Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Avery v. Commissioner, New Hampshire Department of Corrections

Docket: 2019-0051

Opinion Date: November 20, 2020

Judge: Anna Barbara Hantz Marconi

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Plaintiff Clifford Avery appealed a superior court order that dismissed his complaint for breach of contract against the Commissioner of the New Hampshire Department of Corrections (DOC or department). Avery argue the trial court erred in concluding that his suit was barred by sovereign immunity and, alternatively, that he lacked standing. Avery was an inmate at the New Hampshire State Prison for Men (NHSP) who sued the DOC as part of a federal, class-action, 42 U.S.C. 1983 lawsuit, and the federal district court found that conditions at the NHSP subjected inmates to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The lawsuit resulted in a consent decree requiring the DOC to provide certain services to inmates confined at the NHSP, regularly inspect prison conditions, and ensure that NHSP practices, including those related to food service, medical care, mental health care, sanitation, and maintenance, comported with specified standards. The consent decree was modified to resolve issues raised by Avery and the class of original plaintiffs in motions for contempt that alleged the DOC was violating the terms of the original decree. In his complaint here, Avery made numerous allegations that conditions at the NHSP violated the terms of the settlement agreement. After the case was submitted, the New Hampshire Supreme Court directed the parties to provide supplemental briefing on the issue of sovereign immunity and sought amicus briefing. The Supreme Court determined RSA 491:8 (as amended July 2020) waived the State's sovereign immunity for Avery's suit for breach of the settlement agreement. Furthermore, Avery had standing to pursue his action. The trial court therefore erred in dismissing Avery's complaint on these grounds; the matter was reversed and remanded for further proceedings.