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News@Law, 11/22/2016

News@Law is a selection of the day's news clips regarding Harvard Law School.
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Today's News

The New York Times
Donald Trump’s Business Dealings Test a Constitutional Limit
Not long after he took office, President Obama sought advice from the Justice Department about a potential conflict of interest involving a foreign government. He wanted to know whether he could accept the Nobel Peace Prize. The answer turned on the Emoluments Clause, an obscure provision of the Constitution that now poses risks for President-elect Donald J. Trump should he continue to reap benefits from transactions with companies controlled by foreign governments...Laurence H. Tribe, a law professor at Harvard, said that he found Mr. Tillman’s argument “singularly unpersuasive” and that it “would pose grave danger to the republic, especially in the case of a president with extensive global holdings that he seems bent on having his own children manage even after he assumes office.”
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Bloomberg
Trump’s Hotel Lodges a Constitutional Problem
An op-ed by Noah Feldman. President-elect Donald Trump is poised to violate the foreign emoluments clause of the Constitution, at least according to the chief ethics lawyer of the George W. Bush administration. The idea is that when foreign officials stay in a Trump International Hotel to ingratiate themselves with the president, they’ll be giving him an emolument -- that is, a form of payment -- in violation of Article 1, Section 9, Clause 8 of the Constitution. And the Washington Post recently reported that Trump’s Washington hotel actively solicited diplomats with a reception that included a tour of a 6,300-square-foot suite that goes for $20,000 a night. This suggestion prompts three questions, none of which I could have answered without research: What the heck is the foreign emoluments clause? Does it cover Trump’s conduct? And if it does, who, if anyone, can bring a case in court to do anything about it?
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The Daily Signal
How Trump Can Reverse Obama Climate Change Regulations
President-elect Donald Trump will come into power next year with the authority to redefine his predecessor’s ambitious and divisive legacy on climate and energy policy. Just as President Barack Obama has used regulations and executive actions to try and make the U.S. a world leader in cutting planet-warming emissions across much of the nation’s economy—especially targeting the coal industry—Trump can largely act alone to define his own agenda. “I really do think there will be some kind of reversal of Obama-era policies, but there are legal, political, and practical constraints on how far the Trump administration can go,” said Jody Freeman, the director of Harvard University’s environmental law and policy program, in an interview with The Daily Signal.
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Bloomberg
Trump Can’t Shut Federal Agencies. But He Can Turn Them Off.
An op-ed by Cass Sunstein. Many Republicans hope, and many Democrats fear, that Donald Trump's administration will close or shrink a variety of federal agencies and offices. Both the hope and the fear are justified -- even without a supermajority in the Senate, there's a lot Republicans can do to restrict the actions of the executive branch. Let’s start with what Trump can't do: Acting on his own, could he disband an agency or department -- say, the Department of Energy? Absolutely not. He would need Congress for that, and almost certainly 60 votes (and it’s not going to get close to that). But his administration could work to cut staff, if only by refusing to fill vacancies, and it could certainly work with Congress to reduce appropriations.
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Vox
I organized for justice for black people under Obama. Here’s my plan for Trump’s presidency.
An op-ed by Derecka Purnell `17. I named my son, who was born just days before the election, after Marcus Garvey, a West Indian revolutionary most celebrated for leading the “Back to Africa” movement in the 1920s. Garvey believed that by returning to the motherland, black people, who were oppressed in the United States, would have a greater chance at liberation. I admire Garvey and understand that perspective, and I know that black people today face many similar injustices to the ones he was reacting to. But, in the wake of the election of Donald Trump to the presidency, I don’t want or plan to go anywhere: I’ve decided to stay here and fight as a political organizer, the same way I have for the past several years.
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CommonWealth
Students push for ‘sanctuary campuses’
UMass Amherst officials, under pressure from students, said on Friday they were committed to making the campus a safe haven for undocumented students, faculty, and staff. But they stopped short of meeting the students’ demand that the school be declared a sanctuary campus...Debbie Anker, a professor at Harvard Law School and director of the Harvard Immigration and Refugee Clinic, said that while there has been significant amount of research into the issues that crop up in sanctuary cities, a group of Harvard law students is just starting to tease out the details of what it will mean for schools to become sanctuaries. “This is all so new, ” said Anker. “It’s only been a week since the election but already students are coming together to have these conversations, which is heartening.”
