May 2017

  • 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.

  • May 19, 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 Stephanie Toti, Reproductive Rights Advocate

    In an unbroken line of precedent spanning more than four decades, the Supreme Court has consistently held that a woman’s right to end a pregnancy is a fundamental component of the liberty protected by the Due Process Clauses of the Fifth and Fourteenth Amendments. The right at stake encompasses not merely the right to obtain an abortion procedure, but also, more broadly, “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 851 (1992). Despite seemingly relentless efforts by anti-choice advocates to undermine, overrule, or chip away at this right, it remains on solid constitutional footing. Last year’s historic decision in Whole Woman’s Health v. Hellerstedt, 579 U.S. __, 136 S. Ct. 2292 (2016), provides a potent reaffirmation of the Supreme Court’s abortion jurisprudence, clarifying both the robust nature of the protection the Constitution affords to “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy” Casey, 505 U.S. at 851, and the role of the courts in enforcing that protection.

  • May 17, 2017
    Guest Post

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

    For the second time within the span of week, Trump’s immigration ban 2.0 headed to a federal appeals court. On Monday, the Ninth Circuit heard the government’s appeal from district court’s issuance of an injunction in Hawaii v. Trump. The three-judge panel vigorously questioned both Acting Solicitor General Jeffrey Wall and counsel for Hawaii, Neal Katyal. The argument showcased some of the best oral advocacy thus far on the immigration ban executive order (EO), and featured several marquis moments that are sure to garner extended commentary. The range of topics explored by the Ninth Circuit panel were similar to the other cases challenging the EO: The proper level of judicial review; whether any plaintiffs have standing, and if so, what aspects of the EO their standing allows them to contest; whether the district court’s injunction was proper in scope; and, of course, whether and to what extent a court should consider Trump’s campaign and post-election statements in evaluating religious animus.

    My goal here is not to comprehensively discuss all important questions covered in the oral argument, rehash the voluminous legal commentary already available about the EO, or to make predictions about the panel opinion. Here, I highlight three moments, among the many, that stood out to me as notable inflection points.  The first exchange concerns the issue of statutory analysis, the second with the limits of religious animus, and the third with the historical legacy of this ruling.

  • May 17, 2017
    Guest Post

    by Julie Ebenstein, Staff Attorney, Voting Rights Project, ACLU

    The United States has a long, persistent history of racial discrimination in voting. It is a record that we still fight in the courts and have seen significant progress pushing back on. Just yesterday, the Supreme Court let stand a Fourth Circuit decision that struck down North Carolina’s voter suppression law for purposefully discriminating against African-Americans and violating the Constitution. Last month, a Texas trial court determined, for the second time, that a statewide photo ID law purposefully discriminates on the basis of race.

    Despite our progress, it is undeniable that the U.S. has a turnout problem: too many eligible voters do not, or cannot, vote. Voter suppression and low voter turnout threaten the integrity of our elections and the health of our democracy.

    Why, then, amid drastic federal budget cuts, has the president ordered a commission to investigate “voter fraud” — an election bogeyman which has been widely debunked by legal experts, election administrators and elected officials from across the political spectrum. The commission only distracts from the real problem facing American voters. 

    Before we waste taxpayer funds on this commission, we must seriously consider its objective, which appears to be to undermine voters' overall confidence in America’s electoral process, or even to justify voter suppression.

    The commission is not only a distraction from real issues facing voters, but problematic for other reasons. For instance, it defines “improper voter registration,” as any situation where an individual who is not eligible to vote in a jurisdiction is still on the voter rolls, which sounds ominous, but often is not. The National Voter Registration Act (“NVRA”) sets strict standards for when and how voters may be removed from the voter rolls to protect against disenfranchisement. It prevents removal of voters for, for example, not voting in an election, and it requires election officials to notify voters before cancelling their registration.

  • May 16, 2017
    Guest Post

    *This piece originally appeared on the Take Care blog.

    **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 Frederic M. Bloom, Professor of Law, University of Colorado Law School and Jon D. Michaels, Professor of Law, UCLA School of Law

    We have all heard the saying: those who do not learn from history are doomed to repeat it. History seemed to repeat itself earlier this week with Donald Trump's firing of FBI Director James Comey. Some have tried to cast Comey’s dismissal as unremarkable—just a president exercising his authority to fire an executive official he no longer trusts. But make no mistake: Comey's dismissal is exceptional. Indeed, it is so exceptional that it forces us to recall Richard Nixon’s craven directive to fire Special Prosecutor Archibald Cox, right as Cox was hot on the Watergate trail.

    Like most analogies, this one is imperfect, and all of the contrasts and differences prove unkind to the incumbent Administration. Start with Nixon’s Saturday Night Massacre: Impressive as they come, Archibald Cox had been brought in from Cambridge, where he served with distinction as a Harvard Law professor, a position easily admired but also readily lampooned. (Recall William F. Buckley’s famous quip that he would “sooner be governed by the first two thousand names in the Boston telephone directory than by the two thousand members of the faculty of Harvard.”) Cox’s credentials were pristine, but there was little doubt of his partisan bona fides. He ran in Democratic circles—not Nixon’s—advising John Kennedy during his time in the Senate, as part of JFK’s presidential campaign, and ultimately as the young president’s solicitor general. Through profession and perhaps party affiliation, then, one could spin a story (however far-fetched) that discounted or discredited Cox’s new gig as a special prosecutor.