Obama's Constitutional Legacy
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Minority Views
MINORITY VIEWS The Minority Members of the House Permanent Select Committee on Intelligence on March 26, 2018 submit the following Minority Views to the Majority-produced "Repo11 on Russian Active Measures, March 22, 2018." Devin Nunes, California, CMAtRMAN K. Mich.J OI Conaw ay, Toxas Pe1 or T. King. New York F,ank A. LoBiondo, N ew Jersey Thom.is J. Roonev. Florida UNCLASSIFIED Ileana ROS·l chtinon, Florida HVC- 304, THE CAPITOL Michnel R. Turner, Ohio Brad R. Wons1 rup. Ohio U.S. HOUSE OF REPRESENTATIVES WASHINGTON, DC 20515 Ou is S1cwart. U1ah (202) 225-4121 Rick Cr.,w ford, Arka nsas P ERMANENT SELECT C OMMITTEE Trey Gowdy, South Carolina 0A~lON NELSON Ellsr. M . S1nfn11ik, Nnw York ON INTELLIGENCE SrAFf. D IREC f()ti Wi ll Hurd, Tcxa~ T11\'10l !IV s. 8 £.R(.REE N At1am 8 . Schiff, Cohforn1a , M tNORllV STAFF OtR ECToq RANKIN G M EMtlER Jorncs A. Himes, Connec1icut Terri A. Sewell, AlabJma AndrC Carso n, lncli.1 na Jacki e Speier, Callfomia Mike Quigley, Il linois E,ic Swalwell, California Joilq u1 0 Castro, T exas De nny Huck, Wash ington P::iul D . Ry an, SPCAl([ R or TH( HOUSE Noncv r c1os1. DEMOC 11t.1 1c Lr:.11.orn March 26, 2018 MINORITY VIEWS On March I, 201 7, the House Permanent Select Commiltee on Intelligence (HPSCI) approved a bipartisan "'Scope of In vestigation" to guide the Committee's inquiry into Russia 's interference in the 201 6 U.S. e lection.1 In announc ing these paramete rs for the House of Representatives' onl y authorized investigation into Russia's meddling, the Committee' s leadership pl edged to unde1take a thorough, bipartisan, and independent probe. -
Originalism and the Ratification of the Fourteenth Amendment
Copyright 2013 by Northwestern University School of Law Printed in U.S.A. Northwestern University Law Review Vol. 107, No. 4 ORIGINALISM AND THE RATIFICATION OF THE FOURTEENTH AMENDMENT Thomas B. Colby ABSTRACT—Originalists have traditionally based the normative case for originalism primarily on principles of popular sovereignty: the Constitution owes its legitimacy as higher law to the fact that it was ratified by the American people through a supermajoritarian process. As such, it must be interpreted according to the original meaning that it had at the time of ratification. To give it another meaning today is to allow judges to enforce a legal rule that was never actually embraced and enacted by the people. Whatever the merits of this argument in general, it faces particular hurdles when applied to the Fourteenth Amendment. The Fourteenth Amendment was a purely partisan measure, drafted and enacted entirely by Republicans in a rump Reconstruction Congress in which the Southern states were denied representation; it would never have made it through Congress had all of the elected Senators and Representatives been permitted to vote. And it was ratified not by the collective assent of the American people, but rather at gunpoint. The Southern states had been placed under military rule, and were forced to ratify the Amendment—which they despised—as a condition of ending military occupation and rejoining the Union. The Amendment can therefore claim no warrant to democratic legitimacy through original popular sovereignty. It was added to the Constitution despite its open failure to obtain the support of the necessary supermajority of the American people. -
The Contributions of the Obama Administration to the Practice and Theory of International Law
\\jciprod01\productn\H\HLI\57-2\HLI205.txt unknown Seq: 1 14-OCT-16 13:24 Volume 57, Number 2, Spring 2016 The Contributions of the Obama Administration to the Practice and Theory of International Law Jack Goldsmith* My aim in this essay is to give a tour of the horizon of the Obama admin- istration’s international law record in order to identify the distinctiveness of its approach and to tie it in to some general themes in international and foreign relations law. Due to his upbringing and education, Barack Obama came to the Presi- dency with a cosmopolitan outlook and an informed commitment to inter- national law. This attitude differed sharply from his predecessor, George W. Bush, who was suspicious of international law and generally viewed it as an obstacle to the exercise of American power. By contrast, Obama devoted a chapter of his 2006 book The Audacity of Hope to international relations and made plain that he understood international law intimately and viewed it as a constructive force in international relations.1 He criticized the view that “international law [was] an encroachment on American sovereignty [and] a foolish constraint on America’s ability to impose its will around the world”—a position that Obama associated with Henry Cabot Lodge, but one that might also describe the early Bush administration.2 And Obama argued it was “in America’s interest to work with other countries to build up international institutions and promote international norms . because the more international norms were reinforced and the more America sig- naled a willingness to show restraint in the exercise of its power, the fewer the number of conflicts that would arise.”3 On the campaign trail Obama gave voice to this attitude when he criticized the Bush administration for its weak compliance with U.S. -
