Category Archives: Law: Constitutional Law

This is How it Starts

Another zinger from the Lincoln Project:

Posted in Civil Liberties, Law: Constitutional Law, Trump | Leave a comment

Watch the Border Patrol

If I had to bet, I’d bet that the Customs and Border Patrol is the paramilitary force most likely to become the modern Brown Shirts. They’re the only one with anything close to the numbers other than the armed services themselves, and they’re the ones with a toxic brew of resentment and racism ripe for exploitation by the ‘right’ sort of leadership.

Basically, armed feds fall into a few (over)broad groups:

First, the uniformed military. This is of course the largest and best-armed, group. If it decides to occupy the field, every other group on this list will get out of its way: The Pentagon has troops, tanks, attack helicopters, nukes even. But by and and large I’m not real worried about the military being deployed as a domestic occupation force; most of the services, the Air Force perhaps excepted, appear to have pretty strong cultures of non-partisanship that would make that unlikely except in a spot support role like when in in 1957 Eisenhower sent in 1,000 soldiers of the 327th Airborne Battle Group of the 101st Airborne Division to Little Rock to enforce school integration (recall that Governor Orval Faubus had deployed the Arkansas National Guard to support the segregationists).

That said, there are things that could give you pause.  One is the shameful role of the Chairman of the Joint Chiefs last night, Gen. Mark Milley, who chose to join Trump on his little jaunt across the street while in combat fatigues. In a hopeful sign Gen. Milley understands he went too far, he’s now trying to, er, walk it back.

Another is the culture of the Air Force (and perhaps its calf, the Space Force), which has become deeply sectarian; sectarianism certainly doesn’t equal willingness to trample protests, but it does signal a disinterest in Constitutional principles, which is a worry.

Another worrying thing, maybe the most worrying on this sub-list of caveats, is the latest report that military helicopters were deployed yesterday to fly low to ‘discourage’ protesters:

A Black Hawk helicopter, followed by a smaller medical evacuation helicopter, dropped to rooftop level with their search lights aimed at the crowd. Tree limbs snapped, nearly hitting several people. Signs were torn from the sides of buildings. Some protesters looked up, while others ran into doorways. The downward force of air from the rotors was deafening.

The helicopters were performing a “show of force” — a standard tactic used by military aircraft in combat zones to scatter insurgents. The maneuvers were personally directed by the highest echelons of the Washington National Guard, according to a military official with direct knowledge of the situation. The Guard did not respond to a request for comment.

That reportedly caused pushback from retired military leaders, and even rumblings in the ranks.

It’s maybe worth pointing out that the D.C. National Guard, which isn’t a very big force, is unique in that it reports to the President directly rather than to any Governor, due to Washington D.C.’s semi-colonial status. The Mayor of Washington D.C., its highest elected local official, is not in the Guard’s chain of command. Rather, at least according to Wikipedia,

The D.C. National Guard is the only National Guard that reports only to the president.

Supervision and control of D.C. National Guard was delegated by the president to the defense secretary pursuant to Executive Order 10030, 26 January 1949 with authority to designate National Military Establishment officials to administer affairs of the D.C. National Guard. The Army secretary was directed to act in all matters pertaining to the ground component, and the Air Force secretary was directed to act in all matters pertaining to the air component.

The D.C. National Guard is the only U.S. military force empowered to carry out federal functions in a state or, in this case, a district. Those functions range from limited actions during non-emergency situations to full scale law enforcement of martial law when local law enforcement officials can no longer maintain civil control. The National Guard may be called into federal service in response to a call by the president or Congress.

When the D.C. National Guard is called to federal service, the president serves as commander-in-chief. The federal mission assigned to the U.S. National Guard is “To provide properly trained and equipped units for prompt mobilization for war, National emergency or as otherwise needed.”

Thus, the willingness to deploy the DC National Guard aggressively against civilians could be a tell for what is in store with more regular armed forces; on the other hand, orders to other military groups will have to go through a different chain of command. And they are busy signalling hard they have no appetite for it. Certainly, if I’m wrong in my cautious optimism about the fundamental character of our armed forces, we’re in a whole different space from the universe any of us are used to navigating.

Second on the list of armed feds are the CIA’s private armies. Who knows how many there are, where they are, what their nationalities are, what their missions are? All important questions, but for present purposes the key point is that they are abroad. Any attempt to bring one of these home would turn liberals into Second Amendment partisans (in both senses of that word). But it’s not going to happen.

