Posts filtered by tags: Separation of Powers[x]


Justice Stephen G. Breyer said something very obvious about Supreme Court authority.

But he's authoritative, and he's pushing back liberal politicos, and he said it in a speech at Harvard Law School, so it's news, reported here, at "Justice Breyer says expanding the Supreme Court could erode trust" (WaPo). In remarks prepared for a speech at Harvard Law School, Breyer wrote that the court’s authority depends on “a trust that the court is guided by legal principle, not politics.” He added: “Structural alteration motivated by the perception of political influence can only feed tha...
Tags: Supreme Court, Law, Congress, Senate, Court, Harvard, Biden, Separation of Powers, Gore, Trump, Bush, Harvard Law School, WaPo, Breyer, Stephen G Breyer, Ann Althouse

"The pandemic has resulted in previously unimaginable restrictions on individual liberty," said Justice Samuel Alito...

... in the keynote address at the national convention of the Federalist Society. The convention took place on line, which means we get video of something that ordinarily would not be recorded:   I found a transcript of the speech at Reason. Excerpt: The pandemic has obviously taken a heavy human toll... The pandemic has resulted in previously unimaginable restrictions on individual liberty.... [W]e have never before seen restrictions as severe, extensive and prolonged as those experience...
Tags: Supreme Court, Law, Congress, California, Massachusetts, Freedom, Court, Cambridge, Fiat, Nevada, Smith, Separation of Powers, Cirque Du Soleil, Don, Alito, Jacobson

"The confirmation process has made ever clearer to me one of the fundamental differences between the federal judiciary and the United States Senate. And perhaps the most acute is..."

"... the role of policy preferences. It is the job of a Senator to pursue her policy preferences. In fact, it would be a dereliction of duty for her to put policy goals aside. By contrast, it is the job of a judge to resist her policy preferences. It would be a dereliction of duty for her to give into them. Federal judges don’t stand for election, thus they have no basis for claiming that their preferences reflect those of the people. This separation of duty from political preference is what mak...
Tags: Justice, Law, Congress, Senate, White House, United States, Separation of Powers, Clarence Thomas, Ann Althouse, Amy Coney Barrett, Judicial Oath

Observations on Police “Riots” and the Current Moment

     The horrific scenes of wanton, gratuitous police violence that are filling our screens and social media feeds bring up many powerful emotions.   I am unsure if this is the right medium in which to share them, and if it is, I am not the right person to initiate that conversation.        These events also yield some analytical observations within the broad ambit of this space.   Some of those may be worth sharing.        First, although the rhetoric of “police riot” has power in cat...
Tags: England, Supreme Court, Congress, Navy, Army, Norway, Separation of Powers, Branding, Cairo, Trump, Cairo Egypt, Robert Peel, Metropolitan Police Department, Rodney King, Philando Castile, Bruce Ackerman

"But there’s more to the story of Harris’s endorsement. Yes, she genuinely likes Biden."

"The endorsement was real. 'I really do believe in Joe,' Harris told me. But coming days after the California primary, the timing of Harris’s announcement struck me as curious. ... I asked her about it. 'I had two women colleagues in the race, and I did not feel right putting my thumb on the scale [that] in any way would harm their candidacy,' Harris said, referring to Sen. Amy Klobuchar (D-Minn.) and Sen. Elizabeth Warren (D-Mass.). Both ended their campaigns last week. 'So, when Elizabeth anno...
Tags: Law, California, Washington Post, Senate, Elizabeth Warren, History, Rome, Danube, Italy, Biden, Separation of Powers, Kamala Harris, Joe, Elizabeth, HARRIS, Diocletian

"President Trump’s legal team will call on the Senate on Monday to 'swiftly reject' the impeachment charges and acquit him..."

"... maintaining that he committed no impeachable offense and has been the victim of an illegitimate partisan effort to take him down.... Mr. Trump’s lawyers plan to dismiss the largely party-line impeachment by the House as a 'brazenly political act' following a 'rigged process' that should be repudiated by the Senate, according to a person working with his legal team, who spoke on condition of anonymity ahead of the submission of the trial brief.... The brief does not deny that Mr. Trump press...
Tags: Law, Congress, Senate, Ukraine, House, Separation of Powers, Trump, Maggie Haberman, Executive Power, Peter Baker, Ann Althouse, Joseph R Biden Jr, Mr Trump, Impeachment, Trump and Ukraine

"Permanent impeachment won't empower Pelosi's Resisters.... It’ll empower Trump's deplorables, because Trump will still need them."

