Welcome back to Legal Geek. This week, we follow up on the news of President Trump's first selection to the Supreme Court with an explanation of how the confirmation process works, and how it could change.
https://archive.org/details/LegalGeekEp95
A couple weeks ago, President Trump announced during prime time television his first selection to be nominated to fill Antonin Scalia's seat on the Supreme Court, which has been vacant since Scalia's death early in 2016. This was one of the truly hot topic items in the past presidential race, considering the Senate opposition and lack of confirmation of Obama's prior nominee to fill the seat, Merrick Garland.
Judge Gorsuch is one of the list of 20 or so potential nominees Trump shared as a presidential candidate, and thus, the nomination remains in line with his initial goals to try and keep his campaign promises to voters. He currently serves on the 10th Circuit Court of Appeals in Denver, and idealogically he would likely fall between the stalwart conservative Justice Thomas and the more recent GOP appointees Chief Justice Roberts and Justice Alito. In other words, fairly close on the spectrum to the Justice he would be replacing.
In view of this similarity to the Justice being replaced and the seemingly pristine resume of judicial experience that Gorsuch brings to the table, it is unclear how hard the Democrats will fight this nomination. Since I didn't cover this in detail for the Garland nomination, let's discuss how confirmation works for the Supreme Court and some items to watch this time.
Confirmation for Supreme Court justices is very similar to the long stream of Cabinet officers and other executive appointees going through the process now for the Trump administration. First, Gorsuch is currently meeting with members of the Senate judiciary committee, who will almost certainly approve the nomination for further consideration. Then, the Senate holds hearings and grills a prospective justice on all matters of judicial philosophy and substantive policy. Then the issue must go to a vote, and a simple majority of 51 senators can cause confirmation.
However, Supreme Court appointments are subject to filibuster, delay by the opposing party. To stop a filibuster, the Senate needs to vote for cloture, which is defined as a forced immediate vote over any filibuster delay tactics. Cloture requires 60 Senate votes out of 100. The republican party holds 52 seats, so getting to the necessary 60 votes to block a filibuster may be quite difficult. The question becomes will a lengthy filibuster occur from the Democrats?
For reference, in the last 70 years we've had 34 nominees to the Court, and 30 of those were confirmed. The average wait time before a vote on a nominee has risen over time, and now sits at about 75 to 100 days for most of those currently serving on the bench.(*) Thus, regardless of opposition or a filibuster, you should expect the Senate's Gorsuch vote to happen no earlier than late April or early May. Of course, the Merrick Garland lack of vote for 293 days last year is a huge recent outlier that could embolden Democrats to try the same tactics here.
If that happens, the Republicans could change the rules on filibusters and cloture for Supreme Court nominees, removing the need for 60 Senators in the so-called "nuclear option." This nuclear option has been floated by both parties since the second Bush administration, and it was partially enacted by the Democrats in 2013 during a series of reforms to filibuster rules in the last decade. To this end, the Democrats changed the rules then to specifically allow cloture and block filibusters with 51 votes only for executive branch nominees and lower court judge nominees. Although Supreme Court nominees were left out at that time, the current events could expand that nuclear option to remove the right to filibuster these nominees as well. In other words, a different party in power, but the same trend against filibusters remains.
The Bottom Line is, regardless of Democratic opposition, the republican majority has the tools necessary to force a vote on Gorsuch, and likely in about 75 to 100 days from his nomination by President Trump. That will allow the next Supreme Court term beginning in October to avoid the awkwardness that has been an evenly split 8 Justice Court over the 2015 and 2016 terms, and that should make this judicial branch of the federal government work well once again.
-----------------------------------
(*) Source of information - SCOTUSBlog (article by Samuel P. Morse of empiricalscotus.com).
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Tuesday, February 14, 2017
Thursday, February 2, 2017
Legal Geek No. 94: The Likely Legal Challenges to Trump's Immigration EO
Welcome back to Legal Geek. This week, we finally break the seal on the new political regime with a look at the most likely legal challenges facing President Trump's recent executive order on immigration, banning entry from certain countries.
https://archive.org/details/LegalGeekEp94
Before diving into the order, a brief sidebar. This segment is not political, and has no plans to become so, even with the current climate of the U.S. You will not find my personal views here, only education to make us all better-equipped to face the conversations and interactions on social media and beyond about these hot topics. That said, let's look at the order called a "Muslim Ban" by some.
