What Trump’s Pardons Reveal about Him and His Misunderstanding of Executive Clemency

AUSTIN SARAT

Austin Sarat—Associate Provost and Associate Dean of the Faculty and William Nelson Cromwell Professor of Jurisprudence & Political Science at Amherst College—describes how President Trump’s pardons reveal his “superficial and distorted” understanding of American values. Professor Sarat points out that for someone who claims to value the clemency power, President Trump has granted clemency fewer times than any President since William McKinley, who served from 1897 to 1901, and when Trump has granted clemency, he has used it to reward people whose crimes show their contempt for the rule of law.

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Hotop v. City of San Jose

Docket: 18-16995

Opinion Date: December 7, 2020

Judge: Per Curiam

Areas of Law: Civil Rights, Constitutional Law, Landlord - Tenant

The Ninth Circuit affirmed the district court's dismissal of plaintiffs' 42 U.S.C. 1983 action alleging that certain provisions of the City of San Jose's 2017 Ordinance and implementing regulations, pertaining to the City's Apartment Rent Ordinance, violated plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights, as well as the Contracts Clause. The challenged provisions of the Ordinance and Regulations require landlords to disclose information about rent stabilized units to the City and condition landlords' ability to increase rents on providing that information. The panel held that plaintiffs have not plausibly alleged that the challenged provisions effect a search and thus their Fourth Amendment claim fails. In this case, plaintiffs offered no factual allegations plausibly suggesting that they maintain a reasonable expectation of privacy in information that, generally speaking, they already disclose to the City in other contexts. The panel also held that plaintiffs failed to raise a colorable Fifth Amendment takings claim, a Contracts Clause claim, an equal protection claim, and substantive and procedural due process claims. Finally, the Ordinance does not violate the "unconstitutional conditions" doctrine as enunciated in Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013).

Center for Biological Diversity v. Bernhardt

Docket: 18-73400

Opinion Date: December 7, 2020

Judge: Paez

Areas of Law: Environmental Law, Government & Administrative Law

CBD filed suit challenging the legality of BOEM's and FWS's actions, arguing that the agencies failed to comply adequately with the procedural requirements imposed by the National Environment Policy Act (NEPA), the Endangered Species Act (ESA), and the National Marine Fisheries Services (MMPA). Relying on a biological opinion prepared by FWS and BOEM's own environmental impact statement (EIS), BOEM's Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project, an offshore drilling and production facility. The site of the Liberty project is governed by the Outer Continental Shelf Lands Act (OCSLA). After determining that it had jurisdiction over CBD's claims, the Ninth Circuit vacated BOEM's approval of the Liberty project, concluding that BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by NEPA, or, at least, explaining thoroughly why it cannot do so and summarizing the research upon which it relied. The panel also held that FWS violated the ESA by (1) relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusion in its biological opinion, and (2) failing to estimate the Liberty project's amount of nonlethal take of polar bears. Because FWS's biological opinion is flawed and unlawful, the panel concluded that BOEM's reliance on FWS's opinion is arbitrary and capricious. The panel granted in part and denied in part the petition for review, remanding for further proceedings.

Lawson v. PPG Architectural Finishes, Inc.

Docket: 19-55802

Opinion Date: December 7, 2020

Areas of Law: Labor & Employment Law

The Ninth Circuit certified the following question to the Supreme Court of California: Does the evidentiary standard set forth in section 1102.6 of the California Labor Code replace the McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought pursuant to section 1102.5 of California’s Labor Code?