• October 19, 2016
    Guest Post

    *This post is taken from the ACS publication: What's the Big Idea? Recommendations for Improving Law and Policy in the Next Administration

    by Sen. Elizabeth Warren

    Ideas matter.

    Eight years ago, the United States was facing the worst economic crisis since the Great Depression. Wall Street firms had gambled away the hard-earned savings of hard-working Americans and sent the stock market into a tailspin. Ordinary folks who were conned into purchasing homes they could not afford saw their homeownership dreams slip away. College graduates ready to enter the workforce were stranded with mountains of debt and no meaningful job prospects.

    There is no question that the Obama Administration had its work cut out for it. And it took some big ideas to make real change. A record stimulus pumped money—and jobs—into an imploding economy. The Dodd-Frank Wall Street Reform and Consumer Protection Act helped reel in some of the shadiest Wall Street practices and created a new consumer watchdog, the Consumer Financial Protection Bureau. The Affordable Care Act expanded health insurance coverage to over 11 million Americans.

    The country stepped back from the brink, but the problems were bigger and more systemic — and the continued attachment to the ideas born of trickle-down economics cramped our response and prevented full recovery.

    Now, as the country continues to wrestle with pressing questions that will define this generation and the next, the need for big ideas is clearer than ever. The next administration must confront a tangle of interwoven problems. How will we address the growing income and wealth gap between the top 1% and everybody else? How will we rethink and rebuild a broken criminal justice system that disproportionately locks up and disenfranchises black and brown Americans? How will we ensure that the water our kids drink and the air they breathe are clean and safe? How will we expand and defend gender equity and LGBTQ rights? How will we ensure that non-citizens are treated fairly and humanely? How will we make our government work to advance the interests of all Americans, not just those with the deepest pockets and the highest-paid lobbyists?

  • October 17, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    The Constitution has very few requirements for a person to be President of the United States. The individual must be 35 years old, 14 years a resident within the United States and a “natural born citizen.” Although the meaning of this phrase is debated and was an issue concerning Ted Cruz, there is no doubt that Hillary Clinton and Donald Trump meet all of these requirements.

    Fitness to be president, then, is not about constitutional prerequisites. Rather, it is about the criteria that voters use – and should use – in evaluating the candidates. I believe that in assessing the candidates in this or any presidential election, five criteria are most important.

    First, what are the candidates’ values, views on the issues and priorities? For many voters, this is answered by whether the candidate is Republican or Democrat. In this election, there is an enormous difference between Clinton and Trump on issues ranging from immigration to tax policy to racial policy to abortion to gun control. If this were the only consideration, it is hard to imagine a person who identifies as liberal voting for Trump or one who identifies as conservative voting for Clinton.

    Second, does the candidate have the good judgment and temperament to be president? Crises will happen that require quick decisions. Challenges that cannot be anticipated at the time of the election are inevitable, perhaps a foreign war or an attack on the United States or a recession.  Although voters likely strongly disagree over which candidate will exercise better judgment or over who has the temperament better suited to be president, few would disagree as to the importance of these personality traits in choosing a Chief Executive. One benefit to the long campaign season for the presidency is that people get much more chance to get a sense of the judgment and temperament of the candidates. 

  • October 14, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Earlier this week, Sen. Tammy Baldwin (D-Wis.) keynoted the ACS Madison Lawyer Chapter’s kick-off event. In spirited remarks and thoughtful answers to audience questions, Sen. Baldwin spoke powerfully about the stalled nomination of Chief Judge Merrick Garland to the Supreme Court, the judicial vacancy crisis more broadly and the vital need for our country to move forward: “Leaving one seat vacant prevents our highest court from resolving major legal issues. It threatens the integrity of our democracy and the functioning of our constitutional government. It puts at risk the administration of justice across the country. As Justice Kagan said recently, ‘A tie does nobody any good.’ We need nine.”

