Category Archives: Law: Constitutional Law

I spotted a real howler in this morning's NY Times, and emailed the following request for a correction:

In “On a Very Hot Seat With Little Cover and Less Support” Sheryl Gay Stolberg writes,

“Congress has no power to remove the attorney general”

[URL]

This is not accurate. The Constitution provides a mechanism by which all civil officers of the United States can be removed by Congress. It is called impeachment. Article II, Section 4 of the Constitution specifies that “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

The Congress has only used this power against a Cabinet member once — William W. Belknap, secretary of war, was impeached by the House but acquitted by the Senate in 1876 — but the power unquestionably exists.

While this may seem a small matter, to a law professor, and I'd imagine any lawyer, it's a pretty big one. It may even matter politically.

Please run a correction in the print edition (I spotted the error in the print version) and append a fix to the online version.

Thank you.

Don't reporters who cover the federal government have to know the Constitution?

Oh well, Stollberg is still better than Elisabeth Bumiller whom Stollberg replaced on the White House beat.

Why not amend the Constitution to allow Presidents to serve any number of terms — but no more than two consecutive ones?

Not only would this make Bill Clinton a possible candidate again, but it would keep the virtues of the current term-limit rule — forcing a degree of regime change — while reducing both of the worst effects of lame-duck status: the pointless Presidency and the lack of constraint on politicians who know they need never face the voters again.

Not that it would do any good with the current office-holder, who is a lame duck no matter what as the electorate has (finally) soured on him, but you can’t have everything. (The cure to the current problem is already found in the Constitution.)

My friend Eric Muller has filed an amicus curiae brief on behalf of Karen Korematsu-Haigh, Jay Hirabayashi, and Holly Yasui in the pending 2nd Circuit case of Turkmen v. Ashcroft.

Eric's blog entry is Today I Am Filing An Amicus Curiae Brief Challenging Post-9/11 Racial Detention. The brief is available for download, and there's also an article in today's New York Times, Relatives of Interned Japanese-Americans Side With Muslims. As the article notes,

In recent years, many scholars have drawn parallels and contrasts between the internment of Japanese-Americans after the attack on Pearl Harbor, and the treatment of hundreds of Muslim noncitizens who were swept up in the weeks after the 2001 terror attacks, then held for months before they were cleared of links to terrorism and deported.

But the brief being filed today is a rare case of members of a third generation stepping up to defend legal protections that were lost to their grandparents, and that their parents devoted their lives to reclaiming.

“I feel that racial profiling is absolutely wrong and unjustifiable,” Ms. Yasui, 53, wrote in an e-mail message from San Miguel de Allende, Mexico, where she works as a writer and graphic designer. “That my grandmother was treated by the U.S. government as a ‘dangerous enemy alien’ was a travesty. And it killed my grandfather.”

…

Professor Muller said he drafted the brief on behalf of the three grandchildren to try to persuade the Second Circuit to reject what he considers the needless breadth of Judge Gleeson’s opinion. “Judge Gleeson’s decision paints with such a broad brush, there isn’t really any stopping point,” he said.

The judge held that under immigration law, “the executive is free to single out ‘nationals of a particular country.’ ” And because so little was known about the 9/11 hijackers, he ruled, singling out Arab Muslims for detention to investigate possible ties to terrorism, though “crude,” was not “so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise.”

The brief counters that the ruling “overlooks the nearly 20-year-old declaration by the United States Congress and the president of the United States that the racially selective detention of Japanese aliens during World War II was a ‘fundamental injustice’ warranting an apology and the payment of reparations.”

And, it adds, the district court’s deference to the government “ignores the tragic consequences of such deference” for 120,000 people of Japanese ancestry during World War II.

Bravo Eric (& his team)!

Jim Webb: a Senator who won't take no answer for an answer.

It feels like watching an updated Mr. Smith Goes to Washington.