Guest Post

  • September 23, 2016
    Guest Post

    by Ashley Lawrence, co-president, ACS Student Chapter at Howard University School of Law

    On Tuesday Sept. 20, the Howard Law community celebrated Constitution Day commemorating the signing of the Constitution by our country’s Founding Fathers on Sept. 17, 1787.  Among the many relevant words within the living, breathing document are those contained in Article II, Section 2, Clause 2 which states: “The President […] shall nominate, and by and with the advice and consent of the Senate, shall appoint […] judges of the Supreme Court.” At present—more than 191 days after nomination —Supreme Court nominee and U.S. Court of Appeals for the D.C. Circuit Chief Judge Merrick Garland awaits confirmation and has yet to receive even a hearing for a seat on the United States Supreme Court.

    The guest for Howard Law’s celebration of Constitution Day was none other than Chief Judge Merrick Garland. The lively “Arm Chair Conversation” between Chief Judge Garland and Howard Law Dean Danielle Holley-Walker was thought provoking and left me with two main takeaways. One—this is the longest any Supreme Court nominee has waited to be confirmed. His nomination is all the more important because his role in the federal judiciary, which plays a significant role in making decisions that address critical constitutional and civil rights issues, is currently diminished. Two—it is imperative that we learn in law school how crucial it is to participate in public interest opportunities and continue to commit to public service in our legal careers by investing in our communities to ensure the legal rights of society’s most vulnerable. Chief Judge Garland has demonstrated this commitment by volunteering with students from J.O. Wilson Elementary School for the past 18 years and by participating in the Annual Judicial Reception here at Howard Law for the past 14 years.

  • September 19, 2016
    Guest Post

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

    *This post is part of the ACSblog symposium: Constitution Day 2016

    After the country observed Constitution Day this past weekend, there remains the simple reality that the outcome of the November presidential election almost surely will determine the meaning of the Constitution for decades to come. Since 1971, when Richard Nixon’s third and fourth justices for the Supreme Court were confirmed, until Justice Antonin Scalia died on Feb. 13, there always have been five and sometimes as many as eight justices appointed by Republican presidents. Now there are four justices appointed by Republican presidents (Roberts, Kennedy, Thomas and Alito) and four justices appointed by Democratic presidents (Ginsburg, Breyer, Sotomayor and Kagan). Who replaces Justice Scalia will tip the ideological balance on the Supreme Court in countless areas – such as campaign finance, gun control and separation of church and state – where he has been in the majority in 5-4 decisions.

    But it is not only Justice Scalia’s seat that is at stake. Since 1960, 78 years old is the average age at which a Supreme Court justice has left the bench. There are now three justices – Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer -- who are 78 or older. Especially if the next president serves two terms, he or she will have several picks for the Supreme Court. This will determine the ideological composition of the Court, likely for decades.

    Picking Supreme Court justices is one of the most long lasting legacies of any presidency. William Rehnquist was nominated for the Supreme Court by President Richard Nixon in 1971 and served until his death in 2005. John Paul Stevens was nominated by President Gerald Ford in 1975 and served until he retired, at age 90, in 2010. Clarence Thomas was 43 when he was confirmed in 1991 and if he remains until he is 90, he will be a justice for 47 years until the year 2038.

    If a right-leaning president replaces Justice Scalia and say Justices Ginsburg and Breyer, these justices, together with Chief Justice Roberts and Justices Thomas and Alito – all of whom are in their 60s – will be a conservative majority for years to come. But if a left leaning president fills these vacancies, the new justices, along with Justices Sotomayor and Kagan will be a progressive majority for a long time.

  • September 16, 2016
    Guest Post

    by Adam Winkler, Professor of Law, UCLA School of Law

    *This post is part of the ACSblog symposium: Constitution Day 2016

    Happy Constitutions Day!

    No, that is not a typo. I know that tomorrow, September 17, is officially “Constitution Day,” marking the date in 1787 when the Constitution was submitted to the states for ratification. And I know there is only one document called the Constitution of the United States, not multiple different ones. Yet given how much the Constitution has changed, how different our perceptions of its requirements and the many other constitutions in American lives, perhaps we should nonetheless refer to it as “Constitutions Day.”

    Of course the original version of the Constitution is of vital importance to American history, culture and law. We must remember, however, that the states found that document wanting because it lacked a clear specification of individual rights. Several states conditioned their ratification of the Constitution on the adoption of significant amendments. Their objections to the Constitution led to the addition of the Bill of Rights in 1791. Four years after the first Constitution was proposed, we end up with a new one, revised and improved.

