• November 8, 2017
    Guest Post

    by Richard Eisenberg, who served as special counsel to the General Counsel of the Army and the Air Force during the Obama administration, and Alex Wagner, who served as chief of staff to the 22nd Secretary of the Army and is a fellow at the Truman National Security Project.

    Last Monday, a federal district judge blocked enforcement of critical parts of President Trump’s directives banning and purging transgender individuals from serving in the U.S. military. Judge Kollar-Kotelly’s decision in Jane Doe 1, et. al. v. Trump, a case brought in the District of Columbia, is one of at least three pending cases involving challenges to Trump’s order, and highlighted the challenges the government will have in defending Trump’s policy decision and chosen method of implementation. (Another suit, Stone v. Trump, is scheduled for oral argument on November 9 in the District of Maryland.  And a third, Stockman v. Trump, is pending in the Central District of California.)

  • November 7, 2017
    Guest Post

    by Kate Sigafoos, Assistant Director of Lawyer Chapters, ACS 

    From October 19 to October 21, progressive lawyers, judges and legal advocates from around the country gathered in beautiful Milwaukee, Wis. for the first-ever ACS National Lawyer Chapter Convening. There were more than 120 people in attendance with representatives from 16 states and the District of Columbia, including 19 ACS Lawyer Chapters, and what a time we had together!

    The event started with a gathering at the grand Milwaukee City Hall Rotunda with welcome speeches from Milwaukee Mayor Tom Barrett and ACS President Caroline Fredrickson. The energy of the attendees’ enthusiasm was palpable as they networked and connected with ACS members from similar legal practice areas.

  • November 5, 2017
    Guest Post

    by Simon Lazarus

    *Simon Lazarus is a lawyer and writer who has frequently contributed to this blog on legal issues related to the health reform wars and other matters. 

    In endlessly excoriating President Barack Obama’s administration of the Affordable Care Act, ACA opponents featured a once obscure constitutional provision, the Article II clause that directs the President to “take care that the laws be faithfully executed.” Legally, the charge that Obama had breached his “take care” obligation was patently meritless, and Obama’s assailants never took their bombast seriously enough to substantiate it, let alone fit it into a claim to take to court. 

    Indeed, no court has ever invoked the Take Care Clause as a basis for constraining alleged executive overreach. There are obvious reasons for this. If there were an articulated standard for defining a violation of the clause, it could presumably be comparatively complicated to meet it. A jumping off analogy might be former Justice William Rehnquist’s dictum, in the 1985 case Heckler v. Chaney, suggesting that courts must defer to executive branch decisions not to initiate enforcement proceedings, unless an “agency has consciously and expressly adopted a general policy that is so extreme as to amount to an abdication of its statutory responsibilities.” In that vein, to make out a violation of the president’s take care responsibility, one would likely have to demonstrate a pattern of actions that undermine a law, or laws, and – because of the clause’s focus on good faith (“faithful execution”) – actions that hamstring the law intentionally. While bad intentions can be, and often are, proven by objective, circumstantial evidence, executive officials bent on nullifying a law have presumably had sufficient savvy to cloak wrongful intent behind well-orchestrated procedures that would deter a judge from finding or a litigant from hanging her case on an allegation that they did in the law on purpose.

    Until now.

  • November 3, 2017
    Guest Post

    by Gregg Ivers is Professor of Government at American University. He is currently working on a book, Swingin’ at Jim Crow: How Jazz Became a Civil Rights Movement.

    In September 1962, Mississippi Governor Ross Barnett was looking for something – anything – that would boost his sagging political fortunes. Just three years before, Barnett had barely prevailed in a four-way contest for the Democratic Party’s nomination, winning just 35 percent of the vote, barely one percent more than his closest rival. While Barnett would win handily in the subsequent run-off and run unopposed in the 1959 general election, by mid-1961 his autocratic and less-than-honest governing style had rubbed many white Mississippians the wrong way. Sure, he was among the founders of the state’s first Citizens’ Council, an organization of suit-and-tie businessmen set up after the Supreme Court’s decision in Brown v. Board of Education to maintain Mississippi’s unparalleled commitment to racial apartheid in every aspect of public and private life. And, yes, Barnett had shown the Freedom Riders who was boss the previous spring, when he sent the remainder of those who had survived their harrowing May 1961 ordeal in Birmingham and Montgomery to Parchman Farm, the state’s most notorious prison, after their arrival in Jackson for violating the state’s segregation laws.

  • November 3, 2017
    Guest Post

    by Kristin Amerling, Managing Director of Lanthorn Strategies, consultant to ACS, former chief counsel to the House Committee on Oversight and Government Reform and the House Committee on Energy and Commerce, and former chief investigative counsel to the Senate Committee on Commerce, Science, and Transportation.

    Recently a bipartisan group of congressional oversight experts issued a set of principles titled “Benchmarks for Congressional Investigations into Russian Interference with U.S. Elections and Related Matters.” This initiative is an important tool for evaluating the credibility and rigor of ongoing investigations into alleged election malfeasance. 

    The document describes four major oversight goals:


    (1) a publicly defined investigation scope that includes commitment to follow the facts where they lead;

    (2) comprehensive bipartisan cooperation;

    (3) transparency on developments and findings; and

    (4) regular public reporting on investigative activities.

    It also outlines specific ways for Congress to demonstrate commitment to these principles, such as by holding hearings in public unless there is a compelling reason for a closed session.