Guest Post

  • April 24, 2017
    Guest Post

    by Laura W. Brill, Partner, Kendall Brill Kelly

    It is a pretty safe bet that if, after losing a motion for a preliminary injunction, a fourth-year associate were to go on the radio and say that she was amazed that some judge sitting on an island in the Pacific Ocean could issue an injunction against her client, that associate would not have a job for long. And she would not help matters if her main defense was, “Nobody has a sense of humor anymore.”

    Every lawyer knows this.

    What do we make then of Attorney General Jeff Sessions’ comments in response to the preliminary injunction on the president’s travel ban that was issued by the Hon. Derrick K. Watson in federal district court in Hawaii? And what are we as lawyers going to do about it?

    Like so many of you, I have been asking myself questions like this since the presidential election. I still don’t know the answers. But I do believe that this administration’s repeated attacks on the legitimacy of our courts pose a serious threat to the fair administration of justice and the protection of constitutional rights. As lawyers, we have a responsibility to articulate the values that we think are important to a constitutional democracy and to provide a counterbalance so that the public will not be misled. That is why I have chosen to make my views known and to ask other lawyers and law professors to join me in expressing our support for judicial independence. 

    Two months ago, in response to President Donald Trump’s disparaging comments, in which he referred to the Hon. James L. Robart as a “so-called judge” after the injunction barring the first travel ban, I wrote a public letter to Attorney General Sessions, calling on him to ask the president to stop personal attacks on judges and on the legitimacy of the courts.  In a matter of days, 6,400 lawyers and law professor from across the country and the political spectrum signed the letter.

  • April 24, 2017
    Guest Post

    by Melissa L. Turcios, Associate, Wilkinson Barker, Knauer LLP

    A couple of weeks ago, President Trump signed an executive order throttling federal funding to nearly 400 jurisdictions across the United States, so-called “sanctuary cities,” that through various policy mechanisms do not require their local law enforcement to affirmatively assist in executing federal immigration laws. “Sanctuary city” is an unfortunate misnomer, evoking a place where “bad hombres” run rampant, protected from the long arm of Johnny Law. This misguided view, reflected even in the text of the order itself, has resounded through conservative media: that sanctuary policies tie the hands of local law enforcement, create unbreachable havens for criminal aliens and endanger innocent Americans.

    The truth, as it often is, is far more benign: nothing in sanctuary policies prevents federal enforcement actions. The federal government exercises exclusive jurisdiction over immigration enforcement, but state and local governments retain sovereign authority to assess local needs and priorities as part of their “police powers,” in order to provide for the health, safety, education and welfare of their communities. In order to ensure that already-limited local law enforcement resources are directed towards local crime prevention priorities, jurisdictions like the District of Columbia may, for example, refuse to hold undocumented immigrants in detention on the taxpayer dime past their scheduled release dates. “Being a sanctuary city means we are not an agent of the federal government,” D.C. Mayor Muriel Bowser explained, “It means that our police can focus on serving D.C. residents — protecting and serving them — no matter their immigration status.” To preempt federal efforts to commandeer local police into serving as an auxiliary deportation force, other jurisdictions prevent local police from even asking about the immigration status of residents. Such policies have broad support among law enforcement officials and do not prevent any police department from pursuing or arresting an undocumented immigrant who commits a crime. 

  • April 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 William Yeomans, Fellow in Law and Government, American University Washington College of Law

    The election of Donald Trump jolted federal government lawyers. Trump ran for election promising to flout the constitution and federal laws. He questioned the value of many federal agencies and repeatedly denounced the number, quality and energy of federal employees. 

    The picture only grew worse as President Trump filled his cabinet with leaders with contempt for the missions of the agencies they lead. As a presidential candidate, Rick Perry wanted to abolish the Department of Energy. As Oklahoma Attorney General, Scott Pruitt regularly sued the Environmental Protection Agency and since taking office has engendered such hostility among environmentalists and his own employees that he requires a 24-hour a day security detail. Ben Carson repeatedly expressed his contempt for public housing and the people who live in it. Betsy DeVos is perceived as so hostile to public education that she has been blocked by teachers from entering a public school. And Tom Price built a political career on hostility to expanding medical care through the Affordable Care Act, which he is now charged with administering.

    The appointment of Jefferson Beauregard Sessions as Attorney General signaled that President Trump was serious about radically reversing the direction of federal law enforcement. Lawyers throughout the federal government are affected by positions taken by the Department of Justice. Sessions’ appointment promised abandonment of the Obama administration’s strong enforcement of civil rights and environmental laws, efforts to soften the harsh edges of immigration laws and its push for criminal justice reform. 

  • April 21, 2017
    Guest Post

    by Anna Bodi, Partner Legal Fellow, The Campaign Legal Center

    This week, members of the New Hampshire House Election Law Committee heard public testimony on a new bill that would impose new proof of residency requirements on voters attempting to register within 30 days of an election. New Hampshire is just one of the 29 states this year that have introduced a total of more than 85 bills restricting access to registration and voting.

    Recent actions by the current presidential administration have laid the groundwork for this flurry of voter restrictions. Since before he assumed office, President Trump has claimed, without evidence, that millions of illegal votes were cast in the 2016 election. After assuming office, Trump said he would call for a task force - led by Vice President Mike Pence - to investigate the issue of voter fraud.

    In reality, studies have proven that there is no evidence of widespread voter fraud, and both Republicans and Democrats have outwardly stated that it is not a problem in our democracy. Meanwhile, the Department of Justice’s (DOJ) recent withdrawal of its discriminatory intent claim in the Texas voter ID case is a signal to states that this DOJ will not vigorously enforce the Voting Rights Act.

    Though Trump’s voter fraud investigation has not materialized, more states have seized this moment to pass restrictive voting laws that supposedly target (nearly nonexistent) in-person voter fraud. Indeed, lawmakers are seizing on the mere “perception” of voter fraud—created by supporters of voter ID laws and amplified by the President’s recent statements—to justify voting restrictions. Thus, state legislators continue to introduce and push voting restrictions despite numerous rulings last year—in Texas, North Carolina, Wisconsin and North Dakota—striking down many such laws as discriminatory and unduly burdensome. Rather than refocusing their energies of electoral modernization measures—which could expand and improve our electoral system—legislators in many states have doubled down on voter restrictions, tweaking them slightly in hopes of judicial approval.

  • April 21, 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. 

    by Ethan Frenchman, Appellate Attorney, Maryland Office of the Public Defender and Arpit Gupta, Professor of Finance, NYU Stern School of Business

    The evidence is in, and America’s money bail system is not worth the cost.

    America and the Philippines are the only two nations that employ a wealth-based pretrial detention system. In this system, criminal defendants are arrested and then assessed an amount of money. If the money is not paid or guaranteed by some other person, the accused remains in jail. The end result of this system is easily understood: rich defendants buy their freedom, and the poor sit behind bars.

    Richard Stanford, for example, is a poor defendant. A Vietnam veteran, Mr. Stanford had exactly 31 cents to his name when he was arrested for trespassing in Baltimore County, Maryland. But the judge set his bail at $2,600 and Mr. Stanford was consequently jailed for weeks because he could not buy his freedom for even 10 percent: $260.

    This wealth-based system has been called the “front door” of mass incarceration, and for good reason. With more than 400,000 people detained in America awaiting trial, the jails are overflowing with non-violent, presumptively innocent people like Mr. Stanford. This is no surprise in light of the fact that freedom costs money, and the majority of Americans, as the Federal Reserve announced, do not have $400 available for an emergency.