President Obama

  • September 6, 2013
    Guest Post

    by Chris Edelson, assistant professor of government in American University's School of Public Affairs. He teaches classes on the Constitution and presidential power. Edelson is author of the forthcoming book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, which will be published by the University of Wisconsin Press in November 2013.

    It was an encouraging development for the rule of law when President Obama decided to ask Congress for legislative authorization to take military action in Syria. When Obama took office in 2009, it was reasonable to expect that his administration would move away from the Bush-Cheney-Yoo unitary executive model, which was essentially an argument for unchecked presidential power. However, while the Obama administration has certainly not embraced the outlandish unitary executive theory, it has, at times, found ways to skirt limits on presidential power.  The most prominent examples are probably the targeted killing, without judicial hearing, of U.S. citizens believed to be terrorist leaders and the administration’s decision to order military action in Libya in 2011. As I have argued elsewhere, in each case, executive branch lawyers in the Obama administration found ways to justify unilateral presidential action unchecked by the other branches of government. 

    Obama’s decision to involve Congress in the debate over the use of military force in Syria suggests a meaningful acknowledgment that presidential power is accountable to checks and balances.  As I have written for the Los Angeles Times, Obama’s decision to seek congressional approval was required by the Constitution since the United States has not been attacked by Syria. However, it was far from clear that Obama would turn to Congress. Advocates of  presidential power point out that past practice -- including Obama’s own action in Libya -- supports the conclusion that presidents can more broadly use military force when it is in the national interest, and not only when the U.S. is attacked. The fact that Obama did not act on his own is a positive sign and may help prevent future presidents from unilaterally using military force (picture a hypothetical President Ted Cruz deciding the national interest justified an attack against Canada).

    There is reason to contain one’s optimism, though, when it comes to setting new limits on the use of presidential power. Obama has stated that he reserves the right to use military force even if Congress declines to pass authorizing legislation. That is disconcerting, and simply does not make a great deal of sense. What is the point of Congress making a decision if it is merely an advisory opinion?  If Congress decides not to authorize the use of military force in Libya, Obama should respect that decision and should not act on his own. Unilateral action under these circumstances would be a dangerous decision for the Constitution, and could also be a bad political move.  Some Republican members of Congress have made clear that they are eager to find a reason, any reason, to impeach President Obama and remove him from office.  To date, there is no legitimate reason to support such an idea.  However, if Obama ordered military action in defiance of Congress, that could provide his political opponents with a legitimate argument for impeachment.

  • August 30, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Yesterday, after months of anticipation, the Department of Justice announced its response to marijuana legalization ballot measures passed by voters in Washington and Colorado last November.  The DOJ said it does not plan to sue Washington and Colorado to block the new laws.  The agency also released new prosecutorial guidance that indicates it may limit the enforcement of federal drug laws in states that have legalized marijuana for recreational or medical purposes.

    If you felt a sense of déjà vu reading that paragraph, there’s a good reason. 

    In 2009, The New York Times ran a front-page article about a different DOJ memo under the headline U.S. Won’t Prosecute in States That Allow Medical Marijuana.  The 2009 Times article reported that “[p]eople who use marijuana for medical purposes and those who distribute it to them should not face federal prosecution, provided they act according to state law, the Justice Department said Monday in a directive with far-reaching political and legal implications.”

    By early 2012, however, Rolling Stone ran a story titled Obama’s War on Pot in which writer Tim Dickinson forlornly told the story of how “over the past year, the Obama administration ha[d] quietly unleashed a multiagency crackdown on medical cannabis that goes far beyond anything undertaken by George W. Bush.”

    Will the DOJ’s new marijuana policy live up to the hype?  Or, will we see a replay of what happened following the 2009 memo?  Policy advocates seem to be split so far, with some calling it a historic turning point for U.S. drug policy and others taking a wait-and-see approach.

    Only time will provide a definitive answer to this question.  But comparing yesterday’s memo with 2009’s can help us understand what to watch for in the months to come.  A few points are worth particular attention.

  • August 13, 2013
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law, San Diego. Kreit is author of the casebook, Controlled Substances: Crime, Regulation, and Policy and the ACS Issue Brief, “Toward a Public Health Approach to Drug Policy.”

    Attorney General Eric Holder announced a new charging policy that has the potential to eliminate mandatory minimum sentences in many drug cases. Holder’s Aug. 12 announcement marks the most significant policy change in what has been, until now, a largely rhetorical shift away from the failed war on drugs

    The new prosecutorial guidelines are aimed at one of the most disgraceful and frequently criticized features of drug war-era mandatory minimum sentencing: tying punishments to drug type and quantity in low-level cases.  The practice began with a hastily drafted law passed by Congress in 1984, at the height of drug war fervor.  The measure sought to increase and standardize punishments in federal drug cases through mandatory minimum penalties.  Legislators claimed that the law would create a two-tiered penalty structure, subjecting so-called “serious” drug traffickers to five-year minimum sentences and “major” traffickers to ten-year prison terms.  (These mandatory penalties can increase to 20-years or even life for defendants with prior felony drug convictions.)

