Defend the Constitution and Rule of Law, Oppose the President's Emergency Declaration for Border Wall

I joined the U.S. Marines Corps and became an attorney to defend and protect the Constitution. There's never been a question in my mind that the principle of the rule of law over the rule of man is worth fighting for and critically important to the continued success of our nation. No one can ever be above the law - not even a president. When I served for two decades as a Westchester County Legislator, I believe my colleagues on both sides of the aisle respected my commitment to always following the County Charter and other laws.

I now watch our current politics with disgust as Democrats and Republicans regularly promote the party line over the rule of law. This is perfectly illustrated by the failure of Republicans in Congress to oppose President Trump's actions on Friday. He signed the budget continuation to avoid another federal shutdown, but immediately followed that with the signing of a "Declaration for a National Emergency" to build a wall along our southern border with funds never approved by Congress. I'm not addressing the merits of the border wall here, but I do believe this emergency declaration will be blocked in the federal courts.

It's well-established that the Constitution requires all spending bills to originate in the House of Representatives. The spending bill compromise last week only provided $1.375 billion for another 55 miles of the border wall. Therefore, the President's appropriation of $8.1 billion for said wall in the emergency declaration is unconstitutional because it violates the constitutionally mandated separation of powers.

President Trump has taken an unconstitutional and illegal act to use the military to seize land and build a wall without proper congressional appropriation. This must be recognized as a historically bad and dangerous precedent for future disputes between ANY President and Congress. Remember that in the Presidential Oath, President Trump swore that he “will to the best of his ability, preserve, protect and defend the Constitution of the United States,” and he has certainly violated that commitment here.

For an excellent summary of legal problems with the emergency declaration read, Prof. Ilya Somin's posts, The Perils of Trying to Use Emergency Powers to Build Trump's Wall, and Donald Trump can call a 'national emergency,' but that doesn't mean he can build the wall where he points out the requirement for Congressional approval before all this land can be taken by eminent domain:

"Even if the president can use emergency powers to get funds, that does not mean he can seize property by eminent domain. The Supreme Court has long held that the use of eminent domain must be expressly authorized by law. No emergency law expressly permit the use of eminent domain for border walls not otherwise authorized by Congress.

Building Trump’s wall requires using eminent domain on a massive scale. A third of the needed land is owned by the federal government. The rest would have to be taken from private owners, Native American tribes and state governments, many of whom are unlikely to sell voluntarily.

The result would be one of the largest federal condemnations in modern U.S. history. In Texas alone, there are almost 5,000 privately owned lots in the likely path of the wall. Securing the land and building on it is likely to be costly and time-consuming. Construction and legal battles over compensation can drag on for years."

I consider myself to be a constitutional conservative, so I respect and support the separation of powers set forth in the Constitution, and if you consider yourself a constitutional conservative, you must oppose the President's emergency declaration.

Let's be clear, had a Democrat president signed a similar unconstitutional emergency declaration, every Republican in Congress would be criticizing it with every fiber in their bodies. If they don't oppose the Trump decalarion, they have no credibility left.

Republicans supporting Trump's emergency declaration don't understand (or are intentionally ignoring) how much it violates decades of core Republican legal and constitutional principles. Most importantly, if I'm incorrect and the Trump emergency declaration somehow survives legal challenges, then mark my word, the same Republican elected officials supporting Trump's emergency declaration now will be screaming from the mountain tops when a future Democrat president uses this bad precedent for other unconstitutional actions they disagree with by using emergency powers, and a perfect example could be the Green New Deal.

Every American should oppose this emergency declaration on constitutional grounds, and that especially includes every Republican in Congress who claims to be a constitutional conservative.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Elected Officials Should Not Be Blocking Twitter Followers

I believe that reporter Joe Mahoney is correct here:

https://twitter.com/TipMahoney/status/1095728525263421445

A state legislator would violate the First Amendment by blocking the media or constituents from his or her Twitter feed. Joe Mahoney also had a link on Twitter to a post on the ACLU website - Court Rules Public Officials Can't Block Critics on Facebook - which explains why State Senator Parker's action is unconstitutional. The President faced the same issue on Twitter and lost in federal court - Judge Rules Trump Can’t Block People on Twitter.

