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Samuel Sewall (congressman)

From Wikipedia, the free encyclopedia

Samuel Sewall
Member of the U.S. House of Representatives
from Massachusetts's 10th district
In office
December 7, 1796 – January 10, 1800
Preceded byBenjamin Goodhue
Succeeded byNathan Read
Personal details
Born(1757-12-11)December 11, 1757
Boston, Massachusetts
DiedJune 8, 1814(1814-06-08) (aged 56)
Wiscasset, Maine
Political partyFederalist
Alma materHarvard College

Samuel Sewall (December 11, 1757 – June 8, 1814) was an American lawyer and congressman. He was born in Boston, Massachusetts.

After attending Dummer Charity School (now The Governor's Academy), Sewall graduated from Harvard College (A.B. 1776, A.M. 1779, honorary LL.D. 1808) and set up practice as a lawyer in Marblehead. He served as a member of the state legislature in 1783, and from 1788-96.

He represented Massachusetts in the U.S. House of Representatives from 1796 to 1800, and from 1800 to 1814 served as a judge of the Massachusetts Supreme Judicial Court, becoming Chief Justice in 1814. He died at Wiscasset, Massachusetts (now Maine) while holding a court there.[1] He was elected a Fellow of the American Academy of Arts and Sciences in 1801.[2]

American novelist Louisa May Alcott was Sewall's great niece. His younger sister, Dorothy, was Alcott's great-grandmother.[3] In 1781, he married Abigail Devereux; they had a family of at least six sons and two daughters. Sewall's great-grandfather Samuel Sewall was a judge at the Salem witch trials in colonial Massachusetts, and subsequently Chief Justice of Massachusetts.[1]

Sewall was elected a member of the American Antiquarian Society on June 1, 1814.[4] Sewall died 7 days later on June 8, apparently before he could formally respond, so his disposition regarding membership is unknown.

YouTube Encyclopedic

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  • ✪ Presidential Power in 2017 | UW School of Law
  • ✪ Matthew C. Perry


[MUSIC PLAYING] KATY SEWALL: Hello. Good evening, everyone. I'm Katy Sewall. I'm Town Hall's Program Director . And on behalf of Town Hall, thank you for coming to tonight's program about presidential power. We're so glad you're all here. This event is part of our civic series, which is brought to you with support from Boeing, the True Brown Foundation, Real Networks Foundation, and with the media sponsorship from KUW-FM. [APPLAUSE] Please join me in welcoming Dean Kellye Testy. [APPLAUSE] KELLYE Y. TESTY: Well, good evening. And thank you, Katy, for that kind introduction. And thank you for inviting us to Town Hall. We also want to thank your entire team, especially Ashley, for all the help in putting this program together. And the University of Washington School of Law couldn't be any prouder to be here tonight to talk about the rule of law in our world right now. Our nation is one committed to the rule of law, which is designed to promote some stability during times of transition and change and indeed, to support peaceful, a prosperous, and a very just society. And that's the goal that we have as lawyers. And at UW law school, we educate leaders for the global common good. That's our mission. And while our reach is certainly around the globe, our feet are firmly planted in Washington state. And we aim to be of service to this community and very much value our role as a public law school devoted to assisting our community with learning about issues that matter. So tonight, we're very pleased to be here to discuss a nonpartisan issue that is the top of every newscast and above the fold in every newspaper. And that topic is, what is within the scope of the authority of a president? Now, I am as interested as you are to hear from my distinguished colleagues tonight. And so I want to introduce them to you. To my immediate left is Professor Lisa Manheim. And Professor Manheim will be the moderator tonight and will join me at the podium in just a moment. I want to let you know that she is an expert in election law, so pretty on point for tonight. And in addition to previously practicing law, Professor Manheim served as a clerk to Justice Anthony Kennedy of the United States Supreme Court. Moving down the row, I want to introduce Professor Kathryn Watts, who holds the Jack McDonald Endowed Chair at UW Law School, and is one of our nation's leading experts on presidential power in the administrative state. She's been a little busy lately answering questions. Among many professional activities and honors, I also want to let you know that Professor Watts was also a clerk on the US Supreme Court, serving for Justice John Paul Stevens. Next to her is Professor Trevor Gardner. Following his graduation from Harvard Law School, he worked as a trial attorney for the District of Columbia public defender service, and later obtained master's and doctoral degrees in sociology from UC Berkeley. He is an expert in criminal justice, with a focus on policing. Next to Trevor is Professor Angelica Cesario, a graduate of Columbia Law School and an expert in immigration law. Professor Cesario previously worked with the Northwest Immigrant Rights Project in Seattle, and there, she specialized in representing immigrant survivors of violence and also representing farm workers. Next to her is Professor Sally Sanford, an expert in health care law, including the Affordable Care Act. Professor Sanford began her career as a law clerk for Judge Robert Beezer, of the US Court of Appeals for the Ninth Circuit. She served then as an assistant attorney general, representing the UW Medical Center, Harborview Medical Center, and the UW's health sciences schools. And at the end of the line here, last, but certainly not least, is my colleague, Professor Bob Anderson. He is a professor at UW Law and directs our Native American Law Center. He's an expert in American Indian law, natural resource law, and environmental law. Professor Anderson also served in the Department of the Interior in the '90s and was co-chair of President Obama's transition team for the Interior in 2008. I will be back to moderate the Q&A after our panel has made their presentation. At this time, I'm delighted to welcome to the podium Professor Lisa Manheim. Again, thank you. [APPLAUSE] LISA MANHEIM: So thank you, Kellye, and thank you to everyone for coming. So here's the question I have for our panel. Why does it seem like sometimes the president can't get anything done, but other times it seems like the president can do anything he wants simply with a stroke of the pen? The answer lies in the law of presidential power. And that law is confusing. That confusion, in turn, can be frustrating for people, and particularly for those who would like to get involved in the process and have their voices heard. Today's discussion is an attempt to respond to that confusion. It's an effort to help to shed light on the question of presidential power by looking more deeply into the question of what a president can do and what a president cannot do. We hope to demystify these sorts of laws and these sorts of restrictions in an effort to better understand what sort of constraints a president have. And we hope that this discussion demonstrates the following point. While it is, in fact, difficult to understand the legal limits on a president's power, that difficulty exists because the relevant laws are complicated and not because those laws are random or nonexistent. And as a result of these complicated, but important restrictions, individuals really can have influence in politics through various forms of civic participation. So we'll be sure to leave a few minutes near the end of the program for questions from the audience. And we'll also be wrapping things up no later than 9 o'clock. So as you think about your questions, we would ask that you please try to be succinct, no more than a couple of sentences. And the reason for that is that we would love to hear from a number of you, and also because we do have a lot to talk about tonight. To that end, let's with Catherin, who is an expert in presidential powers. Kathryn, President Trump has been quite busy in his first two weeks in office. Now, things that he says to the news or things that he says on Twitter, that does not have legal effect. But by contrast, when he communicates through what are called executive orders, that does have legal effect, or at least it can. And one big recent example of this is the executive order that President Trump issued on Friday, which imposed the travel ban. So this all leads to the question, Kathryn, what is an executive order? And why is the president allowed to issue them? KATHRYN WATTS: Sure. Thanks, Lisa. Yes, the president has indeed been very busy signing a number of orders, orders that touch on everything, from building a wall, to putting a temporary freeze on regulations in our country, to instituting the travel ban that Lisa just mentioned, to freezing federal hiring. So what is an executive order exactly, Lisa asked? Our government, it's divided into three branches, as we know. There's the legislative branch that makes law. There's the judicial branch that interprets the law, when deciding cases. And then there's the executive branch that enforces and executes the law. And sitting at the very top of that executive branch is the president. He sits atop a pretty massive executive branch. It has hundreds of federal agencies in it. It has more than 2 million federal employees within it. And about 4,000 of those are political appointees. So at its essence, an executive order is a communication tool. It's a signed document that the president can use to communicate his wishes to those that work underneath him within the executive branch. It's a communication tool to ask officers or to demand that officers do something or stop doing something. At its heart, that's what an executive order is. And they're not