Faculty in the News
Peter M. Shane Media Hits
The following is a list of selected media coverage for Peter M. Shane. The links below will direct you to sites that are not affiliated with the Moritz College of Law. They are subject to change, and some may expire or require registration as time passes.
Professor Peter Shane was quoted in Salon about Steve Bannon’s testimony before Congress regarding possible collusion between the Trump administration and Russia, which he kept intentionally vague.
“I don’t know if it would be unprecedented but it would certainly be very unusual for a congressional committee to say ‘well they might claim executive privilege someday so that's enough for us,’” Shane said. “If members of these committees have allegiance to the powers of the legislative branch, they should not allow these vague claims of privilege to be claimed, they should insist on it formally,” Shane said. “For better or worse, we seem to have separation of parties instead of separation of powers.”
An article by Professor Peter Shane was published in Washington Monthly.
“It is not yet clear whether there yet exists sufficient evidence to persuade a jury, beyond a reasonable doubt, that Donald Trump obstructed justice by asking Comey to go easy on Flynn or by firing Comey. And there is a separate issue whether presidents may be indicted and tried while in office. (The Justice Department’s Office of Legal Counsel has said no, but conservative legal scholar Ronald Rotunda has said yes.),” Shane writes. “But if a federal prosecutor determines there is sufficient evidence to proceed, there is no doubt an indictment against the president at a proper point in time would be constitutional. Indeed, a core premise of the Constitution is that no one is above the law—not even the president.”
Professor Peter Shane was quoted in Vox in response to President Donald Trump’s lawyer, John Dowd, who claimed that the president cannot be found guilty of obstruction of justice.
“It's nonsense. A president's constitutional role does not include a prerogative to act corruptly. A president who ‘corruptly’ obstructs or impedes ‘the due and proper administration of the law’ commits a crime,” Shane said. “It is worth noting that—although impeachment proceedings are civil, not criminal in nature—articles of impeachment voted against both Nixon and [Bill] Clinton charged obstruction of justice as a violation of the president's constitutional obligation to take care that laws are faithfully executed.”
Professor Peter Shane was quoted in The Columbus Dispatch about the judicial nominees for Ohio’s district courts. Instead of relying on the American Bar Association, President Donald Trump has called upon the Federalist Society to evaluate candidates before he nominates them.
“There’s nothing in President Trump’s background to think that he would seek out any deep, substantive involvement in judicial selections. He’s not a lawyer,” Shane said. “The membership includes many quite distinguished lawyers and academics who are fully qualified by temperament.”
Professor Peter Shane was quoted in Bustle about special counsel Robert Mueller’s investigation into the Trump administration.
"He [President Donald Trump] is naturally inclined towards a strategy that mixes belligerence and flattery," Shane said. "My guess is that Mr. Mueller is likely to be unmoved by either."
Professor Peter Shane was quoted in Deutsche Welle about special counsel Robert Mueller’s investigation into the Trump administration and the indictments against Paul Manafort, the former manager of President Donald Trump’s campaign, Rick Gates, a former campaign associate, and George Papadopoulos, a campaign aid.
"There is no doubt that these prosecutions do give increased leverage over the people who have been indicted in terms of their providing information,” Shane said. "It is clear that this not the end of the investigation."
Professor Peter Shane was mentioned in ThinkProgress about Attorney General Jeff Sessions’ testimony before the Senate Judiciary Committee. Sessions has been reluctant to answer any questions about his conversations with President Donald Trump, who has not yet invoked executive privilege.
Claiming privilege regarding conversation or communication directly involving the president, according to Shane, is called presidential communications privilege.
Professor Peter Shane was requoted in The Washington Post about the NFL and players’ rights to protest during a game.
“It would be against the law for Trump to threaten government action against a private entity in order to provoke the firing of employees based on their party affiliation, but that statute appears inapplicable here,” Shane originally told Vox in September.
Professor Peter Shane was quoted in Vox about whether NFL players can be fired for kneeling during the national anthem.
“NFL teams, as private entities, are not covered by the First Amendment. Does it violate the First Amendment for the president to urge a boycott of private firms that refuse to retaliate against employees for their peaceful political protests? Like many of Trump's despicable and divisive tactics, that’s a novel question for the courts,” Shane said. “It would be against the law for Trump to threaten government action against a private entity in order to provoke the firing of employees based on their party affiliation, but that statute appears inapplicable here.”
Professor Peter Shane appeared on WOSU’s All Sides with Ann Fisher to discuss President Donald Trump’s decision to remove the Deferred Action for Childhood Arrivals (DACA) program.
Professor Peter Shane was quoted in Law.com about the Trump Administration’s decision to repeal the Deferred Action for Childhood Arrivals (DACA) program.
According to a letter filed by lawyers from the National Immigration Law Center in an ongoing case in the Eastern District of New York, repealing DACA violates the Administrative Procedure Act (APA). The viability of that claim is hard to predict, Shane said.
“If the court begins with that premise, again, namely that the non-arbitrariness of the policy would require a finding that DACA was in fact unlawful, then I could see a court deciding that DACA was lawful, and therefore canceling on purely legal grounds was in fact arbitrary,” Shane said.
Professor Peter Shane was quoted in Vox about theories that President Donald Trump could pardon people linked to the investigation into his campaign’s possible collusion with Russian officials.
According to Shane:
“Russiagate pardons would pose some strategic risks for Trump. No one pardoned could constitutionally withhold their testimony in either a criminal investigation or from Congress. And, unlike the pardon of Arpaio, which is a despicable blow to the rule of law, pardoning anyone who might have been a co-conspirator in misconduct involving Trump himself would much more plausibly be impeachable.
And in any event, there is no ‘ground to prepare.’ Pardoning Manafort, Flynn, Kushner, or anyone surnamed Trump would unleash a firestorm of protest that the Arpaio pardon will not lessen in any way. In Marbury v. Madison, John Marshall said there were ‘political’ acts for which the president ‘is accountable only to his country in his political character and to his own conscience.’ While Trump's ‘conscience’ has yet to display itself, both Congress and the voters can hold him to account ‘in his political character.’”
Professor Peter Shane was quoted in the Los Angeles Times about the role unitary executive theory could play in President Donald Trump's decision to fire the special counsel appointed to investigate Russian meddling in the 2016 election.
Under the theory, the president “is constitutionally entitled to fire anyone in the executive branch,” Shane said. “I think the theory is wrong, but it’s out there and is part of the debate,” he added.
Professor Peter Shane was quoted in The Huffington Post about the possibility that President Donald Trump could use pardons to prevent any indictments stemming from special counsel Robert Mueller’s investigation into Russian meddling in the 2016 election.
It is typically considered “political suicide to pardon a family member,” Shane said.
An op-ed by Professor Peter Shane, “President Trump Can’t Just Fire Robert Mueller,” appeared in The New York Times.
"The latest attention-grabbing trial balloon to be floated by a White House staffer or apparent surrogate for President Trump is the suggestion by Christopher Ruddy, a longtime friend of the president, that Mr. Trump is 'considering, perhaps, terminating' Robert S. Mueller III, the special counsel appointed to investigate the Trump campaign’s links to Russia,” Shane writes. “President Trump cannot legally do so.”
Professor Peter Shane was mentioned in PolitiFact in an article about former FBI director James Comey and whether he broke the law—as President Donald Trump claims—by leaking a memo written during his tenure with the FBI about a private meeting he had with the president.
Executive privilege has to be expressly invoked in order to apply to a testimonial setting, like Comey’s hearing before the Senate Intelligence Committee. Additionally, according to the 1974 U.S. Supreme Court case, United States vs. Nixon, other branches of government can still demand disclosure should the information in question outweigh the executive branch’s need for confidentiality, Shane said.
A blog post written by Professor Peter Shane for Take Care, “Executive Privilege(s) and the Testimony of James Comey,” was mentioned in Patch, in an article about reports that President Donald Trump is preparing to file a formal complaint against the former FBI director.
