SPL Blog

Professor William C. Banks Discusses Presidential Transition on Lawyer 2 Lawyer

On Lawyer 2 Lawyer, host Craig Williams is joined by William C. Banks, professor and former interim dean from the Syracuse University College of Law and professor Leslie Gielow Jacobs, director of the McGeorge School of Law Capital Center for Law & Policy, as they explore the practical impacts of a delayed transfer of power from an uncooperative incumbent administration, both for the incoming administration and the American people. They’ll discuss what lessons we can learn from the past, and what options the Biden administration may have going forward.


The transition of presidential power is the process during which the president-elect of the United States prepares to take over the administration of the federal government of the United States from the incumbent president. The peaceful transition of government has long been a hallmark of American democracy.

In what has become an unfortunately common refrain, 2020 has proven different. For weeks following the election being called for Joe Biden, the Trump administration refused to begin the transition process. It was in these circumstances that this episode was recorded. However, since then, the General Services Administration has decided to release funds to the incoming Biden administration to facilitate a transition, but that doesn’t necessarily mean a smooth transition is here.

The possible impact of the delays, continuing refusals to concede defeat, and ongoing litigation disputing the results in multiple swing states give rise to concerns regarding national security, the economy, and the government’s ability to properly address the effects of the Coronavirus.

Transition of Power

 

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Professor William C. Banks Optimistic About Successful Transition for Biden Despite Delays

(WAER | Nov. 24, 2020) A Syracuse University Law School Professor says President Elect Joe Biden won’t have a problem catching up three weeks after the election because his team has been preparing all along. William Banks says Biden’s planning began when he clinched the democratic nomination last summer. He thinks the delay by the Trump Administration to share information to Biden will be “negligible to none.” However, he feels it comes with other costs.

“I feel a great deal has been lost symbolically and I believe our democratic institutions have been severely beat up by the bruising battles that have been fought for no good reason.”

Biden’s team can now engage in daily national security updates and classified briefings with the Trump Administration. Banks says Biden’s cabinet is filled with diversity and experience.

“Some of them are from the Obama administration, so of them much further back, like John Kerry who will be a cabinet-level official responsible for climate change. It’s Kerry’s deep passion,” Banks said …

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A Higher Calling: Hon. James E. Baker Reflects on Veterans Day

Veterans Day
Hon. James E. Baker salutes after graduating from the Marine Officer Candidates School.

The Hon. James E. Baker has always known that he was meant for a life of public service. Growing up in Cambridge, Massachusetts, he was raised—as his mother once told him—to be a teacher. But he had other plans.

“I always think about the people who served who didn’t come home. They hold a special place for all of us on Veterans Day.”

“I came to the conclusion at a young age that anybody who had the educational opportunities I was given had an obligation to perform public service,” says Judge Baker, a professor in Syracuse University’s College of Law and director of the Institute for Security Policy and Law. “Teaching is public service, but I embraced the concept of the citizen-soldier.”

Baker joined the U.S. Marine Corps at the age of 18 after spotting several recruitment brochures on the floor of the college post office. “I was looking for the hardest thing I could do and found it on the floor of the post office,” he says. He started his military career as an infantry officer in the Marine Corps and subsequently joined the staff of Sen. Daniel Patrick Moynihan. He was a judge on the U.S. Court of Appeals for the Armed Forces, a federal civilian court that hears military justice appeals, for 15 years before retiring in 2015.

It was Sen. Moynihan who urged him to go to law school, an idea that Baker initially wasn’t crazy about but eventually warmed to. “I do love the concept of rule of law. I want to live in a democracy and in a country that’s governed by law. Having the opportunity to support and defend the Constitution, I think, is as high a calling as you can have as a lawyer,” says Baker, who is partial to all corps such as the Peace Corps and AmeriCorps. “It is also the oath that service members take defining their ultimate duty: ‘to support and defend the Constitution.’”

Baker has taught at several law schools around the country and says Syracuse University’s commitment to veterans is one of the things that distinguishes the school. He says he encountered only a single veteran on the faculty of the other law schools where he taught. “College campuses tend not to be places where there’s a lot of military experience, and one of Syracuse’s strengths is that they value and embrace that experience,” he explains. “In academics, we recognize diversity as an educational value and a democratic principle. The military is the most diverse institution I have ever been associated with, which is likely one reason it puts so much emphasis on character, commitment and competence as virtues—not where you are from, your school or who your parents are.”

