Professor Schmidt: “The Gorsuch Report—Week 2”

By Professor Christopher W. Schmidt

It has been over a week since President Trump nominated Neil Gorsuch to a seat on the U.S. Supreme Court. The widely respected and impressively credentialed Judge Gorsuch, currently sits on the United States Court of Appeals for the Tenth Circuit.

The nomination was met with the predictable outpouring of support from Republicans, while the response from Democrats has been more mixed. Democrat Senator Dianne Feinstein praised Gorsuch calling him “caring” and “obviously legally very smart.” CBS News reports that Senator Feinstein, the top Democrat on the Senate Judiciary Committee, did not promise a vote for Gorsuch but describes him as “impressive.”

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Professor Perritt: We Lost!

By Professor Henry H. Perritt, Jr.

America is a democracy, and a lot of my fellow Democrats seem to have forgotten that. Donald Trump got elected president of the United States, and he has been doing pretty much what he said he was going to do during the campaign. That’s the way democracies are supposed to work.

To be sure, they are also supposed to work through checks and balances. Democratic pressure on the President’s cabinet nominees is part of that. So also is the scrutiny given to the President’s immigration order by a panel of the United States Court of Appeals for the Ninth Circuit on Tuesday.

I’ve been involved in politics all my life. I’ve helped run mayoral campaigns in Boston and Atlanta, state representative campaigns in Boston and Atlanta, aldermanic campaigns in Chicago, and a national campaign in Kosovo. I’ve worked on the White House staff and on two transitions, the one from Ford to Carter and the one from Bush to Clinton.

Having run unsuccessfully for office myself (as the Democratic nominee against Mark Kirk for the U. S. House of Representatives in 2002), I know that all you have a right to ask for is an opportunity to be able to deliver your message. If it resonates with enough people you get elected. If it doesn’t, you don’t. I often said to my friends in Kosovo, Bosnia, and Iraqi Kurdistan, as I worked on various nation-building exercises there and wrote two books on Kosovo, the test of a democracy is not how well you win, but what do you do when you lose.

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Dean Krent: Thoughts on the February 7 Ninth Circuit Oral Argument on the Immigration Executive Order

By Dean Harold Krent

First, kudos to the Ninth Circuit Court of Appeals for livestreaming the oral argument.  The technology was not perfect, but opening the hearing to all citizens represents a needed step toward transparency in light of the controversy engendered by the Executive Order.

Second, the panel was prepared and peppered both sides with tough questions.  The judges, despite their different ideological leanings (Judges Canby and Friedland were appointed by Democratic presidents, and Judge Clifton by a Republican), bolstered the image of an independent judiciary committed to the rule of law.

Third, despite the risks of predicting votes based on questions in oral arguments, the panel in my view is leaning towards recognizing that the State of Washington enjoyed standing to bring the lawsuit.  At least two of the judges seemed convinced that the State could sue in its proprietary capacity because of its allegations that state universities would suffer if students and professors could not get into the country.  In any event, the DOJ attorney conceded that individuals and their families who were directly affected by the Executive Order had standing, so that even if the State of Washington could not bring suit, other plaintiffs could.

Fourth, on the merits, there was little discussion of the question of the Order’s inconsistency with the 1965 statute, other than apparent agreement that the statute only prohibits country of origin categorization with respect to granting immigrant visas, and the President’s Order reaches far more broadly.

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Professor Birdthistle discusses how the banking and financial industries might change under President Trump on “Chicago Tonight”

Professor William Birdthistle was a panelist on WTTW’s “Chicago Tonight” on February 7, 2017, for a discussion about how the Trump administration’s deregulation agenda may affect the Dodd-Frank Act and the fiduciary rule.

Professor Schmidt: “In Praise of the Supreme Court Confirmation Process”

By Professor Christopher W. Schmidt

It sometimes feels like no one has anything good to say about the Supreme Court confirmation process. Some lament its lack of substance. (Back when she was a law professor, Justice Kagan described it as “a vapid and hollow charade.”) Some worry it has become too partisan. (Just last spring, Chief Justice Roberts said that a “sharply political, divisive hearing process … increases the danger that whoever comes out of it will be viewed in those terms.”)

Despite these criticisms, something the confirmation process does quite well is to focus the nation’s attention on the idea of the rule of law and the values of an independent judiciary. Usually the discussion of these topics are little more than obligatory checkboxes for senators and the nominee prior to rolling up their sleeves and discussing the more contentious issue of constitutional interpretation and hot-button topics such as abortion and gay rights. But today, when people from across the ideological spectrum see the most basic principles of legal process and judicial independence under threat from the executive branch, what before might have felt like platitudes take on new importance.

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Professor Nahmod on An Independent Federal Judiciary: Our First Line of Defense

By Professor Sheldon Nahmod

An independent federal judiciary is an indispensable part of our system of checks and balances. One of the important purposes of checks and balances, as contemplated by the Framers, is to prevent the seizure by factions of Congress and the Executive Branch. Another is to prevent over-reaching by both branches of government.

