President Obama

  • September 26, 2014
    Guest Post

    by Neil J. Kinkopf, Professor of Law, Georgia State University College of Law

    A growing chorus of legal scholars has argued that President Obama’s move against the Islamic State of Iraq and the Levant (ISIL) lacks legal authority. Professor Noah Feldman has most recently added his voice. He first made the claim on Tuesday in a blog post and repeated it Thursday on NPR’s “All Things Considered.” Feldman assures his readers that “We can dispense quickly the justifications that the administration has proffered ….”   True to his word, Feldman dispenses with the arguments quickly – too quickly, leaving his analysis facile and utterly unpersuasive. 

    In fact, at least three sources firmly establish the President’s authority to proceed against ISIL. 

    1.  Days after the terrorist attacks of September 11, 2001, Congress specifically empowered the President to respond.  Under the 2001 Authorization of Use of Military Force, “the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons ….”   Prof. Feldman argues that this law does not support the President’s action against ISIL.  Here’s the full argument:

    The 2001 authorization is less applicable still. In it, Congress told the president he could make war on anyone he determines to have “planned, authorized, committed, or aided” the Sept. 11 attacks. The George W. Bush and Obama demonstrations [sic] have vastly expanded this language to cover al-Qaeda affiliates and spinoffs that didn't exist in 2001. But even these extensions don't cover Islamic State, which is not only unaffiliated with al-Qaeda but also at war with its affiliate in Syria, known as the Nusra Front.

  • August 14, 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

    Headlines often describe President Obama as “going it alone” on public policy in light of congressional inaction.  But his boldest moves in favor of workers’ rights are rooted in an obscure statute enacted 65 years ago – the Federal Property and Administrative Services Act of 1949 (FPASA).  That statute’s explicit purpose is to establish “an economical and efficient system for . . . [p]rocuring and supplying property and nonpersonal services” for the federal government.”  Most important, it specifically empowers the President to “prescribe policies and directives that the President considers necessary to carry out” FPASA’s purposes.

    In late July, President Obama issued two important orders resting directly on his FPASA authority. Executive Order 13672 adds to the prohibitions on employment discrimination by federal contractors a ban on discrimination based on “sexual orientation” or “gender identity.”  Executive Order 13673 imposes a variety of measures to insure that federal contractors comply with state and federal labor laws. It further prohibits employers with federal contracts worth $1 million or more from insisting on the mandatory arbitration of worker complaints dealing with sexual assault or harassment or with claims arising under title VII of the Civil Rights Act of 1964. Last February, the President issued Executive Order 13658, imposing a higher minimum wage requirement on federal contractors, as well.

    These orders have important precedents. President Kennedy relied on FPASA to prohibit race discrimination by federal contractors, a requirement amplified by President Johnson. President Nixon relied on FPASA to require federal contractors to engage in affirmative action to achieve equality in employment. President Carter used FPASA to impose a temporary system of wage and price controls on federal contractors. President Bush required federal contractors to inform employees of their right not to join a union. These orders have all been upheld in court.

  • August 8, 2014
    Guest Post

    by Raha Wala, Senior Counsel, Defense & Intelligence, Human Rights First

    Last week President Obama admitted what most people have long known—that, in the president’s words, “we tortured some folks” after 9/11 in a bid to thwart future terrorist plots.  The president was referring to a soon-to-be released report by the Senate Select Committee on Intelligence (SSCI) that documents the CIA’s use of torture and cruel, inhuman, or degrading treatment at secret “black sites” around the world in the wake of the 9/11 attacks. But the CIA has resisted and even undermined oversight on this critical issue from the beginning. And now current and former CIA leaders appear poised to mount a “counterattack” to undermine the report’s key findings and defend the so-called “enhanced interrogation” program. President Obama can’t let that happen.  He should direct members of his administration, including CIA Director Brennan, to get in line with the anti-torture policy he laid out when he—as one of his first official acts as president—signed an Executive Order shuttering the CIA black sites and banning torture and other forms of cruel treatment. 

    The SSCI report is the result of a five-year inquiry into the CIA rendition, detention and interrogation program; it began when the committee discovered that the CIA had disregarded warnings from the White House and destroyed videotapes of waterboarding and other brutal torture sessions. The report—a voluminous account, at 6,700 pages—is based on a review of more than 6 million pages of official documents, and is said to conclude that interrogations in the CIA program were much more widespread and brutal than previously known, and much less effective at gathering intelligence to stop terrorist plots than proponents of so-called “enhanced interrogation” claim. The report will show, for example, how the interrogation program played no meaningful role in gathering intelligence to help discover Osama Bin Laden’s whereabouts. It is also said to document how the CIA systematically misled Congress, the Department of Justice, and the White House about the effectiveness of the program. Senator Dianne Feinstein, Chair of the SSCI, has called the investigation into the CIA’s use of torture one of the most significant in the history of the United States Senate, and the most important oversight activity ever conducted by the SSCI. The executive summary, findings and conclusions of the SSCI report—about 600 pages of material—are set to be released in the coming weeks.

  • June 16, 2014

    by Paul Guequierre

    LGBT workers garnered another victory today as President Obama indicated he will sign an executive order barring discrimination on the basis of sexual orientation and gender identity by companies that contract with the federal government. According to the Human Rights Campaign, the order, which would make it illegal for companies with U.S. government contracts to fire or avoid hiring employees based on sexual orientation and gender identity, just as it now is with race, will impact 20 percent of the U.S. workforce.

    During his campaign President Obama vowed to sign the executive order, but has spent much of the past few years avoiding the issue, pushing instead for Congress to pass the Employment Non-Discrimination Act (ENDA), which would make it illegal for all employers to fire or refuse to hire someone based on their sexual orientation or gender identity. In a historic vote, the United States Senate passed ENDA, but its chances of success in the house are slim with an anti-equality leadership.

  • February 14, 2014

    by Rebekah DeHaven

    On Tuesday, the Senate Judiciary Committee held a hearing for three judicial nominees. They were:

    • Robin Rosenbaum, Eleventh Circuit,
    • Bruce Hendricks, District of South Carolina, and
    • Mark Mastroianni, to be United States District Judge for the District of Massachusetts.

    On Wednesday, Sen. Pryor (D-Ark.) requested that Majority Leader Reid  (D-Nev.) ask unanimous consent to consider the nomination of James Moody to the Eastern District of Arkansas. Sen. Pryor stressed the importance of moving Moody’s nomination because of uncertainty regarding Judge Moody’s current Pulaski County Circuit judgeship election.

    Sen. Reid asked the Senate for unanimous consent to consider Moody’s nomination, along with the nomination of Jeffrey Meyer to the District of Connecticut, James Donato to the Northern District of California and Beth Freeman to the Northern District of California. Sen. Cornyn (R-Tex.) objected, and Sen. Reid filed cloture on all four nominees. The first cloture vote will occur at 5:30pm on Monday, Feb. 24 when the Senate returns from recess.