No one is above the law, especially elected officials. When this State Senator used Twitter to discuss state issues, his Twitter page became a public forum where viewpoint discrimination is not allowed. One benefit of social media is we can watch our representatives more closely, and we can't hold them accountable if they can simply block us from seeing what they are doing.

I hope the ACLU demonstrates a commitment to its roots as a free speech advocate and brings an action against State Senator Parker as soon as possible.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Be Safe on Internet

This post contains some excellent advice on how to stay safe on the internet:

https://securitycheckli.st/

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Professor Somin's Op-Ed on Border Wall

I'm a fan of George Mason Law Professor Ilya Somin. He writes regularly for one of my favorite places on the internet - The Volokh Conspiracy - and his book, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, is terrific.

Unfortunately, too much of the political debate over President Trump's proposed border wall is poisoned by knee-jerk, politically obsessed partisans. However, if you wish to review a more thoughtful perspective on this issue, check out this link from a January 19, 2019 Washington Post op-ed by Professor Somin:

To build the wall, Trump might make thousands of Americans suffer

I wish all Americans could read this op-ed to benefit from a more balanced and independent analysis of the border wall issue.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Conference at Emory on Free Speech and Academic Freedom

We should all be thankful that thoughtful and concerned people are still fighting to protect and advance free speech and academic freedom - see information on conference at Emory next month -  March 21 to March 23:
https://reason.com/volokh/2019/02/04/conference-at-emory-321-323-on-academic

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Expiration date on a winning bet or lottery ticket?

I bet you always wondered if there was an expiration date on a winning bet or lottery ticket?

Well, this article from FindLaw's Blog at the following link provides you with a nice explanation of the important question:

"When Is It Too Late to Cash a Winning Bet or Lottery Ticket?" 

https://blogs.findlaw.com/law_and_life/2019/02/when-is-it-too-late-to-cash-a-winning-bet-or-lottery-ticket.html

Best of luck - I hope this post saves you a lot of money someday.

Jim Maisano

914-636-1621

JMaisanoEsq@gmail.com

Busy Summer at Law Office of James Maisano, Esq.

Outside of a few vacation days for family trips and events, it was a very busy summer at my law firm, but Labor Day has come and gone, and it is time for a new legal blog post.

Before starting this firm, I worked at two large law firms in Manhattan for about eight years, and while I did have my own clients, I also worked for clients of the firm. Being a solo practitioner is different in that you must not only provide quality and affordable legal services to your clients, you must also attract clients through advertising and promotion of the firm. I have utilized social media, Facebook, Twitter, LinkedIn, Google+ and Tumblr - along with this blog and my website (www.JamesMaisanoEsq.com), as integral parts of promoting the firm, and I am pleased to report it has been successful to the point that the firm is doing well in its second year, which is why it has been so busy.

So what kinds of legal work have clients brought to my firm recently - here is a brief summary:

• Since I began practicing law in 1992, the majority of my practice has involved commercial litigation. This includes helping businesses address contract disputes and collecting money owed by debtors. I am currently working on about ten such civil actions, which have been brought either in lower courts or the Supreme Court of the State of New York, and I have been successful for several clients thus far in recovering funds.
• I was a solo practitioner from 1996 to 2002 and during that time I developed a significant real estate closing practice. The housing market was strong in those years and I represented hundreds of clients for closings. With the struggling economy and lack of home sales, it is much harder for attorneys to attract this work, but I am happy to report that I worked on three closings this summer.
• The fastest growing part of my practice is wills, estates and probate actions in Surrogate's Court. This summer I helped about fifteen clients by drafting wills or guiding executors through the probate process.
• Lastly, solo practitioners must be resourceful, and I also helped clients this summer with other legal matters such as setting up a LLC or corporation, legal name change, trademark protection, and traffic violations.

