Category Archives: Fifth Amendment

The Trump White House is not happy and does not get the job done. It is the most dysfunctional in history. Donald Trump is the most corrupt president in history. Yet that White House and that president head the government of this unfortunate country. Now that Trump has been diagnosed with COVID-19 and is being treated at Walter Reed National Military Medical Center, its important that Americans and the world know whether anybody is in chargeand if so, who?

Granted, Americans were asking that question even before Trump was airlifted to the hospital. The administration has given no straight answer even to such basics as Are Trumps tweets official statements of the president? The U.S. government in court has sometimes argued yes. At other times, it has argued no. Trump notoriously spends his days watching television, and also notoriously trusts even the wackiest television talkers more than the scientists, military, and intelligence services of the United States.

Before Trumps diagnosis, however, Americans at least knew that he was the head of government and the head of state. If a presidential signature was required, his was that signature. If an order had to be given to the armed forces, that order ultimately traced to his legal authority.

Now theres reason to wonder: Is he still able to discharge the office from Walter Reed? If hes not, U.S. law provides remedies. Either way, Americans and the world need to know.

That need raises special problems in the Trump era, because of this White Houses supreme dishonesty. Their words mean little. In the stress of 1981, the Reagan White House walked an extra mile to communicate assurance. I mentioned how faction-riven that White House was. When Reagan signed the dairy bill on the day after the assassination attempt, the three aides by his side were the leaders of the three big factions: not only Baker, but also his rivals, Michael Deaver and Edwin Meese. Nobody was left to linger behind to cast doubt on Reagans competence.

Read: What I saw at the White House

COVID-19 can be incapacitating, especially for older people and especially for people who are overweight, as Trump is. When British Prime Minister Boris Johnson entered the hospital for COVID-19 in April of this year, he formally deputized Foreign Secretary Dominic Raab to oversee government for him. Such a transfer is a more serious matter in the U.S. system, formalized by law. Any administration might hesitate to acknowledge the incapacity of the president. But if the Trump administration is not going to invoke the Twenty-Fifth Amendment and its temporary transfer of authority from president to vice president, then it needs to do something else. It needs to communicate to Americans and the world that Trump remains able to do his job, if only to the same minimal extent he has done the job until now. And it needs to do that communicating fastand as close to truthfully as this crooked administration can manage.

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It May Be Time to Invoke the Twenty-Fifth Amendment - The Atlantic

With Donald Trump just out of Walter Reed hospital after days of COVID-19 treatment and Election Day scarcely a month away, the world is understandably abuzz over the fate of his campaign. More worrisome, though, is what happens to the commander-in-chief post if Trump, now back in the White House, were to be incapacitated by the virusor worse, if he were to join the 210,000 Americans who have died from the scourge so far. The Constitutions Twenty-fifth Amendment was ratified after President John F. Kennedys assassination precisely to deal with such contingencies, but like many other parts of the Constitution, it is destined for obsolescence thanks to the Trump administrations lies, obfuscation, and norm-busting.

It turns out that the Constitution mostly runs on the honor system. But for that to work, voters must elect lawmakers and presidents who possess a core value system that calls for fidelity to the rule of law. Alas, many of us are only just discovering this truth. It might be too late to address it.

The Twenty-fifth Amendment says three important things. First, if Trump were to die in office, it would automatically make Mike Pence president. Pence could then nominate a vice president to replace him, but that pick must be confirmed by a bare majority vote of both Houses of Congress. Thats the easy part.

Second, it gives Trump the discretion to decide that hes unable to discharge the powers and duties of his office in the event he becomes very sick with COVID-19. He would then transmit a written declaration to Chuck Grassley (as the president pro tempore of the Senatethe member designated to take Pences place presiding over the Senate) and Nancy Pelosi. Once Trump sends that message, Pence would automatically become acting President until Trump transmits to them a written declaration to the contrary.

Podcast October 06 2020

On today's Bulwark Podcast, Tim Miller joins host Charlie Sykes to discuss the most bizarre photo op ever, and Andrew We...

Of course, the notion that an ailing Donald Trump would step aside from his position as the most powerful man in the world for the good of the country is sheer folly. It would never happen. The one thing we know for sure from Trumps coronavirus episode is that he doesnt care much about other peoples health or well-being, including that of the populace writ large. After all, its likely that he knowingly infected people at a Minnesota fundraiser before announcing that he had tested positive, and he likely knowingly infected peoplepublic servants who swore to protect him as president, mind youwhen he took his reckless joy ride around the hospital grounds so he could wave to adoring fans.

