Ethics Observations On Three Recent Judicial Decisions

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I.

An appeals panel throws out the emoluments lawsuit filed by D.C., Maryland.

A three-judge panel of the US Court of Appeals for the 4th Circuit  held that the District of Columbia and Maryland lack standing to sue President Donald Trump over claims related to his hotel in Washington, D.C. The court  ordered a lower court to throw out the lawsuit with prejudice, meaning the lawsuit alleging violations of the Constitution’s emoluments clause could not be refiled.

Good.

The Emoluments Clause nonsense has been one of the more contrived “resistance” theories and this lawsuit was part of the organized plan of harassment against the President. Two Democratic jurisdictions filed this purely political suit as their contribution to the “resistance.”

“Even if government officials were patronizing the hotel to curry the President’s favor, there is no reason to conclude that they would cease doing so were the president enjoined from receiving income from the hotel,” the 36-page opinion said. “The hotel would still be publicly associated with the president, would still bear his name and would still financially benefit members of his family….Neither [emoluments] clause expressly confers any rights on any person, nor does either clause specify any remedy for a violation.”

The unique conflicts of interest issues presented when a multinational business owner becomes President was never imagined by the Founders, and once Trump was elected it was too late to deal with the problem equitably. The Democrats and the news media, not to mention Trump’s Republican rivals for the nomination and the legal establishment—and commentators like me, all neglected their duty to raise the issue in a timely fashion, mostly because they never thought Trump would win. They are all at fault for their own mistake. At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.

II

Appeals Court: The President may not block other users on Twitter, because doing so  is unconstitutional.

The federal appeals court ruling held that President Donald Trump’s blocking of critics from his Twitter feed is a  First Amendment violation  because the President  tweets to conduct official business and as part of his “bully pulpit.” Professor Eugene Volokh agrees, and that’s good enough for me: the Constitutional Law expert writes at Reason.

[O]ne can argue that @RealDonaldTrump is run by President Trump in his personal capacity, not his official capacity; but once the court rejected that view, then it doesn’t matter that @RealDonaldTrump is a forum set up on a private company’s computers. Though Twitter, as a private actor, isn’t bound by the First Amendment, a government official, acting in his official capacity, is bound by it.

This controversy is the kind of thing the Trump Deranged on public media ignorantly cite as an example of the President “violating the Constitution.” Of course, the critics had no idea whether his blocking a Twitter troll was a violation or not, and neither did he, until a court ruled on the matter. All Presidents test the Constitution, and there is nothing illegal, unethical or impeachable about doing so. If SCOTUS found that the individual mandate in the Affordable Care Act was unconstitutional, that would not mean that Obama had committed an impeachable act by signing it.

That said, the President’s use of Twitter has been a net loss for him and his Presidency, not least of all because he has the literary skill of the mean girls in “Mean Girls” and proof-reading skills even worse than mine. Doris Kearns, in “The Bully Pulpit,” her book about the relationship between Teddy Roosevelt and his friend-turned-foe William Howard Taft, speaks of how deft the former was in wielding the President’s “bully pulpit into a major tool of leadership, where Taft was not. At this point, President Trump has no “bully pulpit.” When the President shoots off his mouth indiscriminately, metaphorically via Twitter or in random statements to the 24-hour news media, his statements inevitably become easily ignored background noise.

In the wake of the Twitter ruling,  a former New York state lawmaker and a congressional candidate have filed lawsuits because Rep. Alexandria Ocasio-Cortez blocked them on her personal Twitter account. I see no way her social media selectivity will not be similarly held to be a First Amendment violation.

She will then accuse the courts of being prejudiced against “people of color.” Bet on it.

III

An Obama-appointed judge refuses to let the US change its legal team in the census case

US District Judge Jesse Furman rejected a Justice Department request to replace the legal team working on a lawsuit concerning the government’s effort to add a question about citizenship to the 2020 census. The government provided “no reasons, let alone ‘satisfactory reasons,’ for the substitution of counsel,” he wrote.

President Trump’s tweet asking if this is unprecedented is a good one. Local rules for federal courts in New York City require that any attorney requesting to leave a case provide satisfactory reasons for withdrawing, but this also the client, the U.S. Government, asking for new representation. Usually the client’s desires regarding a change in representation are given priority by the Court. Throughout the Trump Presidency, judges have been guided by their partisan loyalties to justify manufacturing  reasons to obstruct the President’s efforts. This ruling seems like  a particularly egregious example of the phenomenon.

The Census question at issue, “Are you a Citizen of the United States?” is self-evidently valid; the administration shouldn’t have to defend wanting to add it at all. Of course the government should know how many of its adult residents are citizens and how many are not. Those opposing the question on any basis reveal their true unethical objective of enabling law-breakers and undermining national security.

25 thoughts on “Ethics Observations On Three Recent Judicial Decisions

  1. I. Yes, good. Eventually, this madness about the Emoluments clause will be disposed of as the prohibition on taking gratuities from foreign governments that it is. In no way can paying a fair price for normal and necessary services that benefit an officeholder’s business be seen as an “emolument.”

    II. There may be unintended consequences for Twitter. If the President can’t block people because of the First Amendment, can Twitter do so? Say, for example, that Twitter allows people to say whatever they want to Trump while he’s president, but enforces its Terms of Service rigorously in the case of Alexandria Ocasio-Cortez?

    That might require declaring Twitter a limited public forum, and any tweets supposedly directed at a politician might garner First Amendment protection.

