ACSBlog

  • February 7, 2017
    Guest Post

    by Richard Harris, CEO, Momentum Communications

    President Trump’s Executive Order on Immigration: Executive Action Provokes A National Reaction:

    President Donald Trump, wearing a broad smile for both the cameras and his assembled audience, affixed his signature to possibly the most controversial Executive Order of his early and already tumultuous presidency. The Executive Order, bearing the title: “Protecting The Nation From Attacks By Foreign Nationals,” suspends “Visa Issuance and Immigration Privileges” to the following seven countries: Sudan, Iraq, Iran, Libya, Sudan, Somalia and Yemen. The Executive Order suspends refugee immigration for a period of 120 days and prohibits the immigration of Syrian refugee to the United States indefinitely.

    Signed into law at 4:42 p.m. on Jan. 27, 2017, President Trump’s Executive Order on Immigration is sweeping in its scope and immediate in its impact. It launched an instantaneous and spirited public response, which was in stark contrast to the applause and approval accorded to President Trump during the Executive Order’s high profile signing ceremony:

  • February 7, 2017
    Guest Post

    by Adam Shah. Shah worked for D.C. nonprofits on issues related to the Supreme Court nominations of John Roberts, Harriet Miers, Samuel Alito, Sonia Sotomayor, and Elena Kagan.

    Over the weekend, President Trump went on a 2-day-long Twitter rampage against a Seattle-based federal judge who halted his executive order banning immigrants from seven Muslim-majority nations. Commentators have decried Trump for singling out a lone federal judge for attack, calling it an attack on the independence of the federal judiciary. This is true, but our federal judges are strong, life-tenured and can withstand harsh criticism without losing their commitment to making decisions based on law, not political considerations. 

    What should cause us worry, however, is the implications of Trump's attacks for his judicial nominees, including his Supreme Court nominee, Judge Neil Gorsuch. If Trump is so easily angered by a judicial ruling that blocks one of his orders, what is likely the most important criterion Trump has for his judicial nominees? Loyalty. 

    This, of course, is the worst litmus test a president could have. Presidents may not like it, but they know that their own nominees will rule against their actions at times; Supreme Court Justices Elena Kagan and Sonia Sotomayor did it to President Obama. Having federal judges who will stand up to even the president that appointed them is one of the hallmarks of our judicial system, and that independence would be destroyed if a president picked nominees based on their unwillingness to do that. 

  • February 7, 2017
    Guest Post

    *This piece originally appeared on Law360.

    by James J. Brosnahan, Senior Trial Counsel, Morrison Foerster

    As President Trump applies his whack-a-mole, hammer-them-all-on-the-head theory of leadership, could a Justice Neil Gorsuch legal philosophy join opinions that would declare the president’s actions unconstitutional? It is a lot to ask when the president has just given you the greatest legal gift America can bestow. But if the bestower actually holds up federal money from the University of California or sanctuary cities or does any other of the threatened unconstitutional actions in violation of established constitutional doctrine, the court will have to check and balance him as the country’s founders intended.

    Judge Gorsuch is, at times, a positivist. He is outside mainstream American judicial decision-making. I have looked at the headings and results in all 237 of his decisions. I read those that might reflect U.S. Supreme Court issues in the future — those cases I examined much more closely.

    When the words "Oxford degree" are first uttered in the confirmation hearing, it will have a mesmerizing effect on the senators. He got a degree in legal philosophy there in 2004. He studied under the tutelage of John Finnis, a natural-law theorist, who according to Google supports the Catholic Church on a range of contentious issues. Finnis believes the state should deter public approval of “homosexual” behavior. He opposes gay unions and believes they are an assault on heterosexual marriage. More to the point of Gorsuch’s legal philosophy, his teacher Finnis opposes looking for the “ought” in natural-law ethics. At the heart of all Western legal theory, there is the “is vs. ought” division; the United States Constitution is all about the ought.

  • February 6, 2017
    Guest Post

    *This piece was originally published by Niskanen Center.

    by Paul Gowder, Associate Professor of Law at the University of Iowa

    The Constitution and the Rule of Law

    The late Justice Scalia was well-known for a number of important judicial commitments—to constitutional originalism, to a permissive account of the Establishment Clause, to a skeptical approach to executive criminal justice power. But his most important commitment was to the rule of law, a central constitutional ideal to which he routinely appealed (and about which he published a famous academic article, “The Rule of Law as a Law of Rules“).

    The rule of law is traditionally contrasted to “the rule of men.” The contrast captures the difference between societies in which the awesome power of governments to send men and women with weapons to order their people about is governed by general rules, laid down in advance, and enforceable against government officials who would abuse their power, and societies in which government violence is deployed at the whim of powerful officials without such constraints.

    At a minimum, the rule of law requires that public officials obey the substance of the law as well as respect the procedures embedded in the law, such as the judgment of courts. They must also respect the right of the people to turn to such procedures in order to defend themselves from the might of the government. And the rule of law requires that public officials not be endowed with the open-ended authorization to exercise force and violence against ordinary people in accordance with their mere wills.

  • February 6, 2017
    Guest Post

    *This piece originally appeared on the Whistleblower Protection Law Blog

    by Jason Zuckerman, Principal, Zuckerman Law

    If Judge Neil Gorsuch is confirmed, he will play a critical role in construing laws that protect worker health and safety, including laws protecting whistleblowers who suffer retaliation for opposing illegal or unsafe conduct that jeopardizes public health and safety. According to the Bureau of Labor Standards, 4836 workers were killed on the job in 2015—on average, that is more than 93 a week, or more than 13 deaths every day. As the Occupational Safety and Health Administration (OSHA) is already severely understaffed and will soon be further weakened by a political appointee charged with gutting it, the last thing workers need is an activist judge who has expressed disdain for worker-protection laws. But that is exactly what we can expect from Judge Gorsuch.

    In a recent dissent in TransAm Trucking, Inc. v. Administrative Review Board, 833 F.3d 1206 (10th Cir. 2016), Judge Gorsuch demonstrated that he will construe worker-protection laws as narrowly as possible and that he deems worker “health and safety” as “ephemeral and generic” statutory goals. His opinion also reveals that his alleged values-neutral approach to statutory construction is intellectually dishonest. The majority decision affirming the whistleblower’s win at the Department of Labor was based on the plain meaning of the statute, well-established precedent construing the statutory term at issue and the purpose of the statute. Judge Gorsuch’s dissent, however, was arguably activist in that it rewrites the statute. In other words, Judge Gorsuch does not check his policy preferences or values at the courthouse door and render value-neutral decisions based on the dictionary definitions of statutory terms. Instead, as this opinion demonstrates, his alleged strict textualism appears to be a cloak for his policy preferences, including his apparent disdain for worker protection laws.