"There is no law prohibiting someone in conversation with the President from revealing that conversation to third parties without the President's consent," Shane writes. "Of course, one could well imagine that the unauthorized disclosure of a confidential presidential conversation would be a fireable offense if committed by any federal officer serving at the pleasure of the President. Unfortunately for the President, he had fired Mr. Comey before the unauthorized disclosure."
Professor Peter Shane was quoted in ThinkProgress about the role of executive privilege in preventing intelligence chiefs from testifying before the Senate Intelligence Committee.
“When privilege is claimed in relation to a conversation or communication directly involving the president, what we’re talking about is presidential communications privilege,” Shane stated in an email. “That’s what was at stake in U.S. v. Nixon and what would be at stake regarding any conversation or communication directly with Trump.”
Professor Peter Shane was quoted in The New York Times about the possible use of executive privilege to block former F.B.I. director James Comey from testifying before the Senate Intelligence Committee.
According to Shane, executive privilege could apply to conversations between President Donald Trump and Comey, but that a judge would have to weigh the president’s interests with those of Congress, for example. A request for a restraining order may also prove difficult, as Trump has already been public about his conversations with Comey. In general, presidents tend not to invoke executive privilege in cases involving corruption allegations, Shane added.
“It would look like the president, in a self-serving and self-protective move, was trying a relatively unprecedented judicial proceeding to keep information about his own conduct from becoming public,” Shane said.
Professor Peter Shane was quoted in The National Law Journal regarding a request to the U.S. Supreme Court from the Trump administration to indefinitely delay briefing on a critical issue in challenges against the Waters of the United States rule.
In February, an executive order signed by President Donald Trump directed the U.S. Environmental Protection Agency to revise the Waters of the United States rule, a mandate from the Obama administration that increased environmental protections across the country’s waterways. Organizations who challenged the Waters of the United States rule, including the American Farm Bureau, National Association of Home Builders, and National Mining Association, all object to the Trump administration’s request to delay resolution of the issue.
“The idea that you should hold up a little while we figure out what we’re doing is not so appealing here,” Shane said. “They certainly will regard as sincere the Trump administration’s representation that they are rethinking these rules with an eye to rescinding them. In the case of the Clean Power Plan, the executive order makes clear what the president would prefer. But it does sort of cut both ways.”
Professor Peter Shane appeared on an episode of BradCast to discuss the filibuster that Democrats waged against Judge Neil Gorsuch and the “nuclear option” invoked by Republicans in order to confirm Gorsuch’s nomination to the Supreme Court.
An essay written by Professor Peter Shane for the American Constitution Society, “A Principled Reason to Oppose the Confirmation of Neil Gorsuch,” was quoted in The New York Times.
Responding to Judge Neil Gorsuch’s confirmation hearings before the Senate Judiciary Committee this week, the editorial board describes the blockade Senate Republicans took against Judge Merrick Garland, former President Barack Obama’s nominee for Supreme Court in 2016.
“Senate Republicans’ behavior last year set a new standard for bad faith,” the editorial board writes. “The question, as the constitutional law scholar Peter Shane wrote last week, is ‘whether there remains any institutional penalty for sabotaging constitutional norms.’”
Professor Peter Shane was quoted in Moyers & Company in an explainer of the separation of powers outlined in the Constitution.
“The idea is to give each branch enough authority to be effective in the discharge of its functions. But they are also given powers that make the other branches partially dependent on one another,” Shane said. “It is that balance of independence and interdependence between the branches that is the distinct organizational characteristic of our federal government.”
Professor Peter Shane was quoted in The Atlantic in an article about the legality of President Donald Trump’s executive order that threatens to pull federal funds from sanctuary cities should they refuse to cooperate with the federal government to deport undocumented immigrants.
“There is nothing to the idea of state sovereignty if state and city officials are not entitled to direct how their subordinates exercise their lawful discretion to advance state and local interests,” Shane said.
Professor Peter Shane was quoted in NPR about President Donald Trump’s executive order that imposes a five-year lobbying ban on executive branch employees. Despite declaring his distance from the Democratic party, Trump “borrowed heavily” from language in similar executive orders signed by former presidents Bill Clinton and Barack Obama, NPR reports.
“When a new president’s executive order deals with a subject of operational concern to multiple administrations, it’s not surprising that the president’s lawyers would look to previous iterations as models,” Shane wrote in an email to NPR. “For a Republican president, reiterating the restrictive obligations prior Democratic presidents imposed on their appointees has the double advantage of using provisions vetted by other lawyers and apparently deemed acceptable to the political opposition.”
Professor Peter Shane was quoted in Cleveland.com about whether President Barack Obama could use a recess appointment to appoint Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia, to the Supreme Court.
Though unlikely to occur, Obama could theoretically appoint Garland in the limited time frame between the departure of the 114th Congress and the incoming 115th Congress. Garland would tilt the Supreme Court to a center-left majority until Donald Trump nominates a replacement.
"It might be a way of throwing the new majority off its game," Shane said, adding that such a move would be uncharacteristic of both Obama and Garland.
Professor Peter Shane was quoted in National Mortgage News about the future political independence of the Consumer Financial Protection Bureau (CFPB) under President-elect Donald Trump’s administration.
In October, the District of Columbia U.S. Circuit Court of Appeals ruled that the CFPB’s single-director structure violates the Constitution’s separation of powers doctrine. Although Title X of the Dodd-Frank Act grants the CFPB the authority to pursue litigation to the Circuit Court level, the agency has to file a written request to the U.S. Attorney General regarding any appeals to the Supreme Court. The Trump administration could theoretically block any of the agency’s attempts to appeal to the high court.
In the meantime, the CFPB has requested an en banc rehearing before the D.C. Circuit. If the CFPB succeeds, appeals to the Supreme Court, and the high court grants certiorari, the court would probably assign an amicus defendant to the case, Shane said.
"The same thing really happened in the DOMA cases, where the Supreme Court allowed members of the House of Representatives who wanted to defend DOMA to do so," Shane said. "Perhaps Congressional Democrats or other intervenors would ask for leave to defend the CFPB."
Professor Peter Shane was quoted in The National Law Journal about the 258 executive orders issued during President Barack Obama’s administration that President-elect Donald Trump will now examine as he transitions into office.
According to Shane, “misleading verbiage” throughout the election portrayed much of what Obama enacted as an executive order, even though efforts like the Clean Power Plan were actually enacted by regulation instead.
Professor Peter Shane spoke with The Atlantic about possible ways to fix the U.S. Supreme Court impasse:
"Beyond that, as Peter Shane of Ohio State University recently pointed out in an interview, Article II of the Constitution makes clear that 'advice and consent' is a formal vote, not just a moment of silence. The president has 'power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur.' In 225 years, to the best of my knowledge, no one has discerned this power vested in the president. There’s a reason for that: It’s not there."
U.S. Senator Sherrod Brown quoted Professor Peter Shane in a Plain Dealer op-ed. He wrote:
I recently spoke with Peter Shane, a constitutional law professor at the Ohio State University Moritz College of Law in Columbus.
Shane said that a vacancy of this unprecedented length on the Supreme Court "will compromise its ability to perform its proper constitutional function" and create "prolonged uncertainty."
Professor Peter Shane and U.S. Sen. Sherrod Brown spoke with WKSU recently about the Senate Republicans' refusal to consider nominees for the U.S. Supreme Court.
Professor Peter Shane wrote an article for Washington Monthly in which he reflected on the death of U.S. Supreme Court Justice Antonin Scalia:
The encomiums bestowed upon the late Justice Antonin Scalia know no partisan limits. Tributes from conservatives have been earnest and effusive, untroubled, of course, by philosophical disagreement. But the homages that begin, “Although we agreed about nothing,” have been no less heartfelt or expansive. Many across the ideological spectrum were privileged to experience Justice Scalia as a warm, generous, witty, charming, larger-than-life companion and mentor.
In candor, these were not the qualities I encountered when I did see the justice up close.
