Separation of powers

  • April 11, 2017
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University’s School of Public Affairs and Author of Power Without Constraint: The Post 9/11 Presidency and National Security

    Last week, without congressional approval, Donald Trump ordered missile strikes against Syria. The argument for the strikes is, at first blush, compelling. We all saw the nightmarish pictures of murdered Syrian children. Syrian dictator Bashar al-Assad cannot be allowed to launch chemical weapons attacks against Syrian civilians with impunity. But additional questions present themselves. Is there legal authority for Trump’s decision? If Congress fails to act, what message will it send to the Trump administration, and what could this mean for future military action both in Syria and elsewhere?

    It is clear there is no authority under U.S. law for the strike (nor under international law), and that if Congress continues to passively defer to Trump’s unilateral decision it will be sending Trump a dangerous message: that decisions about when, where and against whom to use military force are for the president alone to make. That is the view John Yoo notoriously endorsed when describing the scope of presidential authority after the 9/11 attacks, and it is a description of presidential power that is incompatible with constitutional democracy.

    The simplest and also the most persuasive reading of the Constitution is that it assigns Congress authority over the decision to go to war, unless the United States faces an emergency situation requiring the president to repel a sudden attack without time to seek congressional authorization.  As Charlie Savage noted last week, most scholars agree that this is what the framers had in mind when they created a new document for a national government that would for the first time contain an executive branch. As Louis Fisher and others have explained, the framers decisively broke with the then-existing British model by granting the national legislature this power. The president is not a king, and the Constitution assigned powers previously belonging to the British king either to Congress or to the president and Congress jointly.

  • April 10, 2017
    Guest Post

    *This piece originally appeared in the Baltimore Sun.

    by Douglas F. Gansler, Former Attorney General of Maryland

    As the Maryland legislative session comes to a close, it is important to take note of one of the most significant accomplishments that occurred — the expansion of the Maryland attorney general's ability to challenge perceived unconstitutional and un-American maneuvers taken by the Trump administration "Maryland attorney general Frosh awarded expanded power to sue Trump administration," Feb. 15). As state attorneys general continue to emerge as the vanguard in the fight against the Trump administration, the Maryland Defense Act provides the attorney general with the same rights currently enjoyed by 41 other states and should be applauded.

    Previously, the attorney general had to seek the permission of the governor before instituting any lawsuit on behalf of the people of Maryland. For example, when Attorney General Brian Frosh requested Gov. Larry Hogan's permission to support other states' lawsuits against President Donald Trump's unconstitutional Muslim ban, the governor never granted that permission.

    In fact, the governor, in an apparent power grab, called the Maryland Defense Act "outrageous," "potentially unconstitutional," and upsetting to the system of "checks and balances." It is none of those things. Indeed, the authority of the Maryland attorney general should be expanded further so that he or she can join colleagues from the vast number of other states where the state attorney general does not need to seek permission from the governor prior to bringing any suit. For example, should Mr. Frosh wish to sue oil and gas companies exposing their complicity in climate change, pharmaceutical companies for pumping opioids into the market, gun dealers for pumping assault weapons onto our streets or car manufacturers for manipulating emissions readouts, he should be able to do so. 

  • April 10, 2017
    Guest Post

    *This piece is part of the ACSblog symposium: "The Future of the U.S. Constitution

    by William Marshall, ACS Board Member and Kenan Professor of Law, University of North Carolina School of Law

    The subject of this essay may seem nostalgic to some; the constitutional implications of the congressional obstruction that plagued the Obama Administration during six of its eight years in office. After all, we are now living in a period of an ostensible united government under a Trump presidency and a Republican Congress, a phenomenon that, as other writers in the Symposium point out, raises its own set of constitutional concerns.

    Nevertheless, the problem of Congressional obstruction is one that is likely to return to the constitutional landscape. The country’s equally divided electorate, combined with the nation’s intense polarization means that we can fully expect future episodes of divided government and more prolonged periods when the Congress, no matter which party controls it, will be intent upon using whatever tactics may be available to frustrate the agenda of an opposing party’s presidency.   

    President Obama’s response to congressional obstruction was to adopt a “we can’t wait” strategy under which he strived to pursue as much of his agenda as he could unilaterally, without waiting for Congress to assent. That approach, however, generated serious criticism on the grounds that it exacerbated an already dangerous trend of centering too much power in the presidency. Congress, after all, provides the primary bulwark against presidential overreaching; and the argument that the presidency should assume more power because Congress is using its prerogatives to check executive authority seems exactly backward. If Congress is to serve its checking function, it would seem that, at the least, it should have the authority not to accede to executive branch direction. At least at one level, then, Congress has, and should have, the power to do nothing.

  • March 20, 2017
    Guest Post

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    Last month, a panel of the U.S. Court of Appeals for the Ninth Circuit denied the Trump administration’s request to stay a federal district court judge’s temporary injunction against the first version of President Trump’s travel order. Some critics of the Ninth Circuit’s opinion have argued, among other things, that the panel should not have considered Donald Trump’s statements as evidence that the order purposefully discriminated against Muslims. These critics suggest that presidential campaign speech categorically ought not to be included among the evidence to which courts look to determine whether a law was passed for discriminatory reasons.

    This past Friday, Judge Kozinski – in an opinion joined by four of his fellow Ninth Circuit judges, dissenting from the Ninth Circuit’s refusal to vacate the panel opinion on the First Travel Order – joined these critics. Judge Kozinski characterized the panel’s use of Trump’s own statements as an “evidentiary snark hunt.” This approach, he warned, will reward lawyers for sifting through a candidate’s “often contradictory or inflammatory” statements, “when in truth the poor schlub’s only intention is to get elected.”  Worse still, it “will chill campaign speech,” as candidates censor themselves for fear of uttering statements that will haunt them in court one day.

    The concerns voiced by Judge Kozinski and other critics are misplaced. As both the Ninth Circuit panel and the federal trial court that first ruled on the case recognized, it is well established that courts may – indeed, often must – look beyond the face of a law to determine whether it is motivated partly by a discriminatory purpose. A contrary rule would create gaping loopholes in constitutional and statutory bars against religious or other forms of discrimination. To be sure, judicial inquiries into alleged discriminatory purposes are highly context-sensitive. A stray bigoted statement by a legislator or executive is unlikely to persuade a court that a measure is discriminatory in the face of ample evidence that it was directed toward, and serves a legitimate, non-discriminatory interest. On the other hand, a long history of public statements promising to take a particular action against a given group may well convince a court that the promised action, once taken, does purposefully discriminate against that group. At minimum, that history is relevant to the judicial inquiry, even if the court ultimately deems it outweighed by countervailing evidentiary factors. Were courts not free to so much as consider such history, the judicial power regarding anti-discrimination laws would be dramatically curtailed.

  • March 20, 2017
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.

    I. Delegation of Regulatory Power

    The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.