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Mark Graber, Regents Professor at the University of Maryland Carey School of Law, and Sanford Levinson, Garwood Centennial Chair at University of Texas at Austin School of law, discuss the overlegalizing of the impeachment of Donald Trump in the wake of the violence at the U.S. Capitol...

The monopolistic control lawyers and the Supreme Court assert over constitutional meaning is threatening to pervert and sidetrack congressional efforts to free Americans of a president who, even in his last ten days of office, terrifies millions of citizens across the political spectrum. The Constitution offers at least two paths by which we the people can either fire a grossly deficient president or prevent an out-of-control lame duck from wreaking havoc on the body politic. One is impeachment, which appears increasingly likely in the House of Representatives, perhaps even early this week. The other is the 25th Amendment of the U.S. Constitution, which requires that the vice-president handpicked by the president lead what might be perceived as a palace coup against the Leader. Common sense and the Constitution support both means for ridding the United States of rule by Donald Trump. Both risk being sidetracked by unnecessary legal technicalities that only lawyers who demand, contrary to common sense and the Constitution, that the process for maintaining the integrity of the Government ought to prioritize legal formalism over political substance.

Overlegalization is infecting impeachment and efforts to employ Section Four of the Twenty-Fifth Amendment. The Congressional articles of impeachment, drafted by lawyers, assume Donald Trump can be impeached for inciting an insurrection against the government only if his speech could be prosecuted under the First Amendment. Prominent voices complain that the processes demanded by Section Four, which require a judgment that the president can no longer fulfil the duties of office, cannot be done with dispatch because the Vice President must provide elaborate proof by reliable medical evidence that the president is in fact physically or mentally impaired. Perhaps both propositions make sense to well-trained lawyers. The problem is that both defy common sense and, we suggest, the Constitution. The impeachment clause is best interpreted as permitting the impeachment of a President who incites insurrection, even if, by stipulation, the incitement might not be subject to prosecution under the Supreme Courts First Amendment jurisprudence. There is no need to subject a president to elaborate tests and then await a medical diagnosis to remove a president who has demonstrated to any cogent observer a manifest unwillingness or inability to perform the duties of office.

The present Articles of impeachment against Donald Trump track the conditions on which the Supreme Court has declared the government may punish advocacy of criminal misconduct. Brandenburg v. Ohio (1968) is the most important Supreme Court precedent. That case arose after Clarence Brandenburg was convicted by a state court of criminal syndicalism for telling a Ku Klux Klan gathering in Ohio that they should seek revengeance against the Jews and Catholics ruining the country. The Court decision unanimously (and, we believe, correctly) overturning that conviction held that all advocacy, however repellant, is protected by the First Amendment. Prohibition is legitimate if and only if the speaker engaged in incitement rather than advocacy. The difference between advocacy and incitement is a legal one. The speaker must not only try to whip up the crowd to act, but the lawless action must also be likely to occur as a result of the incitement. One might view incitement in this context as appealing to the emotions of an audience to provoke them to act and, to act now. The Court in Brandenburg added that punishment is legitimate only if the lawless action produced by the incitement was imminent. If, on the other hand, the incitement is to act tomorrow, instead of right now, then there would, in Louis Brandeis important formulation during the 1920s, be time for good speech to overcome the negative effects of the bad speech that the state was seeking to punish. Even meeting all these criteria might not be enough to justify punishment under First Amendment precedent. The justices insist the lawless action be likely to cause significant damage. All these elements are set out in the congressional indictment against Trump. That document declares Trump willfully incited violence against the Government of the United States, that Trump incited imminent lawless action, that incitement caused violent, deadly, destructive, and seditious acts, and that those acts were foreseeabl[e].

We have grave reservations about whether progressives would interpret the First Amendment as not protecting the same speech Donald Trump made on January 6th, 2021, if that speech had been made by a different person. The classic marker distinguishing incitement from mere protected advocacy is whether time exists so that bad speech can be corrected by good speech. Such time clearly existed outside of Congress on January 6th, 2021. Trump did not urge his followers to storm the castle immediately. After all, the demonstration was initially uptown relative to the Capitol. Protestors had to march down Pennsylvania Avenue. They might have then hesitated as to what to do next. John Stuart Mill, in his class On Liberty, says that it would be legitimate to punish someone advocating burning down a corn dealers home in front of the home itself. But if one is advocating merely a march on the home from miles away, the situation is entirely different. One may or may not agree, but a great deal of free-speech theory is built on that distinction.