Professor Peter Shane was quoted in a Cleveland.com article about outgoing U.S. Attorney Steven Dettelbach:
Peter Shane, an Ohio State University law professor who has done research on presidential powers and appointments, said President Barack Obama, a Democrat, and the Republican-controlled U.S. Senate may come to a stalemate, as they have with other nominations.
"Right now, the numbers suggest the Republicans are pretty determined not to confirm anybody," Shane said. "I think that's true even for positions that would ordinarily not be considered very controversial."
Professor Peter Shane was quoted in a New York Times article on presidential power and the 2016 election:
“I don’t think Hillary or Bernie or O’Malley want to say, ‘I promise not to be assertive in the use of executive branch authority,’ when they may have every bit as much trouble as Obama has had in getting Congress to work with them,” said Peter Shane, a constitutional law professor at Ohio State University.
Professor Peter Shane was quoted in a Talking Points Memo article on the Supreme Court and the Obama administration's executive actions on immigration.
"There should be no panic because of the inclusion of the fourth question" said Peter Shane, a professor at The Ohio State University Moritz College of Law, who strongly suspects the idea to add the Take Clause question came from one of the conservative justices.
"I would be shocked if you could get Chief Justice Roberts to say that a statutory complaint amounted to a constitutional violation, and I think that of Justice Kennedy, too. I cannot imagine there being fewer than six votes for the president on that.”
Professor Peter Shane wrote an op-ed for The Atlantic about the Supreme Court Case National Labor Relations Board v. Noel Canning, a case about recess appointments. Shane argues the Constitution was intended to emphasize the president's role to make appointments over the Senate's role to confirm them. Confirmation, he said, was intended to prevent corruption.
"Protecting the Senate’s confirmation role at the expense of the president’s appointments responsibility turns the constitutional design on its head," Shane writes.
Professor Peter Shane wrote an op-ed for Lawfare about new information released about the Foreign Intelligence Surveillance Court as a result of the Office of the Director of National Intelligence declassifying information. Shane writes that FISC has to balance trying to be as transparent as possible while keeping state secrets private.
"A real possibility exists that, as an institutional compromise, the FISC’s balancing act may accomplish something quite important," Shane writes. "As I have argued elsewhere, it is imperative as a matter of democratic, constitutional self-governance that the executive branch generally regard itself as bound by legislative delimitations of its powers. An executive branch that thinks its authority is limited only by its unilateral assessments of its inherent discretionary powers is far more likely to overreach than an executive that thinks itself beholden to legislative authorization. By helping to stabilize government surveillance practice within a statutory framework, even if creatively interpreted, the FISC may well be operationalizing that insight."
Professor Peter Shane participated in a panelist discussion about cyber security in light of recent revelations about the NSA. In a Lantern article, it said Shane elaborated on the hotly contested issue on what type of information is "voluntarily given."
In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial RestraintJuly 29, 2013
Professor Peter Shane wrote an article for Bloomberg concerning the prospect of the case Noel Canning v. NLRB to be remanded, depending on the Senate’s decision to confirm a full complement of members for the
National Labor Relations Board.
Shane writes, “A Supreme Court that has deregulated corporate campaign spending, judicialized the Second Amendment, overturned both the Voting Rights and Defense of Marriage Acts, and cut from whole cloth pretty much every important holding in its resolution of the Obamacare challenges may be all too eager to play constitutional referee on recess appointments.”
In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial RestraintJuly 29, 2013
Professor Peter Shane wrote an article for Bloomberg concerning the prospect of the case Noel Canning v. NLRB to be remanded, depending on the Senate’s decision to confirm a full complement of members for the
National Labor Relations Board.
Shane writes, “A Supreme Court that has deregulated corporate campaign spending, judicialized the Second Amendment, overturned both the Voting Rights and Defense of Marriage Acts, and cut from whole cloth pretty much every important holding in its resolution of the Obamacare challenges may be all too eager to play constitutional referee on recess appointments.”
Professor Peter Shane was quoted by USA Today in an article about the power struggle between the White House and Congress over government appointments. The ultimate debate hinges on how the justices interpret two words in the Constitution: "the" and "happen." The recess appointments clause of the Constitution reads: "The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."
Shane specializes in the separation of powers and says the D.C. Circuit judges are engaging in "semantic cherry-picking." While the Supreme Court may not be so rigid, he says, under Justice Antonin Scalia's influence it has been "unduly fetishist about these precise dictionary meanings."
Professor Peter Shane was quoted in an article in Medill Reports on the low voting response from college students at Northwestern University. "I think younger people may have a greater skepticism about the potential impact of their vote,” he said.
Professor Peter M. Shane was quoted by The Atlantic for a blog post he wrote, which also was republished by The Huffington Post and the American Constitution Society, about the action President Barack Obama took pertaining to gun violence.
"What executive orders cannot do is impose obligations or restrictions on the public, unless Congress, through legislation, has expressly or implicitly conferred authority on the President to do so. It is worth noting that none of President Obama's executive orders on gun violence do any such things," Shane wrote.
Professor Peter Shane was quoted in an Athens News article which centered on President Barack Obama’s executive orders on gun control.
"What executive orders cannot do is impose obligations or restrictions on the public, unless Congress, through legislation, has expressly or implicitly conferred authority on the president to do so. It is worth noting that none of President Obama's executive orders on gun violence do any such things,” Shane said. "In short, none of these memorandums requires the public to do anything, expands the powers of the federal executive, or evokes even remotely the ghost of George III."
Professor Peter Shane was quoted in an article on 10tv.com about an online petition urging Ohio to secede from the United States. “Aside from whatever bad feeling or apprehension people may have about the election, a state that secedes from the union would lose so much and gain so little, it would be an utterly irrational choice,” Shane said.
Professor Peter Shane was on MSNBC’S “NOW with Alex Wagner” to provide some insight on Attorney General Eric Holder’s reaction to being held in contempt of congress.
“I think the precedent is going to be don’t hold contempt too quickly. It’s not just going to go unresolved until the election. It’s going to go unresolved until this congress goes out of business at the end of the calendar year,” Shane said of the impact on future congressional oversight.
Professor Peter Shane was mentioned in a Columbia Daily Tribune article about house committee chairman Darrel Issa challenging President Barrack Obama’s claim of executive privilege over Attorney General Eric Holder being held in contempt of congress.
Issa requested documents from program Operation Fast and Furious. The article noted experts such as Shane “agree with the president's view that all executive branch documents are protected from disclosure.” It also noted, “(Shane) says executive privilege historically covers documents generated anywhere in the executive branch.”
Professor Peter Shane was quoted in a Boomerang Businessweek article. The article suggested President Barack Obama’s invoking executive privilege over House Republicans almost voting to hold Eric Holder in contempt of Congress is a reminder of the Watergate scandal. “The president is in quite a strong position,” Shane said.
He also touched on the House Government and Oversight Committee seeking documents about the Justice Department, which Holder said contained incorrect information. “The committee has not explained in very concrete terms why it needs the documents in dispute,” Shane said. “It’s not really clear why they’re pursuing these so strenuously.”
Professor Peter Shane was quoted in a Bloomberg Businessweek article about President Obama's invocation of executive privilege in the matter of the U.S. House of Representatives voting to hold Attorney General Eric Holder in contempt.
“The president is in quite a strong position” legally, said Shane, a specialist in separation of powers law.
Professor Peter Shane was referenced in an article by The Daily Beast about President Barack Obama invoking executive privilege before the House Republicans voted to hold Eric Holder in contempt of Congress.
“House Republicans could potentially move to sue the administration in district court or subject Holder to its own civil arrest, but Shane called both scenarios extremely unlikely,” the article noted of Shane’s insight.
Professor Peter Shane wrote an article for CNN analyzing the possible results of the contempt case against Eric Holder.