Which brings us to the third important part of the Twenty-fifth Amendment. If Pence and a majority of Trumps cabinet decide that the president is so gravely ill that he is unable to discharge his duties, they can send their own missive to Grassley and Pelosi. In that event, Pence shall immediately assume the powers and duties of the office as Acting President. The Constitution allows the president to send a counter-declaration that he is finealthough in theory, if he were fine, thered be no need to invoke this emergency measure. (The Constitution also gives Congress the authority to designate people other than Pence and a majority of cabinet officers the ability to trigger this chain of events, but Congress hasnt done that, so its beside the point.)

All of this assumes not only that Trump would execute his duties and obligations somberly and for the good of the republic even if it meant yielding power (which is all but an impossibility), but also that Pence and Trumps executive branch appointees would do the same with regard to their respective oaths of office.

This is really where the Constitution has broken down.

The Constitution is not self-executing. It is a piece of paper. It is only so good as it is enforced and respected. In the last few days, the American people have heard that Trumps blood oxygen levels have dropped at least twice, that he was airlifted to the hospital from the White House, and that he has been given a range of drugs reserved for at-risk patients, including an experimental antibody cocktail; the drug remdesivir, which was granted authorization by the Food and Drug Administration on an emergency basis; a range of supplements; and dexamethasone, a steroid that decreases the bodys inflammatory reaction to the virus. (It is the inflammation that causes the horrific lung disease associated with COVID-19.) In rare cases, dexamethasone has been linked to grandiose delusions, psychosis, delirium, and hallucinations. Theres much more we dont know.

If Trump were to succumb to delusions or psychosis due to dexamethasone, would the American public even know?

If Trump, while still in the hospital, had wound up on a ventilator unable to speakor if he were discharged from Walter Reed with some combination of COVID-19s adverse side effects to the heart, lungs, or brain, including possible strokes, seizures, or a temporary paralysis called Guillain-Barre syndromeagain, would the American public even know?

Given this administrations lies, and even the caginess of the presidents physicians (not just over the last few days but over the last few years), how much stock can the public put in their pronouncements?

And its not just about what the public knows; there is no reliable legal mechanism in place for delivering information on the presidents health to the other top government officials. Nancy Pelosi is third in line for the presidency under the Presidential Succession Act, but she told Face the Nation on Sunday that Were getting our information the way everyone else isin the media.

Suppose a foreign terrorist attack occurred on American soil between now and January 20, when the new or re-elected president is constitutionally required to take office. If Trump were too ill to function but nobody but his inner circle even knew, who would take the helm? Jared Kushner? With no transparency or oversight, how many more might die as a result of the inevitable White House chaos? The Twenty-fifth Amendment answers these questions, but its invocation requires the sycophants surrounding the president to honor it.

Once again, the Trump administration is poised to steamroll over the Constitution itself while the rest of us are left to witness a fundamental reshaping of the United States governmentprobably for keeps.

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The Flaw in the Twenty-Fifth Amendment - The Bulwark

SAN DIEGO (KUSI) President Donald Trumps doctor on Saturday painted a picture of the presidents health as he remains hospitalized for coronavirus treatment.

But that assessment was immediately contradicted by a person familiar with Trumps condition, who said the situation had been very concerning.

Just a month before the presidential election, Trumps revelation that he was positive for the virus came by a tweet about 1 a.m. Friday after he had returned from a Thursday afternoon political fundraiser.

First lady Melania Trump also tested positive, the president said, and several others in the White House have, too, prompting concern that the White House or even Trump himself might have spread the virus further.

KUSI Contributor, Dan Eaton, joined Good Morning San Diego to discuss the Twenty-fifth Amendment (Amendment XXV) to the United States Constitution deals with issues related to presidential succession and disability.

It clarifies that the vice president becomes president (as opposed to the acting president) if the president dies, resigns, or is removed from office; and establishes procedures for filling a vacancy in the office of the vice president and for responding to presidential disabilities.

The Twenty-fifth Amendment was submitted to the states on July 6, 1965, by the 89th Congress and was adopted on February 10, 1967, during the 90th Congress, the day that the requisite number (38) of individual states had ratified the amendment.

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Dan Eaton explains the 25th amendment and what it means for Presidents - - KUSI

News of President Donald Trump testing positive for COVID-19 shook the country and world on Friday, Oct. 2. Beyond obvious health implications, the personal, electoral and legal repercussions are yet to be revealed.

According to Brian Kalt, Michigan State University law professor and the Harold Norris Faculty Scholar, it is important for the country to understand what the legal picture might be if Trumps condition worsens.

The law is mostly clear about how to handle a president who falls seriously ill, but its not hard to envision a legal scenario that spins out of control quickly, Kalt said.

