ACSBlog

  • February 22, 2017
    Guest Post

    This piece originally appeared on The Guardian

    by Joshua Matz, Associate at Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP

    It is not every day that a federal court cites Ex parte Endo, the 1944 Supreme Court decision which invalidated the detention of loyal, law-abiding Japanese-Americans during the Second World War. But these are not ordinary times.

    Shortly after taking office, President Donald J. Trump unleashed pandemonium by suddenly announcing a temporary ban on travel into the United States from seven Muslim-majority nations, in addition to a temporary ban on all refugees. Experts cried foul, warning that Trump’s order violated the constitution and made America less safe.

    Amid vigils and protests, federal courts issued a flurry of rulings against Trump’s order. The broadest ruling was issued by Judge James Robart, who Trump promptly denounced on Twitter.

    On Feb. 7, the U.S. Court of Appeals for the Ninth Circuit heard oral argument on an emergency motion to overturn Judge Robart. More than 130,000 people live-streamed the hearing.

    The Department of Justice represented Trump in the court of appeals and took several astonishing positions. Most remarkably, it warned that “judicial second-guessing of the President’s national security determination in itself imposes substantial harm on the federal government and the nation at large.”

    Trump (through his tweets) and his lawyers (in their briefs) thus argued not only that Trump should win on appeal, but that judges would cause grave harm merely by questioning his order.

  • February 22, 2017
    Guest Post

    *This piece originally appeared on The Hill

    by Sen. Patrick Leahy

    The late Chief Justice William Rehnquist once described the independent judiciary as “one of the crown jewels of our system of government.” That is because the judiciary, insulated by life tenure from elections, can provide a necessary check on the other two branches of government and uphold the constitutional rights of all Americans.

    Now the independent federal judiciary is under attack by a president who seems intent on precipitating a constitutional crisis. President Trump’s attacks on a sitting federal judge reveal the misguided notion that judges owe some allegiance to the president who appointed them or to a political party. Yet these attacks also underscore exactly why the independent judiciary is such a crucial part of our system of government.

    Judges do not consider tweets, they consider the facts and the law. And based on the facts in front of them, federal judges have found President Trump’s immigration order is very likely discriminatory and unconstitutional. As even members of the judiciary have noted, there is nothing wrong with criticizing the rulings of any court, including the Supreme Court. But it is another thing entirely to attack a presidentially appointed, Senate-confirmed judge’s legitimacy, or to attack another based on his heritage. Such attacks reveal a profound disregard for constitutional checks and balances, which preserve the rights of all Americans.

    Now the Senate is asked to consider the very first judicial nominee appointed by President Trump, who in his first few weeks showed an outright hostility toward the judiciary. I had hoped that President Trump would work in a bipartisan way to pick a mainstream nominee like Merrick Garland and bring the country together. Instead, he promised to pick a nominee who would overturn Roe v. Wade and deprive women of the right to make their own health care choices and then outsourced his selection process to far-right interest groups. These groups receive significant funding from the Koch brothers and other conservative donors. Americans deserve a justice who will apply the law, not the ideology of a few wealthy mega-donors.

  • February 21, 2017
    Guest Post

    by Amy Myrick, Staff Attorney for Judicial Strategy, Center for Reproductive Rights

    A few weeks into the Trump presidency, the role of the courts is front and center. The first headliner dispute is over President Trump’s executive order on immigration – centrally, what degree of deference or scrutiny courts owe to an action that the president claims is within his plenary power. These questions will define legal proceedings of many types over the next months as President Trump seeks to detonate policy across the board, asserting that he has vast power to make America purportedly safer, healthier, richer and of course greater – and any person or judge, who suggests otherwise is fraudulent.   

