Earlier this week, six men were arrested and charged federally with conspiracy to kidnap Gov. Whitmer. Seven other men known to be members or affiliates of the Wolverine Watchmen were charged under Michigan’s antiterrorism act. Two founding members of that group face several counts, including threat of terrorism and gang membership, while the other five face multiple counts, including providing material support for terrorist acts. “Sedition cases are very difficult to prove,” said Peter Henning, a former federal prosecutor and now a law professor at Wayne State University Law School. “Charging the defendants with kidnapping is a much easier road to go down.”

Distinguished Professor of Law Robert Sedler talked with WJR’s Guy Gordon about the 25th Amendment and how it pertains to the President of the United States. Sedler said that under the 25th Amendment, sec. 4, the Vice-President and a majority of the cabinet, or "of such other body as Congress may by law provide," transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives, their written declaration that the President is unable to discharge the powers and duties of his office." At that point, the Vice-President becomes the Acting President. Under this provision, Congress has the power to substitute a commission for the majority of the cabinet. Sedler said that “while Congress has the power to do so, it should not. The Constitution now covers the situation. From a constitutional standpoint (leave politics aside), we must assume that the Vice-President and the cabinet members will act in good faith, and that if such a situation would arise, they would take the necessary action to transfer Presidential power.”

The federal criminal case against six of 13 suspects accused of plotting to abduct and possibly harm Michigan Gov. Gretchen Whitmer contains a legal nuance that former officials from the U.S. Department of Justice say make conviction more likely. Peter Henning, a former federal prosecutor who teaches law at Wayne State University, agreed. "It's much easier to prove a kidnapping charge, so much easier." He cited the high-profile Hutaree militia case from 2010, when nine people from the so-called "Christian Patriot" movement were arrested after raids in Michigan, Ohio and Indiana. They faced federal charges of seditious conspiracy along with a series of weapons charges after, authorities said, they plotted to kill police and then attack the funerals and kill more police.

Militia members who belong to paramilitary organizations formed originally as part of a far-right patriot movement that is traditionally anti-government. Members believe the Constitution gives them legal authority to act under both federal and state laws and the Second Amendment – to take back the country as they see fit. And many members are prepared to act if they think their beliefs are infringed upon. They believe the Constitution gives them that authority – even though experts say they have no more legal right than any other citizen. Actually, that's not what the Constitution means, according to constitutional scholar Robert Sedler of Wayne State University Law School. “Do not be put off by the term militia. In the Constitution, it deals with the National Guard. At that time it meant every able-bodied man, for a national guard,” Sedler explained. “They are private citizens. They have no legal status. “It's very clear – they can call themselves militia, but it's not a real militia. Only the state National Guard is a true militia,” Sedler clarified. “They cannot say they are like law enforcement, and they cannot protect other citizens or their land,” and to do so is illegal.

John Rothchild, professor of law, wrote an article for The Conversation. “Michigan has embarked on an experiment in democratic governance using a technique employed in Athens 2,500 years ago but little used since: the selection of government officials by lottery rather than by appointment or election. The 13 officials selected by lot in August make up Michigan’s Independent Citizens Redistricting Commission. By November 2021, the group will draw election districts used to elect officials to the Michigan Legislature and the U.S. House of Representatives. The redistricting process occurs every 10 years, after the Census Bureau determines how many representatives are allocated to each state. Historically, state legislatures have been responsible for redistricting. But throughout U.S. history gerrymandering – drawing election districts to favor the political party that controls the state legislature – has characterized the redistricting process…Michigan’s commission, created by a 2018 ballot initiative, is unique. As a professor who teaches constitutional law and, occasionally, ancient Athenian law, I am fascinated by the fact that Michigan’s seemingly novel experiment in governance is based on a process that is thousands of years old.”

