Guest Post

  • December 4, 2014
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University. He also serves on the Georgia Lawyer Chapter Board of Advisors.

    The predictable calls for impeachment went up after President Obama announced his actions on immigration last week. To the surprise of no one, the calls issued exclusively from the president’s Republican detractors. Such partisan calls for impeachment are easily dismissed. In a recent New York Times op-ed, however, Professor Peter Schuck of the Yale Law School lent credibility to the legal basis for these claims, arguing that the president’s action satisfies the constitutional predicate for impeachment (though he advocates that Congress exercise its discretion to decline impeachment).  His argument is worthy of attention, though it fails utterly. 

    The Constitution sets forth the grounds for impeachment:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Nowhere in the document, however, is the phrase “other high Crimes and Misdemeanors” defined. This absence of a legal definition has led some to conclude that the House of Representatives may impeach for any reason at all. Then-Congressman Gerald Ford gave this idea its most famous articulation:  “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history ….”  Professor Schuck falls squarely in this camp, declaring “it is pretty much up to Congress to define and apply ‘high crimes and misdemeanors.’” 

    This Nietzschean view (Law is dead, therefore all is permitted) is deeply flawed. Most significantly, it is at odds with the original understanding of the impeachment power. The framers adopted the language “high crimes and misdemeanors” precisely to avoid leaving it “pretty much up to Congress” to decide for itself what constitutes an impeachable offense. During the drafting convention, George Mason suggested that the president be impeachable for “maladministration.” James Madison objected to this formulation on the grounds that it would undermine the independence of the president: “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” The constitutional convention then settled on the familiar “high crimes and misdemeanors” language as a way of making sure the standard for impeachment would not be infinitely malleable. 

  • December 2, 2014
    Guest Post

    by Nancy Leong, Associate Professor, University of Denver Sturm College of Law. Follow her on Twitter @NancyLeong.

    Scott Panetti is scheduled for execution in Texas tomorrow, Wednesday, December 3.

    Mr. Panetti has suffered from schizophrenia and other mental illness for over thirty years. He first exhibited signs of a psychotic disorder as a teenager. Between 1978 and 1992, he was hospitalized for mental illness fifteen times. He developed a delusion that he was engaged in spiritual warfare with Satan. He tried to exorcize his home by burying furniture in the backyard because, he claimed, the devil was in it.

    In 1992, Mr. Panetti went off his medication, shaved his head, and dressed in camouflage fatigues. He went to his in-laws house and murdered his mother and father-in-law in front of his wife and daughter. After turning himself in, Mr. Panetti blamed the crime on “Sarge,” one of his recurring hallucinations. He explained that God had ensured that his victims had not suffered.

    A trial judge allowed Mr. Panetti to represent himself at the subsequent trial and sentencing, even disregarding the concerns of the prosecutor.  Predictably, the proceedings were, in the words of Mr. Panetti’s stand-by attorney, “truly a judicial farce.” Mr. Panetti wore a cowboy costume and a purple bandana to court. He attempted to subpoena John F. Kennedy, the Pope, Jesus Christ, and his own alter ego, “Sarge,” among 200 others. His statements were rambling and incoherent. He fell asleep during trial. While describing the shooting, he assumed the personality of “Sarge” and narrated the events in the third person. He pointed an imaginary rifle at jurors, visibly frightening them. And he rejected a plea bargain that could have saved his life.

  • December 1, 2014
    Guest Post

    by Emily J. Martin, National Women's Law Center. She is the Vice President and General Counsel of the NWLC.

    “Come back when you’re not pregnant.”  That’s what Peggy Young testifies her supervisor told her after her medical provider advised that she avoid lifting more than 20 pounds for the remainder of her pregnancy.  Young, a UPS driver from Landover, Maryland, was forced out onto unpaid leave without company health benefits. On December 3, the Supreme Court will hear arguments in her pregnancy discrimination case, Young v. UPS.  The case marks the first time the Court will hear a case critical to both women’s health and economic security since the Burwell v. Hobby Lobby decision in June, when five Justices held that Hobby Lobby and other companies could ignore the legal requirement that they include coverage of birth control in their health insurance plans if they had religious objections to contraception.  The Young case will be an important test of whether a majority of the Supreme Court continues to have a “blind spot” where women’s issues are concerned. The stakes are high for women and their families.

    Peggy Young was a UPS driver, delivering mostly light air mail packages.  When she became pregnant and was given a lifting restriction, she told UPS she was willing to continue to do her regular job, as it was rare that she had to lift anything heavy, or take a light duty assignment—the sort of reassignment that UPS routinely provided to employees who had disabilities as defined in the Americans with Disabilities Act and those with on-the-job injuries and those who had lost their commercial drivers' licenses, whether because of health problems or issues such as DUI convictions.  But UPS said that because of her lifting restriction, it would not permit her to continue to do her regular job.  And it also refused to reassign her, despite the accommodations it provided to other workers with medical restrictions and despite the command of the federal Pregnancy Discrimination Act that employers treat pregnant workers as well as they treat those who are “similar in ability or inability to work.”  Her family’s financial security was threatened at the moment they needed it the most.

  • December 1, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. He is the author of Madison’s Nightmare:  How Executive Power Threatens American Democracy (University of Chicago Press 2009).

    *This post originally appeared on the blog for Washington Monthly.

    It’s December, 2008.  President Bush foresees economic calamity if the U.S. auto industry collapses.  Congress has failed to enact his recommended rescue plan despite majority support in both Houses.  His party has just taken a drubbing at the polls.  What happens?  He is advised that, under the technical wording of the Emergency Economic Stabilization Act of 2008, the Treasury Department can use the Troubled Assets Relief Program (TARP) to effectuate the needed rescue.  Presumably with Bush’s approval, it does so.  The president states explicitly that he is responding to Congress’s inability to enact the needed legislation.  Was this “declaring war on the American people?”  No, it is how governance and the rule of law work in the modern administrative state.  The executive branch, facing a problem to which Congress has not responded, canvasses its existing statutory authorities to see if discretion already exists to address a national need.

    Fast forward nearly six years.  President Bush’s successor confronts three realities on immigration policy. The first is that Congress has not funded – and cannot plausibly finance – a system of immigration enforcement adequate to its caseload. The Pew Research Center estimates that the number of undocumented immigrants in the U.S. was 11.3 million in 2013.

    The Obama Administration deported a record 400,000 persons in 2012. If the government continued at that pace, deporting the current population of undocumented persons would take more than 28 years.  Even that massive effort would clear the decks, so to speak, only if no undocumented persons were to cross our borders between now and the year 2042.

  • December 1, 2014
    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 failure to indict Ferguson, Missouri police officer Darren Wilson for the death of Michael Brown fits an all too familiar pattern of police officers not being held accountable. The decision to not indict in Ferguson follows the acquittal a year ago of George Zimmerman, a self-appointed neighborhood watchman, for the killing of 17 year-old Trayvon Martin. Even more recently this year, two Fullerton, California police officers were found not guilty of all charges in the killing of Kelly Thomas, a homeless man who had been diagnosed with schizophrenia. Medical records show that bones in his face were broken and he choked on his own blood; the compression of his thorax by the police made it impossible for Thomas to breath and deprived his brain of oxygen.

    Nor is this a new phenomena.  Even with a videotape of a savage bearing, a state court jury in 1992 acquitted the four officers who beat Rodney King and a subsequent federal court jury acquitted two of them. The riots in Los Angeles, after the state court acquittals, like the unrest last week in Ferguson, reflected the enormous anger and frustration with the inability to hold police accountable.