ACSBlog

  • September 29, 2014
    Guest Post

    by Chris Edelson, an assistant professor of government in American University's School of Public Affairs. He is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Watching Congress utterly fail to discharge its duty as President Obama boldly exceeds the limits of his power by unilaterally authorizing military action against ISIS reminds me of the old philosophical question: if a tree falls in the forest and no one’s there to hear it, does it makes a sound?  In this case, the question is: if the President violates the Constitution and Congress does nothing, are there any consequences for the constitutional violation?

    The answer is almost certain to be “no”. The Constitution is not self-enforcing.  It only works when each branch of government resists and rejects overreach by the others—and, when it comes to checking executive overreach in the context of national security, the key actor is Congress. As Justice Robert H. Jackson observed in the 1952 Youngstown Sheet decision, “I have no illusion that any decision by this Court can keep power in the hands of Congress if it is not wise and timely in meeting its problems. A crisis that challenges the President equally, or perhaps primarily, challenges Congress…We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”

    What we’re seeing right now is Congress letting power slip right through its fingers and become more concentrated in the hands of the President.  Congress has gone into recess without weighing in on the President’s decision to authorize military action against ISIS in Iraq and Syria (the vote to arm Syrian rebels addressed a separate matter).  President Obama has claimed he has authority to order military action based on the 2001 Authorization for the Use of Military Force against Al Qaeda and the Taliban.  But that legislation cannot plausibly provide authority to act against ISIS, a rival of Al Qaeda’s that did not even exist when the 2001 AUMF was enacted.  As Harvard Law professor Jack Goldsmith put it, President Obama’s decision to order military action against ISIS in Syria “is, at bottom, presidential unilateralism masquerading as implausible statutory interpretation.”

  • September 29, 2014
    Guest Post

    by Judy Appelbaum, Visiting Professor of Law, Georgetown University Law Center; Acting Assistant Attorney General and Deputy Assistant Attorney General for Legislative Affairs, 2009-2013.

    When Eric Holder testified before the Senate Judiciary Committee in January 2009 on his nomination to serve as Attorney General, he pledged to faithfully execute his duties by adhering to the precepts and principles of the Constitution, and to do so in a fair, just and independent manner. He also promised to reinvigorate the traditional missions of the Department of Justice and emphasized that one of his top priorities would be to safeguard what he called our precious civil rights.  He has lived up to those commitments, and he will leave office with an extraordinary record of accomplishment. 

    I was privileged to have a close-up view of Attorney General Holder’s stewardship of the Department when I helped lead DOJ’s office of legislative affairs for the first four years of his tenure. Right at the beginning, I saw the determination and energy he put into passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which gave the Department new tools to address violent hate crimes and for the first time enabled DOJ to protect LGBT victims.  After the bill became law, he made sure that the Department aggressively investigated and pursued such crimes wherever warranted by the facts and the law. 

    Demonstrating his commitment to fairness in the criminal justice system, early in his term Attorney General Holder also pressed Congress to pass the Fair Sentencing Act to reduce crack-powder sentencing disparities that disproportionately penalized African American offenders.  He didn’t rest on that legislative success, either. He then launched the Smart on Crime Initiative, which led to a series of path-breaking reforms. These include a change in the Department’s charging policies to avoid triggering excessive mandatory minimum penalties for low-level, non-violent drug offenders, and measures to reduce barriers faced by ex-offenders as they re-enter society. Under Holder’s innovative Access to Justice Initiative, the Department has found ways to help ensure that indigent criminal defendants receive adequate legal representation. 

  • September 29, 2014

    by Zoltan HajnalThe author is a professor of political science at the University of California, San Diego and author of “America’s Uneven Democracy: Race, Turnout and Representation in City Politics." 

    This post originally appeared on Political Violence At a Glance. 

    It appears that violence in Ferguson is fading away. That is certainly a welcome development.  But before the eyes of the media and the attention of the public shift to the next pressing issue, we should use this opportunity to think about reforms that can prevent future Fergusons.  A solution that is easy to legislate and remarkably effective is readily available.

    There are many factors driving the anger in Ferguson. But the fact that African Americans had almost no representation in city government shaped almost everything that happened in that Missouri suburb.  The figures are stark.  Blacks represent two-thirds of the city population, yet the mayor, five of six city council members, six of seven school board members, and 50 of 53 police officers are all not black.

    Ferguson is not alone on this front. Across the nation, racial and ethnic minorities are grossly underrepresented in city government. African Americans make up roughly 12 percent of the population but only 4.3 percent of city councils and 2 percent of all mayors. The figures for Latinos and Asian Americans are even worse.

  • September 29, 2014

    by Caroline Cox

    Burgess Everett of Politico reports that judicial confirmation hearings are likely to return after the November elections.

    In The Nation, Ari Berman examines the voting rights record of Eric Holder. In The Washington Post, E.J. Dionne, Jr. looks at Eric Holder’s legacy in comparison to Robert F. Kennedy.

    Adam Liptak writes in The New York Times on the popularity of judicial elections and the legal challenges facing them.

    The New Republic features Jeffrey Rosen’s lengthy interview of Justice Ruth Bader Ginsburg on topics ranging from the Scalia/Ginsburg opera to rumors of her retirement.

    Eric Segall and Lisa McElroy criticize the secrecy of the Supreme Court in an article for Salon.

     

    In The New York Times, Richard Fausset reports on the underrepresentation of African Americans in politics even in large African American communities. 

  • September 26, 2014

    by Paul Guequierre. This post is part of our 2014 Constitution Day symposium.

    In terms of constitutional law, it might seem these days like we take two steps forward and then two steps back. Last year we saw significant victories for marriage equality in the Supreme Court opinions of Hollingsworth v. Perry and U.S. v. Windsor, but the day after the high court issued those opinions, it dealt a major blow to Voting Rights Act in Shelby County v. Holder. We have conservative activist judges and a conservative activist movement hell-bent on reframing the Constitution and what it stands for. Last week we celebrated Constitution Day, the 227th anniversary of the singing of the Constitution. And as we near the end of Constitution month, it’s worth taking a look back at what the Constitution means and where we are going.

    Three years ago, legal scholars  Geoffrey R. Stone and William P. Marshall wrote in an ACS Issue Brief titled “The Framers’ Constitution: Toward a Theory of Principled Constitutionalism,” that “The Framers of the American Constitution were visionaries. They designed our Constitution to endure. They sought not only to address the specific challenges facing the nation during their lifetimes, but to establish the foundational principles that would sustain and guide the nation into an always uncertain future.