• February 9, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Alexander Hamilton wrote that “the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.” Such arbitrary imprisonments appear to be a favored strategy of the new administration. But habeas corpus sets up an old school roadblock to Trump’s plans.

    In Tuesday’s oral arguments before the Ninth Circuit, which Trump yesterday called “so political” and “disgraceful,” the government claimed it should be able to proceed with detaining and deporting individuals without fair process or recourse in the courts. It was the government’s tepid defense that was “political,” not the federal judges doing their job.

    After all, the Suspension Clause in Article I of the Constitution states that the Privilege of the Writ of Habeas Corpus shall not be suspended by Congress, except in cases of rebellion or invasion. No one claims Congress has passed a law allowing these detentions or suspending habeas rights.

    The Supreme Court has repeatedly struck down such efforts to hold people in custody without fair process, in the face of claims of national security. In Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees, the court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing." 

  • February 9, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog.

    by Molly Danahy, Partner Legal Fellow at the Campaign Legal Center 

    The 2016 elections were dogged by questions about the integrity of our electoral system – from false claims that millions of people voted illegally – to legitimate concerns about the first election in fifty years without the protections of the Voting Rights Act. Also, there have been new worries about foreign actors interfering in our political process. During the primary season and in the general election, voters raised concerns about purged voter registration lists and long lines. In addition to the hacking of emails by Russian actors, there is also evidence that hackers attempted to penetrate state voter registration systems across the country. With plenty of challenges in election administration to address, why did a House Committee vote yesterday to eliminate the Elections Assistance Commission (EAC) – an agency tasked with evaluating and improving the efficiency and security of federal elections?

    One of the EAC’s primary tasks is to assess and certify the integrity of electronic voting systems to ensure that they are functional, accessible and secure. The Commission accredits independent laboratories to test voting systems and provides voluntary guidelines to the states for assessing the health of their voting systems. It also tracks problems with election systems and creates accountability by providing public access to its reports and collecting and publishing data about election administration across the country. At a time when the public could use reassurance about the integrity of our elections, defunding the only federal agency devoted to secure election administration defies rational explanation. In a display of willful blindness to the public’s concerns, the sponsor of the bill to eliminate the EAC says he believes the agency has “outlived its usefulness and purpose.”

  • February 8, 2017
    Guest Post

    by April Carson. Carson is an attorney who guides nonprofits and foundations in their charitable endeavors.

    President Trump’s leaked Executive Order and the bills introduced last week in the House and Senate, represent dreadful public policy for the tax exempt community.  More importantly, this weakening of the Johnson Amendment creates a losing “risk versus reward” analysis for religious organizations.   

    Congress has consistently, and in a bipartisan fashion, supported the idea that the United States Treasury should be neutral in political affairs and therefore taxpayer subsidized 501(c)(3) organizations should not engage in partisan political activity. In 1954, under a Republican President and a Republican controlled House and Senate, then-Democratic Sen. Lyndon B. Johnson  introduced the now famous amendment to limit section 501(c)(3) organizations, which included charities and houses of worship, from supporting candidates for public office. In 1987, in another show of bipartisan support for the idea that charities and churches should not be involved in political activity, Congress added the opposition of candidates for public office to the already standing political restriction.  Since the 107th Congress, various legislative initiatives to repeal or weaken the Johnson Amendment have been attempted, but none have gained bipartisan traction. (CRS Report RL32973 and RL34447).

    The prohibition against partisan political activity is on firm legal ground. In Christian Echoes v. United States, the 10th Circuit explained that the requirements of 501 (c)(3) did not infringe upon a church's First Amendment rights to free speech or free exercise of religion, because "tax exemption is a privilege, a matter of grace rather than right," and that "withholding exemption from nonprofit corporations do not deprive Christian Echoes of its constitutionally guaranteed right of free speech," because the church "may engage in all such activities without restraint, subject, however, to withholding of the exemption or, in the alternative . . . refrain from such activities and obtain the privilege of exemption." The D.C. Circuit similarly found that the 501 (c)(3) requirements did not run afoul of the First Amendment in Branch Ministries v. Rossotti

  • February 7, 2017
    Guest Post

    by Marc D. Stern, General Counsel, AJC Global Jewish Advocacy

    It is not clear whether President Trump is proposing the wholesale repeal of the Johnson Amendment restricting the partisan activities of tax exempt not-for profits, or only as it applies to religious organizations. If the former, the proposal presents only questions of policy, there being no constitutional ban on religious voices speaking on political matters. If the latter, it is a flat out unconstitutional “naked preference” for religious speech.

    Tax exempt status (so-called 501(c)(3) status for the relevant section of the Internal Revenue Code) confers two benefits on not-for-profits. The lesser benefit: they do not pay taxes on their income; the more substantial—that donors get to deduct all (or part) of their contributions from their gross income.

    The Johnson Amendment conditions 501(c)(3) status on a beneficiary organization refraining from endorsing or opposing candidates for elective office. The ban is absolute (unlike the ban on legislative activity). The Amendment was the brainchild of then Sen. Lyndon Johnson, and served no high-minded purpose beyond shutting down right-wing organizational opposition to Sen. Johnson.

    For the most part, these restrictions are, and long have been, self-enforced by exempt organizations. Although there are borderline questions, for the most part the rules are clear and well understood. The IRS does not have the resources to enforce these restrictions, especially since enforcement would not produce revenue. Worse, enforcement inevitably would lead to changes of IRS partisanship.

  • February 7, 2017
    Guest Post

    by Richard Harris, CEO, Momentum Communications

    President Trump’s Executive Order on Immigration: Executive Action Provokes A National Reaction:

    President Donald Trump, wearing a broad smile for both the cameras and his assembled audience, affixed his signature to possibly the most controversial Executive Order of his early and already tumultuous presidency. The Executive Order, bearing the title: “Protecting The Nation From Attacks By Foreign Nationals,” suspends “Visa Issuance and Immigration Privileges” to the following seven countries: Sudan, Iraq, Iran, Libya, Sudan, Somalia and Yemen. The Executive Order suspends refugee immigration for a period of 120 days and prohibits the immigration of Syrian refugee to the United States indefinitely.

    Signed into law at 4:42 p.m. on Jan. 27, 2017, President Trump’s Executive Order on Immigration is sweeping in its scope and immediate in its impact. It launched an instantaneous and spirited public response, which was in stark contrast to the applause and approval accorded to President Trump during the Executive Order’s high profile signing ceremony: