Law Schools

Yale FedSoc Dutifully Blows Off ACS Challenge

It's almost like they don't even understand what they're being asked.

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When the American Constitution Society asked the Federalist Society to join them in supporting the rule of law against presidential intimidation tactics, they probably didn’t expect a lot of support. As I pointed out yesterday, Trump has more or less agreed to put every FedSoc member on the federal bench by next year so the organization doesn’t have much incentive to stand on principle.

That was, of course, hyperbole — obviously not every FedSoc member will end up on the bench. Every Yale Federalist Society member, on the other hand, probably will if they just keep their knee appropriately bent in Trump’s direction. So when folks started presenting the student group with the ACS challenge, you can absolutely predict what happened next.

As any litigator will tell you, whenever you need to shut down an argument, always reach for the dissent in an 8-1. For those who aren’t as deep in the Supreme Court history, the case in question dealt with the Office of the Independent Counsel and whether Ted Olson could be investigated by that entity even if the White House didn’t want an investigation. Scalia objected to the idea, arguing that the separation of powers prevented Congress from forcing the executive branch to submit to an investigation.

Except… the Independent Counsel Act expired decades ago. There’s not even the hint of a separation of powers issue here, only a president who flirts with an interpretation of executive authority that would bar any investigation of his cronies. As one Yale student put it:

Realizing they couldn’t let this lie, the Federalists followed up by citing an article about Professor Amar criticizing proposed legislation that would place legislative checks on the president’s ability to fire Mueller…

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But that seems to miss the whole point, doesn’t it? The ACS letter is a declaration that respecting the rule of law requires that the president shouldn’t interfere with investigations taking place wholly under the auspices of the executive branch. They’re not arguing that he doesn’t have the power to fire these people, but that he shouldn’t do that. In fact, the premise that Trump has the authority to fire Rosenstein and Mueller is central to the ACS statement.

Maybe conservative law students have some good arguments for why a president should fire these guys. Anything’s possible. But can we please move on to that debate and not waste time on a non-issue about presidential powers?

Earlier: ACS Asks FedSoc To Defend The Constitution — FedSoc Responds, ‘New Phone, Who Dis?’

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HeadshotJoe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.

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