly to Trump's face:

I was recently . . . in France for D-Day, and I spoke . . .  about those heroes that died. I went to the . . . World War I cemetery he refused to go to. He was standing with his four-star general, and he told him – he said, I don’t want to go in there because they’re a bunch of losers and suckers. My son was not a loser. He was not a sucker. You’re the sucker. You’re the loser.

Donald Trump offered only lies in response--lies so brazen that his story borders on incoherent. First, Trump claimed it was a "made-up" quote and demanded that Biden apologize. But then he claimed he fired the general who confirmed the quote. In fact, Kelly stepped down amidst praise from Trump that he was a great guy and "very special." Apparently, Trump knows the quote was not made up.

In fact, Trump's own hand-picked Chief of Staff and four star Marine General John Kelly now confirms that the quote is accurate and that Donald Trump called our combat veterans "suckers" and our war dead "losers." (See above video). These quotes originally surfaced in an Atlantic. article in 2020. Trump promptly denied the statements. Kelly offers clear proof of more Trump lies.

We know Trump ran away from military service in Viet Nam claiming he suffered from bone spurs, proving his cowardice and his true attitude about military service--its for "suckers" and "losers."  Trump thinks he deserves immunity from serving his nation.

Trump's debate lies and disrespect for those willing to fight for our freedom makes him unfit for office and the GOP needs to find a new nominee for President.

DO NOT TRUST LYING TRUMP & THE GOP ON SOCIAL SECURITY AND MEDICARE

 On March 11, 2024, Donald Trump claimed that cutting Social Security and Medicare could help him cut the national debt tremendously. (See video above). On March 22, 2024, the House GOP announced cuts including a plan to raise the retirement age. This was the second straight year that the House GOP proposed a budget with deep Social Security and Medicare cuts. Trump started promising cuts to Social Security and Medicare in his second term before some audiences as early as January of 2020.  At a Fox News Town Hall in March of 2020, again promised to cut Social Security and Medicare.

All of this talk of cuts forms the prelude to last Thursday's debate which included a question about cuts to Social Security and Medicare. Biden gave a straight-forward answer saying that no cuts are necessary if we raise the Social Security tax to the same level for all. Currently, those making high incomes pay much lower rates than those making low incomes. As President Biden explained at the debate:

Right now, everybody making under $170,000 pays 6 percent of their income, of their paycheck, every single time they get a paycheck, [But] millionaires pay 1 percent – 1 percent. So . . . I would not raise the cost of Social Security for anybody under $400,000. After that, I begin to make the wealthy begin to pay their fair share, by increasing from 1 percent beyond, to be able to guarantee the program for life.

That provides a sensible and efficient means of securing Social Security. And, Biden never varies from that position.

Trump on the other hand, takes different positions with different audiences and covers the full spectrum of options. According to NBC News:

An NBC News examination found that Trump's views have zigzagged over the years — from calling Social Security a “Ponzi scheme” in 2000 to endorsing then-Rep. Paul Ryan’s plans to restructure Medicare in 2012 to positioning himself as the protector of those programs in 2016 to taking aim at some retirement spending in his White House budgets (which never became law).

Essentially we know Trump is lying because of his radically divergent positions over time. In fact, in 2016 he promised to preserve Social Security and Medicare, and then in his budgets he proposed cuts.

 In recent months, Trump opened the way for Social Security and Medicare cuts and refuses to disclaim the GOP plan to cut those programs as, shown above. Which brings us to the his debate comments in response to a question about entitlement cuts. While Biden gave a simple and clear statement of how he intends to save Social Security and Medicare, Trump attacked Biden's honesty and switched the topic to immigration, Russia, Ukraine, a mysterious laptop, the VA, and luxury hotels. Trump was incoherent. Remarkably, he never addressed his recent comments about Social Security and Medicare cuts, nor the GOP plan to cut Social Security and Medicare. Trump provided no explanation of his prior budget proposals including Social Security and Medicare cuts.  As stated in the Washington Post: "Protecting Social Security . . . was also a major theme of Trump’s 2016 campaign. His avowed stance, however, is at odds with Trump’s own record as president: Each of his White House budget proposals included cuts to Social Security and Medicare programs."

Trump has staked out so many positions on Social Security that no matter what he says he lies. The only thing we know for sure about Trump and entitlements is that despite campaign promises to the contrary he included Social Security and Medicare cuts in each of his annual budget proposals as President. Given the GOP commitment to cutting Social Security and Medicare a vote for any GOP candidate is a vote to slash your Social Security and Medicare benefits by about 30 percent. If Trump gets elected the GOP will have a clear path to gutting Social Security and Medicare as he promised to do in a second term in 2020, and regardless of any lies or gibberish he feeds the voters today. 

