OTHERWISE: Todd on Parkinson, 'The Common Cause: Creating Race and Nation in the American Revolution' | H-Early-America | H-Net

OTHERWISE: Todd on Parkinson, 'The Common Cause: Creating Race and Nation in the American Revolution' | H-Early-America | H-Net

Understanding the Two Mazars Subpoena Cases Before the Supreme Court [UPDATED to reflect 11/25 stay of mandate] - Just Security

OTHERWISE: Understanding the Two Mazars Subpoena Cases Before the Supreme Court [UPDATED to reflect 11/25 stay of mandate] - Just Security: Understanding the Two Mazars Subpoena Cases Before the Supreme Court [UPDATED to reflect 11/25 stay of mandate] - Just Security by Marty Lederman

The power of Congress: from the McCarthy era witch hunt to the Trump investigations.

Circuit Judge Neomi Rao's dissent in Trump v. Mazars rests on a steroidal view of executive authority that sharply limits Congressional power to investigate the now President's conduct before taking office.  She voices the view that Congressional oversight power ends where enforcement begins.  That indistinct line is inherent in our constitutional scheme - where powers overlap as well as separate.  Overlap is of particular importance today when the Attorney General voices the steroidal view of Presidential power commonly called the "unitary executive" theory.

That view - appropriately disparaged as monarchical - was spurned by by Judge Ketanji Brown Jackson in Committee on the Judiciary v. Donald McGahn.  The judge denied the former White House Counsel's motion to quash the House of Representatives subpoena to testify in the ongoing impeachment proceeding.

The duty to cooperate with the Congress - so long as its investigation evinces a legislative purpose.

In her thorough affirmation of the duty to comply with a Congressional subpoena and recognition of the prerogatives of Congress Judge Jackson turns to the 1957 opinion of Chief Justice Warren in Watkins v. United States.  The Court there upheld a subpoena by HUAC - the House Un-American Activities Committee - to investigate activities of the Communist Party while affirming also due process requirements that a subject of investigation be given reasonable notice of the matters under inquiry.  An excerpt from the Warren opinoin - to capture its spirit is below.

- GWC

"We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws, as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. This was freely conceded by the Solicitor General in his argument of this case. Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to "punish" those investigated are indefensible.
It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees, and to testify fully with respect to matters within the province of proper investigation. This, of course, assumes that the constitutional rights of witnesses will be respected by the Congress as they are in a court of justice. The Bill of Rights is applicable to investigations as to all forms of governmental action. Witnesses cannot be compelled to give evidence against themselves. They cannot be subjected to unreasonable search and seizure. Nor can the First Amendment freedoms of speech, press, religion, or political belief and association be abridged.The rudiments of the power to punish for "contempt of Congress" come to us from the pages of English history. The origin of privileges and contempts extends back into the period of the emergence of Parliament. The establishment of a legislative body which could challenge the absolute power of the monarch is a long and bitter story. In that struggle, Parliament made broad and varied use of the contempt power. Almost from the beginning, both the House of Commons and the House of Lords claimed absolute and plenary authority over their privileges. This was an independent body of law, described by Coke as lex parliamenti. Only Parliament could declare what those privileges were or what new privileges were occasioned, and only Parliament could judge what conduct constituted a breach of privilege."

Trump tax returns: Supreme Court Stays Oversight Committee Turnover Order

The United States Supreme Court - without dissent - has stayed the order sought by the House Oversight Committee to compel Trump's accountants to turn over his tax and other financial records.  Trump must file a petition for certification by noon December 5.  The stay remains in place until the high court decides how to dispose of the House subpoena.

Also pending is Trump's request to reverse the Second Circuit decision upholding the subpoena for the same records by Manhattan prosecutor Cyrus Vance, Jr.  In that case the Department of Justice has filed a friend of the court brief.  



The Solicitor General - citing fears of a President stung by a barrage of arrows flung by malicious local District Attorneys - urges the Court to compel a "heightened" showing by Vance who is using a grand jury to investigate suspected crimes by Trump and his associates in New York.



The issues are assayed today in a typically lucid manner by Texas law professor Steve Vladeck at SCOTUSblog

Can the Supreme Court Save Itself? Linda Greenhouse - NY Times

OTHERWISE: Can the Supreme Court Save Itself? Linda Greenhouse - NY Times: Linda Greenhouse predicts the Supreme Court will refuse to hear the tax return cases. The DACA case? G*d only knows. My guess is remand.....

