Judge Gorsuch and Same Sex Bathrooms

While, for the most part, Judge Gorsuch reflects the views of the current conservative legal establishment (which is substantially more conservative today than it was thirty years ago), one of the areas in which he stands out is his view on the scope of regulatory authority.  Current case law is mostly bounded in the reality of current politics.  Some conservatives want courts to disrupt the way things currently operate.

Currently, Congress tends to write broad statutes establishing programs or general rules for some type of activity.  Congress then delegates responsibility for filling in the details to some department or agency.  To use health care as an example, such an approach keeps legislation relatively simple and prevents it from being bogged down in the tiny details (should there be a copay for vaccines, do policies have to cover erectile disfunction or contraceptives).  Additionally, leaving the details for the regulatory agency makes it easier to adjust to changes — as new drugs are discovered, the agency can adjust the list of covered drugs to reflect those new drugs.   The best example of this process of adjustment is in the case of pollution where the Clean Air Act and Clean Water Act both allow the EPA to regulate new pollutants upon determining that the evidence demonstrates that a previously unregulated substance is a pollutant.

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Judge Gorsuch — What should we do?

On Tuesday, the maniac-in-chief nominated Judge Neil Gorsuch to fill the vacancy left by the death of Antonin Scalia.  This nomination creates a significant question for Senate Democrats on how to proceed.

On the merits, at least based on current public knowledge which may change, Judge Gorsuch is a typical member of the Republican conservative establishment:  The son of Reagan’s EPA chief, educated at top schools, a mix of government and private practice before being appointed to the bench by George W.   While it is tough to tell for sure by a decisions on a lower court — where judge’s are bound by Supreme Court precedent and are trying to read between the lines to avoid reversal — Judge Gorsuch seems very similar to Justice Scalia.  It is not really possible to tell if he is on the Alito (more conservative) or Roberts (more moderate) side of Scalia.  In any case, with the exception of some criminal cases, Justice Scalia was rarely the fifth vote in a progressive decision.  As such, barring someone on the loony side, it is unlikely that any Trump nominee is going to substantially alter the balance on the Supreme Court from what it was before Trump died.  (Of course, it would have been preferable to have a Democratic president replacing Justice Scalia, but that is not now a possibility.)  And Trump is likely to nominate a candidate in his/her upper 40s or lower 50s like Judge Gorsuch, so the next opportunity for Democrats to replace any of the four conservative judges will be at least a decade or more in the future barring any unexpected deaths.  Given this reality, the question is how hard to fight this nomination.

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Immigration Kerflufle

We knew the policy was coming.  We should have guessed that Trump would botch it — both in terms of the actual policy and in terms of how it was implemented.  Now, we have a fustercluck of a “temporary” Arab ban policy.  There are potential legal issues involved which I will discuss below.  As a major cautionary note, I don’t do immigration law.  Despite what the U.S. Supreme Court may think, those of us who deal in ordinary criminal law don’t really get the nuances of immigration law nor all of the technical terms involved.

Before turning to the potential legal challenges, what has happened over the past five days is exactly why there are usual procedures for issuing executive orders.  While Trump would probably have still tended toward the outrageous in this policy, some of the problems might have been avoided if things had been handled better.  Instead, we have a policy statement masquerading as a policy.

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It’s Been a Week

Reprinted with permission from http://www.awesomelyluvvie.com/2017/01/guide-disrespecting-donald-trump.html

One week ago, more than FOUR MILLION people worldwide marched in solidarity. If you were at any of the marches, you know how awesome a feeling it was. In the intervening week, we’ve watched the White House try to accomplish things, and seen the huge amount of pushback: from government agencies, from elected lawmakers and from regular citizens.

I’ve seen two overwhelming contrasts: first, the Trump group knows absolutely nothing about the actual business of governing nor foreign policy, and second, that the power of the people is absolute. The administration tried to shut down communication between agencies, and their ability to communicate with the people: they created alt-twitter accounts. The administration tried to convince people that Mexico would pay for the wall: Mexico said no. They said “okay, we’ll add a 20% tariff” and suddenly everyone understood those dollars would not come from Mexico, but rather from people in America trying to buy things like fruit, vegetables and cars…it would just be a VAT.  Suddenly it’s being walked back.

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But Don’t Call Them Czars

Eight years ago, when President Obama took office, Faux News and others spent a good chunk of their time complaining about President Obama’s use of “czars.”  By czar, they meant members of the White House staff who did not have to face Senate confirmation who were assigned responsibility for certain policy areas.  Now that Republicans are back in the White House, they are about to learn the same lesson that the George W. Bush and the Obama Administrations knew — that the White House staff serves an important role in a functioning government.  But, you can be pretty sure that these positions will not be referred to as czars by Fox News.

