ACSBlog

  • 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 13, 2017
    Guest Post
    *This piece originally appeared in the Idaho Statesman.
     
    by Katherine Macfarlane, Associate Professor of Law, University of Idaho College of Law

    Last month Idaho Rep. Greg Chaney (R-Caldwell) introduced a bill proposing to penalize sanctuary cities that shield immigrants from federal immigration law. But there are no sanctuary cities in Idaho. The bill also requires state law enforcement to assume duties related to federal immigration law. But Chaney believes that “it’s up to the federal government” to sort out the “who’s who” of immigration law violators. The Idaho bill may become the worst kind of law: one that no one needs.

    Seven years ago, Arizona passed a similar law. The Department of Justice (DOJ) fought it, and the Supreme Court struck down three of the law’s four challenged provisions, emphasizing that immigration law is better left to one “national sovereign,” not “the 50 separate states.”

    One aspect of Arizona’s law survived — the provision requiring arresting officers to “verify the [arrested] person’s immigration status with the Federal Government.” The Idaho bill similarly requires that if an individual is arrested and cannot prove lawful presence in the U.S., the agency “performing the booking process” must determine the individual’s immigration status by consulting with “United States immigration and customs enforcement,” or ICE.

    In reviewing the Arizona law, the court cautioned that an immigration inquiry could not prolong someone’s arrest-related detention, and that if it did, the detention “would raise constitutional concerns.” The court found that the law contained sufficient safeguards to avoid prolonged detentions.

  • February 10, 2017

    by Katie O’Connor

    Throughout his campaign and in the months since his election, President Trump has repeatedly pledged that his nominee to replace the late Justice Antonin Scalia on the Supreme Court will vote to overturn Roe v. Wade, the landmark 1973 Supreme Court case which guarantees the right to abortion. Always a fan of suspense, Trump released two lists of potential nominees before his election, and legal and advocacy organizations began compiling profiles on each of the names. But it was not until Feb. 1, 2017, that speculation regarding the potential nominee to fill Justice Scalia’s seat ended, and President Trump formally transmitted the nomination of Tenth Circuit Court of Appeals Judge Neil Gorsuch to the Senate for confirmation.

    Despite the president’s campaign pledges, we cannot know with certainty how Judge Gorsuch would rule if the Court were asked to overturn Roe v. Wade. What we do know, however, is the following.

    Judge Gorsuch is no champion of women’s access to contraception and reproductive healthcare more broadly. He joined the 2013 decision of the U.S. Court of Appeals for the Tenth Circuit in Hobby Lobby v. Sebelius, which found that Hobby Lobby, a for-profit corporation, can have a sincerely-held religious belief that certain contraceptive methods are actually abortifacients (though experts argue they are not) and that facilitating coverage of those methods would be a sin. Moreover, the decision ruled, Hobby Lobby’s religious beliefs would be substantially burdened by a provision under the Affordable Care Act (ACA) that requires the corporation to provide health insurance to its employees that includes coverage of those contraceptive methods. Finally, the decision reads, the requirement of such coverage is not narrowly tailored to further the government’s interest in “public health” and “gender equality.” While the government sought to provide comprehensive and seamless coverage of preventative health services to women and men alike, the Tenth Circuit, joined by Judge Gorsuch, essentially found that the religious beliefs of a for-profit corporation outweighed the corporation’s employees’ right to such coverage.

  • February 9, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Someone please give the new administration and its lawyers a pile of pocket constitutions. With a straight face, apparently, government lawyers argued earlier this week that the Trump executive order on immigration and refugees could not even be reviewed in the courts. But because the executive order violates the constitution so blatantly, yesterday the Ninth Circuit delivered a stinging blow to the administration. 

    In their unanimous opinion, the Ninth Circuit highlighted how totally unsupported the government position was---there was simply “no precedent” that such an order would be “unreviewable” by the courts. The very notion runs “contrary to the fundamental structure of our democracy.”  In other words, the administration lost big.

    It was surprising that in its papers, the government cited Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees. This was another bumbling move. The Boumediene decision was front and center in the Ninth Circuit's decision.

    Boumediene was the ruling that once and for all undid President George W. Bush’s effort to make “unreviewable” the cases of the people detailed at Guantanamo Bay. In Boumediene, the Supreme Court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."  

  • February 9, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog.

    by Molly Danahy, Partner Legal Fellow at the Campaign Legal Center 

    The 2016 elections were dogged by questions about the integrity of our electoral system – from false claims that millions of people voted illegally – to legitimate concerns about the first election in fifty years without the protections of the Voting Rights Act. Also, there have been new worries about foreign actors interfering in our political process. During the primary season and in the general election, voters raised concerns about purged voter registration lists and long lines. In addition to the hacking of emails by Russian actors, there is also evidence that hackers attempted to penetrate state voter registration systems across the country. With plenty of challenges in election administration to address, why did a House Committee vote yesterday to eliminate the Elections Assistance Commission (EAC) – an agency tasked with evaluating and improving the efficiency and security of federal elections?

    One of the EAC’s primary tasks is to assess and certify the integrity of electronic voting systems to ensure that they are functional, accessible and secure. The Commission accredits independent laboratories to test voting systems and provides voluntary guidelines to the states for assessing the health of their voting systems. It also tracks problems with election systems and creates accountability by providing public access to its reports and collecting and publishing data about election administration across the country. At a time when the public could use reassurance about the integrity of our elections, defunding the only federal agency devoted to secure election administration defies rational explanation. In a display of willful blindness to the public’s concerns, the sponsor of the bill to eliminate the EAC says he believes the agency has “outlived its usefulness and purpose.”