Separation of Powers and Federalism

  • September 4, 2012

    by Jeremy Leaming

    Late last week seemingly as quiet as possible, the attorney general announced no efforts to prosecute CIA officials accused of being involved in the torture of military prisoners. As The New York Times put it, Attorney General Eric Holder’s “announcement closes a contentious three-year investigation by the Justice Department and brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners ….”

    Of course Holder’s action will stir more discussion, some of it shrill and way over-the-top, about the Obama administration’s record on national security and conducting a seemingly never-ending war against terrorism. For many liberals the Obama administration’s record in those areas appears just like his predecessor’s.

    Human Rights First issued a strong, clear-headed statement against Holder’s action.

    “Torture is illegal and out of step with American values,” Human Rights First’s Melina Milazzo said in an Aug. 30 press statement. “Attorney General Holder’s announcement is disappointing because it’s well documented that in the aftermath of 9/11 torture and abuse was widespread and systematic. These cases deserved to be taken more seriously from the outset. When you don’t take seriously the duty to investigate criminal acts at the beginning, resolution becomes even more difficult a decade later. It’s is shocking that the department’s review of hundreds of instances of torture and abuse will fail to hold even one person accountable.”

    Such disappointment is warranted, so is sharp, thoughtful criticism.

    But then predictably we are also subject to the overwrought. For example, see actor John Cusack’s lengthy and often insufferable discussion with law professor Jonathan Turley for Truthout. Their discussion drones on and includes claims of “Rubicon lines” being crossed and constitutional principles being trampled. Cusack says Obama has created an “imperial presidency.” Turley, a law professor at George Washington University, whole-heartedly concurs, adding “Oh, President Obama has created an imperial presidency that would have made Richard Nixon bush. It is unbelievable.”

  • August 24, 2012
    Guest Post

    By Gabriel J. Chin and Marc L. Miller. Chin is Professor of Law at the University of California, Davis, School of Law. Miller is Vice Dean and Bilby Professor of Law at the University of Arizona, James E. Rogers College of Law. They authored “The Unconstitutionality of State Regulation of Immigration through Criminal Law,” which recently appeared in the Duke Law Journal and addresses these arguments, and others, in more detail. The views expressed are solely those of the authors.


    On August 20, the other shoe dropped. After Arizona’s systematic defeat in Arizona v. United States, rejecting the most important parts of SB1070, the question became how courts would treat the many other state laws on the books dealing with immigrants. If a trio of cases from the Eleventh Circuit is any indication, federal courts will read Arizona v. United States as severely limiting state authority to legislate in the area of immigration.

    The three opinions were written by the same panel, and largely affirmed or expanded injunctions issued by district courts. Two cases involved Alabama’s HB56, Hispanic Interest Coalition of Alabama v. Governor of Alabama and United States v. Governor of Alabama. The third case, Georgia Latino Alliance for Human Rights v. Governor of Georgia, examined Georgia’s HB 87. The laws had some of the same features as SB1070, and the Eleventh Circuit necessarily treated those as did the Supreme Court. The decisions allowed Georgia and Alabama to investigate the immigration status of people stopped or arrested, but, like the Supreme Court, left open the possibility of as-applied challenges based on racial profiling or unlawful seizures. The Eleventh Circuit also struck down Alabama’s prohibitions on undocumented people seeking work or failing to carry immigration documents, just as the Supreme Court had.

  • August 23, 2012
    BookTalk
    The Parties Versus the People
    How to Turn Republicans and Democrats into Americans
    By: 
    Mickey Edwards

    By Mickey Edwards, a former member of Congress who represented Oklahoma’s 5th congressional district for 16 years


    The underlying principle of America’s Constitution is pretty straight-forward. Americans are to be citizens, not subjects. Governments tell their subjects what to do but citizens tell their governments what to do. In the United States, that fundamental hallmark of citizenship is accomplished by (a) placing most of the major powers of the federal government in the hands of the national legislature, and (b) giving the people the right to determine who will serve in that decision-making capacity. Leaving the people with that power to determine what government shall and shall not do, and further arming them with specific restraints on government both within the original text and the subsequent Bill of Rights, the Founders gave citizens powerful weapons with which to defend their liberties.

    They had not, however, counted on the pernicious effects of a modern political party system which renders almost moot the separation of powers at the heart of the constitutional check on executive overreach. America’s leading Founders (among them, Washington, Adams, Jefferson, and Madison) warned repeatedly against the creation of the kind of political parties we know today; limited and shifting factions were one thing but permanent factions were something altogether different, something to be feared. If there is one notable feature of today’s party system it is the extent to which American civil liberties are jeopardized by the tendency of congressmen to willingly defer to presidential claims of extra-constitutional authority if the President and congressman share a common partisan identity.

    My own personal experience with that problem came when President George W. Bush began to regularly claim the authority to disregard clear federal law – legislation that had become binding law with his own signature – because he felt it impinged on his own broad definition of executive powers and because, well, it would be inconvenient to have to actually veto legislation that combined provisions he agreed with and those he found troublesome, even though the veto is the only remedy constitutionally provided to the President when he finds parts of the legislation distasteful. 

  • July 23, 2012
    Guest Post

    By Stephen I. Vladeck, professor of law and associate dean for scholarship at American University Washington College of Law


    There’s quite a lot to say about the damages suit filed last week by the American Civil Liberties Union and the Center for Constitutional Rights on behalf of the family of Anwar al-Aulaqi and his 16-year-old son Abdulrahman, both of whom were killed (along with a third U.S. citizen) in a pair of drone strikes in Yemen in the fall 0f 2011. And although the suit raises a host of important and thorny legal questions of first impression, including whether a non-international armed conflict existed in Yemen at the time of the strikes and whether a U.S. citizen can claim a substantive due process right not to be collateral damage in an otherwise lawful military operation, I suspect my Lawfare colleague Ben Wittes is quite correct that this case won’t actually resolve any of them. Instead, as Ben suggests, it seems likely that the federal courts will refuse to recognize a “Bivens” remedy — a cause of action for damages arising directly out of the constitutional provision allegedly offended (e.g., the Fifth Amendment’s Due Process Clause), and that the plaintiffs will therefore be unable to state a valid cause of action.

    As I explain below, such a result would unfortunately perpetuate a fundamental — and increasingly pervasive — misunderstanding of Bivens. Moreover, even if plaintiffs will ultimately lose suits like Al-Aulaqi because of various defenses — including qualified immunity, the state secrets privilege, and the political question doctrine — getting the Bivens question right still matters. To the extent that the specter of judicial review deters governmental misconduct down the road, Bivens suits can and should have a salutary effect on the conduct of U.S. national security policy — so long as they’re properly understood in the first place.

  • July 16, 2012

    by Nicole Flatow

    Although Eric Holder was the first sitting attorney general to be held in contempt, he is one in a line of attorneys general to be used as “congressional punching bags,” American University’s Alexander Wohl writes in Politico.

    Because of the unique role attorneys general play by defending an administration’s policies in court, they are often viewed as a proxy for the administration and bear the brunt of political anger over its policies. Add to that the heavy hand of the gun lobby pushing to punish Holder for the Department of Justice’s controversial “Fast and Furious” operation, and the fact that Holder has continued undeterred with other DOJ initiatives such as examining new restrictive state voter ID laws, and it is no surprise that House members took their vitriol to another level in finding Holder in contempt.

    Still, the fact that a congressional attack is unsurprising in the current political climate doesn’t make it any less disappointing, or any less “toxic” to our system of government, Wohl writes.