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Professional Troublemaker

 Jonathan Corbett, Civil Rights Advocate

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Legal Rants

Is Pushing Someone on Train Tracks “Attempted Murder?”

I have to admit: when real life presents hypotheticals that are academically interesting for lawyers, I get a little bit excited.  Last year, a man named Kimani Stephenson made one for the law books when he pushed a woman onto New York City subway tracks.  The victim described it as follows:

“This guy, he came up behind me and he grabbed one of my boobs with one hand, and he grabbed my vagina. I told him to fuck off, and he pushed me onto the train tracks,” she recalled.

“There was no train coming, thank God,” Currie said. “I keep playing the scenario over in my head. There weren’t any MTA police on that particular track, so I don’t know what I would have done if there hadn’t been bystanders.”

Clearly, the defendant is guilty of assault and other crimes, but is he guilty of attempted murder?

At common law (the law we inherited from the British), attempted murder requires 2 things: 1) taking an action towards the death of someone (a “substantial step”), and 2) the intent that your actions result in the death of that person.  That second part is called a “specific intent” requirement.  That is, it’s not enough that you did what you did on purpose, but rather that you must, in your own mind, intend a specific result.  Modern New York law on the matter doesn’t substantially deviate from the common-law view.

The first element is not very interesting: pushing someone on a train track is undoubtedly a substantial step towards murder.  The second element is where the fun is.  Like any good law school essay question, you can argue that specific intent both ways.  You can argue that one doesn’t push someone onto train tracks unless they want them to die.  However, if your law school essay doesn’t also pick out the words, “There was no train coming,” you lost major points on this question.  The defense will argue that pushing someone onto an empty train track is unlikely to cause death and shows that the defendant didn’t actually intend that the victim die from the actions.

But New Yorkers love throwing the book at the bad guy, and so when Manhattan ADA Maxine Rosenthal decided to press attempted murder charges, the local Reddit community cheered:

Reddit Does Not Like Kimani

…and I was mocked for being a soft on crime or ignorant on the law, including by several “Internet lawyers,” for trying to explain the above…

too_soft

Unfortunately, no charity will be getting a $500 donation, as a Manhattan jury acquitted Mr. Stephenson of attempted murder last week:

“We felt he acted in a fit of rage and he wasn’t thinking enough to have premeditated anything,” said juror Catherine Wald, 64.

“There was no argument, proof or any evidence he had intent in the moment to kill her even though we all got convinced he was the perpetrator,” added foreman Dmytro Zhuravtsky, 44, who works in quantitative research at a large financial institution.

Fear not: the perpetrator still faces 25 years in prison on the first degree assault charge (which, if I’m reading correctly, comes with a 5 year mandatory minimum).  But, say it with me: it’s not attempted murder unless the defendant actually intended that the victim die.  On the situation presented here, I don’t know how the ADA intended to prove the specific intent beyond a reasonable doubt.  The charge should not have been brought.

The ADA and defense counsel were contacted for comment but have not replied as of the publication of this story.

Nassar Judge Wishes She Could Sentence Defendant To Be Raped In Prison

Judge Rosemarie AquilinaLarry Nassar, the infamous USA Gymnastics doctor recently convicted of sexual assault upon children and possession of child pornography (some of which he made himself), is, to say the least, not a likable guy.  Considering that he is now 54 years old and was sentenced to 60 years on the federal child pornography charge last month, he already had an effective life sentence before today’s sentencing on the state sex assault charges.

At today’s sentencing, Michigan Circuit Court Judge Rosemarie Aquilina decided on a sentence of 40 to 175 years for the sexual assault charges.  Considering he plead guilty to assaulting 10 children and nearly 200 others have accused him of the same, that sentence isn’t at all surprising.  What did surprise me, however, were the comments coming from Judge Aquilina:

“It is my honor to sentence you because, sir, you do not deserve to walk outside of a prison ever again. Anywhere you walk, destruction would occur to those most vulnerable. I just signed your death warrant.”

