Tag: inbrief

President Trump’s Attacks on Judges Threaten the Rule of Law

by ACS UC Berkeley School of Law Student Chapter

Earlier this month, the President issued an Executive Order that sought to deny asylum claims from migrants unless they cross the border at specified checkpoints. Litigation soon followed. In a recent ruling striking down the Executive Order, U.S. District Judge Jon S. Tigar of San Francisco—a Berkeley Law alum—instructed the Trump Administration that it must accept asylum claims from migrants regardless of where they crossed the border.

Wounds still fresh from recent losses in the same forum, the President quickly called Judge Tigar's ruling "a disgrace" from an "Obama Judge," before then making a veiled threat to take action against the Ninth Circuit. The harsh public attack so concerned the Chief Justice of the US Supreme Court, John Roberts, that he issued a rare rebuke to the President:

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in his statement. “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.” Chief Justice Roberts is exactly right.

Judge Jon Tigar is an esteemed judge and public servant with a distinguished legal career. He graduated Order of the Coif from Berkeley Law, where he also served as Articles Editor of the California Law Review. He has worked as a clerk to a federal judge, as a public defender, in private practice, and now, as a United States federal judge.

Despite his busy schedule, Judge Tigar also finds time to give back to the legal community. The Berkeley and Stanford student chapters of American Constitution Society have come to know Judge Tigar over the course of the past few years as he has given annual talks at our law schools. For years, Judge Tigar has generously volunteered his time to offer us thoughts, wisdom, and career advice that we continue to reflect on and value to this day.

When we hosted Judge Tigar at Berkeley Law this past spring, his commitment to the rule of law and objective judicial decision-making was evident. He described how his duty as a judge is not to seek a preferred policy outcome, but to apply the law to the facts of the case, drawing on basic constitutional principles along the way when necessary.

The President's personal attacks on Judge Tigar, the Ninth Circuit, and even the Chief Justice himself were highly inappropriate. In fact, we fear that the President's unprecedented attacks on individual judges and the judiciary as a whole threaten to undermine the rule of law and erode public confidence in our courts.

The attack on Judge Tigar is simply the most recent iteration of a much larger pattern of disturbing attacks on the rule of law. If an election yields an outcome the President dislikes, he levies baseless accusations of election fraud. If public officials fail to show unyielding personal loyalty to the President, he removes them from office, seeking to install a loyalist in their place. If a news report criticizes the President, he dismisses the report as "fake news," while broadly condemning the media as the "enemy of the American people." And, of course, if a court issues a ruling the President disagrees with, he derides the judge as illegitimate, undermining the independence of the judiciary in the process.

We acknowledge that a judge’s political affiliation can often play a role in their judicial philosophy and decision-making; ACS is proud to advocate for judicial philosophies rooted in progressive values. But that does not mean that the judiciary should be treated as a political body. Through its structure and lifetime tenure, the judiciary is designed to be isolated from the political process. This separation ensures that judges like Judge Tigar have room to draw on their legal expertise to apply the law as they see fit, free from the mud-slinging, pressure, and influence that is commonplace among the political branches.

The President's attacks on the judiciary threaten to sever this separation by fueling a dangerous public perception of judges as mere political actors. This should worry us all, regardless of our political affiliation. As Chief Justice Roberts makes clear in his rare public statement, a free and independent judiciary should not be a partisan issue, but something for which we should all be thankful.

Although we remain concerned over the future of the judiciary, we are encouraged that the Chief Justice took this opportunity to defend Judge Tigar and uphold judicial independence. Despite our many differences, we hope the public will continue to unite in demanding nothing less than the free and independent judiciary our democracy requires.

Help ACS Build the Next Generation of Legal Leaders

It is always incredibly inspiring to hear stories from law students and lawyers about how their involvement in ACS has encouraged them to be leaders and advocates in their communities by running for office, getting involved in pro bono work, organizing trainings, mentoring, teaching, and so much more. These stories bring about a sense of hope in a time when an active conservative legal movement and all levels of government have made numerous, egregious attempts at restricting our rights and threatening the rule of law.