Third — and where I was originally headed with all this before getting blown off course by the DC National Guard’s helicopters — a plethora of federal civilian police and paramilitary forces. There’s a list of agencies and units of agencies at Wikipedia but I doubt it’s complete. There’s a lot of these groups — the Bureau of Justice Statistics counted 83 a few years ago, but that number includes police forces in the military. Whatever the number, the key thing here is that in the grand scheme of things — occupying a big country — most of these groups are quite small. Indeed, four years ago (I can’t find better data), about two-thirds of the 100,000 armed civilian feds worked for one of four agencies: Customs and Border Protection (33%), the Federal Bureau of Prisons (14%) [see yesterday’s post], the FBI (10%), or Immigration and Customs Enforcement (9%).

I have never been a cheerleader for the FBI, but their training is light-years ahead of the CBP. It’s the CBP that has the numbers, that has the recruiting crisis, that is losing the good officers and stuck with what’s left, that has disgusting bigoted secret social media groups, and a leadership notable for corruption, misconduct and a toxic culture. All of which makes a modern brownshirt movement all too easy to imagine. Please don’t misunderstand: I’m not saying it’s inevitable; I’m not giving odds. I’m just saying it’s something that has seemed like something worth watching out for pretty much since Trump got elected.

All this is context for what I find to be the disturbing news that Trump is sending the CBP into cities for counter-citizen activities. The head of the CBP, an ‘acting’ naturally so as to avoid the necessity of Senate confirmation, tweeted a picture of masses of uniformed CBP officers, stating

CBP personnel have deployed to the National Capital Region to assist law enforcement partners. These “protests” have devolved into chaos & acts of domestic terrorism by groups of radicals & agitators. @CBP is answering the call and will work to keep DC safe.

This “chaos … radicals & agitators” talk is brownshirt language. The implications were not lost on AOC who called it “dangerous”.

It is dangerous. A lot of what’s going right now feels dangerous.

Posted in Law: Constitutional Law | Leave a comment

En Banc Bait

Today the 11th Circuit issued a per curiam decision on Kelvin Leon Jones, et al. v. Governor of Florida, et al., the Amendment 4 felon-voting case, which holds that strict scrutiny applies and that the Florida Legislature’s decision to require felons to pay all the fees and charges associated with their cases is, in the case of indigents, a violation of Equal Protection.

It’s a nicely done opinion but per curiam or not it has got en banc written all over it. The panel was Judge R. Lanier Anderson III (nominated — to the then-5th Circuit — by Jimmy Carter), Judge Stanley Marcus (nominated by Ronald Reagan to the District Court, and by Bill Clinton to the Court of Appeal), and Judge Barbara Rothstein (District Judge, Western District of Washington, sitting by designation; appointed by Jimmy Carter).

All three judges were appointed to their current seats by Democrats, but the 11th Circuit as a whole skews Republican. All three have senior status–I didn’t even know that appellate courts allowed a majority of senior judges on a panel, much less all three. One is a visiting Judge from Washington State (fresh from a visit to Washington, D.C., which may have lead to the incorrect attribution of her home court on the first page of the opinion). All this spells e-n b-a-n-c to me. So we haven’t heard the end of this case yet. That said, the panel’s affirmation of (most of) the injunction might last through to the 2020 election.

Posted in Florida, Law: Constitutional Law | Leave a comment

Bad Claims is the New Trump Litigation Strategy

Post-Mueller, the Trump Family1 has embarked on a novel litigation strategy: bringing really bad claims. Making terrible legal arguments is nothing new for the Trumps, but generally they’ve made those arguments as defendants, often while defending very amateurish and inept attempts to overturn Obama-era regulations. And almost universally, those lost.

Now, however, we see the Trump Family is moving on to offense2, and it’s not pretty: Treasury is setting up to argue it can ignore a quite clear statute requiring the IRS send Congress tax returns. Attorney General Barr, to his shame (if he has any), claims he can dictate to Congressional committees the terms of his appearances. Trump Family companies are suing Democratic House Oversight Committee Chairman Elijah Cummings to block a subpoenas on his finances and suing Deutsche Bank and Capital One to prevent them from complying with subpoenas.

What all these cases have in common is that the legal theories on which they are based are tenuous to non-existent.