Perhaps it’s just because I’m preparing for a law school ethics exam, but this immediately suggested judicial bias to me.  A judge has a duty to recuse his or herself in the event of either personal bias or the appearance of the same.  By itself, this probably would not be enough to prove judicial misconduct, but was enough for me to read through coverage of earlier proceedings, where Judge Aquilina stated as follows:

“Our Constitution does not allow for cruel and unusual punishment. If it did, I have to say, I might allow what he did to all of these beautiful souls, these young women in their childhood, I would allow some or many people to do to him what he did to others.”

Did she seriously just say that, if not restrained by the Constitution, she would hand out sentences that ordered the sexual assault of a convict?  This makes me question not just her personal bias but her fitness to be a judge.  Rape is not acceptable in our society, it’s not “funny” or “cool” or “tough” to wish it on someone, and that doesn’t change if it takes place in a prison or if the victim is an evil person.

If our goal is to dismantle the “rape culture,” Judge Aquilina’s comments are not helpful in moving us forward.  Mr. Nassar’s victims deserved justice, and in order to best deliver that justice and ensure no possibility of appeal for judicial misconduct, comments like the above should be omitted from the courtroom.

Trump Nominates Man with Less Courtroom Experience than Me for U.S. District Judge

Meet Matthew Spencer Petersen:

Mr. Petersen heads the Federal Election Commission’s legal team and has some experience with election law.  But in the video above, you’ll see that under questioning, he revealed that:

  1. He’s never tried a case to completion in either state or federal court
  2. He’s never even argued a motion in either state or federal court
  3. He doesn’t even know what certain motions are
  4. He hasn’t read the Federal Rules of Evidence since law school
  5. He hasn’t read the Federal Rules of Civil Procedure since… well, he didn’t actually even answer that one

President Trump submitted this man to the Senate for confirmation as a United States District Judge, a lifetime appointment to an extraordinarily powerful position.  A U.S. District Judge has the authority to issue restraining orders against the federal government, decide death penalty cases, and safeguard (or disregard) constitutional rights.

Yet the man that Trump wants to have the job has never been a judge.  He’s almost never been in a courtroom.  This man is utterly unqualified, and to make the point, this year I — as a law student — can answer all of those questions more favorably than he can.  I’m in no way qualified to be a U.S. District Judge, but this appointment is merely a joke that’s not funny.

If you didn’t hear about Mr. Petersen, perhaps it’s because you watch Fox News, which reported the hearing like this:

They entirely left off the part about the unqualified man being destroyed during a confirmation hearing, presenting the day as an epic win for Trump because the Senate confirmed 2 out of 5 of the President’s nominees.  Now that is fake news.

No, Sex Offenders Shouldn’t Get Marked Passports

The media has reported that the U.S. State Department has begun revoking the passports of certain sex offenders and requiring them to get new passports that will now conspicuously state:

The bearer was convicted of a sex offense against a minor, and is a covered sex offender pursuant to 22 United States Code Section 212b(c)(l).

IMG_20171106_230520Definitely not the endorsement I’d prefer to have on my passport.  Diving a bit deeper into the law, the change seems mandated by Congress in a fairly bi-partisan bill in 2016, quickly signed by President Obama.  It applies to all “covered sex offenders,” which in this case means you’re been “convicted of a sex offense against a minor” in any state and that you’re still subject to any state’s sex offender list registration requirement.

There are many reasons why this is a dumb idea (none of which are that sex offenders don’t deserve to be punished).  Allow me to propound a few:

1. Our Current Sex Offender List System is Broken

I think we can all agree that once a sex offender has served his or her time in prison, our #1 goal should be to ensure that they do not re-offend upon release.  So what do we do?  We make it so that they can’t ever get a decent job, we make it so that they often cannot find affordable housing and live or even live with their families, we stigmatize them wherever they go, and if they slip up with often onerous registration requirements, it’s back to jail.  All by putting them on “the list.”

Miami, for example, bans sex offenders from being within 2,500 feet of where children “congregate.”  That’s half a mile.  How many apartments in your community are not within half a mile of a school or a park?  The result: dozens of sex offenders live under a bridge, because there is simply not enough housing outside of 2,500 feet to house them all.

