ACSBlog

  • April 26, 2017
    Guest Post

    by Joe Mendelson, Former Legal Director at the International Center for Technology Assessment, Former Democratic Chief Climate Counsel for the Senate Environment and Public Works Committee and Author of 1999 Petition Seeking EPA Regulation of Carbon Pollution that Led to the Litigation in Massachusetts v. EPA; David Bookbinder, Former Chief Climate Counsel at the Sierra Club and Current Chief Counsel at the Niskanen Center; and Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown Law and  Lead Author of the Petitioners’ Briefs in Massachusetts v. EPA

    Ten years ago this month, the Supreme Court issued its landmark ruling in Massachusetts v. EPA, holding that the Clean Air Act gives the Environmental Protection Agency the power to control the pollutants that cause climate change and that the George W. Bush administration had illegally refused to exercise this authority based on political considerations that had no basis in the Clean Air Act.

    The Trump administration has marked this anniversary with dubious ceremony. Last week, President Trump issued an executive order directing the rollback of Obama-era regulations that addressed climate change. Earlier, Trump's EPA chief, Scott Pruitt, publicly questioned the established scientific evidence of the link between human activities and rising temperatures. Pruitt, a lawyer, not only stepped into an area beyond his expertise but also managed to get the law wrong at the same time. Congress, Pruitt claimed, had never acted, and thus EPA's efforts to use the Clean Air Act to bring carbon pollution under control were illegitimate. The claim reflects an astonishing ignorance about the law that he is charged with implementing.

    Far from occurring in a legislative vacuum, EPA's carbon pollution controls are the culmination of a 50-year historical path to limiting these pollutants. It started in 1965 when during a speech to Congress President Lyndon B. Johnson spoke of modernizing the Clean Air Act to address air pollution threats before they occurred. He noted that “this generation has altered the composition of the atmosphere on a global scale through…a steady increase in carbon dioxide from the burning of fossil fuels.” During the following legislative debate on the Clean Air Act where Congressman Helstoski urged action because, “It has been predicted that by the year 2000, the amount of atmospheric carbon dioxide may have increased by about 50 percent; and many believe that this will have a considerable effect on the world’s climate.”

  • April 26, 2017

    *This piece is part of the ACSblog symposium: The Department of Injustice.

    by Christopher Wright Durocher

    On Monday morning, the Supreme Court declined to review a Fifth Circuit Court of Appeals ruling that upheld the dismissal of Ricardo Salazar-Limon’s lawsuit against the City of Houston for a police officer’s alleged excessive use of force. Salazar-Limon was partially paralyzed as the result of injuries he sustained when Officer Chris Thompson shot him in the back during a traffic stop, though he was unarmed.

    The Fifth Circuit reasoned that there was no material dispute of fact in the case—the standard that must be met to avoid summary judgment—because Thompson testified during his deposition that he saw Salazar-Limon reach for his waistband, and, as Justice Samuel Alito notes in his concurrence, “Remarkably, Salazar-Limon did not state in his deposition or in an affidavit that he did not reach for his waist.”

    The problem, Justice Sonya Sotomayor explains in her dissent, is that this conclusion “is plainly wrong.”  As she describes it, there is a clear dispute of material fact:

  • April 24, 2017
    Guest Post

    by Laura W. Brill, Partner, Kendall Brill Kelly

    It is a pretty safe bet that if, after losing a motion for a preliminary injunction, a fourth-year associate were to go on the radio and say that she was amazed that some judge sitting on an island in the Pacific Ocean could issue an injunction against her client, that associate would not have a job for long. And she would not help matters if her main defense was, “Nobody has a sense of humor anymore.”

    Every lawyer knows this.

    What do we make then of Attorney General Jeff Sessions’ comments in response to the preliminary injunction on the president’s travel ban that was issued by the Hon. Derrick K. Watson in federal district court in Hawaii? And what are we as lawyers going to do about it?

