Trump Orders Could Gum Up The Works At Enviro Agencies

October 11, 2019

President Donald Trump’s executive orders aimed at curtailing federal agencies’ use of informal guidance in policymaking could prevent agencies like the U.S. Environmental Protection Agency and Department of Energy from reacting quickly to industry problems. The regulated community expects overall relief from the orders, but also knows the change means that when businesses need environmental regulatory clarity, they could get bogged down in lengthy rulemakings and subsequent litigation. … “The short answer is: the more rulemaking, the more litigation,” said Joseph Goffman, a former Obama-era EPA official who is now the executive director of Harvard Law School’s Environmental and Energy Law Program. “The increased burden will fall on DOJ if so, as the agency tends to engage in consultation with stakeholders even on guidance and sometimes puts out draft guidance for comment.”

Warren Supports ‘Sectoral Bargaining.’ Here’s What That Means

October 11, 2019

Presidential candidate Sen. Elizabeth Warren, D-Mass., is getting some attention for her recently released labor platform, which focuses on unions and “sectoral bargaining,” a concept new to most Americans. Sectoral bargaining is when an entire field or industry agrees on basics, such as safety standards or minimum wages, rather than each company bargaining with its own workers. Benjamin Sachs, professor of labor and industry at Harvard Law School, said it’s worth noting because union membership has decreased in the United States. He said he thinks that’s partly because of the way businesses or enterprises handle their bargaining now. “The problem with enterprise bargaining,” he said, “is that as soon as you have a union in one enterprise, that puts that enterprise at a competitive disadvantage with all the other enterprises in the same market.”

A living witness to nuclear dystopia

October 10, 2019

First came a flash. Thirteen-year-old Setsuko Nakamura felt as if she were drifting skyward. And then darkness. Seventy-four years later Setsuko still remembers the moment of detonation after the U.S. dropped the atomic bomb on Hiroshima, the first of two exploded over the island nation, a deployment that proved so horrendous the weapons have never been used since. “That very morning I was at the military headquarters, not at the school,” she told a rapt audience at Harvard Law School on Tuesday as part of the University’s Worldwide Week. Instead of being in class on Aug. 6, 1945, Setsuko was reporting for her first day of work, as one of the thousands of students the government mobilized to provide cheap labor during the wartime shortage. … “The eyewitness accounts of Setsuko and other survivors provide a vivid reminder of the human consequences of nuclear weapons,” said Bonnie Docherty, associate director of Armed Conflict and Civilian Protection and lecturer on law at the Law School’s International Human Rights Clinic. During negotiations for the U.N. treaty, the clinic provided legal advice and advocacy support to ICAN.

Stalemate This Week In The Impeachment Inquiry. What Happens Next?

October 10, 2019

A war of words and a stalemate in Washington this week, after the White House declared that it will not cooperate with the impeachment inquiry. President Trump tweeted that the Democratic-led House inquiry was “a totally compromised kangaroo court.” Democrats said the president is obstructing justice, and vowed to press on. So, what happens now? Guests: Noah Feldman, professor at Harvard Law School. He tweets @noahrfeldman. His piece in the New York Times is called “This Is a Constitutional Crisis. What Happens Next?” He tweets @noahrfeldman. Nancy Gertner, former Massachusetts federal judge, senior lecturer at Harvard Law School and WBUR legal analyst. She tweets @ngertner.

Trump’s Defiance of the House Inquiry Is Hard to Defend

October 10, 2019

An article by Cass Sunstein: The White House’s fierce response to the impeachment inquiry by the House of Representatives, calling the enterprise “an unconstitutional effort” and a violation of “constitutionally mandated due process,” seems to make one commitment: noncooperation. The key sentence in the eight-page letter, signed by White House counsel Pat A. Cipollone, is this: “Given that your inquiry lacks any legitimate constitutional foundation, any pretense of fairness, or even the most elementary due process protections, the Executive Branch cannot be expected to participate in it.”

The Impeachment Loophole No One’s Talking About

October 10, 2019

A nugget of political arithmetic is suddenly everywhere: “Two-thirds majority.” This is the share of votes required to convict President Trump in an impeachment trial in the United States Senate. That’s 67 senators, if you’re counting—or, in the glass-half-empty variation, the number of Republican senators required to jump ship is 20. … “The Constitution contains quorum requirements [elsewhere] and clearly distinguishes between percentages of a particular chamber and percentages of ‘members present,’” said Laurence Tribe, a professor of constitutional law at Harvard Law School and the co-author of the book To End a Presidency: The Power of Impeachment. “That language in the provision for Senate conviction on impeachment charges is quite deliberate, creating precisely the possibility” described above.

Impeachment: Chief Justice John Roberts would be the ‘umpire’ in Senate trial of President Trump

October 10, 2019

The late Chief Justice William Rehnquist was a busy man on Jan. 20, 1999. The impeachment trial of President Bill Clinton was in its second week, and Rehnquist had to stop presiding over an oral argument at the Supreme Court, cross the street, and preside over the Senate. One of the lawyers arguing before the high court that day was John Roberts. Once one of Rehnquist’s law clerks at the high court, Roberts could be juggling the same two jobs as his former boss soon. … Restraint might be difficult in the current political environment, however. Richard Lazarus, a Harvard Law School professor and Roberts’ roommate when both were students there in the 1970s, says Senate Democrats and Republicans worked together to set rules for the Clinton trial. That may be harder this time around. “He knows that when he crosses First Street, he’s going to be putting himself right in the middle of the workings of the political branch,” Lazarus says. “He’s going to work hard to keep above the fray.”

Trump’s Sweeping Case Against Impeachment Is a Political Strategy

October 10, 2019

Breathtaking in scope, defiant in tone, the White House’s refusal to cooperate with the House impeachment inquiry amounts to an unabashed challenge to America’s longstanding constitutional order. In effect, President Trump is making the sweeping assertion that he can ignore Congress as it weighs his fate because he considers the impeachment effort unfair and the Democrats who initiated it biased against him, an argument that channeled his anger even as it failed to pass muster with many scholars on Wednesday. … Jack Goldsmith, a Harvard Law School professor and former senior Justice Department official under President George W. Bush, said Mr. Trump’s position was more political than constitutional. “The White House letter’s legal objections don’t have merit,” he said. “The letter, like the ‘official impeachment inquiry’ itself, is a hardball tactic designed to achieve maximum political advantage” before the public.

Will Puerto Rico Still Be Allowed to Govern Itself?

October 9, 2019

An op-ed by Nikolas Bowie: In 1947, Congress passed and President Harry Truman signed a law giving the people of Puerto Rico the right to elect their own governor. Until then, all territories of the United States, including Puerto Rico, had been governed by men appointed by the president and confirmed by the Senate. Most governors had been known more for their relationships to the president than, say, for their ability to speak Spanish. But after that 1947 law, Puerto Rican voters elected Luis Muñoz Marín to begin what would become a transformative governorship. Even as more recent governors have resigned in disgrace, democratic self-government in Puerto Rico has remained. But that could change. Next week, the Supreme Court is scheduled to consider a case that could radically undermine the ability of over four million American citizens — in Puerto Rico, other territories and even the District of Columbia — to elect their own chief executives.