Separation of Powers

In this era of divided government, opposing views originating from one branch of government and volleyed at another are often construed as threats to the separation of powers. The perceived threats cross party lines. President Barack Obama was heavily criticized for calling out the U.S. Supreme Court at his State of the Union address in 2010 for its decision in Citizens United v. FEC. In late 2018, Chief Justice John Roberts rebuked President Donald Trump after the president referred to a judge who delivered an unfavorable ruling as an “Obama judge.”

For most of this year, President Trump has resisted efforts by the Democratic-controlled House of Representatives to investigate his official conduct and business dealings, challenging the delicate balance that is the separation of powers outlined in the Constitution. After a White House meeting on Oct. 16, House Majority Leader Steny Hoyer, D-Md., reflected House leadership frustration, saying, “Never have I seen a president treat so disrespectfully a co-equal branch of the government of the United States.”  Read more … 

About
ABA Legal Fact Check

The late U.S. senator and diplomat Daniel Patrick Moynihan said, “everyone is entitled to his own opinion, but not his own facts.” In today’s fast-moving world, it is often difficult to distinguish between fact and opinion. Through our ABA Legal Fact Check, the American Bar Association will use case and statutory law and other legal precedents to separate legal fact from fiction. Please feel free to pose a question or tell us how we are doing at abalegalfactcheck@americanbar.org

scales Recent legal news and the law behind it

Contempt
Contempt

On May 8, two legal developments in the nation’s capital intersected. The House Judiciary Committee voted to hold Attorney General William Barr in contempt of Congress; shortly afterward, a contempt of Congress citation in the House, which dated back to 2012 against then-Attorney General Eric Holder, was settled. Both AGs had refused to turn over documents subpoenaed as part of a House investigation.   Read more … 

Census
2020 Census
This summer, calls on twitter suggested conducting a boycott of the 2020 U.S. census if it included a question about U.S. citizenship. But under the law, avoiding even a single question on the census can carry potential criminal consequences, including a fine of up to $5,000.  Read more … 
Impeachment
Impeachment

Since the first impeachment proceeding in 1797, the U.S. House of Representatives has initiated impeachment proceedings more than 60 times against top U.S. civil officials, including against three U.S. presidents — Andrew Johnson in 1868, Richard Nixon in 1974 and Bill Clinton in 1998. President Donald Trump is the fourth. Under the U.S. Constitution, the House has the “sole power” to begin an impeachment inquiry, and the Senate alone has the power to try an impeachment case referred by the House.  Despite this long history, the impeachment process raises several questions related to congressional rules and constitutional law. Read more … 


Electoral College

This spring, numerous candidates for president expressed support for either abolishing or changing the Electoral College, which ultimately picks the U.S. president. The National Archives reports that over the past 200 years more than 700 proposals have been introduced in Congress to reform or eliminate the Electoral College – without any becoming law.  Read more … 

Electoral College

Asylum

If the U.S. is “full,” can it still accept additional immigrants who are seeking asylum? Under U.S. law and international accords, foreign nationals have certain legal rights for claiming refugee status and asylum, and the numerical limits depend on the status they seek.   Read more … 

Immigration Law

Citizenship

President Donald Trump kicked off a recent debate when he claimed he can use an executive order to end citizenship that is automatically granted to U.S.-born children of undocumented immigrants. “They’re saying I can do it just with an executive order,” he said, in an interview with the news site Axios. His position met strong opposition, including from influential members of his own Republican party. “You cannot end birthright citizenship with an executive order,” House Speaker Paul Ryan said flatly. Who’s right?  Read more … 

Birthright

Election Law

Victorious North Carolina congressional candidate Mark Harris, a Republican who beat his Democratic opponent by 905 votes, said he was not averse to a special election following allegations that a consultant working for his campaign illegally confiscated absentee ballots. “If this investigation finds proof of illegal activity … on a level that it could have changed the outcome of the election, then I would wholeheartedly support a new election,” Harris said. But who legally decides whether there should be a re-do?  Read more … 

Re-Vote

Emergency Powers

On Feb. 15, President Donald Trump signed a declaration of emergency to fund construction of a border wall, after ending the threat of another partial government shutdown but triggering another battle that likely will be headed to the federal courts.
“I expect to be sued,” President Trump said on Feb. 15. “I think we will be very successful in court. … Sadly, we will go through a process, and happily we will win.” Based on case and statutory law, what are the president’s chances of prevailing with the wall?  Read more … 

