ACSBlog

  • March 20, 2017
    Guest Post

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

    As has become the custom, day one of the confirmation hearing for Neil Gorsuch to become an associate justice of the Supreme Court was swallowed by a series of now mandatory positioning statements by members of the Senate Judiciary Committee. Republicans followed their script, uniformly adhering to talking points in praise of the nominee’s Ivy League credentials, years in private practice as a defender of free enterprise and principled conservatism on the bench. Translation: he is a smart guy who has shown his willingness to put his energy and intellect behind positions that track the Republican political agenda. That agenda favors employers over employees, management over labor, corporations and banks over consumers, religious interests over the rights of others and the Commander-in-Chief over Congress, while weakening federal administrative agencies, interpreting civil rights statutes narrowly and applying the doctrine of originalism to minimize individual rights and lock in traditional social injustices.

    Several Republican senators spent considerable energy providing cover for the nominee to refuse to answer questions, citing statements from Ruth Bader Ginsburg as a nominee and Sen. Edward M. Kennedy as a Committee member, cautioning that a nominee should not take positions on matters that could reach the Court. Invoking liberal icons exploited a tradition at confirmation hearings – citing the opposition to set up the defense of the nominee and teeing up the charge of hypocrisy if the other side attacks.

    Democrats were not deterred. Several cited the abusive treatment of Merrick Garland, but none declared these proceedings illegitimate. Nobody went quite so far as to suggest that President Trump might be as crazy and corrupt as he seems, undercutting the need to respect the nominee. But, several senators plainly thought the mistreatment of Garland combined with the unorthodoxy of the Trump presidency (including his announcement of litmus tests, and reliance on the Federalist Society and the Heritage Foundation to identify a nominee) to place an added burden on Gorsuch to be more forthcoming than the usual nominee to establish his independence and ability to serve as a check on an undisciplined executive.

  • March 20, 2017
    Guest Post

    *This piece originally appeared on the Campaign Legal Center's blog

    by Tara Malloy, Deputy Executive Director, Campaign Legal Center

    In 2016, voters across the political spectrum cast ballots for change—and to protest the rising influence of big money in our politics. But in Judge Neil Gorsuch, President Trump’s nominee to fill the late Justice Scalia’s vacant seat, voters worry they are getting a justice who will simply perpetuate the corrupting influence of money on government. The majority of voters in 2016 said the system was broken—particularly Trump voters, although this sentiment was consistent across all groups. Voters indicated that “can bring change” was the candidate attribute that mattered most to their decision on November 8; in fact, it was the deciding attribute in CNN exit polling. In poll after poll prior to the election, voters also repeatedly identified unchecked political spending as a principal cause of their dissatisfaction.

    Citizens United v. FEC, the 2010 decision that overturned the 60-year-old ban on corporate expenditures in elections and reversed decades of standing Supreme Court precedent, is reviled by voters of all stripes. As many as 80 percent of Republicans and 83 percent of Democrats believe Citizens United was wrongly decided and that corporations should not be campaigning for candidates. Campaign finance might be the last overwhelmingly bipartisan issue in these divided times.

    This is all a long way of returning to the question: how exactly have we ended up with Trump’s nominee, Judge Gorsuch of the Tenth Circuit Court of Appeals?  His past decisions confirm he is a friend to big money. He has even hinted that laws that limit direct contributions to candidates—literally, dollars going directly into politicians’ pockets—are constitutionally suspect.  It seems all but certain that he would cast another vote to affirm Citizens United.

    He is the opposite of protest.

  • March 20, 2017
    Guest Post

    by Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    Legal issues surrounding the power of administrative agencies appear to be at an inflection point. Two of these issues – the constitutionality of broad delegations of power to agencies and the practice of deferring to agencies' interpretive choices – are central to the scope of executive power, and both appear poised for a rethinking.

    I. Delegation of Regulatory Power

    The Supreme Court has long embraced the principle that Congress may not delegate its legislative power to the executive branch, testing legislative delegations according to the principle that Congress must supply an "intelligible principle" for the executive branch to follow. Yet the Court also has long upheld the constitutionality of transferring broad regulatory discretion to administrative agencies. In fact, the Supreme Court has only twice in its history – both times in 1935 – struck down a federal statute on the grounds that it conveyed too much legal discretion to an agency. In the years before and since, the Court has invariably upheld statutes against nondelegation challenges, even when they instruct agencies in broad, discretionary terms such as "fairness" and "the public interest." Justice Scalia himself wrote the majority opinion in a case in which the Justices unanimously rejected a claim that the Clean Air Act violated the nondelegation principle by giving the Environmental Protection Agency the power to set national air quality standards at levels requisite to protect public health. Whitman v. American Trucking Assns., 531 U.S. 457 (2001). Longstanding judicial precedent thus seems to secure the constitutional status of administrative agencies in our government structure.

  • 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 16, 2017
    Guest Post

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

    In the face of a reduced federal presence, Columbia Law School's Sabin Center for Climate Change Law, in partnership with StateAG.org, has produced a valuable legal research tool for those interested in environmental law and policy. The State AG Environmental Action Database includes a variety of environmental lawsuits and other actions involving state attorneys general. Users can search its contents by state, issue or type of action. The database also includes links to relevant documents and resources.

    This impressive database has been put together by dedicated Columbia Law School students under the supervision of Jessica Wentz, who serves as staff attorney and associate research scholar for the Sabin Center.

    I cannot overstate the importance of this effort. It is the only place where this information has been brought together in a coherent, organized fashion. The database will remain a "work in progress" as AG offices provide more cases to be uploaded. Notwithstanding the efforts by some in Washington D.C., this database is demonstrable proof that state attorneys general remain vigorous protectors of our environmental heritage.