Most businesses are open and schools are coming back in session, but there are major concessions to the coronavirus. From kindergarten to college, schools are switching to virtual learning and businesses are operating at reduced capacity. There is a race to create a COVID-19 vaccine to beat back the virus, and now, we're looking at who can require you to get the future vaccine, and what rights you have to push back. There's a lot of hope a coronavirus vaccine can help us get back to normal life, but that only works if the public takes the vaccine. Public Health Law Expert Professor Lance Gable said confidence in vaccines is the key to public health. Gable said despite parent protest, the state can require kids to get a future coronavirus vaccine, just as other childhood shots. "State requirements of this sort, as long as they have scientific evidence supporting their necessity, often they're going to be upheld," he said. He added, "It's really important we get this right and it's really important we maintain trust." Parents can request a non-medical waiver. It will require a visit with a county health educator and during disease outbreaks, non-vaccinated kids can be excluded from school. What about your job? Federal guidance says employers can require a COVID-19 test to look for active infection but not for antibodies. A vaccine can be closer to antibody screening. “So it could violate the Americans with Disabilities Act and it might be a problem for employers to do that," Gable said.

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about the recent U.S. Supreme Court ruling ordering Oklahoma to follow federal law regarding promises made to American Indian nations. “To most Americans, it may seem obvious that a government should live up to its word. But the United States has regularly reneged on the promises that it made to American Indian nations in the nearly 400 treaties that it negotiated with them between 1778 and 1871. Many people feared that the Supreme Court would turn a blind eye to another treaty breach in this case, McGirt v. Oklahoma. Beyond Oklahoma, the decision’s effects will vary by tribe and state. States from Florida to Michigan have sought to curtail tribal sovereignty, and this decision clearly affirmed tribal sovereignty and treaty rights. It also emphasized the limited powers that states have over American Indian tribes under the U.S. Constitution. States may now think twice before ignoring treaty promises or challenging tribal jurisdiction. They may decide it’s better to negotiate than to fight in court.”

Jim Townsend, director of the Levin Center at Wayne State’s Law School, and Kristin Taylor, associate professor of political science wrote an op-ed about the failure of the Edenville and Sanford dams in Michigan. “In response to public pressure, the Whitmer Administration last week appointed a panel of technical experts tasked with getting to the bottom of how the Edenville and Sanford dams in mid-Michigan failed and how this kind of catastrophe can be prevented in the future. Relying solely on technical experts, as the governor’s panel appears to do, should generate valuable technical findings and warnings about the dangers we face. But confronting and solving the problems that led to this disaster requires a clear-eyed look at the various government entities that failed to act and the inadequacy of the public engagement process led by the lawmakers elected to do that job. A panel of independent experts is surely preferable to the internal investigation first called for by the Governor in her May 27 executive order. Although the appointees have decades of experience designing dams and analyzing why they fail, a panel comprised only of scientific experts is unlikely to shed light on the intergovernmental failures that allowed private dam owners to skate by for 25 years after federal regulators first identified significant flaws in the dams’ designs.”

Detroit activists are planning a Juneteenth march focusing on justice system reform raising awareness about the lack of representation on the supreme court, racial disparities in sentencing and the lack of diversity in juries in Wayne County. "If you think about injustice in the criminal justice system it goes from root to branch," said Wayne State University Law Professor Peter Hammer. "It is not just police brutality. It is how we define what is criminal, what is not criminal, it is who is sitting in the jury and who is not." Hammer is director of the Damon J. Keith Center for Civil Rights. He says judges Keith and George Crockett, Jr. helped bend the proverbial moral arc towards justice, benefitting not just African-Americans but everyone. "And they would tell you, they would not be the same judges they were if they were not Black men," Hammer said. "And they would not have had the impact that they did, because they took their life experience. They survived discrimination and knew the machinery and the physics of discrimination in this country. And they applied that knowledge on the bench. "If you have a bench full of European-Americans that have all these blinders on, even if they have the best intention and the sincerest beliefs, they are going to get it wrong.”

