Constitutional Law – Page 15 – Marquette University Law School Faculty Blog

Trump’s Rhetoric, Proposed Policies, and the Rule of Law

Post author:Lisa A. Mazzie
Post published:June 27, 2016
Post category:Constitutional Law Federalism First Amendment Immigration Law Judges & Judicial Process Media & Journalism Political Processes & Rhetoric Public Religion & Law

For some, presumptive Republican nominee for president Donald J. Trump’s biggest appeal is his blustery persona and his take-no-prisoners attitude in his quest to “Make America Great Again.” For example, he started his campaign with a bold promise to build a wall on the United States border to keep out Mexican immigrants. More than that, Trump said, he would make Mexico pay for that wall. Mexican President Vincente Fox said Mexico would not and Trump just upped the ante. When Wolf Blitzer asked Trump how he would get the Mexican government to pay for a wall, Trump responded simply, “I will and the wall just got 10 feet taller, believe me.”

And, in the wake of the mass shooting at Pulse, the gay nightclub in Orlando, Trump renewed his call to profile on the basis of race/ethnic origin and religion, in order prevent future terrorist attacks. (The Pulse nightclub shooter was American-born and raised; his parents were refugees from Afghanistan, but his father became a naturalized American citizen.) Though claiming he hates the “concept” of profiling, he says other countries profile, and “it’s not the worst thing to do.” Earlier in his campaign, after the San Bernardino shooting in December 2015, he talked about increasing surveillance of Muslims and mosques and has suggested registering Muslims or mandating that they carry cards that identify them as Muslims.

Trump also doesn’t suffer fools gladly—or more precisely, he doesn’t suffer his version of “fools” gladly. When the Honorable Gonzalo P. Curiel, the federal circuit judge presiding over two class action suits against Trump University, ordered documents in the suit be unsealed—documents that are likely to shed negative light on Trump University, Trump spoke loudly and often about Judge Curiel as a “hater” and biased against Trump because, in Trump’s view, Judge Curiel is Mexican and, presumably, would not like Trump’s wall. (Judge Curiel is an American, born in Indiana.) Trump went even further, seemingly threatening the judge: “They ought to look into Judge Curiel, because what Judge Curiel is doing is a total disgrace. . . . O.K.? But we will come back in November. Wouldn’t that be wild if I am president and come back and do a civil case?”

As well, just over a week ago, Trump revoked The Washington Post’s press credentials to cover his campaign because he did not like how it wrote about some of his comments after the mass shooting at Pulse, calling the publication “phony and dishonest.” Trump seems particularly thorny about The Washington Post’s owner, Jeff Bezos, who founded Amazon. Like Judge Curiel, Bezos has been on the receiving end of what seems very much like a Trump threat. According to The New York Times, Trump said in February about Bezos, “He owns Amazon. . . . He wants political influence so Amazon will benefit from it. That’s not right. And believe me, if I become president, oh do they have problems. They’re going to have such problems.”

These examples and more have a common theme: Trump’s disdain for the rule of law, if not outright ignorance of it.

How to Interpret Away the Home Rule Provision (in 4 Easy Steps)

Post author:Edward A. Fallone
Post published:June 23, 2016
Post category:Constitutional Interpretation Constitutional Law Judges & Judicial Process Milwaukee Public Wisconsin Supreme Court

Today the Wisconsin Supreme Court issued its opinion in the case of Black v. City of Milwaukee, 2016 WI 47, holding that a state law (Wis. Stat. 66.0502) that prohibits cities and other municipalities from imposing residency requirements on municipal employees does not contravene the Home Rule provision of the Wisconsin Constitution (Art. XI, sec. 3(1)). The result of the ruling is that the City of Milwaukee may no longer require city employees to reside within the City limits, with the resultant loss of significant tax revenue for Milwaukee.

Reading the text of the Home Rule provision, one might reasonably question how the Wisconsin Supreme Court arrived at this conclusion. The relevant text of Art. XI states:

Cities and villages organized pursuant to state law may determine their local affairs and government, subject only to this constitution and to such enactments of the legislature of statewide concern as with uniformity shall affect every city or every village.

However, the Justices of the Wisconsin Supreme Court have very helpfully demonstrated how the clear language of the Wisconsin Constitution can be interpreted away in four easy steps.

The Senate Must Consider Supreme Court Nominations in Due Course

Post author:Edward A. Fallone
Post published:February 23, 2016
Post category:Congress & Congressional Power Constitutional Interpretation Constitutional Law Judges & Judicial Process Political Processes & Rhetoric Public U.S. Supreme Court

Today, the Senate Majority Leader, Mitch McConnell, announced the unprecedented decision that the United States Senate will refuse to consider any nominee put forward by President Obama during the remainder of his term in office to fill the current vacancy on the United States Supreme Court. Senator McConnell said, “My decision is that I don’t think that we should have a hearing. We should let the next president pick the Supreme Court justice.”

The refusal of the United States Senate to consider any nominee put forth by President Obama is a clear violation of the Appointments Clause of the United States Constitution. Under the Appointments Clause (Article II, Section 2, Clause 2):

The President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law. . .

The role of the President is to appoint nominees to the United States Supreme Court. The role of the Senate is to provide their “advice and consent” to the President on the specific nominee.

The meaning is “advice and consent” is clear and uncontroversial. The Framers of the Constitution recognized that absolute monarchs such as the King of England had abused the power to appoint public officials. This abuse was due to the monarch’s absolute power to appoint anyone they chose. In response, the Constitution divided the power to appoint superior public officials and Supreme Court Justices between the Executive (the President) and the Senate. The Framers of the Constitution diffused the appointment power, just as they diffused several other powers among separate branches of the federal government in order to guard against abuse.

However, the separation of the power to appoint into two pieces is not split 50-50 between the President and the Senate. Rather, the split is made between the President’s absolute power to select any nominee he or she chooses, and the Senate’s power to accept or reject the nominee. The intent of the Appointments Clause is to give the Senate a check on the President’s choice, in order to prevent nominations that result from corruption, cronyism, or the advancement of unqualified nominees (i.e., family members). The Appointments Clause does not give the Senate any role in deciding who or when the President will nominate.

In fact, the Senate has no pre-nomination role at all in the appointment process. The Senate’s only role under the Constitution arises after the President makes a nomination. In this regard, it has often been remarked that the power of initiative lies with the President under the Appointments Clause.