One of the ways the College of Law has been particularly helpful to active duty students is through its online law degree JDinteractive, Baker says. Many of the program’s students are active duty service members, veterans or military-connected. “Syracuse University and the College of Law provided the platform for these students, who otherwise wouldn’t have had the opportunity to attend law school.”

As the Orange community celebrates Veterans Day, Baker reflects on those who have served a greater good. “I always think about the people who served who didn’t come home. They hold a special place for all of us on Veterans Day.” Three years ago, Baker started a tradition of the law school holding its own Veterans Day commemoration. “I wanted to make sure that, even at a university like Syracuse that genuinely values military service, its law school also made that connection and celebrated this mission of supporting and defending the Constitution.”

https://www.syracuse.edu/stories/professors-reflect-veterans-day/

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Professor Mark Nevitt in Newsweek: A Biden Presidency Would Be a Chance for Climate Legislation

Joe Biden Says U.S. Will Rejoin Paris Agreement on His First Day As President to Reverse Trump’s Environmental Damage

(Newsweek | Nov. 5, 2020) Joe Biden has said the U.S. will rejoin the Paris Climate Agreement on the same day he becomes president, should he win the election.

“Today, the Trump Administration officially left the Paris Climate Agreement,” he tweeted. “And in exactly 77 days, a Biden Administration will rejoin it.”

This will be the first step for Biden in his undertaking of the mammoth task of undoing four years worth of environmental deregulation …

… Mark P. Nevitt, associate professor of law at Syracuse University who specializes in climate change law and policy, previously told Newsweek that a Biden win would represent the “first real chance” of climate change legislation for many years.

“Congress last attempted a comprehensive climate legislation package in 2009, but this died in the Senate,” he said. “The Obama Administration was forced to rely upon executive action, but these actions can be rescinded by future administrations. Climate legislation would be viewed as a legacy item—not unlike Obama’s Affordable Care Act.

“We will also see the U.S. re-enter the world stage on climate change. The U.S. is the world’s largest historical emitter of greenhouse gas emissions and the second-largest annual emitter behind China. The world needs U.S. leadership and innovation on the climate stage” …

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Hon. James E. Baker: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

(Just Security | Nov. 2, 2020) An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath:

“I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

Introduction

During the height of the Watergate scandal in 1974 Secretary of Defense James Schlesinger is said to have become so concerned about President Nixon’s emotional state that he instructed the military chain of command that any orders conveyed directly by the President to the military should be re-routed through him to determine if they should be followed. Schlesinger was particularly concerned about orders pertaining to nuclear command and The Trump Administration, which is to say President Trump, has renewed interest in the subject of nuclear command and control and more generally the question of lawful orders.

In 2017, the then Commander of U.S. Strategic Command was asked about the scenarios in which he might advise, or even push back against, the President in a discussion on nuclear matters. General John E. Hyten, who now serves as the Vice Chairman of the Joint Chiefs of Staff, responded:

I think some people think we’re stupid. We’re not stupid people. We think about these things a lot. When you have this responsibility how do you not think about it? And so – but what people forget is this is a military mission and a military function. And since the day I joined the service, 36 years ago, every year I get trained in a law of armed conflict. And the law of armed conflict has certain principles and necessities, distinction, proportionality, unnecessary suffering. All those things are defined. And we get, you know, for 20 years it was the William Calley thing that we were trained on because if you execute an unlawful order you will go to jail. You could go to jail for the rest of your life. It applies to nuclear weapons. It applies to small arms. It applies to small unit tactic. It applies to everything and we apply it as we go through it. It’s not that difficult. And the way the process works – if you want to get the details later, I’ll go into the details later. The way the process works is this simple: I provide advice to the President. He’ll tell me what to do and if it’s illegal, guess what’s going to happen?

Moderator: You say no.

General Hyten: I’m going to say, Mr. President, it’s illegal. And guess what he’s going to do? He’s going to say what would be legal? And we’ll come up with options of a mix of capabilities to respond to whatever the situation is. And that’s the way it works. It’s not that complicated.