New York v. Donald J. Trump: the Triumph of the Rule of Law in America 2024?

Currently, the nation and perhaps the world struggles with the recent jury verdict against Donald Trump finding him guilty of 34 felony counts. Trump claims that the verdict proves Joe Biden uses the criminal justice system as a political tool intended to defeat his political opponents, in this case him. On the other hand, many take the position that the case demonstrates the triumph of the rule of law because it proves that even the most privileged and powerful of citizens must ultimately reckon with legal accountability. I opt for the conclusion that the case exemplifies a healthy rule of law operating to impose reasonable and predictable accountability and consequences for even the most powerful governing elites in American today for the following six reasons.

First, and foremost, the guilty verdict reflects the unanimous conclusion of 12 jurors, after careful deliberation and judicial instruction, empaneled pursuant to pre-announced New York Law. Donald Trump, like all criminal defendants, held the power to refuse a limited number of jurors without cause and to move to strike jurors for cause. The jurors hailed from Trump's former home state and the headquarters of the Trump Organization—New York. It is noteworthy that not a single juror dissented from the verdict and that they reached the verdict without any judicial cajoling through, for example, an Allen charge. The jury questioned the evidence and the instructions to assure they acted properly. They deliberated about 12 hours after spending five weeks listening to witness testimony and reviewing other evidence including extensive documents. Trump's high-powered legal team exercised their right to cross-examine witnesses, explain away evidence and submit their own exculpatory evidence. Despite these rights, the best legal team money could buy failed to raise any reasonable doubt with even one juror, on even one count, regarding Trump’s guilt.

Second, Manhattan District Attorney Alvin Bragg holds a well-earned reputation as a professional prosecutor who gets the job done and gets it done professionally. Recall that Bragg endured severe criticism for declining to prosecute Trump for tax fraud in 2022, prompting two prosecutors to resign. Bragg apparently found the case against Trump too risky to warrant pursuit. Instead, he meticulously built this case which proved bullet-proof. Bragg won his office through an election of local voters and does not work for Joe Biden or even the federal government. The man holds total legal independence from the Biden Administration and proved himself as a non-partisan prosecutor by letting Trump walk on other fraud charges in 2022. The fact that he sought a Grand Jury indictment against Trump on this case suggests that there was probable cause that Trump committed the crimes—a fact that the jury's verdict fully vindicates.

Third, Justice Juan Merchan presided over the entire Trump matter with appropriate judicial restraint. Given Trump’s contemptuous misconduct and constant threats of violence against the judge, his family, his staff and the jury, Merchan certainly held the power to imprison Trump for contempt. He held his fire and allowed the jury to do its job. Despite Fox “News” reports to the contrary, the evidence suggests the Judge ruled on objections and other procedural matters with judicious wisdom. He righteously rejected Trump’s efforts to dismiss the charges, as proven by the unanimous jury verdict on all counts. Again, Merchan, a New York state judge, holds total legal independence from the Biden Administration and, Trump and his team produced zero evidence that Biden even attempted to influence Merchan.

Fourth, Trump himself knew he faced an uphill battle once he decided not to testify and take the stand to declare his innocence. Due to Trump’s decision the jury never heard Trump deny the charges, claim innocence or explain the mountain of evidence against him in the form of witnesses, key documents, or the tape-recording directing Cohen to pay Daniels by check. In fact, there was no defense theory of the case. Trump would not exude credibility as a witness due to his history of fraud, and he would risk a finding of perjury if he claimed innocence under oath or if he simply made-up stories on the stand. In any event, many defendants face challenges testifying on their own behalf, but Trump made that call, not Joe Biden.

Fifth, after reviewing the jury instructions, I saw no error, in that the instructions fairly reflect governing law in New York. While some complain reasonably that the jury was not required to identify the precise crime that transforms misdemeanor falsification of records into a felony, there is Supreme Court authority in support of this. Juries typically do not need to identify with particularity (nor even agree upon a particular predicate crime) a predicate crime to a felony charge; here the crime Trump intended to further with false business records. The US Supreme Court might well make up some means of saving Donald Trump (see Trump v. United States and Trump v. Anderson). Justice Merchan, however, cannot read the minds of the conservative Court majority and it is not his job to predict ways the Supreme Court can throw lifelines to former President Trump. Merchan’s instructions reflect the law today and that is the goal of jury instructions, not to craft new innovations to save Trump.

Sixth, all the cries of conspiracy theory and a rigged justice system from Trump and his minions lack any evidentiary foundation. They produced zero evidence that Joe Biden masterminded this entire prosecution. The claim is facially absurd. Biden did not set up Trumps illicit and adulterous liaisons, Trump did. Biden did not meet with David Pecker to set up a scheme to hide Trump’s prior bad acts in the run-up to election 2016. Trump signed the checks reimbursing Cohen the hush money paid to Trump’s co-adulterers. Trump can only blame Trump for his 34 felony convictions.

