Tuesday, June 13, 2017
Three Court Cases Worth Noting
There are three separate court cases which are making news today, so I thought it’d be worthwhile to take a quick look at all of them, to see the potential impact they might have. The three cases are in very different stages of completion. One was just filed in federal court. One got a just got a ruling from the Ninth Circuit of Appeals. And one is about to be ruled on by the Supreme Court. So let’s take them one at a time.
Maryland and D.C. sue Trump
This is the case which was just filed today. The state of Maryland and the District of Columbia are suing President Trump for violating the Emoluments Clause of the Constitution. This case is interesting in a number of ways, and has the potential to have a big impact on Trump’s presidency almost irrespective of which side eventually wins in court.
Do Maryland and D.C. have the right to sue Trump? They think they do, and they have an interesting argument to make.
The case will hinge on one very important ruling: standing. Do Maryland and D.C. have the right to sue Trump? They think they do, and they have an interesting argument to make. They are saying that the Trump Hotel in D.C. is taking business that normally would go to publicly-owned convention centers, because foreign clients (and domestic clients as well) are booking Trump Hotel in anticipation of more-favorable treatment by the president. They’ll have to prove all of that in court, of course, but the importance of the case may be in two rulings which happen long before the case is ever decided.
If Maryland and D.C. are granted standing to sue, then they are free to demand all sorts of information from Trump. This would include (at the top of the list, really) Trump’s taxes and business records. It might also include being able to legally depose the president under oath. Trump may complain that this is nothing more than a gigantic fishing expedition, but in his private life before he entered politics, he certainly was no stranger to the idea of throwing lawsuits around as leverage (or even intimidation). So it’s not like his own hands are clean in this regard.
This is why I say the bigger importance may be in the discovery phase of the trial rather than in any eventual ruling. If D.C. and Maryland ultimately prevail in court, it could force Trump to completely divorce himself from his business holdings (something that he has so far refused to do). But no matter what ruling is eventually made on the merits of the case, if it resulted in Trump’s tax forms becoming public it would already have had a major political impact.
The Supreme Court has (as of this writing) not released its ruling on this case, but will rule at some point in the next few weeks. This could provide a definitive answer or it could be rather inconclusive (if the high court rules very narrowly and sends the whole case back to the lower courts, for instance). But if a sweeping ruling is announced, it could have as big an impact on national elections as Citizens United.
The case comes from Wisconsin, and unlike most rulings on gerrymandering it does not even involve race. Racial gerrymandering is a tricky legal subject, because a state can either have too little racial gerrymandering (splitting a group’s vote so they can never hope to elect one of their own to the House of Representatives), or too much (when a state crams all minorities into one district, so they won’t have any effect on any other district). But that’s not what this case is about.
In Wisconsin, the lower court ruled gerrymandered districts were unconstitutional on the grounds that it was partisan gerrymandering. This could be a precedent-setting case, since the courts have never before ruled this sort of thing illegal.
Gerrymandering is as old as America, really. The term was first used in a newspaper (with the cartoon we all remember from school) in March of 1812. The “Gerry” in “Gerry-mander” was Massachusetts Governor Elbridge Gerry. He had approved a district with wide-flung geographic borders (which looked, to the cartoonist, like a salamander), to benefit his own political party.
The practice still continues today, to state the obvious. Except for a few states like California and Arizona, the post-Census reapportionment of congressional districts is treated as a free-for-all by both major political parties, depending on who controls which state. There are both red and blue gerrymandered districts, in other words. But if the Supreme Court upholds the lower court’s ruling, such electoral hanky-panky could become a thing of the past.
If blatant partisan gerrymandering is ruled unconstitutional, it probably won’t have any immediate effect (outside of Wisconsin, that is), but it will definitely begin affecting the House of Representatives starting in the 2022 midterm congressional elections. After the 2020 Census, all the states with more than one representative would need to redraw their House district lines without regard to partisan politics. At the very least, this would mean the most obvious and blatant examples of gerrymandered districts would have to change.
It would require a deep dive into the demographics of almost all of the 435 House districts to figure out which party this would benefit more. In states like Pennsylvania, Democrats would benefit. In states like Maryland (right next door), Republicans would benefit. The only districts unaffected would be the at-large statewide House seats (for states which only rate one House member), and the districts already being drawn without regard to partisanship (in states like California, which have already made partisan gerrymandering a thing of the past by having a non-partisan board draw the lines rather than the politicians).
On balance, the Democrats would likely come out ahead of this game, although we really won’t know the scope of it until it happens. Republicans masterfully used the gerrymander after the 2010 Census, and Democrats are still paying the price. No matter who wins and who loses, though, if the Supreme Court decided that blatant partisan gerrymandering were no longer legal, it would bring about a monumental shift in American politics.
The Ninth Circuit strikes down Trump’s travel ban (again)
At first glance, this doesn’t seem to be all that newsworthy. After all, it just continues the losing streak Trump’s travel ban (or, as he likes to call it, the “TRAVEL BAN”) has been having in the courts so far. What’s one more ruling after we’ve already had so many which have denied Trump his ban?
