Congress

  • 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.”

  • August 6, 2014
    Guest Post

    by Nicole Austin-Hillery, Director and Counsel of Washington, D.C. Office, The Brennan Center for Justice at NYU School of Law 

    *This post originally appeared on The Brennan Center’s blog

    Congress went home last week without tackling several critical issues facing our country. This is common in an election year. But this year should have been different. For the first time in nearly five decades, Americans will go to the polls in November without a key protection under the Voting Rights Act, which the U.S. Supreme Court gutted last year in Shelby County v. Holder. When Congress comes back in September, leaders of both parties must act to ensure every citizen can freely cast a ballot.

    Today, on the 49th anniversary of the signing of the Voting Rights Act, it’s worth looking back at how far our nation has come on voting discrimination and race, and how we can move forward together to ensure equality and justice for all.

    The America we knew in 1965 was vastly different than the one we know now. The civil rights struggle showed our country through a black and white prism. President Lyndon Baines Johnson spoke of this race divide when he signed the VRA, which made it illegal for states to discriminate based on race in voting.

    “The stories of our Nation and of the American Negro are like two great rivers,” he said, “flow[ing] through the centuries along divided channels.” Only after the Civil War, Johnson remarked, did the two rivers begin “to move toward one another.” And a century later, the VRA would allow the two currents to “finally mingle and rush as one great stream across the uncertain and the marvelous years of the America that is yet to come.”

  • April 7, 2014

    by Jeremy Leaming

    Nationwide fasts of immigration reform supporters that started last year will culminate this week after a 48-hour fast in Washington, D.C. SEIU, We Belong Together and the Fair Immigration Reform Movement (FIRM) have coordinated the fasts and will bring 100 women together in D.C. to cap the nationwide movement.

    Thousands of supporters have participated in the fasts and last month, renowned immigrant rights leader Eilseo Medina was arrested while trying to visit Congressman Mario Diaz-Balart at his Miami office to deliver the groups' messages about immigration reform. Medina was released from a Miami jail on March 22.

    After the 48-hour-fast on April 9, the groups will share stories from across the country of people supporting immigration reform with lawmakers on Capitol Hill, urging them to pass comprehensive immigration reform and to stop deportations of undocumented persons. (In a lengthy piece from The New York Times government records show that the Obama administration has been deporting far more undocumented immigrants because of minor offenses than it has stated. The Times' analysis reveals that since Obama “took office, two-thirds of the nearly two million deportation cases involve people with who had committed minor infractions, including traffic violations, or had no criminal record at all.”)

    Last summer the Senate passed a bipartisan immigration reform bill containing a path toward citizenship for a large portion of the country's more than 11 million undocumented people. But House leaders have continued to argue they would consider piecemeal actions instead of the Senate bill.  

    In an April post for SEIU blog, Sylvia Ruiz, wrote, “We want to meet with Speaker Boehner and Majority Leader Cantor on April 9 to share the stories we have gathered from across the country from people of faith, businessmen and women, immigrants, community members and constituents who are all supporting reform.”

    Those leaders, Ruiz continued, “have the rare opportunity to end the pain and suffering of millions of people that is caused by our broken immigration system. These two individuals are responsible for setting the House voting schedule. If they call for a vote on immigration reform, that vote will happen, and the House and Senate will finally be moving forward to fix a system that has needed fixing for years.”

    More information on the events of Fast for Families is here. A recent ACS event explored some positive actions a few states are taking to make the lives of undocumented persons easier as they seek citizenship.

  • April 30, 2013
    by Jeremy Leaming
     
    Recent reports about the Guantánamo Bay military prison have documented and confirmed the torture of detainees, and offered new insight into the wobbly legality of military commissions.

    Scores of prisoners remain there and according to a Seton Hall report an elaborate system has been installed to eavesdrop on attorneys meeting with the prisoners, thereby undermining the legitimacy of the military tribunals. The Constitution Project also released an exhaustive report confirming what has been known for years – that torture of prisoners did occur at Guantánamo. Many of the prisoners are on hunger strikes, they see no escape from a place where they are being indefinitely held. “The situation is desperate now,” prisoner Samir Najl al Hasan Moqbel wrote in a recent column for The New York Times.
     
    Today, President Obama, during a White House news briefing, said he still would like to see Gitmo shuttered. Obama promised to close the prison during his first term, but failed. Some reporting said the administration did not have much of a strategy in place for closing the prison.
     
    Obama said, “I continue to believe that we need to close Guantánamo. I think it is critical for us to understand that Guantánamo is not necessary to keep us safe. It is expensive, it is inefficient, it hurts us in terms of our international standing, it lessens cooperation with our allies on counterterrorism efforts, it is a recruitment tool for extremists. It needs to be closed,” The Huffington Post’s Ryan J. Reilly reports.
     
    He continued, “The notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity – even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al Qaeda, we’ve kept pressure up on all these transnational terrorist networks, when we’ve transferred detention authority to Afghanistan – the idea that we would still maintain, forever, a group of individuals who have not been tried, that is contrary to who we are, it’s contrary to our interests, and it needs to stop.”
     
    The Center for Constitutional Rights, which has long represented some of the prisoners, lauded Obama’s comments, but noted the president should not place the entire onus on Congress to close the prison.
     
    For instance, CCR said that Obama “still has the power to transfer the men right now. He should use the certification/waiver process created by Congress to transfer detainees with the 86 men who have been cleared for release, including our client Djamel Ameziane.”
  • March 19, 2013
    Guest Post

    by Spencer Overton, a Professor of Law at The George Washington University Law School and a Senior Fellow at Demos.This piece is crossposted at The Huffington Post.

    I attended yesterday’s U.S. Supreme Court oral argument in the Arizona voter registration case.  The argument went well generally, but Justice Alito suggested the Justices would create a “crazy” double standard by requiring that Arizona election officials accept the federal registration form. 

    Alito’s concerns are unwarranted.  Arizona chose to create two standards when it chose to add special “proof of citizenship” to register. 

    The National Voter Registration Act requires that all states “accept and use” a single, uniform voter registration form for federal elections (states can also still use their own registration forms). 

    The Federal Form requires that prospective voters check a box and sign an affirmation that they are U.S. citizens under penalty of perjury. 

    Arizona, however, adopted a state law requiring “satisfactory proof” of U.S. citizenship to register, such as a birth certificate, U.S. passport, or state driver’s license that shows citizenship. As a result, Arizona rejected over 31,000 registrations that lacked its “proof of citizenship” -- including Federal Forms -- even though Arizona concedes it has no evidence that any of these individuals were non-citizens.

    My take is that Arizona must accept all Federal Forms that comply with the citizenship affirmation rules set by Congress. The federal Act was designed to expand participation in federal elections by streamlining the registration process with a simple, uniform Federal Form that prevents states from piling on additional hurdles to register.  Indeed, as Justice Sotomayor mentioned, Congress explicitly rejected an amendment that would have allowed states to require “documentary evidence” of U.S. citizenship.