ACSBlog

  • March 19, 2015

    by Caroline Cox

    Brianne Gorod continues the Constitutional Accountability Center’s series on Chief Justice John Roberts with a look at his record on environmental issues.

    In The Washington Post, Maurice Possley reports that the State Bar of Texas has filed an accusation of misconduct against the prosecutor in a disputed execution case.

    Leon Neyfakh questions at Slate whether overcrowded prisons are a violation of the Eighth Amendment.

    In a report for the Brennan Center for Justice, Elizabeth Goitein and Faiza Patel discuss how the Foreign Intelligence Surveillance (FISA) Court went wrong.

    At Mashable, Colin Daileda argues that the findings of the Justice Department’s report on Ferguson are very similar to other reports on excessive police force.

  • March 18, 2015

    by Caroline Cox

    Attorneys arguing for marriage equality have stalled on the decision about who will argue before the Supreme Court, reports Chris Geidner at Buzzfeed. Other coverage comes from David Savage at the Los Angeles Times.

    Mark Joseph Stern argues at Slate that Jeffrey L. Fisher should be the lawyer chosen to argue for marriage equality before the Supreme Court.

    Lauren-Brooke Eisen and Oliver Roeder discuss the faulty perception of crime rates in the United States at the blog for the Brennan Center for Justice.

    At NPR, Domenico Montanaro considers whether automatic voter registration would increase voter turnout.

    The Presbyterian Church announced that it has changed its definition of marriage to include same-sex couples, reports Rachel Zoll at Salon.

  • March 17, 2015

    by Caroline Cox

    The Editorial Board of The New York Times argues against the “last-minute political mischief” that is delaying the confirmation of Loretta Lynch.

    At The Hill, Ralph S. Tyler predicts that the federal government will win in King v. Burwell.

    Conor Friedersdorf writes in The Atlantic that some conservatives are beginning to recognize the importance and implications of the Justice Department’s report on Ferguson.

    At The New Republic, Cristian Farias discusses Justice Stephen Breyer’s recent remarks on “government institutions, constitutional structures, and the administrative state” as well as his reluctance to comment on the national Ferguson debate.

    Steven Benen reports for MSNBC that the Affordable Care Act has cut the national uninsured rate by more than a third.

  • March 16, 2015
    BookTalk
    Ideas with Consequences
    The Federalist Society and the Conservative Counterrevolution
    By: 
    Amanda Hollis-Brusky

    by Amanda Hollis-Brusky, professor of political science at Pomona College

    “A Vast Right-Wing conspiracy!” “The Conservative Cabal Transforming America!” “Are you now or have you ever been a member of the Federalist Society?”

    The Federalist Society for Law and Public Policy Studies has been no stranger to accusations of this kind over the years. Those on the left and the right universally acknowledge that the Federalist Society is an organization of significant consequence. But very few understand how this self-professed “society of ideas” with none of the traditional signs of political power is exerting its influence on law and the legal culture. Drawing on a trove of archival, ethnographic and original interview data, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution addresses this question head on.

    The Federalist Society – a network of more than 40,000 conservative and libertarian lawyers, academics, judges, policymakers, and journalists dedicated to reshaping the law – grew out of the frustrations of a small group of right-of-center law students who felt isolated in their left-of-center law schools in the 1980s. Inspired by the ideas and tenets of the Reagan Revolution raging outside the walls of their elite law schools, these first Federalist Society members were recruited to work as Special Assistants in the Reagan Justice Department where they heard two oft-repeated phrases: “ideas have consequences,” and “policy is people.” These two phrases would become the two main pillars of the Federalist Society as we know it today – as an organization that intellectually trains and socializes its members, exposing them to a distinctly conservative and libertarian way of thinking about the law and also encourages and facilitates opportunities for its members to put these ideas and principles into practice as lawyers, judges, etc. It is a simple formula, but one that has served them remarkably well over the past thirty years: ideas + people = policy consequences.  

  • March 16, 2015
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Decades ago, the late constitutional scholar Charles Black offered an important functional justification for giving federal courts the power to say “no” to unconstitutional laws and executive actions: It is the judicial power to say “no” that gives the judicial power to say “yes” its legitimating force. Government benefits mightily when a judicial opinion upholding official action puts at rest, if not an underlying policy debate, then at least the public’s interest in prolonging a constitutional battle about whether the challenged action is at least lawful.  Such seems to have been the result in 2011when the Supreme Court upheld the Affordable Care Act.  A judicial imprimatur can have this beneficial impact, however, only if the public understands that courts make independent judgments.

    For this reason, despite powerful legal arguments that U.S. District Court Judge Andrew Hanen should not have reached the merits of any issue regarding the Department of Homeland Security’s program of “Deferred Action for Parents of Americans and Lawful Permanent Residents” (DAPA), the country may be better off once a court does so. My difficulty with Judge Hanen’s massively overwritten 123-page opinion in Texas v. United States is not that Texas got past threshold procedural barriers to judicial review. It is that, in an ideologically driven opinion, Judge Hanen simply gets the law wrong.

    As a formal matter, Judge Hanen grants Texas the preliminary injunction it seeks because he deems Texas likely to succeed in challenging the DAPA policy on a procedural basis, namely, publication of the policy without an opportunity for public comment under the Administrative Procedure Act. His conclusion on this point is wrong, as I discuss below, but perhaps foreordained by a more glaring error. Although Judge Hanen purports to rule only on procedural grounds, his opinion makes crystal clear that he thinks DAPA exceeds the DHS Secretary’s legal authority. His analysis is framed by an overarching narrative about how a supposedly feckless federal government is victimizing the helpless states by simultaneously hoarding to itself all authority over immigration and then abandoning a constitutional duty to protect the states from the burdens imposed by the presence in the U.S. of millions of undocumented immigrants. (If you want to see what judicial empathy for a plaintiff looks like, reading Judge Hanen’s 47-page analysis of Texas’s standing to sue would make a good start.) 

    Judge Hanen’s framing is doubly unfortunate. First, it ignores the ways in which the DAPA program would boost state economies and accompanying tax revenues. As 14 states and the District of Columbia have argued in an amicus brief supporting DAPA: “When immigrants are able to work legally—even for a limited time—their wages increase, they seek work compatible with their skill level, and they enhance their skills to obtain higher wages, all of which benefits State economies by increasing income and growing the tax base.” Moreover, Judge Hanen’s narrative of states as victims leads him to four outright mischaracterizations of DAPA.

    To see these misconceptions starkly, it is helpful to consider that the measures DHS Secretary Jeh Johnson implemented through two memoranda on November 20, 2014 effectively accomplish three things. First, they establish national immigration enforcement priorities, instructing all immigration agencies within DHS as to the highest priorities for detention and removal, as well as the criteria for a new program of deferred action for parents of U.S. citizens and other legally permanent residents. With or without DAPA, DHS’s immigration components would be free to follow these priorities in their law enforcement activities.