Tag: Rule

Supreme Court: Democrats and Republicans seek hints for how Barrett will rule on health care law

For the second day of Barrett’s questioning in the Senate Judiciary Committee, the health care law was a dominant topic on both sides of the aisle thanks to the looming November case the Supreme Court will hear on a Republican effort to strike down the law.

Both Judiciary Chairman Lindsey Graham and Sen. Dianne Feinstein, the panel’s top Democrat, asked President Donald Trump’s Supreme Court nominee about the legal doctrine of “severability,” or whether the entire law can stand if one part of it is deemed unconstitutional, during Barrett’s second day of questions before the committee on Wednesday.

It’s a concept that could play a key factor in the case from Republican attorneys general and the Trump administration that seeks to strike down the Affordable Care Act case next month. They argue the entire law, commonly known as Obamacare, should be struck down because the law’s individual coverage mandate is unconstitutional.

Barrett explained to Feinstein, a California Democrat, that severability was like a game of “Jenga.”

“If you picture severability being like a Jenga game, it’s kind of like, if you pull one out, can you pull it out while it all stands? If you pull two out, will it all stand?” Barrett asked. “Severability is designed to say well would Congress still want the statute to stand even with the provision gone?”

Graham, during his questioning of Barrett, seemed to suggest he thought that the Affordable Care Act could be saved because of severability, saying the doctrine’s “goal is to preserve the statute if that is possible.”

“From a conservative point of view, generally speaking, we want legislative bodies to make laws, not judges,” Graham said, before asking Barrett, “Would it be further true, if you can preserve a statue you try to, if possible?”

“That is true,” Barrett said.

“That’s the law folks,” Graham responded.

The challenge to President Barack Obama’s health care law from Republican state attorneys general and the Trump administration has become a central issue in this year’s election in part due to Barrett’s confirmation. Democrats have focused their arguments during Barrett’s confirmation hearings on the way the law has provided care for individuals.

But Senate Republicans, who back the lawsuit to kill the law, have backed away from that implication in the lead-up to Election Day. Senate Majority Leader Mitch McConnell, who is also up for reelection, said during his debate Monday that “no one believes” the Supreme Court will strike down the entire law.
Graham, who is facing a tough reelection fight this year, raised the severability argument but also launched into another attack on the health care law, “Obamacare is on the ballot.”
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The South Carolina Republican praised Barrett’s record, comparing her to Obama’s nominees Justices Sonia Sotomayor and Elena Kagan, calling Barrett the first woman nominated to the high court who is “unashamedly pro-life.”

Just as they did during Tuesday’s lengthy questioning, Democrats sought to pin down Barrett on a number of topics she could hear in the future, including voting

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The ‘Spycops’ bill undermines the rule of law and gives a green light to serious crimes

The so-called culture wars are not just about race and gender. They encompass a barrage of attacks on progressive or “woke” values to distract attention from catastrophic pandemic management in both Washington and Westminster. On closer inspection, some of the targets in the crosshairs are actually rather conservative; a case in point being the rule of law.



text, whiteboard: Photograph: Mark Kerrison/Alamy Stock Photo


© Provided by The Guardian
Photograph: Mark Kerrison/Alamy Stock Photo

If the prime minister and the home and defence secretaries are anything to go by, lawyers are the new enemies of the state. But as these ministers are not averse to employing briefs in their own causes – both personal and political – I rather suspect it’s the message, not the messengers, that they are trying to destroy.

Related: David Greene: Condemning lawyers for doing their jobs is inherently dangerous

It is now well over a decade since former master of the rolls Tom Bingham published his seminal book The Rule of Law. The most glittering legal and judicial career notwithstanding, he wanted to make this vital constitutional principle more readily accessible to the people it is designed to protect. He asked me to endorse his book and chair his discussion of it at the Royal Society for Arts. The greatest jurist of my lifetime was also incredibly good at plain English. He set out eight tests for the rule of law with a succinct clarity that any pundit or politician would envy.



text, whiteboard: Banners outside the Royal Courts of Justice during the judge-led public inquiry into alleged misconduct of undercover police officers who spied on hundreds of different political groups.


© Photograph: Mark Kerrison/Alamy Stock Photo
Banners outside the Royal Courts of Justice during the judge-led public inquiry into alleged misconduct of undercover police officers who spied on hundreds of different political groups.

Bingham’s third rule was that “the laws of the land should apply equally to all” . His fifth was, “the law must afford adequate protection of fundamental human rights”. At the time, we thought the former incontrovertible and the latter slightly contentious. Ten years on, both values are in peril.

Two bills currently before the House of Commons would undermine these principles. The overseas operations bill would make it much harder to prosecute British personnel for serious crimes – including torture – overseas, and immunise the Ministry of Defence from claims by the very veterans it has neglected.

The second, the covert human intelligence sources (criminal conduct) bill, is arguably even more abhorrent. It grants a host of state agencies the power to licence its agents and officers to commit grave crimes in advance, even here in the United Kingdom.

To be clear, I believe many undercover operations to be essential. Yet it was always ridiculous that, while judicial warrants were required for the searches of premises, they were not needed for the far more intrusive and dangerous placing of spies in people’s homes, offices, trades unions, friendship circles and even bedrooms. These remain a matter of administrate discretion for security services, police forces and a host of other state agencies, without the need for any external authorisation.

Related: The UK government is attempting to bend the

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Donald Trump business taxes threaten the rule of law for all

It is tempting for critics of Donald Trump to react to the New York Times bombshell article by accusing Trump of tax evasion, which is a crime. And it’s equally tempting for his defenders to insist that all he did was use legal avoidance techniques, available to anyone. The truth likely lies somewhere in the middle. But the president’s sheer volume of legally dubious tax positions poses an insidious threat to the rule of law.



Donald Trump wearing a suit and tie: Donald Trump business taxes threaten the rule of law for all


© Getty Images
Donald Trump business taxes threaten the rule of law for all

The Times was careful to not accuse Trump of tax evasion. Proving criminal tax fraud, the kind that took down Al Capone, is extremely difficult. But respect for the rule of law is more than simply avoiding criminal behavior. It means abiding by our societal responsibilities without trying to game the system.

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The Times documents numerous questionable positions, ranging from (relatively) small amounts to millions of dollars. Some of these are easy to follow and almost laughable, such as the $70,000 for hairstyling during Trump’s “Apprentice” years. The Internal Revenue Service and courts have repeatedly stated that personal grooming expenses are not deductible, even when required by an employer. When a Marine pays a barber for a haircut to comply with military rules, he cannot deduct it.

The president sets an insulting and dangerous example when he does so. He brags that he is “smart” for avoiding taxes. But all he does is take risks that ordinary Americans, who cannot afford aggressive advisers and attorneys who can fight the IRS, can’t expose themselves to. He acts like there are two different tax codes, one for the rich and one for everyone else.

Several other dubious positions jump out. Business owners can deduct litigation expenses related to their business, for instance a trademark dispute, but not the costs of running for office. Trump appears to have done just that, deducting expenses associated with the investigation of Russian contacts during the 2016 campaign.

Video: Glenn Kirschner: Trump’s alleged engineering of a sudden cash windfall in 2016 ‘looks potentially criminal’ (MSNBC)

Glenn Kirschner: Trump’s alleged engineering of a sudden cash windfall in 2016 ‘looks potentially criminal’

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Under Trump’s signature 2017 tax cuts, individuals may only deduct $10,000 in state and local taxes a year, while business owners face no such limits. Since 2014, he has deducted $2.2 million on Seven Springs, a 200-acre country estate, by claiming he owns it solely for investment purposes. Nevertheless, a Trump website describes the estate as a “retreat for the family” and his sons have referred to it as “our compound.”

Suspicion also mars Trump’s deduction of $26 million in consulting fees. In some cases, third parties who worked on his projects cannot recall any outside consultants. In others, the fees appear to have gone to his daughter Ivanka Trump, who double dipped by also taking a salary from the Trump Organization for her work on the projects.

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In call with Democratic senator, Barrett declines to discuss how she might rule on health-care law

Particularly scrutinized is a 2017 essay that Barrett penned for a Notre Dame Law School journal in which she argued that Chief Justice John G. Roberts Jr., Jr., who wrote the majority opinion when the Supreme Court upheld the constitutionality of the health-care law in 2012, “pushed the Affordable Care Act beyond its plausible meaning to save the statute.”

Sen. Christopher A. Coons (D-Del.), who talked by phone with Barrett on Wednesday, said he asked her about a pair of Supreme Court decisions upholding the Affordable Care Act as well as the 2017 essay. Barrett, Coons said, repeatedly declined to speak to the specifics of a case, saying “she wouldn’t get into the details of how she might rule.”

“The ACA is not just on the docket of the Supreme Court,” Coons, a member of the Senate Judiciary Committee, told reporters on Wednesday. “It’s on the ballot this fall.”

The conversation between Coons and Barrett is part of the traditional Supreme Court confirmation process that has become quite unusual not only because of the intense toxicity around her nomination but also because of the effects of the coronavirus pandemic hitting the Capitol.

