Professor Peter Shane confirmed June 21 that he has been elected to the American Constitution Society Board of Directors.
The ACS is “the nation’s leading progressive legal organization, with over 200 student and lawyer chapters in almost every state and on most law school campuses. ACS was founded on the principle that the law should be a force to improve the lives of all people.”
Professor Peter Shane was recently quoted in an article in The New York Times titled, “Liberals Begin Lining Up Young Judges for a Post-Trump Surge.”
“It would be nice to see more people who have experience outside the three big pots (sitting judges, prosecutors and senior law partners),” he said
“The public has much less tolerance for political grandstanding and much greater insistence on problem solving at the state level,” Shane said.
“Why should this misleading argument be any different from any other misleading argument?” Shane said.
“It’s as if Congress had created a book of a bunch of recipes that the president is allowed to use only if he formally shouts ‘I’m hungry,’ ” Shane said. “He still has to pick out the recipes,” Shane said, “and [the courts] have to decide if the recipe’s being followed.”
“[The] fact that the president doesn’t want to turn them over is, by itself, legally irrelevant,” Shane said.
“It’s not entirely the executive branch (Trump) trying to usurp the powers of Congress,” Shane said. “It’s also a matter of Congress sitting on its hands.”
“The implications for Trump are twofold: First, should Congress find that presidential corruption has so undermined the legitimacy of the incumbent as to warrant impeachment, the non-criminality of his corruption would not be a constitutional defense,” Shane writes. “Second, should Congress deem the president guilty of criminal obstruction of justice, it would likewise be irrelevant that the Department of Justice had decided not to bring charges.”
“The asterisk is that these investigations have very different purposes and very different constitutional roots,” Shane said.
“Congress’s vote, even if vetoed, would solidify any court’s understanding that the so-called emergency is really part of an end-run around a legislative branch that is unconvinced an emergency exists, that refused to fund the wall, and that is constitutionally in charge of federal spending,” Shane said.
“There will be a question raised as to whether a court should get into this quite so early,” Shane said.
Undoing the court’s substantive due process analysis is “wildly unlikely given how much Constitutional law has now been built on the foundation of the due process clause,” Shane said.