The Roundtable
Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
 By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. The recent consideration by the Senate of Supreme Court nominee Neil Gorsuch and other important priorities by the new administration has brought to the fore a renewed debate about the Senate filibuster. The procedure was originally conceived as an opportunity for the upper chamber and its members to entertain open and unlimited debate on a particular bill or nominee to convince colleagues of the validity of a particular view. Over the years, it has become a parliamentary obstructive device used by minorities in the Senate to prevent votes and ultimately decisions on specific business before the chamber. [1] The filibuster was not part of the original 1789 Senate rules but became so shortly thereafter in 1806. Former Vice President Aaron Burr suggested eliminating limits on debate as would be worthy of a “great deliberative body” and the Senate obliged. [2] The dilatory process was used sparingly until a Democratic minority tried to block a banking bill in 1841. The sponsors threatened but failed to eliminate the filibuster. In 1917, a Republican minority blocked a bill supported by President Wilson to arm merchant marine vessels during WWI. The Senate, under popular pressure, created rule 22, the cloture motion, which allows ending debates if 2/3 of Senators present and voting concur. [3] The 1960’s witnessed a number of highly charged filibusters by Senate Democrats, including attempts to block the 1964 Civil Rights Act. In 1975, the Senate lowered cloture requirements to 3/5 of Senate membership. [4,5]
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 By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. The November 8th presidential election touched off an intense debate about the continued propriety of maintaining the Electoral College as the means of electing presidents. This was not a new controversy. There have been four other times in our history that a candidate won the popular vote and lost the election: Andrew Jackson in 1824, Samuel Tilden in 1876, Grover Cleveland in 1888 and Al Gore in 2000. However, the margin of popular vote loss by President Trump, at 2.1%, seems to have strengthened the calls for adopting a direct popular vote. [1] Article II, Section 1 of the U.S. Constitution establishes the Electoral College, a process for selecting presidential electors, who in turn choose the president and vice president of the United States. Each state is assigned a number of electors equal to its delegation to the House of Representatives and Senate combined. The current number of electors is 538, of which a majority of at least 270 is required to elect a president. [2] The Constitution empowers the various state legislatures to determine the manner of selecting their electors. Throughout the 18th and 19th century, many state legislatures appointed their representatives to the Electoral College without a direct popular election of the electors. Today, all 50 states and the District of Columbia choose their electors by popular vote. [3]  By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. As soon as November 8th ushered in a new president-elect, speculations began as to who Donald Trump would appoint to the current vacancy on the Supreme Court left by the passing of Justice Antonin Scalia in February 2016. The judicial position remains unfilled because the United States Senate had not acted on President Obama’s nomination of Merrick Garland [1]. As a candidate, Trump had taken the unusual step of publicizing a list of about twenty individuals including judges that he felt might be suitable for the position. Unsurprisingly, they all appear to be ideologically conservative. Filling the current vacancy with a conservative justice would maintain the right-leaning majority on the court that has existed since 1971. However, the opportunity to appoint two, or even three, more justices over the next four to eight years of a Trump administration could be a true game changer. Due to age, many Justices may be reaching the end of their tenure on the Court, as Justice Ruth Bader Ginsburg is 83, Justice Anthony Kennedy is 80 and Justice Stephen Breyer is 78. The first two are reliably liberal and Mr. Kennedy is the swing vote, so their replacement could substantially hurt liberals.  By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. On June 9, California joined Oregon, Washington, Vermont, and Montana in legalizing Aid in Dying (AID). The practice, formerly known as physician assisted suicide, allows mentally competent, terminally ill adult patients expected to live less than 6 months to have legal access to a lethal dose of medication prescribed by a physician. AID is now available to the 50 million residents of the 5 states that have legalized the procedure. Oregon was the first state to legalize AID by ballot initiative in 1994 and the law cleared all legal hurdles and went into effect in 1998. This was followed by a 2008 ballot initiative in Washington, and legislation in Vermont and California in 2013 and 2015, respectively. Montana has a de facto legalization of AID as its supreme court did not find any policy in the state prohibiting the practice. [1]  By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. On August 18, The Department of Justice (DOJ) directed the Bureau of Prisons (BOP) to curtail, or not renew, contracts with private prisons that now provide incarceration services to federal inmates. [1] This was based on the Inspector General Report that described the private facilities as substandard, unsafe, and financially unbeneficial to the government. [2] Private, or for-profit, prisons are confinement facilities operated by a third party contracted for that purpose by state or federal government agencies. This could include an existing facility built by the government and operated privately, or a prison constructed or owned by a private company. The payments made by the government to the private company are usually daily or monthly rates based on prisoner headcount.  By Gabriel Maliha
