Volume 45 Begins with Myriad Constitutional Issues to Cover
The Hastings Constitutional Law Quarterly (CLQ) editorial board is eager to start our final year of law school and to start editing and publishing the forty-fifth volume of our journal. CLQ is special in that our journal is the oldest journal in the United States devoted solely to scholarship on constitutional law.
Studying in San Francisco, we are also privileged to live in a city so steeped in the expansion of civil rights. Our law school was the first in the West to admit a woman; the lounge in our building is named after Clara Foltz — who was also the first person to propose the creation of a public defender’s office. From our journal office, we can see San Francisco City Hall, where the late Supervisor Harvey Milk led so many in the journey for gay rights and where Senator Dianne Feinstein became the first woman to be the president of the Board of Supervisors and the city’s first woman mayor. Hastings alumnae such as Senator Kamala Harris and Congresswoman Jackie Speier are ably representing us in Washington.
We are especially excited to be studying and publishing articles on constitutional law at this very time due to the heightened interest in the public in general. Indeed, many of us have taken Constitutional Law I and II, but only through recent news events have we learned about the Emoluments Clause or the 25th Amendment!
Because of the number of consequential constitutional questions currently in play in America, we have decided that this volume, we will publish articles exclusively on U.S. constitutional law. Our first issue will be published in late October and will have the theme Know Your Rights! Stay tuned and follow our new website for further information.
We get a lesson in constitutional law just by opening our web browser every day. Here are some of the issues CLQ is currently following.
Election Integrity Commission: The President believes that millions of illegal votes were cast in November’s election so he created a commission to investigate fraud. But, a majority of states’ Secretary of State have rejected the President’s request to provide voter data to the commission led by Kansas Secretary of State Kris Kobach. While Kobach has claimed that the commission will keep voter data secure, the White House has released a trove of emails from voters submitting comments on the commission’s work. Many voters are concerned that the collected data will be used in a partisan and/or targeted fashion. Moreover, former Secretary of Homeland Security Michael Chertoff warned of vulnerability to hacks from foreign actors if all data is collected in one place. So far, a number of lawsuits have been filed on the commission’s work, including by the ACLU, the NAACP Legal Defense and Educational Fund, the Lawyers’ Committee for Civil Rights Under Law, Common Cause, Electronic Privacy Information Center, and Public Citizen. Access to the voting box for all Americans is something that CLQ is very interested in and will continue to follow throughout the year.
Equal Opportunity for Transgender Americans: On Wednesday, the President announced via Twitter that he will ban transgender Americans from serving in the military. His announcement came as a shock to Pentagon leaders and troops, as it was just a year ago that the Department of Defense started a process of fully integrating trans servicemembers and allowing them to serve as their authentic self. Veterans groups across the US condemned the announcement as discriminatory and counter to military effectiveness and diversity and inclusion goals. Legal commenters immediately called the plan facially unconstitutional and that challengers will likely prevail when challenged in court. A group of 45 Senators have sent a letter to the Pentagon asking that transgender troops not be discharged until an ongoing review is complete. While the tweet does not equate to a full-fledged personnel policy yet, it did mark a continuation of the Trump administration’s views toward protections for minority groups. (Also this week, the Department of Justice filed an amicus brief arguing that Title VII does not protect gay employees from discrimination, in a clear departure from what the Equal Employment Opportunity Commission has argued for decades). The President’s tweet was seen as repulsive enough to cause one of his own candidates for a post at the Department of Homeland Security to withdraw his name from consideration.
Shake ups in the White House: In the past week, we saw not one, but two major personnel shake ups in the White House. After a few weeks away from the podium, Sean Spicer resigned from his position as the head of White House communications, upon learning that the President hired Wall Streeter Anthony Scaramucci. “The Mooch,” within days of being in the position, had a bizarre conversation with a journalist, filled with expletives and disparaging comments on other White House figures. Today, Reince Priebus was ousted and was quickly replaced by retired general John Kelly, the sitting Secretary of Homeland Security. The President seems to have militarized many civilian posts: his National Security Advisor is an active duty general and his Secretary of Defense is a recent retiree. Though, some have noted, the president surrounds himself with generals, but does not listen to their steady advice. The pace of shakeups and chaos in the West Wing means that the Executive Branch likely will have challenges with lines of communication and coordination should a real national challenge occur (such as a threat from North Korea).
No Recess for Congress: Fearing that Trump plans to replace Attorney General Sessions with someone who will not have to recuse themselves from the Russian investigation, Congress is refusing to allow the President to make recess appointments this August. To do this, Senators will make procedural moves so that the body is not formally adjourned for recess. By holding pro forma sessions, the Senate is not in recess, and therefore the President cannot push throughout appointments without Senate confirmation.
While the “Skinny Repeal” didn’t pass through the Senate last night, this is likely not the end of the debate on national healthcare. Meanwhile, the Russia investigation continues, while the President warns Special Counsel Mueller not to look into his family’s finances.
While things are hectic in Washington, we are taking the opportunity to learn a new aspect of the law each day from the comfort of sunny San Francisco. We hope you follow this space as we continue to digest and write about what piques our interest.
E pluribus unum,
Kelsey Campbell, Editor in Chief of Volume 45, and the rest of the Hastings Constitutional Law Quarterly staff