Thanks for following my efforts to build this law firm, and I am very thankful for the kind support and nice comments I have received on social media or by email. If I can ever be helpful to you in the types of legal matters discussed above, or for any other legal matter, please do not hesitate to contact me.

PS:  I am now associated with an immigration attorney, and am available to help you with these matters too.

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

How do you get on the ballot in New York State?

As both an attorney and elected official, people often ask me about the process to get on the ballot to run for public office in New York State. Most people seem to think that a candidate gets endorsed at a political convention, but that is only partly true. While candidates do seek the endorsement of political parties at local or county conventions, that endorsement only means that the district leaders for that political party will support you and help you get on the ballot (which is very important).

However, unless you are running for state-wide office (senator, governor, attorney general or comptroller, who are nominated at state conventions), you must obtain signatures on “designating petitions.” This is the requirement for congress, state legislature, county legislature or local city and town elections (but not villages or supreme court). We are in the final week to collect signatures on designating petitions for New York’s five established parties — Democrat, Republican, Conservative, Working Families and Independence. As a matter of fact, I walked my neighborhood this past Sunday night and collected signatures.

What do I mean by designating petitions? New York State Election Law sets forth the required procedures to collect the signatures on the designating petitions and to get on the ballot — see NYS Election Law Sections 6 – 118, 120, 122, 130, 132, 134, 136, 144 & 146. The Election Law requires candidates to obtain signatures of 5% of the registered voters in the district from the political party whose line they seek. Most candidates try to get about 10% to avoid any legal challenges. Therefore, since the first week of June, volunteers for candidates of all political parties have been ringing door bells and asking voters to sign designating petitions that will get candidates on the ballot, and this Thursday is the deadline to file these petitions with the Board of Elections.

For example, last year I needed about 375 signatures to run for re-election to the Westchester County Board of Legislators on the Republican line, and we were pleased to file more than 700 signatures.

If you are a registered voter in a political party and meet the 5% signature requirement from members of that party, you are on the ballot. If more that one candidate files petitions for a particular seat, they will face-off in a primary in mid-September. For candidates without primaries, they go straight to the November election.

What about seeking the lines of parties for which you are not a member? If you wish to run with a party line besides your own, you must meet the 5% signature requirement, as well as get permission from that party to run on its line.

And if you think your opponent’s designating petitions do not contain enough proper signatures to meet the required number, you can try to knock out those petitions with a legal challenge.

Every candidate across party lines can agree on one thing –- they are incredibly thankful for the great volunteers that have been carrying these designating petitions over the past six weeks. Many dedicated people have worked diligently to get candidates on the ballot for this November — so that voters have a real choice on Election Day. I have been carrying petitions for about twenty years now and am happy to report that most people are friendly in the doorway (but yes, there are a few cretins who are rude or too “busy” to participate in democracy). Thanks so much to all the wonderful volunteers carrying the petitions and to the helpful voters who signed them — you all play an important role in our democratic electoral process. Best of luck to all the candidates this year (especially the ones I am supporting)!

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

Quick Review of Key Supreme Court Decisions from Past Week

On this blog and my firm’s Facebook page (www.facebook.com/JamesMaisanoEsq), I have been focusing on a few important U.S. Supreme Court decisions that were being closely watched by the legal and political worlds.  Over the past week, the Supreme Court has released three of these decisions:

Arizona v. U.S.

The Court confirmed that “the Government of the United States has broad, undoubted power over the subject of immigration and the regulation of aliens . . . the federal power to determine immigration policy is well settled.”  However, the Court did open the door for states to assist the federal government in the enforcement of immigration laws.

A unanimous Court (8-0 with Justice Kagan not taking part) upheld Section 2(B) of the Arizona law requiring police officers to check the immigration status of anyone arrested or detained and allowing them to stop and arrest a person if the officers have “reasonable suspicion” that the person is an illegal immigrant (known as “show me your papers”).  The Court stated there was no showing that this section conflicted with federal immigration law.

