Perspective Why Trump can’t build his wall (Hint: it’s the pesky Constitution)
The following editorial was written by Erwin Chemerinsky, dean of the UC Berkeley School of Law.
As 800,000 federal employees enter another week without paychecks, any way to end the country’s budget impasse has appeal. But the solution is not the one President Donald Trump has been floating in recent days: that he will simply invoke emergency powers and build a wall between the United States and Mexico without congressional approval. Doing so would constitute an unconstitutional and dangerous expansion of presidential power.
Thankfully, the United States Constitution does not give the president emergency powers, and it has no clause that allows the president to suspend the Constitution when he perceives an emergency. Quite the contrary, the Constitution was deliberately written to keep government officials from claiming dictatorial powers in the name of national security or emergency management. The Constitution is clear that Congress controls the power of the purse and must approve the spending of all federal money. No exception to this is mentioned in the Constitution or has ever been recognized by the courts.
Trump is not the first president to try to claim emergency powers. During the Korean War, President Harry Truman ordered the seizure of steel mills when a labor dispute threatened to close them. Truman argued that national security and the war effort depended on continued steel production. But In Youngstown Sheet & Tube Co. vs. Sawyer, in 1952, the Supreme Court ruled against Truman, concluding the president had no authority under the Constitution or federal laws to do this even in a wartime emergency.
In a separate opinion, Justice William O. Douglas explained that seizing the steel mills would require that Congress appropriate funds to pay for the taking of private property, and the president cannot take over the spending power, which belongs to Congress, in this way. Both Justice Robert Jackson and Justice Felix Frankfurter, in their separate opinions, stressed that Congress had considered giving the president this power but did not do so.
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#ChangeLawyers This lawyer is finally giving Palestinians a voice in Congress
On Thursday, newly elected Congresswoman Rashida Tlaib of Michigan wore a Palestinian thobe—a traditional embroidered gown—to her swearing-in ceremony, and Palestinian-Americans like me rejoiced. The moment felt, and was, historic and jubilant. It even sparked a #TweetYourThobe campaign on social media, where Palestinian women posted photos of their own thobes.
For decades, Palestinian-Americans have been demonized and targeted simply for who they are. Our heritage was a liability in public office—not something to celebrate. Policy is made about us without us, furthering our invisibility in American society. It’s surreal that one of our own is now a sitting member of Congress, sworn in wearing a thobe and unapologetically speaking up for Palestinian rights and equality.
Rashida Tlaib is not only the first Palestinian woman to be elected to Congress, but also the first Palestinian Progressive Democrat to hold office and openly and consistently challenge the political status quo on Israel-Palestine. Now, many Palestinians feel like we finally have the opportunity to be truly represented in Washington.
Tlaib’s bold moves could have backfired, but she is no career politician. She didn’t run to win; she ran to shake up Congress and build a more just and livable future for us all. Tlaib wants clean water for her home state, believes health care is a human right, supports a living wage, and wants to see a better world from the United States to Palestine. Palestinian rights are simply, and naturally, part of a larger progressive agenda, where all people are treated equally and have a shot at a decent life, regardless of their race, religion, gender, or the amount of money they have.
This political moment didn’t appear out of thin air. Palestinians have demanded freedom and equality for nearly a century now and faced repression, political intimidation, and violence in the United States as a result. While we celebrated Tlaib’s win, Palestinians are acutely aware of the obstacles that we continue to face. The election win alone will not prevent our harmful policies, but it does indicate things are changing.
Read the story on the Nation >
More of This 1.4 million ex-felons in Florida just had their voting rights restored
One of the largest enfranchisements of U.S. citizens in the past century begins Tuesday in Florida, and many of the more than 1.4 million ex-felons set to regain their voting rights here are treating the moment as a celebration.
In Tampa, one group is renting buses to register en masse at the county elections office. Others will be live-streaming on Facebook as they march in. Demetrius Jifunza, convicted as a teen of armed robbery, is now a father and pastor who wants to make his daughters proud.