In light of the above, I conclude that Donald Trump enjoyed all the due process the US Constitution accords criminal defendants. Of course, with his billions, Trump can afford the very best lawyers which most defendants cannot. As former President, Trump enjoys the right to argue before many justices he appointed which most defendants do not. From a rule of law perspective the case proves that even the richest and most politically powerful must answer for their crimes.

NEW LAW REVIEW ARTICLE: SFFA V. HARVARD AFFIRMED AFFIRMATIVE ACTION AND EXPANDED COGNITIVE DIVERSITY

 I just published a new law review article with the Seattle University Law Review entitled: Students for Fair Admissions: Affirming Affirmative Action and Shapeshifting Towards Cognitive Diversity? The article can be downloaded here: https://digitalcommons.law.seattleu.edu/sulr/vol47/iss4/7/. Here is the abstract:

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater institutional efficacy, including possible race-neutral alternatives. The programs also failed to break down stereotypes through the introduction of a critical mass to empower diverse voices. The programs thereby resembled prohibited quotas or racial balancing. As such, the programs at issue violated Grutter, which still governs race-based affirmative action in college admissions. More importantly, the Roberts court paved the way for more expansive diversity-based admissions programs by permitting institutions to value individual racial experiences, which authentically further an institution’s mission and interests. After SFFA, the use of race as a factor could well face time limits. Contrastingly, individualized racial experiences may benefit college applicants at institutions that embrace diversity in an authentic way without facing any time limitation. Further, institutions with distinct missions may value diversity in a race-conscious way but without any racial preference. In sum, the Roberts Court guides the use of race in college admissions toward a race-neutral, diversity-based paradigm such that institutions may still unlock the empirically proven benefits of cultural diversity with only de minimus interference from the courts. This approach rests upon a powerful policy basis that leads to superior innovation, macroeconomic outcomes, social cohesion and, therefore, superior national security for the United States. This approach thus could support a powerful interest convergence.

The article shows that Supreme Court did not overrule its prior affirmative action precedents, and in fact paved the way for universities to embrace cultural and cognitive diversity to enrich their educational missions. This is important because the case has been widely misconstrued.

My next article will extend the Court's holding to corporate DEI efforts and demonstrate that such efforts are not only remain lawful but also essential to rational human resources management.

The Supreme Court, Jack Smith, and the Death of the Rule of Law II

  

Today, the United States Supreme Court obliterated the Fourteenth Amendment, section 3, in Trump v. Anderson. The language of this section appears simple enough:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The Court held that: "the Constitution makes Congress, rather than the States, responsible for enforcing Section 3." More specifically, the Court held that only Congress may enforce the disqualification of section 3 and that states could only enforce the provision against state candidates for office and state officeholders. Otherwise the nation would face a risk of a patchwork of state outcomes. This, despite the fact that in 1868, shortly after the provision became law, the Governor of the State of Georgia disqualified a federal candidate for office. (See fn 3).

Further, if "only" Congress holds power to enforce section 3 then why did the drafters of the Amendment just insert an "only" in the section granting Congress power. The Court needs that "only" and it simply does not exist. Rather than apply the plain meaning the Court instead pretends there is an only when there is no such word. Section 5 plainly states: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." The Court did violence to the statute to protect Donald Trump.

Former Fourth Circuit Judge J. Michael Luttig, a prominent conservative jurist explains:

The Supreme Court did leave one last avenue for accountability under law that the Biden Administration or DOJ Special Counsel Jack Smith could use to disqualify Trump. 18 U.S.C. section 2383 provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

The Court cited this section with approval. It would provide a uniform federal solution. And, it arises from an exercise of Congressional power. Even this Court (which works overtime to protect Trump) would uphold such an action. 

Why did Jack Smith (or Attorney General Merrick Garland before him) fail to use this section against the obvious insurrectionist Donald Trump? Or, alternatively, why not bring such an action tomorrow morning? Colorado would provide a form indictment and a trial map, complete with comprehensive evidence?

So, the Court today shifted the spotlight to DOJ with today's SCOTUS ruling. Agreement or disagreement with the Court's opinion no longer matters. Many excellent arguments support the use of section 3 in precisely the manner of Colorado. All moot.

Why did DOJ fail (and continue to fail) to seek disqualification through a criminal action a criminal action? 

The most disturbing and vivid reality of all of this: law failed to hold Trump to account as an oath breaking insurrectionist despite many available pathways.