Attorney General Barr Letter on Mueller Report, LAWFARE (Mar. 24, 2019, 3:44 PM)
April 11, 2019 VIA ONLINE PORTAL Douglas Hibbard Chief, Initial Request Staff Office of Information Policy U.S. Department of Justice 1425 New York Avenue NW Suite 11050 Washington, DC 20530-0001 Via FOIAOnline Re: Expedited Freedom of Information Act Request Dear Mr. Hibbard: Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing regulations of the Department of Justice (DOJ), 28 C.F.R. Part 16, American Oversight makes the following request for records. Requested Records American Oversight requests that DOJ produce the following within twenty business days and seeks expedited review of this request for the reasons identified below: 1. All communications (including emails, email attachments, letters, messages sent by courier, and other communications) attaching or otherwise including any draft, or any portion of a draft, of Attorney General William Barr’s March 24, 2019 letter to the Judiciary Committees of the U.S. Senate and the U.S. House of Representatives concerning Special Counsel Robert Mueller’s “Report on the Investigation into Russian Interference in the 2016 Presidential Election.”1 2. All records reflecting communications (including emails, email attachments, telephone call logs, talking points, electronic or handwritten notes, or drafts used as reference documents during oral communications) between DOJ and any employee or official at the White House regarding Attorney General William Barr’s March 24, 2019 letter to the Judiciary Committees of the U.S. Senate and the U.S. House of Representatives concerning Special Counsel Robert Mueller’s “Report on the Investigation into Russian 1 A copy of Attorney General Barr’s letter can be viewed here: Quinta Jurecic, Document: Attorney General Barr Letter on Mueller Report, LAWFARE (Mar. -
Legal Dilemmas Facing White House Counsel in the Trump Administration: the Costs of Public Disclosure of Fisa Requests
LEGAL DILEMMAS FACING WHITE HOUSE COUNSEL IN THE TRUMP ADMINISTRATION: THE COSTS OF PUBLIC DISCLOSURE OF FISA REQUESTS Peter Margulies* INTRODUCTION Not every presidential administration can forge a new brand of government lawyering. Historically, government lawyering has swung between two poles: (1) dialogic lawyering, which stresses reasoned elaboration, respect for institutions, and continuity with unwritten norms embodied in past practice; and (2) insular lawyering, which entails opaque definitions, disregard of other institutions, and departures from unwritten norms.1 Because President Trump regularly signals his disdain for institutions, such as the intelligence community, and unwritten norms, such as prosecutorial independence,2 senior lawyers in the White House have added a new mode of legal representation that entails ad hoc adjustments to President Trump’s mercurial decisions and triage among the presidential decisions they will try to temper. Call it: lifeboat lawyering. Lifeboat lawyering, as practiced by Donald F. McGahn II—the first White House Counsel of the Trump administration3—and others, involves * Professor of Law, Roger Williams University School of Law. B.A., Colgate University; J.D., Columbia Law School. I thank Bob Bauer and participants at the Fordham Law Review Colloquium on The Varied Roles, Regulation, and Professional Responsibility of Government Lawyers for comments on a previous draft. For more information on the Colloquium, which was hosted by the Fordham Law Review and the Stein Center for Law and Ethics on October 12, 2018, at Fordham University School of Law, see Bruce A. Green, Lawyers in Government Service—a Foreword, 87 FORDHAM L. REV. 1791 (2019). 1. See Peter Margulies, Reforming Lawyers into Irrelevance?: Reconciling Crisis and Constraint at the Office of Legal Counsel, 39 PEPP. -
The Obvious Constitutionality of Health Care Reform1
ANDREW KOPPELMAN Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform1 The Supreme Court may be headed for its most dramatic intervention in American politics—and most flagrant abuse of its power—since Bush v. Gore.2 Challenges to President Obama’s health care law3 have started to work their way toward the Court and have been sustained by two Republican-appointed district judges.4 1. A version of this Essay was presented at “Healthcare Reform: The Law and Its Implications,” a seminar of the American Health Lawyers Association, held in Chicago on December 6, 2010. This Essay consolidates and adds to arguments presented in an earlier series of blog posts. Andrew Koppelman, Can’t Think of Another One, BALKINIZATION (Dec. 14, 2010, 11:17 AM), http://balkin.blogspot.com/2010/12/cant-think-of-another-one.html; Andrew Koppelman, Health Care Reform: The Broccoli Objection, BALKINIZATION (Jan. 19, 2011, 4:48 PM), http://balkin.blogspot.com/2011/01/ health-care-reform-broccoli-objection.html; Andrew Koppelman, Non Sequiturs in the Florida Health Care Decision, BALKINIZATION (Feb. 2, 2011, 2:42 PM), http://balkin.blogspot.com/2011/02/non-sequiturs-in-florida-health-care.html; Andrew Koppelman, The Virginia Court’s Bizarre Health Law Decision, BALKINIZATION (Dec. 13, 2010, 5:01 PM), http://balkin.blogspot.com/2010/12/virginia-courts-bizarre-health-law.html. 2. 531 U.S. 98 (2000). For defenses of the modest proposition that the Supreme Court is not constitutionally authorized to appoint the President, see, for example, Laurence H. Tribe, eroG v. hsuB and Its Disguises: Freeing Bush v. -