At this point the Trump administration is not likely, for political reasons, to be checked by either House of Congress, so it is the federal judiciary that will have to do much of the heavy lifting. For that reason, we all should vehemently protest the President’s recent ad hominem attacks on two federal judges: the federal judge presiding over the Trump University case and the federal judge in Seattle who recently issued a temporary restraining order against much of the President’s executive immigration order. Though the Supreme Court is our last resort, the entire federal judiciary is our first line of defense and must be protected at all costs.

Professor Batlan on Dodd-Frank, the Senate, and the Executive Order – Part 1

By Professor Felice Batlan

Early last Friday morning, using an unusual legislative procedure, the Senate voted to repeal a law that was part of Dodd-Frank. Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Act directed the Securities and Exchange Commission to issue rules requiring public companies (issuers) to include in their annual reports information regarding payments by that issuer to a foreign government, or the federal government, for the purpose of the commercial development of oil, natural gas, or minerals. This provision was only tangentially related to the heart of Dodd-Frank reforms. The purpose of this Dodd-Frank provision was to increase transparency, prevent corruption, and allow governments, across the globe, to be held publically accountable. In August, 2012 the SEC, as required, adopted Rule 13q-1, which immediately ran into hurdles.

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Professor Tarlock on the EPA

By Professor Dan Tarlock

During the 2016 presidential campaign, candidate Donald Trump promised both to curb and to eliminate the EPA. A Florida congressman is planning to introduce legislation to abolish the agency by 2018. Going nuclear against the EPA will not be easy and the counterattacks will be fierce.

The EPA was created in 1970 by President Richard Nixon by Executive Order. It gathered into a new agency the scattered, weak environmental laws delegated to the Departments of Agriculture, then Health, Education and Welfare and Interior. Most foundational environmental laws enacted between 1970-1980 were assigned to the EPA for implementation and enforcement.

The President’s power to abolish agencies falls under government reorganization acts that trace back to the New Deal. The last one was enacted in 1977, before the Supreme Court invalidated legislative vetoes, so the current thinking is that the President must ask Congress for authority to abolish an agency. Even assuming that the current Congress grants the authority, then the fun starts. The air, hazardous waste and water pollution laws that EPA implements and enforces cannot be abolished by the Executive; the Constitution clearly grants that authority exclusively to Congress.

Does the Republican controlled Congress really want to create that level of chaos? Stay tuned.

Professor Batlan on Religious Discrimination and Jewish Immigrants – Post 1

By Professor Felice Batlan

Religious Discrimination and Jewish Refugees

Writing as a legal historian, I want to say that President Trump’s Executive Order of January 27th regarding immigration and refugees was entirely unprecedented but it was not. What I can say is that looking back at immigration laws and policies, like those in the Executive Order, we can see how they were entirely misguided and driven by racist stereotypes.  I briefly want to point to two such events involving Jewish refugees and immigrants.

In 1892 poor Eastern European Jewish refugees attempting to enter the United States spent months in U.S. quarantine under the mistaken belief that they were carriers of typhoid and later cholera. Such hysteria was driven by the wide-spread stereotype that such Jews were dirty, dangerous, and that they polluted the Christian body of the nation. Protecting the nation’s security was thus mapped on to the Jewish body. At the time, no one brought a habeas petition on behalf of those detained. Rather Jewish charities and others cooperated with officials hoping that the ban would soon be lifted.

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Before the Gorsuch Hearings: Originalism and Textualism Hide Ideological Judgments Behind Claims of Objectivity

By Professor Carolyn Shapiro

Now that President Trump has nominated Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to the Supreme Court, we will be hearing a lot about the proper role of a Supreme Court justice. In introducing Judge Gorsuch, for example, Trump said that he had sought a nominee who would “interpret [the Constitution and laws] as written.” Praising Trump’s choice, Sean Hannity noted that Trump was fulfilling his promise to appoint someone who would “strictly adhere to the original meaning of the words of the Constitution” and claimed that Gorsuch is not someone who will “legislate from the bench.” Other conservatives have hailed him as a “textualist” and one who “espouses judicial restraint.”

All of these statements are wrong. They are wrong not necessarily because they misdescribe Gorsuch’s jurisprudence, but because they misdescribe the job. The job of the judge — and especially the job of a Supreme Court justice — is much more complex and nuanced than catchphrases like “applying the law as written” suggest.

The statements are also code. They are code for a particular type of judge – and make no mistake, it is a judge who conservatives believe will produce results that, by and large, they like. This is not to say that a judge has to do something illegitimate to reach those results. Rather, it is to say that such a judge is – like all judges addressing hard and indeterminate questions of law – making judgments, considering facts, weighing competing principles and taking account of precedent, history, and societal norms and expectations.

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