Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues

Posted on Categories Congress & Congressional Power, Federal Law & Legal System, Political Processes & Rhetoric, President & Executive Branch, Public, Speakers at MarquetteLeave a comment» on Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues
Judge Brett M. Kavanaugh

So Dez Bryant of the Dallas Cowboys leaps for a pass as the playoff game with the Green Bay Packers is about to end. He comes down with ball on the one-yard line. Or does he? Or course, you know the answer—he doesn’t, the referees rule, a call that is hotly debated nationwide (and helps the Packers to victory in the Jan. 11 NFL playoff game).

The referee’s call required making a decision on the spot under great pressure and scrutiny. But to Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D. C. Circuit, a big reason the call was made in a way that stood up to later scrutiny was that the rules for deciding what was a legitimate catch were established ahead of time, with thought and clarity.

And that is, in substance, much of the message Kavanaugh delivered in the 2015 Hallows Lecture at Marquette University Law School on Tuesday. The lecture, titled “Separation of Powers Controversies in the Bush and Obama Administrations: A View from the Trenches,” examined five different policy areas where controversies over separation of powers at the top of the federal government have arisen in recent years. In all five areas, Kavanaugh said, it pays off when “the rules of the road” are developed before a crisis comes.  Continue reading “Judge Brett Kavanaugh Calls for “Rules of the Road” for Separation of Powers Issues”

President Obama’s Executive Orders are Constitutional

Posted on Categories Constitutional Law, Immigration Law, President & Executive Branch, Public5 Comments on President Obama’s Executive Orders are Constitutional

452px-Barack_Obama_basketball_at_Martha's_VineyardA “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet.  Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly.  Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington.  Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom.  Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment.  However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President.  Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them.  The President’s head fake is evident when the details of the Executive Orders are examined. Continue reading “President Obama’s Executive Orders are Constitutional”

Could Lincoln Have Been Defeated in 1860?

Posted on Categories Legacies of Lincoln, Political Processes & Rhetoric, President & Executive Branch, Public12 Comments on Could Lincoln Have Been Defeated in 1860?

This is another in a series of posts marking the sesquicentennial of the Emancipation Proclamation.

No presidential election in American history has been as pivotal as the election of 1860. Had any one of Abraham Lincoln’s three opponents been elected president in November of 1860, South Carolina would clearly not have seceded from the Union on December 20, and it and its six compatriot Deep South states would not have formed the Confederate States of America on February 8, 1861.

(Technically, Texas, one of the seven seceding states, did not join the Confederacy until the first week of March.)

Of course, one of the anomalies of that election was that Abraham Lincoln won a solid majority in the Electoral College, even though he received only 39.7% of the popular vote. The remaining 60+% was divided between the Northern Democrat Stephen Douglas of Illinois (29.5%), the Southern Democrat James Breckenridge of Kentucky (18.2%), and Tennessean John Bell (12.6%), who was the candidate of the Constitutional Union Party, essentially an effort to revive the defunct Whig Party.

While receiving only a plurality of the popular vote, Lincoln nevertheless won a substantial majority in the Electoral College, totaling 180 votes compared to 72 for Breckenridge, 39 for Bell, and only 12 for Douglas. Continue reading “Could Lincoln Have Been Defeated in 1860?”

The Emancipation Proclamation—Sesquicentennial Reflections

Posted on Categories Civil Rights, Constitutional Law, Legacies of Lincoln, Legal History, President & Executive Branch, PublicLeave a comment» on The Emancipation Proclamation—Sesquicentennial Reflections

January 1, 2013, marks the 150th anniversary of President Lincoln’s final Emancipation Proclamation, which declared the freedom of slaves in rebellious states. The decree was controversial in Lincoln’s time and seems often to be misunderstood in ours. The objective of this blog post, accordingly, is to survey the context, chronology, and consequences of the Proclamation as we observe the sesquicentennial of its issuance.

The Context—Summer 1861 through Fall 1862

Through the latter half of 1861 and well into 1862, it was not at all self-evident that the Union would win the Civil War. Particularly in the east, the most symbolic military theater, the Confederate Army secured numerous victories or military stalemates, the latter of which were essentially as advantageous for it as the former. Despite having superior financial and industrial resources, the Union Army’s deficit of aggressive battlefield leadership, lack of well-trained or seasoned troops, and comparative unfamiliarity with the terrain repeatedly hampered Union military actions.

Lincoln was painfully cognizant of these problems, especially the operational timidity of his top brass, purportedly remarking at one point that if General George B. McClellan was not going to use the Army of the Potomac, Lincoln “would like to borrow it, provided he could see how it could be made to do something.” President Lincoln also knew that popular support for the war, as casualties mounted and the prospect of national conscription loomed, could not long endure without visible Union success in the east. At the same time, the President was aware that the Confederacy was seeking the recognition and material support of European nations such as England and France, and that every Confederate victory appeared to make this objective more attainable.

