May 2017

  • May 31, 2017

    by Dan Froomkin and Caroline Fredrickson

    As the reported connections between Jared Kushner and the Russian government become more suspicious -- and the possibility that he simply forgot to report those contacts on his security clearance application becomes more remote -- calls are mounting for Kushner's access to the U.S.'s top secrets be suspended.

    But who would do that? The granting and revocation of security clearances is the exclusive prerogative of the executive branch, currently headed by Kushner's father-in-law.

    So is there anything at all the legislative or judicial branches can do to overrule him?

    Do any of the executive-branch entities with control over security clearances have enough quasi-independence to defy the commander in chief's wishes?

    Essentially, no. When it comes to security clearances, there is no legal check on a president's power at all. The legislative and judicial branches have no role -- other than possibly creating political pressure to act.

    It turns out that many executive-branch powers that most people until recently considered unlikely to be abused are now looking awfully unilateral in the context of a Trump presidency. Control over security clearances is certainly one.

    "That is understood to be purely an executive function," said Steven Aftergood, who runs the Project on Government Secrecy at the Federation of American Scientists in Washington and writes the Secrecy News blog.

  • May 31, 2017

    *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 Katie O’Connor

    In a couple of critical ways, this decade has seen a recommitment and expansion of access to reproductive health care for all Americans. To start off the decade, in early 2010, President Obama signed the Affordable Care Act, drastically reducing the number of Americans without health insurance. Between 2013 and 2015, the proportion of 15-44 year old women who were uninsured in the country fell by 36 percent, largely as a result of the ACA’s Medicaid expansion and subsidized private coverage. Moreover, the ACA guaranteed full coverage of all FDA-approved contraceptives for women. All told, millions of women who might have struggled in the past to afford contraception (and other reproductive health care), or who might have gone without, now have access as long as the protections of the ACA remain in place.

    While the ACA put access to contraception and other reproductive health services within reach for many Americans, it failed to guarantee coverage for abortion and allowed states to ban abortion coverage in their ACA marketplace plans. Nevertheless, reproductive rights advocates found reason to celebrate a victory for the right to abortion in 2016. That year, in Whole Woman’s Health v. Hellerstedt, the Supreme Court forcefully reaffirmed the constitutional right to abortion and added teeth to the “undue burden” standard that was adopted two and a half decades ago. The case challenged two parts of Texas’s House Bill 2 – the “admitting privileges requirement,” which required abortion providers in the state to have admitting privileges at a nearby hospital, and the “surgical-center requirement,” which required abortion clinics to meet expensive and often unnecessary standards as ambulatory surgical centers. The two requirements, if allowed to go into full effect, would have forced over 75 percent of the state’s abortion facilities to close. In overturning the Fifth Circuit’s opinion upholding both provisions, the Court reiterated the undue burden standard from Planned Parenthood v. Casey and clarified that the standard requires a balancing of burdens and benefits. In assessing challenges to restrictions on abortion, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” Moreover, the Court rejected the notion that “legislatures, and not courts, must resolve questions of medical uncertainty” and made clear that courts should consider evidence of a restriction’s medical benefits presented during judicial proceedings in addition to legislative findings, if any, in determining the restriction’s constitutionality. Whole Woman’s Health built upon existing precedent, reinforced the constitutional right to abortion and provided further guidance for courts considering restrictions on the right. In doing so, the Court dealt a blow to sham abortion restrictions that purport to make abortion safer but really just make it less accessible.

  • May 30, 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 Brad Wendel, Professor of Law, Cornell Law School

    I was very sorry to have to decline the invitation to appear on a panel at the ACS Convention entitled “Should I Stay or Should I Go? Deciding Whether to Serve in an Unfriendly Administration,” not least because of the allusion to a great song by the Clash. As it happens I considered exactly this issue. Although I am a lifelong Democrat of the squishy Clinton-Gore centrist variety, I would have no compunction about serving in the administration of, say, Mitt Romney, Marco Rubio or Scott Walker. I clerked for a conservative federal judge for whom I have the greatest respect, and have spent much of my career as a scholar defending the apolitical ideal of the rule of law – not the public interest or one’s personal integrity – as the central normative principle underlying legal ethics. But as a candidate and in the first several months of his presidency, in his words and in his actions, Donald Trump has consistently expressed hostility to separation of powers, the rule of law and traditional mechanisms of accountability. The best advice for an ethically conscientious lawyer, regardless of political ideology, is to steer well clear of service in this administration.

