"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, June 21, 2017

Plaintiffs' Gambit in CREW v. Trump

Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.), https://ssrn.com/abstract=2985843 

Brief at page 30 n.122: 

Plaintiffs’ Complaint is brought against the President in his “official capacity.” [Second Amended Complaint] at caption, 1, ¶¶ 31, 33. Given that the case could not continue against the President’s successor, this cannot be an “official capacity” suit. See Lewis v. Clarke, 137 S. Ct. 1285, 1292 (2017).


Seth Barrett Tillman, Plaintiffs' Gambit in CREW v. Trump, New Reform Club (June 21, 2017, 6:12 AM), http://tinyurl.com/y73nkzqu

PS: Professor Chemerinsky is listed as an attorney for Plaintiffs at the end of their Complaint. He has written one of the standard texts on federal courts. 

Saturday, June 17, 2017

Amicus Brief in CREW v. Trump

Motion and Brief for Scholar Seth Barrett Tillman as Amicus Curiae in Support of the Defendant, Citizens for Responsibility and Ethics in Washington v. Donald J. Trump, President of the United States of America, Civ. A. No. 1:17-cv-00458-RA (S.D.N.Y. June 16, 2017) (Abrams, J.), https://ssrn.com/abstract=2985843 

Business transactions are not "emoluments."
The President does not fall under the scope of the Office under the United States-language in the Constitution's Foreign Emoluments Clause.


Seth Barrett Tillman, Amicus Brief in CREW v. Trump, New Reform Club (June 17, 2017, 6:59 PM), http://tinyurl.com/y6u4r7un

Friday, June 09, 2017

This Is Not A Hung Parliament (with addendum)

This is not a hung (UK) Parliament. When Parliament meets a majority of those voting will vote for the Tory leader (although by that time PM May have stepped down).

With 649 of 650 seats declared at this juncture (10 AM BST, June 9, 2017), the Tories have 318 seats.

The three primary opposition parties, Labour (“Lab”), Liberal Democrats (“LibDem”), and Scottish National Party (“SNP”), have 261, 12, and 35 seats repectively. That is a total 308 seats. Add to the 308 the 1 seat not yet declared,** and that brings the opposition to 309 seats. Add 1 seat for the Greens, and that brings the opposition to 310 seats. Add 4 independents, and that brings the opposition to 314 seats.

318 + 314 = 632 (out of a 650 seat total)

That still leaves 18 seats for Northern Ireland (“NI”) to enter the mix. 7 seats went Sinn Fein (“SF”), the Irish nationalist party seeking to end the connection between NI and the rest of the UK. 10 seats went to the Democratic Unionist Party (“DUP”) and 1 seat went to an independent unionist candidate (in fact, a former Ulster Unionist Party or UUP member). The SF members will not take their seats and vote against the Tory Government—at least, they never have in the past. And if the SF members did take their seats and vote against the Tory Government, all that would happen would be that the DUP members and the independent unionist member would vote with the Tory Government. The likely result is that SF members will sit out any no confidence motion, and that the 11 NI unionist members will either not vote or vote for the Tory Government.

That leaves the Tory leader (Prime Minister May or her successor) with a 318 to 314 vote on a no confidence motion and a majority of 4.

QED: No hung parliament. And did I mention that DUP, on which the Tory Government is likely to depend, as a practical matter, is proBrexit. What a time to be alive! 


Addendum: It was announced that the DUP and the Tories have reached a deal. It is probable that DUP will support the government, but remain outside, and not take any ministries. But it is also possible that DUP will enter a formal coalition with the Tories. Either way, a no confidence vote will now be 329 to 314 (with 7 Sinn Fein abstentions). This is a majority of 15. [I am assuming that the one independent unionist member from NI will support the Tory government.] 