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U.S. News & World Report
Sanctuary Cities Brace for Trump Crackdown on Immigration
From border to border and coast to coast, hundreds of cities, counties and police departments that have resisted compliance with federal immigration laws are girding for a showdown with the Trump administration over so-called "sanctuary cities."..."There is a lot at stake, but I don't think these cities would be in jeopardy of losing their money because of their sanctuary policies," says Phil Torrey, a lecturer at Harvard Law School who specializes in criminal and immigration law.
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The Harvard Crimson
Then, As Now, Trumpism Dreams of America
An op-ed by Winston Shi `19. It is Nov. 22, 2016, and the newly minted Senior Counselor to Donald Trump is angry. Even if Asians are navigating America fairly, Steve Bannon doesn’t like the fact that there are so many Asian CEOs in Silicon Valley. “A country is more than an economy,” he explained. “We’re a civic society.” Apparently Asians still tear apart the social fabric of this country if we do too well. It is Nov. 22, 2016, and Harvard is about to break for Thanksgiving. And for many people at Harvard, there seems to be awfully little to be thankful for. But let’s just remember that Donald Trump won the election because a lot of white Americans don’t think there’s very much to be thankful for too.
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Smithsonian
The Electoral College Has Been Divisive Since Day One
The Electoral College polarized Americans from its inception. Created by the framers of the Constitution during the 1787 Constitutional Convention in Philadelphia, the College was put forth as a way to give citizens the opportunity to vote in presidential elections, with the added safeguard of a group of knowledgeable electors with final say on who would ultimately lead the country, another limit on the burgeoning nation’s democratic ideals..."[Southerners] wanted slaves to count the same as anyone else, and some northerners thought slaves shouldn’t be counted at all because they were treated as property rather than as people," says author Michael Klarman, a professor at Harvard Law School. In his recently released book, The Framers’ Coup, Klarman discusses how each framer’s interests came into play while creating the document that would one day rule the country. “One of two biggest divisions at the Philadelphia convention was over how slaves would count in purposes of apportioning the House of Representatives," he explains. The issue vexed and divided the founders, presenting what James Madison, a slave owner, called a “difficulty…of a serious nature."
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Harvard Art Museums
Vision & Justice: The Art of Citizenship
A commentary by David E. White, Jr. `17. Sometime around 1903, an unknown artist framed this map from the U.S. Census in 1900 with gray cardstock matting and superimposed a new title, “Extent of the Negro Problem: Social Conditions, United States Census of 1900, Composition and Distribution of Population.” This re-imagination of chief geographer Henry Gannett’s illustration of the population density of black Americans offers a cartographic diagnosis of an endemic disease: poor social conditions in the South, chiefly caused by Jim Crow’s relegation of black Americans to less than full citizenship despite the recent passage of the Thirteenth, Fourteenth, and Fifteenth Amendments during Reconstruction. History proves that en masse migration to the North and West, popularly known as the Great Migration, emerged as the preferred course of treatment for such a debilitating disease.
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The Huffington Post
Sending the Right Message on the ICC
Three African countries – Burundi, South Africa, and The Gambia –recently announced their intentions to withdraw from the Rome Statute, the treaty that established the International Criminal Court (ICC)...What needs to be addressed, instead, is the truth of the matter: African leaders with credible evidence of their involvement in atrocities fear the ICC. They fear that the airing of their criminality will delegitimize them and push them out of power (as Alex Whiting argues, the withdrawals show the power of the rule of law to intimidate). Given that they cannot control the ICC’s independent judicial process or the evidence that will be publicized, they take the fight outside of the courtroom.