Kalt, an expert in constitutional law of the presidency, says the key provision is the 25th Amendment. Kalt, author of Unable: The Law, Politics, and Limits of Section 4 of the Twenty-Fifth Amendment, answers questions about what the presidents diagnosis means under constitutional law.

Briefly, what is the process behind the 25th Amendment in a health situation?

The original Constitution provided that the vice president would step in when the president is incapacitated, but it said nothing about how the presidents incapacity was supposed to be determined. As a result, we have had long stretches (when President James Garfield was shot and when President Woodrow Wilson had a stroke) where the vice president should have been in charge but instead the presidents staff or spouse ruled. Enacted in the 1960s after John F. Kennedy was assassinated and at the height of the Cold War, the 25th Amendment finally provided a clear process, with the aim of ensuring that there is always a hand at the helm.

What happens if the 25th Amendment is enacted?

Section 3 of the amendment allows the president to transfer power voluntarily to the vice president. To do this, Trump would send formal notice to the speaker of the House, Nancy Pelosi, and president pro tempore of the Senate, Chuck Grassley, declaring that he is unable to discharge the powers and duties of his office. Upon transmitting this declaration, Vice President Mike Pence would become acting president those powers and duties would all go to him. Whenever Trump felt able again, he would send a new declaration and immediately take back control.

Invoking Section 3 is completely up to the president. But for a variety of reasons (the desire to project strength, to maintain continuity and calm, optimism about ones health, denial about ones health, paranoia about losing power), presidents generally are unlikely to use this provision unless it is absolutely necessary.

Whats the likelihood of Trump invoking it?

Section 3 has been used only three times: once by President Ronald Reagan, twice by George W. Bush. Each instance involved the presidents receiving general anesthesia for surgery for a few hours. It was not invoked when Reagan was shot and almost killed in 1981; it certainly should have been, but the president and his aides never seriously considered it.

Is that the only way for power to transfer?

Recognizing that the president might be incapacitated but unwilling to admit it or, more problematically, unable to admit it because he is unconscious the 25th Amendment also includes Section 4, which transfers power without the presidents consent. Instead of Trump transmitting his declaration declaring he is unable, Pence and a majority of the core members of the Cabinet do so (there are either 14 or 15; it is unclear whether Chad Wolf, the sole acting member of the Cabinet, canlegally participate). As in Section 3, power immediately transfers to the vice president. If Pence and the Cabinet members did invoke Section 4, whenever Trump felt able enough to resume his duties, he would send a declaration to that effect, kicking off a four-day waiting period during which Pence would remain in control. If Pence and a majority of the Cabinet did not disagree with Trumps declaration within those four days, Trump would retake his powers. If Pence and the Cabinet did disagree, the question would get kicked to Congress, with Pence in charge in the interim. Unless both houses agreed by a two-thirds majority, within 21 days, that Trump was unable to serve, Trump would retake power. But even if Trump lost the congressional vote, he would not be removed from office, and he could try again and again to retake his powers using the same process.

Section 4 thus stacks the deck heavily in the presidents favor in a contested case; impeachment requires far fewer ducks to be aligned in a row against him. It does so on purpose. The point of Section 4 is to transfer power swiftly and certainly when the president is completely incapacitated (as when he is comatose), but to protect the president from being stripped of power in all but the most clear-cut situations. By making it hard to invoke, Section 4 ensured that it would not be used against a president who was merely unfit for office. It really is about incapacitation the unmanned helm.

Are there any limits to this important amendment?

Importantly, the 25th Amendment only operates when the president is incapacitated and when there is a vice president. The drafters of the amendment recognized that they were leaving a big hole what if the president and vice president are both incapacitated? but they felt that the amendment was too long and complicated as it was.

If Pence were to get sick and become incapacitated as well, the Presidential Succession Act of 1947 states that House Speaker Nancy Pelosi would be next in line. The Constitution, though, provides no process and no standards for such a transfer of power. What if Pelosi and Pence disagree about his condition? What if Secretary of State Mike Pompeo objects, raising the numerous serious arguments that scholars and lawmakers have made over the decades that it is unconstitutional for congressional officials to be included in the line of succession statute? Such a situation could put us in the unacceptable circumstance of having two people claiming to wield presidential power, with no clear answers about who is right possibly with an election happening at the same time, or with votes being challenged in court afterward.

Given the unprecedented time were in and just four weeks from the election whats the takeaway?

The Constitution and the line of succession statute are premised on the notion that our top officials will proceed sensibly and in good faith, with due regard for the countrys need for steady leadership. But those qualities seem to be in shorter supply today than they were in 1787 and 1967. They are in even shorter supply a month before Election Day. Again, we should not get ahead of ourselves here, but knowing what danger looms, its extraordinarily important not only that Trump quarantine right now, but also that Pence stay virus-free and generally healthy as well.