“It’ll be a joyous day,” Jifunza said of the trip to the Sarasota County Supervisor of Elections office, a journey made possible when voters in November overturned Florida’s 1868 ban blocking residents with felony convictions from automatically having their voting rights restored once they served their sentences.
In the run-up to Tuesday, the organizations and volunteers who worked for the past decade to pass the amendment to the state constitution have been ramping up their efforts to encourage ex-felons to quickly follow through. There’s a toll-free number, 877-MY-VOTE-0, and a website with tips.
“We’re kicking this into a higher gear now,” said Neil Volz, political director of the bipartisan Florida Rights Restoration Coalition. Pro-bono attorneys will be on call in case problems crop up in the coming weeks.
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Even More of This She killed a man who bought her for sex. 15 years later, she’s been granted clemency.
Cyntoia Denise Brown, a woman serving a life sentence for killing a man who bought her for sex when she was 16 years old, has been granted clemency, the Tennessee governor's office said Monday.
Brown, 30, will be released to parole supervision on August 7 after serving 15 years in prison, Republican Gov. Bill Haslam's office said in a statement.
"This decision comes after careful consideration of what is a tragic and complex case," Haslam said.
"Cyntoia Brown committed, by her own admission, a horrific crime at the age of 16. Yet, imposing a life sentence on a juvenile that would require her to serve at least 51 years before even being eligible for parole consideration is too harsh, especially in light of the extraordinary steps Ms. Brown has taken to rebuild her life. Transformation should be accompanied by hope."
Brown's case drew the attention of several high-profile advocates including a US congressman, several Tennessee lawmakers and a number of A-List celebrities. Comedian Amy Schumer, reality star Kim Kardashian West and actress Ashley Judd were among those who called for Brown's clemency.
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Less of This When police become the prosecutors
The following editorial was written by Alexandra Natapoff, a visiting law professor at Harvard Law School and a law professor at the University of California, Irvine School of Law. She is the author of the forthcoming book “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.”
American voters have realized that prosecutors hold the keys to a fairer criminal justice system. In November’s elections, they replaced numerous incumbents with reformers who promised to reduce mass incarceration, its exorbitant costs and its racial disparities. Prosecutors are central to solving these problems because they control two of the most important decisions in the criminal process: who will be charged with a crime and what that criminal charge will be.
But in practice they do not decide alone. In the enormous world of misdemeanor processing, the police quietly wield a lot of prosecutorial authority. So for voters seeking change, switching prosecutors is only a partial solution.
In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.
Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.
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Less of This Too How cities make money by fining poor people
On a muggy afternoon in October 2017, Jamie Tillman walked into the public library in Corinth, Miss., and slumped down at one of the computers on the ground floor. In recent years, Tillman, who is slight and freckled, with reddish blond hair that she often wears piled atop her head, had been drifting from her hometown, Nashville — first to southern Tennessee, to be with a boyfriend and their infant son, and then, after she and the boyfriend split, across the state border to Corinth to look for work.The town, to Tillman, represented a chance for a turnaround. If she was able to get a part-time job at a big-box store, she could put a deposit on a rental apartment and see a psychiatrist for what she suspected was bipolar disorder. She could take steps toward regaining custody of her son from her boyfriend’s mother. “I needed to support myself,” she told me recently. But potential employers weren’t calling her back, and Tillman was exhausted. In the hushed calm of the library, she closed her eyes and fell asleep.
When she awoke, a pair of uniformed police officers were standing over her. “I was terrified,” she recalled. “I couldn’t figure out what was happening.” (Library patrons had complained about her behavior.) Ignoring Tillman’s protests that she wasn’t drunk — she was just scared and tired, she remembers saying — the officers handcuffed her wrists behind her back and took her to the jail in Corinth to await a hearing on a misdemeanor charge of public intoxication. Five days later, clad in an orange jumpsuit, her wrists again cuffed, Tillman found herself sitting in the gallery of the local courthouse, staring up at the municipal judge, John C. Ross.
