Fall 2024 - Law in the Headlines
Class Description:
Leora will review the important cases the Supreme Court agreed
to decide this Term and their outcomes. These will include the
two Donald Trump cases raising the issues of ballot access and
presidential immunity, also gun rights, abortion, restrictions
on the power of federal administrative agencies, and a series of
First Amendment free speech cases. An interesting feature of the
Term is that while some of the Court’s decisions reached the
merits of the case, in numbers of high profile cases the Court
either disposed of the case without reaching the merits, or
wrote a limited opinion that remanded the case to the lower
court to resolve many of the key issues in the first instance.
Leora will address the fact that there was an unusual number of
separate opinions written by individual Justices, even in cases
where the Court reached a unanimous result. She will also
discuss cases the Court has already agreed to review in the
2024-2025 Term. Students will have an opportunity to make
suggestions for topics that they would like to have discussed in
upcoming classes.
If you would like to look at any of the material posted on this
website for class, use this link: http://www.lharpaz.com/ContinuingEd/CLL/fall2024lawinheadlines.html
Class 7 - Oct. 24, 2024
Final Rule definition of Frame and Receiver:
“include a partially complete, disassembled, or nonfunctional
frame or receiver, including a frame or receiver parts kit, that
is designed to or may readily be completed, assembled, restored,
or otherwise converted to function as a frame or receiver, i.e.,
to house or provide a structure for the primary energized
component of a handgun, breech blocking or sealing component of
a projectile weapon other than a handgun.”
Final Rule Addition to Definition of Firearm to Include:
“‘weapon parts kit that is designed to or may readily be
completed, assembled, restored, or otherwise converted to expel
a projectile by action of an explosive.’”
Gun Control Act Definition of Firearm:
“(A) any weapon ... which will or is designed to or may readily
be converted to expel a projectile by the action of an
explosive; (B) the frame or receiver of any such weapon; (C) any
firearm muffler or firearm silencer; or (D) any destructive
device.”
Class 6 - Oct. 17, 2024
Second Amendment:
A well regulated Militia, being necessary to the
security of a free State, the right of the people to
keep and bear Arms, shall not be infringed.
Title 18 U.S.C. §§ 922(d)(8)
and (g)(8) concern the prohibition against disposal of
firearms to, or receipt or possession of firearms by,
persons who are subject to domestic violence protection
orders. Section 922(d)(8) prohibits the knowing transfer of
a firearm to a person who is subject to a court order that
restrains the person from harassing, stalking, or
threatening an intimate partner or child of such intimate
partner, and section 922(g)(8) prohibits the receipt or
possession of a firearm or ammunition by such a person.
18 U.S. Code § 922 - Unlawful acts:
(d) It shall be unlawful for any person to sell or
otherwise dispose of any firearm or ammunition to any
person knowing or having reasonable cause to believe
that such person, including as a juvenile—
. . . .
(8) is subject to a court order that restrains such
person from harassing, stalking, or threatening an
intimate partner of such person or child of such
intimate partner or person, or engaging in other conduct
that would place an intimate partner in reasonable fear
of bodily injury to the partner or child, except that
this paragraph shall only apply to a court order that—
(A) was issued after a hearing of which such person
received actual notice, and at which such person had the
opportunity to participate; and
(B)
(i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
(ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury
(a) It shall be unlawful
(1) for any person . . . .
(G)(8) who is subject to a court order that—
(A) was issued after a hearing of which such person
received actual notice, and at which such person had an
opportunity to participate;
(B) restrains such person from harassing, stalking, or
threatening an intimate partner of such person or child
of such intimate partner or person, or engaging in other
conduct that would place an intimate partner in
reasonable fear of bodily injury to the partner or
child; and
(C) (i) includes a finding that such person represents a
credible threat to the physical safety of such intimate
partner or child; or
(ii) by its terms explicitly prohibits the use,
attempted use, or threatened use of physical force
against such intimate partner or child that would
reasonably be expected to cause bodily injury or
(9) who has been convicted in any court of a misdemeanor
crime of domestic violence,
to ship or transport in interstate or foreign commerce,
or possess in or affecting commerce, any firearm or
ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or
foreign commerce.