Read Kalts op-ed in the Washington Post.

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Ask the expert: Trump, COVID and the 25th Amendment - MSUToday

SAN FRANCISCO (CN) University of California officials cannot be sued on claims of cheating students out of hundreds of millions of dollars in fees for on-campus services not provided due to the Covid-19 pandemic because they are immune from federal lawsuits, a judge said in court Monday.

Advancing two federal lawsuits over on-campus fees would allow every person who is unhappy with the services provided by state governments to sue in federal court, despite state officials right to immunity from federal lawsuits under the 11th Amendment, U.S. Magistrate Judge Sallie Kim said during a virtual hearing Monday on the UC systems motion to dismiss.

The door that youre opening is huge, Kim told a lawyer for students suing the University of California Regents and former UC President Janet Napolitano.

Lead plaintiffs Claire Brandmeyer and Noah Ritter, who attended UC Davis and UC Berkeley, respectively, in the spring of 2020, sued the university system in separate lawsuits this past April, claiming their colleges refused to refund fees of over $1,000 each student paid for on-campus activities, safety and health care, among other services they say were never provided.

The issue is theyve taken hundreds of millions of dollars from class members here for services they cant provide, said plaintiffs lawyer Adam Levitt of the firm DiCello Levitt Gutzler in Chicago.

Attorneys for the University of California say the state-funded institution and its officials are immune from federal liability unless they violate a clearly established constitutional right.

Students dont have a clearly established constitutional right in the fees they pay to the university, UC Regents attorney Karen Johnson-McKewan of the firm Orrick Herrington & Sutcliffe in San Francisco argued in court Monday.

Johnson-McKewan said these cases belong in state court, where six separate class actions seeking to recover on-campus fees from University of California schools were recently consolidated in Los Angeles Superior Court.

The plaintiffs say the millions of dollars in fees charged for services not provided represents an unjust taking of property in violation of the Fifth Amendment.

Noting that the U.S. Supreme Court has twice called out the Ninth Circuit for improperly limiting qualified immunity, Judge Kim said the nations highest court has made clear that a prior court decision is necessary to put a state official on notice that their conduct is clearly unconstitutional.

Levitt cited the Supreme Courts 2015 decision in Horne v. Department of Agriculture as establishing that taking without just compensation is unconstitutional. But Judge Kim accused Levitt of using that case to rely on general principles rather than specific, on-point case law.

Youre saying any time a state official or actor is accused of taking property in violation of the Takings Clause, that person cannot claim qualified immunity, Kim said.

Levitt then cited the First Appellate Districts 2007 decision in Kashmiri v. Regents of the University of California, which found the university system could not raise educational fee prices after students enrolled without warning them the prices were subject to change.

But Kim said that case was about breach of contract, not a constitutional violation.

Arguing for the university, Johnson-McKewan said the plaintiffs cannot claim a violation of the Takings Clause because the fees they paid for on-campus services belong to the university, not the students.

Their theory is the university doesnt own those fees until a later point, Johnson-McKewan said. Do they have to wait until the end of the academic term to claim those fees?

Johnson-McKewan also cited the Third Appellate Districts 1982 decision in Erzinger v. Regents of the University of California, in which the court found a policy requiring students to pay a health care services fee that included providing birth control and abortions did not violate a students religious freedom rights. In that case, the court also held that once the university collects mandatory student fees, such funds become university property.

Levitt argued that case covered a completely separate issue whether students can pick and choose what their campus fees are used for. This case involves paying a fee and receiving no services in return, he said.

When you pay fees for a specific service that cant be given and they dont give it back, thats actually a taking of your property, Levitt insisted.

After nearly an hour of debate, Kim said she believes University of California officials are entitled to qualified immunity.

Nothing you have said today has persuaded me to the contrary, Kim told the plaintiffs lawyer.

The judge said the only issue she was still wrestling with is whether to let plaintiffs amend their complaint, suggesting that she thinks any further attempts to prevent the case from being thrown out of federal court could be a waste of time.

Im just grappling with the question of whether amendment would be futile or not, Kim said.

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Judge: Federal Court Not the Place to Sue University of California Over Fees - Courthouse News Service

Mike Antonuccis Union Report appears most Wednesdays; see the full archive.

You wont often find the four largest public-sector unions the National Education Association, American Federation of Teachers, American Federation of State, County and Municipal Employees and the Service Employees International Union and the National Right to Work Legal Defense Foundation all on the same side of a major labor issue.

I take that back. Youll never find it.

But 2020 is a year where anything and everything can happen, so its in keeping with the times that these eternal adversaries should find common ground in the case of Sweeney v. Raoul.