    Since then, we have added another 17 amendments to the Constitution. Some, like the Reconstruction Amendments (13th, 14th, & 15th) are of tremendous significance, radically reshaping the Constitution once again. The effect on American life and government from these amendments, which overhauled the relationship between the federal government and the states, was profound. Other amendments, like the 27th, which deals with congressional salaries, are relatively minor. Yet all of them have one thing in common: they each created a new Constitution. The Constitution today is different than the Constitution Americans lived with 50 years ago, which is different from the one 50 years before that.

  • September 14, 2016
    Guest Post

    by Margo Schlanger, Henry M. Butzel Professor of Law, University of Michigan.  In 2010 and 2011, she served as the presidentially appointed Department of Homeland Security Officer for Civil Rights and Civil Liberties. 

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    In the fifteen years since that terrible day in 2001, we have seen significant threats to civil liberties—augmented surveillance, a cramped vision of the Fourth Amendment, abridgements to habeas corpus, aggressive use of material support laws, etc.  Sometimes prompted by public dismay, we have also seen the courts, Congress and the President moderate the government’s course on some of the most aggressive practices. In addition to more well-known interventions, a less-known response (though one I have written about at length) is that the Congress and the President have institutionalized, inside of the government, somewhat domesticated civil libertarian voices on national security topics. In the 2004 Intelligence Reform and Terrorism Prevention Act, Congress instructed the lead Intelligence Community elements to establish Civil Liberties Protection Offices and in the years since, several more have been added. There is an office along these lines in the Office of the Director of National Intelligence, one in the CIA, the NSA, etc. These offices are supposed to ensure that “civil liberties and privacy protections [are] integral considerations in the planning of intelligence activities” and that “[i]ntelligence activities [are] conducted in a manner that protects civil liberties and privacy.”

    In my view, the threats to civil rights are even more significant than the threats to civil liberties. There has been a palpable erosion of American equality as Arabs and Muslims, including American citizens, have been targeted for special law enforcement, intelligence and immigration attention. Two examples, which could be multiplied many times over: It is commonplace, now, for non-Muslims who express fear of their Muslim fellow airline passengers based on innocuous phrases or ordinary behavior to have those fears ratified rather than rebutted when the Muslims (and the occasional Sikh) are pulled off the plane, facing questioning by the FBI. And Muslim students have to worry that their associations may be monitored, their conversations reported to police, perhaps twisted and used to their detriment.

    And yet we have seen far less civil rights than civil liberties recalibration. Take, for example, the issue of selective immigration enforcement. The Supreme Court in 1999 left the door for challenges to this practice only the tiniest bit ajar, noting that in general selective immigration enforcement was lawful, though the Court “need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous” as to justify an exception. In the years since, I am not aware of any court that has found any case sufficiently “outrageous” to support a challenge.

  • September 13, 2016
    Guest Post

    by Deborah Pearlstein, Associate Professor of Law, Benjamin N. Cardozo School of Law

    *This post is part of the ACSblog symposium: The Fifteenth Anniversary of Sept. 11, 2001. 

    When ACS asked whether I might contribute to its blog symposium marking the 15th anniversary of the attacks of 9/11, I thought immediately of the many works I have already seen trying to assess what has happened to national security law or to the separation of powers more broadly, in the years since the attacks.  A great many of these writings have aimed to tell linear stories of the lessons that the U.S. response to the attacks have taught or reinforced, about the nature of the U.S. government in times of conflict – courts defer to the executive in wartime, for example or executive power only grows in wartime. Others have focused on characterizing thematic changes in the substantive law, identifying a categorically “new normal” in which war never ends and neither (therefore) does the application of the law of war, in which lethal targeting and detention without trial are uniquely permitted.

    Yet the complex reality of the past 15 years has repeatedly challenged the notion that we might accurately tell a singular thematic story of the current legal age. Take the expectation that wartime will feature repeated bold assertions of executive power, assertions no other branch will move to rein in, with the effect that the power of the U.S. executive only increases over time. There are indeed repeated, important historical examples of wartime executives making broad claims of power and little question that both post-9/11 presidents have at times done so too. President Bush claimed, for example, that the president’s power as commander-in-chief could not be constrained by a federal statute criminalizing torture. Making an argument of different magnitude in one sense, President Obama, likewise, sought to evade federal War Powers Act requirements of congressional authorization for the continued use of U.S. military force in Libya by arguing that, notwithstanding a then deepening U.S. air war in Libya, the United States was not engaged in “hostilities” within the meaning of the Act.