ACSBlog

  • March 15, 2017
    Guest Post

    by Caroline Fredrickson

    This week marks a national initiative to highlight transparency, accountability and open government. The timing could not be better.

    Sunshine Week, March 12-18, falls the week before confirmation hearings begin for Trump’s Supreme Court pick.

    National discourse has centered on the president’s commitment to core constitutional values and his understanding of the importance of rule of law. Indeed, leading constitutional scholars have already raised red flags on numerous issues and lawsuits have been filed.

    Events of the last few months have increased the gravity of the decision about who should fill the ninth seat on the Supreme Court. The Supreme Court is often the last defense for our Constitution and it is imperative that any nominee not be beholden to any one person, let alone the president of the United States.

    Throughout his campaign and since his election, the president repeatedly emphasized that his Supreme Court nominee would be the most conservative jurist he could find, and he made sure his nominee passed a series of litmus tests, including on reproductive rights and gun safety laws. This compromises the independence of the judiciary at a time when we especially need to rely on the courts to make their own assessment of the constitutionality of legislative and executive actions. Decisions from federal judges across the country impact the lives of all of us, from how we are treated in the workplace, how the law regards women, racial minorities and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote and our immigration system – just to name a few issues.

  • March 14, 2017
    Guest Post
    by Peter M. Shane, Professor of Constitutional and Administrative Law at The Ohio State University’s Moritz College of Law. The views in this essay are entirely his own.
     
    Contrary to a recently published opinion piece entitled, “There is no principled reason to vote against Gorsuch,” many such reasons exist to oppose the nomination of Judge Neil A. Gorsuch to succeed the late Justice Antonin Scalia. This is especially so if you have principled objections to judicial methodologies that purport to constrain judges, but which, in the hands of conservatives, lead quite predictably, even if not quite inevitably to politically conservative outcomes.
     
    But even for Senators who think taking a judge’s legal views into account is somehow inappropriate, a perfectly principled reason to oppose the Gorsuch nomination is to avoid rewarding Senate Republicans’ 2016 assault on constitutional governance and the Obama presidency. The issue is not just comeuppance for the “mistreatment of Judge Merrick Garland” as a matter of personal unfairness, although I agree “an exceptionally fine jurist was treated shabbily.” The issue is whether there remains any institutional penalty for sabotaging constitutional norms.
     
    Republicans defending last year’s fiasco have offered a breathtaking exercise in revisionist history. Even now, they speak of a nonexistent presidential “tradition” of not nominating Justices in the last years of their respective terms. Yet the only reason why no president in the last eighty years nominated a Justice in the last year of his term is that, for the last eight decades, no Supreme Court vacancy arose during an election year. One might as well refer to a 228-year tradition of not nominating Justices to fill nonexistent seats!
  • March 13, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

    The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.

  • March 13, 2017
    Guest Post

    by Bidish Sarma. Sarma is an attorney who represents individuals sentenced to death and other harsh punishments including life without parole. He previously worked as a clinical teaching fellow at the Berkeley Law Death Penalty Clinic and staff attorney and Deputy Director of the Capital Appeals Project in New Orleans

    On March 29, 2017, the Supreme Court will hear oral arguments in the consolidated cases of Turner v. United States and Overton v. United States. The Court does not rule upon questions pertaining to prosecutorial misconduct and the State’s duty to disclose exculpatory evidence very often. When it does, it tends to rely on decisions handed down decades ago despite evidence that courts struggle to enforce the relevant principles consistently and appropriately. The Turner-Overton matter thus presents both an opportunity and a challenge to the justices. The opportunity? An uncommon occasion upon which it can clarify principles and curtail the confusion that permeates lower courts’ opinions. The challenge? Moving beyond the facts presented and penetrating the deeper questions that reside beneath the surface.   

    The question presented by these cases is a relatively narrow one: whether the Petitioners’ convictions must be set aside under Brady v. Maryland. That question is one the Court itself generated; the Petitioners initially asked the Court to resolve thornier questions that sometimes arise when the State fails to turn over all exculpatory evidence before trial. While it appears that SCOTUS will most likely take its well-worn minimalist approach in the Brady due process context here, several pleadings demonstrate that deeper, systemic concerns warrant attention. 

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.