• February 24, 2016
    Guest Post

    by Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School; former Associate Counsel to the President and chief ethics lawyer, White House Counsel's Office (2005-2007); co-author of the ACS Issue Brief, “Extraordinary Circumstances: The Legacy of the Gang of 14 and a Proposal for Judicial Nominations"

    The Constitution is clear.  Presidents have four year terms, Senators have six year terms, and Members of the House of Representatives have two year terms. Their powers and responsibilities are carried out throughout their term in office. We do not take a “time out” from orderly government just because it is an election year.

    Justice Antonin Scalia – one of the greatest jurists in the history of Anglo-American law – did not give an excuse for our Country to descend into chaos simply because he departed from us in an election year.

    In an election year as in every other year it is the responsibility of the President to nominate judges, including Justices of the Supreme Court. It is the responsibility of the Senate to advise the President on nominations and to decide whether to give its consent to particular nominations. This includes holding hearings to determine the suitability of a nominee and voting on nominees just as the Senate votes on legislation, treaties and other matters.

    Or does our government simply grind to a halt because it is an election year? Does the President stop nominating people to vacancies in the judiciary and the executive branch? Does the Senate refuse even to hold hearings? Is no new legislation introduced? Perhaps so, if we assume that the only responsibility of the President and both houses of Congress for an entire year is to collect their paychecks and focus only on the election. 

    And so executive branch regulators shouldn’t do anything significant – or perhaps even show up for work – because it is not clear who the new President will be a year from now? And perhaps the military need not take orders from the Commander in Chief for the next year, because after all we will have a new Commander in Chief a year from now?  

    Everything simply shuts down or worse because it is an election year. This is because we are no longer a great power and those who govern us choose to act as if we were a Banana Republic.

    We know, and the members of the Senate Judiciary Committee know, that the Constitution did not intend for it to be this way. This government functions with two houses of Congress and a President until January 20, 2017 and on that day the government will continue to function with two houses of Congress and a President. Our government has the power, and the responsibility, to enact needed laws, to nominate and confirm judges and other officers to fill vacant positions, to take military action if needed and to declare war if our Country is attacked by an enemy. There is no Election Day – much less election year -- exception to any of this.

  • November 17, 2015
    Guest Post

    by Adam Winkler, Professor of Law, UCLA Law. Winker is author of Gunfight: The Battle over the Right to Bear Arms in America.

    As the Supreme Court has made clear, the Second Amendment is not an insurmountable barrier to gun control. President Barack Obama should not let the stalemate in Congress be one either. That’s why I, along with numerous other law professors, signed the “Statement of Law Professors on the Constitution and Executive Action to Reduce Gun Violence.” Even in the absence of new federal gun legislation to require every gun buyer to pass a simple background check, the president should continue to seek ways to reduce gun violence through executive action.

    Although Obama’s use of executive powers follows longstanding presidential tradition, it has proven controversial. Some have suggested – incorrectly – that executive action on guns would be unauthorized under the Constitution or undermine the Second Amendment right to keep and bear arms. In fact, however, the Second Amendment gives the government wide leeway to regulate guns to enhance public safety. Moreover, the Constitution vests Obama with the obligation to insure that congressional mandates “be faithfully executed,” enabling him to take executive action.

    Executive action designed, for instance, to clarify existing federal statutes is clearly within the president’s power. The president can, and should, clarify when a gun seller is “engaged in the business” of dealing firearms and thus required to have a federal license. He should also apply the existing federal law barring gun possession by people convicted of misdemeanor crimes of domestic violence to non-married couples and prioritize prosecution of illegal gun buyers. None of these reforms undermine the individual’s right to keep and bear arms for self-defense.  

    As with all individual rights, the president should be sure to pursue only those executive actions that do not infringe the Constitution. As the Statement suggests, however, there is much President Obama can still do to reduce gun violence well within the Constitution’s boundaries.

  • March 7, 2013
    Lawless Capitalism
    The Subprime Crisis and the Case for an Economic Rule of Law
    Steven A. Ramirez

    by Steven A. Ramirez, Professor of Law, Loyola University Chicago, School of Law

    Too much power in too few hands presents dangers of despotism.