To many, the above yields a response of, “Good, they deserve it.”  But, lack of empathy notwithstanding, the problem is that someone with a job and a stable home is going to be far less likely to re-offend than someone who’s forced to live on the streets with a bunch of other sex offenders.  You might not like the idea of helping a rapist get back in the workforce, but failing to do so increase the risk of a new victim.

Until we reform our current sex offender list systems, I’d oppose any attempt to expand them.

2. The Government Has Lied About Recidivism

“[T]he average member of the general public believes that 75 percent of sex offenders will reoffend,” according to a study on the matter.  Indeed, the U.S. Supreme Court itself has quoted “80%” as being the recidivism rate.  McKune v. Lile, 536 U.S. 24, 33 (2002).

But as the New York Times recently reported:

A few years ago, Ira Ellman, a legal scholar affiliated with the Center for the Study of Law and Society at the University of California, Berkeley, and the researcher Tara Ellman set out to find the source of that 80 percent figure, and what he found shocked him. As it turns out, the court found that number in a brief signed by Solicitor General Ted Olson. The brief cited a Department of Justice manual, which in turn offered only one source for the 80 percent assertion: a Psychology Today article published in 1986.

Needless to say, the author of the Psychology Today article has recanted his number, and that most actual scientific studies put the actual 3-year recidivism rate at 3.5%According to the Department of Justice, “Within 5 years of release, 82.1% of property offenders were arrested for a new crime, compared to 76.9% of drug offenders, 73.6% of public order offenders, and 71.3% of violent offenders.”

So, no, these lists are not justified by some special risk of recidivism inherent to this particular type of crime.  All criminals released from prison have a risk of a repeat, but the number for sex offenders simply is not that high.

3. It’s a Lot More Than Child Molesters

Let’s say you’re a mid-20s guy and you head out to a bar in Venice Beach, CA.  You meet a beautiful girl inside and end up taking her home with you.  Just to be extra careful, you check her ID, which indicates that she’s 21.  But after you have sex, you learn she’s not — she’s actually 17.

If you get caught, even though you met her in a bar and you checked her ID, you’re going to jail and you’re going to be on the sex offender list, and now you’re getting your passport revoked so that the government can add a scarlet letter to the new one.  Even if you went through heroic efforts to ensure that she was of legal age, mistake is no defense in California (as in most states), and you’re… well… fucked, so to speak.

In some states, public urination is a sex offense.  If you do it near a school, or a child happens to see you, does that qualify you for the new visa marking?  It very well may.  Same with the teenage couple where one is a little over the age of consent and one a little under.  Same with the teen convicted of possessing child pornography of his or herself.

Frankly, our sex offense laws are inconsistent and often unjust (and that goes both ways — there are also many who should be punished that are not).  Until the laws are fixed, we should not be adding to the problem with new punishments also to be implemented unjustly.

4. So Why Not Murderers?  Drug Traffickers?  Mafia Members?

If we’re going to release dangerous people from prison — and why we apparently do that is beyond the scope of this post — why treat a sex offender worse than a murderer?  Why not add a label for people who smuggle drugs when they travel (something actually relevant at the border)?  What about international mobsters?

Because this is just like the TSA — it’s security theater.  These are measures that make people feel good, or at least feel like Congress is doing something, even when they’re not.    The U.S. already sends sex offender information to many foreign countries as our citizens depart for them.  This law just allows our legislators to go home to their constituents and pretend that they did something to protect the children.

5. These People Have Already Served Their Time

I think there should be significant prison sentences for sex offenders — enough to strongly deter them and others from committing the crime and to rehabilitate the offender as much as possible.

But once a person has re-paid their debt to society, it’s simply unfair to add a new penalty.  So-called “ex post facto” laws are forbidden by the Constitution, but we get around that by pretending that these registration requirements are not criminal laws but rather public safety laws.  That distinction is certainly not comforting to those who can’t get jobs or find apartments as a result.