new. They've been issued throughout our country's history. All the way back to President George Washington, we saw orders being issued. Most of them are directed internally at internal government affairs or at government officials, and they don't have a direct impact on external actors, on private individuals. A good example of that, when President Clinton entered office, President Clinton signed an order that put into place various ethics standards to govern his political appointees. And President Trump recently signed a very similar ethics order that also put into place ethics standards to govern his executive officers. So these kinds of orders, orders that govern and speak to executive officials and their actions, they're really commonplace. And for the most part, they're not terribly controversial. But much, much more controversial are those orders that do have an impact on private individuals' lives, orders whose impact spills over into the private sphere. One particularly controversial example, a good example, I think, of such an order, are memos that were issued during the Obama administration in the immigration arena, memos that tried to protect undocumented parents and children from deportation. Another example of something more on the controversial side is the travel ban that Lisa, you just mentioned. And so another piece of your question, Lisa, was not just what executive orders are, but what gives the president the power to issue these orders that can have such significant impact on people's lives, with just the stroke of a pen? The answer, I guess not that surprisingly, as it often is in the law, is it depends. Sometimes it's the Constitution that gives the president that power, and sometimes it's Congress via statutory delegations of power, where Congress hands away power to the president. But regardless, our president in our country is not a king, right? He doesn't have a magic make it happen wand. Instead, all of his executive orders, if they're to have a legal effect, they have to be grounded in some sort of legal authority flowing from the Constitution or flowing from statutes. And if they are based in a legitimate source of legal authority, then they're legally binding. They can have the same legal effect as statutes. LISA MANHEIM: So are you saying that the president can, in effect, change the law simply by signing a piece of paper? KATHRYN WATTS: Yeah, yes. In effect, even though I just told you the legislative branch is the branch that makes law, the president can make law, too, when he's been given the power to do that, when Congress has handed him that power or when the Constitution vests that type of power in the president. To make it a little bit more concrete, maybe I could mention briefly three concrete examples of orders that President Trump has signed and show you how they'll have different effects. And the reason they have different effects is because of the legal authority that many of them are based on. So the three that I think would be good examples-- first, the order that directs the building of a wall; second, an order that tells agencies that, for every new regulation they want to come in the door and be put on the books, they need to take two existing regulations off the books; and then the third contrasting example of the temporary travel ban. So let's talk briefly about the first, president's order directing the building of a border wall. So does President Trump, does he have the unilateral power to just, with the stroke of a pen, commit our country to building a wall along the entire border between the United States and Mexico, which spans nearly 2,000 miles? No, he really doesn't. And why not? Why doesn't he have that power? Well, because building a wall along the whole border would cost a whole lot of money. Estimates show somewhere between 8 billion and $25 billion. And under our constitution, the president does not control the purse strings. Who does? Congress controls the purse strings. So years ago, Congress did pass a statute that authorized the building of some barriers along small portions of the border. But if the President wants to build a wall along the entire border, then the president's going to need money, and will need money from Congress. Now, President Trump and his advisers, they certainly know this. So as a result, if you read the order, then you'll see that what it actually directs, it simply directs government officials to try their best to identify funding to find money and to develop budget requests from Congress for money. So in the end, this particular order, its legal impact is fairly limited in terms of the wall. But it certainly has significant communicative value, communicating to his officers, telling them to start taking steps, and also significant political effect. Because it sends a strong signal to his supporters that he is following up on a key campaign promise. Contrast that with President Trump's two out, one in order. This was an order that says to federal agencies, agencies that regulate everything from the environment, from the air we're all breathing right now, to the safety of workplaces, tells federal agencies, if you want to make a new regulation, then you need to take two existing regulations off the books. So this order, this order will have significant effect on federal executive agencies. Why? Because the heads of those agencies, they work for the president. They can be fired by the president. So they listen to the president. But does the order itself actually undo regulations that protect me and protect you and that impose obligations on all of us and impose obligations on businesses? No, the executive order itself doesn't undo regulations, and it can't undo the regulations. Rather, under law, taking away regulations, taking them off the books, that has to be done by the agencies. And it has to be done through a really lengthy and cumbersome process, one that we call notice and comment rulemaking. Sounds fancy, but really all it is a process that says, all of us, everyone, has an opportunity to submit comments to participate. And then the agency has to justify its decision, based on the statute, based on regulatory scheme, based on scientific data, based on studies, and based on public comments. So in the end, the two out, one in order, it, too, doesn't have a huge amount of immediate legal impact. Sure, it has political value, communicative value. It tells his officers to start the process of undoing regulations. But the order itself doesn't undo regulations, because the president doesn't have the power to do that. The law puts that power elsewhere. Now, contrast that example with the third, the travel ban. The travel ban, which bans travelers coming from seven predominantly Muslim countries, it obviously had immediate impact, significant impact, many would say severe impact on families, on children, people across the globe. It resulted in detention at individuals at airports across our country. So that order, it indeed did much more than simply issue directions. It actually altered rates. President Trump believes that both the Constitution and various statutes give him the power to take that action in the name of national security. Others believe that the president exceeded his powers and acted in violation of the Constitution. So not surprisingly, given this dispute, lawsuits have already emerged across our country, including one actually that was just filed here in Seattle on Monday by the State of Washington. [APPLAUSE] State of Washington took the lead, quick to file. And we will see how that unfolds. A hearing is taking place on Friday. Also, earlier this week, many of you probably saw in the news, the acting attorney general Sally Yates, the head of the Department of Justice at the time, she was fired by President Trump, fired because she said that she would not defend the order in court. So given all the controversy, the legal controversy, around this order, I expect that, with time, these legal issues, they'll work their way up to the US Supreme Court, much as President Obama's actions in the immigration arena worked themselves up to the US Supreme Court last year. The issues of presidential power here, they're just-- they're that big. So hopefully, comparing and contrasting those three examples helps to show you that not all executive orders are created equal, in terms of their impact-- some, mainly service communication tools or political tools, others have real legal impact on the ground that you see immediately. And as Lisa said, the reason for that, it's not random or haphazard, but rather it turns on the wording and the scope of the order, and even more importantly, on the legal authority that the president is hanging his hat on when he signs that order with the stroke of a pen. LISA MANHEIM: Thank you, Kathryn. Now, when it comes to whether the president has the legal authority to do things, sometimes the president disagrees with some other party or a person in the government. And a lawsuit will arise out of that. And you mentioned that Washington has filed a lawsuit along those lines. Now, that brings up, for at least me, the question of the announcement that President Trump made yesterday, when he nominated Neil Gorsuch to the United States Supreme Court. One thing that some folks maybe-- excuse me, may be wondering is, if this judge is confirmed, will Judge Gorsuch-- is he likely to just sign off on anything that President Trump does, for example, the travel ban? KATHRYN WATTS: Well, I don't have a crystal ball, so it's impossible to predict what Judge Gorsuch will or won't do with respect to, for example, the travel ban. But I can say that it's safe to say that Judge Gorsuch, just like other federal judges, they don't just do what the president says to do just because the president told them so or just because the president appointed them. That's not how courts