Separation of Powers and Federalism

  • January 27, 2014
    Guest Post
    by Carlos Sandoval and Catherine Tambini, Directors, Producers, The State of Arizona
     
    Editor's NoteThe State of Arizona debuts tonight, January 27, on the PBS series Independent Lens. Check local listings.
     
    The fact that our documentary, The State of Arizona broadcasts the night before The State of the Union has put each of us in mind of the state of immigration reform and the challenges we’ve continuously faced in adopting it.
     
    Why should the issue be so vexing? After all, everyone agrees the immigration system in place is broken. One of the greatest indicators that the system broke down was the state of Arizona when we first started filming.
     
    We were drawn to Arizona by SB 1070, the state’s controversial law, nicknamed the “Show Me Your Papers” law. It was the most extreme immigration law our country had seen in generations. It had a smorgasbord of provisions, including one that, as past by the legislature, required any state entity to request documents from anyone deemed “reasonably suspicious” of being undocumented. If a county, city or town employee failed to ask for papers, they risked sanctions or a private right of action embedded in the law. The law codified racial profiling, which was why it drew international headlines.
     
    We landed in Arizona soon after Governor Brewer signed an amended version of the bill, one that cabined SB1070 to legitimate stops by law enforcement. Still a scary proposition given the way Maricopa County Sheriff Joe Arpaio’s office was, as a federal district court judge later ruled in Melendres v. Arpaio, engaging in systematic racial profiling of Latino drivers under the color of law.
     
    What we found on the ground was a state of fear.
     
  • December 23, 2013
     
    Last week’s release of a 300-plus page report by the President’s Review Group on Intelligence and Communications Technologies was only the latest bump on a long road of challenging news in recent weeks for the National Security Agency (NSA).
     
    The esteemed panel of intelligence and legal experts – including Geoffrey R. Stone, former ACS Board Member and Co-Faculty Advisor to the ACS Student Chapter at the University of Chicago Law School – suggested “significant new limits” on intelligence activities as well as general principles to guide future reform.
     
    All in all, 46 recommendations were offered, among them the private, non-governmental retention of all personal communications data, accessible only through individualized court orders approved by the Foreign Intelligence Surveillance Court (FISC); the first-ever appointment of a “public interest advocate” to argue on behalf of civil liberties and privacy concerns before the FISC, which currently has no adversarial process; the ceasing of “back door” access points in hardware or software; and the incorporation of privacy protections for non-U.S. citizens.
     
    Also of note was the enumeration of guiding principles. For example, the panel endorsed a dual understanding of “security” – national security, on the one hand, and Fourth Amendment personal security on the other. The report also said the idea of “balancing” these two interests has “an important element of truth” but is “inadequate and misleading”:
     
    [S]ome safeguards are not subject to balancing at all. In a free society, public officials should never engage in surveillance in order to punish their political enemies; to restrict freedom of speech or religion; to suppress legitimate criticism and dissent; to help their preferred companies or industries; to provide domestic companies with an unfair competitive advantage; or to benefit or burden members of groups defined in terms of religion, ethnicity, race, and gender.
     
    The panel also endorsed a “broad principle for the future: as a general rule and without senior policy review, the government should not be permitted to collect and store mass, undigested, non-public personal information about US persons for the purpose of enabling future queries and data-mining for foreign intelligence purposes.”
     
  • December 17, 2013
    Guest Post
    by Erin Ryan, Professor of Law, Lewis & Clark Law School, and author of Federalism and the Tug of War Within
     
    Remember, back in junior high school, when you read that classic of American literature, “The Lottery” by Shirley Jackson?  In the story, a small town ritualistically draws straws each summer to see who among them will be stoned to death, to ensure a good harvest later that fall. (Goes the local proverb, “lottery in June, corn be heavy soon!”)  As the lottery begins, the townspeople gather in the public square and begin to collect rocks. The head of each family draws a slip of paper from the box, hoping not to see an inky black dot. The family that draws the black dot advances to the next round, in which one member is selected for sacrifice the same way. Tessie Hutchinson, a wife and mother of young children, draws the condemning dot, and the story ends as the terrified woman is stoned by her neighbors while she frantically protests.
     
    Now, looking around your own world, does this dystopian game of chance seem at all familiar? Thankfully not, you are probably thinking – but if we’re really being honest, it should. On the anniversary of the soul-wrenching Newtown shootings, it’s time to concede that we, too, are participants in a lottery of our own making – one so horrifying that we mostly choose not to see it. But let’s face the grim reality.  We are all living in that same nightmare town, where innocents are mindlessly sacrificed in service to ideals that don’t require this kind of sacrifice.  When it comes to gun violence in America, we play the nightmare lottery every time we send our children off to school, each time we visit a public place, walk the streets, and in some cases, live in our homes. 
     