John Mogk, professor of law specializing in urban law and policy, wrote an opinion piece about structural racism. “The wanton killing of George Floyd in Minneapolis and the civil disturbances following were a predictable repetition of Detroit's rebellion in 1967 when the largest civil disturbance in American history was triggered by the abuse of African Americans by a police force that mostly was all-white. The Michigan National Guard and 82nd and 101st  Airborne Divisions of the U.S. Army were required to regain control of the city. Forty-three people died and hundreds of millions in today's dollars in property damages was caused  Notwithstanding the magnitude of the rebellion, the abject discrimination revealed a need for federal intervention as the country failed to learn a lesson. The root of the problem then, as it is now, is structural racism, and white police officer abuse of African Americans is merely one stark manifestation of it. Structural racism has its origin in slavery and fosters public policies, institutional practices and cultural representations that work to reinforce racial inequality for African Americans. Too many white police officers view African Americans with suspicion, interpret their actions as threatening and are quick to disregard their human rights.”

The lawsuit Republican lawmakers filed Wednesday over Democratic Gov. Gretchen Whitmer's use of emergency powers during the coronavirus pandemic appears to be a loser, according to three Michigan law professors. The lawsuit argues that Whitmer's emergency orders, including the stay-at-home order that runs through May 28, should be declared invalid because of lack of statutory authority. The suit argues one law Whitmer relies on applies only to local emergencies, rather than a statewide emergency, and the other one requires legislative approval — which Whitmer does not have — when it extends beyond 28 days. "Courts have routinely upheld very broad and vague delegations of power from the Legislature to the executive. I don't think that the Emergency Powers of Governor Act or the governor's interpretation of it violate any constitutional limits on delegation," said Lance Gable, associate professor at Wayne State University Law School who specializes in public health law. Gable said although the two emergency statutes give the governor broad powers to work autonomously, it will become increasingly important as the public health crisis continues for the executive and legislative branches to work cooperatively. Doing so will allow Michigan to ramp up testing and contact tracing and eventually impose much more targeted and intermittent orders that will allow many Michiganders to return to work, Gable said.

Wayne State University Law School has jumped 17 spots in U.S. News & World Report's Best Law School rankings over the last three years - to No. 83 in the country, a historic best this year, and the second-highest ranked law school in Michigan. Wayne Law also ranks highly in several specific categories, including No. 23 in the category of part-time law programs, the best in the state. Wayne Law is Detroit's only public law school. It ranks No. 22 nationally for law schools with the lowest debt-to-starting-income ratio according to Spivey Consulting's analysis of data compiled by Law School Transparency. The National Jurist and preLaw magazines ranked Wayne Law a Best Value Law School for the last six years.

A coalition of about 50 labor groups is asking congressional leaders to reject Uber Chief Executive Dara Khosrowshahi’s proposal for a new legal category that would allow the company to keep treating its workers as independent contractors while affording them partial employee benefits. Labor advocates have argued Uber does not provide as flexible a source of income as the company maintains. In a letter to Congress, Sanjukta Paul, an assistant law professor at Wayne State University, and Marshall Steinbaum, an assistant economics professor at the University of Utah, wrote that if the federal government pays for Uber and Lyft drivers’ unemployment insurance it should incentivize “states to side with the platforms on employment status, since doing so unlocks funds they would otherwise have to collect from the platforms.” The letter said that if the companies are not mandated to pay into a state’s unemployment funds as part of the stimulus act, they should be required to commit to reclassifying the workers as employees in exchange for the federal support.

The Henry Ford Health System has developed a policy officials say they hope to never have to use in which a scarce supply of ventilators would be reserved for patients who have the best chance of getting better. Other hospital systems nationwide are debating whether to order that COVID-19 patients who are dying should not be resuscitated, because the process exposes health personnel and equipment to so much infection they might not be able to help other patients. They add there is a poor chance that many of these patients will survive for very long even if all measures are taken to prolong their live. Lance Gable, a Wayne State University law professor, is an internationally-recognized expert on bioethics, and helped Michigan’s state government develop guidelines for using scare medical resources during a public health emergency. “We are going to have to make some tough decisions about how to best allocate resources,” Gable said.

