What "Breaking Up" the 9th Circuit Means

In an "exclusive interview" with the Washington Examiner, President Trump shared his views on breaking up the 9th Circuit Court of Appeals. As students in my courses know, the federal appeals court in the United States is divided up geographically (see the map above). The 9th Circuit is huge, and discussions about breaking it up are nothing new. However, the reasons usually given for breaking it up is its size, not its ideology. To be sure, conservatives in the United States loath the 9th Circuit because of its perceived liberal bias, but breaking it up into smaller pieces will not change the ideology of the judges serving in this part of the country. Nor will it stop the so-called "forum shopping" mentioned by the President in this "exclusive interview."

The lines in the interview that really caught my attention are these:

"Absolutely, I have," Trump said of considering 9th Circuit breakup proposals during a far-ranging interview with the Washington Examiner at the White House. "There are many people that want to break up the 9th Circuit. It's outrageous."

"Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that's like, semi-automatic," Trump said.

From reading this, I cannot help but think the President believes that breaking up the Ninth Circuit means he gets to fire the judges. Of course he does not. Instead, what breaking up the Court would mean is a few new geographical (or regional) circuits would be formed, and current judges from those regions would simply remain on the new appeals court for their region.  Furthermore, there is nothing in the process of breaking up the circuit that would prevent the dreaded forum shopping that results in "semi-automatic" rulings. 

Do we have a separation of powers problem?

The National Constitutional Center recently had a provocative post entitled "Does the separation of powers need a rewrite?" The gist of the article is that the standard used by the Supreme Court to judge whether the President has overstepped the power given to him by the Constitution is unclear and in need of a fine tuning. Students in my courses where we discuss executive power are encouraged to look over this article.

The President Alone Cannot Overhaul American Immigration Policy

The New York Magazine's Daily Intelligencer has a great article that makes the point I have been emphasizing in class for the past two weeks: rarely can the President alone overhaul American domestic policy. As I mentioned in my Constitutional Law class yesterday, President Trump this week issued an executive order to make it harder for H-1B Visas to be issued. The H-1B Visa is given to highly skilled workers where an employer claims that there are no Americans who can do the job. The President's order doesn't change the law, it simply enforces it differently.

Just how is explained very nicely in the NY Mag piece:

The order will direct the the departments of Labor, Justice, State, and Homeland Security to conduct reviews of the H-1B visa program and propose reforms. The Trump administration says current rules are going unenforced, and they want to see changes that ensure the visas are only going to “the most highly skilled workers.” According to the Washington Post, administration officials described various ways this could be accomplished: "The officials said reform could first come through administrative changes, such as raising the visa application fees, adjusting the wage scale to more accurately reflect prevailing salaries in the tech industry, and more vigorously enforcing violations. It could also change the lottery system to give foreigners with U.S. master’s degrees a leg up."

In short, as head of the Executive Branch, President Trump is asking an executive branch agency to enforce existing rules more forcefully. He is not changing the law, he is simply asking that it be enforced differently!

But as the article points out:

Signing an executive order lets Trump highlight his commitment to fulfilling his promise to protect American workers, but he can’t do a thorough overhaul of the program on his own. Changing certain fundamental elements, like how many visas are awarded each year, requires action from Congress.

This illustrates very nicely the point I was trying to make in class: the President can change how a law is enforced, but he cannot change the law itself. Only the Legislative Branch can do that.

Five Myths About the Start of the Revolutionary War

The National Constitution Center posted yesterday five myths about the start of the Revolutionary War. A good read for history buffs.

Executive Branch Appointments

In my last post before the break, I directed readers to the National Constitution Center's page explaining how Supreme Court Justices are selected. Another selection process that has been underway since January and continues is the appointment of officers of the Executive Branch. While most of the various department heads have now been appointed and confirmed, there remain a large number of lower, yet important positions that remain to be filled. Many blame the President himself for the number of vacancies that still remain, but the process for filling these positions could arguably be equally to blame.

As the National Constitution Center (NCC) points out:

The Constitution, in Article II, Section 2, says that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for.”The Appointments Clause allows the President to make nominations for appointed positions like cabinet officers, but the Senate controls the process, including the rules that allow a nomination vote to get to the full Senate floor. 

 Read the rest of the NCC post to learn more about this process.