"In effect, impeachment can be the anti-dote to lame duck insularity, reestablishing the accountability to voters that the term limit of the 22d Amendment takes away. I'm not arguing for impeaching every President in his second term. It’s a legalistic, emotion-draining way to try to correct for the ill-advised two-term limit. Usually there are bonds of ideology and party loyalty constraining even popular second-term presidents. Trump seems a special case — someone you really might not want to se...
Tags: Twitter, Law, Metaphor, Language, Nancy, Separation of Powers, Trump, Pelosi, KAUS, Mickey Kaus, Ann Althouse, Insults, OED, Impeachment, President Trump, Democratic Party in Trumpland

Justice Gorsuch on "Fox and Friends."

Watch the latest video at I'm putting that up before watching, and I presume the entire thing will be on a high level of general principle. I think he has a book to promote. I will watch and update this post if there's anything to point out. I noticed this because I saw "Neil Gorsuch" trending on Twitter, where I see comments like:Justice Neil Gorsuch is on "Fox & Friends" right now. The Q: How is it appropriate for a Supreme Court justice to try to goose sales of his three-month-old...
Tags: Supreme Court, Law, Fox, Fox News, Separation of Powers, Brian Stelter, Roberts, Fox Friends, James Madison, Gorsuch, Ann Althouse, Merrick Garland, Framers, Neil Gorsuch, Christine Ford, Merrick Garland Everyime Brett Kavanaugh

"In Clinton v Jones, the United States Supreme Court held that separation of powers concerns did not preclude a federal lawsuit against a sitting President of the United States..."

"... based on unofficial acts allegedly committed by him before he assumed office. The Court expressly cautioned in that decision that different concerns, including the Supremacy Clause of the United States Constitution, might influence the result if such a case were brought against the President in state court. However, the Court did not rule that such a suit could or could not proceed. This matter gives us an opportunity to squarely address the question.... [S]ubjecting the President to a stat...
Tags: New York, Maryland, Law, Court, United States, Bill Clinton, Ny, Separation of Powers, Jones, Clinton, Donald J Trump, McCulloch, Executive Power, Ann Althouse, Federalism, Trump troubles

"President Trump... pointed to nearly five dozen previous instances in which presidents of both parties have declared emergencies.... But there is no precedent for what he has just done."

Charlie Savage writes in the NYT.None of the times emergency powers have been invoked since 1976, the year Congress enacted the National Emergencies Act, involved a president making an end run around lawmakers to spend money on a project they had decided against funding. I don't think it's exactly true that Congress has decided against funding. They put some funding in the budget bill, there's been a lot of talk about deferring the issue of the wall, and there hasn't been any vote against the wa...
Tags: Supreme Court, Law, Congress, White House, George Bush, George W Bush, Separation of Powers, Trump, Charlie Savage, Persian Gulf, Executive Power, Brennan Center, Ann Althouse, Trump's wall, Elizabeth Goitein

Subtitle of the Day.

Why Trump’s Going to Win on the National Emergency There’s one arena where the president always succeeds: getting the Republican Party to abandon its principles. By JEFF GREENFIELD   February 15, 2019 At Politico. [Author: [email protected] (Ann Althouse)]
Tags: Law, Republican Party, Separation of Powers, Trump, Jeff Greenfield, Ann Althouse, Trump's wall, what Trump did to the GOP

Want to be able to do things the easy way or not?

Tweets Alan Dershowitz this morning.It is unconstitutional to use the 25th Amendment to circumvent impeachment provisions. The 25th can be used only if POTUS is physically or psychiatrically incapacitated. Any other use is unconstitutional. I challenge anyone to argue differently'And here he is last night on Tucker Carlson, saying the same thing much more vehemently (replete with the word "treason"):Meanwhile:Trump just said; “I didn’t need to do this. But I’d rather do it much faster.” Whatever...
Tags: Law, Congress, Treason, Separation of Powers, Trump, Tucker Carlson, Neal Katyal, Alan Dershowitz, Ann Althouse, Trump's wall, Impeachment, Neal K. Katyal

Does Trump have "emergency powers" that he can use to build The Wall?