    How -will courts react?  They might consider a model that the Supreme Court put forth in Whole Woman’s Health v. Hellerstedt, a case it decided last June. The opinion focused on how judges should properly apply a legal standard that lower courts were wielding in a range of ways, some of which deferred sharply to lawmakers, and some of which required meaningful judicial review. In clarifying the standard, the Court in Whole Woman’s Health developed a set of three principles for judges to follow in constitutional disputes. Those principles undercut singularly damaging features of President Trump’s policy approach – his disregard for whether laws address a real problem or else just burden people, and his outright rejection of credible evidence. Although Whole Woman’s Health was about abortion restrictions, its model is useful in other areas, now more than ever.     

  • February 21, 2017
    Guest Post

    by Ryan Cohen and Shane Hebel, Harvard Law & Policy Review, Volume 11 Editors-in-Chief

    During this time, when our nation appears so divided, there is one thing that we all share, whether we are Democratic or Republican, teacher or coal miner, voter or U.S. President, from the coasts or from Appalachia. Debt. We may be a nation of red, white, and blue, but mostly, we are just in the red.

    Our students are in debt (as graduate students, we can attest to that from personal experience). Our households are in debt. Our cities are in debt. Our nation is debt. Even our new president is in debt—billions of dollars of it. Collectively, Americans are $12.35 trillion in the hole. And that is not even including our $19 trillion national debt. In the past decade, U.S. household debt has risen 11 percent. Today, the average household with any debt at all is $132,529 in debt, including mortgages. Meanwhile, student loan debt has increased 186 percent.

    Debt is so pervasive and central in American society that The Week published an article late last year entitled How the Politics of Debt Explains Everything that described the “underlying political economy” as “a creditor/debtor stand-off where the creditors have the whip hand” and attributed Donald Trump’s ascendency to his “riding debtor anger against creditor strength.”

    While strategies to address debt divide us along partisan lines, there is bipartisan recognition that debt--in some form or another--is a problem. Rep. Brian Babin (R-TX) has said: “Would I like to see [the budget] balance? Certainly. Absolutely. I’ve got 13 grandchildren, and I don’t want to see them buried under $30 trillion of debt.” Focusing on individual debt, Sen. Elizabeth Warren (D-MA) has said: “College students today are drowning in debt, and it is hurting them and hurting our economy. We must find a way to help families pay for college without condemning them to a lifetime of indebtedness.”

  • February 17, 2017

    by Kaiya Lyons

    The Associated Press reported today that the Secretary of Homeland Security has drafted a memorandum that would mobilize thousands of National Guard troops in 11 states "to perform the functions of an immigration officer in relation to the investigation, apprehension and detention of aliens in the United States." Although White House Press Secretary Sean Spicer has denied the existence of any efforts to use the National Guard to deport undocumented immigrants, the plans outlined in the memorandum give rise to serious concerns about the degree of executive control over the National Guard. To what extent can the White House use the power of the National Guard to enforce federal immigration laws?

    Constitutionally, the National Guard exists under continuing state control, but may be used by the federal government to “execute the laws of the Union, suppress insurrections and repel invasions.” Therefore, there are three legally distinct ways the National Guard may be employed. First, the governor of a state may authorize the deployment of troops under state law. Second, a state governor and the president may agree to deploy National Guard troops within that state for a primarily federal purpose under Title 32 of the U.S. Code. Finally, the president may unilaterally mobilize the National Guard for a federal purpose authorized by federal law under Title 10 of the U.S. Code and pursuant to the restriction of military enforcement of domestic policies within the United States under the Posse Comitatus Act.

    Indeed, deploying National Guard troops in consort with state governments to assist in border security operations is not unprecedented. In recent history, both Presidents Bush and Obama have positioned National Guard troops on the United States-Mexico to provide administrative, observational, and logistical support to Border Patrol agents. For instance, in 2006, former President George W. Bush initiated “Operation Jump Start,” which mobilized 6,000 National Guard troops in California, Arizona, New Mexico and Texas to help install border barriers, provide training and assist with border surveillance. In 2010, former President Barack Obama announced the deployment of 1,200 National Guard troops on a similar assignment to support the organizational functions of Border Patrol.