**The last seat went Labour by 20 votes on the third recount. See http://tinyurl.com/yah4p86p

PS: As for the remaining undeclared seat, see Kensington count suspended without a result, Metro (June 9, 2017, 7:55 AM), http://metro.co.uk/2017/06/09/kensington-count-suspended-without-a-result-6696949/

PPS: Theresa May reaches deal with DUP to form government after shock election result, The Guardian (June 8, 2017, 07:05 EDT), http://tinyurl.com/yb57oefj 

Citation: Seth Barrett Tillman, This Is Not A Hung Parliament, New Reform Club (June 9, 2017, 5:07 AM), http://tinyurl.com/ydckrxup 

Wednesday, June 07, 2017

President Trump’s Reverse Merryman

In Merryman, Chief Justice Taney did not actually force President Lincoln’s hand. Merryman was more of a warning shot by Taney across the President’s bow. Taney declared the law: unilateral presidential suspension of the writ of habeas corpus is unconstitutional. Still, Taney did not actually order the President to comply: i.e., to release the petitioner—John Merryman. Why did Taney do this? Taney shifted all political responsibility onto Lincoln. If Lincoln was going to intern people in the name of war-time necessity: the courts would not share political responsibility with the President (albeit, the courts—at this juncture—would not stand in the way either).

Trump is doing what Taney did, but he is doing it to the courts. Absent his recent tweets, Trump might very well have won*** the travel ban case: an appeal from the Fourth Circuit’s decision to uphold the trial court’s grant of a preliminary injunction against the (modified) Executive Order. But Trump does not want to merely win. He wants to win Yuuge! He does not want to squeak out a narrow win by a divided court promising more time-consuming, after-the-fact, and morale-draining oversight in the future (e.g., where such future oversight might threaten lower level Executive Branch officers with individual liability). 

Trump is telling the courts, loudly and truthfully, this is what I intend to do to secure the country in what I and half the country believe to be an emergency of an existential kind. If the courts constrain my hands, the President will not share political responsibility for the consequences with the courts. Trump is saying that if you (the courts) constrain the presidency, and afterwards, should harmful consequences follow, then you (the courts) will have to own all the consequences. In doing this, Trump has not broken any rules relating to the conduct of litigation. He is not threatening to burn the Court down or stop the Justices’ salaries. But he is doing his very best to make them decide, and if that inconveniences them or makes them squirm, he does not care. This is what Taney did to Lincoln, and this is what Trump is doing to the Court. Taney’s course of conduct in Merryman was entirely transparent, legal, and smart. Whether the same can be said for the President’s conduct is something we will only know in the fullness of time.


***Trump still may prevail, but it is now less likely.

Citation: Seth Barrett Tillman,  President Trump’s Reverse Merryman, The New Reform Club (June 7, 2017, 8:52 AM), http://tinyurl.com/ychst3x6 

Tuesday, June 06, 2017

Box Seats for an Angry Zeitgeist

Laws are sand, customs are rock. Laws can be evaded and punishment escaped, but an openly transgressed custom brings sure punishment. Mark Twain
Let me write the songs of a nation, and I care not who writes its laws. Scottish politician Andrew Fletcher

If law, like politics, is downstream of culture, get ready for some backflow: the Supreme Court’s reviled 2005 eminent-domain decision Kelo v. New London is now a motion picture. Korchula Productions’ Little Pink House — referring to Suzette Kelo’s home taken by her city and given to Pfizer Corp — premiered in February at the Santa Barbara International Film Festival. Korchula is working on bringing Little Pink House to more markets. This, at least, is an improvement on Pfizer’s plans, who opted to take the little pink house off the market, and indeed, out of existence.

Top: Korchula’s Little Pink House
Bottom: Pfizer’s little pink house (credit: Ilya Somin).

One poll found that more than 80 percent of Americans disapproved the Kelo decision. At least 45 states passed eminent domain reform laws in reaction. Korchula is betting that anger will fill theater seats.

We had similar stories in California that gave an Orwellian lie to the activity known as “redevelopment.” Filipino Baptist’s property in Long Beach had been developed as a church, but the city in 2006 proposed it be re-developed as condos. Polish immigrants developed a community of homes and businesses and churches, and Detroit re-developed it as a Buick factory. (The legal industry fondly remembers the case with a commemorative plaque, on which the 2004 decision reversing it reads like a footnote.) In a different context, when a passenger was accommodated onto a flight, United Airlines haplessly proposed to “re-accommodate” him, kicking and screaming, back off it.