Gabriel Maliha is a senior at the University of Pennsylvania studying criminology. On June 20th, the United States Supreme Court reversed the Utah Supreme Court in Utah v. Strieff, a case that provided a significant clarification of the exclusionary rule, which prohibits illegally obtained evidence from being admitted into the court. A police detective stopped Edward Strieff when he was seen exiting a suspected “drug house” in order to inquire about activities at the residence. A routine check on the defendant’s name turned up an outstanding arrest warrant for traffic violation, and the detective arrested and searched Strieff and found methamphetamines and drug paraphernalia. While the state admitted that the original stop was illegal, the trial court denied a motion to suppress the drug evidence used to convict the defendant, a move that the state appeals court affirmed. However, the Utah Supreme Court reversed Strieff’s conviction, based on the illegal manner in which the evidence had been obtained. [1] [2] [3] The Supreme Court reflected on three points of inflection in Utah v. Strieff: the police stop, the arrest, and the search. The state had already stipulated that the stop was illegal and that the detective had no legal ground to stop Strieff. But the majority of the court indicated that the detective had an obligation to arrest Strieff once he discovered an outstanding warrant. The fact that the warrant was for a minor violation did not diminish that responsibility. The court also maintained that a search incident to an arrest is unquestionably legal, for the purpose of ensuring officer safety and preventing escape and destruction of evidence, as well as consistent with multiple court precedents. [4] [5].  By Gabriel Maliha
Gabriel Maliha is a rising senior at the University of Pennsylvania studying criminology. The vacancy left on the Supreme Court by the passing of Justice Antonin Scalia touched off a fierce battle between President Obama and the Republican-controlled Senate. The President asserted that he has the responsibility, and indeed the obligation, to nominate a replacement. The Senate leadership has maintained that the chamber is under no obligation to hold hearings or vote on the President’s nominee. A close reading of the Constitution reveals that both the President and the Senate leadership have support for their assertions and the two positions are not incompatible. Article II, Section II, Clause II of the United States Constitution states that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint…judges of the Supreme Court.” [2] The clause makes abundantly clear that the powers to nominate and to appoint are separate. The former is vested exclusively with the president, while the latter is conditional on senate approval (at least for the specified high offices.) Further, the use of “shall” in the eighteenth century conveyed a sense of obligation or command on the president’s part to nominate. On the other hand, the text is silent on the urgency or obligation of the senate to provide its advice and consent. More than two centuries of constitutional practice seem to confirm a plenary power for the president to nominate and a “complete and final discretion” for the senate to confirm. [3]  By Gabriel Maliha
Gabriel Maliha is a junior at the University of Pennsylvania studying criminology. In 2014, a little less than 2 years after Colorado legalized the recreational use of Marijuana, the Rocky Mountain High Intensity Drug Trafficking Area (RMHIDTA), an arm of the National Office of Drug Control Policy, released its report on the impact of Marijuana legalization in Colorado. [1] It is based on information obtained from dozens of law enforcement, healthcare and other agencies. [2] Throughout this extensive report, some key statistics jump out. For example, compared to 2013 figures,, the 2014 RMHIDTA report states a 32 percent increase in marijuana-related traffic deaths, a 45 percent increase in driving under the influence (DUI) with positive THC (the chemical that gives marijuana its high) results, a 29 percent increase in marijuana-related emergency room visits, 38 percent increase in hospitalizations, and 72 percent increase in marijuana-related exposures. Other remarkable results include a 40 percent increase in school expulsions from school years 2008-2009 to 2013-2014, 30 injuries related to explosions in THC extraction labs in 2014 alone and a 12 percent increase in crime in Denver between 2012 and 2014. Further, there was a massive increase in interdiction of Colorado marijuana destined for other states and foreign countries using all routes including the U.S. postal service. In many ways, Colorado is the proverbial “canary in the coal mine” of the marijuana legalization effort. It was the first state to legalize adult recreational marijuana use, it had legalized “medical” use since 2000, and it imposes only a sales tax on marijuana while many other jurisdictions tax the substance at all levels. Advocates of legalization contended that it would eliminate the black market, relieve prison overcrowding by minimizing arrests for sale and possession, and generate tax revenue for the state. Through September 2015, the state raised $63.4 million in taxes of which it spent $22 million on law enforcement (training officers to recognize impaired drivers and other functions), $29.9 million on schools (educating students about marijuana, additional school health nurses) and $6.6 million on local government [3].  By Gabriel Maliha
Gabriel Maliha is a junior at the University of Pennsylvania studying criminology. In November 2014, President Obama announced a new immigration reform program: Deferred Action for Parents of Americans (DAPA). The policy would grant “lawful presence” (and right to work) for three years to unauthorized immigrants who are the parents of U.S. Citizens or permanent residents and have been in the country since at least January 2010. [1] Additionally, for “lawful presence” to be granted, the Department of Homeland Security (DHS) has to deem these immigrants not be a threat to national security. Texas, along with 25 other states, promptly challenged the new policy on three grounds. First, the policy change is “substantive and non-discretionary” and violated the Notice-and-Comment Rulemaking provisions of the Administrative Procedure Act (APA). Second, the policy violated the provisions of the Immigration and Nationality Act (INA). Third, in enacting the new program, the president violated the “Take Care Clause” of the United States Constitution. This clause requires the president to “take care that the laws be faithfully executed.”[2] By violating the APA and the INA, these states argued that these violations are causing the President to simultaneously violate the “Take Care Clause.” The states also asserted “standing” (a party that would suffer a legal injury as a result of the policy) under Article III of the Constitution based on the economic costs of increased expenditures on law enforcement, health and education due to DAPA. The states contended that the “lawful presence” status, under the new policy, would entitle a significant number of individuals to new benefits subsidized by the states, thus causing the economic expenditures of the states to increase. [3] |