 

 

The Supreme Court & the Death of the Rule of Law

 The United States invented the Rule of Law through the fragmentation of sovereignty among 51 sovereign authorities each with three branches of government. It further protects individual rights from state and federal infringement. This effectively created a legal system that could all state actors to account before law. While still imperfect in many important ways, Donald Trump took a sledgehammer to the Rule of Law particularly since January 6, 2021.

Today in America the rule of law faces severe challenges and may well face a total sunset. If so, the Supreme Court of the United States played a central role as accomplice. Most notably, today granted review (certiorari) on the following question: Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. That question in the abstract may hold academic interest, but the answer lies in many disputes in the future over decades or even centuries. 

Prof. Laurence Tribe, a legendary Constitutional Law scholar, explains the effect of this action:

The Supreme Court effectively gives Trump the potential to now escape any accountability for his role in the insurrection of January 6, 2021. This order puts partisan politics above the Rule of Law. A very dark day for America.

Fascism Rising & the Burning of the Reichstag: February 27, 1933

 

Fascism means an extreme concentration of power in one person who thereby rises above the law. Such irrational power concentration always arises from lies, delusions and hatred--such as racism. It always leads to violence, bloodshed and war. From its origins in Italy after World War I through today as manifest in Donald Trump, and his comrades in arms, Vladimir Putin, Kim Jong Un and Xi Jinping, it always fails and leads to destruction and mass death. Human rights violations and oppression universally accompany fascism. Even a cursory review of history reveals that fascism entails pain, misery, and mass murder. Yet, fascism rises across the world and even in America. Tuesday, November 5, 2024, will determine whether fascism will march forward in the world or fail to overcome the freedom, prosperity and determination of the West. I will chronicle this contest here.

Along the way we will explore the history of fascism and its manifold failures. Fittingly,    today coincides with the 91st anniversary of the Burning of the Reichstag. This event launched Adolph Hitler toward totalitarian dictator. The next day the German President Paul von Hindenburg suspended civil liberties. Opposition to Nazis effectively became a crime. Today, controversy surrounds the Burning of the Reichstag. The new consensus in Berlin holds that the Nazis did it. In any event, it became a Big Lie that supported the onset of fascism in Germany. Things did not end well for the German people nor the wider world--over 8 million Germans perished.

Donald Trump already called for the suspension of the Constitution so that he may seize power. He promises to be a "dictator" on day one of his new administration. He claims power to override the Constitution via executive order--the first President to ever make such an outlandish claim. Trump will never concede defeat and acquiesce in the peaceful transition of power as he proved on January 6, 2020 when he led an insurrection rather than concede defeat. 

Trump proved he will never consent to the peaceful transition of power. Which is why his admission that he seeks to exercise dictatorial power on day one of his new administration should he win the election must be taken seriously:

It is hard to imagine a more clear and present danger to our Constitutional Republic than Trump's own admission that he seeks dictatorial power.

 

Tulsa Race Massacre Centennial Symposium

The Tulsa Law Review will host a special symposium issue of the law review as part of a commemoration of the 1921 Tulsa Race Massacre with a one-day live/hybrid event on May 21 and publication of the papers in September 2021.

During the Tulsa Race Massacre, which occurred May 31–June 1, 1921, a white mob attacked residents, homes and businesses in the predominantly Black Greenwood district of Tulsa, Oklahoma. The event remains one of the worst incidents of racial violence in U.S. history and one of the least-known; news reports were largely squelched, despite the fact that hundreds of people were believed to have been killed and thousands left homeless.

May 21 @ 9:00 am - 5:00 pm

Virtual Event Free: Register Here

This one-day conference will feature the work of law professors, artists, poets, Black Wall Street business owners and historians.

Suzette Malveaux, provost professor of civil rights law at the University of Colorado School of Law, will provide the keynote address. For six years, Malveaux served as pro bono counsel to the plaintiffs in Alexander v. State of Oklahoma, a suit filed against Tulsa by victims of the 1921 Tulsa Race Massacre. As part of a team of attorneys, she represented the victims before the federal courts, the Inter-American Commission on Human Rights (Organization of American States) and the U.S. House of Representatives.

Other featured law professors will include Keeva Terry of Howard University School of Law; andre cummings of the Bowen School of Law at the University of Arkansas at Little Rock; Amos Jones, executive director of the African American Trust for Historic Preservation; Angela Addae of the University of Oregon School of Law; and many others. Confirmed participants include Dwight Eaton, a descendant and owner of Black Wall Street Liquid Lounge; TU Professor Kristen Oertel, who will present a talk titled Black Indians, Red Dirt: A Brief History of African Americans in Indian and Oklahoma Territories, 1840–1907; and Professor DeWayne Dickens, who will present a talk titled Learning from Greenwood: When Voices Are Silenced.

Race and Policing in America - St. Thomas University Law Review Symposium

 

All times are Eastern.  

To register and attend by Zoom for free, click here.