Speaker Bios
Intelligence Reform and Counterterrorism after a Decade: Are We Smarter and Safer? October 16 – 18, 2014 University of Texas at Austin THURSDAY, OCTOBER 16 Blanton Museum, UT Campus 4:00-5:00pm Welcome Remarks and Discussion: Admiral William McRaven (ret.) Admiral McRaven is the ninth commander of United States Special Operations Command (USSOCOM), headquartered at MacDill Air Force Base, Fla. USSOCOM ensures the readiness of joint special operations forces and, as directed, conducts operations worldwide. McRaven served from June 2008 to June 2011 as the 11th commander of Joint Special Operations Command (JSOC) headquartered at Fort Bragg, N.C. JSOC is charged to study special operations requirements and techniques, ensure interoperability and equipment standardization, plan and conduct special operations exercises and training, and develop joint special operations tactics. He served from June 2006 to March 2008 as commander, Special Operations Command Europe (SOCEUR). In addition to his duties as commander, SOCEUR, he was designated as the first director of the NATO Special Operations Forces Coordination Centre where he was charged with enhancing the capabilities and interoperability of all NATO Special Operations Forces. McRaven has commanded at every level within the special operations community, including assignments as deputy commanding general for Operations at JSOC; commodore of Naval Special Warfare Group One; commander of SEAL Team Three; task group commander in the U.S. Central Command area of responsibility; task unit commander during Desert Storm and Desert Shield; squadron commander at Naval Special Warfare Development Group; and SEAL platoon commander at Underwater Demolition Team 21/SEAL Team Four. His diverse staff and interagency experience includes assignments as the director for Strategic Planning in the Office of Combating Terrorism on the National Security Council Staff; assessment director at USSOCOM, on the staff of the Chief of Naval Operations, and the chief of staff at Naval Special Warfare Group One. -
Criminal Justice John Rappaport†
Some Doubts About “Democratizing” Criminal Justice John Rappaport† The American criminal justice system’s ills are by now so familiar as scarcely to bear repeating: unprecedented levels of incarceration, doled out disproportion- ately across racial groups, and police that seem to antagonize and hurt the now- distrustful communities they are tasked to serve and protect. Systemic social ail- ments like these seldom permit straightforward diagnoses, let alone simple cures. In this case, however, a large, diverse, and influential group of experts—the legal acad- emy’s “democratizers”—all identify the same disease: the retreat of local democratic control in favor of a bureaucratic “machinery” disconnected from public values and the people themselves. Neighborhood juries, for example, internalize the costs of pun- ishing their own; neighborhood police, “of” and answerable to the community, think twice before drawing their weapons or stopping a local boy on a hunch. The experts and detached professionals who populate our dominant bureaucratic institutions, in contrast, are motivated by different, less salubrious, incentives. Across the gamut of criminal justice decision-making, the democratizers maintain, the influence of the local laity is a moderating, equalizing, and ultimately legitimating one. A generous dose of participatory democracy won’t solve all our problems, but it’s our best shot to get the criminal justice system back on its feet. This Article’s warning is plain: don’t take the medicine. “Democratization” wields undeniable rhetorical appeal but will not really fix what ails us—and may just make it worse. The democratization movement, this Article argues, rests on con- ceptually problematic and empirically dubious premises about the makeup, prefer- ences, and independence of local “communities.” It relies on the proudly counterin- tuitive claim that laypeople are largely lenient and egalitarian, contrary to a wealth of social scientific evidence. -
The Consensus Myth in Criminal Justice Reform
University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 2018 The Consensus Myth in Criminal Justice Reform Benjamin Levin University of Colorado Law School Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Criminal Law Commons, Criminal Procedure Commons, Jurisprudence Commons, Law and Race Commons, Law Enforcement and Corrections Commons, and the Legal Writing and Research Commons Citation Information Benjamin Levin, The Consensus Myth in Criminal Justice Reform, 117 MICH. L. REV. 259 (2018), available at https://scholar.law.colorado.edu/articles/1205. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. THE CONSENSUS MYTH IN CRIMINAL JUSTICE REFORM Benjamin Levin* It has become popular to identify a “consensus” on criminal justice reform, but how deep is that consensus, actually? This Article argues that the pur- ported consensus is much more limited than it initially appears. Despite shared reformist vocabulary, the consensus rests on distinct critiques that identify different flaws and justify distinct policy solutions. The underlying disagreements transcend traditional left/right political divides and speak to deeper disputes about the state and the role of criminal law in society. -
