Legal News for Tues 8/27 - Court Pauses Biden's Parole in Place Program, Tax Credits for PFAS Farms, Attempts to Revive Documents Charges Against Trump and a US Wealth Tax

Minimum Competence

This Day in Legal History: Kellogg-Briand Pact

On August 27, 1928, thirty-two nations signed the Kellogg-Briand Pact in Paris, a treaty aimed at renouncing war as a means of resolving disputes. Initiated by U.S. Secretary of State Frank B. Kellogg and French Foreign Minister Aristide Briand, the pact reflected the widespread desire for peace following the devastation of World War I. The signatories pledged to settle conflicts through diplomatic means rather than military force, marking an ambitious step towards global peace. Kellogg’s role in the treaty earned him the Nobel Peace Prize in 1929.

However, the pact’s impact was limited by significant flaws. It contained no mechanisms for enforcement, leaving it powerless to prevent future conflicts. Additionally, the treaty allowed for "self-defense" and other exceptions, which nations exploited to justify subsequent wars. Despite its noble intentions, the Kellogg-Briand Pact failed to prevent the outbreak of World War II just over a decade later. Nonetheless, it remains a symbolic milestone in the international effort to promote peace and reduce reliance on warfare in global relations.

A federal district court has temporarily halted a Biden administration program that allows immigrant spouses and stepchildren of U.S. citizens to seek removal protections and work permits without leaving the country. Republican-led states challenged the "parole in place" program on August 23, claiming it violated the Administrative Procedure Act and overstepped the Department of Homeland Security's authority. The program was expected to benefit around 550,000 people. Judge J. Campbell Barker, who granted a 14-day administrative stay, clarified that this pause doesn't block DHS from accepting applications. Barker emphasized that the stay is a preliminary measure, without indicating the potential outcome of the case.

A quick bit of editorializing here: The Loper Bright decision's overturning of Chevron deference, coupled with the reimagining of the Administrative Procedure Act, suggests we are on the cusp of significant legal shifts. Without the Chevron framework guiding agency interpretations, courts will likely see a surge in litigation as regulated entities and interest groups challenge agency actions like these here more frequently. This could lead to increased judicial scrutiny of administrative decisions and a more fragmented regulatory landscape, where the consistency of agency enforcement may be replaced by a patchwork of court rulings that vary by jurisdiction.

Judge Freezes ‘Parole in Place’ Program for Immigrant Spouses

Upcoming tax regulations could clarify whether agricultural land contaminated by PFAS qualifies for a 10% federal tax credit under the Inflation Reduction Act of 2022, which incentivizes renewable energy projects on brownfields. While the current definition of brownfields doesn’t explicitly include unfarmable agricultural land, expected updates from the Treasury Department may offer clearer guidance.

This could benefit states like Maine, where policies already prioritize using PFAS-contaminated farmland for renewable energy projects, although they don't offer direct financial incentives. Developers like Walden Renewables and Dirigo Solar LLC are exploring solar projects on such contaminated sites, seeing it as a way to utilize damaged land without further spreading pollutants. However, not all contaminated farms are suitable due to factors like the cost of connecting to the energy grid. Maine’s laws provide additional protections for landowners, including requirements for restoring the property and covering decommissioning costs, making these projects potentially beneficial for both developers and farmers.

Energy Tax Credit Rules for Polluted Sites Could Help Farmers

In the closing arguments of Thomas Girardi’s criminal fraud trial, prosecutors painted him as the mastermind behind the theft of millions in client settlement funds, labeling him the "thief-in-chief." Assistant U.S. Attorney Ali Moghaddas described Girardi’s law firm, Girardi Keese, as a Ponzi scheme, arguing that Girardi’s cognitive decline did not absolve him of responsibility. The prosecution countered claims that former CFO Christopher Kamon was solely to blame, noting that $14 million was stolen before Kamon even joined the firm.

Moghaddas emphasized Girardi’s active role in the fraud, highlighting his refusal to share bank records and his deceptive dealings with clients like the Ruigomez family. He dismissed the defense's argument that Girardi was mentally unfit, instead portraying him as fully aware of his actions until the end.

In contrast, Girardi’s defense argued that he was more a victim of Kamon’s “generational” fraud and was unaware of the crimes due to his deteriorating mental state. They likened the situation to “Weekend at Bernie’s,” claiming that others propped Girardi up to keep the firm running.

Girardi, who pleaded not guilty to four counts of wire fraud for allegedly stealing $15 million between 2010 and 2020, faces additional charges and civil lawsuits.

Girardi Was ‘Thief-in-Chief’ Prosecutors Say as Trial Closes

U.S. Special Counsel Jack Smith has asked the 11th Circuit Court of Appeals to reinstate the criminal case against Donald Trump for allegedly retaining classified documents. This appeal follows a July ruling by Judge Aileen Cannon that dismissed the indictment, arguing that Smith was unlawfully appointed. Smith's team countered, stating that the Attorney General has the authority to appoint special counsels and that Cannon's decision contradicts established legal precedents, including Supreme Court rulings. They also requested oral arguments to be scheduled. Trump's legal team has called for the case to remain dismissed, claiming it is part of politically motivated attacks against him. Cannon's ruling has been widely criticized for ignoring long-standing legal practices concerning special counsel appointments.

Special counsel asks court to revive charges against Trump in documents case | Reuters

In my column this week I discuss how a wealth tax could address inequality in the US, I explore Spain’s wealth tax model as a potential solution. Spain’s wealth tax targets the top 0.5% of its wealthiest citizens, proving to be a significant revenue generator. This raises the question of whether a similar approach could work in the US, where economic disparity is a persistent issue.

Spain’s tax model, with rates based on net wealth and specific exemptions, provides a tangible example that the US could adapt. Even applying the lowest Spanish tax rate to the top 0.1% of US wealth holders—those worth over $50 million—could generate approximately $340 billion annually.

This would represent a 7% increase in federal tax revenue, potentially boosting welfare funding by 25% or slightly reducing national debt. Notwithstanding the promise, implementing such a tax in the US would face serious legal challenges and political resistance. The key to gaining public support will lie in clearly connecting the wealth tax revenue to tangible benefits for the average citizen.

Spain’s Wealth Tax Model Could Address Inequality in US Policy

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