Separation of Powers and Federalism

  • January 29, 2018
    Guest Post
    by Daniel S. Alter, former general counsel for the New York State Department of Financial Services 

    *This piece was originally published by Times Union

    If it has not already done so, the New York State Department of Financial Services (DFS) could vigorously pursue what Congress has so ponderously avoided: whether Deutsche Bank aided, abetted, or facilitated the Trump Organization in possible Russian money laundering.

  • January 29, 2018
    BookTalk

    by Lisa Manheim, Associate Professor of Law, and Kathryn Watts, Jack R. MacDonald Endowed Chair, University of Washington School of Law 

    Over the course of the past year, a seemingly endless stream of questions have emerged concerning what the law does, and does not, allow the President of the United States to do. For example, can the president build his promised wall along the U.S.-Mexico border? Can he impose a “shutdown” of Muslims entering the United States? Can he rollback various Obama-era environmental regulations, such as the Clean Power Plan? Can he fire Robert Mueller?

    Notably, these sorts of questions are being asked not only by lawyers and others in the legal arena. They are being asked by people all across the country.

    In response to these types of questions, we wrote a guide aimed at a general audience that provides a crash course on the laws that both empower and limit the President of the United States. That book, The Limits of Presidential Power: A Citizen’s Guide to the Law, is now available. We hope that our book provides an accessible and understandable guide to the what, why, and how of the laws that both govern the president and empower citizens.

  • January 29, 2018
    Guest Post

    by Jim Dempsey, Executive Director, Berkeley Center for Law and Technology

    The recent reauthorization of Section 702 of the Foreign Intelligence Surveillance Act was never in doubt. However, civil liberties advocates were disappointed when Congress failed to adopt an amendment requiring the government to obtain warrants before seeking information about US citizens in the repository of data collected under statue. More broadly, the debate failed to grapple with the risks of electronic surveillance in the era of globalization, expanding storage capacities, and big data analytics. Nevertheless, looking forward, the reauthorization set up the potential for fresh judicial consideration of a key constitutional question and yielded some opportunities for enhanced oversight of the 702 program.

    It was widely accepted that activities conducted under Section 702 were effective in producing useful intelligence on foreign terrorism and other national security concerns. Chances for reauthorization were further boosted by the fact that the broad outlines of 702 implementation were, once you got past the incredible complexity of the statute, well within a reasonable interpretation of Congress’ words. The trust generated by express Congressional authorization was augmented, after the Snowden leaks, by substantial and ongoing public disclosures by the Executive Branch about the law’s implementation – more transparency than any government in the world has ever provided about a similar national security program.

  • 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.

  • January 16, 2018
    Guest Post

    by Sam Kamin, Vicente Sederberg Professor of Marijuana Law and Policy, The University of Denver Sturm College of Law

    When Attorney General Jeff Sessions announced last week that he was rescinding the 2013 Cole Memorandum, marijuana policy was once again back on the national stage. The Cole Memo, issued by the Obama Justice Department, stated that those using, producing, or selling marijuana in compliance with robust state regulations would not be targeted by federal prosecutors. With the Cole Memo gone, there was renewed concern that state-level marijuana law reform could be undone by federal enforcement of the Controlled Substances Act (CSA).

    The reaction against Sessions’s action was swift. Republican Senator Cory Gardner took to the floor of the Senate, condemning Sessions’s decision as a broken promise. Senator Gardner also announced that that he would block all Justice Department nominations until the Attorney General made good on his pledge to defer to the states on marijuana policy. Others on both sides of the aisle made similar calls on Sessions to respect the will of the voters in the 29 states that made marijuana legally available for at least some adults.