Erwin Chemerinsky

  • April 2, 2018
    Guest Post

    by Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

    I have many favorite memories of Stephen Reinhardt. Once I was a speaker at a national conference of federal court of appeals judges and was in the audience when Justice Antonin Scalia spoke. Justice Scalia said that his personal beliefs never influenced his decisions and specifically that his Catholic faith had nothing to do with his views on Roe v. Wade. I was sitting next to Judge Reinhardt, who said, not in a whisper, “That’s such bullshit.”  Those sitting in the that part of the room burst into laughter.

    Reinhardt will be most remembered as a fiercely liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But he always was steadfast that his role was to interpret the Constitution and the law to the best of his ability, not to predict what the Supreme Court might do. I once heard him asked about his reversal rate in the Supreme Court and he was dismissive that should matter. He quipped, “They can’t reverse all of them.”   It certainly was not that he did not care about the ultimate outcome. And it certainly was not that he ever would flout the Court. Rather his view was that his job was to call them the way he saw them until the Court said otherwise.

  • January 8, 2018
    Guest Post

    by Erwin Chemerinsky, ACS Board Member, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law

    Presidents and the media long have had contentious relationships, but no president in history has expressed so much antipathy to the press as Donald Trump.  During the presidential campaign, he referred to the press as “dishonest,” “disgusting,” and “scum.”  He mocked the disability of a New York Times reporter, Serge Kovaleski, and repeatedly lashed out at reporters such as Megyn Kelly of Fox News and Katie Tur of NBC.  He threated to sue the New York Times for publishing his income tax return and the women who accused him of sexual harassment.

    As president he has continuing to express this hostility to the media.  The day after his inauguration, on January 21, President Trump, in remarks at the CIA headquarters, said: “I always call them the dishonest media. . .  I have a running war with the media.  They are among the most dishonest human beings on earth.”  Less than a month later, Trump sent a tweet declaring that the nation’s news media “is the enemy of the American people.”  He has declared that “[t]he Fake News Media has never been so wrong or so dirty.”  In another tweet, Trump said, “Network news has become so partisan, distorted and fake that licenses must be challenged and, if appropriate, revoked.”  As a candidate and as president, he has urged changing libel law so that it is easier to sue the press for large amounts of money.

  • May 10, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member; Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    President Trump’s firing of FBI Director James Comey creates an urgent need for a special prosecutor, independent of the White House and the Justice Department, to investigate whether members of the Trump campaign team and administration violated federal law. Comey had been leading the investigation into Russian influence in the presidential election and whether crimes occurred. Comey’s termination, six years before the end of his term, raises the question of whether this was done to squelch this investigation and who will lead a thorough inquiry that will insure that the prosecution of any who violated federal laws.

    There is strong evidence that crimes were committed. Michael Flynn, and perhaps others, appear to have violated federal statutes requiring registration as an agent of a foreign government and disclosures of payments from foreign governments. Moreover, it seems clear that Attorney General Sessions violated federal laws that prohibit lying to Congress.

    Sen. Patrick Leahy, a Democratic member of the Judiciary Committee, asked Sessions in a questionnaire if he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” Sessions’s answer was "no." During the confirmation hearings before the Senate Judiciary Committee, Sen. Al Franken asked Sessions what he would do if he learned of evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of the 2016 campaign.  Sessions replied, “I’m not aware of any of those activities. I have been called a surrogate at a time or two in that campaign, and I did not have communications with the Russians.”

  • May 2, 2017
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law; Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Monday, the Supreme Court gave civil rights plaintiffs an important victory when it ruled that the City of Miami had standing to sue under the Fair Housing Act to challenge discriminatory lending by banks. In Bank of America v. City of Miami, the Court, in a 5-3 decision, held that the city was an “aggrieved person” within the zone of interests protected by the statute. The Court also said the city needs to allege and prove that its injuries were proximately caused by the bank’s discriminatory lending and the Court remanded the case for the federal court of appeals to consider the causation question.     

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race . . . or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions . . . in making available such a transaction, or in the terms or conditions of such a transaction, because of race . . . or national origin.”

    A lawsuit to enforce the Act may be brought by the attorney general or by an “aggrieved person.” The statute broadly defines “[a]ggrieved person” to include any person who— (1) claims to have been injured by a discriminatory housing practice; or (2) believes that such person will be injured by a discriminatory housing practice that is about to occur.”

  • January 23, 2017
    Guest Post

    by Erwin Chemerinsky, ACS Board Member and Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The legal and constitutional problems posed by Donald Trump’s election are not hypothetical and began the moment he was inaugurated as president. Most immediately, Trump is the owner of Trump International Hotel, D.C. on the site of the Old Post Office. His ownership violates both the terms of his lease and the Emoluments Clause of the Constitution. Unfortunately, to this point, he either does not understand or does not care about the serious conflicts of interest posed by his business interests.

    The issues with regard to the D.C. hotel are obviously just the beginning of such problems arising, but they also are typical of the serious legal troubles that Trump faces. In 2012, Trump succeeded in getting the bid to redevelop the Old Post Office and signed a 60-year lease with the General Service Administration. Trump beat out proposals from hotel chains including Hilton, Hyatt and Marriott.

    Unlike many of his holdings which are owned by corporations, Trump himself is the majority owner in this hotel. The Washington Post reports that according to the financial disclosure form he filed with the Federal Election Commission, Trump owns 76.725 percent of the D.C. hotel project. Three of his children, Don Jr., Ivanka and Eric, each have 7.425 percent of the project.

    Trump’s ownership is in clear violation of the lease which contains a provision that says no U.S. official “shall be admitted to any share or part of this Lease or to any benefit that may arise therefrom.”  There is a simple reason for this: it prevents a conflict of interest that would exist if government officials are in a lease agreement with the government. As president, Trump oversees the General Services Administration and Trump, as owner of the building, is leasing property from the GSA.