Charlie Savage examines the question in the NYT:The president has the authority to declare a national emergency, which activates enhancements to his executive powers by essentially creating exceptions to rules that normally constrain him.... The National Emergencies Act...  requires [a president] to formally declare a national emergency and tell Congress which statutes are being activated....One of the laws [Trump could point to] permits the secretary of the Army to halt Army civil works project...
Tags: Law, Congress, Army, Separation of Powers, Savage, Trump, Charlie Savage, Executive Power, Ann Althouse, Trump's wall, Trump derangement syndrome

How does the Supreme Court decide what the Constitution means?

The US Constitution declares itself to be “the supreme law of the land.” Unfortunately, the meaning of the constitutional text is not always clear. Consider the abortion case Roe v. Wade. How did the US Supreme Court conclude that the Constitution gives a woman an essentially unconstrained choice to have an abortion in the first trimester of her pregnancy but that it also allows the state to regulate or prohibit abortion as the pregnancy progresses?Everyone—the president, state legislators, and ...
Tags: Books, Featured, Supreme Court, Law, Congress, US Government, Court, US, United States, South Carolina, Checks And Balances, Constitutional Law, Separation of Powers, US supreme court, Scalia, Marbury

"In much of Wisconsin, 'Madison and Milwaukee' are code words (to some, dog whistles) for the parts of the state that are nonwhite, elite, different..."

"... The cities are where people don’t have to work hard with their hands, because they’re collecting welfare or public-sector paychecks. That stereotype updates a very old idea in American politics, one pervading Wisconsin’s bitter Statehouse fights today and increasingly those in other states: Urban voters are an exception. If you discount them, you get a truer picture of the politics — and the will of voters — in a state. Thomas Jefferson believed as much — 'the mobs of great cities add just ...
Tags: Law, Milwaukee, Gop, Wisconsin, Nyt, Redistricting, Madison, Separation of Powers, Democratic, Thomas Jefferson, Scott Fitzgerald, Wisconsin Senate, Fitzgerald, Wisconsin Legislature, Robin Vos, Vos

Will the Supreme Court be nakedly political without the skimpy string bikini that was Anthony Kennedy?

Lawprofs Lee Epstein and Eric Posner have a NYT column with the titillating title "If the Supreme Court Is Nakedly Political, Can It Be Just?" .In the past 10 years, however, justices have hardly ever voted against the ideology of the president who appointed them. Only Justice Kennedy, named to the court by Ronald Reagan, did so with any regularity. That is why with his replacement on the court an ideologically committed Republican justice, it will become impossible to regard the court as anythi...
Tags: Supreme Court, Law, Court, Reagan, Metaphor, Ronald Reagan, Naked, Kennedy, Separation of Powers, Bikini, Posner, George H W Bush, Anthony Kennedy, Epstein, O'Connor, Eric Posner

"The Trump administration will encourage the nation’s school superintendents and college presidents to adopt race-blind admissions standards..."

"... abandoning an Obama administration policy that called on universities to consider race as a factor in diversifying their campuses," the NYT reports.The Trump administration is moving against any use of race as a measurement of diversity in education. And the retirement of Justice Anthony M. Kennedy at the end of this month will leave the court without its swing vote on affirmative action and allow President Trump to nominate a justice opposed to a policy that for decades has tried to integr...
Tags: Supreme Court, Law, Obama, Harvard, Nyt, Affirmative Action, Separation of Powers, Trump, Anthony M Kennedy, Anthony Kennedy, DeVos, Ann Althouse, Roger Clegg, Center for Equal Opportunity

"So while filing an appeal [in the DACA case] to the Ninth Circuit, the administration’s lawyers also went to the Supreme Court with a 'petition for a writ of certiorari before judgment'..."

