President Obama

  • November 7, 2014

    by Caroline Fredrickson, President, American Constitution Society for Law and Policy. Follow her on Twitter @crfredrickson. This piece originally appeared on The Huffington Post.

    Many may despair -- believing the next two years in Washington will be a long slog of tiresome partisan fights with no positive action to improve the lives of Americans. But moping is the last thing progressives should be about.

    Let's talk judicial nominations. Federal courts are vital -- they decide pressing matters every day, whether they are challenges to employment discrimination, corporate malfeasance, or immigration appeals. Do we just throw our hands up on judicial nominations, buying into a lazy argument that nothing much can be done now with a Senate controlled by Republicans? There likely are many important policy matters that will be shelved. But it doesn't have to be that way with judicial nominations. On this front there's work to be done and it can be achieved with an energetic attitude -- not apathy.

    There are 64 vacancies on the federal bench and if we give up on the federal courts that number will spike and we'll have judges with outlandish caseloads and Americans with a sluggish, inefficient court system. Part of the Senate's job is to confirm judges to ensure our country has a well-running judicial system. We know all too well that for much of Obama's presidency, Senate Republicans have obstructed the process, slow-walked the president's nominations while arguing everything was just fine. Republican leaders who will take control of the Senate in the New Year are talking about cooperation and working with President Obama, but let's be ready to hold them to their words.

    Some of the current vacancies can and should be filled during the lame-duck session. Democrats in the Senate need to get over the outcome of the midterm elections in quick manner and fill 25 vacancies, which can be done -- with the right attitude. There are 16 judicial nominees who have been approved by the Senate Judiciary Committee and are ready for up-or-down votes on the Senate floor. There's no excuse for letting those nominees languish. There are also nine nominees, who have had hearings before the Senate Judiciary Committee. The Committee should move those nominations to the Senate floor as soon as possible. This is doable in the lame duck.

    And then the next two years -- again no time for dwelling on what could have been. The Senate Republicans may turn back to their obstructionist ways -- let's hope not. Maybe they'll surprise us on the judicial nominations front and realize this is an area for cooperation. But if not, progressives must be ready to push back and keep up the pressure, reminding as many Americans as possible of the great importance our judicial system is to a well-functioning democracy.

  • November 6, 2014

    by Caroline Cox

    Timothy M. Phelps writes in the Los Angeles Times on President Barack Obama’s fading opportunity to influence the ideology of the judiciary.

    At the Harvard Law & Policy Review, Matthew Skurnik considers the worth of a Supreme Court ruling on same-sex marriage.

    Jess Bravin reports for The Wall Street Journal on Chief Justice John Roberts’ remarks at a celebration for the 800th anniversary of the Magna Carta.

    In The New York Times, Adam Liptak reviews the oral arguments for Yates v. United States, which has the Supreme Court considering whether a fisherman can be convicted of violating a federal law aimed at white-collar crime for throwing back undersized fish into the Gulf of Mexico.

    Richard Re at Re’s Judicata lists the top ten moments during oral arguments, which proved to be “hilarious, insightful, and sometimes surreal.”

  • 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.