Again, many perhaps don’t care, or will frame this as being “sympathetic to sex offenders.”  But as a civil libertarian, I know that the easiest way for our rights to be eroded is to blame terrorism or pedophiles.  Nearly every privacy grab has been on one of those two bases, from secret FISA spying to warrantless searches of digital devices at the border.  Let’s not put up with infringements of the rights of sex offenders just because we don’t like them, because once sex offenders lose those rights, the rest of us do too.

Should Universities Really Be in the Business of Adjudicating Rape Claims?

Betsy DeVosA few days ago, Secretary of Education Betsy DeVos rescinded informal guidance given by the Obama administration to universities as to how to apply “Title IX” — a law prohibiting discrimination based on sex in schools that accept federal funding.  Despite the public outrage and my general feeling that Secretary DeVos is unqualified for her role, I think she may have gotten this one right.

Why would I say such a thing?!

The guidance that she cancelled, known as a “Dear Colleague Letter” (full letter) attempted to persuade universities in particular to step up and deal with sexual violence on-campus.  This is, indeed, a laudable goal: no one should be subject to any kind of violence while pursuing their education, and sexual violence is a particularly pernicious and all-too-common strain of violence present in American colleges (…and it’s not just an American problem).  The problem is that Title IX deals with sex discrimination, and has been interpreted expansively to cover sexual harassment, but expanding even further to sexual violence is something that Title IX simply lacks the basis and framework to do.  The result: universities that attempted to implement the Obama-era guidance found themselves veering into the fields of law enforcement, prosecution, and the running of trials, when they were ill-prepared to do so.

Case-in-point: Doe v. University of Cincinnati, 2017 U.S. App. LEXIS 18458 (6th Cir., Sept. 15th, 2017).  “John Doe” was accused by “Jane Roe,” both students at University of Cincinnati, of having sex with her without her consent (something the court puzzlingly fails to call “rape” at any point in its 19-page opinion), while John maintained that the sex was consensual.  Jane made the accusation 3 weeks after the alleged incident.  “UC’s Title IX Office waited a month to interview Roe, another four months to notify Doe of her allegations, and yet another four months to convene the … hearing.”  Despite Jane failing to appear at the university hearing, John was found responsible for violating the code of conduct — in other words, the university alleged he was guilty of rape without any in-“court” testimony against him — and suspended him for 2 years.

Let’s be clear here where the university and even the courts were not: John isn’t accused of some kind of mere college code violation: he was accused of rape.  He would never be able to honestly explain to a potential employer the gap in his education and would certainly be infamous on his campus as the local rapist any time he stepped foot near the school.  And so, the U.S. Sixth Circuit Court of Appeals affirmed a lower court ruling enjoining the university from enforcing the suspension on due process grounds, ruling that the absence of any witnesses against him actually appearing and answering questions at a hearing, especially in combination with the school’s failure to promptly investigate and adjudicate the matter, did not constitute a fair hearing and thus was insufficient for the state (of which the public university is an arm) to take a life-ruining action against him.

It is certainly a good thing for colleges to have a mechanism to resolve petty disputes between fellow students, as well as to have programs to reduce sexual harassment and resources to support those who have been victims of any and all kinds of traumatic experiences.  In the case of actual sexual violence, however, why would we not turn the case over to real authorities, who have real resources to investigate this real felony allegation, to be tried in a real court, and upon conviction result in a real prison term?  It would seem to me that UC’s system is fair to neither the accuser nor the accused.  If this woman was indeed raped, a 2-year suspension from college is hardly sufficient punishment for the man who violated her.  And on the other side, anyone facing such a serious accusation deserves the rights we give to criminal defendants: to confront his witnesses, to gather and present evidence, to be represented by competent counsel, and to otherwise have the very fundamental things that we in this country take for granted as necessary before society will take away someone’s liberty.

Secretary DeVos probably could have accomplished the above by modifying, rather than rescinding the entirety of, the Dear Colleague Letter.  But, to the extent that her point was that schools should be in the business of educating, not in the business of operating as a complete legal system, I think she may have a point.

