January 2017

  • January 31, 2017
    Guest Post

    by Mark S. Kende, James Madison Chair in Constitutional Law, Director of the Drake University Constitutional Law Center

    Tonight, President Trump announced his nomination to the Supreme Court. In doing so, he ratified the inappropriate actions taken by Sens. McConnell, Grassley and others in the Republican Party who refused to give a confirmation hearing to the bi-partisan endorsed and highly credentialed nominee of President Obama, Judge Merrick Garland, Chief judge of the Court of Appeals for the D.C. Circuit. During that refusal delay, the Senate also reduced the status of the judiciary as the Supreme Court only had eight members and could not fully function. The Senate trampled on the idea of three equal branches of government. Republicans further failed to comply with the federal law specifying that there be nine Justices. Ironically, President Trump and these same Republicans now expect the Democratic Party to proceed with confirmation hearings on this nominee. 

    To add to the irony, Republicans said that a Garland nomination was problematic during an election year and “the people” should decide. Though President Trump certainly won the Electoral College, almost three million more people voted for Secretary Hillary Clinton. Thus, if this was a true plebiscite, Chief Judge Garland should still be the nominee by the Republican’s own reasoning. Of course, the Republican statements about the people were little more than window dressing for a raw and unfortunately successful, political calculation that they could stall the Obama nomination (he was supposed to be President for a full eight years after all).

  • January 31, 2017
    Guest Post

    *This piece orignially appeared on Slate

    by Dawn Johnsen, Walter W. Foskett Professor of Constitutional law at the Maurer School of Law at Indiana University

    As President Donald Trump’s nominee for the vacant Supreme Court seat receives public scrutiny in the coming days, it is incumbent for us all to remember one thing: This seat was not Trump’s to fill.

    In fact, the U.S. Senate should refuse to confirm anyone President Trump nominates to the Supreme Court—until Trump renominates and the Senate confirms Chief Judge Merrick Garland. On Monday, Sen. Jeff Merkley of Oregon said he would be leading a Senate filibuster of any Trump nominee until Garland is seated. This is the only correct approach.

    To recap: The Senate failed to fulfill its constitutional responsibility with its unprecedented refusal even to consider President Obama’s nomination of Garland. Obama made the nomination with about a year left in his presidency, but from day one the Republican Senate leadership insisted that it would permanently block the nomination.

    No one ever questioned Garland’s qualifications—an impossibility for this brilliant, dedicated public servant. The obstruction constituted an insulting challenge to Obama’s legitimacy, accompanied by calls for the people to decide via the election of the next president.

  • January 31, 2017
    Guest Post

    by Pratheepan Gulasekaram, Professor of Law at Santa Clara University School of Law and Co-Author of “The New Immigration Federalism” (Cambridge Press)

    This past week, Donald Trump issued several executive orders limiting immigration and foreboding greater enforcement. The headlines for the past few days have been dominated by his “Muslim ban,” a clumsy, crude and cruel attempt to block any immigration from seven majority-Muslim nations, a complete ban on all refugees for four months, and an indefinite ban on Syrian refugees. Also garnering significant attention is his order reinvigorating wall-building at the U.S.-Mexico border. That order, along with his directive to massively increase enforcement officers may or may not materialize, as they will likely require massive budget appropriations that Congress may balk at. Comparatively less attention has been paid to the orders that will likely begin to reap consequences over the next several months, like the ones re-arranging enforcement priorities and dramatically expanding expedited removal processes (both, likely at the expense of due process standards and other individual liberties). Here, I want to focus on another aspect of his orders that has received comparatively less attention: Trump’s attempt to coerce state and local jurisdictions into aiding with interior enforcement.

    At first blush, Donald Trump’s executive order on interior immigration enforcement reads like a death-knell to cities that maintain so-called “sanctuary” policies on immigration. It imperils state and local governments and law enforcement agencies with loss of federal funds unless they comply with a particular provision of federal immigration law. Despite his order’s menacing language, Trump’s defunding threat rings hollow.

  • January 30, 2017
    Guest Post

    by Robert Landicho,  Associate, Vinson & Elkins LLP and ACS Houston Lawyer Chapter Board Member; Peggy Li, Associate Director of Student Chapters, American Constitution Society for Law and Policy; Melissa Freeling, Volunteer, International Refugee Assistance, Project Berkeley Law Chapter and 2019 J.D. Candidate, University of California, Berkeley School of Law.

    With contributions by Becca Heller, Director, International Refugee Assistance Project; Henrike Dessaules, Communications Manager, International Refugee Assistance Project

    On International Holocaust Remembrance Day, Jan. 27th, 2017, President Trump signed an executive order barring entry for all refugees to the United States for 120 days, suspending entry for Syrian refugees indefinitely and banning all visa holders from Syria, Iraq, Iran, Libya, Somalia, Sudan and Yemen for 90 days.

    This ban faces challenges under due process, equal protection, international law, and immigration law (see the Petition for Writ of Habeas Corpus filed against Trump, DHS, and Customs and Border Protection); and  damages the United States’ already declining reputation in the region. But more fundamentally, Trump’s executive order irresponsibly endangers families that are legitimately seeking (or have already been granted) refuge from conflict or persecution. When families apply for refugee status, they are already thoroughly vetted through a series of interviews involving USCIS, the FBI, DHS, DOD and other government agencies, which can take years to complete. Not only is the premise of the executive order not grounded in facts or reality (i.e., there is no evidence that the executive order will succeed in achieving its stated aims)—this overbroad and unnecessary action completely disregards the many lives it irrevocably alters.

  • January 30, 2017
    Guest Post

    by Margaret Hu, Associate Professor of Law, Washington and Lee University School of Law

    On Jan. 25, 2017, The Economist reported that United States had been downgraded from a “full democracy” to a “flawed democracy.” Coincidentally, on the same day, President Trump issued two executive orders titled, “Border Security and Immigration Enforcement Improvements” and “Enhancing Public Safety in the Interior of the United States.” The former states that it was “the policy of the executive branch to . . . secure the southern border of the United States through the immediate construction of a physical wall” between United States and Mexico. The latter threatens the loss of federal funding for “sanctuary” jurisdictions, those state and local governments refusing to cooperate with the federal government in the detention and deportation of undocumented immigrants. Immediate protests erupted across the nation.

    Two days later, on Jan. 27, 2017, President Trump issued another Executive Order on immigration policy, titled, “Protecting the Nation from Foreign Terrorist Entry into the United States.” The most recent Executive Order on immigration bars the admission of all refugees to the United States for four months and excludes immigration from seven Muslim-majority countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. For Syria, the suspension of immigration is indefinite. For the remainder of the countries, the suspension, for now, is stated as temporary. The Executive Order asserts that immigration from those countries is “detrimental to the interests of the United States” and suspends immigration from those countries for ninety days while visa protocols are scrutinized. The tumult has been immediate, with persons from those countries, already rigorously screened and approved for entry in this country, suddenly finding themselves detained at airports and fearing a return to their home countries where they could be placed in harm’s way.