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WGBH
Students Urge Administrators To Create ‘Sanctuary Campuses’ For Undocumented Peers
Students at more than 100 colleges and universities throughout the country - including in Massachusetts - staged a walkout on Wednesday, protesting the election of Donald Trump and standing in solidarity with undocumented students who could face deportation under President-elect Trump's immigration policies...“I think there is a balance between not fueling panic because we don’t know specifically what he is going to do, but I think it is important to have an action plan and to start looking at different procedures that can be put into place,” said Philip Torrey, a lecturer with the Harvard Immigration and Refugee Clinical Program and the Supervising Attorney for the Harvard Immigration Project. One step colleges could take, Torrey said, is to prevent federal officials from arresting students on campus by requiring a warrant.
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San Francisco Examiner
Remembering Jack London — and Ringling’s animal-free shows
An op-ed by Delcianna Winders, fellow. On the centennial of San Francisco native son Jack London's death, it’s worth reflecting on his legacy for animals. Most known for his writings about animals in the wild, London also cared deeply about their captive counterparts. Shortly before his death, London, having observed — and been appalled by — circus training methods, wrote from Glen Ellen that “behind ninety-nine of every hundred trained-animal” acts lies “cold-blooded, conscious, deliberate cruelty and torment. … Cruelty, as a fine art, has attained its perfect flower in the trained-animal world.” He urged “all humans” to “inform themselves” of the “inevitable and eternal cruelty” inherent in animal acts, and to walk out during animal performances. “Show the management” that animal acts “are unpopular,” and they will stop offering them, London promised. And he was right.
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Chicago Sun-Times
It’s full circle as Obama awards medal to Newt Minow
President Barack Obama will award Chicago’s legendary Newton Minow a Presidential Medal of Freedom on Tuesday, coming full circle from when Minow met him as a law student spending a summer at his Loop law firm...He is the former Federal Communications Commission chairman who famously called television a “vast wasteland” in a 1961 speech about broadcasting and the public interest. “He found a path that dealt always with mass communications as a way to enhance democracy,” Martha, one of Minow’s three daughters, told me on Monday.
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ThinkProgress
President-elect Trump reportedly asked foreign leader to approve permits for high-rise
Shortly after he became president-elect, at a time when most incoming leaders are greeting well-wishers and pondering their plans for the nation, Donald Trump reportedly tried to leverage his new status against a foreign leader to enrich himself. Argentine President Mauricio Macri was one of many such leaders to call Trump and congratulate him on his electoral college victory over Democratic candidate Hillary Clinton. According to a report in the Argentinian paper La Nacion...Trump asked Macri during this call to “authorize a building he’s constructing in Buenos Aires.”...Harvard Law Professor Laurence Tribe agrees. “If this report is accurate,” Tribe told ThinkProgress, “it’s both alarming and disgraceful and clearly implicates the principles at the core of the Emoluments Clause.” Though Tribe notes that “some scholars have made serious arguments to the effect that this Clause contains a loophole for the highest official in our Government,” Tribe finds those arguments unpersuasive. “In my view, the language of the Clause literally covers financial benefits foreign powers might bestow on the American President, and the anti-corruption and anti-divided-loyalty purposes of the Clause apply even more clearly to the President than to any less august officer.”
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Gant Daily
Rewrite the Constitution? Here’s how a convention could do it
The increasing dominance of Republicans inside statehouses across the nation has spurred talk that a constitutional convention — the very meeting that crafted the US Constitution — could be more than just a Hail Mary thrown to conservatives. Conservative groups and Republican lawmakers have been planning for the possibility for years, although it picked up steam three years ago after a group of state lawmakers met at George Washington’s Mount Vernon estate, just outside Washington...Under the current Constitution, if they could get enough states to approve opening a convention, any changes made in the convention would still have to be approved by at least 38 states — the three-fourths majority of states. But they could also rewrite the rules entirely — like the original framers of the Constitution did in 1787. Mike Klarman, Kirkland and Ellis professor of law at Harvard Law School and a constitutional historian, notes that the delegates to the Constitutional Convention in 1787 had rules they had agreed on and were only supposed to tinker with the existing Articles of Confederation.
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