Media Hits, Commentary, and Events (4/25/17 – 5/12/17)

May 12th, 2017

The final week in April was fairly quiet, but the media heated red hot after oral arguments in IRAP v. Trump and the Comey firing. Here are all of my media hits, commentary, and events over the past three weeks.






Josh Blackman, a professor at South Texas College of Law, Houston, noted that there is some uncertainty about whether Trump’s account is accurate. Assuming it is, Blackman said, it is not a clear-cut case. One the one hand, he said, the FBI typically does not tell potential targets whether they are under investigation. On the other hand, the president is the director’s boss, he added.

“It’s a really tricky question about whether this is appropriate,” he said.

Blackman pointed to a much-scrutinized statement by then-President Barack Obama in April last year that he knew Clinton “would never intentionally put America in any kind of jeopardy.” Critics saw it as evidence that Obama was trying to influence the investigation.

“There’s not really a clear line on that,” Blcakman said.

Blackman said that if Trump did, indeed, ask Comey on three separate occasions about the investigation, the director could have refused to answer. And he could have gone public if he felt that Trump was acting in an improper way, Blackman said.

“He’s shown no hesitation to hold press conferences to make a fuss,” he said.


Opponents of Trump’s revised travel ban have cited that 2015 press release, still visible in the president’s tweet from the day it was issued, as evidence of his discriminatory intentions. For the campaign to take it down just before a court hearing appeared conspicuous to some attorneys following the cases, but keeping it up undercut the government’s arguments that the travel ban is not based on religion.
“Damned if you do, damned if you don’t,” said South Texas College of Law professor Josh Blackman of the statement’s removal.  . .  .

Blackman said he hopes the question of what happened to the statement does come up in the Ninth Circuit arguments, if only to point out what he believes is unfounded outrage over its removal.

“This entire line of cases is insane,” Blackman said. “The entire nature of the question answers itself: this is not something courts should be doing.”



Even before the dismissal of James Comey, who oversaw the FBI’s probe into links between Donald Trump’s campaign and Russia, many Democrats were dissatisfied with the various inquiries already in train. Since Mr Comey went, two solutions have been energetically pressed. One is a special or independent prosecutor. Under a law passed after the Watergate scandal, to boost the credibility of those scrutinising the executive, appointments such as Mr Starr’s were made by a panel of judges; the prosecutors had the authority to bring charges. Quite often they did not. Nevertheless, both political parties came to believe that the arrangement invested too much power in one person, who could use it to wage a remorseless campaign. “People have short memories,” observes Josh Blackman, of South Texas College of Law, of the yen for a similar fix today.


The act, which has since expired, also has the added benefit of being blessed in 1988 by the Supreme Court, in Morrison v. Olson.

But constitutional law professor Josh Blackman, of South Texas College of Law Houston said it’s unlikely that the current Supreme Court would uphold a similar statute today.

Justice Antonin Scalia’s lone dissent in Morrison argued that the independent counsel provisions violated separation of powers principles. Separation of powers concerns frequently “come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis,” Scalia said.

“But this wolf comes as a wolf,” he memorably concluded.

Scalia’s dissent has “stood the test of time,” Blackman told Bloomberg BNA in an email.  . . .

But the majority opinion in Morrison is thought of much differently today than it was when it was first handed down, Rappaport said.

Indeed, in 2015, Justice Elena Kagan called Scalia’s dissent “one of the greatest dissents ever written,” Blackman noted.

People thought an independent counsel was good government following the Watergate scandal, Rappaport said. But attitudes began to change after politically motivated high-profile investigations, he said.

“Ken Starr’s witch hunt, which began with Whitewater and wound up with (Monica) Lewinsky, proved Justice Scalia correct,” Blackman said, referring to investigations of President Bill Clinton.


Has the firing of James Comey precipitated a constitutional crisis? The day after the firing, law professors began a vigorous debate. At Politico, the ACLU’s legal director, David Cole, said that a constitutional crisis is at hand because “Anytime a sitting president fires the person responsible for investigating his campaigns potential criminal activities, it is a matter of grave public concern. When that criminal investigation involves collaboration with Russia to undermine the U.S. democratic process, it’s a constitutional crisis.” In the same symposium, Josh Blackman of the South Texas College of Law disagreed, arguing that “under the Constitution, the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.” In a follow-up podcast debate, Cole argued that a constitutional crisis occurs any time the presidents attempts to subvert a basic constitutional norm, such as the rule of law; Blackman countered that to qualify as a constitutional crisis, the president’s actions have to violate the Constitution itself.


