Separation of powers

  • March 20, 2017
    Guest Post

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

    This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

    The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

  • March 20, 2017
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.

    I. Delegation of Regulatory Power

    The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.

  • March 17, 2017
    Guest Post

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    In November 2004, Neil Gorsuch oversaw legal teams in Eastern and Central Ohio for the Bush-Cheney campaign. In an email to President George W. Bush’s Political Director Matt Schlapp, he cheered, “What a magnificent result for the country. For me personally, the experience was invigorating and a great deal of fun.” (The experience for up to 15,000 people unable to vote in Columbus, Ohio because lines stretched for hours was probably less invigorating or fun.)

    Gorsuch continued, “While I’ve spent considerable time trying to help the cause on a volunteer basis in various roles, I concluded that I’d really like to be a full-time member of the team.” 

    His resume describes the various roles in which he was politically active to “help the cause,” with greater specificity than his Senate Judiciary Questionnaire—Co-Director of Virginia Lawyers for Bush-Cheney; Bush-Cheney Marshal; RNC Bronco; and Co-Chairman of the Republican National Lawyers Association Judicial Nominations Task Force—for which the Senate Republican Conference cited his Distinguished Service to the United States Senate for his work in support of President Bush’s judicial nominees.

    As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raises troubling concerns regarding his nomination to the Supreme Court. 

  • March 15, 2017
    Guest Post

    *This piece originally appeared on the Stanford Law School Blog.

    by Nora Freeman Engstrom, Professor of Law, Associate Dean for Curriculum and Deane F. Johnson Faculty Scholar at Stanford Law School

    All eyes are on health care. We are watching Congress take a hammer to the Affordable Care Act and threaten to wreak havoc on a $3 trillion-a-year industry, on which all of us rely. Concern about this congressional action is roiling op-ed pages, spilling out into town hall meetings, and even resulting in pro-Obamacare TV spots, airing across the United States.

    Yet, just out of view, Congress is hard at work dismantling another system—a system that is arguably just as vital to our economy and just as critical to our collective well-being. It is the civil justice system. And the threats it currently faces are serious.

    At this moment, numerous bills that alter the civil justice system are speeding through the House of Representatives. Each bill would, in its own way, upend time-honored procedures for where cases are brought, how they are litigated and whether plaintiffs get a fair shot or, instead, face a stacked deck. That, in turn, will determine whether the laws on the books are adequately enforced or, instead, whether corporations, governmental actors and others can violate our laws—whether involving the environment, civil rights, product safety, consumer protections or just about anything else—with impunity.

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.