“Whether or not the full House votes Attorney General Eric Holder in contempt, the likeliest resolution will be an informal settlement in which the Justice Department expands slightly on its current offer of disclosure, the committee narrows the range of documents it is demanding, or both compromise in a mutual, face-saving gesture. At least, that would be likely in politically ‘normal’ times,” Shane wrote.
Professor Peter Shane was referenced in an article by ABC News for his expertise in executive privilege. In the article, regarding Attorney General Eric Holder being the first member of the Obama administration held in contempt of Congress, Shane noted a standoff involving Republicans in Congress is a possibility.
Professor Peter Shane was quoted in an article on therealnews.com regarding anti-terror practices sprung since the terrorist attacks of Sept. 11, 2001, making the United States a “police state.”
“What seems to me to have been lost — or at least severely compromised — since 9/11 is a sense that government actors who violate civil liberties in the alleged name of national security ought to be held to account,” Shane said. “In the wake of FBI and CIA abuses during the Vietnam Era, we had the Church Committee investigation, which not only created a clear historical record of those abuses, but also laid the groundwork for what became the Foreign Intelligence Surveillance Act.”
Professor Peter Shane was quoted in The Columbus Dispatch in an article regarding a pre-meeting prayer being taken off Mount Vernon City Council meeting agendas due to a complaint that the council was excluding atheists.
“Prayers to begin legislative sessions are generally constitutional because they are viewed less as moments of religious observance and more as a ceremonial attempt to establish the seriousness of this occasion,” Shane said.
Professor Peter Shane's participation in a Thursday tele-debate hosted by the Constitution Project was previewed by the blog Lawfare. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, will be joined by Professor Michael McConnell, the Richard & Frances Mallery Professor, director of the Stanford Law School Constitutional Law Center, and Hoover Institution Fellow for the tele-debate, Are the President's Recent Recess Appointments Constitutional.
Professor Peter Shane was quoted in The Real News.com about the killing of U.S.-born Islamist cleric Anwar al-Awlaki in Yemen. Professor Shane said “I don’t think there’s much real doubt that the killing was lawful. The right to use military force for national self-defense is recognized by Article 51 of the United Nations Charter. The Authorization to Use Military Force enacted in the wake of 9/11 explicitly authorizes the President to use “all necessary and appropriate force against those . . . organizations . . . he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, . . . in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”
He concluded: “There is no question that this authorization allows the use of military force against al Qaeda, and it likewise seems beyond dispute that al-Awlaki sought out and played a leadership role in al Qaeda or a co- belligerent organization, continuing to both plan and call for attacks against the United States and Americans. As a citizen of the United States, al- Awlaki may well have been entitled to some form of ‘due process’ in the determination that he was actually at war with the United States; I imagine that what due process requires in cases like his, however, is a course of fact- finding within the executive branch that is stringent in its rigor and intensity. I would be surprised to learn that such fact-finding had not taken place, especially since the facts justifying his targeting seem clear.”
Professor Peter Shane was quoted by Law.com in a piece about a panel discussion related to changes in civil liberties following the terrorist attacks of Sept. 11, 2001. Among those participating in the Sept. 9 discussion at New York Law School was John Yoo, a law professor at the University of California, Berkeley School of Law who served as deputy assistant attorney general in the U.S. Justice Department's Office of Legal Counsel during the Bush administration and co-authored the "torture memo" providing legal justification for abusive interrogation.
"I think civil liberties have grown in the last 10 years, primarily because the government has stayed out of the way," he said.
The comment prompted Shane to quip that Yoo has apparently been "traveling exclusively by car for the past 10 years."
Professor Peter Shane was quoted by USA Today in regards to what powers the 14th Amendment gives President Obama to raise the debt ceiling on his own. Legal analysts and politicians debate the powers available under a clause ratified in 1868 that requires Congress to repay federal debts, a key issue in postbellum America. "I would say it's legally treacherous no matter what he does," said Shane, who specializes in separation of powers.
Professor Peter Shane was quoted in the New York Times about whether President Obama has Constitutional authority to continue the American participation in the war in Libya. The article said: "Peter M. Shane, an Ohio State University law professor and co-author of a casebook on the separation of powers, said it would tell Mr. Obama “that although his formal legal position may be dubious,” he can “steer toward calmer political waters if he conforms his behavior to what Congress has sanctioned.”"
Professor Peter Shane was quoted in The Atlantic on President Obama's use of executive power to engage in war with Libya. The article said: "The lawyers I spoke to argued that there are some differences. First, they said, the administration's definition of "hostilities" is one that has been discussed almost since the WPR was adopted in 1973; Bybee's definition of "suffering" was drawn from an irrelevant federal statute that concerns "an emergency medical condition for the purpose of providing health benefits." Peter Shane of Ohio State University, who served in the Carter Administration Office of Legal Counsel, crisply stated, "a first-year law student handing in that answer in a legislation class would have gotten a failing grade.'"
Professor Peter Shane was quoted in the blog lawfareblog.com about the War Powers Resolution and the use of unmanned aerial drones by the United States in Libya. “The overwhelming majority of strike sorties are now being flown by our European allies while American strikes are limited to the suppression of enemy air defense and occasional strikes by unmanned Predator UAVs against a specific set of targets, all within the UN authorization, in order to minimize collateral damage in urban areas?” Although the sentence might just be sloppily drafted, it seems to suggest that, in addition to the unmanned Predator strikes, we are still engaged in piloted strikes aimed at “the suppression of enemy air defense.” If so, what is the Administration defense – that these particular strikes are intermittent, even if our overall engagement is sustained? If we’ve got human pilots in the planes, then the warfare-from-a-distance excuse seems inapplicable," Shane was quoted as saying.
Professor Peter Shane was quoted in The Atlantic in an article about Presidential powers.
Peter M. Shane of Ohio State University's Moritz College of Law, a former Office of Legal Counsel official, and now a paramount scholar of presidential authority, points to a 1988 dispute with Congress over AIDS as sewing the seeds of the hard-line "unitary executive" theory. Congress passed a statute requiring the Centers for Disease Control to publish a pamphlet setting out the facts about the disease and ways of preventing it. Ronald Reagan really didn't think AIDS was such a big deal and preferred it not be mentioned at all; the Reagan White House refused to clear the pamphlet. In frustration, Congress by statute instructed the head of CDC--chosen, as White House aides are not, for expertise in public health-- to publish the pamphlet without clearance...
As such, the present administration's conduct puzzles Shane. "The Obama Administration has commendably stayed away from George W. Bush's aggressive claims of executive power, but, perhaps because Congress is itself so dysfunctional these days, the Administration seems to be underplaying the opportunity to reset the terms of presidential authority," Shane said. It's doubly puzzling, he adds, because, as a senator, Joe Biden unsuccessfully introduced "the most thoughtful war powers legislation since 1973. I don't know why the Administration does not resurrect it."
Professor Peter Shane was quoted in the Mansfield News Journal about two potential ballot issues on the Ohio ballot in November: a referendum to overturn the new union law and a proposed amendment to the Ohio Constitution to prohibit a individual mandate to purchase healthcare insurance, a cornerstone of the new federal healthcare law. The article said: Peter Shane, a law professor at The Ohio State University, said several sections of the amendment, which he reviewed at CentralOhio.com's request, run into federal constitutional problems.
"To the extent that an Ohio constitutional amendment purports to stop the operation of a federal law in Ohio ... the amendment would be null and void," he said.
Professor Peter Shane was quoted in the Lancaster Eagle Gazette on the possibility of an Ohio ballot measure aimed at amending the Ohio Constutition in an effot to overturn President Obama's national healthcare reform policy. "To the extent that an Ohio constitutional amendment purports to stop the operation of a federal law in Ohio ... the amendment would be null and void," Shane said.
Professor Peter Shane was quoted in an OpEdNews.com story about the Obama Administration preparing to resurrect Military Commissions to try Guantanamo detainees. The story states: “‘Although the Commission system has been significantly improved through the Military Commissions Act of 2009, it will always be seen as offering a kind of second-class justice, and it is by no means obvious that anyone will be convicted through the Commission system who could not otherwise be prosecuted in federal court.’”
