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Separation of Powers and Federalism

Recent years have witnessed an increase in executive power at the expense of the other branches of the federal government. This change has had a profound effect on our civil liberties, government transparency and the rule of law. The Separation of Powers and Federalism Group addresses the proper balance of power in our system of checks and balances, as well as other issues related to the power of the President. It also addresses the importance of preserving the independence of the judiciary. In addition, this Group focuses on the federalism jurisprudence of the Supreme Court, which has led it to strike down an unprecedented number of congressional enactments, threatening the ability of Congress to protect civil rights, the environment and workers. Finally, the Group also examines positive visions of federalism that will promote the ability of government at all levels to pursue progressive policies.

The Issue Group's Co-Chairs are:


To get involved in the work of the Separation of Powers and Federalism Issue Group, please fill out the Issue Group Sign-Up Form.

Also, please note that ACS ResearchLink features a number of topics related to the Separation of Powers and Federalism Issue Group’s work on which law students are encouraged to focus their academic scholarship.
Recent Stories

The State Secrets Privilege: Time for Reform?

On Friday, April 4, 2008, ACS hosted a panel discussion on issues surrounding the state secrets privilege. The privilege allows the government to prevent the disclosure of certain information in legal proceedings, whether or not a federal agency or employee is a party to the proceeding. While the privilege’s rationale has been to avoid disclosures damaging to national security, recent invocations of the state secrets privilege in court have left some observers to claim that the doctrine is being abused by the Executive branch. The situation has raised many legal and policy questions, including: Is the state secrets privilege being improperly invoked? How can national security concerns be balanced with the need to preserve meaningful access to justice in our nation’s courts? What issues should Congress consider as it weighs bipartisan reform legislation, such as the State Secret Protection Act of 2008 in the House and a similar bill in the Senate?

The panel featured:

A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals


Anthony F. Renzo

Mon, 03/03/2008

ACS is pleased to distribute an Issue Brief by Anthony F. Renzo, Professor of Law at Vermont Law School, entitled, “A Call to Protect Civilian Justice: Beware the Creep of Military Tribunals.” In cases such as Al-Marri v. Wright, a case presently awaiting decision on rehearing in the Fourth Circuit, the Bush Administration has claimed authority to subject civilians detained in the United States to trial by military commission. In this Issue Brief, Professor Renzo examines and evaluates the Administration’s claim, finding it as unprecedented in scope as it is lacking in historical support. Professor Renzo explains that “[t]he Constitution places the power to punish a civilian for wrongdoing, including criminal conduct in support of enemy organizations, in the hands of an independent civilian court and jury.” Examining the constitutional text and English and American history, Professor Renzo traces a profound resistance to the encroachment of military tribunals on the jurisdiction of civilian courts, noting “[t]he very purpose of the original English common law right to trial by a civilian jury was to protect against the oppression of the King’s use of military courts and judges who owed their loyalty to the King.” Professor Renzo concludes that constitutional text and tradition require that a civilian be provided with a civilian jury trial unless a civilian court determines that the detainee is not a civilian, but is rather “either under the command of the enemy’s armed forces or engaged in battlefield hostilities against American forces.”

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Renzo Issue Brief_Final.pdf275.04 KB

Where Do We Go From Here? Destruction of the CIA Interrogation Tapes and Oversight of the War on Terror

On Friday, January 25, 2008, ACS hosted a panel discussion on issues surrounding the destruction of the Central Intelligence Agency (CIA) interrogation tapes whose existence was revealed last month. The destruction of these videotapes, which reportedly depict hundreds of hours of extremely harsh interrogations of two Al Queda suspects in 2002, is currently the subject of a Department of Justice (DOJ) criminal investigation. The situation has raised many legal and policy questions, including: What crimes (obstruction of justice, perjury, conspiracy, etc.) have potentially been committed in the destruction of the tapes? Aside from the destruction of the tapes, what concerns are raised by the alleged contents of the tapes and the interrogation techniques documented? When is the appointment of a special counsel merited? More broadly, what significance does this situation hold for the larger conversation about oversight (including congressional oversight) of the intelligence community and oversight recommendations of the 9/11 Commission that remain unimplemented?

The panel featured:

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