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On February 9th the political drama of President Trumps executive order took an old turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle. This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order stopping immigration from seven specific countries. He did so under a federal statute - 8 USC 1182(f) which states:

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 nonimmigrants

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence.

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The case was before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked. In its brief the Trump Administration asserted that the executive order was lawful under section 1182, and the states of Washington and Minnesota, in part, argued that the executive order violated section 1152. The stated goal of the executive order was, to prevent infiltration by foreign terrorists or criminals and pursuant to that goal, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days. The state response was that the suspension was a vainly disguised ban on all Muslims; which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Minnesota asserted, in part, because they had a weak argument standing on section 1152 alone. The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing.

The opinion asserted that under the Fifth Amendment Due Process clause, the executive order violated the rights of legal residents, citizens and aliens who wish to return to the United States and travel from the United States. The Government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them. That should have made the entire issue regarding the order and its application to legal aliens and citizens moot! But the court held that since the order was applied to citizens and legal aliens in the first two days of the order and there was no official proclamation from the President himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future. As such, the executive order violated the Fifth Amendment.

To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, aliens who are not in the United States have no right to a visa. The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen. It is true that illegal aliens have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed. It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this the court held that aliens who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the aliens behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO. The Government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

But this error may not be long lived. A day after the decision, the Chief Judge of the Ninth Circuit informed the Government and the states of Washington and Minnesota that a judge on the court had made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel . . . should be reconsidered en banc. The court explained in a press release that under Federal Rules of Appellate Procedure and the Ninth Circuit General Orders, a circuit judge can also request that a vote be held on whether a decision should be reheard by an en banc panel, even if the parties have not requested it. This procedure is termed a sua sponte en banc call. The Chief Judges order gave both parties a deadline of February 16th setting forth their respective positions on whether this matter should be reconsidered en banc. The court explained in its release that after the briefs are filed, a vote is scheduled on the en banc call. . . .If a majority of the active, non-recused judges vote in favor of rehearing en banc, then the case is reheard by the en banc court. ... The en banc court consists of the Chief Judge, and ten non-recused judges who are randomly drawn.

With such a request it is almost certain that the Ninth will review the decision en banc. Because many believe the panel decision was wrong on the law, there is a good chance this decision will be overruled.

Arthur Garrison is an assistant professor of criminal justice at Kutztown University.

The rest is here:
ARTHUR GARRISON: Trump's order and the Ninth Circuit Court got it wrong - The Mercury

TAMPA With a criminal investigation hanging over him, former Public Transportation Commission chief Kyle Cockream repeatedly pleaded the Fifth Amendment during a deposition Monday into whether public records were deleted from agency cell phones.

A judge ordered Cockream to appear at the deposition as part of a public records lawsuit filed against the agency that regulates for-hire transportation in Hillsborough County. He turned up, but on advice from his attorney Michael Carey, refused to answer questions from Andrea Mogensen, a Sarasota lawyer who sued the PTC to obtain copies of text messages that Cockream sent to owners of taxicab and limousine-rental firms.

"He pled the Fifth to basically every question that I asked," Mogensen said. "Obviously that's very disappointing. Our objective is to recover the public records."

The Fifth Amendment privilege allows a witness to decline to answer questions if the answers might incriminate him. The Florida Department of Law Enforcement has opened a criminal investigation into whether PTC officials deliberately deleted public records, a misdemeanor under state law.

A forensic investigator hired to extract text messages for the public records lawsuit found that seven agency phones and Cockream's personal cell phone were reset on Oct. 8, a process that wipes them clean. A PTC invoice shows that the agency on Oct. 12 paid $2,994 to Valrico tech firm Data Specialist Group for work they did on the phones that was detailed as "Mobile device data recovery."

Cockream, who stepped down as executive director in December, could not be reached for comment. In a recent hearing, his attorney said Cockream was not trying to hide records but hired the tech firm to back up the data on the phones.

The mising data may shed light on a controversial period during which the PTC was accused of colluding with the cab industry against the rideshare companies Uber and Lyft.

Contact Christopher O'Donnell at codonnell@tampabay.com or (813) 226-3446. Follow @codonnell_Times.

Former PTC chief Cockream pleads the Fifth Amendment over missing public records 02/14/17 [Last modified: Monday, February 13, 2017 9:22pm] Photo reprints | Article reprints

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Former PTC chief Cockream pleads the Fifth Amendment over missing public records - Tampabay.com

On February 9th the political drama of President Trumps executive order took an old turn when his opponents translated a political fight into a constitutional question and thus dragged the courts into the ring of battle. This is nothing new. But I will leave discussion of that political truth for another day.

President Trump issued an executive order stopping immigration from seven specific countries. He did so under a federal statute - 8 USC 1182(f) which states:

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.

A limitation on that power is noted in 8 U.S.C. 1152(a)(1)(A) which states, regarding the granting of visas,

no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the persons race, sex, nationality, place of birth, or place of residence.

The case was before the Ninth Circuit on appeal by the government asking for an emergency stay on the Temporary Restraining Order (TRO) that was granted by the District Court Washington. To prevail, the government had to establish that it was likely to prevail on the merits. The merits should have been based on sections 1182 and 1152.