The case is a response to the U.S. Supreme Courts 2018 ruling in Janus v. AFSCME, which banned public-sector unions from charging representation fees to nonmembers. Unions universally decried the 5-4 decision and immediately went to work to mitigate its effects. Though most of these measures were legislative or administrative in nature resignation windows, membership pitches during required orientation sessions for new employees, etc. several unions chose litigation.

Unions in Idaho and Wisconsin filed suit, claiming the loss of nonmember agency fees violated the Takings Clause of the Fifth Amendment of the Constitution. They were unsuccessful.

In Illinois, Local 150 of the International Union of Operating Engineers, which represents some public-sector workers, took a different route. The union claimed that being forced to file grievances on behalf of nonmembers was a violation of the unions First Amendment rights. The case was dismissed in trial court but was successfully appealed to a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Oral arguments were heard last week.

The underlying principle of the suit is the unions duty of fair representation. Since the union is the exclusive bargaining agent for all employees in a unit, it must represent all equally, regardless of whether they are union members. Unions defended agency fees as a way to avoid free rider problems, but the Janus ruling changed that dynamic.

Voices on both the right and left began discussing the possibility of members-only unions. Common in Europe, these unions dont have exclusive representation rights and negotiate only on behalf of dues-paying members. This leaves individuals the freedom to set the terms of their own employment, and even allows for multiple unions in the same workplace.

No doubt Local 150 thought using the First Amendment arguments that won the case for the Janus plaintiff against it was a shrewd move. But a host of the nations largest public-sector unions saw the suit as a threat to exclusive representation.

In an amicus brief, attorneys for NEA, AFT, AFSCME, SEIU and their Illinois affiliates laid out their reasons for opposing the Local 150 lawsuit.

Though they stated that Janus was wrongly decided, NEA et al. argued in the brief that a Local 150 victory could undermine longstanding collective bargaining arrangements and even chip away at the validity of public-sector collective bargaining itself. The major unions went on to cite the majority ruling in Janus multiple times.

The unions approvingly noted the Janus reasoning that exclusive representation gives them a privileged place in negotiations over wages, benefits and working conditions and that representing nonmembers is a necessary concomitant to that exclusivity. Exclusive representation without an obligation to represent nonmembers would leave those employees without any representation or means to gain it. That, according to the Janus ruling, would lead to serious constitutional questions.

NEA et al. also appear to have wholeheartedly accepted the Janus majoritys logic that no union is ever compelled to seek exclusive status. They stated that the duties involved in representing nonmembers do not impose substantial restrictions on a unions core rights of expression and association. Whats more, they said, performing those duties furthers the unions interests in keeping control of the administration of the collective-bargaining agreement.

Local 150 responded to these criticisms by saying it is being misunderstood. The union said it doesnt want to erode exclusive bargaining, merely charge nonmembers for services. But the major unions oppose this reasoning as well.

Many unions, they stated, believe that fee-for-service arrangements promote a detached, transactional view of the relationship between a union and the employees it represents, rather than the sense of solidarity and engagement within the workplace that is ultimately the most significant source of unions power.

NEA at al. concluded: Janus confirms the central role the duty of fair representation plays in ensuring the constitutionality of exclusive representation. That duty is also consistent with broad principles of First Amendment doctrine. Any conclusion to the contrary would jeopardize not only fundamental aspects of labor relations in the public sector but a broad array of duties that are well recognized under the law.

Union allies and opponents will continue to argue about whether exclusive representation infringes on individual rights. Whats clear from this brief is that unions prize their monopoly on bargaining above all else and will embrace the existence of nonmembers as a small price to pay for retaining that privilege.

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Analysis: To Preserve Their Exclusive Right to Representation, NEA, AFT and Other Major Unions Will Even Buy Into Janus Ruling - The 74

For the second time in as many weeks, a federal judge has halted President Trumpsimpositionofsanctionsagainst a mobile application on free speech grounds. The sanctions, supposedly based on national security concerns about China, would have rendered the apps WeChat and TikTok unavailable for download or updating in the United States. The underlying law on which the sanctions are based, the International Emergency Economic Powers Act (IEEPA), is broad and powerful, and the president must declare a national emergency to invoke it.

Usually the president has wide leeway under the law, so what could explain the judicial pushback in these two cases? It could be the nature of the claims at issue, but it could also be that the judiciary is growing weary of emergency actions that are based on scant evidence. Indeed, executive overreach in the use of IEEPA after the 9/11 attacks occasioned similar pushback.

On September 19, a judge in Californiaruledagainst the WeChat sanctions in a case brought by a group of U.S.-based users of the app. The court found that the plaintiffs had shown a likelihood of success on their claims that the shuttering of the app was a prior restraint of speech and that it was overly broad in the speech it would suppress.