Also on point is the tale told in 99 Cents Only Stores v. Lancaster Redevelopment. In its first full year of business in 1998, the 99 Cents Only store in the north Los Angeles city of Lancaster did over $5 million in sales. This was welcome news to the city, given the space had been vacant ever since the new “Power Center” shopping development, where 99 Cents was located, opened ten years earlier. Almost immediately, however, 99 Cents’ next door neighbor, Costco, told the city it needed to expand. The owner of the center offered Costco optimal space behind 99 Cents, but Costco insisted that the city use its power of eminent domain to condemn 99 Cents’ business. If the city refused, Costco threatened to relocate to neighboring Palmdale, who surely would use every tool at its disposal to attract the lucrative big box store’s business. To seal the deal, Costco issued an additional threat: not only would it relocate to Palmdale—it would leave its existing store shuttered and vacant as an economic deadweight on the city’s key commercial center. Backed against the wall, the terrified city relented. It condemned 99 Cents’ store, paid the shopping center owner $3.8 million, and gave the parcel to Costco for one dollar.

You developed your business, and the city re-develops it as the other guy’s business.

California was the first state to adopt a Community Redevelopment Act, in 1945, which gave cities and counties the ability to establish redevelopment agencies. A half-century later, it was generating a steady stream of dystopic race-to-the-bottom stories and a growing public backlash. California abolished the redevelopment agencies in 2011. For state budgetary reasons rather than the right ones, of course, but a win’s a win.

Public disapproval more recently took aim at banking and lending practices, and the law likewise continues to respond: The U.S. Supreme Court recently ruled in a pair of cases that cities can now sue banks for discriminatory lending that harmed the city’s tax base by causing property values to fall. Can cities actually prove this? In a summary-judgment motion, the odds aren’t good. But think a jury might include a few homeowners with less than warm affection for banks? You bet. Courthouses might be “palaces of justice,” as Judge Kozinski recently called them, but there’s still box seats for an angry slice of zeitgeist.

When Solon, the great Athenian lawmaker, was asked whether he had given to the Athenians the best laws he could devise, he replied that he had given them instead “the best they w[ou]ld receive.’” Solon recognized that laws must not only be just, but they must be agreeable to those they mean to govern. A good law people will not accept is not, in the end, a very good law at all.

Law is still downstream of culture, so beware the backflow.

On History, or: Don't mess with eagles if you don't know how to fly

The estimable John O'Sullivan, among many things erstwhile editor of National Review and adviser to the exquisite Lady Thatcher, defenestrates an aspiring space cadet:

Sunday, June 04, 2017

Two Election Stories: New Jersey, November 7, 2016 & Belfast, Northern Ireland, United Kingdom, 2013


Please forward to people in Lakewood. C/P I gave R’Yeruchum Olshin shlita, ride this morning and said I can say over in his name to vote for trump cuz gmara says dovid did 2 aveiros and didnt lose kingdom, but Shaul did only one and lost kingdom. Why?  Answer is cuz Dovid’s aveiros were in his private life but Shaul was in the melucha.... lehavdil he said Trump is a mushchas.. in his private life but Hillary corrupt in public office.. Beshem R’Ahron Zatsal… Forward to everybody!![1]

Which roughly translates as:

[With the Help of Heaven]

Please forward [this] to people in Lakewood [New Jersey]. I gave [Rabbi] Yeruchum Olshin [May he live for many good days, Amen], [a] ride this morning and [he] said [that] I [may quote him – that is, Rabbi Olshin] in his name to vote for [candidate] Trump because [the authoritative commentary on Jewish law and practice explains] [King] David [had] 2 [failings] and [David] didn’t lose [his] kingdom, but [King] Saul [had] only one [failing] and lost [his] kingdom. Why? [The] answer is [because] David’s [failures] were in his private life but Saul[’s] [failure] was in [relation to] the [kingship] ... [albeit it is all distinguishable] [Rabbi Olshin] said Trump is [low] … in his private life but Hillary [is] corrupt in public office. [quoting Rabbi Aaron of blessed memory]… Forward to everybody!!