Trump’s Supreme Court case tests the limits of presidential immunity. - Vox

Trump’s Supreme Court case tests the limits of presidential immunity. - Vox

by Ian Millhiser

Trump files "emergency" stay motion to keep tax returns from Congress - and prosecutors

On the day our former Ukraine Ambassador testified that the Department of State is being hollowed out Donald Trump has filed an "emergency motion for a stay" of the subpoena issued by the House Oversight Committee for his pre-presidential tax returns.  He follows recently appointed Circuit Judge Neomi Rao's road map.  She alleges that the House Committee's quest for Trump's pre-presidency tax returns is either an improper effort to enforce the law, or a sham effort to impeach the President.

Trump's private lawyers lump that together with an assertion that Presidents face the threat of harassment like Gulliver at the hand of the Lilliputians from local prosecutors seeking to wound a sitting president.  It is the sort of slippery slope nightmare scenario that often seduces courts into applying the brakes.

- GWC 11/15/2019

To the  Honorable John G. Roberts, Jr., Chief Justice of the  United States and Circuit Justice for the  District of Columbia  Circuit:

This is a case of firsts. It is the first time Congress has subpoenaed the personal records of a President that predate his time in office. It is the  first time Congress has issued a subpoena, under its legislative powers, to investigate the President for illegal conduct. And, for the  first time, a court has  upheld a congressional  subpoena  to the President for his  personal papers. After the  decision below, however,  any committee of  Congress  can  subpoena  any  personal  information  from  the   President;  all  the committee needs to say is that it's considering legislation that would force Presidents to disclose  that  same information.  Given  the  temptation  to dig  up  dirt  on  political rivals,  intrusive  subpoenas  into  personal  lives  of  Presidents  will  become  our  new normal in times of divided government-no  matter which party is in power. If every committee chairman is going to have this unbounded authority, this Court should be the one to say so.It should be unsurprising, then, that the one thing the district court, the panel, and the  dissenting judges agree upon is that this case raises important  separation­ of-powers  issues.  
Yet  this  Court  will  not  have  the  opportunity  to  decide _for  itself whether  the  decision  warrants  review  unless  a  stay pending certiorari  is granted. That is because the  Oversight Committee, despite voluntarily staying the subpoena for more than six months while this dispute wound its way through the lower courts, is going to enforce the  subpoena when the  D.C. Circuit's mandate issues-i.e., when the  parties' agreement expires-unless this Court issues a stay.

The Trump Tax cases - what now?

Jay Sekulow, Donald Trump's personal lawyer has petitioned the United States Supreme Court to block a  New York District Attorney from enforcing a subpoena to Trump's accountants for the tax returns of the now President for several years before he took office.

The bete noire is the threat of a President under indictment - though the grand jury subpoena is itself an early stage in a prosecution.  An indictment may or may not follow.  But what seems certain from the relentlessness of Trump's resistance is that bad news will follow.  Trump has engaged in payoffs to the pornographic performer Stephanie Daniels, and other women that landed his personal lawyer Michael Cohen in a federal prison. If the Supreme Court blocks the subpoena it will effectively immunize Mr. Trump from prosecution for such pre-Presidential conduct, and other possible financial misconduct.
The Court of Appeals for the District of Columbia Circuit has refused the Trump request for full en banc review of the panel which ordered his accountants to comply with a Congressional subpoena.  A second petition for certification is sure to follow.
UT Austin professor Steve Vladeck games it out:

1. With two of the subpoenas for @realDonaldTrump's financial records likely to make their way to #SCOTUS in the next 36 hours, I wanted to put together a detailed #thread walking through where we are and what happens next.

Apologies in advance, but this is going to get nerdy.

— Steve Vladeck (@steve_vladeck) November 14, 2019

QUESTIONS PRESENTED (by Trump)

The District Attorney for the County of New York is conducting a criminal investigation that, by his own admission, targets the President of the United States for possible indictment and prosecution during his term in office. As part of that investigation, he  served a grand-jury subpoena on a custodian of the President’s personal records, demanding production  of nearly ten years’ worth of the President’s financial papers and his tax returns. That subpoena is the c ombination—almost a word-for-word copy—of two subpoenas issued by committees of Congress for these same papers. The Second Circuit rejected the President’s claim of immunity and ordered compliance with the subpoena.

