Supreme Court agrees to hear challenge to citizenship question on census

U.S. Supreme Court

Photo by Maria Dryfhout/Shutterstock.com.

The U.S. Supreme Court on Friday agreed to decide whether a citizenship question may be added to the 2020 census and scheduled arguments for the case in April.

The court granted cert before any appeal to the 2nd U.S. Circuit Court of Appeals at New York and put the case “on an unusually fast track,” the New York Times reports. The apparent aim is to issue a decision before census forms are printed in June. The National Law Journal and the Washington Post also have coverage of the cert grant; an American Civil Liberties Union press release is here.

U.S. District Judge Jesse Furman of Manhattan had ruled in the case last month, finding that Commerce Secretary Wilbur Ross violated the Administrative Procedure Act in a “veritable smorgasbord” of ways when he added the question.

Furman said Ross ignored statutes on data collection and notice to Congress, acted arbitrarily, and concealed the true basis for his decision. But Furman found no violation of the due process clause because the plaintiffs did not prove Ross was motivated by discrimination against noncitizens and minorities.

Ross had said he was adding the citizenship question in response to a request from the Department of Justice for better citizenship data to assist in its enforcement of the Voting Rights Act of 1965. But Furman said the evidence showed that Ross had persuaded the DOJ to make the request, showing his stated reason was pretextual.

The Supreme Court had blocked Ross’ deposition in October but allowed the deposition of a DOJ lawyer to go forward. In November, the Supreme Court allowed trial of the case.

Two lawsuits have been consolidated in the case. One was filed by 18 states, as well as several cities and counties. The other was filed by several advocacy groups. The American Civil Liberties Union, the New York Civil Liberties Union and Arnold & Porter had sued on behalf of the groups.

The plaintiffs have argued that the question will reduce head count because immigrants will be reluctant to participate.

The House of Representatives has filed an amicus brief supporting the challengers, according to the National Law Journal. The brief points out that an inaccurate count will affect state representation in the House as well as the flow of federal dollars to the states.


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Michael Avenatti agrees to place law firm in receivership after former partner claims he hid money

Law Firms

Michael Avenatti

Michael Avenatti. Photo from Shutterstock.com.

Lawyer Michael Avenatti, who’s probably best known for representing adult film actress Stormy Daniels, has agreed to place his onetime law firm in receivership after a former partner alleged in court papers that he had hidden millions of dollars from the bankruptcy court.

U.S. Magistrate Judge Karen E. Scott of Orange County appointed a receiver who will take possession of bank accounts and case files for the firm, Eagan Avenatti, the Los Angeles Times reports.

In a joint court stipulation, Avenatti agreed to the receivership and the former partner, Jason Frank, agreed to withdraw papers alleging “brazen acts of bankruptcy fraud.”

Frank had claimed that Avenatti had received undisclosed legal fees during the bankruptcy that he used for personal expenses, such as a payment on his Ferrari, payments to his ex-wife, and money to aid his coffee company, Global Baristas.

Avenatti also agreed to cooperate with efforts by Frank to collect on a $10 million judgment against the firm. Frank had alleged Eagan Avenatti failed to pay him money owed for legal work.

Avenatti denied any wrongdoing in an interview with the Los Angeles Times. “Every dollar has been properly accounted for and reported as required,” he said.

Avenatti said the bankruptcy court never had required him to receive all his legal fees through Eagan Avenatti. Money from one case constituted reimbursement for out-of-pocket expenses, he said.

Avenatti’s legal practice is now known as Avenatti & Associates. Eagan Avenatti lawyers and staff members are employed by the new firm.


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Former state justice gets 2-year prison sentence; he used government credit card to buy gas

Judiciary

Former Justice Allen H. Loughry II. Photo from the West Virginia Supreme Court of Appeals.

Former Justice Allen H. Loughry II of the West Virginia Supreme Court of Appeals has been sentenced to two years in prison for a conviction mostly stemming from his use of a government credit card to buy gas for personal travel.

Senior U.S. District Judge John T. Copenhaver Jr. of Charleston, West Virginia, sentenced Loughry on Wednesday, report the Charleston Gazette-Mail, Courthouse News Service, the West Virginia News and a press release.

Copenhaver also sentenced Loughry to three years of supervised release, fined him $10,000 and ordered him to pay about $1,200 in restitution.

Loughry’s sentence exceeded federal guidelines. Copenhaver said the longer sentence was needed because Loughry’s crimes contributed to a lack of public trust and respect for the state supreme court, according to the Gazette-Mail story.

“Of great importance here is a sentence that promotes respect for the law and deters others,” Copenhaver said.

The restitution will be paid to the state and the Pound Civil Justice Institute. Loughry had charged the institute for mileage to a Baltimore event even though he drove a state vehicle there, resulting in a mail fraud conviction. Seven wire fraud convictions were related to Loughry’s use of the government fuel card to buy gas for personal travel.

Loughry also was convicted of lying to the FBI about his use of state vehicles and about his knowledge of the origins of a desk he took from the court to his home.

Loughry also was convicted of witness tampering, but Copenhaver granted acquittal on the charge in January after finding insufficient evidence to support it, the West Virginia Metro News previously reported.

Loughry’s lawyer said during the sentencing hearing that Loughry has reached an agreement with judicial ethics regulators to give up his law license and to never run again for public office.

Hat tip to How Appealing.


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Trump declares national emergency, will tap these funds for border wall

Immigration Law

President Donald Trump/Shutterstock.com.

Updated: President Donald Trump declared a national emergency on Friday to enable him to tap funds to build a border wall.

Trump announced his emergency declaration in a Rose Garden ceremony, report the New York Times, Politico, the Wall Street Journal and the Washington Post.