Then, last Sunday night, as the clock neared the midnight deadline by which app stores would have to remove TikTok from their offerings, a judge in Washington, DC, granted an injunction to that company as well. The judge based his decision on two statutory exemptions in IEEPA, for informational materials and personal communications, that were themselves meant to protect free speech principles.

Trying to marshal what had historically been a fairly successful line of attack, the Department of Justice lawyer opposing the TikTok injunction cautioned that the company was challenging a national security determination by the president as well as the judgment of the secretary of commerce about whats necessary to mitigate those national security harms, adding that the court owes significant deference to that. Nevertheless, whatever deference the judge thought appropriate, it was not enough to stave off the injunction.

The government, for its part, denies that sanctions prohibiting business transactions with the apps have anything to do with free speech. But, rejecting that contention, one judge quoted Trumps own executive order issued in May under the title Preventing Online Censorship. It states that social media and other online platforms function in many ways as a 21st century equivalent of the public square.

Hovering in the background is the fact that the Trump administration has taken a number of actions with questionable evidentiary bases under aggressive interpretations of emergency or national security powers. They includedeclaring an emergencyat the border to fund a wall,sanctioningInternational Criminal Court personnel, and banning the admission into this country of people from six Muslim-majority countries. Such actions may be influencing judges to view Trumps emergency declarations with a justifiably more jaundiced eye.

The government itself prompted consideration of these precedents in the apps litigation by relying in their briefs on the Supreme Courts decision in the Muslim ban case,Trump v. Hawaii.In both the WeChat and TikTok cases, the Department of Justice quotedthat decisionto argue that a court should not substitute its assessment of national security concerns for the Executives predictive judgments on such matters, all of which are delicate, complex, and involve large elements of prophecy. The suggestion that courts accede to the executives mystical powers was unavailing. The judge in the WeChat decision held that while the governments overarching national-security interest is significant it had shown scant little evidence that banning WeChat for all U.S. users would address those concerns.

Whatever the reasons for the more thorough review of the presidents use of this emergency power, the decisions have echoes in the period following the 9/11 attacks, when the Bush administration used IEEPA to freeze the assets of a group of primarily Muslim charities in the United States, effectively bankrupting them. This was a step too far for some judges, whopushed backon its constitutionality. They held that the sanctions, as implemented,violatedthe plaintiffs Fourth and Fifth Amendment rights regarding unreasonable seizures and due process.

Not all of the plaintiffs in cases challenging the sanctions against the apps have been successful; a judge in Pennsylvaniarecently denieda group of TikTok users an injunction, rejecting their First Amendment claims. In addition, these latest decisions will surely be appealed.

But it is possible that there is a growing awareness among the judiciary that broad deference to the executive in the use of emergency powers is neither advisable nor salutary to our democracy.

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TikTok and WeChat Decisions Push Back on Trump Sanctions - brennancenter.org

President Donald Trump and his wife, Melania, have tested positive for the coronavirus, an announcement which is bound to throw the Presidential race into a state of grave uncertainty, if not chaos. The novel coronavirus pandemic has killed more than two hundred thousand Americans and more than a million people worldwide. On Friday morning, at 12:54 A.M. Eastern time, Trump tweeted, Tonight, @FLOTUS and I tested positive for COVID-19. We will begin our quarantine and recovery process immediately. We will get through this TOGETHER!

Trumps physician, Sean Conley, issued a statement saying that Trump and the First Lady were both well at this time. Trump had reportedly been hoarse during the day on Thursday, but his circle ascribed that to the rigors of rallies and other public events. Rest assured I expect the President to continue carrying out his duties without disruption while recovering, Conley wrote, and I will keep you updated on any future developments.

From the very beginning of the pandemic, Trump has denied or diminished the seriousness of Covid-19, from its initial outbreak in China to its spread to Europe and beyond. In interviews with Bob Woodward, for the journalists book Rage, Trump admitted that he well understood from advisers how lethal and fast-spreading the disease could be, but in public statements he downplayed the danger, saying repeatedly that the virus would disappear with the summers warm weather and that there was little to worry about. To the despair of the scientific and medical communities, which have uniformly said that the disease can be best contained if people wear protective masks and maintain a social distance, Trump has repeatedly flouted their advice and touted disreputable treatments. As recently as Tuesdays Presidential debate, in Cleveland, Trump mocked his opponent, Joe Biden, for wearing masks and practicing social distancing. I dont wear masks like him, Trump said sarcastically of Biden, at the debate. Every time you see him, hes got a mask. He could be speaking two hundred feet away from him, and he shows up with the biggest mask Ive ever seen.