Professor Peter Shane was recently quoted in an Inter Press Service story about reactions from politicians and legal experts after the end of the trial of the first Guantanamo Bay detainee. The story states: “‘Undoubtedly, the Ghailani verdict will be used by President Obama's political opponents to argue the inappropriateness of trying Guantanamo detainees in civilian court,’ Peter Shane, a professor at Ohio State University's law school, told IPS. ‘That argument assumes, however, that a military commission would have admitted the evidence that the civilian court excluded - which is by no means clear.’”
Professor Peter was recently quoted in a Mansfield News Journal story about U.S. Rep. Zack Space submitting legislation regarding free trade. He is hoping for a national referendum before any new trade deal passes. The story states: “As Peter Shane, another OSU law professor, noted, ‘The Constitution prescribes a specific process for legislation. The Supreme Court has been quite clear, nothing counts as binding law unless it goes through that process.’”
Professor Peter Shane was mentioned in a Slate Magazine article that debated the legality of a boardwalk game in New Jersey that features a depiction of President Barack Obama. While playing the game, boardwalk patrons can hurl baseballs at the head of the president. The article states that under the First Amendment, persons have the right to express themselves as such, as long as there is no real threat or intent to harm the person represented in the depiction. The article also mentions that this type of protest has been documented since the 1700s.
Professor Peter Shane was quoted in an article by the Inter Press Service that discussed the CIA’s protocol for anyone who attacks or endangers U.S. troops. The article discusses the moral issues that arise if a mistake is made and an innocent person is killed. Shane was quoted on the legality of their actions: ‘Prof. Peter Shane of Ohio State University law school agrees. He tells IPS, ‘So long as the executive branch engages in reasonable processes to distinguish persons who are combatants from those who are not, I do not think that the use of force against them is ...unconstitutional. Whether any specific targeted killing is or is not a good idea, of course, is a completely different question,’ he says.“
Professor Peter Shane was quoted in an Inter Press Service story about the United States’ use of the Guantanamo Bay detention center. The story states: “‘Prof. Peter Shane of the Ohio State University law school told IPS, “‘There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons.’”
Professor Peter Shane was quoted in a National Law Journal story about U.S. Supreme Court nominee Elena Kagan’s academic scholarship. The story states: “Peter Shane, former dean of the University of Pittsburgh School of Law and an administrative law scholar, called her article a ‘must read.’ ‘I say this even though I disagree with her conclusions in substantial respects,’ said Shane, now at Ohio State University Michael E. Moritz College of Law.”
Professor Peter Shane was quoted in a Columbus Dispatch story about a lawsuit filed that hopes to stop a National Day of Prayer. The story states: “Traditionally, the Supreme Court has judged similar cases according to whether the government can prove that a practice with a religious element has a primary secular purpose, said Peter Shane, a law professor at Ohio State University. But federal courts have gone far to call practices secular that clearly aren't, he said. Two examples are the fact that a chaplain leads Congress in prayer and the imprint of In God We Trust on currency. The courts are saying, ‘these practices are so traditional, so noncoercive, so nonsectarian that they really don't pose the kind of threat of religious conflict that the framers (of the Constitution) were trying to avoid,’ he said.”
Professor Peter Shane’s book, Madison’s Nightmare, received a strong review in Choice magazine. The review states: “Shane writes deftly to explain constitutional debates such as the one over the ‘unitary presidency’ in terms comprehensible to lay readers. His analysis of Bush 43’s use of executive privilege, control over regulatory policy making, and presidential signing statements are particularly illuminating, Shane devotes several chapters to how ‘aggressive presidentialism’ has undermined decision making in foreign and military policies and general and in national security policies in particular.”
Professor Peter Shane was quoted in a Huffington Post column reacting to the U.S. Supreme Court ruling that it was illegal to engage in surveillance of an Islamic charity without a warrant. "The Al-Haramain case strongly supports the value of enacting a legislative framework for the evaluation of state secrets claims,” Shane said. “News stories thus far have generally focused on the unusual circumstances of the case, in which the plaintiffs were able to satisfy the trial judge of both their standing and their entitlement to relief without resorting to classified information.”
Professor Peter Shane was quoted in an Inter Press Service story about legislation proposed in the U.S. Senate that would allow the U.S. government to detain terrorism suspects without charge and conduct trials through military commissions. The story stated: “Prof. Peter Shane of the Ohio State University law school told IPS, ‘There seems to be a fundamental philosophical difference between those who believe that the rule of law threatens our fight against terrorism and those who regard it as one of our most potent weapons.’”
Professor Peter Shane was quoted in a Main Justice story about the handling of the closing of Guantanamo Bay. The story states: “‘OLC is generally not an advocacy unit,’ said Peter Shane, a law professor at Ohio State University and a former OLC lawyer during the Carter administration. ‘A large part of the office’s credibility has been based on the notion that it has kind of a quasi-adjudicative role.’”
Professor Peter Shane was quoted in a New York Times story about a new approach the Obama administration is taking in regards to presidential signing statements. The story stated: “But Peter M. Shane, an Ohio State University law professor, praised the approach as a step toward a return to the ‘normalcy’ of how presidents used signing statements through Reagan’s first term. Mr. Shane has previously criticized the administration over its frequent early use of the device.”
Professor Peter Shane’s blog post from the Huffington Post was highlighted in an NPR story. The story states: “Huffington Post is playing this as the biggest story of the moment with a piece by Peter Shane, a law professor at Ohio State University's Moritz College of Law.”
Professor Peter Shane was quoted in a Lantern story about the future of journalism. The story states: The story states: “‘My question is, what would it be like to organize an entire college or university education around the idea of journalism?’ said Peter Shane, executive director of a recent study of American citizens’ information needs.”
Professor Peter M. Shane was quoted in a CQ Politics article regarding the similarities between Barack Obama and George W. Bush’s national security policies. The story states: “ ‘Presidents and their lawyers are aware that they are protecting not just the administration, but the institution of the presidency,' said Peter M. Shane, an Ohio State University law professor. He said that the president ‘may be reluctant to impose what he takes to be his views on the institution of the presidency for all time.’ “
Professor Peter Shane was quoted in a truthout.org story about the Obama administration's actions under the Freedom of Information Act. The story states: "Ohio State University law professor and constitutional law scholar Peter Shane told Truthout. 'The Bush administration has been history for 10 months, and it is still not clear what path we are on to clarify the historical record on what the Bush administration did or did not do with regard to civil liberties. I wish there were less resistance to lawsuits that are trying to vindicate people's rights in these matters.'"
Professor Peter Shane was quoted in an article in The Public Record on the testimony and swearing in of Sonia Sotomayor. The story states: “And Prof. Peter M. Shane of the Ohio State University law school said, ‘The ideas that Supreme Court Justices are mere umpires, or that constitutional interpretation bears any authentic resemblance to following a baseball rule book, are ludicrous.’”
Professor Peter Shane was mentioned in a Los Angeles Times column regarding political parties and how they have “degenerated into a system that discourages independent thought and undermines representative government.” The piece states: “What author Peter Shane labeled ‘Madison's Nightmare’ has come true: We live in a world of constant partisan warfare, a never-ending battle between ‘my club’ and ‘your club,’ undermining the belief that a citizen's vote truly counts for something.”
Professor Peter M. Shane was quoted in a CQ Weekly article on President Obama's signing of statements--something he swore he wouldn't do during his campaign for the Oval Office.
The story stated: “The kind of provisions he objected to in the omnibus spending bill — often called a ‘legislative veto’ — have been common targets of presidential signing statements since the 1920s, because they short-circuit the constitutional process that requires approval of both chambers of Congress and the president before legislation can become law, according to Peter M. Shane, a law professor at Ohio State University and author of ‘Madison’s Nightmare: How Executive Power Threatens American Democracy.’ Among the signing statements so far issued, Shane said, ‘There’s none in the ones I’ve seen that are particularly surprising in their assertions of executive power.’”