    III. This is exactly what we’ve come to expect from judges on the Left, and why Leftist hand wringing about a political Supreme Court is such risible theater.

    • 2) While not 100% perfect, my first go-to before deeper analysis on 1st Amendment topics is to analogize everything to the public square or to the private venue.

      What the Supreme Court has told Trump, the politician, is that if he’s at a local (but privately owned) theater speaking as the President, and the theater owner has made this particular occasion an open-admission, free of charge, the President cannot deny entry to people he doesn’t want listening.

      The theater owner COULD, however. The theater owner could also charge admission. But I don’t think the SCOTUS ruling affects the “theater” owner in any regard positively or negatively.

      • Yes, but the problem becomes, what if the theater owner decided who gets to speak at the event and who does not?

        That would be the parallel I’m trying to describe. Twitter could become the arbiter of who’s political speech gets seen, and in what context, with respect to tweets at politicians.

        In other words, Twitter could step in to block tweeters at politicians they favor on behalf of said politician, while refusing to enforce that same level of censorship for politicians it disfavors.

    • You point on 3 is spot on: the left has used courts to get around the ballot box, legislature, and executive branch my entire life. They only cry foul when it is used against them.

      The only way they will learn not to do such things is when they suffer from it being done to them.

  2. “Those opposing the question on any basis reveal their true unethical objective of enabling law-breakers and undermining national security.”

    Not entirely true. The purpose of the census is to establish the number of residents for apportionment in the house.

    All we truly need is a head count. I HATE that we have the long-form census that intrudes into all sorts of other constitutionally irrelevant matters that you are required to answer under threat. Of course, many justify these questions because they are used to implement all kinds of additional government programs -cough- hand-outs! In my opinion, doling out goodies to the states is not a constitutionally sanctioned purpose for the census.

    I do not like that the Constitution specifies that the census is for identifying residents instead of citizens, but that is apparently the measure (I have not bothered to look that up, actually). So, that is what the question should be.

    -Jut

    • But obviously, Jut, the Census serves other purposes as well, and there’s nothing wrong with that, or adding questions that help the government understand the nation it governs.

      • Did the Founders contemplate a federal government that would dole out all sorts of free stuff to anyone and everyone?

      • Jack,
        It does, but it should not. That is how mission creep works. “It was not designed for this, but look how much good comes of it.” After a while, what was improper is presumptively okay.

        My favorite example is Ike. He was actually worried that the Interstate Highway System was unconstitutional; those were the days, when politicians were concerned about overstepping their authority. He justified it on the basis of national defense. It was a stretch (I would have argued commerce clause), but having conquered Europe I can see his wisdom in turning the United States into a huge web of possible aircraft runways.

        And, unconstitutional or not, I LIKE the freeway system.

        And, that is how we get universal health care, free college, corporate bailouts, and open borders.

        -Jut

  3. US Constitution Art 1, sec 2
    14th Amendment sec 2 changes from Free person to a more restricted definition, including voting rights being one…
    19th Amendment added women to voting
    figured to make it easier for folks to read the words…
    age changed somewhere, didn’t see it in my 5 minutes with duckduckgo…

  4. The Emoluments Clause
    A number of founders were what would have been considered large business owners in their day. Besides many owning plantations, they engaged in other commercial ventures, such as Washington’s distillery. If you need evidence of original intent to debunk the recent attempt to corrupt its meaning, that should do it.

      • Still, they would have been the analog for their times, and serve as evidence that they didn’t consider being a successful businessman with varied enterprises as violating the emoluments restriction.

        I’m leery of the “They could never have imagined…” argument. It’s too often used by the left when attempting to chip away at the exercise of rights that they don’t favor….”They could never have imagined the internet, so we need to police speech on it.” “They could never have imagined a modern firearm, so we need to ban it.”

        • You should be leery of it. In the case of the Emoluments Clause, however, you can’t avoid it when dishonest critics are torturing a provision of the Constitution to mean something that nobody intended it to mean.

          I’d also say that “They could never have imagined…” is more often a conservative argument against expansion of rights than a liberal argument for constricting them….in the case of same-sex marriage, for example.

  5. Is blocking a Twitter troll really much different than having a disruptive audience member escorted out of the venue during a politician’s speech? If blocking someone on Twitter violates the First Amendment, how is the “real world” example not an equal violation?

    • The whole problem with technology ethics is finding a valid non-tech analogy. That would be a valid one. and I’m sure it was considered. Rightly or wrongly, the Court rejected it.

    • A twitter troll does not prevent a speaker from speaking or a listener from listening. People can’t talk over each other on Twitter as effectively as an air horn can in real life. Using a video-game analogy, Twitter is turn-based; real life is real time

      -Jut

      • True, but enough trolls (or just a few very dedicated ones) can pollute a person’s Twitter/Facebook/whatever feed enough to make it virtually unreadable. There’s only so much dross people are willing to wade through before they’ll give up and go elsewhere. It’s not an exact analogy, but I think it’s close. It’s sort of somewhere between a disruptive audience member and vandalism, I think.

  6. “At some point, however, the issue has to be examined fairly and non-politically, with rules emerging that do not make the Presidency unachievable by anyone who is not a professional politician.”

    Oh, I’m pretty damn sure that, when it’s all said and done, any rules that emerge would purposefully make the Presidency unachievable unless you are a professional politician.

    –Dwayne

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