Separation of Powers and Federalism

  • 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.

  • July 13, 2012

    by Joseph Jerome

    After declaring that Texas would not be expanding Medicaid to include millions of uninsured Texans, Gov. Rick Perry insisted that “the real issue here is about freedom.” South Carolina Gov. Nikki Haley argued that the Affordable Care Act reveals a federal government that “simply [doesn’t] believe states should be trusted to govern themselves.” Speaking on the Meet the Press, Louisiana Gov. Bobby Jindal invoked the principles of federalism when he suggested universal health care was akin to having Mardi Gras in Vermont.

    This rhetoric reveals a profoundly state-centric view on what freedom means, and while the Tenth Amendment certainly speaks to the rights of states vis-à-vis the federal government, it also talks about the rights of individual citizens. “If anything, the Tenth Amendment recognizes potentially expansive federal power,” Professor Steven Schwinn wrote on SCOTUSblog, rebutting “states’ rights” arguments against the Affordable Care Act.

    The problem is that “we are all hypocrites” when it comes to power struggles between the state and federal governments, Professor Garrett Epps explains. “The basic view of ‘states' rights’ is that they extend to any policy that the speaker thinks will go his or her way at the state level,” he writes.

    Though Gov. Perry (pictured) has long been a “states’ right stalwart,” he too falls into Epps’s trap. The governor supports federal efforts to restrict marriage equality and ban abortions, and the real issue was not freedom when $17 billion in federal stimulus money was used to balance Texas’ budget. When it comes to the Medicaid expansion, however, millions of Americans in these states must find comfort in being told they will go without health insurance as a matter of principle.

  • June 27, 2012

    by Jeremy Leaming

    Up until the $2 billion trading loss debacle at JPMorgan Chase, right-wing lawmakers in Congress, primarily the House, were feverishly working to water down with new legislative measures Dodd-Frank, the financial reform law passed in the wake of the Great Recession.

    But, as CQ Today reported, House Republicans halted their efforts “at least for now” to undercut the law aimed at ending the shady tactics employed by financial industry giants that led to the financial meltdown of 2008. Part of Dodd-Frank created the Consumer Financial Protection Bureau or CFPB, which is tasked with trying to bring some sanity to the financial industry.

    As CFPB Director Richard Cordray (pictured) said during the ACS 2012 Convention the agency is the first ever “created with the sole purpose of protecting consumers in the financial marketplace. It is not an easy task, but it is crucial because the financial marketplace is no easy place for our fellow citizens as they seek to manage their affairs.

    Cordray continued, “Our task is so crucial because, as we saw with the recent financial crisis, unregulated or poorly regulated financial markets can undermine the stability of the economy and with it the promotion of the general welfare that, as specified in the preamble to the Constitution, stands as one of the basic purposes of the federal government. For that reason, the new Consumer Bureau was also created to help ensure that the recent financial panic and economic meltdown does not repeat itself.”

    But government efforts to help the nation’s less fortunate or vulnerable run counter to the interests of the nation’s super wealthy. Columbia University business school professor Joseph Stiglitz, author of Freefall, has noted that the nation’ top one percent has the greatest sway in the nation’s capital, and that it is largely not interested in progressive legislation.

    So like the efforts to reform the nation’s health care system, which includes tens of millions of uninsured, the Right is turning to the federal bench to try stymie progress. And as noted by the Constitutional Accountability Center’s Simon Lazarus the Right and libertarians have proven their acumen in advancing their views of a radically cramped Constitution and selling wobbly legal claims to the public. 

    Media Matters’ David Lyle in a post for the organization’s County Fair blog called “First Health Care, Now Dodd-Frank: The Tea Party Constitution Rises Again,” urges progressives to be better prepared.

    “Although the legal arguments made in the suit [lawsuit lodged in federal court last week challenging the constitutionality of Dodd-Frank] are questionable, the case should not be dismissed as harmless,” Lyle writes. “The right-wing media’s proven ability to move dubious legal claims into mainstream debate combined with a conservative federal judiciary sympathetic to corporate interests mean the CFPB suit bears close scrutiny.”

    Lyle notes experts doubt the challengers have standing to lodge the lawsuit, and that at least one “financial services regulatory lawyer” has concluded it doubtful “that a court would find significant provisions of Dodd-Frank unconstitutional because of ‘general vagueness considerations.’”

  • June 26, 2012
    Guest Post

    By Margaret Hu, a visiting assistant professor at Duke Law School  

    In Arizona v. U.S., the Supreme Court only upheld Section 2(B) of the highly controversial Arizona immigration law, also known as SB 1070 (Arizona's Senate Bill 1070). Three other provisions of SB 1070 were struck down. Upholding Section 2(B), however, is problematic because it preserves the provision of the bill that invites state and local law enforcement to engage in racial profiling.  

    Section 2(B) is known as the "your papers please" or "show me your papers" provision of the highly controversial law. Some are reassured that the Court recognized that the constitutionality of the "show me your papers" provision of SB 1070 might be reconsidered at some point. The Court suggested the question is now whether Section 2(B) might create a problem of racial discrimination in violation of the Fourteenth Amendment's Equal Protection Clause, and other constitutional problems. In other words, Section 2(B) is not going to be thrown out now, before the law is implemented. But, if the law results in racial profiling, the Court said that this question could be dealt with in the future, when the evidence surfaces.

    Unfortunately, 25 years of immigration law experimentation with "show me your papers" policies have demonstrated that the future consequences of this provision can already be predicted: Section 2(B) will likely lead to widespread discrimination. 

    Those U.S. citizens and lawful immigrants who may "look or sound foreign" are likely to be the target of scrutiny, simply based upon their appearance. And because states may now perceive that they have the green light to bake "show me your papers" requirements into state immigration law, the racial profiling problems stemming from a "show me your papers"-based immigration policy will likely worsen.

  • May 31, 2012
    The U.S. Supreme Court
    A Very Short Introduction
    Linda Greenhouse

    By Linda Greenhouse, the Knight Distinguished Journalist-in-Residence, a Senior Research Scholar in Law and Joseph Goldstein Lecturer in Law at Yale Law School. Greenhouse, a member of the American Constitution Society's Board of Directors, will be signing copies of her new book at the 2012 ACS National Convention.

    Has there been a time recently when public understanding of the Supreme Court was so important – and so lacking?

    In a Pew poll two summers ago, only 28 percent of the respondents could identify John Roberts as chief justice (a position he had then held for nearly five years) from among a list of four names. The other options, all of which some people selected, were Thurgood Marshall, who had died 17 years earlier; John Paul Stevens, who was in the news for retiring; and Harry Reid, the Senate majority leader. Just imagine what people don’t know about how the court sets its agenda or construes statutes, or about the powers of the chief justice or the debate over constitutional interpretation.

    With a court of conservative activists substituting their policy judgments for those of Congress; using the First Amendment as a deregulatory tool; and proposing to unsettle long-settled understandings of affirmative action and voting rights, it’s essential that we become a nation of knowledgeable, or at least better-informed, court-watchers. That’s the big ambition of my new little book – and I use the word “little” as an accurate physical description (7 by 4.5 inches in dimension, 117 pages of text), not as false modesty.