    Like so many of you, I have been asking myself questions like this since the presidential election. I still don’t know the answers. But I do believe that this administration’s repeated attacks on the legitimacy of our courts pose a serious threat to the fair administration of justice and the protection of constitutional rights. As lawyers, we have a responsibility to articulate the values that we think are important to a constitutional democracy and to provide a counterbalance so that the public will not be misled. That is why I have chosen to make my views known and to ask other lawyers and law professors to join me in expressing our support for judicial independence. 

    Two months ago, in response to President Donald Trump’s disparaging comments, in which he referred to the Hon. James L. Robart as a “so-called judge” after the injunction barring the first travel ban, I wrote a public letter to Attorney General Sessions, calling on him to ask the president to stop personal attacks on judges and on the legitimacy of the courts.  In a matter of days, 6,400 lawyers and law professor from across the country and the political spectrum signed the letter.

  • April 24, 2017
    Guest Post

    by Melissa L. Turcios, Associate, Wilkinson Barker, Knauer LLP

    A couple of weeks ago, President Trump signed an executive order throttling federal funding to nearly 400 jurisdictions across the United States, so-called “sanctuary cities,” that through various policy mechanisms do not require their local law enforcement to affirmatively assist in executing federal immigration laws. “Sanctuary city” is an unfortunate misnomer, evoking a place where “bad hombres” run rampant, protected from the long arm of Johnny Law. This misguided view, reflected even in the text of the order itself, has resounded through conservative media: that sanctuary policies tie the hands of local law enforcement, create unbreachable havens for criminal aliens and endanger innocent Americans.

    The truth, as it often is, is far more benign: nothing in sanctuary policies prevents federal enforcement actions. The federal government exercises exclusive jurisdiction over immigration enforcement, but state and local governments retain sovereign authority to assess local needs and priorities as part of their “police powers,” in order to provide for the health, safety, education and welfare of their communities. In order to ensure that already-limited local law enforcement resources are directed towards local crime prevention priorities, jurisdictions like the District of Columbia may, for example, refuse to hold undocumented immigrants in detention on the taxpayer dime past their scheduled release dates. “Being a sanctuary city means we are not an agent of the federal government,” D.C. Mayor Muriel Bowser explained, “It means that our police can focus on serving D.C. residents — protecting and serving them — no matter their immigration status.” To preempt federal efforts to commandeer local police into serving as an auxiliary deportation force, other jurisdictions prevent local police from even asking about the immigration status of residents. Such policies have broad support among law enforcement officials and do not prevent any police department from pursuing or arresting an undocumented immigrant who commits a crime. 

  • April 24, 2017
    Guest Post

    *This piece is part of the ACSblog Symposium: 2017 ACS National Convention. The symposium will consider topics featured at the three day convention, scheduled for June 8-10, 2017. Learn more about the Convention here

    by William Yeomans, Fellow in Law and Government, American University Washington College of Law

    The election of Donald Trump jolted federal government lawyers. Trump ran for election promising to flout the constitution and federal laws. He questioned the value of many federal agencies and repeatedly denounced the number, quality and energy of federal employees. 

    The picture only grew worse as President Trump filled his cabinet with leaders with contempt for the missions of the agencies they lead. As a presidential candidate, Rick Perry wanted to abolish the Department of Energy. As Oklahoma Attorney General, Scott Pruitt regularly sued the Environmental Protection Agency and since taking office has engendered such hostility among environmentalists and his own employees that he requires a 24-hour a day security detail. Ben Carson repeatedly expressed his contempt for public housing and the people who live in it. Betsy DeVos is perceived as so hostile to public education that she has been blocked by teachers from entering a public school. And Tom Price built a political career on hostility to expanding medical care through the Affordable Care Act, which he is now charged with administering.

    The appointment of Jefferson Beauregard Sessions as Attorney General signaled that President Trump was serious about radically reversing the direction of federal law enforcement. Lawyers throughout the federal government are affected by positions taken by the Department of Justice. Sessions’ appointment promised abandonment of the Obama administration’s strong enforcement of civil rights and environmental laws, efforts to soften the harsh edges of immigration laws and its push for criminal justice reform.