This ruling was different in a number of ways, which is why it’s worth discussing. Every other ruling up to this point has addressed the constitutionality of Trump’s stated goal to institute a “complete ban on Muslims” entering the country. Such religious discrimination by the federal government is patently unconstitutional, no matter how hard Trump’s lawyers tried to cram that bias into an executive order which could be considered legal. This time around, however, the Ninth Circuit judges (the ruling was from a three-judge panel, not the whole court) skipped over all of that and ruled that an injunction against Trump that was issued as a result of a case from Hawai’i should be largely upheld, because Trump didn’t provide enough information to support his stated reasoning.
It’s the equivalent of an umpire ruling that a run didn’t count because the runner failed to touch second base, to use a sports metaphor. Trump’s second travel ban tried to make his case on national security grounds, but failed to provide any evidence or findings that backed this case up. In fact, there was evidence from the government that was completely contradictory to the claims Trump’s executive order claimed, as the ruling pointed out. [Note: these excerpts are taken from the PDF version of the court ruling, which refers to Trump’s initial executive order (the first travel ban that was overturned) as “EO1,” and his second executive order as “EO2”.]
Two versions of a report from the Department of Homeland Security (“DHS”) surfaced after EO1 issued. First, a draft report from DHS, prepared about one month after EO1 issued and two weeks prior to EO2’s issuance, concluded that citizenship “is unlikely to be a reliable indicator of potential terrorist activity” and that citizens of countries affected by EO1 are “[r]arely [i]mplicated in U.S.-[b]ased [t]errorism.” Specifically, the DHS report determined that since the spring of 2011, at least eighty-two individuals were inspired by a foreign terrorist group to carry out or attempt to carry out an attack in the United States. Slightly more than half were U.S. citizens born in the United States, and the remaining persons were from twenty-six different countries — with the most individuals originating from Pakistan, followed by Somalia, Bangladesh, Cuba, Ethiopia, Iraq, and Uzbekistan. Of the six countries included in EO2, only Somalia was identified as being among the “top” countries-of-origin for the terrorists analyzed in the report. During the time period covered in the report, three offenders were from Somalia; one was from Iran, Sudan, and Yemen each; and none was from Syria or Libya. The final version of the report, issued five days prior to EO2, concluded “that most foreign-born, [U.S.]-based violent extremists likely radicalized several years after their entry to the United States, [thus] limiting the ability of screening and vetting officials to prevent their entry because of national security concerns” (emphasis added).
It went on to further note that over the past 15 years, “only four nationals from the six designated countries have been convicted of attempting or plotting a terrorist attack in the United States,” and that of the twelve people who succeeded in carrying out fatal domestic terror attacks since 9/11, none of them came from the six countries Trump banned. Therefore, Trump’s second travel ban “does not provide a rationale explaining why permitting entry of nationals from the six designated countries under current protocols would be detrimental to the interests of the United States.”
They didn’t touch second, in other words. There were no findings of fact, there was no proof offered, and the Department of Homeland Security even admitted how weak Trump’s case was. This does open the door for a third travel ban executive order (one with the requisite findings), but it’s doubtful Trump will take another bite at this apple.
Before I get to why, there was one interesting footnote in the ruling. This may be the first time a Trump tweet was used against him in a court case. In an extended segment on how Trump was directing his ire at the countries involved (rather than nationals from those countries), the court pointed out that Trump himself used such language while tweeting: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” Immediately following this quoted tweet was a reference to a CNN story:
see also Elizabeth Landers, White House: Trump’s tweets are “official statements”, CNN (June 6, 2017, 4:37 PM)… (reporting the White House Press Secretary’s confirmation that the President’s tweets are “considered official statements by the President of the United States”).
This may be the first time Trump’s tweets undermine his legal case, but (knowing Trump) it likely won’t be the last.
The Ninth Circuit did give Trump a partial victory, which is the real reason why the whole court fight over the travel ban (and the travel ban itself) may just whither away in the end. While the restraining order issued in Hawai’i was largely upheld (meaning the travel ban will not go into effect any time soon), one part was ruled overbroad. The Trump administration was restrained from moving forward on developing its “extreme vetting” rules, and the court agreed that this part of the restraining order should be overturned.
What this means is that the 90-day (or 120-day) clock can start ticking again. The stated purpose of both Trump’s travel ban executive orders was that it was to be only temporary, to be replaced in a few months with beefed-up extreme vetting. What this means is that the Trump administration can go ahead and develop new vetting and implement the new procedures, no matter what happens in the courts with the travel ban.
I’ve written several times that this is probably how this court fight will end. Trump will give up on defending his travel ban and just move ahead with the extreme vetting. The Supreme Court is about to wrap up its session in a few weeks, so if they don’t take up any expedited challenge to all the rulings against Trump’s travel ban in that period, then Trump will have to wait until the court’s next session opens in October.
That, as you can see, is a long time to wait for what was supposed to be an extremely urgent new policy that had to be implemented as fast as possible. Especially one that was only supposed to last either 90 or 120 days in the first place. So Trump likely won’t even bother trying to craft a third executive order to address the concerns in today’s ruling, or continue fighting by taking it to the Supreme Court. By the time a ruling is likely to happen, Trump could have his extreme vetting in place, making the whole issue moot.
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