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License to Speak: Bureaucracies Can Be Slow to Internalize Bad News

May 5, 2017 Nearly 20 years ago, a man in Oregon found himself threatened with 98 years in prison for testifying against a proposed gravel mine. It took a team of pro bono lawyers—including me—to convince a state board that this frontal attack on free speech violated the U.S. and Oregon constitutions. Bureaucracies...

Normalizing Illegal Action May Be the Only Lasting Effect of Trump’s Syria Strike

April 27, 2017 In October 1962, my middle school principal announced an emergency plan: in case of attack, those of us who lived within a mile would walk home. That is still the longest walk I never took; half a century later, I dream about it sometimes. It is like a faded, scratchy...

The Case Halting Arkansas' Executions

April 19, 2017 The Supreme Court’s 2016-17 docket has been, by recent standards, relatively sleepy. But one of its cases—an Alabama death-penalty appeal called McWilliams v. Dunn—woke up on Monday. That’s because the issue—whether a capital defendant whose sanity or competence is at issue is entitled to an independent psychiatrist to assist with...

Trump's Unlawful Attack in Syria

April 10, 2017 "It should be more easy to get out of war than into it," Oliver Ellsworth told the Philadelphia Convention on August 17, 1787. With the malignant political genius of the nuclear age, Americans have reversed that order of things. War now takes but a wave of the executive hand, but...

from govexec

With the Travel Ban, Federal Courts Face a New Legal Issue

March 21, 2017 If you’re ever sued, I tell my students, the lawyer you want is not the one who thumps the table and assures you that your case is open and shut. No, it’s the lawyer who sits quietly and then says, “We need to get ready, because the other side has...

from govexec

Why Customs and Border Protection's ID Search of a Domestic Flight Is on Weak Legal Ground

March 8, 2017 The incident at John F. Kennedy Airport, where Customs and Border Protection Agents boarded an incoming flight from San Francisco and asked for—or demanded––ID from every passenger, has hit a nerve with many people—some of whom, like me, think that a demand that passengers exiting a domestic flight show “papers”...

from govexec

Is the Southern Border a Constitution-Free Zone?

February 22, 2017 “No matter whether the Constitution follows the flag or not,” Finley Peter Dunne’s Mr. Dooley said long ago in an obsolete dialect, “the Supreme Court follows the election returns.” Both of these—the traveling flag and the election returns—formed a complicated subtext Tuesday at the first argument the Supreme Court has...

from govexec

Will the Courts Find Trump's Travel Ban Unconstitutional?

February 6, 2017 President Trump can perhaps be forgiven for not understanding the quirks of federal District Court jurisdiction. Saturday he Tweeted, “Why aren't the lawyers looking at and using the Federal Court decision in Boston, which is at conflict with ridiculous lift ban decision?” The elementary reason is this: one judge—Judge Nathaniel...

from govexec

Two Cases Could Limit or Enhance Trump's Ability to Engage in Mass Deportations

January 18, 2017 The Supreme Court sometimes seems like Plato’s cave—a place where events of the outside world cast only faint and distorted shadows. Nonetheless, no justice of the Court since at least John Marshall has taken the bench without a lively appreciation of presidential politics. Without it, you just don’t get there....

from govexec

Testing Federal Power Over Immigration

October 25, 2016 It seems likely that the oral argument before the U.S. Supreme Court on November 9 will interest immigration specialists but not the public at large. The issue—whether Congress can discriminate against U.S. citizen fathers in awarding citizenship to foreign-born children—is, for most people, pretty obscure. But if the evening of...

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