Are There Limits to the President's Emergency Powers?

Since the President has been talking about using emergency powers to build a wall without congressional authorization, you might be wondering just what these emergency powers are and whether there are limits to them.

This morning I saw an article on The Atlantic's website and then did a little looking around myself. Now there's a page about Emergency Powers—listing a variety of material from short articles to videos to books—in our Presidential Power guide.

A great place to start learning about presidential power is The Limits of Presidential Power: A Citizen's Guide to the Law, by Professors Lisa Manheim and Kathryn Watts. Since it's aimed at the general public, it's more accessible than most law review articles and legal treatises. But since it's written by two top law professors, it's still totally accurate and reliable.

Flip through the Presidential Power guide to learn about a wide variety of issues related to the Presidency.

Women Arguing Before the Supreme Court

As far as Supreme Court advocacy goes, you can safely assume that the nineteenth century pretty much belonged to men. But when did women first argue to the Court? Who appeared more than once? How have the numbers picked up?

Two articles by Marlene Trestman on the Supreme Court Historical Society's website give the answers:

• Women Advocates Before the Supreme Court, from October Term 1880 Through December 2016 
• First 101 Women to Argue at the United States Supreme Court. 

Here's a graphic, showing how the numbers picked up in the mid-twentieth century, then took off after about 1970. The blip in 1880 is Belva Ann Lockwood.

Arguments by Women, chart from Women Advocates Before the Supreme Court

This project of looking at all women who argued before the Supreme Court was a side project for Trestman's biography of Bessie Margolin, the Assistant Solicitor of Labor, who argued 24 times between 1945 and 1965. 

You can check out Fair Labor Lawyer: The Remarkable Life of New Deal Attorney and Supreme Court Advocate Bessie Margolin (2016) in print or online. Publisher's page here. 

Nuremberg Trial Documents, Here and Online

The International Military Tribunal (IMT) and the United States Nuremberg Military Tribunals (NMT) tried Nazi leaders for war crimes and crimes against humanity. Among other things, the tribunals produced papers—tons and tons of papers. Indictments, transcripts, and exhibits (and translations of indictments, transcripts, and exhibits).

Some of the Nuremberg transcripts in
Gallagher's Special Collections

The Gallagher Law Library has a large set of the transcripts. Why? Because one of the judges was Walter Beals, a graduate of UW Law's very first class (1901) and a justice of the Washington Supreme Court, who was called into service as an Army reservist to serve in Nuremberg. Later he arranged for a set of materials to go to his alma mater.

Federal Courts and the Government Shutdown

Photo by Bonnie Kittle on Unsplash

The government shutdown is about to extend to the federal courts.  The courts actually have been impacted already--for example, some government litigation has been put on hold--but the effects are about to expand.  The federal courts have announced that they only have enough funding to continue operations through the end of January, or February 1 at the very latest.  That is just next week.  If the shutdown stretches past next week, the Antideficiency Act kicks in and the courts will be limited to "essential" services, as determined on a court-by-court basis.  

No one knows exactly what that will look like if the courts go into essential-operations mode.  Criminal cases should proceed in every court.  Civil cases will be impacted, but the effects will vary by court.  We should expect to see backlogs in dockets.  Judges and staff needed for essential services will have to work unpaid, the same as other federal workers.  Though jury duty has never been a lucrative gig, jurors (at least temporarily) will have to go without jury pay and travel reimbursement.  If the courts run out of money, these immediate effects are likely just the tip of the iceberg.  For the 12 months ending September 30, 2018, the average time from filing to disposition of criminal cases was 7.0 months, and for civil cases was 9.2 months.  For civil cases that went to trial, the average time to trial was 27.3 months.  It will be interesting to see what happens to the length of legal proceedings.

For more on the consequences of a federal government shutdown, including but not limited to the courts, see this Congressional Research Service report issued last month.

UPDATE (1/25/2019 1PM): The White House just announced a (temporary) reopening of the government. It is being reported that President Trump has reached a deal with Congress that would restore funding through February 15. It looks like the courts have dodged a bullet, at least for now. It will still be interesting to see if the shutdown's initial effects will lead to a noticeable lengthening of dockets and pace of proceedings.