Emergency Powers

Border Force

Within hours of President Donald Trump announcing that U.S. military forces would be deployed to the U.S.-Mexican border, Defense Secretary James Mattis clarified the military mission. “We are not doing law enforcement,” he told reporters. “We do not have arrest authority. … There is no arrest authority under Posse Comitatus for the U.S. federal troops. That can be done but it has to be done in accordance with the law.” What does the law allow?  Read more … 

Troops at the Border

Deadly Force

Immediately after Chicago police officer Jason Van Dyke was found guilty on Oct. 4 of the second-degree murder of 17-year old Laquan McDonald, the officer’s lawyer said: “If police officers think that they can never fire against somebody that is acting the way Laquan McDonald was ... police officers are going to become security guards.” Is the lawyer right?  Read more … 

Deadly Force

White House Media

On Nov. 7, the U.S. Secret Service stopped CNN reporter Jim Acosta from entering White House grounds and took his media credentials after an incident earlier that day during President Donald Trump’s news conference. A video of the encounter appeared to show that Acosta brushed up against a White House intern who was dispatched to take away his microphone to keep him from asking further questions. “We will not tolerate the inappropriate behavior clearly documented in this video,” White House Press Secretary Sarah Sanders tweeted later that night. Six days later, CNN sued, seeking Acosta’s reinstatement, which a judge granted in a limited order on Nov. 16. Acosta's credentials were subsequently reinstated and CNN dropped the suit. Read more … 

Press Credentials

Confidentiality Agreements

Recent news reports indicate that White House staff have routinely signed non-disclosure agreements (NDAs) limiting what they can say about their public service. On Aug. 14, White House spokeswoman Sarah Huckabee Sanders observed that it is "common in a lot of places for employees to sign NDAs, including in government, particularly anyone with a security clearance." But are these agreements legally enforceable?  Read more … 

Confidentiality Agreements

Resign or Fire

President Donald Trump has indicated he is weighing the fate of Deputy Attorney General Rod Rosenstein. “My preference would be to keep him,” Trump said at a news conference in New York on Sept. 26 when asked if he planned to fire Rosenstein. “I would certainly prefer not doing it.” From a legal and procedural standpoint, it can matter whether a political appointee resigns or is fired.  Read more …  

Revoke Clearances

Revoking Clearances

On July 23, U.S. Sen. Rand Paul, R-Ky., tweeted that he would be meeting later in the day with President Donald Trump and would “ask him to revoke John Brennan’s security clearance!” Brennan is the former CIA director who has been outspoken in his criticism of the president. About three weeks later, the president revoked Brennan’s privileges and indicated more such actions were on their way.  Read more … 

Revoke Clearances

Treason

“Treason” has become a popular term in today’s lexicon. In July, former CIA Director John Brennan referred to President Donald Trump’s press conference with Vladimir Putin as “nothing short of treasonous." Last month, former Trump advisor David Bossie said former White House staffer Omarosa Manigault Newman “committed treason” against the president by detailing confidential information in her recent book. And on Sept 5, the president himself tweeted “TREASON?” in response to an anonymous senior official’s op-ed in The New York Times that detailed chaos in the White House.
Read more … 

Treason Tweet

Immigrant Rights

On July 5, President Donald Trump tweeted that undocumented or illegal immigrants should be immediately forced to leave the United States without any court review. “When people, with or without children, enter our Country, they must be told to leave without our... country being forced to endure a long and costly trial. Tell the people ‘OUT,’ and they must leave, just as they would if they were standing on your front lawn. Hiring thousands of ‘judges’ does not work and is not acceptable.” 
Read more …

Immigrant Rights

Above the Law

House Speaker Paul Ryan, a Republican from Wisconsin, was asked by reporters on June 6 for his reaction to a tweet by President Donald Trump that he could pardon himself and others to erase any convictions related to the special counsel’s probe of his campaign’s ties to Russia. “He shouldn’t, and no one is above the law,” Ryan responded. Two days earlier, Trump had tweeted, "As has been stated by numerous legal scholars, I have the absolute right to PARDON myself, but why would I do that when I have done nothing wrong?” It also followed the suggestion by Trump attorney Rudy Giuliani that a sitting U.S. president could not be indicted.   Read more …