It was this array of circumstances, among others, that prompted President Lincoln to take the manifestly drastic step of issuing the Emancipation Proclamation. Only against this political and military backdrop, in fact, can the Proclamation and its timing be fully comprehended. In order to explain why this is so, it is necessary to walk through the events leading up to the Proclamation and then to examine the substance and scope of the Proclamation itself. Continue reading “The Emancipation Proclamation—Sesquicentennial Reflections”

Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law

Posted on Categories Labor & Employment Law, Political Processes & Rhetoric, President & Executive Branch, PublicLeave a comment» on Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law

In light of President Obama’s resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in the labor and employment law area during a second Obama administration:

First, I think the verdict is still very much out on  whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term.  It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.

On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act.  I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.

On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains.   Continue reading “Some Thoughts on the Meaning of a Second Obama Term for Labor and Employment Law”

The Roots of Progressivism Lie in . . . the Republican Party?

Posted on Categories Legacies of Lincoln, Political Processes & Rhetoric, President & Executive Branch, Public10 Comments on The Roots of Progressivism Lie in . . . the Republican Party?

Tonight, when President Barack Obama delivers his third State of the Union address, he is widely expected to channel the progressive rhetoric of Theodore Roosevelt. It was Roosevelt’s “New Nationalism” speech in 1910 (quoted in my previous post here) that called for the federal government to play an active role in regulating the economy. When he speaks to the nation tonight, President Obama is likely to push back against the demand to shrink the federal government – a common refrain among the current crop of Republican presidential candidates — by pointing to Theodore Roosevelt’s call for an active federal government.

It is certainly true that, in his “New Nationalism” speech, Theodore Roosevelt developed the theme that elite special interests had come to dominate government at all levels, thereby turning government into a tool for their own narrow purposes. President Obama is hoping that a return to this theme will resonate with voters today. However, while the connection between President Obama and Theodore Roosevelt has been widely reported, few commentators have recognized that these same ideas actually can be traced back to an earlier Republican president . . . Abraham Lincoln. Continue reading “The Roots of Progressivism Lie in . . . the Republican Party?”

The Extrajudicial Killing of Anwar al-Awlaki

Posted on Categories Constitutional Interpretation, Human Rights, International Law & Diplomacy, President & Executive Branch, Public1 Comment on The Extrajudicial Killing of Anwar al-Awlaki

On Friday, September 30, 2011, Anwar al-Awlaki (Aulaqi), a U.S. citizen and well-known al-Qaeda figure, was targeted and killed during a U.S. drone strike in Yemen. Samir Khan, also a U.S. citizen, was killed in the same attack. Khan was the editor of Inspire, an English-Language al-Qaeda magazine that, among other things, publishes how-to articles designed to help terrorists build bombs for jihadist attacks against Americans.  Awlaki was perhaps best known in the U.S. for planning the failed underwear bombing of a commercial airliner over Detroit in 2009 (the alleged bomber’s criminal jury trial is currently underway), and for helping plan the 2009 massacre at Fort Hood.

Al-Awlaki’s assassination continues to draw heavy criticism both in the U.S. and abroad because he is believed to be the first U.S. citizen targeted and killed by the executive branch of the federal government without regard for Fifth Amendment due process.  Ron Paul published an op-ed in the New York Daily News expressing his outrage at al-Awlaki’s execution.  Paul, in response to what he calls the illegal murder of a U.S. citizen, is calling for President Obama’s impeachment. Continue reading “The Extrajudicial Killing of Anwar al-Awlaki”

Ratner: Even Osama Should Have Had Criminal Rights

Posted on Categories Civil Rights, Criminal Law & Process, Human Rights, President & Executive Branch, Prisoner Rights, Speakers at MarquetteLeave a comment» on Ratner: Even Osama Should Have Had Criminal Rights

Michael Ratner would have treated the pursuit of Osama bin Laden as a law enforcement matter, not as a matter of war. He would rather have seen bin Laden arrested, brought to trial, and given the rights of a criminal defendant than shot on the spot by Navy SEALS.

This almost certainly doesn’t put Ratner in the mainstream of American opinion, but it is consistent with what Ratner has advocated as president of the Center for Constitutional Rights, a New York-based non-profit organization, and as an attorney who has played key roles in defending the legal rights of prisoners at the military prison at Guantanamo Bay and in opposing interrogation techniques Ratner considers torture.