I think this passage is peculiarly interesting in regard to what it says and what it does not say. First, there is no appeal to any parochial Jewish (or Israeli) interests. There is nothing here akin to: Vote for X because X is good for the Jews (or Israel). Second, there is no appeal to any particular traditional religious values: Jewish or otherwise. There is nothing here akin to: Vote for X because X’s position on issue Y matches the Jewish position. Third, the rationale put forward to vote for the preferred candidate is entirely defined in terms of perfectly generalizable Kantian-Rawlsian public reason. It is just that the public reason is explained using Jewish imagery and biblical historical analogies. It is—when all is said and done—secular reasoning through and through.

A second story …

Belfast, Northern Ireland, 2013

Party Activist (from County Fermanagh): Mr Chairman for the last two elections, I knocked on doors and people said: “You are just another unionist party. Why should I vote for you?” How do I respond to that?

United Kingdom Independence Party Northern Ireland Party Chair: Well, you cannot lie to them. Tell them the truth. We are a Unionist party. We believe in the integrity of the whole of the United Kingdom and its four provinces—England, Wales, Scotland, and Northern Ireland.

But we are not just another Unionist Party. We are not a sectarian Unionist party. I am a former Ulster Unionist Party member, and also a member of the Orange Lodge and that is never going to change. Sitting next to me is Paul Nuttall, a Catholic, and our party’s highest ranking elected official (along with Nigel Farage and our other Members of the European Parliament). Paul flew into Northern Ireland from Brussels last night to be with us at this, our annual general meeting. We are pleased to have Paul here. UKIP welcomes Protestants, Catholics, people of other religions or no religion at all. We welcome all People of good will who are or who, here already, want to become and want their children to become—British.

The West is not done yet.


Citation: Seth Barrett Tillman, Two Election Stories: New Jersey, November 7, 2016 & Belfast, Northern Ireland, United Kingdom, 2013, New Reform Club (June 4, 2017, 2:26 PM), http://tinyurl.com/y7bd8u5l 

[1] See Robin Ticker, R’Yeruchum Olshin says to Vote for Donald Trump, Shemittah Rediscovered (Nov. 7, 2016, 5:16 PM), http://shemittahrediscovered.blogspot.ie/2016/11/r-yeruchum-olshin-says-to-vote-for.html.

Friday, June 02, 2017

When Historians Attack: Harvard's Dr. Joyce Chaplin

One in an occasional series. Right-wing "pseudo-historians" such as the uncredentialed David Barton are easy pickins for the academic left, but when one of their own hijacks history for their own ideology and politics, such guardians of historical accuracy are more easily cowed, if not fooled themselves.

From Jay Cost--not on CNN, of course, or the NY Times where our liberal friends might actually see it, but in the conservative The Weekly Standard:

Twitter has a remarkable power to make well-credentialed people look like fools. Case in point: Joyce Chaplin, who is the James Duncan Phillips Professor of Early American History at Harvard University.

In response to President Donald Trump's withdrawal from the Paris climate accords, Chaplin tweeted

Senator Ted Cruz would have none of this, and responded,

Chaplin, apparently forgetting that discretion is the better part of valor, responded

Chaplin is not just wrong, but embarrassingly wrong. A 17-year-old high school student should know better.

- First, the Treaty of 1783 was not a multinational accord. It was a bilateral agreement between the United States and Great Britain.

- Second, the Treaty was a recognition of the facts on the ground, which were that, after their defeat at Yorktown, the British had no chance of reclaiming their American colonies.

- Third, there was no "international community" in 1783, at least not in any sense that corresponds to what Chaplin suggests. While the Declaration of Independence is solicitous of world opinion, no extra-national entity existed to make such determinations.

- Fourth, insofar as the international community did exist, it was on the side of the United States. France, Spain, and the Netherlands were all lined up against Great Britain in the Revolution.

- Fifth, the Declaration of Independence explicitly lays out the moral logic of the Revolution, relying heavily on early liberal political philosophy, which set out the guidelines for legitimate revolution. It then was at pains to explain why those conditions were met.

- Sixth, Chaplin's logic leads to ridiculous propositions. Did the "international community" sanction the Glorious Revolution of 1688? Of course not. But, per Chaplin's logic, Queen Elizabeth II is not the legitimate monarch of Great Britain, but instead it should be Franz, Duke of Bavaria, who is currently the senior member of the House of Stuart.
Read the whole thing.