The question presented is: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution.

Balkinization: DACA at the Supreme Court

Balkinization: DACA at the Supreme Court



by Andrew Pincus

The current Supreme Court term is packed with “big” cases, but next week’s argument in the DACA cases promises to be one of the biggest.

It’s another confrontation over the Trump Administration’s hard line on immigration—the decision to shut down the Obama Administration’s  Deferred Action for Childhood Arrivals program that deferred deportation and provided eligibility for work authorization to approximately 700,000 undocumented young people who came to the United States as children, lived here continuously since at least 2007, obtained at least a high school education, and passed a background check.

But this dispute has a unique twist.

The Trump Administration typically claims expansive executive branch authority regarding immigration-related actions—e.g., the travel ban, the reallocation of funds to build the wall on the border with Mexico, the attacks on state and local public safety laws, and the addition of the citizenship question to the census. For DACA, however, it asserts that the program had to be ended because it was unlawful: the Administration’s basic argument is that executive branch lacked the legal authority to adopt DACA.

It’s odd for any Administration to argue for limited Executive Branch power: the typical position is that it has the power, but also the discretion to decide whether and how to exercise it. And it’s particularly surprising for the Trump Administration to take that position on an immigration issue.  What’s going on?

The DACA backstory shows that political imperatives forced the Administration to rely on the lack-of-authority argument, rather than invoking policy discretion—which then hobbled the Administration’s ability to defend its actions in court. Indeed, the Administration’s recent, eleventh-hour attempt to invoke policy discretion likely rests on the government’s recognition of the weakness of its position that DACA is unlawful.

The critical questions for the Justices are whether they will sanction administrative law arguments that allow the Administration to avoid accountability for its decision and shift the blame to “the law” and “the courts”; and whether they will require adherence to long-settled procedural rules governing agency action, or let the Administration avoid those rules in a rush to uphold its termination decision.

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Mulvaney intervenes in action to block Congressional subpoena

Richard J. Leon

Michael Mulvaney

Acting White House Chief of Staff Michael Mulvaney has moved to intervene in the lawsuit brought by former Deputy National Security adviser Charles Kupperman.  The former Deputy NSC  Adviser seeks a declaratory judgment that presidential immunity protects him from responding to a Congressional subpoena (since withdrawn).  Despite the fact that the House of Representatives has "sole" impeachment power under the Constitution the Acting Chief of Staff has now moved to intervene saying he too should not have to respond to a Congressional subpoena.  
The matter is pending before District Judge Richard J. Leon.

John J. Farley III - retired judge of the Court of Veterans Appeals

John J. Farley III - Wikipedia

Jack Farley was a neighbor in Massapequa, Long Island when I was in junior high and high school.  Three years older than me he was a local hero as captain of the lacrosse team - as he was in college.  I went to Holy Cross College because I admired him and two guys - stars on the track team at Brooklyn Prep. 

"John J. "Jack" Farley III is a retired judge of the United States Court of Appeals for Veterans Claims.

In September 1989 he was nominated and confirmed as a Judge of the United States Court of Veterans Appeals . He retired in 2012. 

Judge Farley received his A.B. degree in economics in 1964 from the College of the Holy Cross, where he was captain of the freshman and varsity lacrosse teams, his M.B.A. degree in 1966 from Columbia University,  graduated in 1973 from Hofstra University School of Law, first in his class and serving as the founding Editor-in-Chief of the Hofstra Law Review.

Judge Farley served in the U. S. Army from 1966 until his retirement as a captain in 1970 due to 100% disability from wounds received during combat in Vietnam. His decorations include four Bronze Star Awards, two Purple Hearts, and the Army Commendation Medal. From 1973 to 1978, he was a trial attorney in the U. S. Department of Justice.

25 years ago Cal voters passed anti~immigrant Prop 187

https://lawprofessors.typepad.com/immigration/2019/11/25-years-after-the-passage-of-californias-proposition-187-the-beginning-of-the-political-transformat.html

Trial begins in challenge to Alabama congressional district map

Trial begins in challenge to Alabama  congressional district map

Trump taxes - NY subpoena upheld by Second Circuit Court of Appeals

Major ruling today from the United States Court of Appeals for the Second Circuit in Trump v. Vance holding that federal courts did not have to abstain from considering @realDonaldTrump's challenge to Manhattan DA Vance's subpoena for Trump's pre-Presidential financial records . Three judge panel, in an opinion written by Chief Judge Robert Katzmann, holds that the President is not likely to succeed on the merits of his claim of "temporary immunity" from state criminal investigation so long as he is President:

The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions. The Nixon Court explained that even the President’s weighty interest in candid and confidential conversations with his advisers could not justify a blanket privilege that would “cut deeply into the guarantee of due process of law and gravely impair the basic function of the courts.” 