President Donald Trump aims to shovel $2.2 trillion into the U.S. economy over the next few weeks to try to cushion its free fall. But that means putting his fate in the hands of banks, profit-minded businesses and government bureaucrats he has frequently derided, along with a man who has emerged as arguably the biggest power broker to business in Washington: Treasury Secretary Steven Mnuchin. The relief package, which includes direct cash payments, $349 billion in loans for small businesses and a $500 billion corporate rescue fund, is the biggest ever in U.S. history. Trump has warned Americans to brace for a “hell of a bad two weeks," with 100,000 to 240,000 coronavirus deaths now projected in the U.S. even if current social distancing guidelines are followed. At the same time, the country is hemorrhaging more than 3 million jobs a week, with economic forecasters warning of a deep recession. Peter Henning, a law professor at Wayne State University and a former Justice Department attorney, said the act was written to give Mnuchin tremendous power. “He can negotiate the terms of any loan or loan guarantee, so it’s a much broader authority than back in 2008, when Congress offered a bailout to banks and automakers during the last financial crisis.”

Last week President Donald Trump announced the closure of the U.S./Mexico border to stem the spread of the coronavirus. Mexico is also suspending air travel from Europe. For more on this, KCBS news anchors Jeff Bell and Patti Reising spoke with Lance Gable, associate professor of law at Wayne State University Law School.

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about the oversight relationship between the branches of government.

Kirsten Carlson, associate professor of law and adjunct associate professor of political science, wrote an article for The Conversation about the 2020 Census and the challenge of counting Native Americans living on reservations and in traditional villages, the most undercounted people in the 2010 U.S. Census. The Census Bureau estimates that it undercounted American Indians living on reservations and Alaska Natives in villages by approximately 4.9% in 2010. “This year, tribal leaders throughout the U.S. are urging American Indians and Alaska Natives to be seen and counted in the 2020 U.S. Census,” Carlson wrote. “Native leaders across the U.S. have been working to educate Native people about the importance of being counted in the 2020 U.S. Census. The National Congress of the American Indian, the oldest, largest and most representative American Indian and Alaska Native organization, has undertaken a public education campaign and designed a toolkit to help tribes and native people participate in the Census. Tribes have devoted considerable energy and resources to preventing another undercount. Beginning in 2015, they have consulted with the Census Bureau on how to build collaborative relationships to overcome the barriers to counting people in Indian Country. Tribal leaders are using their expertise in reaching their own communities by developing outreach plans to encourage tribal participation and hiring tribal citizens to collect Census data. For tribes, an accurate count will enhance their ability to exercise sovereignty over their lands and people.

The Levin Center at Wayne State University Law School commissioned the Citizens Research Council (CRC) of Michigan to review the scope and degree of oversight of Michigan’s charter schools and their authorizers. The report, titled “Improving Oversight of Michigan Charter Schools and Their Authorizers,” focuses on the inadequacy of public oversight of charter school authorizers, the entities that are charged under Michigan law with authorizing and overseeing the performance of charter schools in the state. The Levin Center requested the report as part of its ongoing mission to promote effective oversight at all levels of government – federal, state, and local. The Levin Center and the CRC will present the report at a briefing on Wednesday, Feb. 26,  at noon at Wayne State University’s Law School. Speakers include Eric Lupher, president of the CRC of Michigan, and Jim Townsend, director of the Levin Center at Wayne Law.  

Robert M. Ackerman, professor of law, wrote an article for The Conversation about recent legislation addressing the law barring members of the military from collecting damages from the federal government for injuries off the battlefield. Ackerman wrote: “The legislation represents progress for injured service members – but still limits who among them may press for damages.” The new law does not cover everyone. That’s because the legislation only allows claims by those who allege to have been victims of medical malpractice by military health care providers. And claims cannot be brought in federal court, as is normally the case under the Federal Tort Claims Act. Rather, they must be pursued through a Defense Department administrative procedure under regulations that the Department of Defense is required to draft.