ACSBlog

  • February 2, 2017
    Guest Post

    *Disclosure: The author is the Legal Director for Free Speech For People.  On Jan. 20, 2017, Free Speech for People jointly launched with RootsAction the national impeachment campaign at ImpeachDonaldTrumpNow.org.

    by Ron Fein, Legal Director, Free Speech for People

    Recently, President Trump’s ongoing violation of the Foreign Emoluments Clause has received significant attention. There is no need to repeat here the case-in-chief that President Trump is in violation of the Foreign Emoluments Clause. That argument has been made in careful detail in a December 2016 Brookings Institution white paper by Norman Eisen, Richard Painter and Laurence Tribe, amplified by a January 2017 essay by Joshua Matz and Laurence Tribe posted on the ACS web site, as well as in the federal court litigation by the nonprofit organization Citizens for Responsibility and Ethics in Washington.

    Let us take as given that President Trump has violated, and continues to violate, the Foreign Emoluments Clause. (We can reserve for another time the Domestic Emoluments Clause, as well as any potential violations arising from the executive order on immigration and possible defiance of federal court orders.) The present question is: is this an impeachable offense? The answer is clearly yes.  

  • February 2, 2017
    Guest Post

    *This piece originally appeared on the Microsoft Blog.

    by Brad Smith, President and Chief Legal Officer, Microsoft

    Proposal calls for case-by-case exception process for law-abiding visa holders with pressing needs

    In last Friday’s executive order, the president expressly gave to the secretaries of state and Homeland Security the authority to grant exceptions on a case-by-case basis, consistent with the national interest, to issue visas and other immigration benefits. Today Microsoft is filing a formal request asking these cabinet officers to create a process to grant exceptions that will permit “Responsible Known Travelers with Pressing Needs” to re-enter the country while protecting the nation’s security. The important details for this proposal are included in our formal request and are outlined below.

    At the outset, we recognize that this proposal will not and should not end the broader debate and deliberations regarding last week’s executive order. Our company is one among many that has expressed its views, and we will continue to participate energetically and constructively in the public discussions that help define our democratic processes.

    But even amidst these debates, there is an opportunity under the executive order to address the pressing needs of real people. There currently are law-abiding visa holders who are parents that were outside the United States last Friday and therefore cannot re-enter the country. These parents are stranded and separated from their children. Other individuals are confronting genuine family emergencies such as the need to visit a critically ill parent.

  • January 31, 2017
    Guest Post

    by Mark S. Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Tonight, President Trump announced his nomination to the Supreme Court. In doing so, he ratified the inappropriate actions taken by Sens. McConnell, Grassley and others in the Republican Party who refused to give a confirmation hearing to the bi-partisan endorsed and highly credentialed nominee of President Obama, Judge Merrick Garland, Chief judge of the Court of Appeals for the D.C. Circuit. During that refusal delay, the Senate also reduced the status of the judiciary as the Supreme Court only had eight members and could not fully function. The Senate trampled on the idea of three equal branches of government. Republicans further failed to comply with the federal law specifying that there be nine Justices. Ironically, President Trump and these same Republicans now expect the Democratic Party to proceed with confirmation hearings on this nominee. 

    To add to the irony, Republicans said that a Garland nomination was problematic during an election year and “the people” should decide. Though President Trump certainly won the Electoral College, almost three million more people voted for Secretary Hillary Clinton. Thus, if this was a true plebiscite, Chief Judge Garland should still be the nominee by the Republican’s own reasoning. Of course, the Republican statements about the people were little more than window dressing for a raw and unfortunately successful, political calculation that they could stall the Obama nomination (he was supposed to be President for a full eight years after all).

  • January 31, 2017
    Guest Post

    *This piece orignially appeared on Slate

    by Dawn Johnsen, Walter W. Foskett Professor of Constitutional law at the Maurer School of Law at Indiana University

    As President Donald Trump’s nominee for the vacant Supreme Court seat receives public scrutiny in the coming days, it is incumbent for us all to remember one thing: This seat was not Trump’s to fill.

    In fact, the U.S. Senate should refuse to confirm anyone President Trump nominates to the Supreme Court—until Trump renominates and the Senate confirms Chief Judge Merrick Garland. On Monday, Sen. Jeff Merkley of Oregon said he would be leading a Senate filibuster of any Trump nominee until Garland is seated. This is the only correct approach.

    To recap: The Senate failed to fulfill its constitutional responsibility with its unprecedented refusal even to consider President Obama’s nomination of Garland. Obama made the nomination with about a year left in his presidency, but from day one the Republican Senate leadership insisted that it would permanently block the nomination.

    No one ever questioned Garland’s qualifications—an impossibility for this brilliant, dedicated public servant. The obstruction constituted an insulting challenge to Obama’s legitimacy, accompanied by calls for the people to decide via the election of the next president.

  • January 31, 2017
    Guest Post

    by Pratheepan Gulasekaram, Professor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    This past week, Donald Trump issued several executive orders limiting immigration and foreboding greater enforcement. The headlines for the past few days have been dominated by his “Muslim ban,” a clumsy, crude and cruel attempt to block any immigration from seven majority-Muslim nations, a complete ban on all refugees for four months, and an indefinite ban on Syrian refugees. Also garnering significant attention is his order reinvigorating wall-building at the U.S.-Mexico border. That order, along with his directive to massively increase enforcement officers may or may not materialize, as they will likely require massive budget appropriations that Congress may balk at. Comparatively less attention has been paid to the orders that will likely begin to reap consequences over the next several months, like the ones re-arranging enforcement priorities and dramatically expanding expedited removal processes (both, likely at the expense of due process standards and other individual liberties). Here, I want to focus on another aspect of his orders that has received comparatively less attention: Trump’s attempt to coerce state and local jurisdictions into aiding with interior enforcement.

    At first blush, Donald Trump’s executive order on interior immigration enforcement reads like a death-knell to cities that maintain so-called “sanctuary” policies on immigration. It imperils state and local governments and law enforcement agencies with loss of federal funds unless they comply with a particular provision of federal immigration law. Despite his order’s menacing language, Trump’s defunding threat rings hollow.