work. I remember watching a debate with my kids this fall, a presidential debate, where Trump, at the time, said that if he were elected, Roe v Wade, involving abortion, would be overturned automatically. And I remember explaining to my kids that that's not how it works. Presidents don't get to overrule Supreme Court precedents interpreting the Constitution. Only Supreme Court justices get to do that. And when they do that, when they interpret the Constitution, federal judges decide cases based on their interpretation of the law, not the whims of the presidential winds, not their own personal policy preferences. Instead, they have to act based on the rule of law. And I think really important here to keep in mind is that our Constitution does something, I think, quite brilliant. It insulates our federal judges. It gives them protection from politics. It gives them lifetime tenure, so job protection, and salary protections. And in giving them those protections, it enables them to act as an independent check on political actors. They can act as an independent check without fearing that removal, that being fired, that fear is hanging over their head. They don't have that fear hanging over their head, the same way that Sally Yates did, when she stepped forward on Monday, and said, I will not defend this order. And it resulted in her firing. LISA MANHEIM: Great. So to be clear, then, although a president-- and here, President Trump-- nominates people to the courts, those judges and justices are then protected from the president at that point. KATHRYN WATTS: Yeah, that's right. LISA MANHEIM: OK. But of course, that's not true of many of the other-- the president's other appointments, including appointments of people to run a number of very important agencies-- the State Department, the Department of Homeland Security, the Environmental Protection Agency. Those appointees generally serve at the pleasure of the president, which means that he has the power to fire them if he disagrees with something they are doing. Now, one of the most controversial of President Trump's recent appointments has been that of Jeff Sessions to run the Department of Justice. Trevor, as our expert on criminal law, what does the Department of Justice do? And can you explain why this particular appointment has been so controversial? TREVOR GARDNER: Sure. So let me start with a brief description of the Department of Justice. As many of you know, the Department of Justice, also known as DOJ, is a federal agency. It's principally charged with investigating and prosecuting violations of the federal law. The Department of Justice has about 60 subdivisions, including the Drug Enforcement Agency, the DEA; the FBI; the US Attorney's Office; and the Civil Rights Division. Now, the second question is a bit more complicated, speaking specifically about the controversy around Senator Sessions's appoint-- or nomination. It might be helpful to start by talking about the support for Senator Sessions. He is a longtime senator from Alabama. He served in that capacity for several decades. He ran unopposed in Alabama in 2014. He has a long track record of public service. He used to be the US Attorney for the Southern District of Alabama. But turning to the controversial elements of his nomination, a lot of people have questioned his ability to relate to minority populations, his policies, his stances, with respect to minority populations. Well, what am I talking about specifically? If we go all the way back to Senator Sessions's tenure as US Attorney for the Southern District of Alabama, he took a number of controversial positions with respect to voting rights. He specifically prosecuted three civil rights workers in 1986. And that prosecution has dogged Senator Sessions's career for several decades. I just want to give you a few details about that prosecution. One of the civil rights workers, one of the three, had been working for decades to register African-American voters in Alabama. The three of them were accused of voter fraud, mail fraud. There were 29 counts to the indictment. They went to trial. Many of the counts were thrown out by the judge at trial. Other [INAUDIBLE] went to the jury, and all three were acquitted. Senator Sessions says that if he was to go back, if we could turn back the clock, that he would again prosecute each of these individuals. And that's been very concerning to his critics. Let's fast forward to the contemporary context. Why is Senator Sessions a controversial candidate today? What has he done as Senator to give people pause? Well, for one, Senator Sessions has advocated for eliminating police misconduct investigations by the Department of Justice. Senator Sessions has called these investigations disrespectful. He's called them offensive. And he says that were, essentially, with these investigations by the Department of Justice, specifically the Civil Rights Division, undermining confidence in our police officers. I think President Trump shares that general sentiment. He's essentially described critiques of police, these reform efforts at the federal and local levels, as being part of a war on police. So again, that's concerning. There's an open question as to whether these pattern and practice investigations, investigations of police misconduct, on the local level will continue in the Trump administration. If we're to talk about the ability of Senator Sessions to eliminate or terminate these pattern and practice investigations and the content decrees that stem from these pattern and practice investigations, it's going to be a little bit more difficult than I think he or his supporters suspect. For one thing, many of these investigations resulted in consent decrees. The Obama administration secured, I think, it's 19 agreements at the local level, with local governments, with respect to criminal justice reform and local police departments. 14 of these 19 agreements were considered-- or are consent decrees in which a federal judge signed the decree, turning the decree from a mere agreement to a judicial order. So for those 14, with respect to those 14 consent decrees, there's really very little President Trump can do. The Department of Justice cannot unilaterally terminate a judicial order. They can't unilaterally terminate these consent decrees. So I think we can have confidence that, for people who support the consent degrees, who support these federal efforts at local criminal justice reform, we can have confidence that these agreements will remain in place. However, for cities like Baltimore, other cities around the country, in which the investigations are open, in which the consent decrees have not yet been signed, I think it's very likely that the tentative agreements that have been forged will be terminated. I think it's also very likely that we will not, from this point forward under a Trump administration, under Jeff Sessions's tenure at the DOJ, see additional investigations of local police departments that have been found to be violating local residents, civil rights, in a systematic fashion. I want to put one more issue on the table, one more issue with respect to presidential power under a Trump administration, under Jeff Sessions's DOJ. And that's the issue of the federal marijuana prohibition. As many of you know-- some of you may know-- Senator Sessions is not a fan of marijuana. He's made a number of remarkable statements about marijuana. Among other things he's said-- well, back in his hearings, back in the 1980s, he was appointed-- he was nominated, excuse me, to be a federal judge by Ronald Reagan. There were a number of witnesses who talked about racially charged statements he had made when he was operating in the Southern District of Alabama. But I think one of the more interesting comments he was alleged to have made is that he was OK with the KKK, until he found out they smoked marijuana. And that's testimony on the record in Senator Sessions's hearing. Now, he denies having made that statement, but he has made some curious statements about marijuana. He said, in a Senate-- I think, I believe it was the Judiciary Committee. He said that, in his estimation, good people do not smoke marijuana. And he's taken the Obama administration to task. By name, he's mentioned President Obama. He's mentioned attorney generals Loretta Lynch and Eric Holder as well as the FBI director James Comey, saying they all have abdicated their responsibilities as part of the executive branch, and specifically, in enforcing marijuana decriminalization-- excuse me, in failing to enforce the federal marijuana prohibition in decriminalization states. So let me just wind down by saying that I do think the federal government, DOJ, Jeff Sessions, is going to be very aggressive about prosecuting marijuana production, distribution, and decriminalization states. And I think that's important. There will be a clash between the federal government and, I think, high profile producers and distributors in decriminalization states. Let me add a few points to that. This is not going to be an easy task for the federal government. Well, why is that? A couple of things. One, it's important to note that the federal government does not have the ability to direct state and local police, right? It cannot issue directives, commands, to state and local police. Well, why is that important? There are about 1.2 million law enforcement agents across the country. Only 80,000 of them are operating at the federal level. That means, in order for the federal government to broadly and for something like the federal marijuana prohibition, it needs the cooperation of state and local police. It often comes in on the back end after local police have made arrests for marijuana production, distribution, trafficking, and prosecutes. The DOJ will prosecute on the back end, being our local police are doing a lot of that work. So in the event