    Sen. Baldwin gave historical context for the current moment, noting “this year will mark the first time since 1864 that the Supreme Court has been without its full complement of Justices on Election Day next month.” She also expressed her disappointment and exasperation at the Senate Republican majority’s refusal to consider—or even hold a Judiciary Committee hearing on—Chief Judge Garland’s nomination. She described the obstruction as “wrong and deeply irresponsible, as well as “disrespectful to our Constitution, disrespectful to our president, disrespectful to this very qualified nominee and disrespectful to the American people.”

    She also addressed the vacant seat—by tradition designated for a Wisconsin nominee—on the U.S. Court of Appeals for the Seventh Circuit. That vacancy is the longest running opening on the federal appellate bench, having been open since January 2010. (And the vacancy has been known since six months earlier, when Judge Terence Evans, announced his intention to take senior status at the beginning of 2010.) Sen. Baldwin discussed why it took years for the Wisconsin Federal Nominating Commission to recommend potential nominees. And she detailed the procedural delays that have kept President Obama’s nomination of Madison attorney Don Schott from receiving a vote on the floor of the Senate.

  • October 13, 2016

    by Caroline Fredrickson

    “This is not an election about who’s going to be president just for the next four years. This is an election about the direction of the Supreme Court for the next 40 years”

    Senator Chuck Grassley (R-Iowa)
    The Gazette

    Senator Grassley nicely sums up the importance of Nov. 8.

    If I had to quibble with his quote, I would add that with more than 10 percent of the judgeships vacant in the lower courts this is an election about the direction of the third branch of the federal government for the next generation. 

    Fortunately, the Presidential Commission on Debates announced that Fox News’s Chris Wallace has selected the Supreme Court as one topic for the final debate. But the list of topics is “subject to possible changes because of news developments.” The Supreme Court deserves to be topic A.

    Many articles have documented the proxy fight over the federal courts. But it bears repeating that the election results may continue an almost 50-year run of a conservative majority on the Supreme Court or begin a new period with a more progressive majority.

    Since February, the Court has been ideologically split down the middle with four conservative justices and the same number of progressives. This past month Justice Elena Kagan offered one of the best explanations, that I have heard, on why we need a ninth justice. During a September 16th event at Harvard Law School, Dean Martha Minow asked Justice Kagan about her experience on a Court that has no tie-breaking vote. Below is Kagan’s answer:

  • October 13, 2016
    Guest Post

    by Jack Beermann, Professor of Law and Harry Elwood Warren Scholar, Boston University School of Law

    In PHH Corporation v. Consumer Financial Protection Bureau, the U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Brett Kavanaugh, held that it was unconstitutional for the CFPB to be headed by a single Director who could not be removed by the president without cause. The consequences of the court’s decision were muted by its decision not to declare the agency completely unconstitutional. Rather, as the Supreme Court did with the Public Company Accounting Oversight Board (PCAOB), the court simply excised the Director’s “for-cause” protection and its implication that the Director was beyond the president’s control and otherwise left the agency and all of its decisions, intact. Thus, the CFPB can go on as before, with the only change being that the president can remove the Director at will and can order the Director to act in accord with presidential policies and priorities.

    Judge Kavanaugh’s reasoning in support of this outcome is surprising. The basis for the decision was not that the president, as head of the Executive Branch, needs the power to control the CPFB. Recall that the need for presidential control was the Supreme Court’s basis for invalidating the PCAOB’s for-cause protections. In the case of the CFPB, Judge Kavanaugh’s expressed reason for invalidating the Director’s protection was that “[t]he CFPB’s concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency.” In Judge Kavanaugh’s view, the multi-member structure of most independent agencies provides a check on abuse of power that was, unconstitutionally, absent in the case of the CFPB. (Judge Kavanaugh also relies heavily on the history and tradition of plural heads of independent agencies. In this blog, I focus only on the pragmatic reasoning, not the reasoning based on tradition.)