Who May/Should Preside Over Former President Trump’s Second Impeachment Trial?

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois law dean Vikram David Amar and professor Jason Mazzone argue that the constitutional ambiguity over who may preside over former President Trump’s second impeachment trial supports the conclusion that the Senate should ask Chief Justice John Roberts to preside. Dean Amar and Professor Mazzone explain why other people—such as Senate President Pro Tempore, the Vice President, and any other senator—are not ideal options because of real or perceived conflicts.

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Momox-Caselis v. Donohue

Docket: 19-15126

Opinion Date: February 3, 2021

Judge: Wallace

Areas of Law: Civil Rights, Constitutional Law, Family Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of individual employees of the Clark County DFS and the County in an action brought by plaintiffs under 42 U.S.C. 1983 and state law, alleging that defendants wrongfully removed plaintiffs' infant daughter, M.M., from plaintiffs' home, wrongfully removed M.M. from her foster mother's home, and then placed her in a neglectful foster home that caused her death. The panel held that plaintiffs waived several appellate arguments where these arguments were either not raised before the district court, are inconsistent with positions employed there, or are presented without argument. The panel also held that each of plaintiffs' asserted factual disputes are either resolved by the record or are insufficient to create a genuine dispute of material fact on its claims. In this case, plaintiffs' third claim of failure to train has been waived whereas its fifth claim of state-law negligence was effectively dismissed. Furthermore, plaintiffs fail to present a genuine dispute that M.M. was wrongfully removed from their home or that defendants acted with deliberate indifference. Finally, the panel held that the district court properly decided the question of causation for the state negligence claim as a matter of law rather than a matter of fact, and that plaintiffs waived their wrongful death claim.

Tomczyk v. Wilkinson

Docket: 16-72926

Opinion Date: February 3, 2021

Judge: William A. Fletcher

Areas of Law: Immigration Law

The Ninth Circuit granted a petition for review of the DHS's order reinstating petitioner's prior order of removal. Petitioner, a Canadian citizen, was deported from the United States in the summer of 1990 under a final order of deportation. 26 years later, he was taken into custody by ICE after an arrest for driving under the influence of alcohol. DHS then reinstated his prior deportation order under section 241(a)(5) of the Immigration and Nationality Act. The panel held that a noncitizen has not "reentered the United States illegally" within the meaning of 8 U.S.C. 1231(a)(5) based solely on the fact of inadmissibility at the time of reentry. In this case, DHS failed to apply the correct legal standard under section 1231(a)(5) for entering a reinstatement order. The panel explained that petitioner's case is fundamentally different from circuit precedent, where the panel allowed reinstatement of prior deportation orders for noncitizens who had reentered the United States through fraud. The panel agreed with the government's tacit admission that it is not entitled to deference, and the panel did not give Chevron deference to agency decisions made without "a lawmaking pretense in mind," such as those made with little or no procedure and that "stop short of [binding] third parties." The panel noted that many inadmissible noncitizens who enter or reenter the United States do so without violating sections 1325 or 1326, for these sections do not punish entries or reentries solely on the ground of a noncitizen's inadmissibility. Furthermore, the panel's conclusion was reinforced by the INA's provisions governing relief from removal, the severe practical difficulties of basing reinstatement solely on inadmissibility at the time of reentry, and the DHS regulation governing reinstatement.