Erwin Chemerinsky

  • November 21, 2014
    Guest Post

    by Erwin Chemerinsky and Samuel Kleiner. Chemerinsky is Dean of the University of California, Irvine School of Law; Kleiner is a fellow at the Yale Law Information Society Project.

    In the face of an ongoing humanitarian crisis as families are broken up by deportations, President Obama’s bold executive action is legally permissible and morally necessary. The angry Republican rhetoric is misguided both as a matter of constitutional law and as a matter of desirable social policy.

    In terms of the Constitution, President Obama drew a careful distinction based on what he can and can't do without congressional action. The President cannot bestow citizenship on individuals except as authorized by law. President Obama’s executive order does not attempt to do this. 

    But what a president may do is set enforcement priorities, choosing who to prosecute or who to deport. No government brings prosecutions against all who violate the law. Resources make that impossible and there are laws on the books that should not be enforced. Nor has any administration, Democratic or Republican, sought to deport every person who is illegally in the United States.   For humanitarian reasons or because of foreign policy considerations or for lack of resources, the government often chooses to focus deportations along certain criteria.

    In fact, as recently as two years ago, the Supreme Court in United States v. Arizona recognized that an inherent part of executive control over foreign policy is the ability of the President to choose whether or not to bring deportation proceedings. On numerous other occasions, the Supreme Court and lower federal courts have recognized prosecutorial discretion to decide when to bring criminal prosecutions or immigration enforcement actions.

    The overblown Republican rhetoric fails to recognize that what President Obama announced was enforcement priorities. He has instructed the executive branch, which is under his control, to prioritize deportation proceedings against felons and those who pose a public danger, but not to deport parents of young children who are United States citizens and who present no threat.   Such discretion is clearly and unquestionably part of the president’s power.     

    Nor is there any realistic chance that any court will find otherwise. No one is likely to have standing to challenge President Obama’s policy. And even if a court were to address the issue, the law is well established that presidents have discretion to decide whether to prosecute or bring deportation actions. Contrary to the Republican rhetoric, President Obama is violating no law and is acting within his constitutional authority.

  • October 22, 2014
    Guest Post

    by Jason Steed, Associate at Bell Nunnally, and president of the Dallas-Ft. Worth Lawyer Chapter

    *This is part one of a three part series.

    There’s been a lot of talk lately about term limits for Supreme Court justices. Norm Ornstein brought renewed attention to the issue in May. Erwin Chemerinsky has proposed term limits in his new book, The Case Against the Supreme Court. And a recent poll asked about it, and shows nearly 70% of the public thinks term limits are a good idea.

    I was invited to write a blog post on this topic because I have a short article forthcoming in the December issue of The Federal Lawyer, which also makes a case for term limits. But unlike Ornstein and Chemerinsky, my primary focus isn’t the politics or ideology of the Court. My focus is on the 1968 presidential election.

    In a nutshell, a confluence of circumstances turned the 1968 election into a watershed for the Supreme Court. The newly elected Nixon was suddenly able to appoint four new justices to the Court—in his first term—transforming the progressive Warren Court into the moderately conservative Burger Court, and setting a trajectory (through the appointment of William Rehnquist) for the much more conservative Court that we have today. (You’ll have to read the article when it comes out, to get my full take on the story.)

    Yes, this transformation of the Court—politically and ideologically—has been deeply troubling for progressives over the last 40 years. But it would be a mistake, when making an argument for term limits, to spend too much time complaining about the longevity of the Court’s rightward bent. Imposing term limits will require a constitutional amendment, which will require support from both sides. And you can’t get support from both sides if you’re complaining about something that one side really, really likes.

  • September 30, 2014

    by Caroline Cox

    Robert Barnes of The Washington Post discusses Erwin Chemerinsky’s new book and bold criticisms of the Supreme Court. Chemerinsky recently contributed to the ACSblog Book Talk to discuss his work.

    In The Atlantic, Dawinder Sidhu looks at the next religious freedom case facing the Supreme Court and how it will test how the justices apply Hobby Lobby to minority religions.

    Adam Liptak writes in The New York Times that an answer from the Supreme Court on same-sex marriage is likely to come next June.

    Bloomberg writer Greg Stohr reports that the Supreme Court has blocked an early voting period in Ohio and reinstated voting limits the state passed this year.

    John Nichols writes for The Nation on the Ohio early voting decision and what it says about the Supreme Court’s priorities. 

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 24, 2014

    by Caroline Cox

    In The New York Times, Bob Kocher and Farzad Mostasharib write about McAllen, Texas, an Affordable Care Act success story.  

    Jonathan Topaz explains in Politico why Justice Ruth Bader Ginsburg believes she cannot retire now.

    At Hamilton and Griffin on Rights, Erwin Chemerinsky explains his reasons for writing his new book, The Case Against the Supreme Court.

    Jonathan Bernstein writes for Bloomberg View on the importance of fixing voter registration to make it easier for citizens to vote.

    Patrick Marley of the Milwaukee Journal Sentinel reports on a Wisconsin judge’s refusal to follow a Supreme Court order to dismiss a voter ID case.

    At Cornerstone, Leslie Griffin argues against the Court’s decision to make a cost-free First Amendment in Thomas and Hobby Lobby.