At least eight Democratic senators have met with Barrett — either in person or via phone — while a host of others have refused the courtesy sit-downs because they don’t want to legitimize a confirmation process they say should not occur.

Sen. Joe Manchin III (D-W.Va.) quietly met with Barrett in the Capitol on Thursday, and in a statement released the following day said her writings on the ACA “continue to give me serious concerns” about her confirmation.

An aide to Sen. Dianne Feinstein (D-Calif.), the Judiciary Committee’s ranking Democrat, confirmed that the senator spoke with Barrett on the phone Wednesday, but declined to give further details. Sen. Sheldon Whitehouse (D-R.I.) also had a phone conversation; a spokesman said he “walk[ed] her through his concerns about dark-money influence around the Supreme Court, which he called ‘the scheme around the Court.’”

White House spokesman Judd Deere said that during the calls, Barrett “emphasized the importance of judicial independence and spoke about her judicial philosophy and family.”

The meetings are also used to preview some of the lines of questioning from senators at the confirmation hearing. For Barrett, many of the questions from Democratic senators at her hearing starting Monday will center on health care and the fate of the ACA.

In her meeting with Coons, Barrett said that she has had no conversation with President Trump about any particular decision or case. She also made no commitment to recuse herself from any election-related disputes that may rise to the Supreme Court — a call made by a slew of Democrats because of the explicit link that Trump has made between potential election challenges and the need to have a full slate of nine justices to hear them.

Trump announced in a White House ceremony on Sept. 26 that he would nominate Barrett, a judge on the U.S. 7th Circuit

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EU lashes out at Turkey over rule of law, rights, freedoms

The European Union says it sees no reason to speed up membership talks with Turkey

BRUSSELS — The European Union said Tuesday that Turkey’s negotiations on joining the world’s biggest trade bloc shouldn’t be accelerated because of its failure to uphold democratic standards, protect the independence of its courts and effectively fight corruption.

In a scathing report on Turkey’s progress toward EU membership, the European Commission said Turkish authorities continue to pressure civil society, aid groups and the media, and that political power is still being concentrated in the hands of President Recep Tayyip Erdogan. Turkey rejected some of the findings and branded the EU as “prejudiced.”

“Turkey remains a key partner for the European Union. However, Turkey has continued to move further away from the European Union with serious backsliding in the areas of democracy, rule of law, fundamental rights and the independence of the judiciary,” the commission said.

Turkey began its EU membership talks in 2005 but they have stood at a standstill in recent years, and tensions with Ankara have mounted since over its disputed energy exploration in parts of the Mediterranean Sea.

Some EU countries oppose the large, relatively poor and mainly Muslim country joining. Germany, notably, would prefer an alternate kind of “privileged partnership.” France too is opposed to Turkey’s membership, and all 27 EU nations must agree for any country to join.

Countries hoping to take a seat at Europe’s big table must align their laws and legislation in 35 policy areas, or negotiating chapters. EU leaders agreed in 2018 that no new chapters in Turkey’s accession talks should be opened or closed.

“The report presented today confirms that the underlying facts leading to this assessment still hold, despite the government’s repeated commitment to the objective of EU accession,” said the commission, which runs and monitors membership talks on behalf of the 27 EU nations.

It also said that the “adverse impacts” of a state of emergency, which was imposed by Erdogan after a failed military coup attempt in Turkey in 2016 and lifted two years ago, are still being felt today.

Turkey’s Foreign Ministry said the report was a reflection of “the EU’s prejudiced, unconstructive and double-standard approach.” The report failed to mention the EU’s own “responsibilities and commitments” and criticized Turkey with “unfounded arguments,” the ministry said in a statement.

“Our sincere wish is for the EU to look at the EU candidate country Turkey, not through the selfish and narrow vision of certain circles, but through the common interest and vision of our continent,” it said.

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EU Lashes Out at Turkey Over Rule of Law, Rights, Freedoms | Business News

By LORNE COOK, Associated Press

BRUSSELS (AP) — The European Union said Tuesday that Turkey’s negotiations on joining the world’s biggest trade bloc shouldn’t be accelerated because of its failure to uphold democratic standards, protect the independence of its courts and effectively fight corruption.

In a scathing report on Turkey’s progress toward EU membership, the European Commission said the Turkish authorities continue to pressure civil society, aid groups and the media, and that political power is still being concentrated in the hands of President Recep Tayyip Erdogan.

“Turkey remains a key partner for the European Union. However, Turkey has continued to move further away from the European Union with serious backsliding in the areas of democracy, rule of law, fundamental rights and the independence of the judiciary,” the commission said.

Turkey began its EU membership talks in 2005 but they have stood at a standstill in recent years, and tensions with Ankara have mounted since over its disputed energy exploration in parts of the Mediterranean Sea.