26 U.S.C. § 5845 - Definitions:
(b) Machinegun
The term “machinegun” means any weapon which shoots, is
designed to shoot, or can be readily restored to shoot,
automatically more than one shot, without manual
reloading, by a single function of the trigger. The term
shall also include the frame or receiver of any such
weapon, any part designed and intended solely and
exclusively, or combination of parts designed and
intended, for use in converting a weapon into a
machinegun, and any combination of parts from which a
machinegun can be assembled if such parts are in the
possession or under the control of a person.
Diagram of Bump Stock: https://www.everytown.org/are-bump-stocks-machine-guns/
Concealed Carry Improvement Act: Of Good Moral
Character:
“No license shall be issued or renewed except for an
applicant . . . of good moral character which . . .
shall mean having the essential character, temperament
and good judgment necessary to use [the weapon entrusted
to the applicant] only in a manner that does not
endanger oneself or others.”
Complete List of Sensitive Places in the New York
Concealed Carry Improvement Act
2. For the purposes of this section, a
sensitive location shall mean:
(A) Any place owned or under the control of
federal, state or local government, for the purpose of
government administration, including courts;
(B) Any location providing health,
behavioral health, or chemical dependance care or
services;
(C) Any place of worship or religious
observation;
(D) Libraries, public playgrounds, public
parks, and zoos;
(E) The location of any program licensed,
regulated, certified, funded, or approved by the
office of children and
family services that provides
services to children, youth, or young
adults, any legally exempt childcare provider; a
childcare program for which a permit to operate
such program has been issued by the Department of
Health and Mental Hygiene pursuant to the Health Code of
the City of New York;
(F) Nursery schools, preschools, and summer
camps;
(G) The location of any program licensed,
regulated, certified, operated, or funded by the Office
for People With Developmental Disabilities;
(H) The location of any program licensed,
regulated, certified, operated, or funded by Office of
Addiction Services and Supports;
(I) The location of any program licensed,
regulated, certified, operated, or funded by the Office
of Mental Health;
(J) The location of any program licensed,
regulated, certified, operated, or funded by the Office
of Temporary and Disability Assistance;
(K) Homeless shelters, runaway homeless
youth shelters, family shelters, shelters for adults,
domestic violence shelters, and emergency shelters, and
residential programs for victims of domestic violence;
(L) Residential settings licensed,
certified, regulated, funded, or operated by the
Department of Health;
(M) In or upon any building or grounds,
owned or leased, of any educational institutions,
colleges and universities, licensed private career
schools, school districts, public schools, private
schools licensed under article one hundred one of the
education law, charter schools, non-public schools,
board of cooperative educational services, special act
schools, preschool special education programs, private
residential or non-residential schools for the education
of students with disabilities, and any
state-operated or state-supported schools;
(N) Any place, conveyance, or vehicle used
for public transportation or public transit, subway
cars, train cars, buses, ferries, railroad, omnibus,
marine or aviation transportation; or any facility used
for or in connection with service in the transportation
of passengers, airports, train stations, subway and rail
stations, and bus terminals;
(O) Any establishment issued a
license for on-premise consumption pursuant to article
four, four-a, five, or six of the alcoholic beverage
control law where alcohol is consumed and any
establishment licensed under article four of the
cannabis law for on-premise consumption;
(P) Any place used for the performance, art
entertainment, gaming, or sporting events such as
theaters, stadiums, racetracks, museums, amusement
parks, performance venues, concerts, exhibits,
conference centers, banquet halls, and gaming facilities
and video lottery terminal facilities as licensed by the
gaming commission;
(Q) Any location being used as a polling
place;
(R) Any public sidewalk or other public
area restricted from general public access for a limited
time or special event that has been issued a permit for
such time or event by a governmental entity, or subject
to specific, heightened law enforcement
protection, or has otherwise had such access restricted
by a governmental entity, provided such location
is identified as such by clear and conspicuous signage;
(S) Any gathering of individuals to
collectively express their constitutional rights to
protest or assemble;
(T) The area commonly known as
Times Square, as such area is determined and identified
by the City of New York; provided such area
shall be clearly and conspicuously identified with
signage.
