Monthly Archives: June 2016

The Republican Dilemma: Can They, and Should They, Dump Trump?

By the popular vote in the primaries, Donald Trump has won the right to be the party’s nominee at the Cleveland convention.  But is there a way that party elites can maneuver to get him thrown over for somebody who represents the traditional party more closely?  And if there’s a way, should they?  Bearing in mind that there was a time not too long ago when the party elites controlled the nominations almost entirely, and a time longer ago when there was no “almost” about it, here are two perspectives.

New Republic article:  No, they shouldn’t try to throw Trump over.

The Week article:  Yes they should.

Note to students taking my summer class:  We’ll be following all the excitement together.  Actually, it’s a kind of excitement I’d rather live without, but since I don’t have that luxury, I am honored to get to share it all with you.

Anthony Kennedy Is Swing Vote Again, in Abortion Case

It should be remembered that, at the time that Anthony Kennedy was nominated by Republican President Ronald Reagan and confirmed by the Senate, the Democrats had retaken the majority in the Senate and had just refused to confirm a more conservative nominee of Reagan’s, Robert Bork.  Kennedy, therefore, was a bipartisan compromise.  To be sure, sometimes he votes with the conservative justices.  Two of the most controversial cases in recent times were 5-4 rulings with Kennedy in the conservative majority: Citizens United where the court struck down most Congressional restrictions on political spending by corporations as a free speech issue, and the Voting Rights case where the Court found that there was no longer a need to single out southern states for special federal scrutiny of their voting laws.

The case that the Court just decided, which we talked about during this past spring semester when the Court first heard arguments, involved a 2013 law passed by Texas creating special requirements for doctors who perform abortions and clinics that provide them, a law passed for the obvious purpose of making abortions as difficult to give and to receive as possible.  The Court struck it down in a 5-3 decision, and as with the Abigail Fisher case (affirmative action at the University of Texas), Scalia’s death did not change the outcome because Anthony Kennedy joined the liberal justices to make a majority.  (Actually, as noted on the Fisher case, if Scalia had been there, it would have been a tie rather than a majority, but the outcome for Ms. Fisher would have been the same.)   As we discussed, everything involving abortion and the Court is rooted in the 1973 ruling Roe v. Wade where the Court ruled state anti-abortion laws unconstitutional, using the doctrine of the “right to privacy” that it had crafted  in earlier cases.

Story from

Note to students in the class that is about to begin:  This comes up in Chapter 4, “Civil Liberties,” the section on Right to Privacy.  We will, of course, have much to update since the publication of the textbook that still awaits its next edition.


The Supreme Court, Obama, and Immigration Policy

When there is a tie vote on the Supreme Court, which we may be seeing a lot of until the Senate confirms somebody to replace Justice Scalia, that means that the lower appeals court ruling stands, and nothing gets added or changed from the fact that the Supreme Court heard the appeal.  So it is with the action against President Obama’s executive orders on immigration, meaning that five million (undocumented/illegal, take your pick) immigrants in this country cannot have work permits and an enhancement of their status in the country by order of the president.  Those receiving the benefits had included “dreamers” (children of undocumented immigrants) and those undocumented immigrants who had children with legal citizenship status in the U.S.  This ruling isn’t, in itself, going to mean deportations, but it will indirectly make it harder for some immigrants to stay.

This case relates to the themes of our course in several ways.

  1. Federalism: It was a suit of 26 state governors against the president.
  2. Separation of Powers/Checks and Balances:  It involved the question of how much latitude the president had in not just carrying out the laws of Congress, but making policies of his own that Congress had not authorized.
  3. Political Parties:  The governors who filed the action were Republicans, and the Republicans in Congress agreed with them.  If the Democrats had control of Congress, Obama might well have been able to get Congress to enact the desired policies, making executive orders unnecessary.
  4. Elections:  This is one of the issues that will affect how Americans vote in November.  Those who want mass deportations and don’t think enough deportations happened under Obama (although loads did during his first term) will be voting for Donald Trump.