Professor Peter Shane was quoted in an article in The Public Record on the scrutiny President Obama has received on his proposal to imprison alleged terrorist suspects indefinitely, even if found not guilty. The story states: “Prof. Peter Shane of the Ohio State University law school discussed that issue with us. He argued against both the constitutionality and wisdom of indefinite detention for suspected terrorists.
He said, ‘If the United States has custody of people too dangerous to release, but not properly subject to criminal trial, the correct approach is to seek congressional authority to hold such persons for the duration of the conflict against al Qaeda and the Taliban.’ ”
Professor Peter Shane was quoted in a National Law Journal story about the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. The story states: “Executive power and separation-of-power issues are likely to play out in the context of the president's authority as commander in chief and the treatment of detainees, but they also run through areas critical to business. ‘A tricky issue to explore is the so-called unitary executive theory,’ said executive power scholar Peter Shane of Ohio State University Michael E. Moritz College of Law.”
Professor Peter Shane was quoted in a National Law Journal column about possible choices for U.S. Supreme Court nominees. The column states: “‘I do think it is scandalous to have a Supreme Court with only one woman on it,’ said separation-of-powers scholar Peter Shane of Ohio State University Michael E. Moritz College of Law, and ‘unfortunate there's only one person of color on the court.’”
Peter Shane was quoted in a PBS.org column regarding his work on the Knight Commission on the Information Needs of Communities in a Democracy. The story stated: “‘This was not a Commission to save the local newspaper,’ Shane said. ‘The idea was to look at the need for news and information very generally. That was exciting but made this much more complicated. We also wanted to think of this in the context of geographically defined local communities, because that's how our democracy is organized. If the local news and information environment are really not working, then it has to have an impact on governance and that's not good.’”
Moritz Professor Peter Shane was quoted in an IPS News story about reaction to President Obama’s actions regarding prisoner detention and treatment. The story states: “But not all constitutional experts agreed with the statements of human rights groups. For example, Prof. Peter Shane of the University of Ohio law school took a somewhat more nuanced view. He told IPS, ‘If the Obama administration is abandoning the position that the president has exclusive and virtually unlimited authority to guide foreign and military affairs unilaterally, that may signal a willingness to collaborate with Congress in the development of future initiatives, which, in turn, could well have a moderating impact on American adventurism abroad.’”
Professor Peter Shane was quoted in a Boston Globe story about the presidential use of power in the Obama administration. The story states: “Peter Shane, an Ohio State University professor of constitutional law, said it is likely that Obama - who also taught constitutional law at the University of Chicago - and Holder are trying to find the proper balance between civil liberties and the need to protect the nation against a terrorist attack. But he said it's also likely that since taking office Jan. 20, Obama and his aides ‘have learned a lot about the operations of those [Bush antiterror] programs that they didn't know during the campaign, and learned a lot about threats to the United States that they didn't know’ at that time.”
Professor Peter Shane was quoted in a Newsweek story about former President George W. Bush directing his former aide not to cooperate with congressional inquiries. The story states: “‘To my knowledge, these [letters] are unprecedented,’ said Peter Shane, an Ohio State University law professor who specializes in executive-privilege issues. ‘I'm aware of no sitting president that has tried to give an insurance policy to a former employee in regard to post-administration testimony.’ Shane likened the letter to Rove as an attempt to give his former aide a 'get-out-of-contempt-free card'.”
Professor Peter M. Shane was quoted in a CQ Politics article regarding the similarities between Barack Obama’s and George W. Bush’s national security policies. The story states: “ ‘Presidents and their lawyers are aware that they are protecting not just the administration, but the institution of the presidency,' said Peter M. Shane, an Ohio State University law professor. He said that the president ‘may be reluctant to impose what he takes to be his views on the institution of the presidency for all time.’ “
Professor Peter Shane was featured in a Dayton Daily News story about his role on President Elect Barack Obama’s transition team. The story states: “Shane, 56, a law professor at the Ohio State University's Moritz School of Law since 2003, is reviewing the International Trade Commission for Obama's transition team, compiling information about the independent agency comprised of six commissioners.”
Professor Peter Shane was quoted in a National Law Journal story about Obama’s transition teams. The story states: “On the International Trade Commission review team is Peter M. Shane, a law professor at Ohio State University Michael E. Moritz College of Law. Shane's research focuses on separation of powers law, and on the Internet and the future of democracy.”
Professor Peter Shane was mentioned in a Politico.com story about his role on President-elect Barack Obama’s economic team. The story states: “Other advisers working on the team include Michigan State University assistant professor Lisa Cook; Ohio State University law professor Peter Shane … ”
Professor Peter Shane was quoted in a New York Times story about what executive privileges President Bush may try to claim after leaving office in January. The story states: “But if Mr. Obama decides to release information about his predecessor’s tenure, Mr. Bush could try to invoke executive privilege by filing a lawsuit, said Peter Shane, a law professor at Ohio State University. In that case, an injunction would most likely be sought ordering the Obama administration not to release the Bush administration’s papers or enjoining Mr. Bush’s former aides from testifying. The dispute would probably go to the Supreme Court, Mr. Shane said.”
Professor Peter Shane was interviewed on an XM Radio show called “POTUS ’08” about how the outcome of the upcoming presidential election could change the interbranch dynamics of the U.S. Congress. (Subscription required).
Professor Peter Shane was quoted in a National Law Journal story about whether powers given to the U.S. treasury secretary in the federal government’s proposed bailout bill are constitutional. The story states: “A statute saying the Treasury secretary is authorized to do anything he wants to protect the American economy would be too broad, agreed Shane, adding, ‘The question is: Does this [proposal] come too close to that? The nondelegation doctrine is a doctrine about specificity of constitutional standards.’”
Professor Peter Shane was quoted in a Huffington Post column about how the Department of Justice uses the term “person of interst.” Prof. Shane is quoted: "The 'person of interest' phenomenon is something like the opposite side of the coin from terrorist watch lists. In the name of improving public safety, government authorities want to create some status for suspicious-seeming individuals that would enlarge government's investigative power without triggering the civil liberties protections that go with identifying anyone as an actual criminal 'suspect'. So far, it is not at all clear how much safety the public is getting out of the shift to a 'preventive law enforcement' mentality. There is a substantial risk that we will wind up less free, but actually no safer."
Professor Peter Shane was quoted in a Los Angeles Times story about a federal judge’s decision to order White House officials to cooperate with an investigation into the firing of several U.S. Attorney. "The practical significance of the opinion will depend chiefly on whether the investigations persist into the next Congress and on how the new administration responds," said Peter M. Shane, a professor at Ohio State University's law school.
Professor Peter Shane was quoted in a Newsweek story about President Bush’s refusal to disclose key details about Vice President Dick Cheney's role in the leak of CIA operative Valerie Plame's identity. "As far as I know, this is an utterly unprecedented executive-privilege claim," said Peter Shane, an Ohio State University law professor who is an expert on executive privilege and separation-of-powers issues. "I've never heard this claim before."
Professor Peter Shane was a guest on Radio Times with Marty Moss-Coane on Philadelphia-based WHYY Radio. The show focused on reactions to the National War Powers Commission Report and provided a closer look at executive and congressional powers of war. Professor Shane was joined by interim president of the College of William And Mary, Taylor Reveley, and Princeton University lecturer, Mickey Edwards.
Professor Peter Shane was quoted in a Los Angeles Times story about a group he is directing on how to keep communities connected in the digital age. "The advantages that the Internet has brought to Americans in connecting with issues and organizations on a national and even global scale have outpaced developments in promoting local information flow," said Peter M. Shane, an Ohio State University law professor and executive director of the group. "Many Americans find it easier to track developments in the U.S. EPA than in their own city council."