that Sessions, the DOJ, does not have that cooperation, it's going to be, again, difficult for them to prosecute, enforce the federal marijuana prohibition broadly in decriminalization states. So I want to make that point. I want to make the point that local governments still matter. They matter quite a bit in criminal enforcement, in federal criminal enforcement. And if local governments matter, that means local democracies matter. That means every person who participates in local governance matters, because you eventually dictate exactly what your police are going to be able to do, the extent to which they can participate, in these criminal enforcement initiatives at the federal level. And I think that's important. And I'll add one last point. The idea of public safety, the concept of public safety and public security, it's increasingly politically contested. Right? For several decades, we assumed that there was solidarity with respect to public security, public safety. That's no longer the case. We look at immigrant sanctuary. If you look at marijuana decriminalization, local governments, local populations are increasingly rising up and offering their own sense of what public safety means, and as well as the means to public safety. And so I think we should also take that to heart as we consider our prosepts-- prospects, excuse me, for the next four to eight years. LISA MANHEIM: Thank you. So one thing I just wanted to underscore, it sounds like what you're saying is that, even when we have a strong federal government, state and local governments still really matter. TREVOR GARDNER: They absolutely matter. They matter because the federal government, again, cannot control state and local police. They matter because state and local police outnumber federal law and federal law enforcement agents by a ratio of about 10 to 1. All of those elements, statistics, constitutional provisions, jurispru-- they're all relevant, and they make local populations, local governments, local democracies, that much more important to federal criminal enforcement. LISA MANHEIM: Thank you. So another place where we see this interplay between the federal government and state or local governments is with respect to what are called sanctuary cities. So Angelica, you're our expert in immigration law. Can you explain what is a sanctuary city. And is Seattle a sanctuary city? ANGELICA CHAZARO: I can try. LISA MANHEIM: Thank you. ANGELICA CHAZARO: So there's no legally settled definition of what constitutes a sanctuary city. But the phrase has been used to refer to cities that take a very wide range of actions to protect immigrants, that include declining to spend local resources assisting with immigration enforcement, offering city services without respect to immigration status, refusing to detain immigrants for immigration officials, prevent-- protecting confidential records, preventing local officials from asking about or investigating immigration status, and even providing access to legal counsel for immigrants facing deportation. So Seattle is taking several of these steps and considers itself, or at least seems to consider itself, a sanctuary city as of now. LISA MANHEIM: And President Trump already has taken some steps to crack down on sanctuary cities. So can you help us understand what can President Trump do to crack down on sanctuary cities? And how can he do it? ANGELICA CHAZARO: Sure. So first, it's important to point out that local jurisdictions have no legal obligation to assist with civil immigration enforcement, which is a responsibility of the federal government, not of local governments. So a local decision to offer resources to federal immigration enforcement is completely voluntary. And in some sense, it is actually lending local resources to what's really a federal government responsibility. So non-cooperation with the federal government, in this case, could be critiqued on policy grounds. But it's rarely a clear violation of federal law. In fact, the opposite has proven to be true. In terms of legal violations, many jails that have detained people and held them on the request of immigration authorities have been held liable for violating those people's constitutional rights. , Nevertheless of course, we saw in one of last week's executive orders the president threatening to cut funding for so-called sanctuary cities. However, the president's move to try to force local communities to carry out the work of federal immigration authorities is likely to violate principles, again, of local control, which say that the federal government cannot order cities around directly. Also, the threat to cut off the funding extends on pretty shaky legal ground. The same Supreme Court decisions that we saw on state and local power, that red states relied to block democratic initiatives, will be relied on now by sanctuary cities and states to try to block the Trump administration. So ironically, it's those decisions that might prove helpful now. If the Trump administration tries to withdraw money from cities for refusing to affirmatively help federal immigration authorities, that withdrawal of funds, under current case law, will have to be pretty limited in scope. And even then, it might be unconstitutional. So as long as cities avoid affirmative interference with federal immigration enforcement activities, the national government will probably be quite limited in the amount of punishment it can dole out. One other limitation, of course, will be the financial one. So Kathryn's already mentioned the cost of the wall and the difficulties of actually carrying that out because of the finances. If President Trump wanted to follow through with the sanctuary cities and other immigration related orders he signed last Wednesday, it would require 150,000 prison beds to house immigrant detainees. And that's nearly five times as many as are currently available now. And the estimated cost alone for that would be about $8 billion. LISA MANHEIM: So does all of this mean that individuals who are in the country illegally can't be deported, as long as they're in Seattle? ANGELICA CHAZARO: No, definitely not. So first, it's important to understand that the simple fact of being undocumented, under the immigration law, means you're subject to being placed in deportation proceedings, and that many Seattle residents are already actively facing deportation proceedings just about a mile away from here, in the immigration court, here in Seattle. So the question is, for those folks in Seattle who have not yet come to the attention of immigration authorities, even living in a city like Seattle, with protections for immigrants, may not be sufficient from them to stop from being in deportation proceeding, or stop from ending up in deportation proceedings. The Trump administration has very clear deportation goals that were laid out in one of last week's executive orders. The priority for deportation is purportedly, quote unquote, "criminals." But the executive order defines this category so broadly, that, at least in my opinion, pretty much all of the 11 million or so undocumented people in the US are now priority for deportation. So in a sense, there are no priorities, because everyone is now a priority. So the question then becomes, how will undocumented people end up facing deportation? I see the executive orders of this past week as a signal to immigration officers on the grounds that pretty much any tactics they want to pursue are now fair game. And so this new executive order saying that every undocumented person is a priority for deportation means that we're likely to see a broadening of immigration enforcement practices, some of which had already been abandoned. So for example, the workplace raids that the Obama administration had basically stopped are likely to return. And we'll see a ramping up of raids that have been ongoing throughout the Obama administration. So raids on people's homes and neighborhoods are likely to ramp up. And there may be limited things that city officials can do to stop ICE officers from going to people's homes or to their workplaces. But again, despite or maybe because of that, state and local governments will continue to be incredibly important, if they wish to be a line of defense for immigrants. We already see this happening. So San Francisco already filed a lawsuit, perhaps preemptively suing the Trump administration for its threats against sanctuary cities. Los Angeles, we saw, taking a different tack yesterday-- and again, all of this is happening in real time-- with its city council announcing that it's going to be decriminalizing street vending, knowing that the misdemeanors that immigrants street vendors get charged with can make them vulnerable to deportation. So they're taking a decriminalizing tack. And locally here, just this week, the Seattle City Council passed a welcoming city resolution, which, among other things, calls for the development of a strategy to create and fund a legal defense fund for those Seattleites who do end up facing deportation. So these innovative legal and policy strategies will be more important than ever. LISA MANHEIM: Thank you. So we're starting to see a theme here, which is that the president has an enormous amount of power. But it's not limitless. And this becomes clear when we look to the role that state and local governments play. And it also becomes clear when we look to the role that Congress, out in Washington DC, plays. As Kathryn explained, for the president to act, he often needs Congress to go along with him. Now, this brings us to Sallies, our expert in health care law. And Sallie has particular expertise in the ACA, which is also known as Obamacare. So Sallie, let me ask you this. What the heck is going on with Obamacare? [LAUGHTER] SALLIE THIEME SANFORD: What is going on with Obamacare? What's happening is that the Republican majority in