Guest Post

  • February 15, 2017
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States, IIT Chicago Kent College of Law

    There have now been approximately 25 cases filed around the country challenging President Trump’s executive order (“EO”) imposing a travel ban on refugees and on individuals from seven majority-Muslim countries, and TROs of various scopes have issued. (The University of Michigan Civil Rights Litigation Clearinghouse is gathering filings in these cases.) Most famous, of course, is the nationwide TRO issued by the district court in Seattle in Washington v. Trump, the case brought by Washington and Minnesota, and the refusal of the Ninth Circuit – which treated the TRO as a preliminary injunction – to stay that order pending appeal. (The Ninth Circuit, at the request of at least one active judge, is now considering whether to rehear that decision en banc.) But other cases continue apace. Just yesterday, in a case called Aziz v. Trump, Judge Leonie Brinkema of the Eastern District of Virginia issued a preliminary injunction precluding enforcement of the portion of the Executive Order prohibiting entry into the United States by people from seven specific majority-Muslim countries. (This injunction applies only to Virginia residents as well as to students and employees of Virginia educational institutions.)

    The Trump Administration’s litigation strategy in these cases reveals, if there were any doubt, that no evidence of any security risk prompted the EO and that it engaged in no internal process to evaluate such a risk. Its primary argument on the merits is that the courts can have no role in reviewing the president’s immigration decisions, particularly when they implicate national security. The courts in the travel ban cases have resoundingly rejected this argument, even as they have acknowledged that the president is entitled to substantial deference. The Ninth Circuit spent more than four pages of its opinion and cited reams of Supreme Court opinions explaining the role of the courts in reviewing immigration and national security related decisions of the political branches. And as Judge Brinkema said in her opinion, “Maximum power is not absolute power.”

  • February 15, 2017
    Guest Post

    by Daniel A. Cotter, Partner, Butler Rubin Saltarelli & Boyd LLP and Adjunct Professor at The John Marshall Law School

    The American Constitution Society For Law and Policy recently launched an initiative, “Love Our Constitution,” with the goal for lawyers, judges and others to lead discussions and make presentations about the Constitution and the Federal Courts during the week of Valentine’s Day. I participated in the conference call that ACS held to explain the initiative and then volunteered to conduct a presentation to the local Boy Scouts Troop.

    On Monday, Feb. 13, 2017, I presented the “Love Our Constitution” program to my sons’ troop, Queen of All Saints Basilica Boy Scout Troop 626. About 35 scouts were in attendance and about a dozen adults. We began by handing out copies of the pocket Constitutions provided by ACS and discussing at a high level the document itself, one of the longest standing written constitutions in the world and also one of the shortest, the original being just over 4,500 words. Scouts answered questions about which branch each of the first three articles of the Constitution addressed.

    As I went through the slides, we asked questions of the attendees, including their thoughts on why Federal judges served during good behavior, effectively a lifetime appointment. One Boy Scout answered that the intent was to distance the judiciary from the pressures and demands of fundraising and elections and that lifetime appointments allowed the judges to act independently. Before moving to the next slides, we discussed this answer and identified a few instances where the party that had appointed the justices in the majority was not pleased with the decisions. We briefly discussed the Warren Court and the Brown v. Board of Education and criminal defendant rights’ cases and how upset many were. One Scout also raised the recent same sex decision by the Roberts Court, Obergefell v.Hodges.

  • February 15, 2017
    Guest Post

    *This piece originally appeared in Newsweek.

    by Ben Clements, Attorney, Clements and Pineault LLP and Chair of the Board, Free Speech for People and Ron Fein, Legal Director, Free Speech for People

    Patriotic Americans disagree on many things. But one thing almost all of us can agree on is that we are nation of laws and that no man or woman is above the law.

    And in our system of government, the supreme law that stands above all else is our founding charter, the Constitution of the United States.

    No president in our history has openly taken the position that he stands above and need not comply with the requirements of our law, especially the supreme law enshrined in our Constitution.