What Donald Trump Has Done to U.S. Department of Justice is Shameful

comeyThe U.S. Department of Justice is opposing counsel in about half of the cases I litigate; needless to say, I am no apologist for them.  At the same time as being frustrated by their, for example, analogizing my legal arguments to those of a terrorist, doing their best to keep evidence out of the courts, and even obtaining a special gag order just for me, I respect that they serve an important role in seeing that justice is served in our country.  Unlike the TSA, which should be disbanded rather than corrected, the DoJ should be an institution in which we continually place intelligent, loyal, and non-partisan civil servants.

Instead, Donald Trump has done the following:

  1. Appointed then Deputy Attorney General Sally Yates as Acting Attorney General, and then fired her 10 days later.  The Attorney General is the highest position in the DoJ, which encompasses not only the U.S. Attorney’s Office, which we usually associate with them, but also a host of sub-agencies, including the FBI, DEA, and many others.  Why did he fire her?  According to him, it was because she refused to defend his Muslim Ban on the grounds that the Executive Order was indefensible (virtually every federal judge to hear the matter has agreed).  As the nation’s top attorney, she is obligated to uphold the law and cannot defend law that she believes is unconstitutional.  But, it’s also interesting to note that she was fired on the same day that she, correctly, informed the President that his National Security Advisor Michael Flynn was compromised by Russia and Turkey.
  2. Fired Legendary U.S. Attorney Preet Bharara.  If there was one high official in the DoJ who deserved respect, it was Mr. Bharara, U.S. Attorney for the Southern District of New York.  His district contained Wall Street, and he was well-known for aggressively prosecuting financial crimes including the likes of Bernie Madoff.  But, he was also well-known for fighting public corruption and taking down many a politician in New York, and some speculated he “could be reviewing a range of potential improper activity emanating from Trump Tower and the Trump campaign.”  Trump never offered a reason for firing Mr. Bharara.
  3. Fired FBI Director James Comey.  Being overseas at the moment, I was shocked to wake up this morning to read that Trump has fired the head of the FBI (which, as mentioned, is a sub-agency of the Dept. of Justice).  Officially, Trump’s position was that Comey was fired for mis-handling the Clinton e-mail scandal by stating last July that she would not likely be prosecuted.  This begs the question, though: why now?  In a bizzare 1-page termination notice, Trump takes time time to note his “appreciation” that Comey has “informed” him repeatedly that he is not under investigation.  But the fact remains, of course, that the FBI is actively investigating Russian influence on the election.  It is also worthy of note that U.S. Attorney Jeff Sessions officially gave Trump the recommendation to fire Comey.  Mr. Sessions, after public and Congressional outcry, had recused himself from the Russia investigation… yet now fired the person who was in charge of it.

To be perfectly blunt, it seems to me, based on this pattern of firings, to be far more plausible that Trump has fired these people for not just political reasons, but in order to prevent the exposure of anything from poor decision making (e.g., accidentally hiring a foreign agent to lead the country’s intelligence community) to lying to secretly working with foreign nations.  And, were I Donald Trump and had I nothing to hide, I would certainly at least be aware of the public perception I would be creating by firing these career administrators.

To any extent that Donald Trump has “drained the swamp,” he has either replaced it with new swamp or failed to replace it at all, leaving a hole in our nation’s ability to function.  People like Preet Bharara are not easily replaceable, and Trump should have been begging him to stay rather than asking him to leave.

What Trump has done to the DoJ is shameful.   And, it should go without saying that a special prosecutor needs to be appointed to continue any investigation that Comey was up to before he was fired, because whether or not there’s anything to uncover, the administration of justice requires impartiality beyond what Trump’s team has afforded us so far.

United Airlines Fiasco: Was It “Legal?”