More recently, the clearing of protesters in Lafayette Square, the advent of protest movements across the country following the death of George Floyd, and statements by President Trump about the electoral process have prompted questions about when and in what contexts the President may lawfully order U.S. Armed Forces, regular, reserve, or National Guard, into domestic and civil contexts.

President Trump’s tweets, some about military matters, also prompt consideration of what exactly is an order, does it have to take a particular form, and when is a statement by the President a military order? These are urgent questions the answers to which ought to be known not only to the Commander in Chief, but also to the military commanders and units under his ultimate constitutional command. The American public, which reveres the Armed Forces, in part because of their apolitical adherence to law, should know as well so that it can make informed judgments about whether to send its sons and daughters into the Armed Forces and determine whether the military’s leadership is supporting and defending the Constitution and America’s constitutional values and traditions.

However, although the question of lawful orders may be cast and debated with a particular president in mind, or through a partisan lens, questions about lawful orders are recurring and arise in daily national security contexts across administrations as well as everyday military life …

Good Governance Paper No. 21: Obedience to Orders, Lawful Orders, and the Military’s Constitutional Compact

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Professor Mark Nevitt: How Will the Presidential Candidates Approach Arctic Policy?

Biden versus Trump: How a new president will affect the Arctic

(High North News | Oct. 30, 2020) With the US election just days away, anxiety is mounting about whether Republican incumbent Donald Trump or Democratic nominee Joe Biden will come away victorious. The stakes have never been higher for the Arctic, say environmental scholars and regional experts …

… Mark Nevitt, an associate professor at the Syracuse University College of Law, agrees that a Biden administration would handle the issue of climate change more effectively.

“It is critically important. We need to work with the leading climate scientists to understand the pace of climate change, permafrost melting, and its impact on local and Indigenous communities”, he says in an email to High North News.

“From a climate science perspective, a future President Biden will emphasize placing resources into better understanding the Arctic’s changing climate. Much like Obama. He has an ambitious, $2 trillion dollar “Biden Plan for a Clean Energy Revolution & Environmental Justice” that is the most-forward looking climate plan of any presidential nominee in history. The Arctic is heavily mentioned and discussed in this context,” he says …

Read the full article.

 

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Professor William C. Banks Mulls Election Scenarios in Medium and AP

Will There Be Blood?

(Medium | Oct. 26, 2020) In his inaugural address four years ago, President Donald Trump declared a crusade against the “carnage” he said his predecessors had wrought on the nation, lining their own pockets while creating a nation of “forgotten men and women.” Five hours later, fired up and triumphant, Trump filed for re-election, the earliest incumbent to do so in memory. So it was that Trump set the stage for what a lot of people thought was him governing, but in effect has been the most foreboding, nerve-frazzling — and by far the longest — re-election campaign in modern U.S. history.

Just a week away from its climax, some of the country’s most sober voices say one cost of Trump’s term-long barrage of grievance and accusation is the possibility of civil unrest on and after Election Day. There is always the chance that fraught tempers will dissipate, either by luck or a landslide one way or the other that imposes a forceful quiet on the contest. But, with an animated Trump issuing daily allegations of a sinister plot to unseat him, and supporters of both sides apprehensive of how far the other is prepared to go to win, the fear is that Americans will erupt in the worst political violence since Jim Crow …

… William Banks, a law professor at Syracuse University, said the president’s actions reflect mere “Trumpian rhetoric, played to maximum volume for his base.” Perhaps, though we won’t know until we see his reaction should he be defeated next Tuesday …

Read the full article.


An Election Day Role For National Guard? Maybe, But Limited

(AP | Oct. 30, 2020) Federal laws and long-standing custom generally leave the U.S. military out of the election process. But President Donald Trump’s unsubstantiated warnings about widespread voting irregularities have raised questions about a possible military role.

If any element of the military were to get involved, it would likely be the National Guard under state control. These citizen soldiers could help state or local law enforcement with any major election-related violence. But the Guard’s more likely roles will be less visible — filling in as poll workers, out of uniform, and providing cybersecurity expertise in monitoring potential intrusions into election systems …

… William Banks, professor at Syracuse University College of Law, said that sending uniformed troops to the polls, including the Guard, would be unwise.