"... a request to the justices to hear the case this spring without waiting. The Supreme Court’s rules reserve this court-jumping procedure for cases of 'imperative public importance.' Only a handful of cases has cleared that bar, including the Nixon tapes case, which effectively forced the president’s resignation and the 1981 case that ratified the agreement that ended the Iran hostage crisis. Invoking those cases, Solicitor General Francisco insists to the court that “that standard has been me...
Tags: Supreme Court, Law, Congress, Court, Iran, Francisco, Separation of Powers, Nixon, Linda Greenhouse, Ninth Circuit, Alsup, Ann Althouse, Too Much Drama, Trump and immigration, Judicial Restraint

Trump's executive power and the political cost of trying to fire Mueller.

On "Meet the Press" this morning, Chuck Todd asked Senator Joe Manchin (Democrat of West Virginia) whether he was concerned about the report that Trump ordered the firing of Special Counsel Bob Mueller. Manchin said:Chuck, here's the thing, you have a person who's the president of the United States that has been totally in control of his life, personally and his professional. He's been very successful. He's been able basically to either do things incentive-wise through checks, bonuses, money or ...
Tags: Chuck, Law, Congress, West Virginia, United States, Separation of Powers, Robert Gates, Trump, Todd, Chuck Todd, Manchin, Mueller, Joe Manchin, Ann Althouse, Rod Rosenstein, Trump troubles

Supreme Court Justices’ Questions in Oil States Suggest Inter Partes Review Will Be Upheld as Constitutional

On Monday, November 27, 2017, the U.S. Supreme Court heard argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , No. 16-712. The case presents a direct challenge to the U.S. Patent and Trademark Office’s (“USPTO’s”) “inter partes review” (“IPR”) process, under which third parties can petition the USPTO’s Patent Trial and Appeal Board (the “PTAB”) to cancel one or more claims of an already-issued patent . Photo Credit: Fox ScotusBlog recently offered a brief...
Tags: Energy, Justice, Supreme Court, Congress, Court, Articles, Infringement, Fox, United States, Patents, Uspto, Patent, Kennedy, Separation of Powers, Civil Procedure, Branding

"Certainly, if Mueller wanders outside the bounds of professionalism and basic integrity, he can and should be fired."

"Concerns are already being raised — including about Mueller’s friendship with Comey and his staff-packing with anti-Trump partisans. He will be closely watched. In the meantime, Congress is busily carrying on its constitutionally ordained function of oversight. What we’ve seen over the past week has not been pretty, but it is effective and important.... Notwithstanding reports that the special counsel has launched an inquiry into whether the president obstructed justice, the early returns also ...
Tags: Headlines, Law, Congress, United States, Bill Clinton, Starr, Separation of Powers, Trump, Scalia, Trump Tower, Oval Office, WaPo, Comey, Mueller, Kenneth Starr, Ann Althouse

A 9th Circuit panel heard argument today on the judges restraining of Trump's immigration order.

I listened to it live. Here's the NYT report on it, by Adam Liptak, who found the argument "lively but technical." “Are you arguing... that the president’s decision in that regard is unreviewable?” Judge Michelle T. Friedland asked.The Justice Department lawyer, August E. Flentje, paused. Then he said yes.Another judge, Judge William C. Canby Jr., asked, “Could the president simply say in the order, ‘We’re not going to let any Muslims in?’”...Flentje tried to avoid answering that question.The at...
Tags: Law, Washington, George W Bush, Justice Department, Separation of Powers, Trump, Clifton, 9th Circuit, Adam Liptak, Purcell, Richard R Clifton, Religion And Government, Ann Althouse

Judge He Fan of the Supreme People’s Court of China blogged that criticizing a judge makes Trump one of the "public enemies of the law."

“Even if you control the armed forces and have nuclear weapons, your dignity has been swept away and you are no different than a villain.”Quoted in the NYT in "Donald Trump’s Tweets About a Judge Find a Critic in an Unlikely Place: China."Judges like Mr. He admire the American legal system and study it to improve China’s rules, such as how to handle plea bargains or what to do with evidence obtained illegally, said Susan Finder, an American scholar who publishes the Supreme People’s Court Monito...
Tags: Supreme Court, Law, China, United States, Judges, Donald Trump, Separation of Powers, Trump, Linda Greenhouse, Stephen G Breyer, Blackmun, Ann Althouse, Supreme People 's Court, Susan Finder

"Judge Robart’s brisk ruling contained almost no reasoning. By contrast, Judge Nathaniel M. Gorton, of the Federal District Court in Boston..."