Covid-19 has proved particularly lethal for older people, especially those who are obese and have prexisting conditions. Trump is seventy-four and overweight. According to the Centers for Disease Control and Prevention, eight out of ten Covid-19-related deaths in the United States have been of people sixty-five and older. Trumps doctors say that he is generally healthythough, on November 16, 2019, Trump was taken to Walter Reed National Military Medical Center, and Vice-President Mike Pence was reportedly placed on standby. The reasons for that hospital visit remain obscure. At one point, the President went out of his way to deny that he had suffered mini-strokes.

The news that Donald and Melania Trump had tested positive for the coronavirus broke in stages. On Thursday evening, the White House confirmed that Trumps trusted aide Hope Hicks had contracted the virus, and for hours thereafter cable news networks played a clip of the Presidents advisers, and then Trump himself, all unmasked, walking across the South Lawn of the White House, to board Marine One, the Presidents helicopter; they were heading to a campaign rally in Minnesota. While that tape played in an eerie loop, commentators and doctors described just how perilous it was for people to be in such close proximity to one another while not wearing masks. At political rallies across the country, and on the Republican National Conventions climactic night, at which the President delivered his speech accepting the Republican Partys Presidential nomination, Trump and the great majority of his supporters flouted wearing masks, which he has called a sign of weakness. At a rally in Dayton, last month, Trump said that the virus affects virtually nobody.

After the news became public that Hicks had the virus, Trump told the Fox News host Sean Hannity, When soldiers and law enforcement comes up to her, you know, she wants to treat them great. Not say, Stay away, I cant get near you. Its a very, very tough disease. Hours later, after most people in Washington and on the East Coast had gone to bed, the President issued his tweet about his own diagnosis.

In the coming days, it is likely that commentators will respond to the demands of both decency and a sincere desire to wish anyone with a serious illness well and a quick recovery. They will also assess the perils ahead. The uncertainties range from whether the Presidents condition becomes such that, under the Twenty-fifth Amendment, his powers need to be transferred to his Vice-President, Mike Pence, to what will happen in the Presidential race. The Twenty-fifth Amendment, which was ratified in 1967, was invoked most recently by George W. Bush, in 2002 and 2007, when he underwent colonoscopies; he briefly handed over power in those instances to his Vice-President, Dick Cheney.

In polls, Biden leads Trump nationally and in many battleground states, and in recent weeks the President has responded to his political predicament with incendiary attacks on his opponent, conspiracy theories about the fairness of the ballot, and unsubtle calls to his most dangerous followerssuch as the Proud Boys, a far-right militia groupto stand back and stand by. Punctuating it all is his chilling refusal to say that he would definitely accept the results of the election and accede to a peaceful transfer of powerwell see what happens is a common statement.

If both Trump and Pence were to be incapacitated, the rules of succession in the U.S. Constitution dictate that the Speaker of the House is next in line to take over the powers of the Presidency. The Speaker, of course, is a Democrat and Trumps political adversary, Nancy Pelosi. Trump has repeatedly derided Pelosi, and the relationship between the two has grown so poisonous that they have not had any serious contact in months.

For some time, commentators have routinely discussed what the October surprise would be. It was assumed that an autumn drama would entail the President challenging the legitimacy of the ballot, and he has done that repeatedly. At the debate, he retailed false and exaggerated stories about mail-in ballots, all in a seeming effort to sow confusion and cast doubt on a contest that he appears to be losing. But now that October surprise is here, and it involves something no less alarmingthe state of the Presidents health and that of his wife and senior advisers, and what it all will mean for the governance of the United States, a nation that has been suffering multiple crises for so many months. In a speech that he delivered virtually on Thursday night, for the seventy-fifth annual Al Smith dinner, the President said, I just want to say that the end of the pandemic is in sight, and next year will be one of the greatest years in the history of our country.

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Donald Trump Tests Positive for the Coronavirus, and a Nation Anticipates Chaos - The New Yorker

United States District Judge, Mary S. McElroy, sided with the American Civil Liberties Union (ACLU) and Rhode Island vanity plate-holder Sean Carroll this past Friday in a case that pits freedom of speech against state Department of Motor Vehicles (DMV) regulations. At issue is whether the vanity plate bearing the letter "FKGAS," shall be allowable.

View The Plate Here.

Mr. Carroll owns a 2019 Tesla Model 3 battery-electric vehicle. He and his daughter reportedly found the plate FKGAS humorous. One local newspaper that interviewed Mr. Carroll says that the plate reportedly meant "Fake Gas" to the owner and originator of the idea. However, we feel it is fair to say most people would choose another first word in that pairing. Therein lies the start of the difficulty.