    Many thoughtful people have addressed this question. David Luban and Deborah Rhode, two of the wisest legal ethicists in the business, both addressed the moral and psychological issues of serving a president who is openly contemptuous of the rule of law. Prolific national security law and policy commentator Ben Wittes wrote about this question several times, starting in summer 2016 – see his subsequent posts here, here, and here. More recently Jack Goldsmith and Quinta Jurecic, writing like Wittes on the Lawfare blog, revisited the issue in the wake of the firing of FBI Director James Comey. Finally, my colleague Mike Dorf wrote about the problem of “people with good intentions and reputations for integrity who take at-best questionable actions.” Three important points emerge from this discussion.

  • May 30, 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 Brishen Rogers, Associate Professor of Law, Temple University Beasley School of Law and Visiting Professor, Spring 2017, Washington University in St. Louis and European University Institute, Florence Italy

    The rise of platform economy firms such as Uber, Lyft and TaskRabbit have drawn public attention to the fact that more and more workers today are financially insecure, lack even basic statutory employment rights and have little or no job security. While this public attention is welcome, these issues are not new.  They are rooted in the long-running shift of power in the economy away from workers and unions and toward large corporations and financial firms. 

    Take the fissuring of employment. This has resulted from a set of conscious choices to reorganize firms or production strategies so as to economize on labor costs. And the incentives to take such steps have increased dramatically in recent years. An individual commercial building owner with only a bank mortgage to service may be perfectly happy to collect marginally lower profits in exchange for a harmonious relationship with her janitors and security guards. A real estate investment trust with dozens or hundreds of buildings and external shareholders has different priorities, and may seek to keep wages down or — failing that — to outsource and de-unionize the workforce. 

    Many low-wage sectors have such dynamics today, particularly where firms have few options to enhance labor productivity. This is the case in logistics (where FedEx drivers and warehouse workers in Walmart’s supply chain are often independent contractors or temps); in fast food (where workers are often employed by McDonalds and Burger King franchisees rather than parent companies); in hospitality (where individual Marriotts and Hiltons are independently operated, sometimes with subcontracted services); and of course in the platform economy, where Uber drivers and Handy workers are misclassified as independent contractors. 

  • May 25, 2017

    *This piece originally appeared on StateAG.org’s Tierney Blog.

    by Faisal Sheikh

    It is an indictment of the current age that we must pause and applaud a rare moment of bipartisan cooperation around an incredibly important and seemingly uncontroversial issue. But such are the times.

    This did not take place in the halls of Congress, of course, but rather among a group 32 state attorneys general, led by Massachusetts Attorney General Maura Healey, a Democrat, and Colorado Attorney General Cynthia Coffman, a Republican. On May 22, the group sent letters to members of the House and Senate Appropriations Committees declaring their bipartisan opposition to the Trump administration’s proposal to eliminate all federal funding to the Legal Services Corporation (LSC). The corporation is a grant-making organization created by Congress for the purpose of distributing federal appropriations to nonprofit organizations that provide civil legal assistance. This group of state AGs joins the American Bar Associationstate judgesover 150 law firms and many other concerned groups in opposing this assault on civil legal services for low-income Americans. This includes the elderly and low-income military veterans and military families.

    It is only fitting that a bipartisan coalition of public officials rallies around this organization. LSC’s conception began under President Lyndon Johnson’s “war on poverty” and culminated in the enactment of a bipartisan bill signed into law by President Richard Nixon in 1974 that created the grant-funding organization. According to the LSC website, in describing the need for the organization, President Nixon wrote:

    Here each day the old, the unemployed, the underprivileged, and the largely forgotten people of our Nation may seek help. Perhaps it is an eviction, a marital conflict, repossession of a car, or misunderstanding over a welfare check—each problem may have a legal solution. These are small claims in the Nation’s eye, but they loom large in the hearts and lives of poor Americans.