Oklahoma City University Law Review
OCULREV Fall 2014 Somin 415--440 (Do Not Delete) 2/9/2015 5:32 PM OKLAHOMA CITY UNIVERSITY LAW REVIEW VOLUME 39 FALL 2014 NUMBER 3 SPEECH WILLIAM BRENNAN LECTURE 2014: NFIB V. SEBELIUS AND THE CONSTITUTIONAL DEBATE OVER FEDERALISM Ilya Somin* INTRODUCTION I would like to start by thanking Professor Andrew Spiropoulos for his wonderful introduction, and all of you for braving the extreme cold to come and listen to a lecture about constitutional federalism.1 I want to also thank Oklahoma City University for hosting the William Brennan lecture series. It is a great honor for me to follow in the footsteps of the many distinguished past lecturers, such as William Eskridge, Erwin Chemerinsky, Randy Barnett, Nicole Garnett, and last year’s speaker, Judge Diane Sykes. Many of the previous lecturers are either former law school professors of mine or professional colleagues and mentors that I have learned a great deal from. * Professor of Law, George Mason University School of Law. This Article is adapted from the William J. Brennan Lecture delivered at Oklahoma City University School of Law in January 2014. 1. It is perhaps worth noting that the temperature in Oklahoma City on the night I gave the lecture was barely above zero. 415 OCULREV Fall 2014 Somin 415--440 (Do Not Delete) 2/9/2015 5:32 PM 416 Oklahoma City University Law Review [Vol. 39 I should also say a word about Justice William Brennan, the man after whom this lecture series is named. He was unquestionably one of the most successful and influential Supreme Court justices of the twentieth century. -
The Uses of Law in the Bush Administration (In Julian Zelizer, Ed., the Presidency of George W
A Sword and a Shield: The Uses of Law in the Bush Administration (In Julian Zelizer, ed., The Presidency of George W. Bush: A First Historical Assessment (Princeton University Press, 2010)) Mary L. Dudziak USC Legal Studies Research Paper No. 09-39 LEGAL STUDIES RESEARCH PAPER SERIES University of Southern California Law School Los Angeles, CA 90089-0071 THE PRESIDENCY OF George W, Bush A First Historical Assessment furrnN E. ZuuzER, Editor Princeton University Press Princeton and Oxford ADVANCE PRAISE FOR The Presidency of George W: Bush "George W. Bush once stated that 'we'll all be dead' by the time history casts its judgment on his presidency. Instead, in this engaging and timely portrait of the Bush era, eleven leading scholars assess the 'war on terror,' the resurrection of the imperial presidency, the effects of tax cuts and corporate deregulation, and other foreign and domestic policies promoted by big-government conservatism. While acknowledgitg the administration's political accomplishments, the contributors to this volume emphasize the ultimate failures of the Bush presidency and the conservative movement's strategies of governance." Lassiter, of Michigan -Matthew D. University "This impressive collection features brilliant essays by some of America's best historians on the presidency of George 'V(/'. Bush. It's all here- from the Bush v. Gore Supreme Court decision that sealed Bush's first- term victory to the stunning financial crisis that closed his tenure in office. This stimulating and highly accessible volume is must readin g for scholars, journalists, and concerned citizens." -Eric M. Patashnik, author of Reforms at Risk 'An all-star cast of historians examines the perplexing presidency of George W. -
Eminent Domain Abuse
The Civil Rights Implications of Eminent Domain Abuse A Briefing Before The United States Commission on Civil Rights Held in Washington, DC Briefing Report Table of Contents i EXECUTIVE SUMMARY ........................................................................................................... iii SUMMARY OF PROCEEDINGS ..................................................................................................1 Panelist Presentations...........................................................................................................1 Ilya Somin................................................................................................................1 J. Peter Byrne...........................................................................................................3 Hilary Shelton ..........................................................................................................6 David Beito ..............................................................................................................9 Discussion..........................................................................................................................10 COMMISSIONERS’ STATEMENTS AND REBUTTALS.........................................................21 Martin R. Castro.................................................................................................................21 Abigail Thernstrom............................................................................................................24 Roberta Achtenberg