Trump did not explicitly mention specific unlawful actions. Perhaps the crowd, like those listening to Marc Antonys eulogy to Julius Caesar, knew what he was really saying, but, like Shakespeares version of the clever Antony, Trump did not to use any magic words, such as invade the Capitol and terrorize the members of Congress. Moreover, the storming of Congress took place hours after he spoke to the gathering. All members of the mob had ample time to reflect on Trumps statements and make a deliberate decision about whether to violate the law. One suspects that many of those listening to Trump decided not to join the mob moving toward the Capitol or refrained from climbing the steps.

Imagine that Trump had won a narrow victory in the electoral college, because of what could legitimately be thought to be the suppression of Democratic votes or, even worse, because Republican legislatures simply substituted a Republican slate of electors for the Democratic electors who had seemingly won the popular vote in a state. Some prominent Democrat might have given a far more articulate version of the Trump speech to a crowd of progressive protestors enraged, say, by the decision of the Republican-dominated Pennsylvania, Michigan, Arizona, and Georgia legislatures to substitute Trump electors for the Biden electors chosen by a majority of state voters. That speech would clearly be protected under Brandenburg, and not because we are more inclined to protect Democrats than Republicans.

The real problem is equating the President of the United States with an ordinary citizen or even a prominent leader. Unlike ordinary citizens, Donald Trump took an oath to maintain and uphold the laws of the United States, including the laws he disagreed with. We have no doubt that the president or relevant decision-maker could have constitutionally fired for dereliction of duty any other law enforcement official who gave the same call for lawless action to the same potential mob. There is a difference between Martin Luther Kings calling for civil disobedience and the same call issued by those who have taken an oath to enforce the laws of the land. The President should not be an exception to the principle that those in charge of upholding the law should not encourage the violation of the law. Disciplining Trump by removing him from office is even more pressing that would be the case for an ordinary police officer who gave the same speech in the same circumstances. As Ross Perot argued in 1992, the President of the United States is only an employee of the American people, no more, no less. If he does not live up to his terms of employment, including basic fidelity to the Constitution that he swore an oath to uphold and protect, he should be fired.

Common sense suggests impeachment is warranted when the president encourages persons to violate federal laws or interfere with the implementation of federal laws in ways that are likely to cause significant damage. Impeachment is particularly warranted when the laws the president encourages others to violate are at the core of constitutional democracy in the United States. This common-sense standard leaves presidents free to complain about existing laws, challenge those laws in courts, and even refuse to implement laws they believe unconstitutional. Brandeiss claim in Whitney v. California (1927) that the First Amendment ought to protect the speech of persons whose advocacy of illegal conduct causes only minor harm, such as a trespass on unoccupied land, applies to presidential impeachment as well. Nevertheless, when a president, in essence, encourages a group of potentially peaceful protesters to transform themselves into an insurrectionary mob determined to interfere with members of Congress engaged in the solemn rite of certifying the identity of the next President of the United States, no one ought to care whether the First Amendments requirement of incitement and imminence or, for that matter, likelihood, are met.

Overlegalization is as much a plague on the Twenty-Fifth Amendment as on the impeachment process. The letter of the Twenty-Fifth Amendment suggests that implementation may be rapid. Make one of us the Vice-President and the other the cabinet, and we can produce the following letter in three minutes (90 seconds if we do not try to fix typos)

Dear Speaker of the House and President Pro Tem of the Senate:

The Vice President and majority of the cabinet have concluded that the President is unable to fulfil his duties. Therefore, under Section Four of the Twenty-Fifth Amendment, the Vice President will serve as President until further notice.

Thank you for your kind consideration.

Vice President Sandy Levinson

Secretary of Everything Mark A. Graber

The only reason this process might take longer than three minutes is if we had to document that the President is unable to fulfil his duties. The Constitution does not require such documentation. Nor does common sense.

Consider the various ways we might document that Donald Trump is unable to fulfill the duties of the presidency that would meet a more stringent Section Four. If a neurologist took an x-ray of Donald Trumps brain that showed a deformity or conducted other tests demonstrating chemical imbalance that caused him to incite insurrection against the United States, Section Four would be met. We might find a psychiatrist or psychologist, many of whom we suspect are willing to testify that Trump has a psychiatric or psychological condition that makes him unable at crucial times to perform the duties of office. An obvious problem is whether Donald Trump would agree even to an x-ray, let alone a full neurological workup or psychiatric interview that could serve as the basis for a professional diagnosis. Would we really be dependent on his cooperation? Can we imagine forcing him to sit down and speak to the psychiatrist or taking the neurological tests? Could we substitute Mary Trumps observations over the years about Donald Trumps behavior?

