Day: January 31, 2017

New in Politico Magazine: Why Trump Had to Fire Sally Yates

Last night around 10:00 PM CT, an editor from Politico Magazine asked me if I could turn around a piece on Yates’s firing, based on my blog posts and tweets. In about 90 minutes, I put together this OpEd, which I think accurate characterizes my thoughts.

Here is the introduction:

Democrats are calling it the Monday Night Massacre. On Monday evening, Acting Attorney General Sally Yates announced that under her leadership, the Justice Department would not defend President Donald Trump’s executive order on immigration. After acknowledging that the Office of Legal Counsel had reviewed the policy, and noting that the Civil Division could defend it in court, she personally rebuffed the president’s judgment, which she did not find “wise or just.” Yates, a career prosecutor appointed by Barack Obama, is now being hailed for standing up to a supposedly “tyrannical” president, according to a statement blasted out by the Democratic National Committee.

But this has it wrong. If Yates truly felt this way, she should have told the president her conclusions in confidence. If he disagreed, she had one option: resign. Instead, she made herself a political martyr and refused to comply. Trump obliged, and replaced her with the U.S. attorney for the Eastern District of Virginia, Dana Boente. While this late-night termination may bring to mind President Richard Nixon’s infamous “Saturday Night Massacre,” the analogy is inapt. This is a textbook case of insubordination, and the president was well within his constitutional powers to fire her. Call it the Monday Night Layoff instead.

 But be sure to read down to the bottom, where I note the practical implications of this decision.

While I defend Trump’s constitutional authority to remove the acting attorney general, his message accompanying the termination warrants a careful study. Announcing her firing, the president wrote that Yates had “betrayed the Department of Justice by refusing to enforce a legal order.” Charges of betrayal will only serve to chill voices of dissent within the Justice Department, and limit internal checks on the White House. Though Yates erred egregiously by making her opinion public, rather than resigning, others within the executive branch should feel free to raise constitutional doubts to the White House. However, if those in the minority sense that they will be deemed traitors, the voices of reason within the government will be silenced for fear of persecution. I worry that Yates’s foolish last stand will poison the well of President Trump’s already-low estimation of lawyers that tell him “no.” Her selfish act of painless self-flagellation—which will no doubt be rewarded by a lifetime of adulation from the left—will in the long run be counterproductive, and unfortunately inhibit dissent within an already skittish agency. Yates’s plan backfired, big league.

This is not a one-time event. I fear this situation will deteriorate, quickly.

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ConLaw Class 6 – Scope of Federal Powers I

Class 6 – 1/31/17

Scope of Federal Powers I

  • Read Article I, Section 8 of the Constitution (xxxiii – xxxiv).
  • Federalist No. 10 (26-31).
  • The Commerce Clause (124 – 125)
  • Gibbons v. Ogden (126 – 134).
  • Evidence of the meaning of the word “Commerce” (134 – 138)
  • Progressive Era Cases (183 – 185)
  • United States v. E.C. Knight Co. (186 – 191)
  • Champion v. Ames (192 – 198)
  • Hammer v. Dagenhart (198 – 202)

The lecture notes are here.

This is Thomas Gibbons.

This is Aaron Ogden.

Hammer v. Daggenhart concerned the constitutionality of laws prohibiting child labor.



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Tonight in Houston: An Evening with Tony Mauro

On January 31, at 5:00, I will be welcoming to Houston my good friend Tony Mauro, as we discuss his legendary career covering the Court. Joining me will be Aaron Street (Baker Botts) and Robby Voyles (Halliburton GC). As an added bonus, we plan to watch the announcement of the SCOTUS vacancy, and I will be offering live commentary. The event will be held at the offices of Baker Botts. To obtain more information about this unique event, please contact The Texas Lawbook’s Sally Selio at [email protected]

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Prop1 Class 6 – The Bundle of Sticks

Class 6 – 1/31/17

The Bundle of Sticks

  • Note, 104
  • Jacque v. Steenberg Homes, 104-106
  • State v. Shack, 106-108
  • Notes, 108-110

The lecture notes are here.

Today we will address everyone’s favorite property metaphor–the Bundle of Sticks.



Here is an article from 1970 discussing the case of State v. Shack.

Mr. Tedesco, the owner of the farm, said to a reporter who accompanied Shack and Tejeras, “I’ll smash you for this, I’m  going to get you for this. This is my property. You can’t come in here looking around.” Another farmer told the reporter, “Even President Nixon” would not be allowed in. Another farmer said that the farmers would resort to violence to repel those trying to help the workers, likening it to the violence that resulted from the civil rights movement. He said “This violence is going to snowball.” According to the Times, he said that “either Hitler or Stalin would have known how to deal with the migratory farm workers in the camp he maintains.” The TImes reports that the farmers were using the trespass laws to keep the migrant workers isolated, by not allowing them to travel from camp to camp–all wages and living conditions were kept secret. This was a “chilling” weapon to maintain tight control. On the camp, the only flush toilet “was a privy that was crawling with flies.” Seven men slept in one room, and the beds had no sheets or mattress covers. Shack was at the camp to investigate a report that a 19-year-old worker had suffered a cut on his hand while working, unable to receive wages. Tejeras went to camp to pick up 36-year-old migrant who face was slashed, had to be returned to hospital to have stitches removed. The workers made roughly $9 a week for work. A family of twelve slept in one small room with bed space for 8. The camps seldom had running water.

This appears to have been a test-case of sorts, seeing they brought a NY Times reporter with them.


And this is Richard Epstein.


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