“The overriding point is that we don’t want the military involved in our civilian affairs. It just cuts against the grain of our history, our conditions, our values, our laws,” he said …

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Professor Mark Nevitt on Pentagon Labyrinth: What’s the Military’s Role in a Contested Election?

What’s the Military’s Role in a Contested Election?

(POGO Pentagon Labyrinth | Oct. 27, 2020) We are on the eve of what could be a contentious and disputed election, and a turbulent transition. Given the possibility that we will not know who the winner is for some time after November 3, there are increased concerns about domestic disturbances and violence.

This is prompting many to openly discuss the military’s role in such a scenario. The Military Times recently published an article titled “How the president could invoke martial law.” Several legal scholars have also weighed in on the issue in the past few months.

One is Mark Nevitt, a professor of constitutional law, national security law, environmental law, and climate change law at Syracuse University College of Law. He has a solid military background as well. He started his career as a Naval aviator flying the S-3 Viking; he flew over a thousand hours and had approximately 300 carrier landings. When the Navy retired the S-3s, it sent Mark to Georgetown Law. He spent the rest of his career as a Navy judge advocate general before retiring in 2017 to join academia.

Listen to the segment.

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Professor William C. Banks Helps Military Times Explain Martial Law

How the president could invoke martial law

(Military Times | Oct. 23, 2020) Throughout 2020, America has faced a global pandemic, civil unrest after the death of George Floyd and a contentious election. As a result, an influx of fear about the possibility of the invocation of martial law or unchecked military intervention is circulating around the internet among scholars and civilians alike.

“Martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws.”

“The fear is certainly understandable, because as I’m sure you know, martial law isn’t described or confined or limited, proscribed in any way by the Constitution or laws,” Bill Banks, a Syracuse professor with an expertise in constitutional and national security law, told Military Times. “If someone has declared martial law, they’re essentially saying that they are the law.”

What is ‘martial law’

In short, martial law can be imposed when civil rule fails, temporarily being replaced with military authority in a time of crisis. Though rare, there have been a number of notable U.S. cases where martial law came into play, including in times of war, natural disaster and civic dispute — of which there has been no shortage in 2020.

While no precise definition of martial law exists, a precedent for it exists wherein, “certain civil liberties may be suspended, such as the right to be free from unreasonable searches and seizures, freedom of association, and freedom of movement. And the writ of habeas corpus [the right to a trial before imprisonment] may be suspended,” according to documents from JRANK, an online legal encyclopedia …

Read the full article.


See also: 

What is martial law? Can the president declare it? Good questions.

 

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Professor Mark Nevitt in Just Security: Reforming the Insurrection Act

(Just Security | Oct. 20) When can the president deploy the federal military on American soil? What are the legal and regulatory restraints in doing so? Throughout the current administration, these fundamental questions of civil-military relations and democratic governance have only grown in importance.

This is due, in large part, to the rupture of longstanding norms. Salient examples include the significantly expanded deployment of military troops to the U.S.-Mexican border as well as the use or threatened use of state and federal military forces (many unidentified) in response to protests this summer in the aftermath of George Floyd’s death.

The violent clearing of peaceful protestors from Lafayette Square Park on June 1 by both non-military and military forces brought the issue of domestic military operations to American living rooms—as did the President threatening minutes earlier to invoke the Insurrection Act and send active duty military forces into American cities.

The governance stakes are simply too high to rely upon now-violated norms. Congress should reinvigorate its constitutional role in governing domestic military operations and provide bright legal lines addressing the president’s authority to deploy the military domestically.

In this essay and the one to follow, I highlight four legal authorities governing domestic use of military force that are ripe for clarification and congressional action. This essay concerns the Insurrection Act, and my second essay will address the Posse Comitatus Act, Section 502(f) of Title 32 of the U.S. Code, and military operations in the nation’s capital …

Read Part One …

Good Governance Paper No. 6 (Part One): Domestic Military Operations — Reforming the Insurrection Act

Read Part Two on “The Role of the National Guard, Posse Comitatus Act and More” …

Good Governance Paper No. 6 (Part Two): Domestic Military Operations — The Role of the National Guard, Posse Comitatus Act and More

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