Ratner visited Eckstein Hall last week to speak to about 20 people at a lunch session of the American Constitution Society for Law and Policy, Milwaukee Lawyer Chapter.

Ratner realizes where the preponderance of American opinion lies on the killing on May 1 of bin Laden. “No one really cares whether he was lawfully killed or not,” he said. “People wanted him killed.”

Continue reading “Ratner: Even Osama Should Have Had Criminal Rights”

The Unitary Governor

Posted on Categories Constitutional Interpretation, President & Executive Branch, Wisconsin Law & Legal System5 Comments on The Unitary Governor

“The executive power shall be vested in a governor” proclaims Article V, Section 1 of the Wisconsin Constitution. Over the course of the past two decades, there has been a tremendous amount of legal scholarship about the “unitary executive theory,” based on the executive vesting clause of Article 3, Section 1 of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.” Thus far, this scholarship and its accompanying cases (see especially Justice Scalia’s dissent in Morrison v. Olson) has focused entirely on the presidency, but the legal principles are virtually identical.

All of this bears on two recent news stories: first, regarding Governor Walker’s bill requiring executive review of administrative rulemaking, and second, the budget repair bill’s adjustment of several positions in the executive branch from civil service to gubernatorial appointment.  The February bill on administrative rules requires that all regulations from state agencies be reviewed by the governor’s office before entering into force. Democrats opposed this bill on the grounds that it violates the “separation of powers,” the proper relationship between the executive, legislative, and judicial branches. State Senator Lena Taylor objected that the bill “breaks down the wall of independence around independent agencies.”  More recently, this week Democrats slammed the budget repair bill’s reclassification of several positions from civil service to gubernatorial appointment.

Continue reading “The Unitary Governor”

Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes

Posted on Categories Federal Law & Legal System, Legal History, Marquette Law School History, President & Executive Branch, Speakers at Marquette, U.S. Supreme Court, UncategorizedLeave a comment» on Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes

This year’s Boden Lecturer, Prof. Thomas Merrill, is the Charles Evans Hughes Professor of Law at the Columbia University Law School.   In addition to providing insight in the fascinating Wisconsin case of Melms v. Pabst, his presence also reminds us of an important connection between the Marquette Law Review and Charles Evans Hughes. Continue reading “Boden Visitor A Reminder of Marquette’s Connection to Charles Evans Hughes”

Obama’s “Feminine” Communication Style

Posted on Categories Negotiation, President & Executive Branch1 Comment on Obama’s “Feminine” Communication Style

A few weeks ago, Kathleen Parker, a writer for the Washington Post, likened Obama to a woman because of his negotiation style, calling him the first female president. (See the article here.)  Confronted with crises and criticisms, our President hasn’t responded in the alpha dog style of many male politicians. Instead, he’s a listener and talks it out. Traditionally, according to Parker, these methods are exercised almost exclusively by women. While the author is quick to commend the President on this refreshing change from the norm, she also points out that his style, especially in response to crises like the BP oil disaster, may have decreased his effectiveness.  Does this mean that women, in negotiating and communicating in this talk-it-out method are also less effective? Or is that assessment only true of men who adopt that style? The article goes on to cite research from University of Minnesota Professor Karlyn Kohrs Campbell, who asserts that men can adopt feminine communication styles without the consequence of being labelled as ineffective. Parker, however, isn’t convinced that Obama hasn’t suffered for his adoption.  Continue reading “Obama’s “Feminine” Communication Style”

How Much Difference Does the Small State Advantage in the Electoral College Really Make?

Posted on Categories Election Law, Political Processes & Rhetoric, President & Executive Branch6 Comments on How Much Difference Does the Small State Advantage in the Electoral College Really Make?

EV_map_081104-1400ZOne of the many unusual features of the Electoral College established by Article II, Section 1, of the United States Constitution is the provision that specifies that each state shall have “a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”

The one obvious consequence of this provision is to enhance the influence of the smaller states in the selection of the president.   Because of this provision, smaller states are disproportionately represented in the Electoral College.  For example, the 12 smallest states today—Alaska, Delaware, Hawaii, Idaho, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming together account for only 17 (of 435) representatives in the House, or 3.9% of the total.  However, in the Electoral College, thanks to the “Senate bump,” the same states account for 41 electoral votes, or 7.6% of the total of 538.

Would the history of American presidential elections have been different, had this non-democratic element not been added to the Electoral College formula in 1787?  What if Electoral votes were calculated only on the basis of the number of representatives in the House of Representatives?  Have some presidential candidates been elected only because they captured the electoral votes of a disproportionate number of small states? Continue reading “How Much Difference Does the Small State Advantage in the Electoral College Really Make?”