Congress is having a very, very difficult time agreeing on a replacement for the Affordable Care Act. And the reasons are both political and practical. So the Republicans in Congress and the Trump administration have said that they will not pull the rug out from under the 20 million people who gained coverage in the past three years. And they've promised to maintain the preexisting condition protections, and they've promised to reduce health care costs that are borne by individuals and by families. And these are all really popular promises. They are also extremely tough to square with the commitment to reducing federal regulation, reducing federal spending, and turning to a more free market approach. Because the ACA is already a very conservative, very free market oriented approach. So it would probably be easier to meet these promises by moving towards more of a single payer Medicare type system or towards actually more regulation and more subsidies. So that said, there are proposals out there. And there are two prominent ones from representative Paul Ryan, who is the Speaker of the House, and from Tom Price, who is the proposed nominee for Secretary of Human Services. So these two proposals and similar ones that are out there would have impacts throughout the health care system, including employer provided insurance and also Medicare. But I thought I'll just talk for a couple of minutes about a handful of key provisions in these as they relate to Medicaid and to the marketplaces. So first, both these proposals would repeal the requirement that people have insurance. And they would repeal the requirement that big businesses provide it. Secondly, they would fundamentally change Medicaid. So they would cut back on or entirely eliminate the Medicaid expansion for working-age, low income people. And they would convert the entire program to either a block grant or a per capita cap, and with less federal spending. And in return, states would get flexibility. But what they would get flexibility to do, realistically, is to eliminate the entitlement to Medicaid or cut back on who's covered or time limits, or cut back on coverage. I mean, this is a really important deal. It's a very big deal. There are about 75 million people who are covered by Medicaid right now, and that includes some of our most vulnerable citizens. It includes low income people over age 65 and low income people with disabilities. So that's certainly something to watch for, what happens with the Medicaid program. Third, these proposals would change the subsidies. So right now, if you purchase insurance on the marketplaces, if you don't get it through an employer, you might be able to get premium subsidies. And under the ACA, these are sliding scale, and their income-based. And they max out at about 400% of the poverty level. So for an individual who makes $50,000, they are not eligible for any premium subsidies. About 80% of those who do buy on the marketplaces do get premium subsidies. So how these proposals would change that is to make them age-based and flat. So a 50-year-old who makes $300,000 a year would get the same subsidy as a 50-year-old who makes $8,000 a year. So it would be flat. These proposals also do away with another important type of subsidy, and that's the cost-sharing reductions. So as you might know, the out-of-pocket costs can be very high on any insurance plan, including these. The ACA has cost-sharing reductions for people who are low to moderate income. And these proposals would do away with those and substitute instead what are known as health savings accounts. So in general, how they would work is the federal government would make, say, a one-time payment of $1,000 to your savings account, and then you could add to it with pretax dollars and make it bigger. And the idea is that people would have higher out-of-pocket costs, but they could turn to these savings accounts to help meet them. And the savings accounts are tax favored, which, of course, is not that useful if you're in a low tax bracket or you don't pay taxes. So we'll hear a lot about health savings accounts. The fourth thing I wanted to mention is that the proposals would bring back preexisting condition consideration for some people. So instead of an individual requirement to have insurance, the idea is you would face the threat that, if you had a gap in coverage, if you didn't have continuous coverage, then you could be charged more, based on your health status, or have other consequences to your coverage. And to help people who were rated based on a preexisting health status, these plans would encourage states to set up high-risk pools and would have some kind of federal money to encourage states to do that. It's really pretty unclear how these would work or how much money they would need from federal or state governments. So before the ACA, a number of states had these. The high-risk pools were generally quite small. I think I read that, in the whole country, there were 200,000 people on them. And they were expensive, and they tended to have wait-lists to get into them. So and then one last point I wanted to mention about these various proposals we want to keep an eye out as the plans go forward is that they would allow a much wider variety of insurance plans to be sold. So the ACA requires that all plans cover what are known as the 10 essential health benefits. It requires coverage of preventative care without co-pay and without co-insurance. And it requires that the plans have a backstop for how much money you'd have to pay any year out-of-pocket for in network coverage, and a variety of other patient protections. So instead, the replacement proposals would probably require just a basic catastrophic coverage or would just defer to whatever the states wanted to require. So related to that, these replacement proposals would allow a wider age band. And so what that means in practice is that people in their 20s would pay less than they are now, and people in their 50s and early 60s, before Medicare, would pay more. So it stretches it out. And so all these different variables, this is what underlies the idea to allow purchasing insurance across state lines. Because the idea is some states would lightly regulate. So you could buy a low coverage, catastrophic, very high deductible plan from a state that allowed that, and it would be much less expensive than a state that had required robust coverages and financial protections. So these are just a few of the key issues to watch for as the replacement debate unfolds in Congress. So overall, my sense is these proposals would reduce federal spending, and they would reduce federal regulation. They would shift costs and responsibilities onto the states and onto individuals and families. And compared to the ACA, the repeal proposals would tend to be better for those who are really good at paperwork and better for those who are healthier, and also better for those who are wealthier. LISA MANHEIM: Thank you, Sallie. [LAUGHTER] These repeal and replace proposals that you're talking about, these all require Congress to act. SALLIE THIEME SANFORD: Yes, everything I mentioned, Congress would have to act, as the repeal and replace. LISA MANHEIM: And it's generally quite difficult to get legislation through Congress, I mean, very, very difficult. And this is true even if the same party controls the Congress and the presidency. So this leads to the question, what if Congress doesn't act? What can President Trump do on his own? SALLIE THIEME SANFORD: So a Trump administration actually could throw some significant sand in the ACA's gears and could bring parts of it to a near standstill. So your changing the regulations, as Kathryn mentioned, is time-consuming process. It could certainly be some regulatory work, but that would take time. But the administration's management type strategies and their litigation choices in some key pending lawsuits really could threaten enough chaos and financial risks, that insurers could leave some markets. And this has a pretty quick time frame, because the insurers have to submit their proposals, for what they're going to offer in 2018, they have to submit those in April and May. So that's a risk. And recall, there is no public option on these marketplaces. These are all private plans, and insurers do not have to participate. So that's a real risk. And that would be related to just the administration's choices. LISA MANHEIM: So health care is likely to change in some way. But it's not at all clear, at this point, how it's going to change. So what can people do to possibly influence how it changes? SALLIE THIEME SANFORD: So I've been thinking about that. And one way that health reform is a little bit different than some other policy areas is that, I think, personal stories shared with lawmakers really do have a big impact. So lawmakers at the state and federal level frequently refer to specific communications from their constituents about the importance of having health coverage, about their needs for health care, for chronic conditions, or whatnot, and about the difficulties in paying for it. So that is one way to engage. In addition, too, there's a lot of groups working on various aspects of health reform. And if they align with your views, those would be good to tap into. But personal stories shared with lawmakers can be very big and impactful. LISA MANHEIM: So we're starting to see certain areas where public participation really can matter-- at the state and local level, through political pressure, particularly when placed on members of Congress, and of course, through support of politicians and of interest groups who are trying to rely on these same tools. But there's another area that Kathryn and others have brought up, and that's the role that litigation plays in all this. In other words, the role that the courts play in checking what the rest of the government