The past two weeks have been dominated by all things Comey, Rosenstein, Trump, and Mueller.
- The Simple Answer to Judge Paez’s Question about Korematsu, Lawfare (May 19, 2017).
- Hawaii v. Trump: What Would an “Objective Observer” Think of President Trump’s Travel Ban?, Lawfare (May 16, 2017).
- Quoted in Could Trump turmoil affect Justice Kennedy’s retirement plans?, Washington Examiner (May 21, 2017).
South Texas College of Law professor Josh Blackman said he does not think Comey’s firing and news of Trump’s conversations with Comey will affect Kennedy’s thinking about whether to retire, which liberals hope he does not do.
“I think [Kennedy] has an idiosyncratic understanding of reality,” Blackman said. “Because of his insularity as a judge, he may not have the same concerns as someone embedded in politics.”
Blackman noted that if Kennedy retired at this point in the year, it would happen later than several recent justices have. But, Blackman added, it’s “plausible” Kennedy would wait until the end of the term to make a retirement announcement because of how he appears to enjoy keeping people guessing.
- Cited in The Bizarre, Endless, and Oh-So-Disturbing Week that Was: All of Lawfare in One Endless Post, Lawfare (May 20, 2017).
- Cited in GHS students win first in national SCOTUS competition, Greenwich Times (May 19, 2017).
- Quoted in High School Students, in Moot Competition, Argue a Supreme Court Case, Education Week School Law (May 19, 2017).
The students faced an impressive, and demanding, panel of nine “justices” that included Julie Silverbrook, the executive director of ConSource; Josh Blackman, the president of the Harlan Institute; Judge Andre M. Davis of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.; Judge Meg Ryan of the U.S. Court of Appeals for the Armed Forces, in Washington; and U.S. District Judge Royce Lamberth of Washington.
The two teams confidently made their arguments in the Trinity Lutheran case, which involves whether the state infringed the church’s federal constitutional rights by denying a playground improvement grant based on a state constitutional provision that bars direct state aid to churches. . . .
Blackman lauded the teams’ teachers and said, “It gives me faith in our republic that we have young people who can do this.”
- Quoted in States seek to intervene in House Republicans’ cost-sharing payments lawsuit, Modern Healthcare (May 18, 2017).
But an attorney who wrote an amicus brief challenging the ACA doubted the D.C. Circuit panel would grant the motion to intervene. Josh Blackman, an associate professor of law at the South Texas College of Law, said the appeals court is likely to keep the case on hold while congressional Republicans move to repeal and replace the ACA.
“Once a new bill is passed, the case is moot,” he said. “If no new bill is passed, then the House may decide to drop the suit altogether.”
- Guest on Houston Matters to Discuss Texas’s new sanctuary city law, Houston Public Media (May 18, 2017) (Post, Audio).
On Thursday, I was a guest on Houston Matters, on Houston Public Media, to discuss SB4, Texas’s new sanctuary city law. I reiterated my tentative conclusion that Section 1373 (on which the law is based) is likely unconstitutional, but the Court will have to push its federalism jurisprudence forward to invalidate the Texas bill. You can listen here (at 21:48) or here:
- Quoted in GOP Lawmakers Warn Special Counsel Could Harm Trump Admin, The Daily Caller (May 18, 2017).
Josh Blackman, an Associate Professor at the South Texas College of Law in Houston, told TheDC that a special counsel can do his work for as long as he wants.
“The letter sent out yesterday basically gave Mueller unlimited discretion as to what he can and can’t do,” Blackman said. “If he’s specifically…investigating obstruction of justice violations, that means that anyone on the Trump campaign is now being subpoenaed and being asked, perhaps, to give testimony to the special counsel.”
Blackman also stated, “Once appointed the special counsel has extremely broad autonomy to investigate as he sees fits. Under the relevant regulations he can only be fired for doing something improper. Once appointed he will keep investigating till he decides to stop.”
- Guest on KURV 710AM McAllen to discuss obstruction of Justice (May 17 2017).
- Guest on France 24 to discuss standards of impeachment, France 24 Cable News (May 17, 2017) (Post, Video).
- Quoted in What is obstruction of justice?, CNN (May 17, 2017).
After the latest news broke, Josh Blackman, an associate professor of law at the South Texas College of Law in Houston who specializes in constitutional law, called the latest news “problematic.”
“If, in fact, the President asked Comey to drop the investigation, it may have been inadvertent, but that was an attempt to obstruct justice,” he said.
“Congress can define high crimes and misdemeanors however it wishes, (but) it is entirely appropriate to reference definitions of crimes from the US Code such as obstruction of justice.”
- Guest on NPR’s All Things Considered, Trump’s Flexing Of Executive Power Raises Legal Questions (May 16, 2017) (Audio).
- Quoted in Travel ban: Is a nationwide injunction on behalf of one person overkill?, The Christian Science Monitor (May 15, 2017).
“Often the government has argued that while the case may not be limited to those individuals, the injunction should be restricted to those individuals, and courts have consistently said no,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “If courts find that something is being done illegally, they say that if it’s illegal here, it’s illegal everywhere.”
Nationwide injunctions became more common during the Obama administration, as some conservative states regularly banded together to challenge his executive actions, persuading a federal judge – often a federal judge in Texas – to issue a nationwide injunction.
- Quoted in Trump’s Long-Shot, Machiavellian Option for FBI, Polizette (May 15, 2017).
South Texas College of Law Houston professor Josh Blackman floated the idea on his blog last week. Persuading one of the sitting justices to take the job — for the good of the country — would do more than restore confidence in the FBI: It would give Trump a second opportunity in his first four months to put his stamp on the high court.
It’s a farfetched notion. There are no indications Trump is considering any of the justices. And it seems improbable that a sitting justice would give up the power and prestige of lifetime tenure on the highest court in the land. Blackman told LifeZette it was a tongue-in-cheek proposition.
But it isn’t completely absurd.
“It was written in jest, but it’s not beyond the realm of possibility,” he said.
Blackman noted that there is historical precedent for luring a Supreme Court justice to the executive branch.
Blackman pointed out that then-President Lyndon Johnson wanted to appoint his friend Abe Fortas to the court in the 1960s. But there was no vacancy. So Johnson created one. Blackman said that Johnson told Justice Arthur Goldberg in 1965 that he needed his special mediation skills to negotiate an end to the Vietnam War.
Goldberg answered the call of the president and his country and accepted appointment as the U.S. ambassador to the U.N.
“He put his crony Abe Fortas on the court, and Johnson never returned Goldberg’s call again,” Blackman said. “It was a total setup.”
- Quoted in The Garland Gambit, The Atlantic (May 12, 2017).
This argument represents what I call the “minimal Constitution”—if the document doesn’t say “pinky swear no kidding” then it doesn’t forbid something. Minimalism has surfaced again in the wake of the firing of James Comey as FBI director. The ever-provocative libertarian professor and blogger Josh Blackman, a leading advocate of the “no duty” position, this week left no room for doubt about Trump: “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.”
- Cited in Top Ten from Texas Bar Today: DiMaggio, Sinatra, and Justice Scalia, Texas Bar Today (May 12, 2017).