Requiring the Vice President and cabinet to run through these hoops defies common sense. Donald Trumps actions before, on, and after January 6th, 2021, demonstrate that he is unable to fulfil the duties of office. No one at this point should need neurological, psychiatric, or behavioral testimony to explain or document this inability. If a president repeatedly and at crucial times fails to fulfil the duties of office, that president should be considered constitutionally unable to fulfill those duties. Explanations are for doctors to hypothesize, not for politicians to worry about. Courts sometimes take judicial notice of what is obvious to all. Judicial notice, should be taken that Trump is not fit to exercise presidential powersincluding powers as commander-in-chief of the armed forces to do God knows whatfor even one more day.

Permitting the Vice-President and majority of the cabinet to determine whether a president is unable to fulfill the duties of the presidency no more threatens a coup than permitting a persons chosen spouse and family members to determine that they are incompetent. The President selects the Vice-President and cabinet. Cabinet members can be fired at will. The Yiddish proverb that if two people say you are drunk, you should go lie down provides the appropriate standard. If the Vice President and majority of the cabinet, who have every incentive to be sycophants, maintain the President is unable to fulfill the duties of office, the President should go lie down.

Constitutional systems are run by common sense, not by legal technicalities. We should not overlegalize impeachment by demanding that the president engages in speech unprotected by the first amendment. Common sense dictates that a president who encourages a mob to interfere with congressional proceedings ought not to remain in office, even if such speech might not be subject to criminal punishment. We should not overlegalize the 25th Amendment by demanding professional certification. A president who publicly fails to fulfil the basic duties of office ought to be removed, even if no professional can document immediately the neurological or psychiatric causes of this failure. Presidents, in short, must meet the minimum standards of competence suggested by common sense. Donald Trump has not. Anyone, not a trained lawyer can easily realize his incapacity to exercise power. To the extent that lawyers do not, that raises more questions about the meaning of thinking like a lawyer than about the fitness of Donald Trump to continue in office.

Mark A. Graber is the Regents Professor at the University of Maryland Carey School of Law. He is the author of A New Introduction to American Constitutionalism (Oxford 2013) and Dred Scott and the Problem of Constitutional Evil (Cambridge 2006), a coeditor with Sandy Levinson and Mark Tushnet of Constitutional Democracy in Crisis? (2018) and the American Constitutionalism series with Howard Gillman and Keith Whittington. All told Professor Graber has published more than one hundred books, articles or essays on constitutional law, constitutional history, constitutional development and other subjects in which constitutional is used as an adjective.

Professor Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law. Professor Levinson has published approximately 400 articles, books, book reviews, and commentaries with various journals and major publications. He has been a visiting faculty member at a number of universities both in the US and abroad in London, Paris, Jerusalem, Australia, and New Zealand.

Suggested Citation: Mark Graber and Sanford Levinson, Overlegalizing Impeachment And The Twenty-Fifth Amendment, JURIST Academic Commentary, January 13, 2021, https://www.jurist.org/commentary/2021/01/graber-levinson-impeachment-amendment/.

This article was prepared for publication by Vishwajeet Deshmukh, a JURIST staff editor. Please direct any questions or comments to him at commentary@jurist.org.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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Overlegalizing Impeachment and the Twenty-Fifth Amendment - JURIST

The past few weeks have been a tumultuous time in US politics and a historic second impeachment for President Trump could be on the cards at the end of a presidency that has often been hard to predict. Taken fromImpeachment: What Everyone Needs to Know ,we look at some of the key questions surrounding such an action to remove him from office:

There is a general expectation that most issues pertaining to a presidents performance in office are to be dealt with through the electoral process (if the president runs for re-election) and the other checks recognized as applying to presidential conduct, such as popularity, the press, the judgment of history, and congressional oversight. Impeachment is a last resort for handling misconduct that cannot be dealt with by other means and that involves misconduct sufficiently serious to constitute treason, bribery, or other high crimes and misdemeanors.

Instead of being subject to a statutory mechanism like the Judicial Discipline and Disability Act, presidents are subject to the Twenty-fifth Amendment, which was ratified in 1967. It provides a mechanism for handling a presidents becoming subject to some disability that prevents him from doing his job, such as a major stroke or serious mental illness. This mechanism seems better suited than impeachment for dealing with incompetence resulting from some mental or physical disability.

The Twenty-fifth Amendment has four sections. The first section codifies the precedent set by John Tyler, which clarified who became president when a president died in office. Tyler claimed that the presidents death automatically elevated him from the vice presidency to the presidency. The Twenty-fifth Amendments first section now makes that practice a constitutional directive.

Section 2 of the Twenty-fifth Amendment provides a procedure for replacing a vice president who resigns, dies, or is incapable of further performing the duties of his office. If any of those things happens, the president is empowered to nominate a replacement, who has to be approved by a majority of each chamber of Congress.