Above The Law

Attorney-Client Privilege

On April 9, the FBI raided the New York law office and temporary residence of lawyer Michael Cohen. The next day his most well-known client, President Donald Trump, tweeted: “Attorney-client privilege is dead!” Trump’s tweet raises the question of how far the privilege extends. The confidentiality of communications between a client and his or her attorney is one of the oldest recognized privileges, dating back to at least Queen Elizabeth I in English common law.   Read more …

Attorney Client Privilege

Recusal

Testifying before a U.S. Senate Appropriations Committee in late April, U.S. Attorney General Jeff Sessions declined to say whether his recusal from campaign-related investigations also extends to the federal inquiry into President Donald Trump’s personal lawyer Michael Cohen. “I should not answer that question,” Sessions said, citing departmental rules about refraining from publicly discussing ongoing inquiries. “It would be inappropriate.”   
Read more …

Recusal

Student Protest

Amid planned walkouts nationwide by high school students in February, the superintendent for the Needville (Texas) Independent School District threatened three days of suspension for students who participated in such a protest. “Every choice has a consequence whether it be positive or negative. We will discipline no matter if it is one, fifty, or five hundred students involved,” Curtis Rhodes said. No suspensions have been reported and the superintendent’s position raises the question of student First Amendment rights.  Read more …

Student Rights

Chain Migration

In late January, amid the national debate on immigration, U.S. Sen. Chris Murphy, a Connecticut Democrat, tweeted: “Reminder: ‘chain migration’ is a made up term by the hardline anti-immigration crowd. Its purpose is to dehumanize immigrants. If you’re using that word, you’re declaring a side.” Read more …

Chain Migration

States and Firearms

Immediately after Florida enacted comprehensive legislation on March 9 to restrict the sale of some firearms and gun-related accessories, the National Rifle Association filed suit to stop the law from taking effect. NRA executive Chris Cox says the NRA is “confident that the courts will vindicate our view that Florida’s ban is a blatant violation of the Second Amendment.” The skirmish raises the legal question of how far can states go to control firearms.   Read more …

States Restrict Firearms

Foreign Influence in U.S. Elections

In mid-December, National Security Adviser H.R. McMaster was quoted as saying that U.S. officials were “increasingly concerned” that Russia was using “sophisticated campaigns of subversion and disinformation and propaganda … to polarize democratic societies.” This would be consistent with allegations of Russian interference in the 2016 U.S. presidential election. But such actions may not break U.S. law.  Read more …

Influencing Elections

Gun Control

The horrific shooting at a country music concert in Las Vegas on Oct. 1 renewed the unsettled national debate on gun control, including the legality of owning automatic weapons. Current state laws differ governing restrictions on types of firearms a person can own, and the U.S. Supreme Court has shown reluctance, except on occasion, to weigh in on matters dealing with the Second Amendment. Read more …

Gun Control

Sexual Harassment

In recent weeks, a steady stream of sexual harassment charges against men has affected various sectors of the U.S. economy. Some of the allegations could land in court, although experts suggest not all will be winnable cases. “You’ll see case after case where a woman was groped at work and the court will dismiss the case as a matter of law, finding that’s not sexual harassment,” University of Cincinnati law professor Sandra Sperino said on NPR in late November.  Read more …

Sexual Harassment

Revoking Citizenship

In November 2017, the U.S. Department of Justice filed lawsuits to revoke the U.S. citizenship of five immigrants who concealed in their naturalization applications that they pleaded guilty to sexually abusing minors in incidents said to occur before they were naturalized. Amid a federal crackdown on immigrants, the lawsuits raise questions of whether and when can a person’s citizenship be revoked. Read more …

Revoking Citizenship

National Anthem

At an Alabama political rally on Sept. 22, President Donald Trump said, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a (expletive) off the field right now. Out. He’s fired. He’s fired!'” But can government leaders or employers force individuals to participate, in the customary way, in national rituals? Read more …

