Fidelity to the Constitution

  • June 3, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Chris 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.

    Presidential candidates may find it easy to score political points by talking tough, especially when there are lots of things for Americans to be afraid of in the context of national security.  Governor Scott Walker, a candidate for the Republican nomination, is showing his ability to play this game.  However, while this approach may score Walker points with voters, the governor is playing a dangerous game when it comes to presidential power under the Constitution.  This is a scenario that has become all too familiar since 9/11.

    While campaigning in New Hampshire last weekend, Walker told voters that “I'm not eager to go into open-ended engagements, but I'm not afraid to lay down the law when we have to.”  He declared that “I just want people to know that while I'm ready to be firm, my first intention, my first instinct, isn't to send in military forces.  But I'm certainly not going to rule it out.”  He further explained that “In Iraq, people ask me, 'Would you put boots on the ground?’  I don't rule anything out.  The last thing you want to do is send a message to your adversaries, how far you're willing to go, how long you want to be there.  That's a foolhardy military strategy that sets up failure.  So I wouldn't rule it out.  But I wouldn't lead with it.”

    Walker’s rhetoric may remind some of dialogue from a John Wayne movie or Tom Clancy novel, but what’s more important is his assumption that it would be up to him, as president, to make these decisions unilaterally.  In this vein, Walker argued that “We need a commander-in-chief who understands going forward that radical Islamic terrorism is a threat to us all and will act to do something about it. . . . I'd rather take the fight to them instead of waiting until they bring the fight to us."  Note the first person references.  Walker’s model for decisions about the use of military force doesn’t seem to include much of a role for Congress.  Instead, he envisions a decision-making process dominated by the president.  Walker imagines himself making unilateral decisions as to when, whether, and how to use military force.

  • March 12, 2015

    by Nanya Springer

    The Citizenship Clause of the 14th Amendment reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This statement may seem simple enough, but U.S. Senator David Vitter is once again pushing legislation to upend the Constitution’s provision of birthright citizenship.

    According to Vitter, the 14th Amendment is misunderstood and contains a loophole that needs to be closed to prevent an influx of “birth tourists.”  Constitutional law experts say the Amendment is straight forward, and Vitter and his cohorts are trying to destroy a constitutional right.

    This is not a new debate.  The faulty arguments behind Vitter’s legislation were addressed and discredited years ago by scholars including Garrett Epps of the University of Baltimore School of Law and Elizabeth Wydra of the Constitutional Accountability Center, who authored an Issue Brief on the subject.  Take a look at the resources below for a thorough explanation of why new attempts to take away birthright citizenship are still wrong.

    Born in the USA?: The Historical and Constitutional Underpinnings of Birthright Citizenship (video)

    Born Under the Constitution: Why Recent Attacks on Birthright Citizenship Are Unfounded, Elizabeth Wydra (Issue Brief)

    Epps on “Da Vinci Code Originalism” and the Citizenship Clause (ACSblog)

    Here We Go Again: At Republican Debate, Pawlenty Denies Constitutional Text and History Establishing Birthright Citizenship, Elizabeth Wydra (ACSblog)

  • March 11, 2015
    Guest Post

    by Raph Graybill, Fellow, Yale Institution for Social and Policy Studies (ISPS)

    This spring, western state legislatures will consider a series of laws demanding the end of public land management by the federal government.  The bills, which evoke the “Sagebrush Rebellion” anti-conservation movement of the 1970s, issue a state-law “demand” that the United States relinquish its title to American public lands and transfer ownership to states.

    Nearly two years after Utah passed its “Transfer of Public Lands Act” (TPLA), similar laws are under consideration in a majority of western states.  At stake is the core of American conservation policy.  Under state ownership, state governments could restrict public access, authorize commercial development or even divide lands for private sale.  Current federal environmental law effectively forecloses these possibilities, limiting privatization and preventing environmental degradation.

    Other outlets have addressed the policy wisdom of transfer demand laws, but very little work has been devoted to understanding their constitutional validity.  This post will address the legal arguments behind transfer demands with an eye toward understanding both the Constitution’s text and a newer, nontextual argument advanced by supporters.

    A legal analysis of transfer demands begins with the Constitution itself, and the plain text of the Constitution speaks directly to transfer demand laws.  The Property Clause, Article IV, § 3, cl. 2, states, “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.”  The text leaves little room for ambiguity over who may make decisions affecting United States land: Only Congress may initiate the sale or transfer of federal public lands.

  • January 29, 2015
    Guest Post

    by Eric Berger, Associate Professor of Law, University of Nebraska College of Law

    The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure.  Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations.  However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs.  To this extent, the Court is putting the cart before the horse.

    Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them.  The problem appears to be worsening as states increasingly conceal more details of their execution procedures.  Courts, for their part, usually reject inmates’ requests to learn this information. 

    In a recent law review article, I argue that these state practices and judicial responses are wrong.  To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure.  To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.

  • January 15, 2015
    Guest Post

    by Michael Leachman, Director of State Fiscal Research, Center on Budget and Policy Priorities, State Fiscal Policy Division

    As state legislative sessions begin, right-wing groups are ramping up a nationwide campaign to convene a constitutional convention to propose amendments that would strip the federal government of much of its power to invest in national priorities and protect civil rights.

    As respected legal voices in the states, ACS members can help defeat this campaign by educating policymakers and the public (through op-eds, testimony and the like) about its radical goals and misleading claims. 

    Here’s the background.  Under Article V of the Constitution, Congress must call a convention to propose constitutional amendments if two-thirds of the states formally request one.  In the late 1970s and early 1980s, many states passed resolutions calling for a convention to propose a federal balanced budget amendment.  At one point, 32 states had passed resolutions along these lines, close to the 34 states required.  But over the next 25 years, no more states passed resolutions and half of the states that had passed resolutions formally rescinded them, fearing that a convention would throw open the Constitution to harmful changes.

    The tide turned in 2010 as the American Legislative Exchange Council (ALEC) and its allies began pushing anew for state resolutions.  Since then, eight states have adopted new resolutions calling for a convention to propose a balanced budget amendment.  Some proponents claim that 24 states have “live” applications, including those passed in the late ‘70s and early ‘80s but never rescinded.  They’ve targeted another 15 states for the coming year.