ACSBlog

  • May 24, 2017
    Guest Post

    by Dan Froomkin and Caroline Fredrickson

    Robert Mueller's appointment as a special counsel to oversee the Justice Department's investigation of Russia's interference in the 2016 presidential election does not in any way preclude muscular congressional oversight into the matter.

    Nor does it give congressional witnesses carte blanche to duck questions they do not feel like answering in public.

    Within hours of the announcement about Mueller, Republican members of Congress started using his leadership of the investigation as an excuse to stand down.

    “You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere," Sen. Lindsey Graham (R-S.C.) told reporters on Thursday. "Public access to this is probably going to be very limited now. It’s going to really limit what the public will know about this.”

    And one of several congressional witnesses-in-waiting cited Mueller as an excuse not to answer even basic questions from his ostensible congressional overseers. Deputy Attorney General Rod Rosenstein, who played a highly controversial role in Comey's firing, briefed Senate and House members last week -- in a closed session, despite the lack of any discussion of classified material.

    “Basically any question of any substance, it was, ‘I can’t comment because it may be the subject of an investigation by Mueller,’ ” Sen. Jeff Merkley (D-Ore.) told the New York Times.

    Rep. Lloyd Doggett (D-Teaxs) said in a statement that "the most frequent answer I heard to questions from members of either party was 'I cannot answer that question.' He declined to answer any question concerning his personal conduct, motivation, or the circumstances of the firing of FBI Director James Comey, indicating that even this could be within the scope of the Mueller investigation."

  • May 24, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Dennis Herrera, San Francisco City Attorney

    When Ronald Reagan used his 1983 State of the Union Address to foreshadow a sweeping proposal to devolve vast powers from the federal government back to states and localities, he described his New Federalism initiative as an effort “to restore to states and local governments their roles as dynamic laboratories of change in a creative society.”

    Liberal critics at the time regarded the New Federalism as a thin veiling for a full-scale federal retreat from progressive social policy — which, of course, it was. In subsequent years, as successive Congresses grappled with mounting budget deficits and as the federal bench grew increasingly conservative, Reagan’s efforts to return power to local governments would indeed take hold among his presidency’s most enduring legacies.

    Today, progressive state and local governments should embrace the principles behind New Federalism as a way to push back against a federal administration that threatens constitutional protections and many of the values these localities hold. In the few months that President Donald Trump has been in office, state and local governments have successfully thwarted his attempts to carry out some of his most misguided initiatives.

    When President Trump issued an executive order that sought to strip federal funding from sanctuary jurisdictions, San Francisco and other local governments acted swiftly to fight back. My office filed the first lawsuit in the nation to challenge the Executive Order, and the County of Santa Clara and other local jurisdictions soon followed us. In April, Federal Judge William Orrick issued a nationwide preliminary injunction that temporarily halted enforcement of the president’s executive order, recognizing the Executive Order likely violates the Separation of Powers, the Spending Clause, the Tenth Amendment, and other constitutional provisions.

  • May 23, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Joshua A. Douglas, Robert G. Lawson & William H. Fortune Associate Professor of Law, University of Kentucky College of Law

    Much of the discussion about voting rights during the upcoming ACS National Convention will likely revolve around how to fight back against new measures of voter suppression. And for good reason. The Trump administration has already signaled its desire to “fix” the so-called problem of “election integrity,” creating a sham commission to study the issue. We already know what the commission will find with Kansas Secretary of State Kris Kobach leading it: embellished anecdotes of integrity concerns to justify ever-more restrictive voting rules.

    But while we must fight back against measures that make it harder to register and vote, that cannot be the only aspect of our efforts. In fact, it should not even be the biggest part. If we use up our resources putting out each successive fire in the voting rights world, we will fail to move forward with more positive measures to make voting as easy and convenient as possible for everyone who wishes to participate.

     Several states and localities are coming up with innovative ways to expand the electorate and open up the election process. The movement to adopt automatic voter registration, which Oregon showed can help to improve turnout, is going strong. Online voter registration is now a reality in the majority of states; the lagging states should update their registration system.

    Some states, like Virginia and Alabama, are easing their harsh felon disenfranchisement rules. Florida voters will have the opportunity next year to limit their own felon disenfranchisement law, which is currently among the worst in the nation in preventing over a million people from voting.

  • May 22, 2017
    Guest Post

    *This piece originally appeared on the Law Professor Blogs Network

    by Geoffrey A. Hoffman, director of the Immigration Clinic at the University of Houston Law Center

    The anti-sanctuary cities and campuses bill, SB-4, was signed into law on May 7, 2017. Most importantly, state laws are subject to federal preemption especially where there is a pre-existing structure in place for providing enforcement of federal laws by state officials. In fact, such a statutory federal structure already exists. It is Section 287(g) of the Immigration and Nationality Act (INA), which provides the mechanism whereby state law enforcement can be deputized to act as federal law enforcement officials. In addition, there are other federal laws which may “occupy the field” which already govern information-sharing between state and federal officials. See 8 USC § 1373. The new law also makes it mandatory to comply with ICE “detainers” signed by ICE officials and not a judge or magistrate. The new litigation brought by the governor seeking a declaratory judgment will have to grapple with the many federal district court cases that already have made pronouncements about the unconstitutionality of such ICE detainers. Under certain cases state officials have been sued and plaintiffs have received monetary damages due to detainers’ improper use.

    First, consider INA 287(g). The section provides that localities may “voluntarily” enter into a memorandum of agreement (MOA) with the federal government. Then, the state or local entity receives delegated authority by the federal government to enforce the immigration laws within their jurisdictions. Part of 287(g) provides for training and oversight of the state officers so they can properly execute the federal immigration laws. Where is the oversight and training in SB-4? The SB-4 framework does not have any safeguards, such as any training by federal officials, among the other aspects of the federal-state partnership set out in the 287(g) framework. The SB-4 statute says state officers cannot be prohibited from asking about someone’s immigration status for one who is lawfully detained or arrested. It also specifically provides that state entities cannot have a policy which “prohibits or materially limits” the enforcement of immigration laws (by their own state officers).   

  • May 22, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by Mickey Edwards, Vice President and Program Director, The Aspen Institute

    The Constitution provides little guidance for congressional behavior: members of the House of Representatives and the Senate make their own rules, establish their own norms, choose their own structures. They are free to make it up as they go along. But one should hope that the Constitution’s empowerments and constraints – Congress’s specific constitutional obligations and specific areas in which it is prohibited from acting -- will not be the only guides to appropriate congressional behavior.

    In writing about the Founders’ concerns about corruption, Fordham’s Zephyr Teachout has argued that one can discern clear underlying principles threaded throughout the Constitution, even if not specifically stated. I would contend that the same concept – discernible unstated principles – applies to much of the constitutional framework regarding Congress, specifically in regard to the Founders’ expectations regarding behavioral norms: deliberation, debate, compromise, and in its interaction with the executive branch, a strong defense of institutional prerogatives. Almost all of these suppositions have proved to have been overly optimistic. There have been few James Madisons in the 21st century versions of the legislative branch.