The empowerment that ACS builds within its network is at the core of ACS’s mission. However, engaging and providing our network with the unique opportunities and resources to become effective leaders cannot be done without the support of our members, donors, and advocates.

On Tuesday, November 27, 2018, we ask you to join us on #GivingTuesday, a global day of giving, and help us continue to build a lasting progressive infrastructure and provide ACS’s exceptional network of leaders with the tools and resources they need to do the necessary work of protecting rights and liberties in their communities.

  • Your support will expand the Next Generation Leaders (NGL) program, which provides talented law students and lawyers unique opportunities including career advancement, mentoring, and priority access to fellowships and scholarships for ACS activities.
  • Your support will help to strengthen the judicial pipeline by providing resources and organizing conversations with judges on clerkship opportunities.
  • Your gift allows ACS to connect volunteer lawyers with pro bono opportunities and provide law students and public interest lawyers with scholarships to participate in our annual Student Convention and National Convention where they have the chance to network with lawyers and law students from all over the country.

All aspects of the legal profession need to better reflect our country—from law students to practitioners to judges and elected officials. It is more important than ever that we continue to lift progressive voices and the hard work being done by current and future legal leaders.

Please mark your calendars and join us and millions of Americans on November 27 for #GivingTuesday.

An Extremist Attorney General

I didn’t think that President Trump could find someone more conservative to be Attorney General than Jeff Sessions, but I was wrong. Acting Attorney General Matthew Whitaker’s beliefs are at the far-right fringes of the Republican party. Thankfully, there is a strong argument made by conservatives such George Conway, Alberto Gonzalez, and John Yoo that the appointment of Whitaker is unconstitutional.

Whitaker’s views on constitutional law are stunning. While running for the Senate in Iowa four years ago (he finished fourth), he was asked what Supreme Court cases were wrongly decided. “There are so many,” he replied. “I would start with the idea of Marbury v. Madison. That’s probably a good place to start and the way it’s looked at the Supreme Court as the final arbiter of constitutional issues. We’ll move forward from there. All New Deal cases that were expansive of the federal government. Those would be bad. Then all the way up to the Affordable Care Act and the individual mandate.”

Also, while running for the Senate, Whitaker said that states did not have to follow federal law and could nullify it if they wished. Whitaker acknowledged that the idea of state nullification of federal law “has been turned down by the courts and our federal government has not recognized it." But Whitaker said that this wrong, “Now we need to remember that the states set up the federal government and not vice versa.” “But do I believe in nullification? I think our founding fathers believed in nullification. There's no doubt about that.”

In just a few sentences, Whitaker rejected foundational constitutional principles that have been followed since the earliest days of American history. Whitaker rejects Marbury v. Madison and the power of courts to review the constitutionality of statutes and executive actions.

He rejects “all” of the New Deal cases. These included decisions upholding Social Security, the federal minimum wage, and federal agencies such as the National Labor Relations Board. These are the cases that provided the basis for federal civil rights laws, such as the Civil Rights Act of 1964, which prohibits race discrimination by hotels and restaurants and forbids employment discrimination based on race, sex, or religion.

But Whitaker goes even further and says that states can nullify federal law because states created the federal government. The Supreme Court expressly rejected this argument in McCulloch v. Maryland in 1819, when Chief Justice John Marshall explained that it was the people, not the states, that created the national government and held that states cannot nullify federal actions.

State nullification is inconsistent with the text of the Constitution, which in Article VI makes clear that the Constitution, and laws and treaties made pursuant to it, are the supreme law of the land. Whitaker embraces a position that has a truly vile pedigree. South Carolina Senator John Calhoun argued that states were sovereign and could interpose their sovereignty to negate federal action to limit slavery. In the 1950s and 1960s, segregationists revived this theory to justify not complying with federal desegregation orders. It was a terrible theory then and it is frightening to have an Attorney General who embraces it.