Class 5 - Oct. 10, 2024
Title 18 U.S.C. §§ 922(d)(8) and (g)(8) concern the prohibition
against disposal of firearms to, or receipt or possession of
firearms by, persons who are subject to domestic violence
protection orders. Section 922(d)(8) prohibits the knowing
transfer of a firearm to a person who is subject to a court
order that restrains the person from harassing, stalking, or
threatening an intimate partner or child of such intimate
partner, and section 922(g)(8) prohibits the receipt or
possession of a firearm or ammunition by such a person.
Class 4 - Oct. 3, 2024
Jack Smith's redacted brief (Government's Motion for Immunity
Determinations):
Section I provides a detailed statement of the case that the
Government intends to prove at trial. This includes the conduct
alleged in the superseding indictment, as well as other
categories of evidence that the Government intends to present in
its case-in-chief. This detailed statement reflects the Supreme
Court’s ruling that presidential immunity contains an
evidentiary component, id., which should be “addressed at the
outset of a proceeding.”
Section II sets forth the legal principles governing claims of
presidential immunity. It explains that, for each category of
conduct that the Supreme Court has not yet addressed, this Court
should first determine whether it was official or unofficial by
analyzing the relevant “content, form, and context” to determine
whether the defendant was acting in his official capacity or
instead “in his capacity as a candidate for re-election.” Where
the defendant was acting “as office-seeker, not office-holder,”
no immunity attaches. For any conduct deemed official, the Court
should next determine whether the presumption of immunity is
rebutted, which requires the Government to show that “applying a
criminal prohibition to that act would pose no ‘dangers of
intrusion on the authority and functions of the Executive
Branch.’”
Section III then applies those legal principles to the
defendant’s conduct and establishes that nothing the Government
intends to present to the jury is protected by presidential
immunity. Although the defendant’s discussions with the Vice
President about “their official responsibilities” qualify as
official, the Government rebuts the presumption of immunity. And
all of the defendant’s remaining conduct was unofficial: as
content, form, and context show, the defendant was acting in his
capacity as a candidate for reelection, not in his capacity as
President. In the alternative, if any of this conduct were
deemed official, the Government could rebut the presumption of
immunity.
Finally, Section IV explains the relief sought by the Government
and specifies the findings the Court should make in a single
order—namely, that the defendant’s conduct set forth in Section
I is not immunized, and that as a result, the defendant must
stand trial on the superseding indictment and the Government is
not prohibited at trial from using evidence of the conduct
described in Section I.
Class 3 - Sept. 26, 2024
Sept. 24, 2024 Order on Jack Smith's Oversize Brief - https://storage.courtlistener.com/recap/gov.uscourts.dcd.258148/gov.uscourts.dcd.258148.243.0.pdf
Aug. 11, 2023 Protective Order: https://storage.courtlistener.com/recap/gov.uscourts.dcd.258149/gov.uscourts.dcd.258149.28.0_5.pdf
18 U.S.C. §1512(c):
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document,
or other object, or attempts to do so, with the intent to impair
the object’s integrity or availability for use in an official
proceeding; or
(2) otherwise obstructs, influences, or impedes any official
proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20
years, or both.
Art. I, Sec. 8, Clause 1 (Taxing and Spending Power) - Section
8.
The Congress shall have power to lay and collect taxes, duties,
imposts and excises, to pay the debts and provide for the common
defense and general welfare of the United States; but all
duties, imposts and excises shall be uniform throughout the
United States;
Art. VI, Clause 2 (Supremacy Clause)
This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or which
shall be made, under the authority of the United States, shall
be the supreme law of the land; and the judges in every state
shall be bound thereby, anything in the Constitution or laws of
any State to the contrary notwithstanding.
Class 2 - Sept. 19, 2024
III, Sec.
1:
The judicial power of the United States, shall be
vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain
and establish. The judges, both of the supreme and
inferior courts, shall hold their offices during good
behaviour, and shall, at stated times, receive for
their services, a compensation, which shall not be
diminished during their continuance in office.
