Separation of powers

  • February 19, 2016

    by Nanya Springer

    In the week following the death of Supreme Court Justice Antonin Scalia, confusion and misinformation became widespread with regard to U.S. leaders’ constitutional obligations to fill the vacant seat. To explain what the Constitution requires of President Obama and the U.S. Senate, as well as the ramifications of a prolonged vacancy on the high Court, noted professor and legal expert Erwin Chemerinsky on Wednesday joined ACS for a discussion about what comes next.

    Chemerinsky immediately dispelled the myth that a president should not nominate a Supreme Court justice in an election year by simply reading the text of the Constitution. He explained, “What it says in Article II, Section 2, paragraph 2, is that the president ‘shall appoint Ambassadors, other Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . with the Advice and Consent of the Senate.’ So, the Constitution creates a duty for the president to appoint Supreme Court justices by using the word ‘shall.’ There is no clause in Article II that says, ‘but not in an election year.’” He added that “presidents throughout American history have nominated in an election year, the last year of their term.”

    Chemerinsky provided historical data, noting that "over the entire course of American history, 24 times presidents have nominated individuals in an election year . . . and in 21 of 24 instances, the nominee has been confirmed by the Senate. That’s 87.5 percent. If you look at the entire course of American history, and all presidential nominations to the Supreme Court, 86.9 percent have been conformed. So there’s no statistical difference between nominations in the last year of presidency and nominations that come at any other time of the presidency.”

    Clearly, there are consequences that result from having an eight-member Supreme Court, particularly in the event of a 4-4 split. In that situation, Chemerinsky explained, the Court may choose to reconsider the case and seek a resolution on narrow or procedural grounds, put the case over for reargument the next term, or affirm the lower court’s decision without opinion. The latter situation would create complications in the presence of a circuit split because “the same federal law will have varying meanings in different parts of the country.”

    To listen to the full discussion, click here.

  • February 19, 2016

    by Nanya Springer 

    In The Huffington Post, ACS President Caroline Fredrickson urges the U.S. Senate to fulfill its constitutional duty and “give fair and prompt consideration” to any Supreme Court nominee.

    ACS Director of Strategic Engagement Jill Dash comments to Paul Waldman in The Washington Post about the improbability that a new Supreme Court would immediately overturn high-profile decisions. “The four more liberal justices currently on the Court take precedent and stare decisis seriously,” adds ACS Issue Brief author Samuel Bagenstos.

    Perry Cooper at Bloomberg BNA says class actions may see a Renaissance in the near future and notes ACS Board member Erwin Chemerinsky’s prediction that Spokeo Inc. v. Robins will result in a 4-4 split decision.

    In the Emory Corporate Governance and Accountability Review, Caroline Poplin examines the pharmaceutical industry’s misuse of First Amendment doctrine, and ACS Board member Reuben Guttman, with Paul J. Zwier, examines wrongful marketing and pricing practices.

  • June 3, 2015
    Guest Post

    by Chris Edelson, assistant professor of government, American University School of Public Affairs. Chris is the author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, published in 2013 by the University of Wisconsin Press.

    Presidential candidates may find it easy to score political points by talking tough, especially when there are lots of things for Americans to be afraid of in the context of national security.  Governor Scott Walker, a candidate for the Republican nomination, is showing his ability to play this game.  However, while this approach may score Walker points with voters, the governor is playing a dangerous game when it comes to presidential power under the Constitution.  This is a scenario that has become all too familiar since 9/11.

    While campaigning in New Hampshire last weekend, Walker told voters that “I'm not eager to go into open-ended engagements, but I'm not afraid to lay down the law when we have to.”  He declared that “I just want people to know that while I'm ready to be firm, my first intention, my first instinct, isn't to send in military forces.  But I'm certainly not going to rule it out.”  He further explained that “In Iraq, people ask me, 'Would you put boots on the ground?’  I don't rule anything out.  The last thing you want to do is send a message to your adversaries, how far you're willing to go, how long you want to be there.  That's a foolhardy military strategy that sets up failure.  So I wouldn't rule it out.  But I wouldn't lead with it.”

    Walker’s rhetoric may remind some of dialogue from a John Wayne movie or Tom Clancy novel, but what’s more important is his assumption that it would be up to him, as president, to make these decisions unilaterally.  In this vein, Walker argued that “We need a commander-in-chief who understands going forward that radical Islamic terrorism is a threat to us all and will act to do something about it. . . . I'd rather take the fight to them instead of waiting until they bring the fight to us."  Note the first person references.  Walker’s model for decisions about the use of military force doesn’t seem to include much of a role for Congress.  Instead, he envisions a decision-making process dominated by the president.  Walker imagines himself making unilateral decisions as to when, whether, and how to use military force.

  • December 9, 2014

    by Caroline Cox

    Vikram David Amar writes at Verdict why the federalism lessons of the 2012 Affordable Care Act case weaken the argument in King v. Burwell.

    In Reuters, Joan Biskupic, Janet Roberts, and John Shiffman consider the small group of elite lawyers that dominate the Supreme Court docket.

    Conor Friedersdorf of The Atlantic writes about applying the “broken windows” theory to the police.

    At Bloomberg View, Noah Feldman reviews the recent Supreme Court case on Amtrak that considers how much lawmaking authority Congress can delegate to other bodies.

  • February 3, 2014
    Guest Post
    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and Chief Ethics Lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"
     
    Senator Rubio of Florida is now one of the strongest contenders in the GOP for president. He is qualified and likeable and thus far has a clean record on ethics. One or more of Rubio’s Senate colleagues also might have a shot at the nomination. There are other good candidates as well. And Republicans, if they can get their act together, have a very good chance of electing a president in 2016. 
     
    One of the most important things a new president will do is appoint judges, the job that our current president has been trying to do for the past five years. The president will need the advice and consent of the Senate to make these appointments, but courts need judges, and presidents and senators have an obligation to make sure vacancies on courts are filled.
     
    And the place where senators should care most about filling judicial vacancies should be their own home states. The interests of constituents in access to judges and justice should be a priority over playing partisan politics.
     
    And this is why, until recently, it usually was not a problem for the Senate to allow home state senators an informal veto—implemented through the so called “blue slip” process—over confirmation of judges in their own states. Senators might try to block nominees from other states with filibusters and other tactics, but would protect their own constituents by working out a deal with the White House for nomination and confirmation of an acceptable nominee in their state.