Guest Post

  • October 17, 2016
    Guest Post

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

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates. 

  • October 14, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Earlier this week, Sen. Tammy Baldwin (D-Wis.) keynoted the ACS Madison Lawyer Chapter’s kick-off event. In spirited remarks and thoughtful answers to audience questions, Sen. Baldwin spoke powerfully about the stalled nomination of Chief Judge Merrick Garland to the Supreme Court, the judicial vacancy crisis more broadly and the vital need for our country to move forward: “Leaving one seat vacant prevents our highest court from resolving major legal issues. It threatens the integrity of our democracy and the functioning of our constitutional government. It puts at risk the administration of justice across the country. As Justice Kagan said recently, ‘A tie does nobody any good.’ We need nine.”

    Sen. Baldwin gave historical context for the current moment, noting “this year will mark the first time since 1864 that the Supreme Court has been without its full complement of Justices on Election Day next month.” She also expressed her disappointment and exasperation at the Senate Republican majority’s refusal to consider—or even hold a Judiciary Committee hearing on—Chief Judge Garland’s nomination. She described the obstruction as “wrong and deeply irresponsible, as well as “disrespectful to our Constitution, disrespectful to our president, disrespectful to this very qualified nominee and disrespectful to the American people.”

    She also addressed the vacant seat—by tradition designated for a Wisconsin nominee—on the U.S. Court of Appeals for the Seventh Circuit. That vacancy is the longest running opening on the federal appellate bench, having been open since January 2010. (And the vacancy has been known since six months earlier, when Judge Terence Evans, announced his intention to take senior status at the beginning of 2010.) Sen. Baldwin discussed why it took years for the Wisconsin Federal Nominating Commission to recommend potential nominees. And she detailed the procedural delays that have kept President Obama’s nomination of Madison attorney Don Schott from receiving a vote on the floor of the Senate.

  • October 13, 2016
    Guest Post

    by Jack Beermann, Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law

    In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision were muted by its decision not to declare the agency completely unconstitutional. Rather, as the Supreme Court did with the Public Company Accounting Oversight Board (PCAOB), the court simply excised the Director’s “for-cause” protection and its implication that the Director was beyond the president’s control and otherwise left the agency and all of its decisions, intact. Thus, the CFPB can go on as before, with the only change being that the president can remove the Director at will and can order the Director to act in accord with presidential policies and priorities.

    Judge Kavanaugh’s reasoning in support of this outcome is surprising. The basis for the decision was not that the president, as head of the Executive Branch, needs the power to control the CPFB. Recall that the need for presidential control was the Supreme Court’s basis for invalidating the PCAOB’s for-cause protections. In the case of the CFPB, Judge Kavanaugh’s expressed reason for invalidating the Director’s protection was that “[t]he CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.” In Judge Kavanaugh’s view, the multi-member structure of most independent agencies provides a check on abuse of power that was, unconstitutionally, absent in the case of the CFPB. (Judge Kavanaugh also relies heavily on the history and tradition of plural heads of independent agencies. In this blog, I focus only on the pragmatic reasoning, not the reasoning based on tradition.)

  • October 13, 2016
    Guest Post

    by Joshua A. Douglas, law professor at the University of Kentucky College of Law. Professor Douglas specializes in election law and voting rights, with a specific focus on the constitutional right to vote, election administration and post-election disputes. He is the co-editor of a new book, Election Law Stories.

    When disaster strikes that impacts the ability to vote, election administrators should do what they can to preserve the fundamental right to vote.

    That was the message from U.S. District Judge Mark Walker at Wednesday’s hearing in Florida regarding the state’s voter registration deadline. The court found that shutting off voter registration on October 11, the statutory deadline, impermissibly would deny the right to vote to individuals who faced obstacles before that date because of Hurricane Matthew. The judge in essence replaced the days lost due to the hurricane by extending the voter registration deadline to October 18.

    Other instances of unexpected disaster also have forced election administrators to alter the rules to ensure robust voting rights. On September 11, 2001, New York City was in the midst of a primary election when the terrorist attacks began. The city quite rightly halted the election, postponing it for two weeks. In 2012, New York and New Jersey both altered their voting rules to allow voting for those who Hurricane Sandy had displaced. Even South Carolina Governor Nikki Haley extended the voter registration deadline for South Carolina voters in the wake of Hurricane Matthew last week. (North Carolina refused to extend the voter registration deadline beyond this Friday, but voters still have further opportunities to register during early voting. A lawsuit is now pending in Georgia asking the state to extend its voter registration deadline because of the storm.)

  • October 13, 2016
    Guest Post

    by Ngozi J. Nezianya, JD/MBA Candidate, Northwestern University; President, ACS Student Chapter at Northwestern University School of Law; Next Generation Leader and Student Member, ACS National Board of Directors

    Imagine a world in which registering to vote took only a simple form and no more than a few minutes of your time. Imagine a world in which the myriad ways that our government entities use to identify you could ensure that you get a say in exactly who does the verifying. Imagine a world in which casting your ballot could be completed on your way to work, on your lunch break or on your way home before you pick up the kids from school.

    Such a utopia need not be reserved for the depths of our imagination. In fact, for some in our country, much of this is already a reality. Thirty-one states and the District of Columbia currently offer online voter registration and five states automatically place their citizens onto voter rolls whenever they interact with government agencies. In the last presidential election, the average time it took to vote actually fell across the country – from 16.7 minutes back in 2008 to 13.3 minutes in 2012.

    Yet, despite those positive developments, one need only scratch the surface of these rosy data to reveal the discordant truths that coexist in our democratic process. Seven states maintain strict laws that require forms of photo identification that 11 percent of eligible voters do not have. Federal law requires states to maintain updated voter registration lists; however, when those laws result in the purges of millions of citizens from the rolls every two years, various states and their officials seem to disproportionately remove the poor, mistakenly remove Asian and Hispanic voters because they matched their surnames to the wrong people and in some cases outright intimidate black voters by sending police officers door-to-door to challenge those voters’ registrations. (And those are not even the most egregious purges.) Lastly, countless stories have documented how the closure of polling locations in heavily populated voting districts and the shortening of early voting periods across the country have caused citizens to wait up to five and seven hours in the blistering sun to exercise a right that the Supreme Court, dating back to 1966, had previously deemed “fundamental.” In other words, the extraordinary degree of variance at the other end of the voting experience skews our democratic process toward dystopia.