ACSBlog

  • February 17, 2017

    by Kaiya Lyons

    The Associated Press reported today that the Secretary of Homeland Security has drafted a memorandum that would mobilize thousands of National Guard troops in 11 states "to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States." Although White House Press Secretary Sean Spicer has denied the existence of any efforts to use the National Guard to deport undocumented immigrants, the plans outlined in the memorandum give rise to serious concerns about the degree of executive control over the National Guard. To what extent can the White House use the power of the National Guard to enforce federal immigration laws?

    Constitutionally, the National Guard exists under continuing state control, but may be used by the federal government to “execute the laws of the Union, suppress insurrections and repel invasions.” Therefore, there are three legally distinct ways the National Guard may be employed. First, the governor of a state may authorize the deployment of troops under state law. Second, a state governor and the president may agree to deploy National Guard troops within that state for a primarily federal purpose under Title 32 of the U.S. Code. Finally, the president may unilaterally mobilize the National Guard for a federal purpose authorized by federal law under Title 10 of the U.S. Code and pursuant to the restriction of military enforcement of domestic policies within the United States under the Posse Comitatus Act.

    Indeed, deploying National Guard troops in consort with state governments to assist in border security operations is not unprecedented. In recent history, both Presidents Bush and Obama have positioned National Guard troops on the United States-Mexico to provide administrative, observational, and logistical support to Border Patrol agents. For instance, in 2006, former President George W. Bush initiated “Operation Jump Start,” which mobilized 6,000 National Guard troops in California, Arizona, New Mexico and Texas to help install border barriers, provide training and assist with border surveillance. In 2010, former President Barack Obama announced the deployment of 1,200 National Guard troops on a similar assignment to support the organizational functions of Border Patrol.

  • February 16, 2017

    by Caroline Fredrickson

    Late Show's host Stephen Colbert gave me the best Valentine’s eve presents: laughter and some straight talk.

    In typical fashion in the opening monologue, Colbert satirized White House senior adviser Stephen Miller's explanation of executive power. In response to a question about the lessons of Trump's Muslim ban during an appearance on Face the Nation, Miller declared that “the powers of the president to protect our country are very substantial and will not be questioned.”

    After showing a video clip of Trump's advisor, Colbert asked “Will not be questioned? Let me test that theory. What the f--- are you talking about?” That line received the biggest applause.

    We all have to question Trump. The second biggest question - after what did Trump know about Kremlingate and when did he know it - is what can we do to resist Trump?

    Friends, family, colleagues and neighbors ask the (second) big question slightly differently, depending on the day and what scared them in the news. There are so many variations of this essential question:

    How can we combat fake news stories?

    What can I do to push back on Trump’s attacks on judges?

    How can I resist the Muslim ban?

    What is the best way to fight against fill in the blank millionaire or billionaire Trump cabinet pick?

    There is one answer for all of these questions: volunteer.

    Last week, ACS started a new page on which we collect and disseminate volunteer projects. For example, this week we encourage everyone – and I mean everyone – to contest fake news and fake history by teaching "Love Our Constitution," a classroom program in which lawyers, law students, and others concerned about our courts and legal system will conduct presentations and discussions across the United States about our highest law of the land and courts during the week of Valentine’s Day (Sunday, Feb. 12- Saturday, Feb. 18).

    Help us spread the word. Tell your friends and family to check our list of volunteer projects. And most importantly, volunteer your time and show you love our Constitution by opposing unlawful presidential acts.

  • February 15, 2017
    Guest Post

    *This piece originally appeared in The Des Moines Register. Read the entire post here.

    by Mark Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Few people know that Fred Korematsu, one of the named plaintiffs in perhaps the U.S. Supreme Court’s most troubling racist wartime decision, actually lived long enough to defend some Muslims who were deprived of due process under President George W. Bush. Perhaps there is a lesson here for President Donald Trump and the U.S. Supreme Court.  Let me explain.

    President Trump issued an executive order that precluded citizens from seven mainly Muslim nations to travel here, as well as invalidated many of their visas. He also banned admission of refugees who go through years of security screening.  However, he provided a special exemption for persecuted Christians in these nations. Our country, founded in part on freedom of religion and on the promise of being a sanctuary, became the opposite. Trump enshrined Christianity as our preferred state religion in probable violation of several parts of the U.S. Constitution.

    He justified the order on national security grounds and on the danger of “radical Islamic terrorism,” even though the vetting process for these individuals is thorough. Many of those affected sought to avoid being killed in the Syrian civil war or in other devastated places. Trump omitted from his ban the Muslim nations whose citizens were largely responsible for 9/11.

    Coincidentally, Feb. 19 marks the 75th anniversary of another controversial presidential directive that resulted in the U.S. Supreme Court’s 1944 decision, Korematsu v. United States. There, the court upheld the military incarceration of 112,000 American residents of Japanese descent, mostly citizens. They were interned in desolate camps. They had done nothing wrong. Nonetheless, the military enforced President Franklin Roosevelt’s broad executive order.

  • February 15, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

    There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

    The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

  • February 15, 2017
    Guest Post

    by Daniel A. Cotter, Partner, Butler Rubin Saltarelli & Boyd LLP and Adjunct Professor at The John Marshall Law School

    The American Constitution Society For Law and Policy recently launched an initiative, “Love Our Constitution,” with the goal for lawyers, judges and others to lead discussions and make presentations about the Constitution and the Federal Courts during the week of Valentine’s Day. I participated in the conference call that ACS held to explain the initiative and then volunteered to conduct a presentation to the local Boy Scouts Troop.

    On Monday, Feb. 13, 2017, I presented the “Love Our Constitution” program to my sons’ troop, Queen of All Saints Basilica Boy Scout Troop 626. About 35 scouts were in attendance and about a dozen adults. We began by handing out copies of the pocket Constitutions provided by ACS and discussing at a high level the document itself, one of the longest standing written constitutions in the world and also one of the shortest, the original being just over 4,500 words. Scouts answered questions about which branch each of the first three articles of the Constitution addressed.

    As I went through the slides, we asked questions of the attendees, including their thoughts on why Federal judges served during good behavior, effectively a lifetime appointment. One Boy Scout answered that the intent was to distance the judiciary from the pressures and demands of fundraising and elections and that lifetime appointments allowed the judges to act independently. Before moving to the next slides, we discussed this answer and identified a few instances where the party that had appointed the justices in the majority was not pleased with the decisions. We briefly discussed the Warren Court and the Brown v. Board of Education and criminal defendant rights’ cases and how upset many were. One Scout also raised the recent same sex decision by the Roberts Court, Obergefell v.Hodges.