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Separation of Powers and Federalism

Recent years have witnessed an increase in executive power at the expense of the other branches of the federal government. This change has had a profound effect on our civil liberties, government transparency and the rule of law. The Separation of Powers and Federalism Group addresses the proper balance of power in our system of checks and balances, as well as other issues related to the power of the President. It also addresses the importance of preserving the independence of the judiciary. In addition, this Group focuses on the federalism jurisprudence of the Supreme Court, which has led it to strike down an unprecedented number of congressional enactments, threatening the ability of Congress to protect civil rights, the environment and workers. Finally, the Group also examines positive visions of federalism that will promote the ability of government at all levels to pursue progressive policies.

The Issue Group's Chair is:


To get involved in the work of the Separation of Powers and Federalism Issue Group, please fill out the Issue Group Sign-Up Form.

Also, please note that ACS ResearchLink features a number of topics related to the Separation of Powers and Federalism Issue Group’s work on which law students are encouraged to focus their academic scholarship.
Featured Events and Publications

Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali


Stephen I. Vladeck

Tue, 08/03/2010

ACS is pleased to distribute “Trying Terrorism Suspects in Article III Courts: The Lessons of United States v. Abu Ali,” an Issue Brief by Stephen I. Vladeck, Professor of Law at American University Washington College of Law. This paper is being released amidst ongoing public debate about whether the federal court system should be used to try terrorism suspects, or whether the trials should be conducted by military commissions. In this Issue Brief, Professor Vladeck examines the suitability of the federal court system through the lens of a significant post-September 11, 2001, criminal prosecution – the trial of Ahmed Omar Abu Ali. The author discusses the innovative procedures that the court devised in order to deal with particular difficulties presented in the trial and, ultimately, Professor Vladeck concludes that the case “emerges as an unvarnished example of how the civilian justice system can handle high-profile criminal terrorism cases raising novel logistical challenges.” As the author states:

 

"If Abu Ali proves anything, it is that every case raises a unique set of practical, procedural, and substantive challenges. But perhaps it proves a bit more: where unique national security concerns are implicated, Abu Ali suggests that the courts will attempt to reach such accommodations that take into account both the government’s interest and the fundamental protections to which defendants are entitled, keeping in mind Justice Frankfurter’s age-old admonition that 'the safeguards of liberty have frequently been forged in controversies involving not very nice people.' Abu Ali reminds us that sometimes, the law is set up properly to resolve the tension between the government’s interests and the defendant’s rights, even if reasonable minds could argue (in this area of the law, as in any other) that judges sometimes get it wrong."

 

 

Click Here to Download the Issue Brief

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ACS Issue Brief- Vladeck Abu Ali.pdf261.26 KB

ACS Panel Discussion: Miranda's Future

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Miranda's Future

On July 13, 2010 ACS hosted a panel discussion on the future of Miranda rights. As many have observed, changes to Miranda protections are being considered in the national security context. What are the arguments for and against such changes?

Panelists included:

Moderator, Aziz Huq, Assistant Professor Law, University of Chicago Law School

David Cole, Professor of Law, Georgetown University Law Center

Michael German, Policy Counsel, American Civil Liberties Union, and former FBI Special Agent

Benjamin Wittes, Senior Fellow and Research Director in Public Law, The Brookings Institution

2010 ACS National Convention: Address by Secretary Janet Napolitano

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On June 18, Secretary of Homeland Security Janet Napolitano addressed the 2010 ACS National Convention. Video is available above.

ACS Convention Panel: Material Support Provisions and the First Amendment


 At the 2010 ACS National Convention, a panel discussed Material Support Provisions and the First Amendment. The panel featured:

 

  • Ann Beeson, Executive Director of U.S. Programs, Open Society Institute, Moderator; 
  • David D. Cole, Professor of Law, Georgetown University Law Center;
  • Geoffrey Stone, Professor of Law, University of Chicago Law School;
  • Akil Vohra, Counsel, Muslim Charity Works Campaign, Muslim Advocates;
  • Kenneth L. Wainstein, Partner, O'Melveny & Myers LLP.

 

ACS Convention Panel: Detainees & Justice - Military Commissions v. Trials within the Federal Court System

 On June 19, at the 2010 ACS National Convention, a panel of experts discussed military commissions v. trials within the federal court system. The panel featured:

  • Marc Ambinder, Politics Editor, The Atlantic, Moderator;
  • Eugene Fidell, Senior Research Scholar in Law, Yale Law School;
  • Noel J. Francisco, Partner, Jones Day;
  • Deborah Pearlstein, Associate Research Scholar, Woodrow Wilson School, Princeton University;
  • Steven R. Shapiro, Legal Director, American Civil Liberties Union.

Who Will Speak for the Child? Human Rights at Home and the Convention on the Rights of the Child

The American Constitution Society for Law and Policy, the PEN American Center, the Center for Human Rights and Global Justice at NYU School of Law, and the ACS New York Lawyer Chapter presented:

Who Will Speak for the Child? Human Rights at Home and the Convention on the Rights of the Child

Roughly a year ago, the American Constitution Society for Law & Policy (ACS) published Catherine Powell's Human Rights at Home: A Domestic Policy Blueprint for the New Administration. In this plan for reaffirming and implementing the US commitment to human rights, many recommendations were made, including a call for "the ratification, accompanied by fully adequate implementing legislation, of important human rights treaties to which the United States is not yet a party." One of the treaties mentioned by name is the Convention on the Rights of the Child (CRC). The United Nations General Assembly unanimously adopted the CRC in 1989 and it was instituted as international law in 1990. As the 20th anniversary of its UN adoption passes, the US and Somalia remain the only two nations party to the UN that have not ratified this document.