It is a legal maxim that if a government action can be held lawful or unlawful based on statutory interpretation, the constitution is not to be invoked. In its brief the Trump Administration asserted that the executive order was lawful under section 1182, and the states of Washington and Michigan, in part, argued that the executive order violated section 1152. The stated goal of the executive order was, to prevent infiltration by foreign terrorists or criminals and pursuant to that goal, I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iraq, Syria, Libya, Somalia, Sudan, Yemen, and Iran] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days. The state response was that the suspension was a vainly disguised ban on all Muslims; which is prohibited under section 1152.

The problem is that the Ninth Circuit opinion bypassed this argument entirely. There was no mention of either statute or the legal arguments that they provide either side.

The court bypassed the true legal dispute and engaged in the Fifth Amendment arguments that Washington and Michigan asserted, in part, because they had a weak argument standing on section 1152 alone. The Fifth Amendment Due Process Clause protects a persons right to life, liberty and property and prevents the government from taking it without a hearing.

The opinion asserted that under the Fifth Amendment Due Process clause, the executive order violated the rights of legal residents, citizens and aliens who wish to return to the United States and travel from the United States. The Government, in its papers and at oral argument, asserted that the application of the order to the first two groups was an error in application and would no longer apply to them. That should have made the entire issue regarding the order and its application to legal aliens and citizens moot! But the court held that since the order was applied to citizens and legal aliens in the first two days of the order and there was no official proclamation from the President himself preventing such application, the court could not take the word of a legal memo from the White House Legal Counsel that similar application would not occur in the future. As such, the executive order violated the Fifth Amendment.

To make a long story short, there is no Fifth Amendment right for people who are not citizens or legal residents to assert in the first place, and in the second, aliens who are not in the United States have no right to a visa. The Fifth Amendment applies to those who have property rights in the United States. That property right exists by being physically present, having legal status or being a citizen. It is true that illegal aliens have a right to a hearing once in the United States, but that is only to determine if they are illegal and should be removed. It does not create a right for travel, and the right to a hearing does not translate into a right to come to the United States from another country. To get around this the court held that aliens who have contracted with the state universities to come into the United States as students or teachers have created a Fifth Amendment Due Process property right to travel, that the state governments can defend on the aliens behalf.

Since the government could not prove, to the Ninths satisfaction, that it would prevail on the due process claim because it could not prove people from the seven countries were a threat, they were not entitled to an emergency stay of the TRO.

The Government lost because it was held to a due process test, not to whether its executive order could be supported under section 1182. The court chose the wrong test.

View post:
Trump's Order and the Ninth Got it Wrong - WFMZ Allentown

Joel K. Goldstein VIncent C. Immel Professor of Law, Saint Louis University School of Law This post is hosted on the Huffington Post's Contributor platform. Contributors control their own work and post freely to our site. If you need to flag this entry as abusive, send us an email.

Fifty years ago today, Minnesota and Nevada ratified the proposed Twenty-fifth Amendment to the Constitution, providing the final support needed to make it part of our highest law. That Amendment was a significant accomplishment which created procedures to address some vexing problems regarding presidential continuity. And its enactment demonstrated how able and dedicated leadership can solve difficult problems, even those that had long resisted fixes.

Until 1967, the Constitution provided no means to fill a vice-presidential vacancy or to transfer power from a disabled president. Questions that Delawares John Dickinson asked at the Constitutional Convention (What is the extent of the term disability and who is to be the judge of it?) went unanswered for 175+ years. The problem was compounded after President William Henry Harrison died in April, 1841 and Vice President John Tyler claimed that he was president, not simply vice president acting as president as the founders intended. Tylers position was repeated seven times from 1841 to 1963 whenever a deceased president was replaced by his vice president. The Constitutions text treated the vice presidents status following a presidential inability the same as after a presidential death, removal or resignation. The Tyler Precedent inhibited vice presidents from exercising presidential responsibilities during presidential inabilities for fear of displacing the chief executive. So did the ideological, personal and constitutional distance between presidents and vice presidents for most of our history. No move was made to transfer power to Vice President Chester A. Arthur after President James Garfield was shot in 1881, even though the President was incapacitated during the last 80 days of his life. Similarly, Woodrow Wilson clung to power though incapacitated during much of the last 17 months of his presidency. First Lady Edith Bolling Wilson, not Vice President Thomas Marshall, essentially made executive decisions during this period. And presidential power remained with President Dwight D. Eisenhower during his three incapacities in the mid-1950s.

The Eisenhower disabilities amidst the Cold War and nuclear age prompted interest in addressing the problem of presidential inability. Eisenhower took important steps by entering into a letter agreement with Vice President Richard M. Nixon allowing either to initiate the temporary transfer of presidential powers and duties from Eisenhower to Nixon with Eisenhower retaining the right to reclaim them. Congress began considering constitutional amendments addressing presidential inability without reaching any consensus.

