National News Roundup: Week 18 (May 21–27)

This past week was a major sine wave; we had some big wins but we also had some really rough sailing. (Sailing…wave…see what I did there?). The news is still coming in at a rocket-fueled rate, so who only knows where we’ll be this time next week. For now, the Russia section stays in place, though I’m broadening it to talk about Constitutional issues generally, because that doesn’t seem to be slowing down much (and we now have at least three different potential Constitutional crises in play).

Standard standing reminders apply: I am no journalist, though I play one in your inbox or browser, so I’m only summarizing the news within my area of expertise. This week also contains multiple headlines outside my area as a legal generalist — still a lawyer, not a spy! — but all offroad adventures are marked with an asterisk. Okay, I think that’s about it for the disclaimers. Onward to the news!

Constitutional Crisis Contenders:

It’s starting to get legitimately hard to keep track of all the various unconstitutional things happening, so this new section is probably here to stay. Your handy-dandy neighborhood legal generalist turned announcer is here for you — let me just get my megaphone…

Okay, are you ready? Yeah, me neither, but here we go. In the first corner: The Russia Collusion Investigation! Come for the sketchy backdoor dealings, stay for Flynn’s likely flight from the country!

In the second corner: Remember the Emoluments Clause? Still a thing, at least on Constitutional paper!

  • Oh, That Pesky Constitution. The by-now-traditional weekly “I can’t believe I’m not making this up” award goes to the Trump Organization announcing that it’s not going to bother to comply with the Emoluments Clause of the Constitution. Specifically, the organization noted that compliance “is impractical” and “would impede upon personal privacy and diminish the guest experience of our brand.” Unsurprisingly, Elijah Cummings (ranking Democratic member of the House Oversight Committee) shot back a very angry three-page letter explaining how and why this was unacceptable. The legal dream team suing Trump over this issue, meanwhile, has probably already mailed Cummings a fruit basket and a subpoena.

And in the third corner, because technically a ring has four of them: Reigning champion Free Press!

Which the first two contenders are joining forces to beat down; ouch, that’s gotta hurt. Here’s hoping the First Amendment team can tag in partner Judicial Enforcement before it’s too late!

Your “Normal” Weird:

  • Official Word on Haitian TPS. The Department of Homeland Security announced this week that it plans to extend Haitian temporary protected status — but only until until January 2018. This six-month extension is considerably shorter than the customary eighteen months, though it does give Haitian families — some of whom have been living here in the United States for seven years — more time to plan. The move is probably intended to be a compromise between letting the status expire outright and extending it through the normal process. Either way, it’s an odd move likely to leave literally everyone displeased, as is the way of compromises.
  • Poverty State of Mind. Ben Carson continues to be a walking font of bad quotes and no housing experience, this time announcing that “poverty is a state of mind” that people can overcome “in a little while” if they have the right mindset. Needless to say, people were less than impressed by this opinion; my favorite is the person who wants to know if they can pay their rent with the power of positive thinking. (Also, though Carson’s statement was laughably, painfully asinine, I do want to make an important subtext into text here: Simply rising to the top of the waiting list to access the public housing offered by Carson’s department frequently takes several years. It is irresponsible and concerning in the extreme to hear the director of the program publicly deny that reality, and it doesn’t really matter whether he honestly believes what he is saying — his words belie a fundamental lack of concern and empathy for his department’s recipients either way.)
  • Who Wants to Be an FBI Director? Apparently not many people, if the list of candidates withdrawing from consideration the position is any indication. Most notably, Joe Lieberman and Richard McFeely withdrew from consideration this week, despite being among the four candidates to interview at the White House. This leaves only two interviewed candidates in the running from an original list of about fourteen — acting director Andrew McCabe and former Oklahoma governor Frank Keating. The withdrawals may put former Republican Rep Mike Rogers back on the list, since he’s apparently popular with the FBI, if Trump doesn’t want to appoint McCabe or Keating; we’ll have to see what happens from here. At any rate, having six people drop out from consideration on a position this high-up in government is incredibly bizarre, and speaks to how little people now want to work with this administration.

The Bad:

The Good:

  • Voting Rights Win. The Supreme Court published a really important opinion on voting rights this week, affirming the North Carolina appeals court’s view of illegal gerrymandering in two districts 5–3 (with Gorsuch, who was not yet a justice during oral argument, recused). The court held that racially motivated redistricting is unconstitutional even when those districts also reflect political party affiliations, and rejected the government’s ridiculous argument that the Voting Rights Act of 1965 required racially motivated redistricting. Basically, the court said that race can’t be the strongest consideration in redistricting, and it also can’t be used as a proxy for political affiliation. The case potentially paves the way for more robust voting rights protections by linking racial discrimination to party affiliation, especially because redistricting needs to be done for 2020. Texas, you’re on notice now.
  • Travel Ban Still Illegal. The fourth circuit upheld an injunction put in place on the travel ban by a federal district court this week, leaving the stay on enforcement in effect. The opinion is very long — about 200 pages, all told — but it focuses primarily on the Establishment Clause in its substantive reasoning, saying the Executive Order “drips with religious intolerance, animus, and discrimination” and the plaintiffs are likely to succeed on the merits of their constitutional challenge. Much like earlier court cases, the fourth circuit case focuses on the extensive public statements made by the President and his advisers to determine a bad faith intent to discriminate against Muslim people in both executive orders. Sessions has indicated that he plans to appeal the order to the Supreme Court.
  • Modest Sanctuary City Win. Sessions issued a memo finally defining just what “sanctuary jurisdiction” actually means, and backing off of previous threats to cut funding in the process. The memo was likely in response to a recent federal court opinion that found the order unconstitutional. The new version applies only to federal grants from the Justice Department and the Department of Homeland Security (though that still covers a lot of ground), and specifically defines sanctuary as “jurisdictions that willfully refuse to comply with [federal law requiring disclosure of legal status to federal officials].” This means that cities fighting with the federal government about whether to hold individuals on “immigration detainers” are not considered “sanctuary jurisdictions” on that basis alone. This new version will probably still be challenged in courts, because restrictions on grant funding are traditionally a legislative matter. In the meantime, we now have a definition of what compliance is actually being mandated, and many, many grant recipients can breathe a bit easier because their funding is not tied to the provision at all.

Though it may not be immediately obvious, all of these court cases are really big wins, especially the voting rights case; for now, it seems apparent that our court system is still functioning normally, and is taking steps to limit the ongoing creep of fascist infrastructure and preserve free elections and religious freedoms. It will also be very interesting to see what the current Supreme Court does with the growing body of travel ban cases.

And that’s all the news at this very moment, though I bet that will change within an hour of posting. Onward we row along…

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