Some EU countries oppose the large, relatively poor and mainly Muslim country joining. Germany, notably, would prefer an alternate kind of “privileged partnership.” France too is opposed to Turkey’s membership, and all 27 EU nations must agree for any country to join.

Countries hoping to take a seat at Europe’s big table must align their laws and legislation in 35 policy areas, or negotiating chapters. EU leaders agreed in 2018 that no new chapters in Turkey’s accession talks should be opened or closed.

“The report presented today confirms that the underlying facts leading to this assessment still hold, despite the government’s repeated commitment to the objective of EU accession,” said the commission, which runs and monitors membership talks on behalf of the 27 EU nations.

It said that the “adverse impacts” of a state of emergency, which was imposed by Erdogan after a failed military coup attempt in Turkey in 2016 and lifted two years ago, are still being felt today.

Turkey’s dispute in the eastern Mediterranean with EU members Greece and Cyprus, as well as its roles in conflict-torn Libya and Syria were also criticized in the report, which noted that Ankara’s foreign policy has “increasingly collided with the EU priorities.”

The commission was more upbeat about Ankara’s migration policy. It said that “Turkey sustained its outstanding efforts to provide unprecedented humanitarian aid and support to more than 3.6 million registered refugees from Syria and around 370,000 registered refugees from other countries.”

The EU relies on Turkey to stop migrants from entering the bloc through its borders with Greece and Bulgaria, and is paying around 6 billion euros ($7 billion) to help Syrian refugees in the country to persuade Ankara not to let migrants head to Europe. EU leaders suggested last week that they are willing to send Turkey even more funds.

Copyright 2020 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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Judge orders Trump law enforcement panel to halt over rule violations

A federal judge Thursday determined that a law enforcement commission ordered by President TrumpDonald John TrumpTrump signs bill averting shutdown after brief funding lapse Privacy, civil rights groups demand transparency from Amazon on election data breaches Facebook takes down Trump campaign ads tying refugees to coronavirus MORE violated federal rules on open meetings and that the panel must stop all work until it complies with the law. 

U.S. District Judge John Bates said in the ruling that the 18-member Presidential Commission on Law Enforcement and the Administration of Justice held private meetings without advanced notice to the public. 

The judge noted that this violated the Federal Advisory Committee Act (FACA), which mandates that meetings of federal “advisory committees” “must be open to the public,” “must make its records and drafts publicly available” and “must give notice of any meetings in the Federal Register at least fifteen days before the meeting is held.” 

The judge added that the commission also violated the component of FACA that states committees must be “fairly balanced” in the viewpoints represented. The 18-member law enforcement commission, which Trump ordered Attorney General William BarrBill BarrJudge orders DOJ to publish info redacted as privileged from Mueller report Mueller in rare statement pushes back on top aide’s criticism of investigation Flynn’s attorney says she recently discussed case with Trump MORE to create in October 2019, consisted exclusively of law-enforcement personnel. 

According to Politico, Barr was scheduled to receive the committee’s final report later this month. However, the judge ruled that all recommendations and activities of the commission will only be allowed to resume once the group comes into compliance with FACA’s guidelines. 

The NAACP Legal Defense and Educational Fund filed the lawsuit against Barr, the Justice Department and the Presidential Commission in April, arguing that in addition to violating FACA, the panel was created “to support President Trump’s and Attorney General Barr’s unfounded claims that there is lack of respect for law enforcement across the United States due to recent efforts to reform the criminal justice system.” 

According to court documents, Barr established the commission in January with a stated goal to “conduct a modern fresh evaluation of the salient issues affecting American law enforcement and the communities they protect” by focusing on topics that would allow law enforcement “to safeguard the public and maintain a positive relationship with their communities.”

Barr said in a statement announcing the commission’s creation in January that the panel’s members would “study crime—how we can reduce it and how we can restore the public confidence in law enforcement to its rightful place.” 

The commission came amid increased national calls for justice reform and an end to police brutality, which have particularly increased in recent months with ongoing demonstrations following the police shootings of Breonna Taylor, George Floyd and Jacob Blake.

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Europe Can Have Stimulus or Rule of Law, Not Both

This trap was laid in July. Under the moderation of Germany, which holds the rotating EU presidency, the 27 national leaders tentatively agreed to a groundbreaking budget-plus-stimulus deal to address the pandemic. Worth 1.8 trillion euros ($2.1 trillion) in total, the package includes 750 billion euros to be financed by the first “European” bonds ever issued, which is why it’s considered the germ of a future fiscal union. But it still has to be accepted by the European Parliament and ratified by all member states.