The public debate over Section 2(B) being used for racial profiling in violation of the Equal Protection Clause was not addressed by the Court here, and this issue appears to be reserved for future review, although the Court did state and accept that the Arizona law specifically bars its use in racial profiling.

On split decisions, the Court rejected other sections of the Arizona law:

• making it a crime for unauthorized immigrants to fail to carry registration papers and other government identification (6-2).
• prohibiting those not authorized for employment in the US to seek or perform work (5-3).
• authorizing police to arrest illegal immigrants without a warrant where “probable cause” exists that they committed any public offense (5-3).

There was some interesting debate around the internet and media among Supreme Court observers on the rather strong and somewhat politically charged dissent of Justice Scalia, who argued that the entire law should be upheld, and it makes for some interesting reading.  Here is the link to Justice Kennedy’s majority decision and dissents:
http://www.supremecourt.gov/opinions/11pdf/11-182b5e1.pdf

FCC v. Fox:

A unanimous Supreme Court (8-0 with Justice Sotomayor not taking part) sided with Fox over the FCC in holding, “The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.  Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.”

This is a narrow decision on due process grounds.  The Court avoided the overarching constitutional challenge to such FCC regulations on 1st Amendment grounds and held that the subject regulations (addressing nudity and profanity) were vague because the FCC failed to give broadcasters fair notice of the changes to its regulations and implementation.  Here is a link to Justice Kennedy’s decision:

http://www.supremecourt.gov/opinions/11pdf/10-1293f3e5.pdf

Dorsey v. U.S.  & Hill v. U.S.

In this narrow 5-4 ruling in a case addressing the evaluation of legislative history, the Court held that the federal Fair Sentencing Act, which reduced the disparities in the length of sentences for cocaine offenses, applies to defendants whose cocaine offenses occurred before the law went into effect, but were sentenced after the law’s effective date.

Here is a link to Justice Breyer’s decision and dissent:

http://www2.bloomberglaw.com/public/document/Dorsey_v_United_States_No_Nos_115683_115721_2012_BL_153786_US_Jun

This Thursday morning we will have the opportunity to review the final two cases we have been waiting for, which address Obamacare and its individual mandate and potential free speech issues with a federal law prohibiting lying about your military record.  I will be posting again soon about these two interesting cases.

 

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621

 

U.S. Supreme Court Decision: Reichle v. Howards

Last week, I highlighted the six interesting cases to be decided prior to the U.S. Supreme Court ending its session over the next month.  One of these decisions, Reichle v. Howards, was released this past Monday, June 4.

Upon a quick review of the media coverage, the decision is viewed as a narrow ruling.  The petitioners are two Secret Service agents on assignment protecting Vice President Cheney, and they arrested the respondent following an encounter with the Vice President relating to his objections to the war in Iraq.  Based on physical contact with the Vice President, the respondent was arrested. The respondent then brought a First Amendment claim for retaliatory arrest against the petitioners, and the main question presented was whether the agents had qualified and absolute immunity from said action.

On the excellent website http://www.scotusblog.com/, Lyle Denniston reviewed the decision and stated:

“Sparing two Secret Service agents the legal chore of defending themselves at a civil trial, the Supreme Court on Monday chose to leave unanswered the power of police or federal agents to arrest a political protester whose views the officers find objectionable.  Instead, the Court ruled only that these two agents were legally immune because they had no warning in 2006 that they might face a lawsuit if they retaliated by arresting an individual who approached then-Vice President Dick Cheney and complained about the war in Iraq.”

Here is the link to Denniston’s full review of the decision:  http://www.scotusblog.com/2012/06/opinion-recap-narrow-ruling-on-arrests/

The New York Times also did a detailed review of the case, which can be found at:  http://www.nytimes.com/2012/06/05/us/secret-service-agents-cant-be-sued-justices-rule.html?_r=2

I look forward to providing updates on the remaining five Supreme Court cases as they are released.

 

James Maisano, Esq.

Jim@JamesMaisanoEsq.com

www.JamesMaisanoEsq.com

(914) 636-1621