Section 3 of the Twenty-fifth Amendment provides a procedure for temporarily empowering the vice president to take over the responsibilities and duties of the presidency. It provides that when a president transmits a written declaration to the president pro tempore of the Senate and the speaker of the House that he is unable to perform his duties, the vice president assumes those duties until the president sends another written communication to the same officials declaring that he is capable of resuming his duties.

The fourth section of the Twenty-fifth Amendment provides a procedure to be followed if the president becomes disabled but is unable to produce the written communications required in Section 3. This procedure allows the vice president, together with a majority of either the principal officers of the executive departments or of such body as Congress may by law provide, to declare the president unable to discharge the powers and duties of his office through a written declaration submitted to the speaker of the House and the president pro tempore of the Senate.

Section 4 is the only section of the Twenty-fifth Amendment that has never been invoked. Sections 1 and 2 were invoked three times during the Watergate scandal and Section 3 has been invoked three times to appoint vice presidents as acting presidents all for medical reasons.

The short answer is that it depends on the facts, but as we know from the plain language of this section, it comes into play if the vice president and a majority of the cabinet (or some other authority that the Congress has designated by statute) determine that the president has become disabled because of some mental illness or other problem.

This analysis cannot be a substitute for the kind of fact-finding that would have to be undertaken if this portion of the amendment was ever invoked. We know, from the congressional debates on the Twenty-fifth Amendment that these provisions were intended to address mental or physical incapacitation, as well as situations where a president might be out of reliable communication or kidnapped. We know as well that the purpose of this section is not to provide a means for a no-confidence vote but is designed to provide clarity and therefore some safeguards on circumstances when presidential incapacity requires putting his second in command in charge of the government, at least temporarily. The requirements themselves suggest a high threshold for its implementation, depending on the presidents own allies and appointees to come together to a significant degree for the sake of the country.

If Congress has to determine a Section 4 dispute between the vice president and the president, the Constitution makes it highly likely that the president will win (as he should, given the likelihood that he is the one who has been elected to the office). The requirements (1) for the acting president and a majority of the cabinet to send a second declaration that the president is incapacitated in response to the presidents issuing a challenge within four days of their initial declaration and (2) for two-thirds of each chamber of Congress within twenty-one days to express their agreement with the second declaration of the presidents incapacity (as a prerequisite for the vice presidents continuing to serve as acting president) are powerful checks on the vice president and cabinet stealing the office from the president. The acts high thresholds create a default rule that the president remains in office unless they can be met.

Whether that two-thirds support actually exists would of course depend on the facts and public perception at the time as well as the congressional and public perceptions of the vice president and the cabinet. If, for example, the vice president and the majority of the cabinet were widely considered to be acting out of the best motives and perceived to have been loyal and credible, the public and members of Congress, particularly the presidents partisan allies, might be more receptive to the determination of the need to replace the president temporarily. The presumption underlying the structure is that if the two-thirds threshold were met there must be compelling or strong evidence to declare the president incapacitated and thus unable to perform his duties.

Featured image by Alejandro Barba.

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Questions on a Trump impeachment and invoking the Twenty-fifth Amendment - OUPblog

HIDALGO COUNTY, Texas (KVEO) More than 20 relatives of people buried at the Eli Jackson Cemetery have joined in a lawsuit to stop border wall construction near the gravesite.

On Friday, the U.S. District Court for the Southern District of Texas heard arguments on whether to approve an emergency temporary restraining order filed from the relatives to momentarily stop Southwest Valley Constructors Co. from constructing the border wall near the cemetery.

According to the relatives, Southwest Valley Constructers are causing damage to the cemetery as well as to the church building and cemetery at the nearby Jackson Ranch Church and Cemetery.

The restraining order asks construction to not take place within 500 feet of the cemetery.

The construction company argues in court documents that damages at the site were present before construction began. They state there is no legal reason to halt construction for the restraining order or for the lawsuit in general.

However, the relatives claim the construction near the cemetery violates the Texas Constitution, Article 1, Section 19 and the Fifth Amendment of the United States Constitution as they have a property interest in the cemetery that would be harmed by the border wall.

While the court did hear the argument on Friday and faced evidence from both parties, court documents do not show that a conclusion was made on the restraining order.

The Eli Jackson Cemetery and Jackson Ranch and Cemetery are located about a mile from the Rio Grande River in a remote part of Hidalgo County south of Pharr.

Border wall construction is taking place north of the cemetery, which would leave the gravesite in a no mans land facing Mexico. Family members and visitors would have to pass through the wall in order to reach the cemetery if construction is completed.

