In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence

During 2005, President George W. Bush appointed Federal Circuit Court Judges John G. Roberts and Samuel A. Alito to the U.S. Supreme Court. These appointments were the culmination of years of examination of the work, character, and temperament of both men commencing during the 2000 presidential transition. Our evaluation included face-to-face interviews; an analysis of judicial opinions, speeches, and writings; and conversation with friends, colleagues, and court experts. Based on this work, a select group of Bush Administration officials developed a set of predictors that formed the basis of our recommendation to President Bush that he elevate Circuit Court Judges Roberts and Alito to the Supreme Court. This Article explains how Judges Roberts and Alito were evaluated, and our assessment of how they would perform on the Court. The Article then examines whether the Bush Administration correctly predicted how these two men would decide cases before the Court by reviewing some of their most significant opinions to date. We begin with an explanation of the process used in developing our recommendation to the President followed by a thorough examination of the factors we weighed (such as political considerations and confirmation challenges). The Article includes a thorough, though certainly not exhaustive, review of the circuit court opinions of each man. This early body of work is then compared to their most recent work on the Supreme Court in certain key areas of the law. There is a remarkable, though not unexpected, consistency between Justices Roberts’s and Alito’s jurisprudence on the circuit courts and on the Supreme Court. Based on this comparison, the Article concludes that the Bush Administration successfully anticipated that Chief Justice Roberts and Justice Alito would decide cases using a consistent set of principles including judicial restraint, respect for precedent, and statutory interpretation based on plain language

Presidential Powers, Immunities, and Pardons

This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office. Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. Nonetheless, mindful of the President’s duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon

Advising the President: The Growing Scope of Executive Power to Protect America

The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits of his power to protect America. When I became Attorney General in 2005, I assumed the primary role for that responsibility. In this article, I will explain how I approached this question then from an insider\u27s perspective, based on a straightforward framework of necessity balanced against accountability

An Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won\u27t Solve Our Problems

The concerns over another terrorist attack, a sluggish economic recovery, high unemployment rates, and state and local budget deficits have propelled immigration policy to the forefront of political debate in the United States. America’s current approach to immigration is an abject failure, undermining the rule of law and our national security. This has prompted various legislative proposals relating to citizenship, including amending the U.S. Constitution to make clear that children born in the United States to unauthorized immigrants are not entitled to birthright citizenship. The Article presents the reasons why these various state and federal level “solutions” are either ineffective in solving our immigration crisis or likely unconstitutional. Instead, the President and Congress should invest their time and energy to pass comprehensive immigration reform on the federal level

Presidential Powers, Immunities, and Pardons

Special Counsel Robert Mueller is conducting an investigation into Russia’s interference in the 2016 presidential election and the possible coordination and cooperation with the Donald Trump presidential campaign. The investigation has raised numerous legal questions with serious political and legal implications. Chief among them is whether a sitting President can be indicted and prosecuted for criminal wrongdoing. A related question is whether and to what extent, in the event of an official investigation, a sitting President can be compelled to provide evidence—in the form of oral and written testimony, as well as documentary evidence. Finally, assuming there is potential criminal liability, does a sitting President have the power to issue a self-pardon? These are relatively novel questions in the law, and it is not surprising there is little guidance from the courts given the reluctance by most judges to weigh in on potentially serious political questions. This Article intends to clarify some of the more difficult legal issues in our nation’s separation of powers jurisprudence. In order to afford the President the flexibility and discretion necessary to discharge presidential duties, the courts are almost certainly going to recognize total immunity from the criminal process for the President with respect to official conduct. The treatment of unofficial conduct is less predictable. Based on precedent and our nation’s founding principles of equal justice and fairness, the courts are likely to hold that a sitting President is not above the law and thus does not enjoy immunity from criminal prosecution for unofficial acts or conduct unrelated to his or her fitness to hold office. However, because of separation of powers considerations, the courts are likely to require deferral of any such prosecution until the President no longer holds office. Although not as clear, constitutional considerations would likely also require deferral of any investigation or indictment, at least those requiring the direct and material participation of the President. On the other hand, the President can be compelled to produce certain documentary evidence when doing so is necessary and would otherwise be unavailable in connection with a criminal investigation. The argument for presidential immunity with respect to production of evidence is stronger, though likely not absolute, with respect to oral testimony. Nonetheless, mindful of the President’s duties, the courts are likely to afford the President great latitude in the time, place, and manner of providing oral testimony. Finally, there is nothing in the Constitution that expressly prohibits or limits the President from issuing a self-pardon