    Until now.

    Since the moment he took the Oath of Office and swore to uphold our Constitution, President Trump has been in direct and willful violation of these clauses.

    The Foreign Emoluments Clause states that “no person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign State.”

  • February 14, 2017
    Guest Post

    by Zach Piaker

    Last week, Ari Melber, Chief Legal Correspondent at MSNBC, spoke to Columbia Law students at an event co-hosted by ACS about the unique challenges facing journalists covering the Trump administration. The current occupant of the Oval Office is reported to be a voracious consumer of cable news, which means television journalists can often speak directly to the leader of the free world—a role many are still adjusting to. Melber relayed to us his experience on the morning of Jan. 18th, when, in a Today Show segment, he fact-checked the then-president-elect’s claims of credit for domestic investments announced by General Motors and Carrier Corp., and concluded that those hiring decision had been made months, or even years, earlier.

    By 7:44 a.m., @realDonaldTrump had taken note and tweeted: “Totally biased @NBCNews went out of its way to say that the big announcement from Ford, G.M., Lockheed & others that jobs are coming back... to the U.S., but had nothing to do with TRUMP, is more FAKE NEWS. Ask top CEO's of those companies for real facts. Came back because of me!”

    Melber recalled feeling both empowered and disoriented watching the president-elect react in real time to his reporting, though he noted that it was important that journalists avoid becoming part of the story or allow it to affect their work. Presidents have often had a combative relationship with the press, but the nascent Trump administration has already demonstrated an extraordinarily loose relationship with the truth as well as an inclination to attack reporters for doing their job, deriding all unfavorable coverage as “fake news.” (For the record, other outlets corroborated Melber’s findings. Trump went on to mock the Today Show’s ratings, which of course prompted its own round of fact-checking.)

  • February 14, 2017
    Guest Post

    *This piece originally appeared on Just Security.

    by Ryan Goodman, Co-Editor-In-Chief of Just Security and Anne and Joel Ehrenkranz Professor of Law at New York University School of Law and Steve Vladeck, Co-Editor-In-Chief of Just Security and Professor at The University of Texas School of Law

    The news from overnight that National Security Adviser Michael Flynn has resigned over his inappropriate pre-Inauguration dealings with Russia has also reinvigorated the debate over whether he can and should be prosecuted for violating the Logan Act, 18 U.S.C. § 953. Although Steve has previously suggested that the Logan Act could not be used to prosecute members of the presidential transition team (if it could be used at all, given that it has been moribund for over 200 years and is, in any event, a content-based restriction on speech), an exchange over e-mail between us about Steve’s prior post led to this Q&A that more fully fleshes out those arguments:

    Ryan to Steve: You wrote that the spirit of the Logan Act, if not its letter, would not apply to members of an incoming presidential transition team. But the White House appears to be saying that Flynn was going rogue on those phone calls, that he never cleared it with them to speak about the sanctions, and that he lied to them about the content of the calls afterwards. If that is true, would it not throw out the window an analysis that says a person acting in their capacity as a presidential transition team member does not come under the Logan Act? Flynn would have been acting not only “without authority of the United States,” but also without authority of the presidential transition team.

    Steve to Ryan: It might. But the absence of any Logan Act prosecutions means that there has been no judicial analysis of what it means to act “without the authority of the United States” in this context. For example, it is not clear to me that a serving Cabinet officer—who we all agree would ordinarily exercise the “authority of the United States”—would violate § 953 if he engaged in unauthorized communication with a foreign government with the “intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” The question is whether “authority of the United States” in this case literally requires the president’s (express or tacit) approval of the content of the communication (which, contra another post of mine, would likely mean that members of Congress would often act without such authority), or whether it just means under color of U.S. authority. I think the better reading of the Act’s text is the latter—but that is especially true if the former reading would potentially raise some of the constitutional concerns to which I have previously alluded.