The ranch was founded in 1857 by Nathaniel Jackson and Matilda Hicks who originally traveled from Alabama. The pair migrated to south Texas to escape the prejudices of interracial marriage found in Alabama.

Jackson used the ranch as a refuge for enslaved people who escaped from Texas or other parts of the south.

When Jackson died in 1865, his son Eli established the location as a cemetery as well. Veterans of the Civil War, Korean War, World War I and II, among others, were later buried at the site.

The Jackson Ranch and Cemetery were certified by the Texas Historical Commission in 1983. The Eli Jackson Ranch was certified in 2005.

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Restraining order filed in lawsuit to stop border wall construction near Eli Jackson Cemetery - KGBT-TV

Following the death of George Floyd during his arrest in Minneapolis, Minnesota, America experienced months of civil unrest throughout the country. It was during these protests that some began to assert that civil society in America was beyond repair and advocated for breaking the shackles of an allegedly oppressive and racially insensitive government. It was from this belief that the idea of establishing autonomous zones free from civil authority and independent from the United States was born. For the first time since 1861, calls for secession were acted upon, and protestors began to commandeer and blockade neighborhoods in major U.S. cities, thereby creating bubbles of autonomous rule within the United States. Protestors denied emergency responders and civil authorities entry to these autonomous zones, and prevented property owners from quietly enjoying their homes and businesses. For days, or even weeks, local and state governments ceded civil authority to the mob before being able to regain a semblance of control over these areas. The Red House Autonomous Zone in Portland, Oregon, demonstrates the negative impact autonomous zones can have on protecting a lienholders collateral assets. The property in question, called the Red House on Mississippi by activists, was owned by the Kinneys, an African American/Native American family. Following a default on their mortgage, the noteholder foreclosed on the property, and it was sold to a developer as a non-judicial foreclosure in 2018. The Multnomah County Circuit Court issued a writ of execution for eviction following a non-judicial foreclosure, and the sheriffs office served the Kinney family in September 2020. Thereafter, activists in support of the Kinney family occupied the house and denied the new owner access to the property. When the sheriff's department and Portland Police Department attempted to evict the activists in December 2020, the activists violently repelled law enforcement and established a three square block autonomous zone around the property. The creation of the autonomous zone impacted the entire neighborhood and not just the Kinney property. The activists defending the Kinney home were not local residents, but instead activists squatting on the Kinney property. The result was that the Kinneys neighbors, who did not ask to be part of the autonomous zone, were forced to become unwilling participants in the protest. Even though the City of Portland was able to negotiate an end to the autonomous zone, the activists still occupy the property and the city has taken no further action to evict them. Thus, the new owner, who has a court-issued eviction order, is unable to gain access to its property due to the governments refusal to utilize its civil authority to enforce the eviction order.Even though local governments were eventually able to regain relative control of these autonomous zones, a lasting impact remains. Emboldened by the lack of repercussions for defying civil authority, the establishment of autonomous zones is now seen as a viable protest tool. Moreover, in the case of the Red House on Mississippi, the local government is now unwilling to enforce court orders to forcibly evict unlawful squatters out of fear of creating unrest, thereby denying the holder of legal title to the property and its rights to quietly enjoy the property. In light of this, lienholders need to be aware of their options to mitigate the risk of losing a collateral asset if it becomes part of an autonomous zone. This article discusses considerations lenders should take into account if they are contemplating targeted lending policies to mitigate the risk that their collateral assets will be encompassed within an autonomous zone. Additionally, we discuss the recourse lienholders have if their rights are damaged due to the existence of an autonomous zone that results in the loss of a delinquent collateral asset.Underwriting Risk Mitigation PoliciesSome areas of the country are more susceptible to the establishment of autonomous zones than others. Lenders may be considering employing risk mitigating policies directed at areas deemed more susceptible to autonomous zone control in order to prevent the loss of their collateral assets. Possible risk mitigation policies may include:

While a lender may want to adopt these risk mitigating policies, careful consideration of federal and state law must be made before any such policy is implemented.While state consumer credit protection laws compliment the federal Consumer Credit Protection Act, the state law may be more stringent than the federal statute. Therefore, the lender is required to not only conduct an examination of the proposed policy against the federal Consumer Credit Protection Act, but also against the state consumer credit protection laws in each state in which the lender intends to implement the policy. Failure to examine the proposed risk mitigation policy against applicable consumer credit protection laws may result in costly litigation in the future. If the risk mitigation policy is permissible pursuant to federal and applicable state consumer credit protection statutes, then the lender must also ensure that the policy is not discriminatory against a protected class. Under the Fair Housing Act (FHA), implemented through 24 C.F.R. 100, lenders cannot disparately treat individuals based on their race, color, religion, sex, handicap, familial status, or national origin. 24 C.F.R. 100.5(a). Meanwhile, under the Equal Credit Opportunity Act (ECOA), implemented through 12 C.F.R. 202, lenders cannot disparately treat individuals due to race, color, religion, national origin, sex, marital status, or age (provided the applicant has the capacity to contract); to the fact that all or part of the applicants income derives from a public assistance program; or to the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. 12C.F.R. 202.1(b). While the above referenced risk mitigation policies are neutral in nature insofar as they are directed at localities where state and local governments have historically ceded civil authority to protestors and are not directed at a protected class, lenders must be careful that these policies do not create a disparate impact on members of a protected class. If a lending policy has a disparate impact on a protected class, then it is impermissible, and may result in a discrimination claim, or worse a class action lawsuit, against the lender. Courts have held that [t]o establish a disparate impact claim, a plaintiff must show an outwardly neutral policy or practice that has a significant adverse or disproportionate impact on members of a protected group. Taylor v. Accredited Home Lenders, Inc., 580 F. Supp. 2d 1062, 1068 (S.D. Cal. 2008) (analyzing disparate impact under both the FHA and ECOA). Additionally, [t]o establish a prima facie case under a[n ECOA] disparate impact theory, a plaintiff must identify a specific policy or practice which the defendant has used to discriminate and must also demonstrate with statistical evidence that the practice or policy has an adverse effect on the protected group. Powell v. Am. Gen. Fin., Inc., 310 F. Supp. 2d 481, 487 (N.D.N.Y. 2004). Moreover, an analysis of a policys disparate impact is critical because it is anticipated that the incoming Biden administration will increase disparate impact enforcement. Therefore, lenders considering instituting targeted policies to mitigate the risk of the loss of collateral assets as the result of them potentially becoming part of an autonomous zone must conduct a careful disparate impact analysis before implementing the policies.Below are our recommendations to lenders who want to be proactive to protect their collateral assets from loss as a result of becoming part of an autonomous zone:

Thus, lenders should proceed with caution when considering implementing policies targeting areas where collateral assets may be at heightened risk of being annexed into an autonomous zone.Post-Autonomous Zone Recourse for Delinquent Collateral AssetsIf a lienholder finds that its delinquent collateral asset is now part of an autonomous zone, or if its collateral asset becomes delinquent as the result of its inclusion in an autonomous zone, all is not lost. The lienholder has recourse against the governmental entities that permitted the establishment of the autonomous zone, including a Fifth Amendment takings claim and/or an inverse condemnation claim under state law. Which claims are available to the lienholder is dependent on the status of the foreclosure proceeding, and the jurisdiction where the claims are filed.Government inaction or encouragement of autonomous zones frustrates the rights of those who have interests in property that becomes ensnared in the autonomous zone. This frustration of rights can give rise to a viable takings claim against the governmental entity that is impinging on the property owner's rights. The Takings Clause of the Fifth Amendment of the United States Constitution provides, nor shall private property be taken for public use, without just compensation. Under the Fifth Amendment, property owners may bring a takings claim when government action frustrates their use, enjoyment, and rights associated with the property, without providing just compensation. If the government is found to have engaged in an improper governmental taking by allowing the establishment of an autonomous zone, then the individuals and entities whose property rights were infringed upon are entitled to just compensation.Recent legal precedent indicates that a lienholder can bring a Fifth Amendment takings claim at any point during the foreclosure process if the government infringes on its interest in a delinquent collateral asset by allowing the formation of an autonomous zone. In HMC Assets, LLC v. City of Deltona, 2018 WL 647452 (M.D. Fla. Jan. 31, 2018), the U.S. District Court for the Middle District of Florida held that a mortgagee could proceed with its Fifth Amendment takings claim and its procedural due process claim. In HMC Assets, the mortgagee foreclosed on a parcel of real estate, and before a final judgment of foreclosure was obtained, the city demolished the building on the property without notice of the demolition or ordinance violations and fines leading to the demolition. As a result of the destruction of the structure by the city, the court held that the mortgagee was entitled to assert a Fifth Amendment takings claim against the city due to the resulting diminution in the value of the collateral property. The court reasoned that the United States Supreme Court has held that taking of a mortgagees rights without compensation can violate the Takings Clause. In addition, [u]nder federal law, a mortgagee possesses a legally protected property interest in the premises for purposes of the Fifth Amendment. Thus, HMC Assets suggests that mortgagees likely have standing to bring a Fifth Amendment takings claim and procedural due process claims against the government if the establishment of an autonomous zone infringes on a lienholder's interest in a delinquent collateral asset.There is precedent now available regarding the viability of a Fifth Amendment takings claim against the government related to the establishment of an autonomous zone. In Hunters Capital LLC, et al. v. City of Seattle, No. 2:20-cv-00983 (W.D. Wash. June 24, 2020), the plaintiffs, including residents, tenants, property owners, and small businesses in Seattles Capitol Hill neighborhood that have been harmed by CHOP, brought Fifth Amendment takings and Fourteenth Amendment due process claims under 42 U.S.C. 1983 against the City of Seattle related to the city's alleged inaction and encouragement of the Capitol Hill Autonomous Zone. The city attempted to have these claims dismissed on the basis that (a) the partial and temporary loss of property did not constitute a taking; (b) the plaintiffs failed to show direct harm caused by the city; (c) the due process clause did not require the city to exercise discretion to prevent private actors from harming other people; and (d) the city did not directly place plaintiffs in danger. However, the court sided with the plaintiffs and denied the citys motion to dismiss. The court held that Plaintiffs plausibly assert that the Citys endorsement of, and the provision of material support to, CHOP set in motion a series of acts by certain CHOP participants, who the City knew or reasonably should have known would deprive Plaintiffs of protected property interests . . . These allegations support the claim that the Citys conduct was causally related to [the] private misconduct and it was sufficiently direct and substantial to require compensation under the Fifth Amendment. Hunters Capital is still pending and the final resolution is unknown. However, the holding Hunters Capital, together with the holding in HMC Assets, suggest that lienholders have a viable Fifth Amendment takings claim against the government if it can be shown that the lienholder was deprived of a protected property interest as the result of the governments endorsement and material support of the establishment of an autonomous zone.In addition to a Fifth Amendment takings claim, a lienholder also can bring an inverse condemnation claim under state law if the government infringes on the lienholders property rights once it has legal possession of the delinquent property. Like a Fifth Amendment takings claim, those with sufficient property interests can file a state law inverse condemnation claim when the government takes their property without providing just compensation. Pursuant to the holding in HMC Assets, wherein the court held that under Florida law, a mortgagee such as HMC lacks standing to bring an inverse condemnation claim, lienholders likely will lack standing to bring a state law inverse condemnation claim before receiving a foreclosure order. Jurisdictions may vary on this issue depending on each jurisdictions interpretation of the scope of interests that grant standing to bring an inverse condemnation claim. However, once that order is received, and the lienholder has legal title to the property, then it can certainly bring this claim. Moreover, in relation to the Red House on Mississippi, the owner of the property is entitled to bring a Fifth Amendment takings claim and/or an inverse condemnation claim against the City of Portland.An aggrieved lienholder who has its interest in a collateral asset infringed upon by the government due to the establishment of an autonomous zone can bring its Fifth Amendment takings and due process claims directly in federal court. This would allow the lienholder to circumvent local state courts that may be less sympathetic to the lienholder's claims. In 2019, the Supreme Court of the United States held in Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162, 204 L. Ed. 2d 558 (2019), that a property owner may immediately bring a Fifth Amendment takings claim under 42 U.S.C. 1983 to federal court once the property has been taken without just compensation. Knick overruled earlier precedent that required property owners to proceed through state court first. Specifically, [w]e now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. Additionally, [t]he availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owners federal constitutional claim. Thus, Knick allows circumvention of the home cooking of state courts, which is beneficial for lienholders. Federal supplemental jurisdiction allows the lienholder to also bring any viable state court claims, including an inverse condemnation claim, in federal court together with the lienholder's federal constitutional claims. This allows the lienholder to avoid the possible biases held by local state court judges, and provides for a hopefully more objective evaluation of the lienholder's claims. ConclusionThe birth of autonomous zones has led to uncertainty regarding the protection of a lienholder's collateral assets, and raises new considerations that lienholders never had to consider in the past. Lienholders wishing to implement targeted risk mitigation policies for areas at heightened risk of autonomous zone control should proceed with caution prior to implementing such policies and should follow the steps outline above. The good news is that recent case law on this new issue suggests that a lienholder likely has a viable takings claim against the government, which can go directly to federal court, if municipal inaction and encouragement of autonomous zones frustrates the lienholders interests in a delinquent collateral asset.

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Mitigating the Risk of Loss of a Delinquent Collateral Asset in the Era of Autonomous Zones - JD Supra

While there are not many days left in his presidency, Donald Trump remains an unparalleled menace to democracy. He must be removed from power and brought to justice as soon as possible. Each day we delay, we run the risk of catastrophe.

