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The U.S. Commission on Civil Rights and Russia Today

Alison Somin February 06, 2016

Yesterday, Commissioners Gail Heriot and Peter Kirsanow sent a letter explaining why they had declined to vote for a controversial letter dated January 22, 2016 sent by the six other members of the Commission to President Obama and Secretary of Homeland Security Jeh Johnson.

The original Commission letter called upon the Obama Administration to "cease immediately the raids currently being carried out by the Department of Homeland Security (“DHS”) and Immigration and Customs Enforcement (”ICE”) against Central American refugees.” 

The most eye-catching part of the original Commission letter was its reliance upon an article in Russia Today -- a Russian-government funded media organization that has been called “Putin’s magnificent messaging machine”—for its facts.  In relying upon Russia Today, the Commission letter implicitly rejected word of the Department of Homeland Security, whose description of its actions differed from Russia Today’s.  RT meanwhile returned the favor by publishing an article that approvingly cited the Commission letter. 

Heriot & Kirsanow had this comment on the Commission’s ill-considered action:

“This is unacceptable.  To give just a taste of Russia Today’s past missteps, we note that it is infamous for airing conspiracy theories that the United States was behind the September 11 attacks;  for suggesting that Democratic presidential candidate Hillary Clinton is secretly the “Illuminati” candidate; for featuring an obviously forged document in which RAND Corporation officials supposedly advised Ukrainian President Petro Poroshenko to ethnically cleanse eastern Ukraine, bomb it heavily and place locals in internment camps; suggesting that the Rothschilds were behind the disappearance of Malaysia Flight 370; and for airing the prophecies of fringe authors who stated that there was a 55% chance of civil war and that the United States would dissolve into six territories by 2010.“ 

Rather than jumping to conclusions about the legality and propriety of the administration's recent enforcement actions,  the Heriot-Kirsanow letter requested that Homeland Security give more information about the relevant cases. 

Disclosure: I am Gail Heriot's special assistant and counsel at the Commission. I helped Commissioner Heriot with research and drafting for this letter. This blog post reflects my views and my views alone; it does not necessarily represent those of Commissioner Heriot or the U.S. Commission on Civil Rights. 

State Courts & AGs

State Court Docket Watch News Clips: 2/5/2016

Zach Mayo February 05, 2016
  • West Virginia's legislature passed a right-to-work bill yesterday, sending it to the governor's desk for approval. Though Governor Earl Ray Tomblin is likely to veto the bill, observers expect the legislature to override. Read more at The Washington Post.
  • A panel of the Fourth Circuit Court of Appeals overturned a lower court decision that upheld a Maryland law prohibiting "high capacity" magazines and "assault" weapons. The appellate opinion determined that these restricted items are common in possession and use by Americans. Because of this, the items did not fall into the category of "unusual" weapons, the ownership of which Supreme Court jurisprudence permits the government to restrict. Read more at The Baltimore Sun.
  • Justice Francis Spina and Robert Cordy each announced they would step down from the Massachusetts Supreme Judicial Court at the end of the current term. These will be the first opportunities for Governor Charlie Baker to make appointments to the state's highest court. Read more at Boston Business Journal.


Exceptionalism by Michael B Mukasey

Meet Clint Bolick, Libertarian Lawyer Turned Arizona Supreme Court Justice

Timothy Courtney February 05, 2016

New judicial appointee and Federalist Society member Clint Bolick tells

...I've really seen some wonderful changes in the law. I think that the main evolution, and this is attributable to organizations like the Federalist Society, the Institute for Justice, the Goldwater Institute, is a rebirth of appreciation for examining the original intent of the Constitution. That's been very, very gratifying. It's really a sea change when you look back only a few decades to the Warren Court and the notion that judges can make it up as they go along essentially.

Read the full interview


A Symphony of Interests in Business Communications by Wayne A. Abernathy

An End to Too-Big-to-Fail?

C. Wallace DeWitt February 04, 2016

The Federal Reserve has proposed imposing long-term unsecured debt and "total loss-absorbing capacity" requirements for global systemically important banks. But will it work to end Too-Big-to-Fail? Dr. Paul Kupiec of the American Enterprise Institute has sounded a note of caution in a recent comment letter to the Federal Reserve.

Brief background on the TLAC proposal and its role in the broader context of financial reform since the 2008-09 crisis follows below. [Read More]

Executive Branch Review

Photo Credit: Gratisography (link)

Letter to Bankers from the Consumer Bureau

Wayne Abernathy February 04, 2016

The Consumer Bureau believes that not enough people have bank accounts.  Few bankers would disagree, but has the Bureau discovered something about these potential customers that bankers did not know?  What do you do when a powerful regulator sends you a letter encouraging you to seek new customers with a product that the regulator designed? [Read More]


Trinity Lutheran Church v. Pauley

Kyle Duncan February 04, 2016

The U.S. Supreme Court recently agreed to review the Eighth Circuit’s decision in Trinity Lutheran Church v. Pauley. At first blush, this case does not promise the same religious fireworks as some of the Court’s recent cases, such as the widespread challenges to the HHS contraceptive mandate by religious orders like the Little Sisters of the Poor and businesses like Hobby Lobby. On closer examination, however, Trinity Lutheran raises serious and contested questions about anti-religious discrimination, and more specifically the extent to which the Constitution restrains the government from excluding religious organizations from participation in public benefit programs. [Read More]


When Falsely Shouting "Crime" Pays by Francis J. Minton

The Right to Try

Christina Sandefur February 03, 2016

Thanks to the Food and Drug Administration’s lengthy approval process, it takes over a decade and a billion dollars for new medicines to get to market. In the meantime, Americans who have exhausted all government-approved options are dying while potentially lifesaving treatments flounder amidst bureaucratic red tape. Sometimes, Americans are denied access to the same lifesaving treatments that are already helping patients overseas, even though many of those medications were developed or produced in the United States. But beyond the Washington impasse, there is hope in the states. [Read More]


Article V Conventions and the Tenth Amendment go Hand in Hand

Nick Dranias February 02, 2016

Nick Dranias writes:

The movement to amend the Constitution by convention under Article V has recently garnered incredible strength. In the past five years, nearly two dozen pieces of Article V legislation have been passed in as many states by nearly as many public policy organizations. From the Left to the Right, Americans are recognizing that the rules of the political game need to be rewritten outside of Washington to reform the federal government.

Most of this recent legislative ferment is attributable to the seminal work of one man. But what if that man were now inadvertently working to extinguish his own handiwork? What if, in a valiant but strained effort to mold Supreme Court precedent into rules of the road for an Article V convention, that man fumbled a huge opportunity to vindicate the Founders’ intent from a clean slate?

Sadly, that appears to be happening.

Download Download filethe full paper. A version of this article previously appeared at

State Courts & AGs

Wisconsin Supreme Court - State Court Docket Watch News Clips: 8/11/2015
Photo Credit: "Wisconsin Supreme Court" by Royalbroil via Wikimedia Commons (link)

State Court Docket Watch News Clips: 2/1/2016

Zach Mayo February 01, 2016
  • Wisconsin Attorney General Brad Schimel filed an amicus brief with the state's supreme court arguing that investigators should not be able to retain copies of the documents they seized in the "John Doe" probes of associates of Governor Scott Walker. The supreme court had previously ordered the investigator defendants to destroy the documents after it ordered the probe closed. Read more at Courthouse News Service.
  • Former West Virginia Attorney General Darrell McGraw has filed to run in the nonpartisan election for the state's supreme court in May. McGraw previously sat on the court before five terms as the state's attorney general. He was defeated by current Attorney General Patrick Morrisey in 2012. Read more at The Washington Times.
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