United GestapoMost have heard by now of the blunder by United Airlines in forcibly removing a man who had paid for a ticket and already taken his seat on the airplane so that they could instead accommodate some of their own employees.  The man was injured when airport police apparently dropped him in the process, and the video taken by other passengers went viral.  To add some gasoline to the fire, the CEO of United tweeted to “apologize for having to re-accommodate” the man, proving that the company obviously misses the point.  This all comes two weeks after the airline was lambasted in the media for its sexist dress code when they denied boarding to two young girls in leggings (this time before the passengers entered the aircraft).

But, the question that I’ve received at least a dozen times in the past 48 hours is: Was what United did legal?  Relatedly, was the man doing something illegal?  Will he win in a lawsuit?

Let’s find out…

Could United legally remove him from the flight?

The answer to this question is “certainly yes.”  Here’s why.

When you are given permission to enter upon the property of another, legally you are given what is called a “license.”  The biggest difference between a “license” to use property and having, say, a lease giving you the right to exclusive possession of the property for a period of time, is that the license is freely revocable at all times, regardless of whether the licensee and licensor have a contract that says otherwise.

Why?  Because we are dealing with two different areas of law here.  Property law governs the ownership of property and the rights and responsibilities of property owners.  The above rule about revocability of licenses comes from property law.  Contract law, on the other hand, generally allows any party to breach their contract duties at any time, under penalty of having to pay damages to the non-breaching party (see also: “efficient breach” theory).

So, the question of whether the contract of carriage allowed United to remove this man is entirely irrelevant as to whether they had the power to do so.  Either way, United could legally oblige him to leave the aircraft because they are “allowed” to breach any contract they may have had with him, but if he had a contract allowing him to stay, he gets to ask for money.

Was the man doing something illegal?

A friend of mine, who is usually quite on top of things, pointed out that federal law requires compliance with crewmember instructions.  Or, at least, that’s what that pre-flight announcement says, if you aren’t busy blasting music through your headphones during the process.

Yes, but, no…

14 C.F.R. § 91.11 – Prohibition on interference with crewmembers.

No person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.

While some kinds of defiance may qualify as interference, the duty only attaches while the aircraft is “being operated.”  Before the doors close, not so much.

It is possible he could be charged under some state law for trespassing or resisting the officers, since as discussed above, legally he was obligated to leave, and therefore the officers had the lawful right to use reasonable force to remove him.  It is also possible that he lacked the intent required to be charged, since he believed he had the right to be here — a review of the law of the relevant state would be required and is outside of the scope of things that I care about, and thus this blog.  But, these would be petty misdemeanors, rather than a federal felony, and I do believe the police are now sufficiently embarrassed as to their inability to safely move one man 20 feet without sending him to the hospital that he will face no charges.

Will he win in a lawsuit?

Against whom?  For what?

The police?

In order to win against the police, since the officers were lawfully entitled to remove him, he would need to prove that the force they used was unreasonable.  That is, there was a safer way to do it, and a reasonable police officer under these circumstances would have done so.  This is regardless of whether he sues in battery (where “reasonableness” will be a defense) or in negligence (where lack of reasonableness will be an element of the tort).

This is a question for the jury, so I’ll leave it to you guys.  Watch the video with the fact that the police did have the right to eject him in the back of your mind.  Your verdict of liable or not liable depends on whether the police did the best they could given a non-compliant passenger, or whether the means by which they ejected him was unreasonable.

The airline?

The more interesting one.  The “for what” part of the question definitely matters.