In their vulnerability and lack of political power, children occupy a unique status in our society and, arguably, are most in need of safeguards to ensure their protection. Acknowledging these realities, the CRC was intended to be a comprehensive, legally-binding human rights treaty for the protection of children irrespective of national boundaries. What may be done to build momentum for CRC ratification? What role can lawyers and policymakers play? What role can writers and the arts play? In the legal and political struggle for human rights, writers have awakened the consciences of nations and reminded citizens of the values that undergird rights, a core belief of the PEN American Center. This panel brought together writers, legal scholars, and advocates for an evening of law and literature.

The panel included introductory remarks from Philip Alston, co-chair of the NYU Center for Human Rights and Global Justice, and featured:

  • Deborah Ellis, award-winning Author of Off to War, The Breadwinner Trilogy, and Three Wishes, among others.

  • Uzodinma Iweala, award-winning Author of Beasts of No Nation
  • Laura W. Murphy, President, Laura Murphy & Associates, LLC
  • Walter Dean Myers, award-winning Author of Dope Sick, Amiri & Odette, and Sunrise Over Fallujah, among others
  • Jonathan Todres, Associate Professor, Georgia State University Law School
  • Moderator, Nadine Strossen, Professor of Law, New York Law School

 

6:30 pm-8:30 pm
Monday, December 7, 2009
New York University Law School, Tishman Auditorium at Vanderbilt Hall
40 Washington Square South
New York, NY 10012

Living Online: Privacy and Security Issues in a Digital Age

Living Online: Privacy and Security Issues in a Digital Age

Our lives are increasingly lived online. A large number of Americans routinely exchange information in cyberspace for personal, business, and other purposes. What privacy and security issues present themselves in this relatively new and increasingly ubiquitous space? What particular privacy concerns might apply when specific entities, such as the government, hold or process our information? What particular considerations might apply when the information being transmitted is particularly sensitive, such as health care information or financial information? How do privacy, security, and information ownership concerns function when information is being exchanged on social networking sites?

The November 3, 2009 event featured a lunchtime keynote address by Christopher N. Olsen, the Assistant Director in the Division of Privacy and Identity Protection at the Federal Trade Commission. 

A panel discussion was held from 1 - 2:30 pm and featured:

  • Moderator, Jeffrey Rosen, Professor of Law at George Washington University and Legal Affairs Editor for The New Republic
  • Deborah C. Peel, MD, Founder and Chair, Patient Privacy Rights; Chair, Coalition for Patient Privacy
  • Lillie Coney, Associate Director, Electronic Privacy Information Center; Coordinator, Privacy Coalition
  • Alan Davidson, Director of Public Policy, Google

Tuesday, November 3, 2009
11:30 am - 2:30 pm
Center for American Progress
1333 H. Street NW, 10th Floor
Washington, DC 20005

After providing a keynote address at this event, Olsen noted in an interview with ACSBlog that the agency plans several forums for hearing input on the tackling online privacy concerns. Watch Olsen's interview below or download a podcast of it here.

 

ACS Symposium: National Security & Human Rights - Progress, Problems and Possibilities

October 15, 2009: Keynote Address by Assistant Attorney General David S. Kris

 

As the 5th anniversary of the Military Commissions Act approaches, and a few months after the 60th anniversary of the Geneva Conventions, the American Constitution Society for Law and Policy (ACS) hosted a half-day symposium on national security and human rights issues. The symposium included two panel discussions with a diverse array of experts and a keynote address by Assistant Attorney General David Kris.

The morning panel, "Justice for Detainees: A Work in Progress?" featured Deborah Pearlstein, moderator, Visiting Faculty Fellow, University of Pennsylvania Law School; Jameel Jaffer, Director, ACLU National Security Program; Richard D. Klingler, Partner, Sidley Austin LLP; Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch; and Hope Metcalf, Lecturer and Project Director, National Litigation project of the Lowenstein International Human Rights Clinic, Yale Law School.

The keynote address was given by Assistant Attorney General for National Security David Kris. The afternoon panel, "The State Secrets Privilege: A Case for Reform?" featured David Cole, moderator, Professor of Law, Georgetown University Law Center; Amanda Frost, Associate Professor of Law, American University Washington College of Law; David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism; Vincent Warren, Executive Director, Center for Constitutional Rights; and Ben Wizner, Staff Attorney, ACLU National Security Program.

For more, coverage, click here

Voices Against Torture: Writers and Lawyers on the Way Forward

On Tuesday, December 16, 2008, ACS and the PEN American Center hosted a panel featuring writers and lawyers discussing their work and its relationship to combating torture. This evening of law and literature examined the roles that lawyers and writers have played, and continue to play, in exposing human rights abuses and in reminding nations of their human rights responsibilities. As lawyers have fought for legal rights to be enforced, writers have awakened the consciences of nations, reminding citizens of the values that undergird rights. This moderated conversation brought together novelists, journalists, legal advocates, and scholars.

The panel featured:

  • Moderator, Dahlia Lithwick, Senior Editor, Slate
  • Anouar Benmalek, Author of The Lovers of Algeria and Co-founder of The Algerian Committee Against Torture
  • Scott Horton, Professor of Law, Columbia Law School, and Contributor to Harper's Magazine
  • Elisa Massimino, Executive Director and C.E.O. of Human Rights First
  • Jane Mayer, Author of The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals and Staff Writer for The New Yorker

Tuesday, December 16, 2008
Judson Memorial Church
55 Washington Square South
New York, NY 10012

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