ACSBlog

  • January 30, 2017
    Guest Post

    *This piece originally appeared in the Detroit Legal News.  

    by Gary Maveal, Professor of Law, University of Detroit Mercy School of Law

    The president’s nominee to head the nation’s Environmental Protection Agency is a staunch opponent of its work. Should this disqualify Scott Pruitt from consideration as the next EPA Administrator? I submit that it clearly does.

    The Role to Fill

    Founded under President Nixon in 1970, the EPA was borne of a national movement insisting that a federal agency was needed to defend the nation’s lands, air and water from degradation. Citizens recognized that pollution ignored the bounds of state lines – and that individual states lacked the resources or political will to confront polluting industries.  

    The design of most federal statutes authorizes the EPA to set national standards for polluting activities which are then implemented by the states. In this way, the EPA avoids the “race to the bottom” by states competing by offering varying (i.e., higher) allowable levels of emissions or discharges.

    The role of EPA administrator is a challenging one, overseeing a dizzying array of complex federal statutes protecting the air, water and endangered species.  EPA rules regulate toxins from arsenic to zinc. In addition, the agency oversees a variety of public education and grant programs to inform and study environmental issues across the nation. The administrator must be proficient in assessing scientific data from public and private sources.  

  • January 25, 2017
    Guest Post

    *This post originally appeared in the Herald Times of Bloomington, Indiana.

    by Dawn Johnsen, Walter W. Foskett Professor of Constitutional law at the Maurer School of Law at Indiana University, and her husband, John Hamilton, Mayor of Bloomington, IN

    What do patriots do when they believe their country is headed in a dangerous direction?

    We sound alarms, mobilize and work hard toward a better course. Last Saturday, patriots peacefully and forcefully took to the streets with women’s marches to say “we are here and we are dedicated to action.” Busloads of Bloomingtonians in our state and national capitals joined in solidarity with millions around the country and the world.

    After an election with unprecedented interventions by a foreign power and the FBI, with false facts, and a victor with millions fewer votes nationwide, we have inaugurated our new president. Power transferred peacefully and our 240 year-old democracy continues.

    Some urge us all to wish for a successful presidency, on behalf of the nation. And to give the new administration the benefit of the doubt. Is that right?

    To wish for a successful presidency sounds patriotic, but is wrong when the president supports terrible changes in the country. Economic policy. Foreign policy. Health care. Environmental protection. Public education. Civil rights. Reproductive rights. Religious rights. The Supreme Court. All these and more are in the cross-hairs of President Trump’s administration, which seeks to take our communities, country and planet backwards from hard-fought progress.

  • January 24, 2017
    Guest Post

    by Joshua Matz, former law clerk to Justice Anthony M. Kennedy of the United States Supreme Court, and Laurence H. Tribe, Carl M. Loeb University Professor at Harvard Law School

    Until recently, you probably did not know (or care) what an “emolument” is. Many people, including many lawyers, had never heard that archaic term before. Those were the good old days. Now, thanks to President Donald J. Trump, the word “emolument” is all the rage. Need proof?  Last week, it topped the charts on Merriam-Webster.com. 

    As far as words go, that is a big deal. 

    This newfound popular interest reflects an emerging consensus that Trump is violating the Constitution’s foreign emoluments clause. That clause bars any “Person holding any Office of Profit or Trust under [the United States]” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” (absent congressional consent). As Trump’s lawyers have acknowledged (and rightly so), the president holds an “Office of Profit or Trust” and is subject to this restriction.

    The nature of Trump’s violation is straightforward: Because of his ownership stake in the Trump Organization, Trump’s private financial interests are intertwined with a business empire subject to many possible burdens and benefits abroad. None of Trump’s “solutions” fixes this problem.  As a result, in his dealings with foreign powers, Trump may be guided not only by the interests of the United States, but also by those of the business that bears his name—unless he totally stops caring about his money (we are not holding our breath). It is the purpose of the foreign emoluments clause to eliminate precisely this kind of blurred loyalty.

  • January 24, 2017
    Guest Post

    by James P. Rooney, Administrative Law Judge

    On Jan. 20, 2017, Donald J. Trump was inaugurated as the 45th president of the United States. He became the second president this century who won the electoral vote but not the popular vote. Continuing to tolerate a system of election to our one national office in which the winner of the popular vote loses the election time and again will not be good for our democracy. Mr. Trump agrees. In his post-election interview with 60 Minutes, he stood by his comment in 2012 that the Electoral College is a “disaster for a democracy.” He said, “I'm not gonna change my mind just because I won. But, I would rather see it where you went with simple votes. You know, you get 100 million votes, somebody else gets 90 million votes, and you win. There's a reason for doing this because it brings all the states into play.”

    It is this last point that is key to the major problem with the Electoral College even when the popular and electoral votes do not diverge. Although the Constitution does not tell states how to choose electors, 48 of the 50 states have chosen a winner-take-all system in which whoever wins that state’s popular vote gets all the state’s electors. The major consequence of this system is that presidential candidates focus all their attention on swing states and none on the vast majority of states where it is clear which party’s candidate will win the statewide election. And as unconventional as this presidential election was, it was utterly conventional in its focus on swing states. Eighty-seven percent of the campaign events in the general election were held in just ten states: Florida, North Carolina, Pennsylvania, Ohio, Virginia, Michigan, New Hampshire, Iowa, Colorado and Nevada.

  • January 23, 2017

    by Caroline Fredrickson

    On Jan. 23 – President Donald Trump’s self-proclaimed day one, it is worth remembering the first words of the Constitution

    We, the people, are the "historic movement, the likes of which the world has never seen." Pictures of Women's Marches all over the world prove it. 

    The majority of Americans did not vote for Trump. Historically low approval ratings and small inaugural crowds show Trump does not have a mandate for his agenda.

    So now we must get to work. Movements need consistent, sustained people power. Here are five ways to fuel the movement:

    -Join many groups - start with ACS

    -Run for office or support champions of your favorite issues in statehouses and Congress

    -Call your members of Congress and tell them what you think about Trump's cabinet picks - start with the attorney general nominee, Sen. Jeff Sessions (R-Ala.)

    -Fight fake news by forming a rapid response group with your family, friends and colleagues

    -Volunteer for ACS projects

    -Research

    -Pro bono work

    -Constitution in the Classroom

    -Mentor

    -Write

    If you are interested in volunteering for ACS projects, email us at lcemails@acslaw.org.

    Like anything worthwhile, our movement is an everyday commitment. We have so much at stake.