Professor Steven Schwinn

  • January 17, 2018
    Guest Post

    By Steven D. Schwinn, Professor of Law, the John Marshall Law School

    Former White House chief strategist Steve Bannon invoked a breathtakingly broad version of executive privilege on behalf of the President at yesterday's closed-door House Intelligence Committee hearing. But at the same time, he reportedly maintains (apparently along with the White House) that the same executive privilege won't prevent him from sharing information with Special Counsel Robert Mueller, who has subpoenaed Bannon.

    What gives? Neither Bannon nor the White House has said. But let's try to sort some of this out.

    Start here: The Supreme Court, in its seminal case United States v. Nixon, said that certain communications between the President and his or her advisors may be privileged. While this "executive privilege" is nowhere in the Constitution, the Court said that it derives from the President's Article II powers and separation-of-powers principles.

  • September 9, 2011
    Guest Post

    By Steven D. Schwinn, Associate Professor of Law, The John Marshall Law School; and Co-Editor, Constitutional Law Prof Blog


    With all the talk these days about state sovereignty, “states’ rights,” and the importance of protecting the traditional roles of the states, you might think that states reign supreme in our federal system. You might think that the mighty states are designed with a singular purpose to protect us from a dangerously encroaching federal government. (You might even forget that it was We the People, and not the states, who formed the federal government in the first place.) And you might think that states have a sovereign right, even a duty, to file suit in federal court to head off and to nullify an out-of-control federal government on our behalf. 

    With all the talk these days, you might think these things. But then you’d be wrong.

    We got a healthy reminder of that in the form of a terse and pointed opinion this week by Judge Motz for a unanimous three-judge panel of the Fourth Circuit. The court rejected the Commonwealth of Virginia’s effort to sue in federal court to overturn the individual health insurance mandate in the Affordable Care Act. In particular, it rejected the Commonwealth’s transparent attempt to concoct a federal claim where there was none.  In so doing, it set right the relationship between the states and the federal government, their proper roles in relation to their citizens, and the job of the courts in preserving our federal system.  In short, it put the Commonwealth back in its place.

    The case, Virginia v. Sebelius, was based on the Virginia Health Care Freedom Act, which says that “[n]o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage.” The Commonwealth claimed that it enacted the VHCFA in order to protect its citizens from the overreaching individual health insurance mandate in the ACA.  In truth, the Act was only a naked effort to manufacture standing for the Commonwealth (and really just the state attorney general) to sue the federal government in federal court -- the AG’s way to air and to legitimize his political objections to the individual mandate under the guise of a constitutional complaint. Thus the Commonwealth argued that the ACA’s individual mandate ran right up against its own VHCFA, creating a concrete and particularized injury that would satisfy the standing requirements of Article III.