Politico Story: 


Abigail Fisher Case Resolved

The Supreme Court has just ruled that the University of Texas did not violate Abigail Fisher’s 14th Amendment rights by having an admissions policy which, without numerical quotas, takes race into account as one of many factors to ensure a diverse student body.

After Justice Antonin Scalia’s death, it was clear that Abigail was not going to win her case.  However, assuming that all of the other justices would have done exactly the same as they did if Scalia had still been with them, she would not have won even with him.  As it happened, Justice Anthony Kennedy voted with the liberals in a 4-3 decision (Elena Kagan recused herself because she was involved in the case at an earlier stage).  If Scalia had been there, it would have been a 4-4 tie, in which event the lower appeals court ruling–which was against Abigail–would have stood.

Just to review what it means:  We are talking, it should be remembered, about admission to competitive state universities.  It’s only an issue at competitive schools, schools where lots of good candidates get turned away, and it’s only a 14th Amendment issue at state schools, because it’s about whether a state is depriving persons of equal protection of the law.  With that in mind, the prevailing case law from several cases over the years is that taking race into account for purposes of a diverse student body is all right as long as there are no quotas, and as long as the system in use can withstand “strict scrutiny” and is designed to serve a “compelling interest.”

Here’s the story on Politico.



“A Mexican!” The Headache Donald Trump Gives His Party

Last fall, the question on the minds of Repubicans was: When Donald Trump inevitably loses out on getting the Republican nomination, will he support  the party’s nominee, or will he spoil it all and run a third-party campaign?

Fast-forward to now. Trump has all the pledged delegates he needs to get the nomination, and most (not all) Republican officeholders and notables have, in the name of party unity, and with varying degrees of pretending to like it, announced their support for Trump as the party’s nominee. It’s only natural, after all: supporting the party’s nominee is simply what’s done. Now of course Trump is, by all reasonable standards, a bit of a special case, but the party regulars seemed confident that they could tame him: that they could coax and coach him to behave like a serious candidate, not run off at the mouth quite so much, et cetera et cetera. And for a little while it seemed to be working: he did, after all, say a couple of weeks ago that his plans for discriminating against Muslims represented “just an idea,” not necessarily what he would do.

Well, the illusion that Trump can be tamed is down the drain with a vengeance, with his blatantly racist remarks about the judge in his Trump U case, Gonzalo Curiel, being biased because he’s “a Mexican.” (Quick review/refresher: Trump is facing a pair of civil class action suits in connection with deceptive and manipulative practices in his failed Trump University venture, set to start trial a few weeks after the election.) Now, one thing to be clear on: his lawyers have not formally petitioned for this judge to recuse himself from the case, and there is a good reason why they haven’t–they know better. They can be subject to disciplinary action for making a frivolous accusation of judicial bias, and they can plainly see that it’s frivolous. So we’re not talking about a formal petition; we’re talking about Trump running off at the mouth about it.

Obviously, saying that a judge is unqualified to sit on a case because of his ancestral heritage is blatantly racist. That’s not even the only problem with it. It also shows a strange sort of illiterate contempt for judicial proceedings which is blatantly unbecoming for a serious candidate for the nation’s highest office.  As if it didn’t already speak for itself, some legal experts have weighed in on what precedents his way of thinking (if you even call it that) could have if carried to their logical conclusions.  (Example: Should all five Supreme Court justices who are Catholic recuse themselves every time there’s a case that in any way connects with Catholicism?)

My point is this: There is simply no way that Republicans like House Speaker Paul Ryan and National Committee Chairman Reince Priebus are failing to suffer extreme embarrassment and alarm right about now. It goes without saying that, if he loses, he will bring some part of the party down with him. But what if he wins? What sort of victory will these Republicans be sharing in?

The Republican Party, where the presidential nominating process is concerned, is a mess.

By the way, so is the Democratic Party.  This is the strangest year in politics I have ever seen in my lifetime, and it shows no sign of getting any less bizarre from here.

NPR story in the legal implications

Politico story on the sorrows of the Republicans

Another Politico story on the Republicans and their dilemma