Not surprisingly, Senator Mitch McConnell has announced that President Donald Trump’s impeachment trial will, at least initially, be bare-bones. McConnell has proposed opening statements from the House impeachment managers and lawyers representing the president, with questions from senators through the Chief Justice. At least at the start, there will be no witness testimony—though a majority… Continue reading Even Under McConnell’s Rules, the House Can Make Its Case Against Trump
Tag: Constitution
It’s Time to Pay Attention
For the past two years, our government has been steadily eroding the rule of law, chilling speech, riding rough shod over state’s rights, engaging in retaliatory activity against activists, and violating the constitution. You may not have paid attention, because much of this activity has been centered in the field of immigration law. If you… Continue reading It’s Time to Pay Attention
Keeping the President in Check, One Congressional Hearing at a Time
The State of the Union address is not just an annual ritual—it is a requirement. Article II, Section 3 of the Constitution provides that the President “shall from time to time give to the Congress Information of the State of the Union.” That the speech is, today, more rhetorical than informative does not mean it… Continue reading Keeping the President in Check, One Congressional Hearing at a Time
Government Abuse of Power
In October of 2018, the Department of Homeland Security sent a “subpoena/summons” to an immigration attorney. The document stated: “You are requested not to disclose the existence of this summons for an indefinite period of time. The government works for, and at the behest of, the people.” The “subpoena/summons” requested the private attorney to supply… Continue reading Government Abuse of Power
Moving Forward: Supreme Court Appointments After Kavanaugh
In the wake of Justice Antonin Scalia’s passing in early 2016, the Republican-controlled U.S. Senate declined to give its advice on President Barack Obama’s nomination of Judge Merrick Garland to the high court, much less its consent. That move, along with the Republican-led elimination of the filibuster for Supreme Court nominations, has led to a… Continue reading Moving Forward: Supreme Court Appointments After Kavanaugh
Faculty Blog: The President, the Courts, and National Security
By: Lawrence M. Friedman Professor Eric Posner recently explained a dilemma the federal courts face in the wake of President Trump’s election: how to check unconstitutional excesses while, at the same time, respecting the deference afforded “the president on national-security matters” in light of the president’s ability to act “on the basis of classified information,” coupled with the “need to move quickly.” That deference turns on a level of trust of the executive that courts, as exemplified by the unanimous decision of the Ninth Circuit Court of Appeals in State of Washington v. Trump, may not hold. Posner warns of the possibility that the president, faced with many such decisions, might defy the courts. This raises the question whether the possibility of defiance, in itself, justifies adhering to the traditional deference the courts accord national security decision-making.
Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet
By: Lawrence M. Friedman and David M. Siegel As the confirmation process for President Trump’s cabinet comes to a close, it’s worth noting that Senators have failed to question any of the nominees about their understanding of their constitutional responsibilities under the Twenty-Fifth Amendment, much less whether any would be willing to fulfill those responsibilities.… Continue reading Faculty Blog: The Most Important Qualification for a Post in President Trump’s Cabinet
Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff
By: Victor M. Hansen The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.
Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System
By: Victor M. Hansen
Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases.
In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial. Faculty Blog: The Ninth Justice
At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama's nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate's constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments. In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”