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Sean Spicer and Freedom of the Press

Last night, Sean Spicer made remarks as the Press Secretary. They were published to the Press Pool and you can read the release at the bottom of this post. Of note, Sean mentioned the brou-ha-ha about the MLK bust. An error was made by the pool press and was quickly corrected. Of larger import, Sean talked about the size of the crowds at the inaugural.

While many people are talking about the fact that it was an indefensible, factual lie, there is something more important here. That is, Sean wasn’t doing his job: he was instead pandering to his boss. The job of the Press Secretary is to report on factual things that are going on, so that the press is able to disseminate that information correctly to the American public. It is one of the most fundamental premises of the US Constitution: a free press. And the press can only be free if the government allows it to report, and the press CANNOT report on the Executive Branch if it plays a shell game with the truth. You end up with “Pravda” – the “news” source of the USSR. “Pravda” by the way, translates to “truth”, which should give you an idea of what they wanted to disseminate. In the USSR Pravda was owned and operated by the Kremlin. And there is an old Russian joke: “There’s no difference between freedom of the press in America and freedom of the press here. You can say whatever you want. The only difference is that the next day an American wakes up at home, and the Russian wakes up in the Gulag.” Already, members of the press have been dropped from the press list. We must stand up for a free press and the ability of the members of the press to have access to what actually happens, and to disseminate.

Here at DCW, we’ve taken that seriously since we began back in 2005. We source check, and the few times we’ve gotten things wrong, we’ve immediately corrected. Even though we are small, we fulfill an important role and hope you’ll support us. Want to? Please like us on Facebook, because the more likes we have, the better our reach. Also follow us on Twitter –> the blog itself link here, Oreo link here, and my link here.  As an aside, people are always telling me there are no photos of me, if you click on my Twitter feed, you’ll see me hugging my favourite Founding Father.

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Day 1 of Hell

Two executive orders were issued tonight. The first basically prohibits all government agencies from implementing any rules. They can send nothing to CFR. Remember, while Congress passes laws, it’s the agencies that implement them, and they do so via regs sent to CFR for public review and comment and then implementation. Full memo after the jump.

The second order basically allows Ben Carson to do anything possible to prevent the ACA from functioning. Again, full text after the jump. Welcome to North Korea — they are dismantling the Federal government, just like they said they would. And in answer to the question: why are you publishing this? I say: so that there is a record.

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Welcome to the Resistance

Last night I attended the Resistance Forum put on by PA State Senator Daylin Leach. I don’t know exactly how many people attended, but from my vantage point, it looked like well over 500, with the auditorium filled to capacity, SRO. If you’re not from around here, you may not be familiar with Senator Leach. You can read about him here. Here’s what you need to know: Daylin is a progressive, he’s dedicated to his constituents, and he is a truly decent human being. (In the interest of full disclosure, I served on the board of a charitable organization with him.) Anyway, after the jump, the Cliff Notes version of what was discussed. Please feel free to share this post, and contact me if you need a PDF of the information.

The most important takeaway from the evening, for me, was the background of WHY we resist. Yes, there were tactics discussed, but the why truly matters. What Daylin said was that it was less about individual issues (although they matter) and much more about saving democracy (small “d”) because over time, democracies have fallen, and it could happen here, too.  He gave some great markers that should be warnings for us all: the people being chosen to lead us may dismantle the governmental institutions that we rely upon; the suppression of voting rights, a free press, and by extension, free speech. These are things we must stand in opposition to, and things we must be aware of, even if we cannot do anything immediately and directly to stop them.

The Senator pointed out a history of citizen action, of resistance that has worked. He started with the Boston Tea Party, and ended with what the Tea Party began in 2009. None of these actions worked immediately, but all were eventually successful, and honestly folks, we can be, too.

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List of Inauguration Marches and Protests #RESIST

We’re not going to follow the inauguration like we have the past two years. Why celebrate the end of our Nation as we know it?

Instead we will give you info on marches and protests that will take place. Please let us know if you would like us to add an event by emailing us.

January 20, 2016

All Day – DisruptJ20 – Washington, DC

7:00AM – #InaugurateTheResistance – Washington DC

10:00AM – Bridge Together Golden Gate

10:00AM – Unpresidented Inauguration Show with   and

11:00AM – United Against Hate – Los Angeles

Noon – Inauguration Protest at Trump Tower Chicago

12:30PM – Love-A-Thon on Facebook Live

3:30PM – Rise Up & Resist Facism – Portland, OR

Various – Resist Trump – Occupy Inauguration

January 21, 2016

10:00AM – Women’s March on Washington – As of now, there are 281 worldwide marches scheduled. You can find them all here.



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President Obama presents Vice President Biden with the Medal of Freedom

As we enter the final days of the Obama Administration, this is a perfect bookend to show how truly great both of these men are.

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