ACSBlog

  • December 21, 2016
    Guest Post

    by Brian Simmonds Marshall, Policy Counsel and Veronica Meffe, Legal Fellow; Americans for Financial Reform

    No president has removed an appointee for cause. Most presidents have not attempted it and the three times a president has tried to remove an official with for-cause protections—on the ground that the for-cause protection were invalid (not that there was cause for removals)—the courts stopped the president from doing so. Those simple and important facts have been lost amid cries from opponents of strong consumer protection to remove Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB).

    By statute, the president may remove the CFPB’s Director only “for inefficiency, neglect of duty, or malfeasance in office,” the same standard that the Supreme Court held to be constitutional in Humphrey’s Executor (1935). In October, a D.C. Circuit panel ruled that the CFPB Director, as the single-head of an independent agency, could not be so protected. But that decision is now under review by the full D.C. Circuit, which could vacate the panel’s ruling in late December or early January by agreeing to hear further argument in the case.

    Assuming the CFPB director’s statutory protections against arbitrary removal remain in effect, history suggests that he will not be removed from office. We reviewed Steven Calabresi and Christopher Yoo's exhaustive history of the removal power, The Unitary Executive, and it does not identify a single for-cause removal in the post-Humphrey’s era.  

    In the handful of instances the courts declined to stop a removal, it was because the court held that the official did not enjoy protections against removal. For example, in Martin v. Tobin (9th Cir. 1971) and Morgan v. Tennessee Valley Authority (6th Cir. 1940), the courts of appeals held that the officers in question filled purely executive roles and therefore served at the pleasure of the president. Similarly, in Swan v. Clinton (D.C. Cir. 1996), the court held that the official challenging his removal did not have for-cause protections because his term had already expired. And in that case, despite ruling against Swan, the D.C. Circuit acknowledged that the case was justiciable and the court would have had the power to allow him to serve until his successor was confirmed if his removal were in fact illegal.  

  • December 20, 2016

    by Caroline Fredrickson

    Chuck Jones deserved better, especially from the president-elect who tweeted:

    “Chuck Jones, who is President of United Steelworkers 1999, has done a terrible job representing workers. No wonder companies flee country!”

    Roughly 75 minutes later, the soon-to-be head of state posted another tweet:

    “If United Steelworkers 1999 was any good, they would have kept those jobs in Indiana. Spend more time working-less time talking. Reduce dues.”

    For 30 years, Jones has represented workers in Indianapolis, including employees at plants owned by air conditioner manufacturer Carrier and Rexnord, a maker of values and ball bearings for heavy equipment. 

    On Dec. 15, Jones and other workers received notice that Rexnord would close the plant and move the roughly 300 jobs to Mexico despite a “no more” tweet from Trump. This notice from Rexnord followed similar news about layoffs from Carrier.

    2016 was a tough year for Jones. He spent the year in negotiations with manufacturers who in one instance expect to save $65 million by sending jobs in the U.S. to Mexico. In a Dec. 8 article about Carrier, Jones explained that “We couldn’t match that unless we were willing to cut wages to $5/hour and cut all benefits.”

  • December 20, 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.

    Yesterday’s vote by the electors of each State brought to a close the process that began with Election Day on Nov. 8. Or, more precisely, in various states, it began days or weeks earlier, when early voting opened and absentee ballots became available. This year, more than any before, I have been particularly focused on the process as well as the outcome. My efforts as a voter-protection volunteer reassured me that—setting the consequences of Wisconsin’s strict voter ID law to one side—there were no massive malfunctions in Wisconsin’s election day operations, but it also underscored how easy it is for individual votes, and voters, to fall through the cracks.

    I woke hours before dawn on Election Day, picked up a friend and drove two hours on a narrow highway. I had volunteered to monitor complaints and concerns submitted by poll watchers. The Democratic Party of Wisconsin sent me to Oshkosh, where, with two other lawyers, I would field reports from poll observers spread across nine counties. Before the polls opened at 7:00 a.m., we opened our laptops in the dining room of a small house, reached out to the volunteers at polling places around our area and logged into a website on which we could follow reports from every one of the state’s 3,620 precincts. Fortified with a mountain of snacks, we settled in for the 13 hours the polls would be open.

    Because I knew I would be spending Election Day in Oshkosh, I voted two weeks in advance. I knew Wisconsin allowed early voting but, at the time I cast my ballot, I had not yet studied state election law in preparation for my voter-protection duties. When I had voted early in other states before, my vote had been counted at the time I voted. But in Wisconsin, early voting is actually a form of absentee voting and absentee votes are not counted in advance.

