Separation of powers

  • 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

    *This piece originally appeared on the Stanford Law School Blog.

    by Nora Freeman Engstrom, Professor of Law, Associate Dean for Curriculum and Deane F. Johnson Faculty Scholar at Stanford Law School

    All eyes are on health care. We are watching Congress take a hammer to the Affordable Care Act and threaten to wreak havoc on a $3 trillion-a-year industry, on which all of us rely. Concern about this congressional action is roiling op-ed pages, spilling out into town hall meetings, and even resulting in pro-Obamacare TV spots, airing across the United States.

    Yet, just out of view, Congress is hard at work dismantling another system—a system that is arguably just as vital to our economy and just as critical to our collective well-being. It is the civil justice system. And the threats it currently faces are serious.

    At this moment, numerous bills that alter the civil justice system are speeding through the House of Representatives. Each bill would, in its own way, upend time-honored procedures for where cases are brought, how they are litigated and whether plaintiffs get a fair shot or, instead, face a stacked deck. That, in turn, will determine whether the laws on the books are adequately enforced or, instead, whether corporations, governmental actors and others can violate our laws—whether involving the environment, civil rights, product safety, consumer protections or just about anything else—with impunity.

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.

  • October 24, 2016
    Guest Post

    by Keith Bradley

    Who do you think is the most powerful individual in government, after the president? Some might say the Secretary of Defense, the Attorney General or the Chair of the Federal Reserve Board. According to a panel of the D.C. Circuit, it is actually the director of the Consumer Financial Protection Bureau. On that ground, the court in PHH v. Consumer Financial Protection Bureau has just held it unconstitutional that, under the Dodd-Frank Act, the director can only be dismissed for cause.

    For those unfamiliar with the agency, it is the federal regulator of consumer protection in financial services—things like mortgage and credit-card lending, consumer reporting, debt collection, checking accounts, etc. The Dodd-Frank Act created the Bureau, inspired in large part by then-Professor Elizabeth Warren’s idea for a finance analog to the Consumer Product Safety Commission. The Bureau has a budget of about $480 million and just over 1,500 employees—a quarter or so as big as, say, the USDA’s Agricultural Research Service. The Bureau is certainly influential in its sphere; in a six-month period it reports securing $244 million in relief for consumers harmed by violations of federal consumer financial law. Yet, whether you think the Bureau is doing a good job or a bad job in the various areas it regulates, it is not immediately evident that its director is the second-most powerful official in the entire government.

    The opinion’s rhetoric reveals that this panel lost its mooring to the Constitution. The judges’ concern was that the director has “unilateral power,” by which the court really meant that the director runs the Bureau by himself, not as part of a multi-member commission or board. A commission or board is superior, the court said, because it poses less threat to individual liberty. To be sure, the Supreme Court has observed that the separation of powers protects individuals as well as the rival branches. But individual liberty is not the Constitution’s only value. To assess the validity of the Bureau, the question is not simply how it affects liberty, but how it measures up against the actual framework of the Constitution.

    To see the all-consuming importance of individual liberty to this D.C. Circuit panel, it will be useful first to run through the other justifications it offered.

    First, the opinion professed to be suspicious because having a single agency head with for-cause protection is novel. Setting aside whether that mode of constitutional analysis is wise, the panel’s historical review was incomplete. The National Bank Act of 1864 established the Comptroller of the Currency and it permitted (and still permits) the President to remove the Comptroller only “upon reasons to be communicated . . . to the Senate.” Textually and in terms of effect, “upon reasons” seems pretty similar to a “for cause” limitation. Assessing this historical example would be important for any careful examination of whether for-cause protection for a single agency head is a novelty. The D.C. Circuit panel dismissed it in a footnote stating that the Comptroller is an at-will official—for which the court cited no precedent and provided no explanation.

  • February 19, 2016

    by Nanya Springer

    In the week following the death of Supreme Court Justice Antonin Scalia, confusion and misinformation became widespread with regard to U.S. leaders’ constitutional obligations to fill the vacant seat. To explain what the Constitution requires of President Obama and the U.S. Senate, as well as the ramifications of a prolonged vacancy on the high Court, noted professor and legal expert Erwin Chemerinsky on Wednesday joined ACS for a discussion about what comes next.

    Chemerinsky immediately dispelled the myth that a president should not nominate a Supreme Court justice in an election year by simply reading the text of the Constitution. He explained, “What it says in Article II, Section 2, paragraph 2, is that the president ‘shall appoint Ambassadors, other Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States . . . with the Advice and Consent of the Senate.’ So, the Constitution creates a duty for the president to appoint Supreme Court justices by using the word ‘shall.’ There is no clause in Article II that says, ‘but not in an election year.’” He added that “presidents throughout American history have nominated in an election year, the last year of their term.”

    Chemerinsky provided historical data, noting that "over the entire course of American history, 24 times presidents have nominated individuals in an election year . . . and in 21 of 24 instances, the nominee has been confirmed by the Senate. That’s 87.5 percent. If you look at the entire course of American history, and all presidential nominations to the Supreme Court, 86.9 percent have been conformed. So there’s no statistical difference between nominations in the last year of presidency and nominations that come at any other time of the presidency.”

    Clearly, there are consequences that result from having an eight-member Supreme Court, particularly in the event of a 4-4 split. In that situation, Chemerinsky explained, the Court may choose to reconsider the case and seek a resolution on narrow or procedural grounds, put the case over for reargument the next term, or affirm the lower court’s decision without opinion. The latter situation would create complications in the presence of a circuit split because “the same federal law will have varying meanings in different parts of the country.”

    To listen to the full discussion, click here.