National Anthem Controversy

Religious Displays

In late summer of 2017, a resident asked the village board of Mundelein, Ill., a northwest suburb of Chicago, to place a Hanukkah menorah in a public park next to the traditional Christmas tree. Village attorney Charles Marino provided this guidance: “My (legal) research has indicated that a Christmas tree or a holiday tree is secular,” he told the Chicago Tribune. “It is not a religious symbol. It is neutral. However, a menorah is a religious symbol and a creche is a religious symbol. …And so, a safe harbor is where the village is right now.” The Mundelein Village Board turned down the request.  Read more …

Religious Displays

Seating Roy Moore

In a media appearance a few days before the Dec. 12 special election in Alabama, U.S. Sen. Susan Collins, a Republican from Maine, indicated that her colleagues would have to seat controversial Alabama Republican Roy Moore in the U.S. Senate if he wins. “If he is elected, there are no grounds under the Constitution to fail to seat him,” Collins said. But Moore lost the race.  Read more …

Roy Moore

Hate Speech

“Hate speech is not protected by the First Amendment.” – Portland Mayor Ted Wheeler after two men were killed in the spring of 2017 when they confronted another individual who was uttering anti-Muslim slurs. But that analysis is wrong. 
Read more …

Hate Speech

Courts and Tribunals

The Trump administration has filed charges in federal civilian court against Sayfullo Saipov, a non-citizen, arrested for driving a truck killing eight people down a bike path on Oct. 31 in New York City. U.S. Sen. John McCain, among others, said Saipov should face a military tribunal.  Read more …

Trying Non-Citizen Terrorists

Broadcast Licensing

On Oct. 11, President Donald Trump suggested that NBC invited a challenge to its broadcast license because of its reporting on his administration. But on what grounds can a broadcast license be successfully challenged?  Read more …

Broadcast News

Magnitsky Act

On Oct. 22, 2017, American-British financier Bill Browder tweeted, “Not only did Putin add me to the Interpol list, but the US simultaneously revoked my visa." Browder is the hedge fund manager turned human rights activist who championed the Magnitsky Act, a 2012 U.S. law aimed at punishing Russians officials involved in corruption, which was passed following the mysterious 2009 death of Browder’s Russian lawyer while in custody. The U.S. government quickly reversed itself, saying Browder’s revocation was an administrative mistake.  Read more …

Magnitsky Act

Forced Evacuation

With hurricane season here, state and local authorities have the lawful power to order mandatory evacuations to protect lives either before or after a natural or man-made disaster. But residents in the path of a storm may believe these orders force them to choose between following the law and protecting their property.  Read more …

Forced Evacuation

Executive Orders

The U.S. Supreme Court is considering the constitutionality of President Donald Trump's travel bans, which were done through executive orders. Among other issues, the actions have raised the issue: What are the limits on presidential executive orders?  Read more …

Executive Orders

Flag Burning

“Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or a year in jail!” then President-elect Trump tweeted in mid-November 2016. Can a person be punished for burning or desecrating the American flag? If they own the flag, they cannot, according to two Supreme Court decisions.  Read more …

Flag Burning

Free Speech

When a Google engineer was fired this month after his 10-page document chastising the company's diversity efforts became public, it raised questions about whether free speech is protected in the workplace. There is no blanket protection, and the extent of protection depends on many factors.  Read more …

Free Speech

Presidential Pardons

A  U.S. president has broad powers to issue pardons to individuals involved in criminal investigations. But are those powers unlimited? No, there are some limitations such as for offenses on a state level. And, it is unsettled whether a president can pardon him- or herself.  Read more …

Presidential Pardons

Affirmative Action

On August 1, 2017, the Justice Department announced plans to investigate and possibly sue universities over affirmative action admissions policies determined to discriminate against white applicants, according to a New York Times report. Is it constitutional for universities to consider affirmative action in college admissions?  Read more …

Affirmative Action

Changing the Judiciary

Calls to break up the U.S. Ninth Circuit Court of Appeals are floated on a regular basis. They surfaced again in late April after the U.S. Ninth Circuit Court of Appeals ruled against President Trump's immigrant travel ban. Could such a breakup be done? Yes, but breaking up, even for a federal judicial circuit, can be hard to do.    Read more …

Ninth Circuit

American Bar Association

Model Rules and Professional Conduct