This is almost certainly heading to #SCOTUS 

Trump Decree Barring Immigrants without health insurance blocked by Oregon Federal Judge

John Doe # 1, et al. V. Donald Trump as President, et al.

United States District Court for the District of Oregon

Case 3:19-cv-01743-SB Document 33 Filed 11/02/19  

TEMPORARY RESTRAINING ORDER

by  Michael H. Simon, District Judge

On October 4, 2019, the President of the United States issued Proclamation No. 9945, titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System” (the “Proclamation”). President Donald J. Trump directed that the Proclamation become effective at 12:01 a.m. eastern daylight time on November 3, 2019. On October 29, 2019, the U.S. Department of State issued a “Notice of Information Collection” for “Emergency Review” (the “Emergency Notice”), which was published in the Federal Register on October 30, 2019, and provided a comment period of less than 48 hours.

The Emergency Notice states that “to implement [the Proclamation] when it goes into effect on November 3, 2019,” consular officers “will verbally ask immigrant visa applicants covered by [the Proclamation] whether they will be covered by health insurance in the United States within 30 days of entry to the United States and, if so, for details relating to such insurance.” If the applicant says yes, “consular officers will ask for applicants to identify the specific health insurance plan, the date coverage will begin, and such other information related to the insurance plan as the consular officer deems necessary.” The Emergency Notice further adds that visa applicants will not be suspended “if they do not have coverage but possess financial resources to pay for reasonably foreseeable medical expenses.” It defines “reasonably foreseeable medical expenses” as “those expenses related to existing medical conditions, relating to health issues existing at the time of visa adjudication.”

****

On October 30, 2019, seven U.S. citizens and a nonprofit organization (collectively, “Plaintiffs”) filed a nationwide class action complaint against the President, the U.S. Department of Homeland Security, the U.S. Department of Health and Human Services, the U.S. Department of State, and related Cabinet Secretaries (collectively, “Defendants”), challenging both the Proclamation and the Emergency Notice. Plaintiffs contend that the Proclamation is contrary to law. Plaintiffs also argue that the Emergency Notice is “arbitrary and capricious” under the Administrative Procedure Act (“APA”) and also fails to follow the “notice and comment” procedures required by the APA. On November 1, 2019, Plaintiffs filed a Motion for Temporary Restraining Order (“TRO”), seeking to preserve the status quo and prevent Defendants from implementing or enforcing the Proclamation, at least until after the Court can hear and decide a motion for preliminary injunction.

On Saturday, November 2, 2019, at 2:00 p.m. Pacific daylight time, the Court held a hearing pursuant to Rule 65(b) of the Federal Rules of Civil Procedure to consider Plaintiffs’ TRO motion. All parties appeared through counsel, although Defendants have not yet had an opportunity to submit their arguments in writing. At this early stage of the proceedings, the Court is satisfied that Plaintiffs have shown either a substantial likelihood of success on the merits or at least serious questions going to the merits regarding their arguments that the Proclamation and its plan of implementation and enforcement conflict with the “public charge” provisions in Congress’ Immigration and Nationality Act (“INA”) and related federal health care statutes.

Plaintiffs have also shown, at least at this stage of the litigation, serious questions going to the merits regarding whether the Emergency Notice was arbitrary and capricious and, thus, in violation of the APA. At this time, the Court declines to reach whether the Emergency Notice also violated the procedural “notice and comment” requirements of the APA. Further, Plaintiffs have shown, at least thus far, that they are likely to suffer irreparable harm in the absence of temporary relief, that the balance of hardships tips sharply toward Plaintiffs, and temporary relief is in the public interest.

Accordingly, Plaintiffs’ motion for TRO is granted, for a period not to exceed 28 days, to allow the parties sufficient time to brief and argue whether the Court should issue a preliminary injunction suspending the implementation and enforcement of the Proclamation until the issues presented in this lawsuit have been resolved on the merits

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