The Growing Regulatory State of Banking

Our country has often struggled with finding the right balance between too little and too much regulation. Some regulation and oversight is necessary--if for nothing more than to level the playing field. The danger, of course, is that government officials often do not fully appreciate how the heavy hand of regulation affects business, nor anticipate how legislation will affect the markets long term. Lawmakers in several states have introduced resolutions calling on Congress to spit up big banks by separating traditional banking services and investment banking. Five years after the financial crisis, these state resolutions show there is still public anger toward big banks. If these proposals gain enough traction in state legislatures, a growing number of members of Congress may feel pressure to support this effort

Waging War Within the Constitution

This Article examines the United States\u27 response to the September 11, 2001 attacks by Al Qaeda from my perspective as Counsel to the President and then later as Attorney General. It reviews the actions of government lawyers and how federal courts have judged the implementation of U.S. government policy. It explains that U.S. government officials quickly understood that our nation was confronted with a non-state enemy fighting an unconventional war. This forced us to make a number of difficult decisions quickly about how best to fight this threat in a manner consistent with the United States\u27 domestic and international legal obligations. Soon following the attacks, President George W. Bush and the U.S. Congress determined, in essence, that the actions against the United States were more than crimes. The Authorization for the Use of Military Force, passed by Congress on September 18, 2001, reflected a belief that the murder of over 3,000 innocent Americans constituted an act of military aggression against the United States. In the months following the September 11, 2001 attacks, the U.S. government declared that, as a matter of law: (1) the Geneva Conventions did not apply to the conflict between the United States and al Qaeda and (2) members of al Qaeda and the Taliban were not entitled to prisoner of war protections under the Geneva Conventions. These actions formed the foundation of subsequent decisions, including the detention policy at Guantanamo Bay, Cuba. There were, at times, strong and differing views within the Bush Administration and Congress about these issues

An Immigration Crisis in a Nation of Immigrants: Why Amending the Fourteenth Amendment Won\u27t Solve Our Problems

The concerns over another terrorist attack, a sluggish economic recovery, high unemployment rates, and state and local budget deficits have propelled immigration policy to the forefront of political debate in the United States. America’s current approach to immigration is an abject failure, undermining the rule of law and our national security. This has prompted various legislative proposals relating to citizenship, including amending the U.S. Constitution to make clear that children born in the United States to unauthorized immigrants are not entitled to birthright citizenship. The Article presents the reasons why these various state and federal level “solutions” are either ineffective in solving our immigration crisis or likely unconstitutional. Instead, the President and Congress should invest their time and energy to pass comprehensive immigration reform on the federal level

Drones: The Power to Kill

After the terrorist attacks on September 11th, 2001, the Bush Administration began the use of unmanned armed aerial drones to pursue targets in Afghanistan and Pakistan. The Obama Administration has continued this policy, expanding it to pursue substantially more targets in Yemen and new ones in Pakistan. This Article analyzes the Obama Administration’s procedures for placing American citizens on the list of targets for drone strikes and proposes additional measures that Congress and the President can take to ensure that the procedures comply with constitutional guarantees of due process. This Article uses Supreme Court precedents on enemy combatant designations and trials as a source of due process standards. It argues for the following steps: (1) the establishment of an “enemy combatant” definition specific to drone targets; (2) a requirement that the President notify Congress of any potential U.S. citizen target and of any executed strike; (3) verification, immediately before the strike, that the American target continues to meet the definition of enemy combatant; and (4) the opportunity for an advocate of the target to challenge the classification before a neutral decisionmaker