December 2016

  • December 29, 2016
    Guest Post

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    Supporters of Sen. Jeff Sessions’s nomination to become attorney general defend his civil rights record by pointing to his role in passing the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder cocaine offenses. In the context of Sen. Sessions’s overall civil rights record and his opposition to criminal justice reform, even full-throated leadership on this issue would not be enough to overcome concerns about him becoming our nation’s top law enforcement officer, but given efforts to use this law to deflect from that overall record, a closer look is necessary. I was the lead White House legislative affairs staffer on the Fair Sentencing Act and I can tell you that Sen. Sessions’s efforts were only somewhat helpful—and since then have been a far cry from leadership.

    Background and History

    In 1986, Congress established new sentences for cocaine offenses: possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggered a mandatory minimum five-year sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggered the same sentence. This disparity was often referred to as a 100:1 ratio and because more than 80 percent of crack cocaine offenders have been African American, the disparity has had an undeniable racial impact.

    In 2001, Sen. Sessions introduced legislation to reduce this disparity to 20:1. However, his approach was to only slightly increase the amount of crack cocaine necessary to trigger a mandatory minimum sentence—and to couple that with decreasing the amount of powder cocaine necessary to trigger a mandatory minimum sentence.

  • December 22, 2016
    Guest Post

    *Read the open letter to President-elect Trump here.

    Dear President-elect Trump,

    I believe you love this country as much as I do. Only someone with a compelling sense of purpose would endure such a grueling campaign, which will only be dwarfed in difficulty by the demanding, often thankless term of service that follows. To be sure, boldly and cautiously guiding the United States from the helm, while simultaneously serving as leader of the free world, are arduous and exhausting duties in any era. Yet the present moment is characterized by greater complexity, nuance and potential for conflict than perhaps has ever existed in human history. The burden on your shoulders – for maintaining America’s position as a linchpin of the Western-led liberal world order; attending to the needs of Americans at home and abroad; cherishing and working to uphold peace; safeguarding the integrity of American institutions and rule of law so they enable every American to achieve his or her potential; and offering light, hope and help to those suffering outside our borders – is truly immense.

    No matter how heavy these responsibilities become nor how different our politics might be, I promise that I and others, will be always be here to help move our country forward, as well as to labor mightily to prevent backsliding when the need arises. One of the bedrocks of our democracy is truth. So over the next few years, as you feel you could benefit from the knowledge, analytic skill and passion for truth and justice embraced by young lawyers like myself, I hope that you will reach out.

    In the meantime, you may perceive Open Letters such as this as an affront to your leadership. Inasmuch as they may represent acts of resistance, they are born out of our deep love of country, respect for our democratic institutions, and affirmation of the worth, dignity and equality of our fellow citizens. Former President Jimmy Carter recently reiterated the importance of upholding human rights at home and abroad, since another cornerstone of our democracy is equal rights and protection under the law. The potential for unequal treatment and unequal opportunity under an Attorney General Jeff Sessions is a profound concern motivating the writers and signatories of this letter. When it seems that entire communities, vulnerable people or marginalized groups are, or may in short order fall, under attack, acts of defiance may become urgently necessary.

  • December 21, 2016
    Guest Post

    by Brian Simmonds Marshall, Policy Counsel and Veronica Meffe, Legal Fellow; Americans for Financial Reform

    No president has removed an appointee for cause. Most presidents have not attempted it and the three times a president has tried to remove an official with for-cause protections—on the ground that the for-cause protection were invalid (not that there was cause for removals)—the courts stopped the president from doing so. Those simple and important facts have been lost amid cries from opponents of strong consumer protection to remove Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB).

    By statute, the president may remove the CFPB’s Director only “for inefficiency, neglect of duty, or malfeasance in office,” the same standard that the Supreme Court held to be constitutional in Humphrey’s Executor (1935). In October, a D.C. Circuit panel ruled that the CFPB Director, as the single-head of an independent agency, could not be so protected. But that decision is now under review by the full D.C. Circuit, which could vacate the panel’s ruling in late December or early January by agreeing to hear further argument in the case.