The Boston Globe reported last week that Trump has been sued 134 times in federal court since taking office, nearly three times as many as his three predecessors.

Josh Blackman, a constitutional law professor at the South Texas College of Law in Houston, noted that the use of litigation to pursue political ends has become so common it’s been given the name “lawfare.”

“Frankly we’re seeing a continuation of what we saw during the Obama administration,” Blackman said.

“People turn to the courts when they lose the ballot box, and that’s what we have here.”



Josh Blackman, associate professor of law at the South Texas College of Law in Houston, with a specialty in constitutional law and the U.S. Supreme Court:

“The actions are perfectly constitutional. What happens next is up to the political process. Congress can investigate as it sees fit, and use whatever remedies, up to impeachment, it deems necessary.”

On his personal blog, Blackman detailed the crucial difference between Trump’s firing of Comey and the so-called “Saturday Night Massacre” in 1973, when President Richard Nixon pushed for the firing of a special prosecutor investigating the Watergate break-in:

“Further, for those drawing analogies to the Saturday Evening Massacre, recall that Nixon never actually fired anyone himself. Instead, he had to ask a subordinate to fire the special prosecutor for cause. Comey was fired by the President, directly, at will (though plenty of causes were given).”


“‘Under the Constitution,” noted South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”


  • Guest on The Tommy Tucker Show, WWL AM870 New Orleans, to discuss Trump’s firing of Comey (May 10, 2017).


Josh Blackman, a conservative and noted constitutional law professor at the South Texas College of Law, explains on his blog that there is no question Trump had the authority to fire Comey. He notes that, under the Constitution, the President has absolute power to fire “principal officers” like the FBI Director, and notes the firing was accompanied by “fairly elaborate reasons” from the Deputy Attorney General.



Since Trump has the legal authority to dismiss the head of the FBI for a good reason, a bad reason, a transparently insincere reason, or no reason at all, talk of a constitutional crisis is more than a little premature. “Under the Constitution,” notes South Texas College of Law professor Josh Blackman, “the president has the absolute power to fire principal officers, such as Director Comey, at will. In that sense, Trump’s actions were entirely constitutional.”



Politico has posted a symposium on the ramifications of the firing of FBI Director James Comey, and whether it counts as a “constitutional crisis.” It includes contributions by a variety of legal scholars. Participants include, Josh Blackman, Sanford Levinson, Sai Prakash, Geoffrey Stone, Cass Sunstein, and others.


Libertarian law professor Josh Blackman harshly criticized Posner’s opinion, accusing him of “taking advantage” of life tenure.


  • Guest on Making Money with Charles Payne, Fox Business Network (May 9, 2017) (Video, Post):


Blackman goes on to argue that nothing in the provision Yates cited prohibits the government from revoking visas based on nationality. Further, he points out that according to the language of the statute, “The general policy is that visas should be issued without concern for nationality. But when the secretary deems it necessary (perhaps for national security concerns), he can adopt procedures for issuing visas based on nationality.”

Importantly, the statute Yates cited doesn’t even cover the whole breadth of Trump’s executive order. Blackman notes that 1152 only applies to “immigrant visas.” Refugees and anyone applying for a non-immigrant visa cannot lay claim to this statute whatsoever.


In short, as Josh Blackman has noted, passage in the House of the AHCA can be impugned on precisely the same grounds for which Republicans pilloried Democrats in passing the Affordable Care Act in 2010.


As Josh Blackman noted here, the myriad variables at work in those cases customarily require greater flexibility for the political branches. In a case on religious displays demonstrating the judicial deference that characterizes Establishment Clause challenges to federal action, the Supreme Court in Salazar v. Buono (2010) found that a blatantly religious symbol—a cross—was almost certainly intended by Congress not as a promotion of religion but as a commemoration of Americans killed in World War I. In reaching this conclusion, the Court saw no need to refer to each of Lemon’s three prongs. Focusing on the first prong, secular purpose, was sufficient.


  • Guest on The Michael Berry to discuss testimony of Sally Yates and IRAP v. Trump, AM740 KTRH Houston (May 8, 2017) (Audio, Post).


Four days before the injunction, the Justice Department sent letters to nine jurisdictions requesting validation of compliance with federal immigration laws or risk grant money. There would be no nationwide injunction had the administration simply sent out the letters instead of Trump issuing an executive order, said Josh Blackman, a professor at the South Texas College of Law in Houston.

