Separation of Powers and Federalism

  • 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.
  • December 2, 2013
    BookTalk
    Emergency Presidential Power
    From the Drafting of the Constitution to the War on Terror
    By: 
    Chris Edelson

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs

    In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship.  That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.”  Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003.  Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.

    The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.  According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security.  This is an enormous power: critics charge that it effectively places the president above the law.  Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.