Separation of Powers and Federalism

  • February 15, 2017
    Guest Post

    *This piece originally appeared in Newsweek.

    by Ben Clements, Attorney, Clements and Pineault LLP and Chair of the Board, Free Speech for People and Ron Fein, Legal Director, Free Speech for People

    Patriotic Americans disagree on many things. But one thing almost all of us can agree on is that we are nation of laws and that no man or woman is above the law.

    And in our system of government, the supreme law that stands above all else is our founding charter, the Constitution of the United States.

    No president in our history has openly taken the position that he stands above and need not comply with the requirements of our law, especially the supreme law enshrined in our Constitution.

    Until now.

    Since the moment he took the Oath of Office and swore to uphold our Constitution, President Trump has been in direct and willful violation of these clauses.

    The Foreign Emoluments Clause states that “no person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office or Title of any kind whatever, from any King, Prince or foreign State.”

  • February 13, 2017
    Guest Post

    by Matthew Stanford

    Though widely considered a dark stain on the fabric of American history, the Supreme Court’s decision in Korematsu v. United States more than 70 years ago lives on. In Korematsu, the Supreme Court upheld President Roosevelt’s executive order for the internment of Japanese Americans during World War II. Today, the decision’s influence moves virtually undetected through the parlance of executive authority. The immense power of the president in times of “emergency and peril” has affixed itself to our constitutional DNA. The imperial presidency is not just taken for granted. It is assumed.

    The thought of another Korematsu is not far-fetched. The current administration cites an always-imminent threat of terrorism to support a religiously motivated travel ban, a supposed spike in violent crime to expand stop-and-frisk in minority neighborhoods and an invisible invasion of drug dealers and rapists from our southern border to justify mass deportation. If we are to avoid repeating history, progressives cannot afford to be short-sighted. Political victory alone does little to mend the constitutional wounds that Korematsu left behind.

    Critics of the Supreme Court decision often cite the depth to which then-Governor Earl Warren would later come to regret allowing the “cruelty of war” to cloud his better judgment. As if to say things would be different today. Regret, however, does not erase the past, much less Korematsu’s abiding tear in our constitutional fabric. Indeed, Justice Hugo Black, the opinion’s author, maintained decades later that he “would do precisely the same thing today.” And former Chief Justice William Rehnquist minced no words about executive authority to limit civil liberties being at its nadir “in time of war.”

  • February 6, 2017
    Guest Post

    *This piece was originally published by Niskanen Center.

    by Paul Gowder, Associate Professor of Law at the University of Iowa

    The Constitution and the Rule of Law

    The late Justice Scalia was well-known for a number of important judicial commitments—to constitutional originalism, to a permissive account of the Establishment Clause, to a skeptical approach to executive criminal justice power. But his most important commitment was to the rule of law, a central constitutional ideal to which he routinely appealed (and about which he published a famous academic article, “The Rule of Law as a Law of Rules“).

    The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.

    At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law, such as the judgment of courts. They must also respect the right of the people to turn to such procedures in order to defend themselves from the might of the government. And the rule of law requires that public officials not be endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.

  • March 1, 2016
    BookTalk
    An Argument Open to All
    Reading "The Federalist" in the 21st Century
    By: 
    Sanford Levinson

    by Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

    Early in my new book, An Argument Open to All: Reading "The Federalist" in the 21st Century, I refer to the set of essays published in 1787-1788 as “the best known, most widely read and analyzed extended work of American political thought.” I now believe, from talking to many colleagues and students, that the reference to “widely read” is almost certainly wrong. Many people have no doubt read Federalists No. 10, 47, 51, and 78, but there are 81 additional essays, most of which languish in obscurity.

    So the central question is whether there is good reason for a 21st century reader in fact to read The Federalist beyond the few “greatest hits.” It is obvious why someone interested in the formation of the Constitution would be interested in the entire corpus. Interestingly, it is less obvious why anyone with a particular interest in interpreting the Constitution would have to read it; very few of the 85 essays actually relate to the controversies that come before the judiciary or other constitutional interpreters in the 21st century. Most of them are devoted to explaining why the system established by the Articles of Confederation was “imbecilic;” why unifying behind a new constitution was essential to defense against what we would today call threats to our national security; and broad discussions of the institutions that comprise our political system (and which, being “hard wired,” are almost never the subjects of litigation).

    My book consists of 85 separate essays, each one corresponding to the respective original essay. They offer not so much an exegesis of the original as an inquiry whether it still has anything to tell us about constitutionalism in the 21st century. Underscoring the “presentism” of the essays is the fact that I refer exclusively to Publius, the notional author, and not to the actual historical authors Alexander Hamilton, John Jay, or James Madison. One of the consequences of adopting that approach is that I don’t have to concern myself with the question of the authors’ “sincerity” or genuine belief in their own arguments, shaped to elicit the votes of ratifiers at the state ratification conventions in 1788. My audience is persons interested in the Constitution in 2016 (or in 2020). Should they (you) make time at least to read my book and perhaps even return to The Federalist itself? To a degree that genuinely surprises even me, given my own doubts when I embarked on this project, I think the answer is yes.

  • April 6, 2015
    Guest Post

    by Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law; Professional Lecturer in Law, George Washington University Law School

    The area near the border between Texas and Mexico is a dangerous one, especially if you are a liberal Democrat from the North trying to deal with about 11.3 million individuals who are not lawfully in the United States, when the budget and the personnel to operate existing systems will not enable you to deport more than 400,000 a year. And judging from the February 16 opinion in Texas v. United States by District Judge Andrew Hanen, who sits in the Brownsville Federal Court located there, the courthouse is not a safe place to be either.

    Judge Hanen’s ruling, which runs 123 pages and was followed by a three-page preliminary injunction, has so much in it that it is impossible to do more in an essay like this than to summarize the key points. Meanwhile, the Federal Government has appealed and is seeking a stay in the Fifth Circuit, which will be heard on April 17. But first, let’s start with what Judge Hanen did and then take a look at the appellate posture. 

    The first step is to recognize who in the Executive Branch did what that precipitated the lawsuit. Although the popular notion is that it was a decision of President Obama that was being challenged, the President did not issue an executive order or anything else to bring about these changes: he left those to the Secretary of Homeland Security, Jeb Johnson.  This choice may actually matter here because the flaw that Judge Hanen identified – failure to comply with the Administrative Procedure Act (APA) – applies only to agency officials, which excludes the President. 

    Secretary Johnson, acting with at least the president’s blessing, if not at his direction, created a new program for parents of children lawfully in the United States – Deferred Action for Parents of Americans and Lawful Aliens (DAPA) – and expanded the existing program for children – Deferred Action for Childhood Arrivals (DACA).  Each has two major components.  First, they direct agency officials not to deport otherwise deportable aliens who fall into certain categories whose presence in the U.S. does not present significant dangers to the country, mainly parents of others authorized to be in the U.S. Second, they authorize the estimated 4.3 million individuals who fall in each category to receive federal work authorizations, which aliens need to obtain a legal job, as well as other benefits that flow from being authorized to work. The legal issues for the two parts are different, but before turning to those questions, there is the ever-present and often devilish issue of standing or, in lay language, what says you have a right to sue over this claim?