Headlined by the Mexico border wall, one of the top campaign focuses for President Trump was immigration, and he has wasted no time using executive orders to try and deliver on some of his policy promises. The first major immigration EO was a suspension of new refugee admissions for 120 days coupled with a ban on travelers from seven muslim-heavy countries for 90 days, including Iraq, Iran, Syria, and Somalia. This is why it's called by detractors the muslim ban. The order came out on a Friday afternoon, leading to a wild weekend of airport detentions, protests, and legal challenges.
The Trump administration defends the order as protective of U.S. borders and helping restrict potential terrorism. However, the four federal judges who reviewed injunction orders challenging enforcement of the order each put some type of hold on the order, finding that there is a substantial likelihood that the challengers to the order will prevail on the merits.
So what are these legal challenges? And will they succeed?
One challenge is that the order violates the 1965 updates to the Immigration and Naturalization Act, which prohibited preferences or discrimination on the basis of race, sex, nationality, or place of residence. Comments made by President Trump and the wording of the order may fall right into this prohibition. It's also possible that the order is too ambiguous to properly enforce, as it has been debated even by the administration whether it applies to green card holders, who are legal residents under immigration law.
Other challenges yet to be made include whether the order complies with the Constitution. Legal experts plan to challenge the order based on failure to provide due process required under the Constitution, and also under the First Amendment as an improper establishment of religion by favoring Christianity over Islam. Those challenges might be longer shots as they rely more on outside circumstances beyond the order itself, but the entire picture provides a negative outlook that this executive order will survive in anywhere near its current form.
The Bottom Line is, the prolific use of executive orders under Presidents Obama and now Trump can lead to troubling results, but thankfully, hastily worded and poorly-vetted orders can also be subject to easy legal attacks. What will be interesting is not whether this EO survives, as it probably won't, but what future orders will be tailored better by the administration. Indeed, the administration is already discussing another sweeping immigration order refusing entry and/or deporting those who would or are dependent on public resources like welfare. The battles will likely continue as long as immigration is a primary focus of the President.
-----------------------------------
https://archive.org/details/LegalGeekEp94
Before diving into the order, a brief sidebar. This segment is not political, and has no plans to become so, even with the current climate of the U.S. You will not find my personal views here, only education to make us all better-equipped to face the conversations and interactions on social media and beyond about these hot topics. That said, let's look at the order called a "Muslim Ban" by some.
Headlined by the Mexico border wall, one of the top campaign focuses for President Trump was immigration, and he has wasted no time using executive orders to try and deliver on some of his policy promises. The first major immigration EO was a suspension of new refugee admissions for 120 days coupled with a ban on travelers from seven muslim-heavy countries for 90 days, including Iraq, Iran, Syria, and Somalia. This is why it's called by detractors the muslim ban. The order came out on a Friday afternoon, leading to a wild weekend of airport detentions, protests, and legal challenges.
The Trump administration defends the order as protective of U.S. borders and helping restrict potential terrorism. However, the four federal judges who reviewed injunction orders challenging enforcement of the order each put some type of hold on the order, finding that there is a substantial likelihood that the challengers to the order will prevail on the merits.
So what are these legal challenges? And will they succeed?
One challenge is that the order violates the 1965 updates to the Immigration and Naturalization Act, which prohibited preferences or discrimination on the basis of race, sex, nationality, or place of residence. Comments made by President Trump and the wording of the order may fall right into this prohibition. It's also possible that the order is too ambiguous to properly enforce, as it has been debated even by the administration whether it applies to green card holders, who are legal residents under immigration law.
Other challenges yet to be made include whether the order complies with the Constitution. Legal experts plan to challenge the order based on failure to provide due process required under the Constitution, and also under the First Amendment as an improper establishment of religion by favoring Christianity over Islam. Those challenges might be longer shots as they rely more on outside circumstances beyond the order itself, but the entire picture provides a negative outlook that this executive order will survive in anywhere near its current form.
The Bottom Line is, the prolific use of executive orders under Presidents Obama and now Trump can lead to troubling results, but thankfully, hastily worded and poorly-vetted orders can also be subject to easy legal attacks. What will be interesting is not whether this EO survives, as it probably won't, but what future orders will be tailored better by the administration. Indeed, the administration is already discussing another sweeping immigration order refusing entry and/or deporting those who would or are dependent on public resources like welfare. The battles will likely continue as long as immigration is a primary focus of the President.
-----------------------------------
Thanks for reading. Please provide feedback and legal-themed questions as segment suggestions to me on Twitter @BuckeyeFitzy
Subscribe to:
Posts (Atom)