Food Labeling Started Because of...The Jungle?

Have you ever read Upton Sinclair’s The Jungle? It’s a fictional work originally published in 1905 about the terrible conditions of the meat processing industry in the Chicago stockyard that effectively strong-armed Congress into taking action. The public outcry after the revelation of what went on in the Chicago factories led directly to the passage of the U.S. Pure Food and Drug Act in 1906. Originally, Sinclair's motive was to draw attention to the migrant workers' plight in the Chicago meat industry. He famously said "I aimed at the public's heart, and by accident I hit it in the stomach."*

Courtesy of Library of Congress

Eventually, this legislation was superseded by the Food, Drug, and Cosmetic Act in 1938, which, though amended, still remains in effect today. Then later, in 1990, Congress passed the Nutrition Labeling and Education Act which required uniform nutrition labeling and regulated other labeling aspects, such as nutrition content or health claims.

Today, food labeling laws and regulation continue to evolve and expand, but who knew it all started in The Jungle?

*Lawrence M. Friedman, American Law in the 20th Century 61(2002).

FDA…USDA…Organic, Non-Organic? How Do You Know What’s In Your Food?

Ever wonder who actually regulates the labels that you (sometimes) read on the food you buy? One might assume it’s the Food & Drug Administration (FDA), but then all the organic products say “USDA Organic”….and even still the non-GMO products have a whole different stamp on them….Who does what?

Well, there are a few different Federal agencies that look after that. The idea about the FDA is good, because most food labels fall under their jurisdiction. However, the United States Department of Agriculture (USDA) governs food labeling requirements for meat, poultry, and eggs as well as what constitutes “Organic” for the purposes of that familiar little green and white circle. Additionally, the Bureau of Alcohol and Tobacco Tax and Trade within the Department of the Treasury has jurisdiction over, well, alcohol labels. On the international side of things, the Office of the United States Trade Representative (USTR) takes part in treaty negotiations regarding food labeling in international trade.

The Non-GMO Project, whose stamp often appears beside the “USDA Organic” symbol, is actually a non-profit organization dedicated to offering a third-party non-GMO verification program, and is therefore not a regulatory regime.

All that to say, it’s (not surprisingly) a little complex, but it helps to know where to start. If you want to know what “Cage Free” on your egg carton means, you’ll want to go to the USDA resources for that. On the other hand, for “major food allergens,” you’ll want to hunt down FDA offerings to get some guidance. Food labeling is increasingly becoming a topic of discussion in today’s society. It’s good to know where to go.

Trailblazing Women in Law—website and book

Wouldn't it be great to sit down for a chat with a woman who entered the legal profession 50 or 60 years ago and managed to achieve success as a judge, law professor, law firm partner, or government official? What was it like to be one of only a a few women in law school? How did she get her first job? What sorts of cases did she handle?

Justice Ruth Bader Ginsburg has become a pop culture figure—perhaps you have an RBG T-shirt or coffee mug of your own—but she's not the only one! The ABA and the American Bar Foundation started the Women Trailblazers Project a few years ago to capture oral histories of some women in this generation. In November, Stanford's Robert Crown Law Library launched a multimedia site with material from the project (including material that the ABA has never posted).

For different trailblazers, the Stanford site has photos, oral history transcripts, audiorecordings, videorecordings, and photographs. (A few subjects, including RBG, have restricted their material, to be released after their death.)

Here's a tip: After you click on an oral history, click on the download icon below it. That will give you a list of what's available (e.g., transcript, audiorecordings, photos).

Download icon

For local interest, check out the pages for Judge Betty Binns Fletcher (UW Law 1956) and Ada Shen-Jaffe (long-time director of Columbia Legal Services and social justice advocate).

If thousands of pages of oral history and hundreds of hours of recordings overwhelm you, you can start with a book that curates highlights: Jill Norgren, Stories from Trailblazing Women Lawyers: Lives in the Law (2018) (publisher's page). The library has a copy in print. There also happens to be a great bargain on the Kindle version: it's just 99 cents this week (until Jan. 13).

(This is just one 99-cent deal NYU Press is offering. There are some interesting books on technology and society, women in the workplace, transgender kids, and more.)