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Fairholme Funds, Inc. v. United States: Litigation Discovery and the Most Transparent Administration in History

Kennedy, Korematsu, and the Travel Ban

John Reid February 10, 2017
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President Trump’s recent travel ban sparked an interesting constitutional discussion regarding the limits of executive authority.  Assuming Judge Robart’s ruling, blocking President Trump’s executive order, does make its way to the Supreme Court, the potential Supreme Court ruling would have broad implications beyond President Trump’s executive order regarding a travel ban.  The reverberations of such a ruling will likely effect presidential powers for years to come. For the liberal bloc of the Court to have any hopes of overturning the largest portions of President Trump’s order and create new precedent they need the vote of Justice Kennedy, the so-called “swing vote” on the Supreme Court. In order to draw Justice Kennedy to their side they could offer one incredibly enticing opportunity: the chance to overturn the universally reviled Korematsu v. United States. [Read More]

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Forced Clandestine Practice and Religious Persecution

David Feder September 06, 2016
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“Persecution” is defined as “to cause to suffer because of belief.” Merriam-Webster’s Collegiate Dictionary 866 (10th ed. 1993).  Chinese government officials arrested Ting Xue for attending an unregistered Christian church, hit him with an electrically charged baton, threw him in a squalid cell for four days, and threatened him with serious punishment if he ever repeated the offense. When some of his fellow church members were caught shortly thereafter practicing underground, they arrested them and sentenced them to one year in prison. Fearing that he would soon suffer the same punishment simply for freely exercising his faith, Mr. Xue fled to the United States and applied for asylum. One would think that, if anyone had suffered because of his beliefs, it would be Mr. Xue. Nonetheless, the Board of Immigration Appeals dismissed his appeal from the immigration judge’s denial of asylum. [Read More]

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Constitution and Declaration - American Exceptionalism by William R Yeomans

Founders Meet Brand X

David Feder August 29, 2016
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Funny things happen when you let the executive exercise legislative power in a quasi-judicial proceeding. Funnier things happen still when the executive can exercise this legislative power in a quasi-judicial proceeding to overrule, in effect, a binding Article III decision. In a recent pair of thoughtful opinions, Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit has confronted this thorny problem and pointed the way forward: applying agency rules only prospectively to citizens who relied on binding circuit court precedent. [Read More]

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Commission on Civil Rights Releases Flawed Report on Immigration Detention Facilities by Alison Somin

Live Stream: Is President Obama’s Executive Order Preventing Deportation Constitutional?

Daniel T. Richards April 21, 2016
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On April 18, the Supreme Court heard oral arguments on the constitutionality of DAPA (Deferred Actions for Parents of Americans), President Obama's executive order that offers temporary legal status to undocumented parents of American children. The order will defer deportation proceedings against four to five million undocumented aliens and hand them temporary work permits. A ruling is expected in June.

Like much of the country, libertarians have been deeply divided over whether the president has the power to issue such an order. Those who defend him argue that he has broad prosecutorial authority to set enforcement priorities on immigration law just as he does on criminal law, especially since the violations far overwhelm the resources available to prosecute them. Those who say he doesn't argue that such systematic en masse relief without Congressional authorization is tantamount to writing laws by executive fiat.

Reason Foundation Senior Analyst Shikha Dalmia will moderate two pre-eminent libertarian constitutional scholars Ilya Shapiro and Ilya Somin as they go toe-to-toe in a live debate on this controversial issue that promises to have major repercussions for the presidential election this year. Shapiro of the Cato Institute will argue that the order goes beyond the president's lawful powers and Somin of George Mason University and Washington Post's Volokh Conspiracy will argue that it fits within the relevant legal and constitutional provisions - and is the right thing to do.

State Courts & AGs

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State Court Docket Watch News Clips: 4/18/2016

Zach Mayo April 18, 2016
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  • Texas Attorney General Ken Paxton published an opinion piece in USA Today outlining the state's objections to President Obama's executive order on immigration. Scott Keller, Texas' solicitor general, argued the case today in front of the Supreme Court.
  • Kansas Attorney General Derek Schmidt submitted the state's brief in a case concerning school funding at the Kansas Supreme Court. The state argues that the legislature addressed concerns about the school funding plan in a bill passed at the end of the legislative session, but some school districts argue that funding is still inequitable. If the plaintiffs prevail, the court may order schools closed pending further action. Read more at KCUR.
  • Governor Tom Wolf of Pennsylvania signed a bill legalizing medical marijuana in the state. Read more at 6ABC.