    A year ago this week, twenty-six first graders and their teachers were gunned down at the Sandy Hook elementary school in Newtown, Conn. Only days earlier, two people were killed and ten thousand terrorized by a gunman at a mall in Clackamas, Ore., where I live. A few months before that, a man walked into an Aurora, Colo., movie theater and opened fire on hundreds of people, shooting eighty-two and killing twelve. Just last week, hundreds of terrified teens were led out of a suburban Denver high school with hands on their heads after a fellow student shot two classmates and then killed himself while seeking revenge on a teacher. The mass shootings are particularly wrenching, but nearly 100 children under ten years old were killed by deliberate gunfire in 2012 alone, often by adults they knew. 
  • December 9, 2013
    Guest Post

    by Nanci Clarence, Clarence Dyer & Cohen LLP; Member, Board of Advisors, ACS Bay Area Lawyer Chapter

    This year should be a cause for celebration, as we mark the 50th anniversary of the right to counsel for indigent defendants recognized by the Supreme Court in Gideon v. Wainwright. Sadly, in the last year we have seen that critical right threatened by sequestration and budget cuts that jeopardize the stability of Federal Defender organizations, and that undermine the ability of Criminal Justice Act (CJA) counsel to represent these clients most in need.

    Federal Defender organizations and CJA panels represent clients charged with federal offenses in over 200,000 cases each year – 90% of the defendants in federal court. This system of funded Defender organizations and private CJA counsel have together represented a model of quality and cost-effective representation, and have been protecting the adversarial system of justice for the past forty years.

    This successful model is now at risk. In Fiscal Year 2013, Federal Defenders suffered a 10% cut to their budgets due to sequestration. Hundreds of full-time positions were lost, with over 10% of staff being terminated or lost to early retirement. The Defender offices were also forced to impose over 160,000 hours of unpaid furloughs. While Federal Defenders’ budgets were slashed, the Justice Department avoided furloughs for all of its employees. These cuts create greater long-term expenses through delays in litigation and longer pretrial detention.

    At the end of Fiscal Year 2013, the Executive Committee of the Judicial Conference of the United States adopted emergency measures to save the Defender programs from the severe impacts of sequestration. Unfortunately, those measures required the deferral of CJA payments for up to four weeks, and the temporary reduction of $15 per hour of the CJA panel rate. This rate cut to CJA counsel undermines a rate that was secured after years of effort, and poses a real threat to the ability of private counsel to continue their vital service to the Court by providing indigent defense.

  • December 6, 2013
     
    On November 21, the Senate voted to change the rules on filibusters for judicial nominations to require 50, not 60, votes for cloture on a nominee. This so-called “nuclear option” was a controversial move, yet ultimately necessary to stop Senate obstructionists from effectively shutting down the judiciary with filibusters of President Obama’s nominees. 
     
    Following the rules change vote, Senate Majority Leader Harry Reid (D-Nev.) made a motion to reconsider the cloture vote on Patricia Millet for the D.C. Circuit, which was previously blocked. The vote on her confirmation is expected to be held when the Senate returns to session on December 9. It is anticipated that reconsideration of Federal Housing Finance Agency nominee Rep. Mel Watts (D-N.C.), as well as D.C. Circuit nominees Cornelia “Nina” Pillard and Richard Wilkins, will soon follow.
     
    ACS President Caroline Fredrickson explained: “With obstructionists in the Senate bent on shutting down the judiciary, something had to give…Our judicial system is hamstrung and a rules change was necessary to ensure it gets back up and running.” Leading up to the rules change, Fredrickson discussed the importance of confirming judicial nominees on PBS’s NewsHour and MSNBC’s The Cycle.
     
    Without the filibuster, the hope is that judicial nominations and confirmations will speed up when the Senate returns after the holidays. This depends, however, on the blue slip process, which some observers predict will be the obstructionist tactic of choice without the filibuster. Under current Senate Judiciary Committee rules, Senators must sign off on judicial nominees for judgeships in their state, known as “returning a nominee’s blue slip,” before the Committee can hold a hearing on a nominee.
     
    There are now a total of 53 pending nominees and 94 current vacancies. There are 38 judicial emergencies. 17 nominees are waiting for a vote on the Senate floor.
     
    For more information on the crisis in judicial nominations, see the latest from “In the News” and “Recommended Readings” from JudicialNominations.org, a project of ACS.