Tillman did her best to stay calm. She had been arrested on misdemeanor charges before — most recently for drug possession — and in her experience, the court either provided defendants with a public defender or gave them the option to apply for a cash bond and return later for a second hearing. “But there was no lawyer in this courtroom,” Tillman says. “There was no one to help me.” Instead, one after another, the defendants were summoned to the bench to enter their pleas and exchange a few terse words with Ross, a white-haired, pink-cheeked Corinth native who dismissed most of them with the same four words: “Good luck to you.” Many of the defendants were being led back out the way they came, in the direction of the jail.
Around 11 a.m., the judge read Tillman’s name. She stood. “Ms. Tillman, you’re here on a public drunk charge,” Ross said. “Do you admit that charge or deny it?"
Tillman told me that she thought she had no choice but to plead guilty — it was unlikely, she believed, that the judge would take her word over that of the arresting officers. “I admit, your honor,” she said. “I just want to get me out of here as soon as possible.” Under Mississippi state law, public intoxication is punishable by a $100 fine or up to 30 days in jail. Ross opted for the maximum fine. Tillman began to cry.
The Federal Reserve Board has estimated that 40 percent of Americans don’t have enough money in their bank accounts to cover an emergency expense of $400. Tillman didn’t even have $10. She couldn’t call her family for help. She was estranged from her father and from her mother, who had custody of Tillman’s two young daughters from a previous relationship.
“I can’t — ” Tillman stammered to Ross. “I can’t — ”
Ross explained the system in his court: For every day a defendant stayed in the Alcorn County jail, $25 was knocked off his or her fine. Tillman had been locked up for five days as she awaited her hearing, meaning she had accumulated a credit of $125 toward the overall fine of $255. (The extra $155 was a processing fee.) Her balance on the fine was now $130. Was Tillman able to produce that or call someone who could?
“I can’t,” Tillman responded, so softly that the court recorder entered her response as “inaudible.” She tried to summon something more coherent, but it was too late: The bailiff was tugging at her sleeve. She would be returned to the jail until Oct. 14, she was informed, at which point Ross would consider the fine paid and the matter settled.
That night, Tillman says, she conducted an informal poll of the 20 or so women in her pod at the Alcorn County jail. A majority, she says, were incarcerated for the same reason she was: an inability to pay a fine. Some had been languishing in jail for weeks. The inmates even had a phrase for it: “sitting it out.” Tillman’s face crumpled. “I thought, Because we’re poor, because we’re of a lower class, we aren’t allowed real freedom,” she recalled. “And it was the worst feeling in the world.”
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A call for lawyers, law students, and other legal workers who are able to travel to Tijuana and provide support in response to the large numbers of asylum seekers in Tijuana. Al Otro Lado is asking that individuals make long term commitments of at least a week at this time. The need for legal workers in the Tijuana shelters has existed for many years but the need is now greater than ever before.
Sign up here >
Fellowship Opportunity Al Otro Lady hiring year-long fellow
With support from California ChangeLawyers, we seek to hire a full-time, year-long legal Fellow to support the work of our Border Rights Project, and increase the projects capacity to represent detained asylum seekers, mentally incompetent detainees, and asylum-seeking families that have been separated by ongoing policies and tactics of family separation.
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Fellowship Opportunity Root & Rebound hiring summer fellow
The Summer Legal Fellow will be working out of our office in downtown Fresno, which focuses on serving women of color with records and in reentry from incarceration.
The ChangeLawyers fellow will drive forward legal clinics, know-your-rights trainings, and direct services for the women of Fresno and the broader Central Valley.
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Fellowship Opportunity Community Water Center hiring year-long fellow
Over a million Californians each year lack access to safe and affordable drinking water. In addition to systemic racism, one of the root causes of water inequality is under-representation and unresponsive representation at the local level.
With support from California ChangeLawyers, CWC seeks a full-time, year-long Legal Fellow to provide legal assistance to communities without safe water and local water board members.
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Fellowship Opportunity Legal Services of Northern California hiring summer fellow
In the last four years, our 23-county northern California service area has seen at least one disastrous wildfire every fire season. With support from California ChangeLawyers, we seek to hire a full-time, the Fellow will work on a disaster relief project, as well as conduct client intake.
Apply here >