    Assuming the CFPB director’s statutory protections against arbitrary removal remain in effect, history suggests that he will not be removed from office. We reviewed Steven Calabresi and Christopher Yoo's exhaustive history of the removal power, The Unitary Executive, and it does not identify a single for-cause removal in the post-Humphrey’s era.  

    In the handful of instances the courts declined to stop a removal, it was because the court held that the official did not enjoy protections against removal. For example, in Martin v. Tobin (9th Cir. 1971) and Morgan v. Tennessee Valley Authority (6th Cir. 1940), the courts of appeals held that the officers in question filled purely executive roles and therefore served at the pleasure of the president. Similarly, in Swan v. Clinton (D.C. Cir. 1996), the court held that the official challenging his removal did not have for-cause protections because his term had already expired. And in that case, despite ruling against Swan, the D.C. Circuit acknowledged that the case was justiciable and the court would have had the power to allow him to serve until his successor was confirmed if his removal were in fact illegal.  

  • December 20, 2016

    by Caroline Fredrickson

    Chuck Jones deserved better, especially from the president-elect who tweeted:

    “Chuck Jones, who is President of United Steelworkers 1999, has done a terrible job representing workers. No wonder companies flee country!”

    Roughly 75 minutes later, the soon-to-be head of state posted another tweet:

    “If United Steelworkers 1999 was any good, they would have kept those jobs in Indiana. Spend more time working-less time talking. Reduce dues.”

    For 30 years, Jones has represented workers in Indianapolis, including employees at plants owned by air conditioner manufacturer Carrier and Rexnord, a maker of values and ball bearings for heavy equipment. 

    On Dec. 15, Jones and other workers received notice that Rexnord would close the plant and move the roughly 300 jobs to Mexico despite a “no more” tweet from Trump. This notice from Rexnord followed similar news about layoffs from Carrier.

    2016 was a tough year for Jones. He spent the year in negotiations with manufacturers who in one instance expect to save $65 million by sending jobs in the U.S. to Mexico. In a Dec. 8 article about Carrier, Jones explained that “We couldn’t match that unless we were willing to cut wages to $5/hour and cut all benefits.”

  • December 20, 2016
    Guest Post

    by Jeff Mandell, Senior Associate at Stafford Rosenbaum LLP in Madison, Wisconsin. Jeff is also the Chair of the newly formed ACS Madison Lawyer Chapter.

    Yesterday’s vote by the electors of each State brought to a close the process that began with Election Day on Nov. 8. Or, more precisely, in various states, it began days or weeks earlier, when early voting opened and absentee ballots became available. This year, more than any before, I have been particularly focused on the process as well as the outcome. My efforts as a voter-protection volunteer reassured me that—setting the consequences of Wisconsin’s strict voter ID law to one side—there were no massive malfunctions in Wisconsin’s election day operations, but it also underscored how easy it is for individual votes, and voters, to fall through the cracks.

    I woke hours before dawn on Election Day, picked up a friend and drove two hours on a narrow highway. I had volunteered to monitor complaints and concerns submitted by poll watchers. The Democratic Party of Wisconsin sent me to Oshkosh, where, with two other lawyers, I would field reports from poll observers spread across nine counties. Before the polls opened at 7:00 a.m., we opened our laptops in the dining room of a small house, reached out to the volunteers at polling places around our area and logged into a website on which we could follow reports from every one of the state’s 3,620 precincts. Fortified with a mountain of snacks, we settled in for the 13 hours the polls would be open.

    Because I knew I would be spending Election Day in Oshkosh, I voted two weeks in advance. I knew Wisconsin allowed early voting but, at the time I cast my ballot, I had not yet studied state election law in preparation for my voter-protection duties. When I had voted early in other states before, my vote had been counted at the time I voted. But in Wisconsin, early voting is actually a form of absentee voting and absentee votes are not counted in advance.