To get that initial agreement, its drafters added some vague wording about conditionality. The aim was to link any receipts of EU money to upholding the rule of law. Broadly defined, this term includes everything from an independent judiciary and a free press to other basics of liberal democracy, as enshrined in the EU’s treaties. Uncontroversial, you might think.

Those phrases entered the text to give the naysayer countries a reason to support the overall package. Its critics, dubbed the “frugals,” are the Dutch, Austrians and Scandinavians, who aren’t crazy about joint borrowing and spending. So the language to tie funds to rule of law was a motivation for them to nod the deal through. 

The conditionality clause’s obvious targets are Hungary, which has been dismantling democratic norms for a decade, and Poland, which has been at it for five years. The EU has no mechanism for expelling member states. But it has initiated so-called Article 7 probes into both countries, which could in theory deprive them of their voting rights in Brussels. In reality, there are so many hurdles before such an outcome that the populist regimes in Budapest and Warsaw simply ignore the proceedings.

That’s why the “frugals” and several other member states, cheered on by the European Parliament and Commission, wanted to add a new mechanism to discipline Hungary and Poland. They meant to revive a proposal from 2018, whereby the Commission could impose punishments against errant countries unless a qualified majority — usually 55% of member states representing at least 65% of the EU’s population — rejects the sanctions. Budapest and Warsaw could never have mustered that much support to veto their own censure.

A proposal this week from Germany dilutes this idea beyond recognition, however. Sanctions must now be accepted, instead of rejected, by a qualified majority. Hungary, Poland and a few eastern European allies could easily get a blocking minority.

Moreover, any proposed punishment must relate directly to transgressions that compromise the use of EU funds — if corruption sends the money to the wrong accounts, for example. A wider deterioration from democracy to autocracy, which is how the U.S. think tank Freedom House describes Hungary’s development, would no longer qualify.

It’s easy to see, if still unfortunate, why Germany would go wobbly like this. Chancellor Angela Merkel sees the next few months as her last chance to leave a positive European legacy. She needs this pandemic fund done and dusted, and can’t risk a veto by Hungary or

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Exclusive: EU Chair Germany Proposes Adherence to Rule of Law as Key to Getting Bloc’s Cash | World News

BRUSSELS (Reuters) – Germany, current president of the European Union, has proposed a scheme that links access to EU money, including the 750 billion euro recovery fund, to respecting the rule of law, a document seen by Reuters showed on Monday.

The proposal will underpin negotiations between the European Parliament and the 27 EU governments, which in July agreed to such a mechanism in principle but left out much detail to avoid a veto from Poland or Hungary, whose nationalist governments stand accused of flouting EU democratic norms.

Warsaw and Budapest are under EU investigation for undermining the independence of the judiciary, media and non-governmental organisations, and both could lose tens of billions of euros in funding if the rule of law mechanism is established.

In the recovery fund alone, excluding the linked long-term EU budget for 2021-27, Poland would be at risk of losing access to 23 billion euros ($26.84 billion) and Hungary to six billion.

“The rule of law requires that all public powers act within the constraints set out by law … under the control of independent and impartial courts,” reads the proposed draft regulation, which needs the approval of the European Parliament.

But the vast majority of EU lawmakers want the link between money and the rule of law to be stronger than agreed in July and the German proposal – sticking closely to the leaders’ summer agreement – is all but certain to disappoint the chamber.

Liberal German EU lawmaker Moritz Korner, who leads the chamber’s work on the matter, said Berlin was “cuddling” with eurosceptic, nationalist rulers in Warsaw and Budapest.

“Without an automatic sanction system, Germany’s proposal fails to defend the rule of law and the correctness of the EU budget spendings,” he told Reuters when asked about the scheme.

According to the German document, punishment for rule of law breaches would include suspending the flow of EU money to capitals seen as breaching democratic checks and balances. It would be decided by a majority vote of EU governments on a recommendation by the EU’s executive European Commission.

This could allow other governments to override opposition from Poland and Hungary.

But those seeking a stronger link argue that a majority of EU governments should be needed to decline, rather than endorse any recommendation by the Commission, to suspend funding for those flouting the rule of law.

That formula would make penalties more likely by leaving governments less room for political horse-trading.

Some have cautioned, however, that seeking too ambitious a solution could backfire, given that Warsaw or Budapest might withdraw their support if the proposal is changed from what they signed up to in July after four days of tortuous talks.

“It is important that all sides stick to the delicate compromise reached. What didn’t find the support of the (leaders) at that time, will certainly not find it now,” said one official working on the matter.

Germany has already called on EU lawmakers to speed up work on approving the bloc’s next

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