Professor Peter Shane was quoted in a Washington Post story regarding the White House’s refusal to turn over documents sought by a House investigative committee on greenhouse-gas emissions. The story states: “Peter Shane, a law professor and executive privilege expert at Ohio State University, said the conflicts are ‘part and parcel of a larger effort to reinstate what the Bush administration believes to be the proper scope of executive power.’ In the EPA case, Shane said, Congress appears to be conducting an investigation of a policy decision that already has been made, a factor that he said ultimately could give lawmakers ‘an upper hand.’”
Professor Peter Shane was quoted in a National Law Journal article about the legal battle still brewing over the forced resignations of nine U.S. attorneys in 2006. The story states: “The House suit is the first case since Watergate involving a congressional demand for White House information that reached the litigation stage, said separation-of-powers scholar Peter Shane of Ohio State University Michael E. Moritz College of Law. Since Watergate, 'the cases on executive privilege in the [U.S. Circuit Court of Appeals for the District of Columbia] all had to do with special prosecutor investigations,' he said. 'The parties in interest there were really the Office of Independent Counsel and the White House.' If this battle is not unique, he added, 'It is nearly arguably so, and a replay of issues we haven't seen played out for 30 years. It's very important.'”
Professor Peter Shane was quoted on an IPSNews.net story regarding a committee approval of the State Secrets Protection Act. The story says that the act would “allow judges to review government evidence supporting its claims that bringing a case to civil trial would involve disclosure of classified state secrets and thus compromise national security.” Professor Shane told IPS that the Bush administration "has been conspicuous in its defense of the executive's secret-keeping authorities, even where disclosure of the information sought would not seem to undermine any public interest."
Professor Peter Shane was quoted in a Daily Reporter story about a national commission that he will be leading. The commission is expected to determine whether the information needs of 21st century American citizens and communities are being met and make recommendations for public policy and private initiatives that will help better meet community information needs. "The most obvious change is the explosion of new technologies relevant to the creation and sharing of information," Shane told The Daily Reporter Tuesday. "Local and global events have become more profoundly interconnected, both literally and metaphorically."
Professor Peter Shane was quoted in a story written by the Inter Press News Service that was picked up by a handful of newspapers. The story concerned legislation that would provide a mechanism for protecting legitimate state secrets while also permitting civil litigation filed against the U.S. to proceed. "The current Supreme Court is so solicitous of presidential power that there is absolutely no prospect of real reform initiated by the current judiciary. If there is to be change, it will have to be at the initiative of Congress," Shane said.
Professor Peter Shane was mentioned in a Boston Globe story about President Bush's announcement of a new initiative against congressional earmarking of funds for politicians’ pet projects. The story states: “Still, Ohio State University law professor Peter Shane said that Bush's executive order could have some impact a year from now. If Bush's successor decides to allow earmarking to continue, perhaps to avoid a fight with Congress, he or she will still have to pay the political price of rescinding Bush's order, Shane said.”
Professor Peter Shane was quoted in a news story on truthout.org regarding the possible contempt hearings of at least two members of President Bush’s Administration. "The Democratic leadership is presumably aware that the president can ultimately short-circuit any contempt process by using his pardon power," said Ohio State University Law Professor and separation of powers expert Peter Shane.
Professor Peter Shane was quoted in a Boston Globe story regarding the current presidential candidates’ views on executive power. “Peter Shane, an Ohio State University law professor who studies executive power, said Romney's answers suggest that the former Massachusetts governor will probably embrace the Bush administration's legal theories on executive power. ‘It's fair to say that the Democrats, Senator McCain, and Representative Paul are united in supporting a reinvigoration of checks and balances and the reassertion of a meaningful congressional role in national security affairs,’ said Shane.”
Professor Peter Shane published an Opinion Editorial on the Jurist Legal News & Research website regarding Senator Leahy, Executive Power, and the Rule of Law. “The past seven years have escalated the assault on those norms that has become all too routine since the Reagan Administration. As a result, and paradoxical though it may seem, any successful return to a “rule of law” ethos between the elected branches now requires Congress to back its legal arguments with political muscle.”
Professor Peter Shane was mentioned in a Boston Globe story regarding how President Bush used a political maneuver to make a conservative majority on the U.S. Commission on Civil Rights. The story states: “But until Bush's 2004 appointments, no president used reregistrations by sitting commissioners to satisfy the law that forbids presidents from appointing a fifth commissioner of the same party. Bush's move , represented an unprecedented ‘escalation’ in hardball politics, said Peter Shane, Ohio State University law professor.”
Professor Peter Shane published an Opinion Editorial in Roll Call regarding how to coerce cooperation in the investigation of eight U.S. attorneys who were fired this year. “A narrowly tailored threat of budgetary retaliation has no obvious disadvantage. It promises to lead our elected branches to a sensible balance between Congress’ compelling interest in investigating possible Justice Department wrongdoing and the president’s legitimate concern for preserving an expectation of confidentiality for his dealings with senior advisers.”
Professor Peter Shane was quoted in hundreds of newspaper and television stories around the world regarding the resignation of U.S. Attorney General Alberto Gonzales. The Associated Press story that cited Shane was printed in The New York Times, The Washington Post, The Los Angeles Times, The Philadelphia Inquirer, Forbes, and several others. “Selecting a successor to Gonzales will be a challenge because the Senate is unlikely to confirm anyone as aggressive as Gonzales in the defense of executive power and the practice of secrecy,” said Peter Shane, professor at The Ohio State University Moritz College of Law.
He also was quoted in the Atlanta Journal-Constitution and dozens of other Cox Newspapers, as well as in The Columbus Dispatch. His Opinion Editorial on the Jurist web site was linked by Yahoo News.
Professor Peter Shane was quoted in a story in The Cincinnati Post and several other newspapers regarding Ohio Gov. Ted Strickland’s use of executive power. "In every government, when you have different parties in control of the executive branch and the legislative branch, you're going to find the executive branch looking for ways to exercise its power unilaterally," Shane said.
Professor Peter Shane was quoted in an FCW.com story regarding an international panel that will research the use of online meetings as a way of increasing citizen participation in government decisions. A conference on the topic is expected at The Ohio State University in March 2008. “If there’s going to be a future for online consultation, it’s only going to happen if people become persuaded that their efforts will pay off in terms of real impact on government decision-making,” Shane said.
Professor Peter Shane was quoted in a Congressional Quarterly story about President Bush’s use of executive privilege in the investigation of U.S. attorney firings. The story explains how Democrats have shrinking opportunities to force Bush to cooperate with the investigation, especially now that the Justice Department has said it will not press charges against those people Congress holds in contempt. “At the end of the day . . . ultimate leverage in a criminal scenario belongs to the White House,” said Peter M. Shane, a constitutional law expert at Ohio State University.
Professor Peter Shane was a guest on PBS’ NewsHour with Jim Lehrer Friday, July 27, to discuss the ongoing investigation of U.S. Attorney General Alberto Gonzales. “I think, given this track record, it is hard to say that there is no serious basis for an investigation whether he was speaking truthfully,” Shane said regarding Gonzales. Find a transcript and recording of the show at this link. Shane also was a panelist on National Public Radio’s To the Point program on Thursday, July 27, to discuss the same topic. Listen to a recording of the show here.
Professor Peter Shane participated in an online panel of experts to discuss President Bush’s recent decision to invoke his executive privilege. Hosted by the Federalist Society, the panel included professors from Yale, University of Chicago, and Columbia law schools. “If the executive wants to play at unilateralism, why not play the easiest Congressional pressure card? (And, lest you think these folks would work for free, the Antideficiency Act forbids it.)” Shane wrote. “Might some such move not be more effective at nudging the White House towards a serious deal -- a deal that, at a minimum, involves a transcript?”
Professor Peter Shane was quoted in a Los Angeles Times story regarding the U.S. Attorney who may be forced to decide whether to pursue contempt charges against White House officials and others failing to cooperate in the probe of the firing of several U.S. Attorneys. The story says, “Shane suggested that the Justice Department appoint a special counsel to evaluate the merits of the case and the legal arguments. ‘The administration could file legal briefs on behalf of the defense,’ he said, ‘and it would give the defendant an opportunity to raise executive privilege in defense of nonappearance.’”