    Americans traditionally deemed concentrated and unaccountable political power suspect. The United States Constitution reflects this suspicion by splitting sovereign power among state and federal governments, and then dividing it again between three co-equal branches that provide checks and balances against overreaching by any government official.

    Yet, the Constitution fails to splinter concentrated economic power. While Congress may act to check economic concentration, in the end, brakes on economic concentration rise or fall based upon political negotiation. Congress cannot legislate a King; it may, however, permit financial consolidation to such an extent that big finance holds an unlimited claim on government resources.

    Since 1978, bipartisan legislation created unprecedented economic concentration.  Tax cuts led to the highest income inequality on record. Financial deregulation birthed the largest financial behemoths ever. Restraints governing managers of public corporations vanished, and CEO compensation soared. Predictably, as more wealth became concentrated in fewer hands, costs to organize to lobby lawmakers plunged.

  • February 11, 2013

    by Jeremy Leaming

    Despite attorneys in the Department of Justice’s Office of Legal Counsel who appear to have produced a lengthy justification for targeted killings that skewers the English language to wend its around constitutional principles such as due process before the government can deprive a person of liberty, President Obama has nonetheless taken solid action to counter the right’s take on the Constitution as a document that limits government’s ability to take collective action to protect and advance the nation’s welfare.

    In a piece for The New Republic, Simon Lazarus, senior counsel to the Constitutional Accountability Center, says it’s about time – likely long overdue -- that progressives provide a compelling alternative to the right’s simplistic, but effective rhetoric of a Constitution that is all about individual rights and a weak central government.

    Quickly after the president provided some staunchly liberal rhetoric in his Second Inaugural address, Republican lawmakers, such as Sens. Mitch McConnell (R-K.Y.) and Chuck Grassley (R-Iowa) brayed that the president was ushering in or attempting to an age of radical liberalism. Grassley, as noted here, also groused that the president had turned the Second Amendment on its head by arguing that new measures aimed at curbing gun violence were no threat to the individual right to bear arms.

    The president’s rhetoric on the Constitution, Lazarus writes, “echoes that of the Reconstruction Congresses which enacted the Thirteenth, Fourteenth and Fifteenth Amendments. In line with then-existing Supreme Court precedent, they believed Congress empowered to prevent interference with the exercise of individual rights created by constitutional prohibitions on government. Specifically, they held the federal government responsible for preventing private violence and intimidation designed to deter former slaves from voting and enjoying other constitutionally prescribed liberties. And they wrote into the amendments express authority for Congress to ‘enforce’ that responsibility.”  


  • January 10, 2013

    by John Schachter

    Yesterday marked the 100th anniversary of the birth of Richard M. Nixon, the 37th president of the United States – and the only one to resign the office in disgrace. Despite his long and well-documented record of criminality, vile language and behavior, racism, anti-Semitism and consistent efforts to obstruct justice and violate the Constitution (as well as the rules and accepted norms of political and personal behavior), a loyal cadre of deluded holders-on still cling to the notion that Nixon was a great, albeit misunderstood, man and president. As none of his friends might say, Oy!

    Nixon apologists held a gala celebration at Washington D.C.’s storied Mayflower Hotel to fete the discredited former president. Perhaps the setting was coincidentally appropriate; the hotel is home to some of the political world’s most infamous indignities. Of course, these past scandals – Gov. Elliot Spitzer’s dalliances with prostitutes, Monica Lewinsky hiding out, and JFK mistress Judith Exner waiting there for rides to the White House – all had a connection to sex. But perhaps there’s more similarity here after all; Nixon certainly screwed the American public time and time again.

    Of course, when Patrick Buchanan is one of your keynote and most spirited defenders, you know you’ve got some hell of a record. Buchanan called Nixon “a statesman, a profile in courage and an extraordinary man we are all proud to have served.” Looking at Buchanan’s almost equally noxious record on race and religion, among other issues, that sentiment makes sense.

    Billy Graham sent a tribute via his son. The Reverend Graham, you may remember, was immortalized on White House tapes lamenting Jewish domination of the media, a “stranglehold” that he feared would be responsible for “this country's going down the drain.''