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Category: Constitutional Issues

Can President Trump Withhold Funds When States Expand Vote-by-Mail?

Can President Trump Withhold Funds When States Expand Vote-by-Mail?

In now-deleted tweets by President Trump, Trump claimed that Michigan sent “absentee ballots to 7.7 million people ahead of Primaries and the General Election.” He alleged that the move was done “illegally and without authorization by a rogue Secretary of State” and continued onward to say “I will ask to hold up funding to Michigan if they want to go down this Voter Fraud path!” Of course, the Secretary of State of Michigan had done nothing of the sort; instead,…

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COVID-19 and the Shadow Docket: The Supreme Court and the Pandemic

COVID-19 and the Shadow Docket: The Supreme Court and the Pandemic

The Supreme Court has two dockets. The first—and far more public—docket comprises the roughly eighty cases each Term that undergo extensive briefing and oral arguments before the Court. These cases can take months, or even more than a year, from the filing of a cert petition to issuance of an opinion by the Court. The second, often referred to as the “shadow docket,” includes a number of requests for emergency equitable relief. For cases on the shadow docket, the Court…

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Do Prisoners Have a Right to Soap?

Do Prisoners Have a Right to Soap?

In the ongoing litigation regarding prison conditions during the COVID-19 pandemic, one request of the litigants stands out: they want more soap. And sometimes—especially at the district court level—prisoners have been able to get that soap. In a Texas case, Valentine v. Collier, the district court ordered the prison to “[p]rovide [p]laintiffs and the class members with unrestricted access to hand soap and disposable hand towels to facilitate handwashing.” Similarly, in Swain v. Junior, a Florida district court required that…

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Trump Weaponizes COVID-19 Against Illegal Immigrants

Trump Weaponizes COVID-19 Against Illegal Immigrants

As a criminal defense attorney in the border city of El Paso, Texas, I meet with illegal immigrants weekly, if not daily. I witness their journey firsthand. I represented families when President Trump piloted his family separation policy in El Paso. Today, I am witnessing yet another Trump assault against brown immigrants. Trump is weaponizing COVID-19. President Trump’s anti-immigration resume is extensive. It boasts, among other things, his threat to shut down the government if it doesn’t fund his “big,…

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Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

Remember the Past: What Can a Governor Do When the Second COVID-19 Surge Comes?

Back on January 1st we thought that 2020 would bring clarity of vision and foresight. Since then the world has turned upside down; however, long-standing legal precedent of what states can do in times of epidemics and pandemics has not. Many are claiming that it is unlawful for any governmental entity or official, in an effort to reduce COVID-19 infections and deaths, to impose restrictions upon travel, either across state borders or in large crowds within a state. I disagree….

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Korematsu, COVID-19, and The Question of Executive Deference

Korematsu, COVID-19, and The Question of Executive Deference

“Wrong the day it was decided” is a judgment that the Supreme Court reserves for overturning its most egregious prior decisions. One of the cases that most recently received that declaration is Korematsu v. United States, a decision that infamously sanctioned the World War II internment of individuals of Japanese ancestry. The Court’s repudiation of that decision, equal parts laudable and belated, offers hope that the logic of this decision is a relic of the past, but such hope may…

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COVID Lays Bare the Need for Attending to Second Amendment Theory

COVID Lays Bare the Need for Attending to Second Amendment Theory

As angry protesters, some clad in tactical gear and armed with semi-automatic rifles, storm state capitols to decry COVID-related orders, it’s worth asking why the Second Amendment resides in our Bill of Rights. In District of Columbia v. Heller, the Court held that it was there because the founding fathers wanted to protect the existence of citizen militias. But the reason for codifying the right, said the five-Justice majority, did not confine its substantive scope—of law-abiding citizens “to keep and…

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The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

The Dormant Commerce Clause and COVID-19 State-Ordered Business Closures

Parties have begun filing lawsuits seeking to “reopen” their states. These lawsuits challenge business closures and stay-at-home orders mandated by state and local governments. The Supreme Court has acknowledged, in the due process context, “the authority of a State to enact quarantine laws and ‘health laws of every description.’” Beyond due process, however, at least one of these lawsuits has raised dormant commerce clause issues, contending that, by ordering businesses to close, the state is unconstitutionally interfering with Congress’ Article…

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Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

Life Hangs in the Balance: Weighing Coronavirus Church Closings Against the RFRA

On March 27, the Hillsborough County Emergency Policy Group unanimously issued an order restricting the gatherings of non-essential businesses and services. The Rev. Rodney Howard-Browne responded that he would only cancel church services for the Rapture and that pastors who canceled services were “pansies.” After holding church services on March 29, county authorities arrested Howard-Browne for unlawful assembly and violating the public health emergency order. While the Religious Freedom Restoration Act (RFRA) of 1993 applies only to the federal government,…

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Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

Korematsu in the Age of COVID – A Note on The Constitution in Times of Crisis

The case of Korematsu v. United States lives in constitutional infamy as the case which upheld the military policy of Japanese internment during WWII. In doing so, the Court—led by former KKK member Justice Black—did not deny that Japanese internment constituted a deprivation of constitutional rights. Instead, they found that the deprivation was justified due to the fact that the United States was at war. Because of this justification, Korematsu is one of several cases which stands for the proposition…

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