  • For breach of contract?  Well, he paid for them to take him to another city, and they didn’t do so; therefore, United certainly owes him for the flight.  However, how much they owe him turns on whether he was “denied boarding” or not.  The reason is that federal law directly covers “denied boarding,” allows an airline to do it regardless of contract law, and provides a fixed payment schedule for how much the airline will owe the passenger for having done so.  Four hundred percent of the fare, to a maximum of $1,350, to be exact.  The question is whether asking someone already on the plane to leave is “denying them boarding.”  I fear the answer will probably be that it is, as the intent of the law was to cover refused transport without any reason to think that the Federal Aviation Administration intended to distinguish between refusal issued before or after the person passes the gate agent.  But, if not, United Airlines will be liable in contract for all foreseeable damages.  This includes not just the cost of the ticket, but a missed hotel reservation in his destination, missed work in the morning, alternate transportation (to the extent that it is more expensive), etc.  It does not include the police breaking his face — it is not “foreseeable” (although not really surprising either).
  • For his physical injuries?  United won’t be liable in contract for his physical injuries, but how about in tort under battery or negligence theories?  Were the people who took the man off the plane United employees or even contractors, yes, they might be liable for the battery or any negligence.  But, reports are that these were airport police, and as United does not have any control of how the police do their job, they do not have any liability.
  • For anything else?  It’s time to get creative here.  I think this man’s best chance of tort recovery is negligent infliction of emotional distress.  NIED requires two elements that are fairly obvious: 1) negligence, and 2) emotional distress.  Let’s assume he can prove the second, as his face was broken on video that was now seen around the world, and he can probably show that he was traumatized by the event.  Was United in any way negligent?  Well, would a reasonable airline have made sure that they were not oversold before boarding passengers?  Would a reasonable airline have found another way to deal with the situation?  Was emotional distress a foreseeable possibility?  These are the tough questions that any lawyer for this man will have to prove in court.  Luckily, United will be anxious to settle with this man after watching their stock value plummet $800,000,000 on Monday, and so this case will probably never make it to the clerk’s office, let alone a judge and jury.

The tl;dr version is that United was probably, mostly, in the legal right.  But, something need not be legally wrong to be morally wrong, or to be a good reason not to do business with someone, or to make you the butt of every joke on the Internet.  United cost itself a lot of money for doing something that its customers don’t like and then pretending that it was no big deal, and this loss will be far greater than anything the man can hope to win in court.

What a President Can Do With an Executive Order — And Why Trump’s Muslim Ban is Illegal

trump_signingOn Sunday I published a post about Trump’s “Muslim ban,” a decision to exclude green card holders and refugees from 7 Muslim countries.  The post was the most shared on this blog ever (over 10,000 shares on Facebook alone!), and attracted a lot of comments.  Some people felt that Trump’s decision, which he made by “executive order,” was perfectly legal.

Is it?

Well, let’s start with what a President does.  We know he runs the executive branch, but what does that mean?  The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority), and we can mostly divide what a President does into two categories:

  1. “Foreign stuff” – The President is our chief diplomat, the commander of our military,  and the person with whom other countries must negotiate when they want something from the United States.  These powers are granted in Article II, Section 2, of the Constitution.
  2. “Domestic stuff” – Some of this we’re familiar with: things like signing and vetoing laws, appointing U.S. Supreme Court justices, granting pardons, and the like.  These powers are also granted by Article II, Section 2.  Then there are the powers granted by Congress to run more day-to-day affairs.  Through the use of agencies, such as the FCC, FDA, FBI, and hundreds of others, the executive branch accomplishes its work, and the President is the head of those agencies.  And, sometimes Congress gives power specifically to the President rather than to an agency.

With this background, an executive order is a direction that an agency of the government enforce the law in a certain way, or to make a formal use of a power specifically granted to the President by Congress.  Since 1907, the Office of the Federal Register has cataloged and numbered each executive order — the Muslim ban order was #13769.

When it comes to agencies, the President gets to fill in the blanks.  So, a President could order the FBI to step up their enforcement of marijuana laws because Congress allows the FBI to enforce the laws, but didn’t specify how much emphasis should be placed on marijuana.  A President could also order the IRS to send bills to taxpayers only in gold-foil envelopes, because Congress authorized the IRS to send bills, but did not say what the envelopes in which they are sent must look like.

But, the President may not order something contrary to the law, nor fill in the blanks where there are no blanks to fill.  For example, Obama couldn’t order the FCC to confiscate the cell phones of those who text-and-drive, because that doesn’t fit into any grant of power by Congress to the FCC.

So, did the President issue the Muslim ban order pursuant to a legitimate grant of power by Congress?