Following the assassination of President John F. Kennedy in November, 1963, Senator Birch Bayh, the newly-appointed chair of the Senate Subcommittee on Constitutional Amendments, proposed a constitutional amendment in December, 1963 which anticipated the eventual Amendment. So did principles suggested by a blue-ribbon American Bar Association group that included former Attorney General Herbert Brownell, future Supreme Court Justice Lewis Powell, iconic Harvard law professor Paul A. Freund, and John D. Feerick, a young New York lawyer, who had begun writing scholarly articles regarding presidential inability before the assassination.

The Amendment contains four sections. Section One adopted the Tyler Precedent following a presidential death, resignation or removal, but not after a presidential inability in which case the vice president simply acts as president. Section Two of the Amendment allowed the president to nominate a new vice president to fill a vice-presidential vacancy upon confirmation by each house of Congress. Section Three permitted the president to transfer presidential powers and duties to the vice president during a period of presidential inability and to reclaim them when the disability ends. Section four allowed the vice president and the majority of the Cabinet (or an alternative body should Congress create one) to transfer presidential powers and duties from the president during a presidential inability. The president can reclaim those powers upon a written declaration of his fitness to resume them unless the vice president and Cabinet contest his declaration in which case Congress decides the issue within a designated time.

Presidential succession and inability were not the sort of hot-button issues that attracted the engaged attention of many politicians. That was partly why longstanding problems persisted. Bayh was different. He pushed relentlessly and effectively for passage of the proposed amendment, involving colleagues on both sides of the aisle. Representatives Emanuel Celler and Richard Poff also played important roles. And Feericks scholarship informed legislative deliberations even while he worked with the ABA to achieve passage and ratification, the latter coming on February 10, 1967.

Three of the four sections of the Amendment have been utilized six times since its ratification. In October, 1973, Gerald R. Ford was nominated to fill a vice-presidential vacancy produced by the resignation of Spiro T. Agnew and confirmed less than two months later. In August, 1974, Ford succeeded to the presidency following Richard M. Nixons resignation. The following month, Ford nominated Nelson A. Rockefeller as vice president and Rockefeller was confirmed in December.

Two presidents have transferred presidential powers and duties to the vice president while they underwent surgery under general anesthesia on three occasions. In July, 1985, President Ronald Reagan transferred presidential powers to Vice President George H.W. Bush for eight hours while Reagan had a cancerous polyp removed. President George W. Bush briefly transferred powers to Vice President Dick Cheney in 2002 and 2007 while he underwent colonoscopies.

The early uses of the Amendment confirm its contributions to Americas system of assuring presidential continuity. The impeachment proceedings that forced Nixons resignation would have been complicated without the ability to install Republican Ford as vice president when Democratic Speaker of the House Carl Albert was otherwise next-in-line. Whereas the vice presidency was vacant for 21% of American history before the Twenty-fifth Amendment was ratified, since then it has been unoccupied for only 6 months or less than .1%, thereby diminishing the importance of the remainder of the line of succession where the solutions are less attractive. Section Three and Four encourage a transfer of power when a president is physically or mentally unable to perform by providing procedures, identifying decision-makers, and allowing the president to resume office upon the end of the incapacity.

The framers of the Twenty-fifth Amendment recognized other problems in Americas system for providing presidential continuity but deferred them to later legislatures after concluding that broadening their effort would prevent any progress. These problems include the following: the line of succession after the vice presidency currently runs through legislative leaders who might not belong to the presidents party; no provisions exist to declare a vice president disabled; the electoral system presents various vulnerable spots. Congress should address these and other gaps in the very near future.

That would be a fitting tribute to the great contributions of Bayh, Feerick and others that culminated fifty years ago with the ratification of the Twenty-fifth Amendment, and would continue their great work of improving our system of government.

See the original post here:
Celebrating the 50th of the 25th Amendment! - Huffington Post

Wow hope that folks at Apple, Samsung, Motorola, etc. see this.

In response to an incident that lacked any relation to the last fingerprint-related news, a Minnesota court ruled against a recent Fifth Amendment appeal regarding device passwords. The Minnesota Court of Appeals ruled that ordering an individual to unlock a device with a fingerprint is no more testimonial than furnishing a blood sample, providing handwriting or voice exemplars, standing in a lineup, or wearing particular clothing.

The case in question involved Matthew Vaughn Diamond, a man Carver County District Court found guilty in 2015 of burglary and theft, among other crimes. Other news outlets cite arrest records from far before 2015, but the records showed no relevance to the January 2017 ruling. The Carver County District Court fought Diamond over his phones contentshe locked the phone with a fingerprint and refused to unlock the phone for the court. He argued, initially, that forcing his fingerprint violated both his Fourth and Fifth Amendment rights. However, the Minnesota Court of Appeals heard only the Fifth Amendment appeal.

According to the Fifth Amendment, compelled self-incrimination is a violation of human rights. The Supreme Court has held that a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances. Additionally, the right to remain silent from the Miranda Rights, read to an arrestee at the time of arrest, granted a suspect the ability to refuse questions. Additionally, at the minimum, gave suspects the right to avoid answering questions legally and without fear of immediate repercussions.

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