Professor Peter Shane was quoted in a Boston Globe story about the difficultness of using legislation to withdraw U.S. troops from a war. Congress has historical precedent when limiting presidents’ powers in times of war, but all those incidents involved a president willing to sign Congress’ bills into law, the story says. President Bush has promised to veto any bill that limits how he conducts the Iraq war. "If the executive branch is determined to push its powers to the brink of what they can get away with, the problem for the other branches is that any response they can make within a system of checks and balances takes time," said Peter Shane, an Ohio State law professor.
Professor Peter Shane was quoted in the Los Angeles Times story regarding a Justice Department decision to allow top White House aides to disregard subpoenas in the investigation of the firing of several U.S. attorneys. Shane was quoted as: Unlike the pardon power, Congress has "constitutional authority to create and regulate the general conditions of appointment and removal for U.S. attorneys," said Shane, a professor at Ohio State University law school. "Moreover, it is entitled to investigate whether executive branch officials who have already testified under oath have testified truthfully."
Professor Peter Shane was quoted in the Los Angeles Times and the Baltimore Sun regarding President Bush’s decision to assert executive privilege by refusing to allow congressional access to senior officials and documents in regards to the firing of eight U.S. Attorney’s last year. He also was interviewed on several radio programs on the same topic. Here's a link to a Wisconsin Public Radio July 11 interview. "Whether out of arrogance or principled conviction, the current administration has seemed all but oblivious to the political downside of insisting on executive branch secrecy," said Shane, an expert on executive privilege at Ohio State University's law school, in the Los Angeles Times. "Given that no one in the White House is seeking re-election, it is unclear whether they will compromise, short of receiving some extraordinary pressure from congressional Republicans who may be more concerned than the president with appearing to represent the 'party of cover-up.'"
Professor Peter Shane was quoted in the New York Times regarding the possibility of a Constitutional showdown over the use of executive privilege. “Given the way in which both the U.S. attorney matter and the N.S.A. matter are now percolating through committees, I would be very surprised if there were not a major showdown over executive privilege,” said Peter M. Shane, a law professor at Ohio State University and an authority on executive privilege. “It might not get to court, but there will have to be some very high pressure negotiations at a very late stage to avoid that.”
Professor Peter Shane was quoted in the Baltimore Sun and LA Times regarding Congress' issuance of additional White House subpoenas in the U.S. Attorney firing controversy. "I think if you were to stand back from this and say who has the better argument, the answer is going to be Congress," said Peter Shane, an expert on separation of powers at the Ohio State University law school.
In the Boston Globe Professor Peter Shane discusses using technology as a way to get citizens more involved in local government issues. In fact, promising experiments are underway to encourage citizen input in regional planning, drafting of regulations, and even to use "wiki" technology to collectively draft laws, says Peter Shane, a law professor at Ohio State University. Shane was the lead investigator for the Virtual Agora Project, a four-year study at Carnegie Mellon University funded in 2001 with a $2.1 million grant from the National Science Foundation. The goal was to investigate whether new information technologies might have, as one of the project's researchers put it, "a potentially revolutionary application -- permitting large numbers of citizens to easily learn about, deliberate, and act on political and social issues." "We found that under carefully designed circumstances we could provide an online meeting that seemed to have the same positive impacts of a face-to-face meeting," Shane says.
Professor Peter Shane, an expert in Presidential powers, opines about the U.S. Attorney firings in an Opinion Editorial piece in the Columbus Dispatch.
Professor Peter M. Shane is quoted in this Chicago Tribune article on President Bush forbidding his top aides to testify publicly and under oath on the firings of eight federal prosecutors, possibly setting the stage for a possible legal battle with Congress that he might not be able to win, experts say, making a compromise more likely. "There is no absolute right to presidential privilege," said Shane. "What's at stake here is a qualified privilege. Bascially what somebody has to do—and that somebody could ultimately be a court—is consider the interests at stake for both parties… and which is the weightier interest."
Professor Peter M. Shane is quoted in this story from the St. Louis Post-Dispatch (appearing in the Columbus Dispatch) about the flap over the recent firing of eight U.S. attorneys. "The reason why the president hasn't done anything unlawful is because Congress, as a matter of policy, has trusted presidents to exercise this in wise and legitimate ways," said Shane. "I don't think Congress was thinking that if U.S. attorneys don't beat up on the opposition party with sufficient vigor, we think it would be great for the president to get rid of them."
Professor Peter Shane is quoted in this Law.com article on the process of appointing U.S. Attorneys. Shane said that as long as U.S. Attorneys are considered "inferior officers" under the Constitution, as they are now, the Constitution allows Congress to forgo its advise and consent power and to give the appointing authority to the president alone, heads of departments or to courts. "What's interesting about all of this, in part, is: This is a potential constitutional-theory nightmare for the Bush administration," he said. "On the one hand, of course they would want to defend the legality of the interim appointments by the attorney general and that defense depends on the characterization of U.S. Attorneys as inferior officers. On the other hand, I'm guessing they wouldn't be too happy about judicial appointment of these folks."
Professor Peter Shane is quoted in this New York Times article on the upcoming testimony by Vice President Dick Cheney in the Libby trial. "This could be great theater," said Shane. Anything Mr. Cheney says for the defense, he said, becomes "fair game" to be picked apart by the prosecution. This story also appeared in the San Francisco Chronicle and the Dallas Morning News.
Professor Peter Shane is noted in this Washington Post story on Vice President Dick Cheney's willingness to testify in the perjury and obstruction-of-justice trial of his former chief of staff. Shane said Cheney's appearance is unusual because of his aggressive efforts in other matters to protect the executive office from being forced to disclose details of its deliberative process or inner workings.
A National Science Foundation-funded initiative to "build and sustain an international digital government research community of practice" has agreed to provide support for an international "digital democracy" research group to be co-chaired by Peter M. Shane, Director, Moritz Center for Interdisciplinary Law and Policy Studies, and Joseph S. Platt - Porter, Wright, Morris & Arthur Professor of Law, and Stephen Coleman, Professor of Political Communication at the Institute of Communications Studies, University of Leeds.
Professor Peter Shane is quoted in this Boston Globe story on Vice President Dick Cheney's push for more executive powers. Shane predicted that Cheney's long career of consistently pushing against restrictions on presidential power is likely to culminate in a series of uncompromising battles with Congress. "Cheney has made this a matter of principle," Shane said. "For that reason, you are likely to hear the words 'executive privilege' over and over again during the next two years." This story also appeared in the San Francisco Chronicle.
Professor Peter Shane was interviewed on National Public Radio's Weekend Edition. The program focused on the use of executive privilege in withholding documents and testimony regarding domestic surveillance and the response to Hurricane Katrina.
Bush not there, but central in hearings; Senators and legal experts look at his increased power during war on terrorJanuary 10, 2006
Professor Peter M. Shane is quoted in this San Francisco Chronicle story about Judge Samuel Alito's U.S. Supreme Court confirmation hearings.
Professor Peter M. Shane appeared on C-SPAN's morning public affairs call-in program, Washington Journal, to discuss the legal sources and uses of presidential power in the United States.
Professor Peter M. Shane wrote an op-ed that appeared in the Washington Post that addressed the nomination of John Roberts as Chief Justice of the U.S. Supreme Court.
In a Pittsburgh Post-Gazette story about the involvement of Congress in the Terri Schiavo case, Professor Peter Shane said that the bill has the flavor of unconstitutionality.
Professor Peter Shane, the director of the Center for Law, Policy and Social Science, wrote this op-ed column which appeared in The Washington Post. Shane noted that if the 2004 presidential election brings another mismatch between the electoral and popular votes, maybe there will be national agreement that the current electoral college system has got to be reformed.
Professor Peter M. Shane considered what would happen if the Electoral College wasn't selected by the voters in an op ed piece in the Washington Post.