If this is not enough, Whitaker has taken the position that only Christians should be federal judges. While running for the Senate in Iowa, Whitaker was asked about his criteria for evaluating federal judges. He said, “I’d like to see things like their worldview, what informs them. Are they people of faith? Do they have a biblical view of justice? — which I think is very important.” The moderator asked, “Levitical or New Testament?”  “New Testament,” Whitaker replied. “And what I know is as long as they have that worldview, that they’ll be a good judge. And if they have a secular worldview, then I’m going to be very concerned about how they judge.”  The Constitution specifically prohibits a religious test for public office, but now we have an Acting Attorney General who believes in one.

How did we end up with a person with such extreme views as Whitaker? He had one key qualification: he publicly and sharply criticized the Mueller investigation, which he now oversees as Acting Attorney General. In an oped for CNN, Whitaker argued that the Mueller investigation had gone too far. He also said Sessions’ replacement as Attorney General could effectively end the special counsel investigation by “reduc[ing] [Mueller's] budget so low that his investigation grinds to almost a halt.”

There are calls for Whitaker to recuse himself from overseeing the Mueller investigation, but Whitaker has given no indication of doing so. There are bipartisan bills pending in Congress to protect Mueller, but it is unclear whether they will pass.

At the same time, many prominent individuals have argued that it is unconstitutional to have an Acting Attorney General who never has been approved by the Senate. Neal Katyal and George Conway argued this in an oped in the New York Times and staunch conservatives such as John Yoo and Alberto Gonzalez have echoed it. Traditionally, a vacancy in the position of Attorney General is filled by an official who has been confirmed by the Senate until the nomination and confirmation of the new Attorney General.

Jeff Sessions did many terrible things as Attorney General. He initiated and defended the policy of separating parents and children at the border. He mandated charging every crime to the maximum. He withheld federal law enforcement funds from cities that did not cooperate with federal immigration officials, which several federal courts declared unconstitutional. But he did the right thing and recused himself from the Mueller investigation and never interfered.

For that he drew President Trump’s ire and insults and it led to his firing. In Matthew Whitaker, President Trump found someone more extreme than Jeff Sessions. Whitaker is one the most frightening people to occupy the role of Attorney General in American history.

The Administration’s New Asylum Rules Raise Legal and Moral Questions

On November 9, 2018, President Donald Trump issued two significant policy changes to entry and asylum, one in the form of a presidential proclamation and the other in the form of a regulation. Together, these policies prohibit individuals and families who arrive at the southern border irregularly (i.e., somewhere other than a designated port of entry) from seeking and being granted asylum.

 Asylum is a statutory form of protection contained in the immigration statute known as the Immigration and Nationality Act (INA). Importantly, the asylum provision in the INA plainly states that any person physically present in the United States is eligible to apply for asylum regardless of her status or manner of entry. The administration’s new asylum rules are in violation of the plain language of the immigration statute.

 Congress wrote the statute in 1980 as part of the Refugee Act in order to bring the United States in compliance with its obligations under international treaties. To be granted asylum, an individual must satisfy the definition of a refugee, which is defined in the INA as a person who has suffered persecution or would face similar harm in the future because of race, religion, nationality, political opinion, or membership in a particular social group.

 Oftentimes, the persecutor is the government, but sometimes he may be a non-state actor the government is unable or unwilling to control, like a specific gang or domestic partner. Not everyone will qualify for asylum, but anyone who arrives in the United States has the right to apply for this protection.

 Beyond raising legal concerns, the administration’s new asylum rules raise moral questions, too. The United States is viewed as a beacon of hope to refugees around the world, but shutting the door on asylum seekers because of the way they entered the United States undermines this image and ignores the complicated set of factors that drive a person out of her homeland in the first place.

 As an immigration attorney who has worked with and represented asylum seekers for nearly 20 years and a law teacher who has taught asylum and refugee law for the last 13 years, I am disheartened by the administration’s new policies.  