What gives? These could simply be Hail Mary passes by the guilty: try this because you have nothing better.  Or they could be plays to delay bad news, maybe even run out the clock until the next election with appeals. Or, worst of all, they could be a cynical calculation that some or all of them might find favor before an increasingly stacked judiciary, and a very pro-Trump Supreme Court.  Or, why not, it could be all of the above.

All of these are bad answers.


  1. I have decided that from now on I will use the Mafia term while blogging, rather than call it an Administration. []
  2. In the legal sense; in every other sense they’ve been there for quite some time. []
Posted in Law: Administrative Law, Law: Constitutional Law, Law: Ethics, Law: Everything Else, Law: The Supremes, The Scandals | Leave a comment

Mandatory Unpaid Labor by Government Workers: Involuntary Servitude? Wages and Hours Violation?

These are probably stupid questions, but I never took Labor Law: Why is it that the U.S. government can require some workers (e.g. TSA) to do their jobs without pay? As a formal legal matter there is no way that the bosses can guarantee back pay will be forthcoming ever, since it’s axiomatic that money can only be disbursed from the Treasury pursuant to a Congressional appropriation. Theoretically, Congress might never vote the back pay.

Doesn’t the absence of a payment guarantee make the forced labor either involuntary servitude, or at least a wage-and-hours violation since it is work for less than the minimum wage (zero)?

I presume the answer to the 13th Amendment question might have something to do with terms in the employment contract, in that the government perhaps reserves the right to require the unpaid labor, or the worker gets fired. Or, more likely, it’s just that civilian workers (but not military personnel, in this case the Coast Guard?) have the choice to just not show up and be fired, as opposed to slavery/involuntary servitude when the worker has no option to quit. That option, I’m guessing, makes the servitude not ‘involuntary’ for 13th Amendment purposes?

But even so, how does this conform with minimum wage laws? Is it as simple as, no one brings the case, then backpay makes the matter moot? In which case, how long before someone files the complaint?

Posted in Law: Constitutional Law, Politics: US | 1 Comment

A Truly Muscular Reply Brief in a Case of Great Importance

One case I’ve been following with great interest is (well, was) Michaels v. Sessions in which by a strange turn of events the Supreme Court is being asked to decide whether
Matthew G. Whitaker is or is not the Attorney General.

The underlying matter isn’t in my wheelhouse, having to do with the constitutionality of a federal ban on possession of firearms by convicted felons. Michaels lost in the court of appeals, and duly asked the Supreme Court to hear his appeal via a petition for writ of certiori. While that was pending, Trump forced out Sessions; whether Sessions legally resigned or was fired is actually a not-irrelevant issue. Trump then tapped Whitaker to take over the job of Attorney General, purporting to exercise power delegated under the Vacancies Act.

The Vacancies act is a mire of constitutional and structural issues, but suffice it for now to say that it does give the President vast authority to fill vacancies with a wide variety of government employees, but it also contains exceptions, one of which very arguably applies to the Attorney General’s office becuase there is a specific statute that provides for succession in the AG’s office. Under that statute Rod Rothstein, the #2 in the department, would automatically becoming the Acting Attorney General until a successor was properly nominated and confirmed (or, I presume, given an interim appointment–an option that the Senate has quietly foreclosed by having pro-forma sessions every few days during the recess thus preventing the Constitutional trigger that permits interim appointments).

When a person sues the United States about a regulation, it is common to caption (that’s lawyer for “title”) the case with the name of the movant and the government official who heads the agency. When there is turnover at the head of an agency, as there often is, it is usually routine for the name of the case to change too — on request of a party, the court just amends the caption of the case.

That is what happened with the petition for certioria — until Michaels’s lawyers objected. Earlier this month they filed a “Motion to Substitute” in the Supreme Court in which they asked the Court to rule that the case should be captioned “Michaels v. Rothstein” rather than “Michaels v. Whittaker” as Rothstein, not Whittaker, was in fact the Acting Attorney General. Needless to say, the government objected. Michael’s lawyers replied with one of the most muscular briefs I’ve ever read. If you are a lawyer or law student, this is a must-read.

The Supreme Court has not yet ruled, and it could do so without a hearing if it chose to do so.

Posted in Law: Administrative Law, Law: Constitutional Law, Law: The Supremes | Leave a comment