Like many states, Rholde Island will allow a vehicle registrant to choose a combination of characters to personalize the plate they receive from the state. The plate does not belong to the individual. It is state property. So, in essence, the person who holds the registration actually rents the plate. The state of RI has a set of rules surrounding the message choice. The crux of which is "DMV may refuse to issue any combination of letters and numbers which might carry connotations offensive to good taste and decency." Before we go too much further, it would seem that Mr. Carroll should win his case. And the reason is that the DMV opted to issue the plate, which he currently has.

However, the DMV says that it received "a complaint." And it subsequently asked for its plate back. Mr. Carroll fought back with the help of ACLU, a group that helps some citizens fight for some civil rights (though they don't often back citizens in Second Amendment cases, or property owners in Fifth Amendment cases).

Friday's decision may not be the final say on the matter. It grants Mr. Carroll the temporary use of the plate. The decision says, in part, "...the Court finds that Mr. Carroll has satisfiedthe criteria for issuance of a preliminary injunction on his claims that the R.I.G.L. 31-3-17.1 is unconstitutional both as applied in this case and on its face as overbroadand void for vagueness. Having met the likelihood of success standard, he has, afortiori, met the less exacting standard of Fed. R. Civ. P. 12(b)(6) to withstand amotion to dismiss for failure to state a claim. Therefore, the plaintiffs motion forpreliminary injunction (ECF No. 4) is GRANTED and the defendants motion todismiss (ECF No. 12) is DENIED. "

The full text of the court's decision is fascinating if you are able to tollerate legalese. The constitutionality of vanity plates is still in question, despite many court battles on the topic. What say you readers? Should Mr. Carroll be able to express his opinion using abbreviated characters on the license plate that the State of Rhode Island charged him extra for, and issued? Or should "a complaint" trump one's First Amendment right to free speech? Tell us your opinion in the comments below.

John Goreham is a long-time New England Motor Press Association member and recovering engineer. Following his engineering program, John also completed a marketing program at Northeastern University and worked with automotive component manufacturers. In addition to Torque News, John's work has appeared in print in dozens of American newspapers and he provides reviews to many vehicle shopping sites. You can follow John on Twitter, and view his credentials at Linkedin

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RI Tesla Owner and ACLU Fight For Vanity Plate That Says FKGAS - Torque News

The Examiner

The lack of homicide charges against the three officers who executed the fateful no-knock warrant on Breonna Taylor's Louisville apartment is just another reason why we need to rid ourselves of grand juries.

Two officers were "no-billed" meaning grand jurors returned no bill of indictment and one Louisville officer, Brett Hankinson, was charged with wanton endangerment for firing bullets into the wall of a neighbor's apartment.

There's good reason to bury the grand jury. They uncheck government power and allow it to focus on someone without any due process.

Grand juries aren't like usual juries petit juries that hear evidence and argument from the government and the accused, moderated by a judge. Instead, grand juries are secret, non-adversarial which means no one cross examines witnesses or presents testimony that might exonerate the person about to be accused and entirely controlled by prosecutors. There's no judge or overseer to monitor what they do.

From 2009-10, the federal Department of Justice pursued 193,000 cases. Grand juries "no billed" 11 of them. That's a win rate of 99.99%.

Grand juries absolve prosecutors of responsibility. Lawyers like Daniel Cameron, the attorney general of Kentucky, absolve themselves by pointing to the grand jurors, who usually aren't allowed to discuss the evidence or instructions presented to them even though they were administrative marionettes, doing exactly what people like Cameron told them to do.

We can stop relying on these bodies. Connecticut and Pennsylvania have done away with them entirely. Only 25 statesrequire grand jury indictments before commencing a criminal case. Just 14 states require felonies to be charged by a grand jury.

Ridding ourselves of grand juries wouldnt slow any prosecutorial roll; they can secure the same indictments by presenting sworn affidavits to a judge who will act as a one-person grand jury and indict with his signature.

If anything, district attorneys will probably charge and prosecute more people because grand juries are expensive and slow, involving multiple people over several months.

We cant shake the grand jury requirement for federal crimes; its enshrined in the Fifth Amendment of the U.S. Constitution. Some states Kentucky is one of them include grand juries in their constitutions so amendments would be in order to extinguish these tribunals completely. Its hard to amend a constitution but not impossible.

But that doesnt mean we shouldnt get as close to that goal as possible now. Our Founding Fathers designed American justice to be fair and open. Grand juries are neither.

Chandra Bozelko writes theblog Prison Diaries. You can follow her on Twitter at @ChandraBozelko and email her at outlawcolumn@gmail.com.

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It's time to get rid of grand juries - Blue Springs Examiner