Trump v. United States
Justice Thomas, concurring opinion:
The Appointments ClauseArt. II, §2, cl. 2.:
“[The President] shall nominate, and by and with the
Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls,
Judges of the Supreme Court, and all other Officers of
the United States, whose Appointments are not herein
otherwise provided for, and which shall be established
by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law,
or in the Heads of Department.”
Justice Sotomayor, disenting opinion:
1. “Today’s decision to grant former Presidents
criminal immunity reshapes the institution of the
Presidency. It makes a mockery of the principle,
foundational to our Constitution and system of
Government, that no man is above the law. Relying on
little more than its own misguided wisdom about the
need for ‘bold and unhesitating action’ by the
President, the Court gives former President Trump all
the immunity he asked for and more. Because our
Constitution does not shield a former President from
answering for criminal and treasonous acts, I
dissent.”
2. “The Court now confronts a question it has never
had to answer in the Nation’s history: Whether a
former President enjoys immunity from federal criminal
prosecution. The majority thinks he should, and so it
invents an atextual, ahistorical, and unjustifiable
immunity that puts the President above the law. The
majority makes three moves that, in effect, completely
insulate Presidents from criminal liability. First,
the majority creates absolute immunity for the
President’s exercise of ‘core constitutional powers.’
This holding is unnecessary on the facts of the
indictment, and the majority’s attempt to apply it to
the facts expands the concept of core powers beyond
any recognizable bounds. In any event, it is quickly
eclipsed by the second move, which is to create
expansive immunity for all ‘official act[s].’ Whether
described as presumptive or absolute, under the
majority’s rule, a President’s use of any official
power for any purpose, even the most corrupt, is
immune from prosecution. . . . Finally, the majority
declares that evidence concerning acts for which the
President is immune can play no role in any criminal
prosecution against him. That holding, which will
prevent the Government from using a President’s
official acts to prove knowledge or intent in
prosecuting private offenses, is nonsensical.”
18 U.S. Code § 1512(c):
Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record,
document, or other object, or attempts to do so, with
the intent to impair the object’s integrity or
availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any
official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more
than 20 years, or both.
Class 1 - Sept. 12, 2024
14th Amendment, Section 3:
No person shall be a Senator or Representative
in Congress, or elector of President and
Vice-President, or hold any office, civil or
military, under the United States, or under any
State, who, having previously taken an oath, as
a member of Congress, or as an officer of the
United States, or as a member of any State
legislature, or as an executive or judicial
officer of any State, to support the
Constitution of the United States, shall have
engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of
two-thirds of each House, remove such
disability.
14th Amendment, Section 5:
The Congress shall have power to enforce, by
appropriate legislation, the provisions of this
article.
Trump
v. Anderson
Per Curiam
Opinion:
1. “[F]ederal
officers ‘owe
their
existence
&
functions to
the united
voice of the
whole, not of
a portion, of
the people,’
[and
therefore]
powers over
their election
and
qualifications
must be
specifically
‘delegated to,
rather than
reserved by,
the States.’”
2. “The
‘patchwork’
that would
likely result
from state
enforcement
would ‘sever
the direct
link that the
Framers found
so critical
between the
National
Government and
the people of
the United
States’ as a
whole. But in
a presidential
election ‘the
impact of the
votes cast in
each State is
affected by
the votes
cast’ -- or,
in this case,
the votes not
allowed to be
cast -- ‘for
the various
candidates in
other
States.’” . .
. “The
disruption
would be all
the more acute
-- and could
nullify the
votes of
millions and
change the
election
result -- if
Section 3
enforcement
were attempted
after the
Nation has
voted. Nothing
in the
Constitution
requires that
we endure such
chaos.”
Sotomayor,
Kagan and
Jackson,
concurring in
the judgment:
Today, the
majority goes
beyond the
necessities of
this case to
limit how
Section 3 can
bar an
oathbreaking
insurrectionist
from becoming
President.
Although we
agree that
Colorado
cannot enforce
Section 3, we
protest the
majority’s
effort to use
this case to
define the
limits of
federal
enforcement of
that
provision.
Because we
would decide
only the issue
before us, we
concur only in
the judgment.
Trump v.
United States
Justice
Thomas,
concurring
opinion:
The
Appointments
Clause,