"... issued a 21-page decision on Friday refusing to block the program and discussing the legal arguments in detail. Judge Gorton also sketched out the broader picture. 'The rich immigrant history of the United States has long been a source of strength and pride in this country,' Judge Gorton wrote. 'Conversely, the public interest in safety and security in this ever-more dangerous world is strong as well.' The balance, he wrote, tipped in favor of Mr. Trump."Writes Adam Liptak in the NYT, creat...
Tags: Law, Boston, United States, Standing, Separation of Powers, Trump, Adam Liptak, Liptak, Gorton, Federal District Court, Establishment Clause, Ann Althouse

America's institutions can preserve liberty, but they're also pretty good at destroying it

As trumpism metastasizes, I've taken some comfort in the American system of checks and balances, especially the independent judiciary and the strong Constitutional tradition, which lets impact litigators like EFF and ACLU leverage the courts to overturn the executive branch; I've seen this work many times with EFF and other civil liberties organizations. (more…)
Tags: Post, News, America, Aclu, Usausausa, Eff, Rule Of Law, Separation of Powers, Trumpism, The Resistance, Political Science

Federal judge orders emergency injunction and restraining order ending Trump's #muslimban

US District Judge Andre Birotte Jr (Central District of California) heard a plea from 28 Yemeni-born US citizens, and ruled that: (more…)
Tags: Post, News, Law, US, Islamophobia, Rule Of Law, Separation of Powers, Trumpism, Trump, The Resistance, Unlimited Cruelty

Appeals Court Urged to Rule on House GOP Obamacare Lawsuit

For two years, the Obama administration and House Republicans had been locked in a constitutional legal battle over the financing of a key Obamacare subsidy intended to lower the out-of-pocket costs of low-income enrollees. That litigation was upended by ‘s November victory. A federal appeals court had been weighing a judge’s earlier ruling that the […]
Tags: Law, Obamacare, Obama, House, Appeals Court, Separation of Powers, Appellate Courts, D.C. Circuit

Don't you see that the new war in Somalia is the same old war Congress authorized 15 years ago?

In 2001, Congress authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."Although a separate authorization was acquired in 2002 to go to war against...
Tags: Isis, Law, Obama, Congress, Iraq, War, Afghanistan, United States, Al Qaeda, Somalia, Saddam Hussein, 9/11, Separation of Powers, Trump, Shabab, Don

Will the GOP keep both houses of Congress?

Here's Real Clear Politics's final Senate No Toss Ups 2016 map:Go here to see the toss-ups tossed back in. There are 8 of them. I'm most interested in my home state, Wisconsin, where there have been very few polls, but the trend lines have been converging.I've mentally adjusted to what I think will be the outcome today: Hillary wins, but the GOP keeps both houses of Congress. But I can also imagine something surprising happening. There's that idea of the "hidden Trump voters." There don't need t...
Tags: Law, Congress, Senate, Gop, Wisconsin, Donald Trump, Hillary, Cornell, Separation of Powers, Trump, 2016 Elections, GOP Congress, Ann Althouse, Trumper, Seen And Unseen

"What I have been hearing from sources on both sides of the aisle with regard to this FBI situation is that the more likely impact will be on the down-ballot races that some of the races..."

"Some of the races were already, especially on the Senate side, breaking more for Republicans than in the past and that this new is a reminder to people that they may want a check and balance and that that will help."Said Dana Bash, the CNN chief political correspondent, on "State of the Nation" this morning. That is, those who want to keep Trump out of the White House but who also fear Hillary Clinton might — especially if they think Hillary is going to win — focus on keeping the Congress Repub...
Tags: Law, Senate, White House, Cnn, Fbi, Hillary Clinton, Donald Trump, Hillary, Separation of Powers, Trump, 2016 Elections, 2016 Campaign, Dana Bash, Congress Republican, Ann Althouse