  • December 16, 2016
    Guest Post

    by Carolyn Shapiro, Associate Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Illinois Institute of Technology Chicago-Kent College of Law

    On Monday, Dec. 19, 2016, the 538 members of the Electoral College will gather in their states to cast their votes for president. The expected outcome is that they will elect Donald Trump. But this year there has been a surprising amount of discussion of a different result, thanks to efforts of some electors themselves and a variety of academics, writers and advocates.

    Article II, section 1 and the Twelfth Amendment of the Constitution provide the framework for the Electoral College. Every state has a number of electors equal to their congressional representation – two Senators plus the state’s House delegation. (Under the Twenty-third Amendment, the District of Columbia also has three electors.) The state legislatures have the authority to determine how the electors are selected and there is no requirement that the selection be by popular vote. Nor is there a requirement that the states assign their electors on a winner-take-all basis, as almost all do. (Maine and Nebraska are the exceptions.)

    Once the electors are selected, they meet in their states and cast their ballots. They certify the votes and send them to Congress, which will meet in early January to count the votes. To become president, a candidate must receive a majority – at least 270 – of the electoral votes. If no candidate receives 270 votes, then the House of Representatives, voting in state delegations with each state receiving one vote, must choose between the top three electoral-college vote-getters.

    This system is an odd way to run an election in the 21st century. Its roots are in compromises made at the Founding to protect slavery and (arguably) to ensure the influence of smaller states. Some argue that there was no expectation that the electors would exercise independent judgment. But as Alexander Hamilton explained in Federalist 68, the Framers were concerned that the people might be taken in by an unqualified candidate and they wanted to ensure that “[t]alents for low intrigue, and the little arts of popularity” would not displace the “requisite qualifications” for the presidency. And, he added, “every practicable obstacle should be opposed to cabal, intrigue, and corruption.”  Finally, he argued that the electoral college would protect the country against “the desire in foreign powers to gain an improper ascendant in our councils.” It is hard to read this explanation for the Electoral College without wondering if Hamilton was prescient.

  • December 16, 2016
    Guest Post

    by Andrew W. Robertson, Acting Executive Officer of the History PhD Program, CUNY Graduate Center.  His newest forthcoming publication is The Oxford Handbook of Revolutionary Elections in the Americas, 1800-1910 (New York: Oxford University Press, 2018), ed. by Andrew W. Robertson and Eduardo Posada Carbó.  His current work in progress is Democracy in the Early Republic: America’s Other ‘Peculiar Institution’ and John L. Brooke, Distinguished Humanities Professor of American History at The Ohio State University. His current project are State Formations: Histories and Cultures of Statehood, co-edited with Julia Strauss and Greg Anderson, and Forging the Civil War North: Political Crisis, Fugitive Slaves, and Liminal Rupture in Antebellum America, 1850-1856.

    On Nov. 8, Donald Trump was elected president of the United States, winning a projected 306 Electoral College votes to Hillary Clinton’s 232. The election outcome surprised many veteran campaigners, politicians, pollsters, columnists and members of the public. The election result is an extreme outlier in the history of the republic – it is one of four out of 57 presidential contests since 1789 in which the Electoral College victor has not also won the even a plurality of the vote and one of eight in which the margin was two percent or less. The Electoral College will appoint a president, on its constitutional authority as directed by the states. Now, as in 1876, 1888 and 2000, the nation should carefully consult the documents that record its governing mandate, particularly in light of other more pressing clear and present dangers. 

    Perhaps the outcome of the election even surprised President-elect Trump. It is the surprises that have followed the election, however, that have pushed the U.S. to the brink of a constitutional crisis. Trump has refused to sell off his many properties around the globe or to place them in a blind trust, a situation that could place him in the position of receiving foreign emoluments.  While he initially announced that he would address potential conflicts of interest at a press conference on Dec. 15, he has now deferred any such discussion to January. Our situation is all the more complicated since Trump expressed his admiration of Vladimir Putin, the ruler of a country which for almost a century has been our country’s leading adversary. Trump has nominated for Secretary of State Rex Tillerson, the corporate chair of ExxonMobil, a company with billions of dollars at stake in the future of sanctions on Russia voted by the United States Senate. More ominously, this week the Central Intelligence Agency released its formal determination that Russian operatives had deliberately interfered in the presidential election to tilt the outcome towards Mr. Trump. The election process may have been so thoroughly compromised that public officials will need to consider whether it has been conducted fairly.  Russian interference would undermine the very legitimacy of the democratic process and could have grave and long-lasting consequences. In the words of Michael Morell, the former acting director of the CIA, this information is the “political equivalent of 9/11,” and “an existential threat to our way of life.”

    There has never been such a set of circumstances surrounding a presidential election in the history of the American republic. While Congressional leaders are considering an investigation of these charges, any such inquiry would require weeks to complete. These issues raise serious questions about whether Mr. Trump is constitutionally qualified to be president. None are likely to be resolved before the Electoral College meets to vote on Dec. 19.