Learn more in this FAQ about the Trump administration's new policy changes in this fact sheet from the Penn State Law Clinic's Center for Immigrant Rights.

Wednesday Afternoon Massacre: Trump's Actions Threaten the Rule of Law

Yesterday, President Trump accelerated his long-running campaign to undermine the investigation by Special Counsel Robert Mueller by forcing the departure of Attorney General Jeff Sessions and naming as Acting Attorney General Matthew Whitaker, former Department of Justice chief of staff. With this action, the President installed as our nation’s top law enforcement official an individual who has repeatedly denigrated the Mueller investigation, prejudged substantive matters relevant to the investigation – and whom the White House chief of staff reportedly described as “the West Wing’s ‘eyes and ears’ in a department the president has long considered at war with him.”

Sessions' "requested resignation" is starkly analogous to the “Saturday Night Massacre” where then-Attorney General Elliot Richardson and others resigned after refusing to follow President Richard Nixon's request that they fire the Special Prosecutor who was investigating the Watergate scandal.

These circumstances pose direct and serious threats to the rule of law. It presents a fundamental conflict of interest for President Trump to hand-pick the supervisor of an investigation that already has identified the President as a subject – and Whitaker's specific history regarding the Mueller inquiry only heightens these conflict concerns. As detailed in today’s New York Times op-ed by Obama White House ethics czar Norm Eisen and Democracy21 President Fred Wertheimer, Whitaker should be recused from any matters involving the Mueller inquiry.

The President’s Wednesday afternoon massacre raises a host of additional legal and ethical issues, including whether the appointment of Whitaker comports with the DOJ succession statute and regulations and the Vacancies Reform Act. Georgetown Professor Marty Lederman dissects those issues in a Just Security blog post today, Neil Katyal and George Conway weighed in in The New York Times, and former federal prosecutor Renato Mariotti and former U.S. Attorney Preet Bharara each provided analysis on podcasts today.

Regardless of any recusal actions, Congress has authority to enact additional protections for the Special Counsel and should conduct vigilant oversight to ensure he continues to be able to follow the facts where they lead.

State Attorneys General Impact Our Everyday Lives; Their Elections Matter

31 state attorney general positions are on ballots throughout the country. State attorneys general have always played a significant role on issues of national importance, as they hold a unique and powerful position in our federalist system of government. They exercise an independent authority separate and distinct from other organs of state government, including the governor. As states’ chief legal officers, they are charged with upholding the state and federal constitutions and enforcing state and some federal laws in furtherance of the public interest. This includes holding accountable government institutions at the local, state and federal levels that may not be fulfilling their mandates or may be overstepping their bounds.

While recent history is replete with examples of important actions taken by state attorneys general, historically they have been involved, both individually and collectively in numerous issues of national consequence.  Oftentimes, they’ve taken positions on controversial issues that either promoted positive change or supported unjust, retrogressive policies, going back to issues as varied as Japanese-American internment, segregation in schools, right to counsel, acid rain, and the dangers of tobacco products to name a few.

These are only a few historic examples, but the point should be clear: the office of the state attorney general matters; it has always mattered. And recently we’ve seen state attorneys general act on various immigration matters, opioids, health care, sexual abuse, and environmental protection among other pressing issues.  Just laws that protect consumers, ensure equal treatment, clean air and safe communities are only as good as the state attorneys general enforcing them.

It’s a wonderful development that so many have taken notice of this institution, including most recently John Oliver in this segment. But it is equally disheartening that so many people are woefully unaware of the impact state attorneys general have had, for better or worse, on their everyday lives. Learn more about the role of state attorneys generals here. And please spread the word in your communities and encourage your family, friends and neighbors to research the candidates in their state’s attorney general elections and vote on this very important position.

Zinelle October and Faisal Sheikh lead the State Attorneys General project at the American Constitution Society, a non-partisan organization founded on the principle that the law should be a force to improve the lives of all people.