• December 5, 2014

    by Caroline Cox

    The Editorial Board of The New York Times argues that the death of Eric Garner was not simply the result of a chokehold, but also due to bad policy and poor training.

    The laws that protect pregnant workers are very unclear, asserts Rebecca Leber in The New Republic.

    At Salon, Luke Brinker discusses a new study by the Labor Department that reveals that millions of workers are illegally paid less than minimum wage.

    Carrie Johnson and Melissa Block of NPR look at the recent Justice Department finding that the Cleveland police department has systematically used excessive force.

    Alex S. Vitale examines in The Nation what strategies for police reform will actually have the most impact.

    At FiveThirtyEight, Oliver Roeder considers whether the Supreme Court “is becoming too cloistered.”

  • December 4, 2014

    by Caroline Cox

    Lisa Faye Petak discusses at Hamilton and Griffin on Rights about Young v. UPS and her hope that the Court “will let evolved thinking rule the day.”

    In SlateDahlia Lithwick writes that the oral argument for Young was a "hypertechnical inquiry into statutory construction and, eventually, the precarious balancing of two clauses against a semicolon."

    At ProPublica, Nina Martin compiles a list of resources on the Young case. Nina Totenberg of NPR provides an overview of the oral argument.

    The Constitutional Accountability Center continues its series on Chief Justice John Roberts with Brianne Gorod writing about the Chief Justice’s record on women’s rights.

    Gabe Roth writes in the Los Angeles Times about the need for greater transparency at the Supreme Court, raising concern about how the current system doesn’t deal well with potential conflicts of interest.

  • December 4, 2014
    Guest Post

    by Neil Kinkopf, Professor of Law, Georgia State University. He also serves on the Georgia Lawyer Chapter Board of Advisors.

    The predictable calls for impeachment went up after President Obama announced his actions on immigration last week. To the surprise of no one, the calls issued exclusively from the president’s Republican detractors. Such partisan calls for impeachment are easily dismissed. In a recent New York Times op-ed, however, Professor Peter Schuck of the Yale Law School lent credibility to the legal basis for these claims, arguing that the president’s action satisfies the constitutional predicate for impeachment (though he advocates that Congress exercise its discretion to decline impeachment).  His argument is worthy of attention, though it fails utterly. 

    The Constitution sets forth the grounds for impeachment:  “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”  Nowhere in the document, however, is the phrase “other high Crimes and Misdemeanors” defined. This absence of a legal definition has led some to conclude that the House of Representatives may impeach for any reason at all. Then-Congressman Gerald Ford gave this idea its most famous articulation:  “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history ….”  Professor Schuck falls squarely in this camp, declaring “it is pretty much up to Congress to define and apply ‘high crimes and misdemeanors.’” 

    This Nietzschean view (Law is dead, therefore all is permitted) is deeply flawed. Most significantly, it is at odds with the original understanding of the impeachment power. The framers adopted the language “high crimes and misdemeanors” precisely to avoid leaving it “pretty much up to Congress” to decide for itself what constitutes an impeachable offense. During the drafting convention, George Mason suggested that the president be impeachable for “maladministration.” James Madison objected to this formulation on the grounds that it would undermine the independence of the president: “[s]o vague a term will be equivalent to a tenure during pleasure of the Senate.” The constitutional convention then settled on the familiar “high crimes and misdemeanors” language as a way of making sure the standard for impeachment would not be infinitely malleable. 

  • December 3, 2014

    by Christopher Durocher.

    Six years ago, in Heller v. District of Columbia, a divided Supreme Court held for the first time that the Second Amendment to the U.S. Constitution protects an individual right to bear arms. This decision called into question the viability of gun-safety regulations across the country, including in high-crime urban areas in which the need to address gun violence is particularly acute.  Just this past July, a federal district court judge in DC concluded, “In light of Heller [and its] progeny, there is no longer any basis on which this Court can conclude that the District of Columbia’s total ban on the public carrying of ready-to-use handguns outside the home is constitutional under any level of scrutiny.” It’s not so clear, however, that Supreme Court precedent or the Second Amendment, itself, require the rejection of this and other gun-safety regulations.

    In the ACS Issue Brief “The Constitutional Case for Limiting Public Carry,” Professor Lawrence Rosenthal of Chapman University Fowler School of Law examines the Second Amendment’s historical context and concludes that, even accepting an originalist reading that the Constitution protects an individual’s right to bear arms, the drafters of the Second Amendment anticipated the need for and value of gun-safety regulations. Far from proscribing regulation of firearms, the drafters understood that regulation was appropriate, including the types of restrictions on open and concealed public carry that cities throughout the United States have adopted.

  • December 3, 2014

    by Caroline Cox

    In The Wall Street Journal, Rob Barry and Coulter Jones report that hundreds of police killings are uncounted in national statistics.

    Burgess Everett reports in Politico on a last attempt by Senate Democrats to create meaningful campaign finance reform. 

    In The Economist’s Democracy in America blog, Steven Mazie provides an overview of Elonis and ponders the precedent that decision on the case could set.

    Nina Totenberg of NPR examines Young v. UPS and considers how the Supreme Court will rule in this new pregnancy discrimination case.

    Scott Dolan of the Portland Press Herald reports on a court order for a school district to pay a $75,000 award in the conclusion of “a precedent-setting case over denied access to a student bathroom” brought by a transgender student.