Donald Trump

  • February 15, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

    There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

    The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

  • February 15, 2017
    Guest Post

    *This piece originally appeared in Newsweek.

    by Ben Clements, Attorney, Clements and Pineault LLP and Chair of the Board, Free Speech for People and Ron Fein, Legal Director, Free Speech for People

    Patriotic Americans disagree on many things. But one thing almost all of us can agree on is that we are nation of laws and that no man or woman is above the law.

    And in our system of government, the supreme law that stands above all else is our founding charter, the Constitution of the United States.

    No president in our history has openly taken the position that he stands above and need not comply with the requirements of our law, especially the supreme law enshrined in our Constitution.

    Until now.

    Since the moment he took the Oath of Office and swore to uphold our Constitution, President Trump has been in direct and willful violation of these clauses.

    The Foreign Emoluments Clause states that “no person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign State.”

  • February 14, 2017
    Guest Post

    by Zach Piaker

    Last week, Ari Melber, Chief Legal Correspondent at MSNBC, spoke to Columbia Law students at an event co-hosted by ACS about the unique challenges facing journalists covering the Trump administration. The current occupant of the Oval Office is reported to be a voracious consumer of cable news, which means television journalists can often speak directly to the leader of the free world—a role many are still adjusting to. Melber relayed to us his experience on the morning of Jan. 18th, when, in a Today Show segment, he fact-checked the then-president-elect’s claims of credit for domestic investments announced by General Motors and Carrier Corp., and concluded that those hiring decision had been made months, or even years, earlier.

    By 7:44 a.m., @realDonaldTrump had taken note and tweeted: “Totally biased @NBCNews went out of its way to say that the big announcement from Ford, G.M., Lockheed & others that jobs are coming back... to the U.S., but had nothing to do with TRUMP, is more FAKE NEWS. Ask top CEO's of those companies for real facts. Came back because of me!”

    Melber recalled feeling both empowered and disoriented watching the president-elect react in real time to his reporting, though he noted that it was important that journalists avoid becoming part of the story or allow it to affect their work. Presidents have often had a combative relationship with the press, but the nascent Trump administration has already demonstrated an extraordinarily loose relationship with the truth as well as an inclination to attack reporters for doing their job, deriding all unfavorable coverage as “fake news.” (For the record, other outlets corroborated Melber’s findings. Trump went on to mock the Today Show’s ratings, which of course prompted its own round of fact-checking.)

  • February 8, 2017
    Guest Post

    by April Carson. Carson is an attorney who guides nonprofits and foundations in their charitable endeavors.

    President Trump’s leaked Executive Order and the bills introduced last week in the House and Senate, represent dreadful public policy for the tax exempt community.  More importantly, this weakening of the Johnson Amendment creates a losing “risk versus reward” analysis for religious organizations.   

    Congress has consistently, and in a bipartisan fashion, supported the idea that the United States Treasury should be neutral in political affairs and therefore taxpayer subsidized 501(c)(3) organizations should not engage in partisan political activity. In 1954, under a Republican President and a Republican controlled House and Senate, then-Democratic Sen. Lyndon B. Johnson  introduced the now famous amendment to limit section 501(c)(3) organizations, which included charities and houses of worship, from supporting candidates for public office. In 1987, in another show of bipartisan support for the idea that charities and churches should not be involved in political activity, Congress added the opposition of candidates for public office to the already standing political restriction.  Since the 107th Congress, various legislative initiatives to repeal or weaken the Johnson Amendment have been attempted, but none have gained bipartisan traction. (CRS Report RL32973 and RL34447).

    The prohibition against partisan political activity is on firm legal ground. In Christian Echoes v. United States, the 10th Circuit explained that the requirements of 501 (c)(3) did not infringe upon a church's First Amendment rights to free speech or free exercise of religion, because "tax exemption is a privilege, a matter of grace rather than right," and that "withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech," because the church "may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative . . . refrain from such activities and obtain the privilege of exemption." The D.C. Circuit similarly found that the 501 (c)(3) requirements did not run afoul of the First Amendment in Branch Ministries v. Rossotti

  • February 7, 2017
    Guest Post

    by Marc D. Stern, General Counsel, AJC Global Jewish Advocacy

    It is not clear whether President Trump is proposing the wholesale repeal of the Johnson Amendment restricting the partisan activities of tax exempt not-for profits, or only as it applies to religious organizations. If the former, the proposal presents only questions of policy, there being no constitutional ban on religious voices speaking on political matters. If the latter, it is a flat out unconstitutional “naked preference” for religious speech.

    Tax exempt status (so-called 501(c)(3) status for the relevant section of the Internal Revenue Code) confers two benefits on not-for-profits. The lesser benefit: they do not pay taxes on their income; the more substantial—that donors get to deduct all (or part) of their contributions from their gross income.

    The Johnson Amendment conditions 501(c)(3) status on a beneficiary organization refraining from endorsing or opposing candidates for elective office. The ban is absolute (unlike the ban on legislative activity). The Amendment was the brainchild of then Sen. Lyndon Johnson, and served no high-minded purpose beyond shutting down right-wing organizational opposition to Sen. Johnson.

    For the most part, these restrictions are, and long have been, self-enforced by exempt organizations. Although there are borderline questions, for the most part the rules are clear and well understood. The IRS does not have the resources to enforce these restrictions, especially since enforcement would not produce revenue. Worse, enforcement inevitably would lead to changes of IRS partisanship.