No.  Here’s why.  Trump could try to defend his actions on the basis of a law passed by Congress numbered as 8 U.S.C. § 1182(f), which states in part: “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or non-immigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”

At first glance, it does seem like Congress authorized the President to discriminate against anyone as long as he deems it necessary or appropriate.  But, if you scroll back up to the top of the page and read one sentence a little more carefully, you may see Trump’s problem: “The President’s authority comes from the U.S. Constitution (either directly or from Congress giving him some of their authority)…”

Congress cannot give the President authority which it does not have to give.  The U.S. Constitution does grant Congress the authority to deal with immigration, but that authority is restrained by limits set by other parts of the Constitution.  Specifically, the 14th Amendment reads in part: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

This is the “Equal Protection Clause” you’ve surely heard of, and the U.S. Supreme Court has broadly interpreted it to prevent the government from discriminating against any race, religion, or national origin (among others), unless the government has an extraordinarily strong reason for doing so and cannot do so in another way which would be less discriminatory.  (It has also applied the 14th Amendment to the federal government even though the text of the law uses the word “states.”)

This is, in my opinion and the opinion of every federal judge to consider the matter so far, where Trump must fail.  Congress does not have the authority to give Trump a power that violates the Equal Protection Clause, and therefore to the extent that 8 U.S.C. § 1182(f) may purport to do so, it is void.  People may argue about whether the government has a compelling reason to discriminate here, but there is little argument that there is not a way to secure our country in a less discriminatory manner.  Trump’s order is, therefore, illegal.

Federal Judge Sends U.S. Marshals to Prevent Trump from Enforcing Muslim Ban

foreign-us-customsOn Friday, our new President signed an executive order banning those from 7 Muslim countries from entering the United States, even if they had been granted refugee status, and even if they were green card or visa holders.  This blatant discrimination based on national origin (and, let’s be honest, it’s really based on religion, given that all 7 countries are Muslim-majority and Trump had flat-out said he would ban Muslims during his campaign) guaranteed a legal showdown which began yesterday after at least a dozen people with passports from those 7 nations were detained at JFK airport in New York.

Yesterday, attorneys for Hameed Khalid Darweesh filed a class action lawsuit requesting a writ of habaes corpus (court order to free a person) on behalf of Mr. Darweesh, who apparently was detained under this new order, and anyone similarly situated to him.  It’s worthy of note that this man is a refugee from Iraq who cannot return to his home country because he assisted the U.S. military during our operations there.  Filed with his petition was a motion for an emergency temporary restraining order, asking the court to prohibit U.S. Customs & Border Patrol from enforcing Trump’s order, and U.S. District Judge Ann Donnelly, after conducting an astoundingly prompt hearing,  granted that request, ordering all officers of the United States be:

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

This is widely reported by the media (CNN, The Guardian, New York Times), but perhaps because of the late hour and lack of legal analysts on hand, they missed the significance of the next paragraph of Judge Donnelly’s order:

IT IS FURTHER ORDERED that to assure compliance with the Court’s order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshal Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

I’ve never seen an order like that directed against the U.S. government in my life.  What the judge just did is sent federal law enforcement affiliated with the court to JFK airport to make sure other federal law enforcement obeys the order.  In other words, Judge Donnelly does not trust that the Trump administration will follow the law and pre-emptively sent muscle to carry out her order.

If you’re to believe the Daily Kos, a source that I don’t necessarily consider reliable due to political bias on par with Fox News, but in the other direction, the U.S. Marshals were sent with good reason: they report that in other airports, U.S. Customs & Border patrol has ignored the order.  [Update: The Guardian also reporting non-compliance by CBP.]

If Trump chooses to direct his agencies to ignore court orders, this could be a very rapid beginning and end to his administration, as I cannot imagine Congress not impeaching a president who does so.  This situation may come to a head quite soon… stay tuned…


“Jon Corbett is a civil rights advocate known for filing the first lawsuit against the deployment of TSA nude body scanners, as well as defeating the body scanners live in ‘How to Get ANYTHING Through TSA Nude Body Scanners.’  Presently a law student, he continues to advocate for travel and privacy rights.  Twitter: @_JonCorbett, Web:https://professional-troublemaker.com/

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