Separation of Powers and Federalism

  • July 27, 2017
    Guest Post

    by Renato Mariotti, Partner, Thompson Coburn LLP

    Ever since word surfaced last week that Special Counsel Robert Mueller is examining financial transactions involving President Trump’s businesses and associates, the Trump legal team has leveled charges that Mueller has strayed “beyond the mandate of the Special Counsel.” There is no reason to believe that Mueller has done so.

    As a starting point, it is worth noting that Mueller’s mandate is extraordinarily broad. He is not only empowered to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” but he is also permitted to investigate “any matters that arose or may arise directly from the investigation.”

    That means that if Mueller’s team uncovers evidence of a crime that is related in any way to the crimes they are investigating, that is within the scope of his investigation. For instance, an individual could have structured a cash transaction to hide money payments to a hacker who obtained emails or to an American in exchange for assistance, an entity could have laundered money used to aid in coordination efforts, or evidence of a financial crime could have been used by the Russian government to blackmail an American into cooperating with them.

  • 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 17, 2017
    Guest Post

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    In November 2004, Neil Gorsuch oversaw legal teams in Eastern and Central Ohio for the Bush-Cheney campaign. In an email to President George W. Bush’s Political Director Matt Schlapp, he cheered, “What a magnificent result for the country. For me personally, the experience was invigorating and a great deal of fun.” (The experience for up to 15,000 people unable to vote in Columbus, Ohio because lines stretched for hours was probably less invigorating or fun.)

    Gorsuch continued, “While I’ve spent considerable time trying to help the cause on a volunteer basis in various roles, I concluded that I’d really like to be a full-time member of the team.” 

    His resume describes the various roles in which he was politically active to “help the cause,” with greater specificity than his Senate Judiciary Questionnaire—Co-Director of Virginia Lawyers for Bush-Cheney; Bush-Cheney Marshal; RNC Bronco; and Co-Chairman of the Republican National Lawyers Association Judicial Nominations Task Force—for which the Senate Republican Conference cited his Distinguished Service to the United States Senate for his work in support of President Bush’s judicial nominees.

    As Gorsuch began his effort to “be a full-time member of the team,” the way he started and then advanced his public service career raises troubling concerns regarding his nomination to the Supreme Court. 

  • March 15, 2017
    Guest Post

    by Caroline Fredrickson

    This week marks a national initiative to highlight transparency, accountability and open government. The timing could not be better.

    Sunshine Week, March 12-18, falls the week before confirmation hearings begin for Trump’s Supreme Court pick.

    National discourse has centered on the president’s commitment to core constitutional values and his understanding of the importance of rule of law. Indeed, leading constitutional scholars have already raised red flags on numerous issues and lawsuits have been filed.

    Events of the last few months have increased the gravity of the decision about who should fill the ninth seat on the Supreme Court. The Supreme Court is often the last defense for our Constitution and it is imperative that any nominee not be beholden to any one person, let alone the president of the United States.

    Throughout his campaign and since his election, the president repeatedly emphasized that his Supreme Court nominee would be the most conservative jurist he could find, and he made sure his nominee passed a series of litmus tests, including on reproductive rights and gun safety laws. This compromises the independence of the judiciary at a time when we especially need to rely on the courts to make their own assessment of the constitutionality of legislative and executive actions. Decisions from federal judges across the country impact the lives of all of us, from how we are treated in the workplace, how the law regards women, racial minorities and those with disabilities, among others, consumer protections, the safety of our environment, our right to vote and our immigration system – just to name a few issues.

  • March 3, 2017
    Guest Post

    *This piece originally appeared on StateAG.org's Tierney Blog

    by James Tierney, Former Maine Attorney General and Lecturer in Law at Columbia Law School

    The Maryland Legislature has finally gotten around to giving that state's outstanding AG - Brian Frosh - the authority that is enjoyed by almost every other AG, e.g. the authority to protect and defend the public interest by exercising his or her own best legal judgement without the approval of the Governor or the Legislature. This initiative finally consigns to the historical dustbin a wrongly decided 1984 decision by the Maryland Supreme Court.

    As the Rhode Island Supreme Court said in 2008, "the holder of that high office (state attorney general), as distinguished from the usual advocate, has a special and enduring duty to seek justice." State of Rhode Island v. Lead Industries Association Inc.et al., 951 A.2d 428 (R.I. 2008). 

    Residents of Maryland can now be assured that their attorney general will now work to "seek justice" for them. And other attorneys general around the country can now fully welcome Maryland into their midst.