Trump said the declaration will help fight a criminal invasion that is causing a national security crisis. “We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs,” he said.

Acting White House chief of staff Mick Mulvaney told reporters that Trump plans to combine about $6.7 billion in diverted funds with $1.375 billion in funds allocated by Congress in a budget bill passed Thursday evening. Trump wants to use the money to build a barrier wall that covers at least 234 miles.

Trump will rely on his emergency declaration to tap $3.6 billion in funds from military construction. The president also plans to rely on traditional budgetary discretion to use $2.5 billion in drug-fighting funds and $600 million in a Treasury Department asset forfeiture fund. Disaster-assistance funds will not be used.

The money allocated by Congress restricts areas where a barrier can be built, the Wall Street Journal reports. Areas ruled out include federal areas such as the Santa Ana National Wildlife Refuge and National Butterfly Center. A senior administration official told the publication that the White House thinks the restrictions apply only to the money appropriated by Congress.

The National Emergencies Act of 1976 regulates how presidents can exercise emergency powers that are given to them in hundreds of specific statutes, including statutes governing military funding.

The law doesn’t define an emergency. It authorizes Congress to vote to repeal an emergency. But under a U.S. Supreme Court decision, the president must sign the resolution into law or veto it.

Litigation likely would focus on whether there is truly an emergency or whether the president is using his executive power to bypass the legislative process, experts told the ABA Journal.

Trump acknowledged the likelihood of lawsuits in his Rose Garden speech. “Hopefully we’ll get a fair shake” in the Supreme Court, he said.

Democrats and several public interest groups criticized Trump’s use of emergency powers for a border wall.

House Speaker Nancy Pelosi of California and Senate Minority Leader Charles Schumer of New York said in a joint statement that Trump’s declaration was “unlawful,” and his actions “clearly violate the Congress’ exclusive power of the purse, which our founders enshrined in the Constitution.”

“The Congress will defend our constitutional authorities in the Congress, in the courts and in the public, using every remedy available,” Pelosi and Schumer said.

House Judiciary Committee Chairman Jerrold Nadler of New York said he would support a resolution to end the emergency and will also “pursue all other available legal options.”

Another lawmaker, Democratic Rep. Joaquin Castro of Texas, said late Thursday he would be ready to introduce a joint resolution to end the declared emergency, the New York Times reports. Castro leads the Congressional Hispanic Caucus.

New York Attorney General Letitia James threatened litigation in a press release delivered during Trump’s Rose Garden speech. “Declaring a national emergency without legitimate cause could create a constitutional crisis,” she said. “We will not stand for this abuse of power and will fight back with every legal tool at our disposal.”

Groups condemning Trump’s emergency declaration include the NAACP Legal Defense and Educational Fund, the Democratic Attorneys General Association, Muslim Advocates, the Immigration Hub, the American Civil Liberties Union and Common Cause.

An ACLU press release said it would be filing suit next week.

Also on Friday, the ABA issued a press release about a new ABA Legal Fact Check, which “looks at the statutory and case law related to presidential emergency powers, including a landmark 1952 U.S. Supreme Court decision on presidential powers in which the justices blocked an order by then-President Harry Truman.”

Updated at 2:08 p.m. to include information on the ACLU lawsuit plans and the press release from the ABA.


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Justice Ginsburg returns to Supreme Court after absence for cancer surgery

U.S. Supreme Court

U.S. Supreme Court Justice Ruth Bader Ginsburg. ABA Journal file photo by Sam Kittner.

U.S. Supreme Court Justice Ruth Bader Ginsburg is returning to the U.S. Supreme Court on Friday for the first time since her surgery for lung cancer.

The court announced that 85-year-old Ginsburg will participate in the private conference in which justices review requests for certiorari, report CNBC and CNN.

Ginsburg had surgery Dec. 21 to remove two cancerous nodules from her left lung. There was no evidence the disease had spread. She missed oral arguments as she recovered, which was the first time she was absent from arguments for health reasons.

The justices return for oral arguments Tuesday. A court spokeswoman would not confirm for CNN that Ginsburg will attend the arguments. But the network says she is expected to be there.


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Trump will call an emergency to fund border wall

Executive Branch

President Donald Trump/Shutterstock.com.

President Donald Trump will declare a national emergency to fund a border wall without congressional approval, according to White House Press Secretary Sarah Huckabee Sanders.

Trump will sign the $328 billion funding bill to keep government operating, and he will also declare an emergency, according to Sanders and Senate Majority Leader Mitch McConnell. The New York Times, the Washington Post, Politico and CNN have coverage.

“The president is once again delivering on his promise to build the wall, protect the border, and secure our great country,” Sanders said.

The spending bill contains only $1.375 billion for 55 miles of steel-post border fencing. Trump has sought $5.7 billion for a wall.

Trump likely will use his emergency powers to tap funds designated for disaster aid or military construction projects, according to previous news coverage. Trump could rely on the National Emergencies Act of 1976, which regulates how presidents can exercise emergency powers that are given to him in hundreds of specific statutes.

The move likely is to lead to lawsuits. The American Civil Liberties Union Immigrants’ Rights Project said last month that it thinks it’s unlawful to use emergency funds to build a border wall, and it is prepared to sue.

Common Cause released a statement Thursday calling on Congress to “check this power grab by President Trump.” If Congress refuses to act, members of Congress should turn to the courts, the statement said.

Some Democratic senators already are crafting a measure that would prevent Trump from using disaster aid for the wall, according to the New York Times.

Some GOP lawmakers also have expressed concern because a precedent set by Trump could be used by Democratic presidents to find funds for causes such as fighting climate change or battling gun violence.


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