And there’s a parallel to the Trump administration’s ban on U.S. entry for refugees and certain immigrants and travelers from Muslim-majority nations, Blackman wrote on his blog. Federal judges have stopped implementation of the travel ban as well, and cited the comments of Trump and administration officials in their orders.

“Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction,” Blackman wrote.



The algorithm was developed by researchers at the Illinois Institute of Technology in Chicago, and South Texas College of Law. They used the US Supreme Court Database, which holds information on court cases dating back to 1791. Based on this data, the algorithm could correctly predict 70.2 per cent of the court’s 28,000 decisions, and 71.9 per cent of the justices’ 240,000 votes from 1816 to 2015.


“The perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Josh Blackman, a South Texas College of Law professor, told the Examiner.


For each year from 1816 to 2015, the team created a machine-learning statistical model called a random forest. It looked at all prior years and found associations between case features and decision outcomes. Decision outcomes included whether the court reversed a lower court’s decision and how each justice voted. The model then looked at the features of each case for that year and predicted decision outcomes. Finally, the algorithm was fed information about the outcomes, which allowed it to update its strategy and move on to the next year.

From 1816 until 2015, the algorithm correctly predicted 70.2% of the court’s 28,000 decisions and 71.9% of the justices’ 240,000 votes, the authors report in PLOS ONE. That bests the popular betting strategy of “always guess reverse,” which has been the case in 63% of Supreme Court cases over the last 35 terms. It’s also better than another strategy that uses rulings from the previous 10 years to automatically go with a “reverse” or an “affirm” prediction. Even knowledgeable legal experts are only about 66% accurate at predicting cases, the 2004 study found. “Every time we’ve kept score, it hasn’t been a terribly pretty picture for humans,” says the study’s lead author, Daniel Katz, a law professor at Illinois Institute of Technology in Chicago.

Roger Guimerà, a physicist at Rovira i Virgili University in Tarragona, Spain, and lead author of the 2011 study, says the new algorithm “is rigorous and well done.” Andrew Martin, a political scientist at the University of Michigan in Ann Arbor and an author of the 2004 study, commends the new team for producing an algorithm that works well over 2 centuries. “They’re curating really large data sets and using state-of-the-art methods,” he says. “That’s scientifically really important.”


Josh Blackman, a South Texas College of Law professor and conservative, does not think breaking up the circuit is likely to happen and does not think it would make much of a difference if it did.

“This perennial proposal of breaking up the 9th Circuit would have zero impact on the current litigation,” Blackman said in an email. “Even if the 9th Circuit was split up (which it won’t be), the judges on these two new courts would be the same. It wouldn’t make much of a difference. The only way an impact could be made is if the president was able to create new judgeships in these states, but due to the blue slip policy, it is unlikely Trump could get anyone confirmed.”


In Josh Blackman’s excellent meditation on this subject in Politico, he warns judges not to treat Trump differently than they would treat other presidents. I agree. And that means when Trump says things about his policy goals, presumably to bolster or refine or undermine his sloppy legal orders, they have some legal force. The alternative is a jurisprudential Escher staircase of meaningless words on paper, in an unending shifting dialogue of meaningless presidential words that shift from bird to fish and back again.


Both sides have shown remarkable dexterity in their understanding of the law, abruptly switching positions on issues like whether states have standing to sue, whether individual federal judges may issue nationwide injunctions and whether a federal threat to withhold funds can amount to a constitutional violation.

Josh Blackman, a law professor at South Texas College of Law, said Democratic officials should strive for more consistency, even if only as a matter of self-interest. “Whatever California can do to resist immigration law,” Professor Blackman said, “Texas can do to resist environmental laws.” . . .

As a senator, Mr. Sessions cheered that ruling, saying it was “an injunction that stopped the Obama administration from proceeding with its lawless immigration system.”

Both sides have been flexible in their understanding of the applicable legal principles, Professor Blackman said.

“With respect to nationwide injunctions,” he said, “blue state attorney generals are relying on arguments they expressly opposed during the Obama administration.”


Now, there’s an open question as to whether Section 1373 is itself unconstitutional “commandeering” of state officials (as Josh Blackman details). That is, while the federal government cannot force state officials to enforce federal law, is it constitutionally proper for it to tell states and cities that they can’t direct their officials not to exchange information with federal authorities? (Sorry for the double negative, but that’s what the issue actually is.)



  • Free Speech on College Campuses, University of Massachusetts School of Law Federalist Society Chapter (Apr. 24, 2017) (Post, Audio).