is doing. And Bob, you're an expert in natural resources law and environmental law. And there are always a lot of lawsuits in that area. Now-- it's good for the lawyers. Now, you've personally worked on both sides of any of these disputes. You've worked for the Department of Interior, which is the department of the federal government that's responsible for managing federal lands and natural resources. And you've also worked on behalf of groups, for example, Indian tribes and NGOs, that have sued the Department of the Interior. So can you help us understand, how does this all tend to play out in the courts? When somebody sues the federal government over an environmental issue, what are they seeking to accomplish? ROBERT ANDERSON: Well, thank you, Lisa, and all of you for coming. Well, I'm going to try to get at this through two big conservation statutes or provisions that President Obama invoked late in his administration, over the last couple of years. One is the Federal Antiquities Act, and the other one is the Outer Continental Shelf Leasing Act. And they both have provisions that are very much geared towards conservation of our public lands. And one third of our lands within the United States are federal public lands and have waters preserved that are associated with those lands. And so Congress has the primary role in deciding how those lands should be used. But as others have mentioned, it's very difficult for Congress to make up its mind on every specific action that ought to be taken. And so the first statute I'll talk about is the Antiquities Act, that was passed in 1906, largely to deal with the problem of pot hunters in the southwest of the United States going into Native American burial grounds and destroying structures, of absconding with artifacts, off of federal lands. And the Antiquities Act was passed to allow the president, in his own discretion, to set aside federal lands that have-- or that contain objects or of historic, scientific, or cultural value. And it's up to the president to decide what those lands are and what the values are that need to be protected. And nearly every president since 1906 has exercised his authority under the Antiquities Act to protect federal lands for various purposes. And what these proclamations that reserve or withdraw these federal lands do is they take away the ability of individuals like you or I to go out and prospect for gold or other valuable minerals. They're not available for grazing by cows or sheep or other creatures that rely on forage. They're also not allowed-- unless they're wild, of course. And they also allow the president to withdraw the lands from operation of off-road vehicles or other destructive activities that might harm the resources on those lands. And so President Obama was very active in establishing or increasing the size of about 30 national monuments throughout the United States. And they vary in size, from about 1,000 acres in our own San Juan Islands, at 75 different sites that were set aside-- lighthouses, and things of that nature that are important to our history in the Pacific Northwest and important to the whole country. On the other hand, his last monument that was established was the Bears Ears National Monument in Utah. It's 1.3 million acres. In each one of these cases, the advocacy for the establishment of the monument came from local interest groups, whether they are historical societies and conservation oriented groups in the San Juans or, in the case of the Bears Ears in Utah, it was Indian tribes that are concerned about protecting sacred sites, and environmental groups that wanted to protect areas from exploitation under the Mineral Leasing Act, in terms of uranium mining, gold, and other valuable resources that are found on those lands. And so when President Obama issued these proclamations establishing or increasing these Antiquities Act monuments, he exercised authority delegated to him by Congress. So he's clearly got the power to do this, but it's one-way authority, or at least that's what we all think. Because no president has ever abolished a monument established by a prior president. And I can cite to you one 1938 attorney general's opinion on this point, but there's nothing else in terms of the law. So it makes a fantastic exam question for any one of us as to whether the president could abolish a monument or not. But the fact is that presidents have complained about their predecessor's use of the Antiquities Act. But then when they've gotten into that chair in the White House, they've said, well, maybe I would like to create a few monuments myself, both Republicans and Democrats. And to that vein, maybe I won't try to revoke these monuments, as the lawyers tell me it's very complicated and will end up in litigation. So the monuments tend to stay unless Congress steps in and changes the boundaries or, in a few cases, has abolished national monuments, a total of about 11 over years. But that's Congress's power, and there's no doubt that Congress has the authority to do that. And so what we see, especially with the Bears Ears Monument in Utah, is an outcry from the House of Representatives chairman of the Natural Resources Committee, Rob Bishop, who wants President Trump to revoke that Bears Ears National Monument. If he does, there's certain to be a huge amount of litigation. And so you'll see the Native American Rights Fund, which represents Indian tribes, Earth's Justice, the NRDC, jump in to support the theory that the monument may not be disestablished. We don't know what the Justice Department will do. The new attorney general could say, well, we think the president has the authority to disestablish the monument. And that will leave the NGOs to represent the point of view on behalf of their constituents that that statute is a one-way statute. It does not allow a new president to revoke a prior president's action setting aside these public lands for conservation purposes, that only Congress can do it. And so I mean, there will be a huge fight over this if President Trump decides to revoke these monuments. There are bills that have already been introduced for Congress to do it. We'll see how it plays out. Part of me says, well, you know, if somebody got to President Trump and said, well, you take this position, you're undermining your power. You want to give up power. Something tells me, maybe not, to what end? But we'll see what happens. And so that will be an issue to really watch very closely, and it will play out and be litigated unless Congress steps in. The other statute that has been used by President Obama-- and hadn't really been used by anyone except President Eisenhower before and President Nixon-- and it is the Outer Continental Shelf Leasing Act, which is the statute that allows the federal government to lease offshore areas for oil and gas production. And it's a very complicated statute, but there's an obscure section-- it's called section 12(a)-- that gives the president the authority to withdraw areas from oil and gas leasing. And it doesn't say for how long. And some presidents-- or some of the earlier uses by President Eisenhower did it for only seven or eight years, and then it expired. President Obama issued five different withdrawals under OCSLA, that withdraw permanently the area from oil and gas drilling. Nobody knows, again, whether or not a president has the authority to undo that withdrawal. Many think that it's like the Antiquities Act. It's a one-way authority and that the president doesn't have the ability to take away that withdrawn status by executive action. And again, if he does take away one of these withdrawals-- four of them are up in Alaska offshore-- there is certain to be litigation. And I'm not giving away any secrets to let you know that there are many people who are strategizing about what the appropriate vehicle will be for a lawsuit to challenge any withdrawal, and how you deal with all of the technicalities, the important technicalities, like who has standing to challenge these withdrawals, and things of that nature. But again, it will be a very important set of litigation. And it's interesting, because Catherine was talking about how the president takes actions. And some of these withdrawals took place in simple presidential memoranda, that say, under Section 12(a), I hereby withdraw-- and he describes a vast area. In others, he issued a formal executive order that withdraws an area and then sets out other management directives for the agencies to take within the area to limit bottom trawling, for example, or other environmental activities that might be destructive of fish and wildlife and marine mammal habitat. And so again, the president has a lot of authority. Can one president retract what a prior president has done? We don't know. And there'll be a lot of litigation about it. There's no Supreme Court precedent on point, no federal district court precedent on point. So it's open field running for the lawyers. [LAUGHTER] Now one other item that's been in the news a lot is the Dakota Access Pipeline litigation. And this is the pipeline-- it's an oil pipeline, to run from Northwestern North Dakota to Illinois. It's about 1,000 miles long. There's very little opportunity for federal control over this pipeline. It's not like natural gas pipelines, that are subject to the authority of the Federal Energy Regulatory Commission. If the company is careful, like the Dakota Access Pipeline folks were, they can route this pipeline on private or state land and pretty much avoid any federal oversight. And so 97% of that pipeline is on private land or state land and not subject to federal authority. But when they cross a river, they got to get permission from the Corps of Engineers. And there's two statutes that deal with that. They've gotten permission under one statute to use federal lands, but they don't have an easement. They