    The problem is that while Congress referred to “serious” and “major” traffickers in debating the mandatory minimum provisions, the five- and ten-year penalties are “triggered not by role but by drug type and quantity instead.”   And, it turns out; drug type and quantity are a poor measure of a drug offender’s culpability. 

    Take drug couriers for example.  Drug couriers are considered expendable by drug organizations.  Most are addicts or otherwise down-on-their luck.  In San Diego, where I live, drug organization recruiters seek out homeless people for this job just a few blocks from the heart of downtown.  They might be paid $1,500 to transport hundreds of thousands of dollars’ worth of drugs across the border. 

  • August 8, 2013

    by Jeremy Leaming

    Judge Patricia Wald, the first woman appointed to the U.S. Court of Appeals for the District of Columbia Circuit, will be awarded the Medal of Freedom by President Obama later this year.

    Wald, a former ACS Board member, is among 16 recipients the White House announced today. Of Wald, the president said:

    Patricia Wald is one of the most respected appellate judges of her generation.  After graduating as 1 of only 11 women in her Yale University Law School class, she became the first woman appointed to the United States Circuit Court of Appeals for the District of Columbia, and served as Chief Judge from 1986-1991.  She later served on the International Criminal Tribunal in The Hague.  Ms. Wald currently serves on the Privacy and Civil Liberties Oversight Board. 

    Wald retired from the bench in 1999, but as Obama noted hardly became idle. She was also honored in 2008 by Legal Timesas a ‘Visionary’ for breaking through barriers during a long career in law,” its blog notes.

    This year Wald has been instrumental in pushing back against Senate Republicans led by Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) who have sought to prevent the president from filling vacancies on the D.C. Circuit, considered one of the most powerful federal appeals court circuits because of myriad cases it hears regarding constitutional concerns and challenges to federal regulation. Grassley has introduced a bill that would remove three judgeships from the 11-member D.C. Circuit under the guise that its caseload is not as burdensome as others.

    Many, such as the Constitutional Accountability Center’s Judith Schaeffer, have noted the obviously political effort to keep a Democratic president from shaping the make-up of the D.C. Circuit, which currently has a distinctly conservative bent. In a recent post for CAC’s Text & History blog, Schaeffer provides plenty of documentation undermining Grassley’s argument that judgeships should be yanked from the D.C. Circuit. She notes that an April letter to the Judiciary Committee from the Judicial Conference of the United States providing assessments of staffing needs of the federal bench did not “contain any recommendation to eliminate or not fill seats on the D.C. Circuit.”

  • July 26, 2013

    by Jeremy Leaming

    President Obama seeking to fill vacancies on the federal bench, which hover above 80, has nominated a diverse group, including an ACS leader and member, to U.S. District Court judgeships.

    Matthew F. Leitman, who has served as a leader the ACS Michigan Chapter, was nominated for the U.S. District Court for the Eastern District of Michigan. Leitman is a principal at Miller Canfield, a Michigan law practice that has offices in Canada, Mexico, Poland and China. Leitman’s work encompasses complex commercial litigation, criminal defense, and litigation before state and federal appellate courts. He graduated magna cum laude from Harvard Law School.

    Vince Girdhari Chhabria, an ACS member and speaker at ACS events, was nominated for the U.S. District Court for the Northern District of California. If confirmed, Chhabria would be the first South Asian judge in California and the fourth South Asian judge in the U.S., The Times of India reports. Chhabria currently serves as Deputy Chief Attorney for Government Litigation and as the Co-Chief of Appellate Litigation in the San Francisco City Attorney’s Office. San Francisco City Attorney Dennis Herrera is an ACS Board member. (In June, Herrera talked with ACSblog about his office’s significant involvement in advancing marriage equality in California.) Chhabria received his J.D. from Boalt Hall School of Law at the University of California, Berkeley.

    The other nominees are: Judith Ellen Levy, an Assistant U.S. Attorney, for the U.S. District Court for the Eastern District of Michigan; Laurie J. Michelson, U.S. Magistrate Judge, for the U.S. District Court for the Eastern District of Michigan; James “Jay” Maxwell Moody Jr., an Arkansas Circuit Judge, for the U.S. District Court for the Eastern District of Arkansas; and Linda Vivienne Parker, a Michigan state judge, for the U.S. District Court for the Eastern District of Michigan.

    There are 85 vacancies on the federal bench. For more information about those vacancies and nominations see JudicialNominations.org.