With news that Articles of Impeachment willbe introduced into the U.S. House of Representatives, a vibrant discussion abounds on whether this is the appropriate method of censure and removal. On Friday, Senate Majority Leader (for now) Mitch McConnell circulated a memo to colleagues outlining the process an impeachment might follow.

There is also talk of removing Trump from office by means of the Twenty-Fifth Amendment. But while the debate has been healthy and spirited, it has for the most part been poorly framed because it presents a false either or dichotomy.

Donald Trump remains an unparalleled menace to democracy. He must be removed from power and brought to justice as soon as possible. Each day we delay, we run the risk of catastrophe.

As a matter of strategy, tactics and law, the Twenty-Fifth Amendment and impeachment can and should be pursued simultaneously. The remedies they offer are complementary, not in conflict.

The real question is not whether Congress should invoke either the amendment or pursue impeachment. The question is whether Congress has the will to take action quickly and decisively.

Ratified in 1967 in the aftermath of uncertainty following the assassination of President John F. Kennedy, the Twenty-Fifth Amendment offers the quickest route to accountability.

The amendment sets forth a process and a detailed timeline for declaring a sitting President incapable of performing his duties, and transferring executive authority to the Vice President. To initiate the transfer, the Vice President and a majority of the members of the Cabinet need only sign a declaration asserting that the President is unable to discharge the powers and duties of his office. Thereafter, the Vice President shall immediately assume those powers.

The amendment also permits the President to resume office by signing a counter-declaration alleging his capacity to serve. But within four days of receiving the counter-declaration, the Vice President and a majority of the Cabinet can keep the President out of power by signing another declaration of their own. After that, the issue of the Presidents fitness is committed to the Congress, which must make a final decision by a two-thirds majority vote within twenty-one days.

Vice President Mike Pence reportedly hasnt closed the door on invoking the amendment, but clearly, he must be pushed both by Democrats and the public at large to change his mind before Trump unleashes another MAGA mob to wreak havoc in Washington, D.C., or elsewhere, prior to the Inauguration of Joe Biden on January 20.

Should Pence do soand remember that he had his come to Jesus moment when, on the morning of January 7, he certified Bidens Electoral College victoryTrump would be unable to restore himself to power within the amendments timeline.

But whether or not Pence can be made to heed the call of history, Democrats should launch a second, high speed impeachment proceeding against Trump. A new impeachment resolution has already been drafted for this purpose, charging Trump with incitement of insurrection for sparking the failed violent coup attempt staged at the U.S. Capitol on January 6.

Even if the process cannot be completed before Inauguration Day, a second impeachment is a necessity.

Even if the process cannot be completed before Inauguration Day, a second impeachment is a necessity. Its principal goal would be to disqualify Trump from ever holding federal office again. It would also take from him the many perks (financial and otherwise) that are given to former Presidents under the 1958 Former Presidents Act. He would, however, continue to have Secret Service protection under a 2012 amendment to that act.

Normally, when we think of impeachment, we envision the removal of an official from office. But underArticle I, Section 3 of the U.S. Constitution, judgments in cases of impeachment extend not only to removal, but also to future disqualification.

As I have written elsewhere, there is no legal bar to trying Trump in the Senate on a new article of impeachment after January 20. In 1876, theSenate conducted an impeachment trial of Secretary of War William Belknapeven though he had resigned before the House voted to impeach him for financial corruption.

While Richard Nixon was able to escape impeachment via resignation, the current House and Senate, now controlled by the Democrats, would not be bound by the Nixon example. Both chambers would be free instead to follow theBelknap precedentin the case of impeaching a former President, as severalleading constitutional scholars have indicated in interviews with the Washington Post in 2019. Impeachable offenses, moreover, arenot subject to the Presidents pardon power.

Given the growing sense of shame and disaffection in the ranks of the GOP, Trump should expect a full Senate trial in his second impeachment, in sharp contrast to the perfunctory acquittal he received in his first impeachment.

Witnesses would be called. Evidence would be presented. The whole world would watch as Trump and the fascism he has promoted are put on display.

No federal official in American history has ever been impeached twice. But Trump has always prided himself as being a norm-buster, and no American President has ever deserved harsher treatment.

No federal official in American history has ever been impeached twice.

A second impeachment would be a fitting conclusion to Trumps defilement of the presidency. Better still, if we maintain our vigilance and continue to press for accountability, a second impeachment could also be a prelude to future federal and state criminal prosecutions of Trump and his principal enablers.

We havent a moment to lose.

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Unequal Justice: Use Both the 25th Amendment and Impeachment to Hold Trump Accountable - Progressive.org