got to have an easement. Just like if you want to use your neighbor's land, you've got to have an easement to get across it. And they don't have it. And so at the end of the Obama administration, last December, there was a directive issued that said, we should really carefully look at all of the effects of issuing this easement, and because it was triggered by the protests that were out there, that you've all heard about. And so the Army Corps of Engineers announced a process for an environmental impact statement, which will take a year or a year and a half to do, before they can take action on this easement. And President Obama promised to undo it. And so he issued a presidential memorandum that did nothing. It says, gee, look at what Obama's people did, and see if there's any way that we can expedite this. But make sure you comply with all existing laws, which include the environmental laws that require this review. And so if they're going to undo this now, they're already in court over the other related issues. Again, this will be a hotbed of litigation. You'll have property rights groups jumping in on one side or the other, environmental groups and the tribe up there jumping in as well. And you'll have this drama play out in the executive branch, the courts, and of course, Congress can always step in as well. LISA MANHEIM: Thank you. And this discussion of courts brings us back to what we talked about at the beginning of the program, which is to say that the Constitution is designed to give judges protections against what the other branches are doing. So when this all gets played out in the courts, it's not clear how it's going to come out. So what we'd like to do now is just take a few minutes, now that it's near the end of the program, for questions from the audience. And I will actually step over here and have a Dean Testy come and moderate this discussion. [APPLAUSE] KELLYE Y. TESTY: Can you even imagine how much fun I have working with these amazing colleagues and about 100 more like them. Wow, [APPLAUSE] Wow, wow, wow. Yeah, thank you so much. As we begin our questions, let me just remind you of a couple of things. One is that unfortunately, we're not able to give specific legal advice to you as the clients tonight. I do want to let you know that, on your way out, we have a lot of information about the School of Law. And we do want to be helpful to our community in any way. And so you'll have a lot of opportunity for handouts there that will help you contact us if we can be of assistance. Also remember please that we are taking just short questions, not statements, just very short questions. And I made sure that we have the Husky football team out there with linebackers, in case that doesn't happen. So let me begin over here and ask for a first question. SPEAKER 1: Yes, thank you for your insightful information provided today. I think a lot of your comments presuppose that the executive will abide by court orders, Yet, I think we've seen, from just this past weekend's federal court order and subsequent actions by immigration officers, they are not abiding by those orders. What happens in an instance where this continues? LISA MANHEIM: So [APPLAUSE] So if we have a situation where the judicial branch has been called on to opine on the legality of what the executive branch is doing, and the judicial branch-- by which I mean the courts-- tell the executive, yet-- excuse me, the executive branch-- by which I mean the president-- if they tell the president, what you're doing is illegal and unconstitutional and you have to stop doing it, and then the response of the president is to say, I'm not going to stop doing it. I'm going to keep doing it. What we have then is at least the potential for what a lot of people refer to as a constitutional crisis. And the way I think of defining a constitutional crisis is that it's a very big problem that's facing the country that the Constitution doesn't tell you how to resolve. So you just got to work it out. So if that comes to pass, that's going to be a huge problem. And it's not clear how it will work itself out. That being said, I have seen some of these same news reports. And we are not there yet, and we're not there yet for a couple of reasons. We're not there because, first, there's a difference between lower level agents or officers of the executive branch refusing to obey court orders and a refusal of a high-ranking member of the branch to refuse court orders. And the reason why, look, both are very problematic, and it's a problem. But when it's lower-ranking officers doing it, the Constitution has answers to that. There's ways within the current legal regime to handle that. So it's possible that right now, what we're seeing is lower level. The second reason we're not there yet is because, you have to remember, this stuff is happening really quickly. Lawyers are drafting things quickly. Courts are drafting things quickly. And right now, reasonable minds can disagree as to what some of these orders are saying. And if the interpretation of the executive branch is reasonable, then again, we need to work it out if there's a disagreement. But it's not a constitutional crisis. KELLYE Y. TESTY: Thank you, Lisa. I'm going to switch back and forth. Quick question here. SPEAKER 2: Maybe when I went to the bathroom I missed this. But nobody's mentioned the word fascism, as far as I'm concerned. And that's obviously what we have, a regime that's fascist. And they are fast implementing a fascist thing, terrorizing Muslims especially. So you guys are all involved with the law, which they're just going to say, screw this Constitution. That's what happens under fascism. The rule of law is thrown out. It's just an open terror. So how do you see yourself, along with what that says there, what all of us are facing now, to stop this fascist regime and drive them out? Because they can be driven out, but we're not going to go through the usual processes to do that. So how as lawyers, you're caught with this legal stuff, what are you guys going to do about fascism? KELLYE Y. TESTY: Who would like to solve fascism for us? [LAUGHTER AND APPLAUSE] Is that-- is that, is that mine? Is that mine? [LAUGHTER] SPEAKER 3: [INAUDIBLE] No, absolutely, it's not funny. And I know that this is a deep concern that people have, and for good reason. And I understand your concern. SPEAKER 3: [INAUDIBLE] Absolutely. We do, absolutely. What we're going to do is keep working for the rule of law and keep doing what we do. And I want to say that one of the things I've been very proud to see is that the way that people have put themselves at some personal risk to stand up for what's right, and to stand up for the rule of law. So you can count on our law school continuing to do that. Yes, sir? [APPLAUSE] SPEAKER 4: Good evening. The public interest group Citizens for Responsibility and Ethics in Washington has filed a lawsuit claiming that President Obama has violated the emoluments clause. While I know you guys don't-- I'm sorry. Oh, did I say? Force of habit, force of habit. Trump, wow. All right. Yeah. So while I know that you don't-- KELLYE Y. TESTY: Maybe that was [INAUDIBLE], too. SPEAKER 4: While I know you don't have a crystal ball, what do you anticipate the prospects are of a summary judgment motion for lack of standing? And if they make it past summary judgment and get into discovery, do you believe that President Trump's tax returns would be produced through discovery, and would they be produced only under seal? KELLYE Y. TESTY: One of the things our students would love to see is their professors on the hot seat. They're going to really like-- SPEAKER 4: UW Law, class of 2010. KELLYE Y. TESTY: I thought so. I thought so. [LAUGHTER AND APPLAUSE] KATHRYN WATTS: That is a great question. On the first part of your question, I can feel bad. He asked, will there be standing to sue? So standing, for those of you that aren't lawyers in the room, that aren't quite sure what that term means in the legal world, it means who's the right plaintiff to bring suit? To bring suit in federal court, you have to show that you have a specific injury to you. You have to show some causation, and you have to show redressability. The You have to show that your injury will be fixed, will be redressed, in some way by the court decision. And so this particular suit that was referenced in the question is one that raises a lot of threshold issues, not just standing questions, but potentially, there's other questions, like political question doctrine is one of these doctrines that our first-year students get to learn about, where sometimes the courts say, we don't want to decide this question. This is a political question. It needs to be answered in the political arena. It doesn't really have a good legal answer. So whether this case will ever get to the merits, I think that's a really, really good question. It's hard to know. But those threshold issues are tricky. If they do get past the merits-- I'm not sure the answer to your question about discovery-- but what I will opine on is that, on the merits, one of the tricky things in that case is, what would the relief be? And what does it get? I've heard from many people in the community say, Oh, I've heard that there's this lawsuit saying that President Trump is acting in an unconstitutional way that'll get him impeached. Well, the courts don't impeach a president. So the relief in this might actually, in the end, even if the suit is successful on the merits, be something as simple as some kind of an order that involves having to restructure businesses, sell off portions of business, rather than something much grander and bigger than that. KELLYE Y. TESTY: Thank you, Kathryn. Yes? SPEAKER 5: Yes, my question is about the dreamers. I realize their legal status is, well, questionable. What's the possibility of the Justice Department, led by Jeff