• May 4, 2018

    by Christopher Fonzone, Partner, Privacy and Cybersecurity Group, Sidley Austin

    *This piece was cross-published at Just Security.

    A proposal to bring back waterboarding and a “hell of a lot worse.”  The possible suggestion that members of the military should intentionally target terrorists’ civilian family members. A threat to rain “fire and fury” on North Korea. With comments like these, President Trump has turned the responsibility of members of the military to obey superior orders – long an object of study for scholars of military law – into the subject of popular headlines and editorials. What happens, commentators have asked, “if President Trump orders Secretary of Defense Mattis to do something deeply unwise?” Would the military actually carry out such orders? 

    Much has been written, of course, on these important questions, which almost inevitably arise in extremely difficult situations. In order to provide those interested with the basics of what the law requires in such situations, I recently wrote an American Constitution Society Issue Brief entitled What the Military Law of Obedience Does (and Doesn’t) DoThis body of law, which has roots that date back to antiquity, makes clear that members of the military have a dual obligation to both obey “lawful” orders and disobey “manifestly” or “patently” illegal ones. As I argue in the Issue Brief, this means, in practice, that service members must refuse to transgress clear and well-known legal rules, but that commentators should not expect military disobedience to save the Nation from simply unwise or legally contested orders.

  • May 4, 2018

    by Alan B. MorrisonLerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    *This piece was originally published in The Regulatory Review.

    Firing Mueller would be extreme, but the next step would be even more perilous for the President.

    I agree with much of what my friend and colleague Richard Pierce has written in his essay, “The Easy Path to Firing Mueller,” but I partially dissent because Pierce, probably like President Donald Trump, has not figured out what comes next.

    Given the manner in which the President has reached many decisions, the firing is likely to come when special counsel Robert Mueller steps over an unknowable line that the President has drawn, and the President decides that he has gone too far.

  • May 3, 2018
    Guest Post

    by Max Lesko

    *Max Lesko served as the Chief of Staff at the Department of Education, Office for Civil Rights from 2015-2017. Previously he served in the Office of the White House Counsel and Presidential Personnel Office at the White House. Max received his J.D. from Georgetown University Law Center. Max currently works at the Children’s Defense Fund.

    During my time as Chief of Staff at the Department of Education’s Office for Civil Rights (OCR), our work was guided by a one-word credo: justice. We approached every decision about case management, and others, with the intent of achieving the most justice for the highest number of students. Congress created OCR for this reason, to be responsible for the civil rights of students. Throughout its existence, OCR has responded to complaints—recently over 10,000 a year— by vastly expanding the Civil Rights Data Collection giving the public a comprehensive understanding on the state of civil rights in schools, and promulgating key regulations and guidance to ensure schools are aware of their obligations under our country’s foundational civil rights laws.

  • May 2, 2018
    Guest Post

    by Scott R. Anderson, David M. Rubenstein Fellow, Brookings Institute

    Last week, the Supreme Court issued its long-awaited opinion in Jesner v. Arab Bank, a case that many feared might sound the death knell for U.S.-based human rights litigation by foreclosing on the Alien Tort Statute (ATS) and related federal common law claims for international law violations. Ultimately, the Court only declined to recognize claims against foreign corporations, a narrower holding than some had feared. Underlying the fractured majority’s opinion, however, is a logic that bodes poorly for any future expansion of the federal common law into areas related to foreign relations and national security.

    At issue in Jesner are the civil claims of approximately 6,000 foreign nationals injured in attacks by various Palestinian terrorist groups. Each ultimately sued Arab Bank—a major Jordanian financial institution—for providing the perpetrators of these attacks with financial services, including some that were routed through Arab Bank’s New York branch. The specific question before the Court was whether the ATS, which gives federal courts “original jurisdiction o[ver] any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” could serve as the legal basis for their lawsuit against the Arab Bank. The appellate court affirmed the district court’s dismissal of the plaintiffs’ claims on the grounds that the ATS could only be used to sue individuals, not corporations. The plaintiffs then appealed to the Supreme Court.

  • May 1, 2018

    by Justin Pidot, Associate Professor, University of Denver Sturm College of Law*

    Last week, EPA Administrator Scott Pruitt announced plans to adopt a new rule that would severely limit the types of information that EPA may consider in designing rules to protect public health and the environment. If this proposal becomes final, it will require the agency to turn a blind eye to many scientific studies and other evidence of the effects of pollution. The rule is widely opposed by the scientific community. It may well be unlawful because it would prevent EPA from considering the best available science. It is also part of a broader, surreptitious, and profoundly misguided effort to undermine federal law by controlling information.

    The current attack on information is best understood as a new front in the longstanding Republican war on our nation’s landmark environmental and public health laws. When Congress enacted those laws in the 1960s and 1970s, they enjoyed broad support among the American public and political leaders from both parties. A significant majority of the public—almost 60% of respondents a 2018 Gallup Poll—continues to prioritize environmental protection over unconstrained economic growth.