Sessions, to simply around them up and deport them because of their legal status? ANGELICA CHAZARO: That's a good question. So far right now, we have the executive orders that have already been released, and then we have some leaked executive orders that we don't know if they're actually going to ever be signed by President Trump. If an executive order was signed by President Trump rescinding the status of those who got deferred action for Childhood Arrivals, so young people who got temporary permission to be here, then at that point, they would be in the same boat as everyone else in terms of being a target for detention or deportation. They did, by putting themselves forward and filing for that application, give their addresses, give their locations, to the Department of Homeland Security. And so in theory, that information could be used to find them. However, that would be a wildly politically unpopular move. And it seems, at least for now, that the way that Trump is moving forward is to try to go after people who he considers criminals. Of course, as I said before, his priorities are so broad, that he might even define DACA recipients as criminals. And so that's, I think, a moment where the sorts of legal defenses that we're seeing, the sorts of uprisings we're seeing-- for example, at the airports this past weekend, where people are showing up in droves-- that sort of defense, that is not just a legal defense, but also a defense of the people. It could be helpful in protecting. [APPLAUSE] KELLYE Y. TESTY: Thank you so much. Yes, ma'am? SPEAKER 6: Yes. Maybe taking the Antiquities Act as an example-- this is sort of a broader question now-- with something like that, where it said the president has this power, and it didn't specify if it was one way, if the general opinion of judges and lawyers has, up to a certain point, been that it was just one way, does that carry weight? And if so, how much? ROBERT ANDERSON: Well, it's been very important in the public lands arena. And so there is a 1916 case called Midwest Oil, in which the president had used his authority that he said, because I'm the president, I can withdraw lands from oil and gas leasing. And the Supreme Court-- without any congressional authorization. And the Supreme Court looked at that action and said, you know, this has been going on for 100 years. The president has been creating out of the public lands Indian reservations, wildlife refuges, and other categories of protected land for various purposes. And the Supreme Court said, Congress acquiesced in this for so long, that we're going to uphold the president's authority. And Congress has cabined that and shaped it. But that still is the underlying power that the president has when he exercises his authority under these statutes. So that's a backdrop that supports the notion that he's got this authority and that, if Congress wants to take it away, they need to do so explicitly, as they have in a number of statutes, but not in the Antiquities Act or in the Outer Continental Shelf Leasing Act. KELLYE Y. TESTY: Thank you, Bob. Yes, ma'am? SPEAKER 7: So tonight, I'm realizing even more so how much power the Supreme Court has in terms of long-term direction of the country. And so I was watching a little video of Nina Totenberg talking about how we're getting this new justice soon. And there's a very good likelihood, because a few of the other justices are very old, that in the next few years, we could be facing one or two more judges with a very conservative bent, which would threaten Roe v Wade, for example, and some of these other very progressive rulings. And so what I'm wondering is, looking at the overall structure of our democracy, if fair and balance is such an important part of it, why is the Supreme Court shaped the way it is, to where we have-- why isn't it, by rule of law, guaranteed that it's evenly split always between this side and that side? And how would you change that? Because right now and in the next few years, it looks like we would have a completely lopsided power structure. KELLYE Y. TESTY: Kathryn, Lisa, you both write a lot about the court. You want to take? KATHRYN WATTS: I have one thought on that. And then Lisa can probably add something to it. So if we had structured our constitutional system differently, so that we did have an even split politically and that that was constitutional and legal for us to have, I think, in some ways, it presupposes that judges are going to act in a way that matches their political ideology. And that's something that actually we push back on a bit, I think, in the legal field. And let me give you an example of why. So I clerked for a justice who was appointed by a Republican president, Justice John Paul Stevens. Justice Stevens did not end up being one of the strong conservative members of the bench. He ended up being what many would call much more on the liberal side of the bench. So that's an example of where somebody who's appointing president's ideology did not match the direction that the judge went. And personally, I think that's something to welcome and really embrace in our judicial system, is one area where we can say that political labels are not automatically going to lead in certain directions in a way that's as entrenched as we see it in our political branches. Lisa, do you have anything to add there? LISA MANHEIM: I guess I would just follow up by saying that the way our constitution is designed, it's very, very hard to amend it. We only have 27 amendments to the Constitution, even though it was composed and ratified over 200 years ago. And so I know that often people get frustrated with what the Supreme Court is doing, and they propose amendments to overturn rulings or to change the structure. And as a political matter, for what it's worth, it's very, very hard to get an amendment through. KELLYE Y. TESTY: Thank you. I just got the sign that we're almost out of time already. So I'm going to do one more question to Mr. [? Guyton. ?] And then I hope maybe you can all talk a little bit as we end our program tonight. So last question tonight. SPEAKER 8: Well, thank you, Dean Testy, for putting on this wonderful program, and members of the faculty. You really do honor our community and honor our law school by your presence here tonight. So thank you for your study and your work. KELLYE Y. TESTY: Thank you. [APPLAUSE] KELLYE Y. TESTY: I really appreciate that. SPEAKER 8: My question is a little bit different. And nobody's touched on this yet, but I think about it periodically, almost every day. And it has to do with the button. Our president, I am told, has the ability to initiate a nuclear war in the event that he feels it's appropriate and in our national interest. I'm wondering what restrictions are there on our president's ability to do that? Is there an appeal? Is there someone else that he must talk to to get permission to do this? Do you have any sense of what those limits are on executive power? KELLYE Y. TESTY: I'm going to invite any of my colleagues that want to jump in to jump in. But I'm going to say that it might be wishful thinking, but I think the answer is that it takes more than one person. So we were talking a little bit about this ourselves and understand that there's a bit of a protocol, and that's it's, of course, not known, because if it were known, it could be disrupted. And it's a security issue. So our belief is that there is a protocol that takes a few steps, but we don't know what it is. So one of the things we were hoping is maybe we'll all come back together and do a little national security for Town Hall number two. SPEAKER 8: God bless. KELLYE Y. TESTY: And it might be a good topic, so thanks for asking that. [APPLAUSE] I want to ask you to join me in giving one more round of applause to the panel, and then I want to-- [APPLAUSE AND CHEERS] Thank you so much. Thank you. Wow, thank you. [APPLAUSE] We are in this together. And I want to just let you know that we'll do all-- we'll keep doing all we can. Professor Mannheim, any closing word from you? You were the great moderator. You organized this. And we're in your gratitude. LISA MANHEIM: I just wanted to say thank you so much for participating. Just one quick sentence for you-- civic participation, you can feel a little bit like voting, which is to say that, when you vote, it can feel like a drop in the bucket. But when everyone votes, it makes a big difference. And you have a panel of lawyers right here, talking about federal executive power, 9:00 PM on a Wednesday. So there's a lot of interest and energy out there right now. KELLYE Y. TESTY: Thank you, everybody. Thank you so much. [APPLAUSE] [MUSIC PLAYING]


  1. ^ a b Graves, Eben W. (2007). The Descendants of Henry Sewall (1576-1656) of Manchester and Coventry, England, and Newbury and Rowley, Massachusetts (1st ed.). Boston, Massachusetts: Newbury Street Press. p. 229. ISBN 978-0-88082-198-8.
  2. ^ "Book of Members, 1780–2010: Chapter S" (PDF). American Academy of Arts and Sciences. Retrieved August 7, 2014.
  3. ^ Powell, Kimberly. "Ancestry of Louisa May Alcott". Retrieved July 29, 2014.
  4. ^ American Antiquarian Society Members Directory

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U.S. House of Representatives
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Benjamin Goodhue
Member of the U.S. House of Representatives
from Massachusetts's 10th congressional district

December 7, 1796 – January 10, 1800
Succeeded by
Nathan Read
Legal offices
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Nathan Cushing
Associate Justice of the Massachusetts Supreme Judicial Court
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Chief Justice of the Massachusetts Supreme Judicial Court
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This page was last edited on 7 September 2019, at 21:19
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