LEGAL NEWS ROUNDUP

Andrew Ayala, CLS ’18

After President Trump won the general election in November,  many began to speculate how his presidency would change the existing legal landscape. One of the more contentious issues is the abortion right granted by Roe v. Wade. The President vowed to appoint right-wing justices to the Supreme Court, which many fear would result in less rights for women choosing to get abortions. (Source: MSNBC)

When abortion is discussed in the legal sense, it is not so much about being “pro life” as it is about an originalist approach to constitutional interpretation. Many conservative judges reject the core holding in Roe v. Wade that there is a right to privacy in the Constitution that would protect a woman’s right to abortion. Judicial conservatives hope that the Constitution will be read and applied as they believe it is written, and therefore, limit government power. They see Roe v. Wade as a total failure in that respect. (Source: CNN)

Currently, there is only one  vacancy on the Supreme Court left by Justice Antonin Scalia. Replacing Justice Scalia with another conservative judge would probably not be enough to overturn Roe v. Wade. “Right now there are about five judges on the Supreme Court that would favor Roe v. Wade.” (Source: TheHill.com). Justice Scalia’s successor would not be enough for a majority vote against the landmark case. However, there are several judges who are in their 70’s and almost 80’s. It is possible that President Trump may get a chance to replace a second or even third seat on the Supreme Court; at which point Roe v. Wade could be in significant danger.

Furthermore, there is always a chance that the President may surprise the country and nominate someone who is pro-choice. Conservative champion former President Ronald Reagan tapped Justice Anthony Kennedy and former Justice Sandra Day O’Connor who both consistently voted to ratify the core or Roe v. Wade. (Source: Politico) It is possible that President-elect Trump follows in the path of former President Reagan. The abortion debate will definitely be something to keep an eye on now that the President’s taken office.

LEGAL NEWS ROUNDUP

Courtney Irons, CC’18

In preparation for the upcoming fraud trial against Trump University, U.S. District Judge Gonzalo Curiel rejected Donald Trump’s request for a blanket ban on statements Trump made in the course of his presidential campaign. Trump’s lawyers argued that President Trump’s comments during the campaign regarding issues like sexual assaulting women, failing to pay federal income taxes, and using money from his charity foundation to buy a golden statue of himself were irrelevant to the case and unfairly prejudicial. Lawyers for the students argued that the statements were necessary to weigh Trump’s credibility in the fraud trial. The judge declined to issue a general ban on those comments, which included Trump’s statements on the judge himself, whom the President called “biased” because of his Mexican heritage. (Source: Reuters)

Trump advisor Rudy Giuliani declined to rule out the possibility of pressing charges against Hillary Clinton when Donald Trumps takes office. One of Donald Trump’s more controversial campaign promises was to jail Clinton once he became president. Giuliani, a rumored favorite for the Attorney General position, refused to comment on whether or not charges would ever be brought. He stated that although the tradition in politics is to move forward, if the potential evidence was “really bad” a prosecution may be worth the political instability. (Source: CNN)

California voters strengthened the death penalty within the state by rejecting a ballot measure to repeal the death penalty and by passing a ballot measure designed to limit death penalty appeals. The measure that passed, Proposition 66, is designed to expedite the death penalty process by limiting appeals and imposing a strict timeline on judicial proceedings. Critics of the measure argue that it will increase the likelihood of executing innocent people because it would limit the introduction of new evidence. Voters in Nebraska and Oklahoma also reaffirmed their states use of the death penalty. (Source: NPR)

LEGAL NEWS ROUNDUP

Rachel MacDonald, CLS’17

Mary Jo White announced Monday, November 14 that she will be stepping down as the Chair of the Securities and Exchange Commission at the end of President Barack Obama’s term, three years before the end of her current term. White’s tenure resulted in more than 2,850 enforcement records, a three-year record for the SEC. White’s resignation will create room for President-elect Donald Trump to appoint his own nominee. President-elect Trump has pledged to restrict or remove the Dodd-Frank Act, a financial reform law enacted post-recession. The Washington Post reports that President-elect Trump has appointed Paul Atkins, a former SEC Commissioner under George W. Bush and outspoken opponent to Dodd-Frank, to replace White. (Source: ABA Journal)

On Monday, November 14, 2016, a federal court of appeals denied Adidas AG’s trademark challenge against Christian Faith and Fellowship Church’s “Add a Zero” fundraising slogan by ruling that the slogan had been used in interstate commerce. The Court of Appeals held that there was no de minimis exception to the Lanham Act’s use-in-commerce requirement, and that the out-of-state sale of two hats embroidered with the slogan was sufficient. Adidas brought the challenge against the church after being denied a trademark registration for its Adizero clothing line. Adidas’ trademark was denied due to possible confusion with the church’s trademark, which was registered in 2006. When registering for the trademark in 2006, the church had to certify that the trademark was to be used in interstate commerce under the Lanham Act; Adidas brought action for the cancellation of the trademark on several grounds, including lack of use in interstate commerce. (Source: Reuters Legal)

Internet Movie Database (IMDB), owned by Amazon, is suing the state of California over a law requiring the company to remove an actor’s age from its website upon the actor’s request.  IMDB argues the law, AB 1687, violates its right to free speech. While IMDB admits that age discrimination among actors is a problem worth addressing, the company claims that AB 1687 is written to unfairly target IMDB narrowly and does not ease age discrimination. A Seattle jury ruled in favor of IMDB regarding a similar issue in 2013. (Source: BBC News)

LEGAL NEWS ROUNDUP

Joshua Burger-Caplan, CC’18

The new CEO of Wells Fargo, Tim Sloan, remains committed to “cross-selling,” which is the practice of selling related or complementary products to Wells Fargo customers. This commitment comes mere months after it was discovered that, facing high sales targets, employees of Wells Fargo used cross-selling to create fake accounts and credit cards without customers’ knowledge. The elevation of Sloan, who has worked at Wells Fargo for 29 years, has led some to criticize the bank for not being critical enough in examining its internal culture. Sloan has insisted that this is not the case, and promised to bring in independent culture consultants to evaluate the bank. (Source: The Financial Times)

U.S. District Judge Gerald Pappert of the Eastern District of Pennsylvania has dismissed a lawsuit brought by Pennsylvania Republicans. The suit challenged a law that disallows poll watchers from observing voting in counties other than the county in which they are registered to vote. The Republicans challenging the law argued that it infringed on their rights under the First Amendment to participate in the political process. In the past, Republican presidential nominee Donald Trump has warned Pennsylvanians about voting fraud that may take place, and has said that he will only lose Pennsylvania if the election is stolen from him. (Source: Huffington Post)

Senator Richard Burr of North Carolina appears to have softened his stance on confirmation of a potential Supreme Court nominee should Hillary Clinton win the presidency, saying that he would “assess the record of any Supreme Court nominee.” On Saturday, October 29, he said at a private gathering that he would do his best to make sure that, should Hillary Clinton become president, she would not be able to confirm a new Supreme Court justice. Burr’s comments followed similar comments by Senators John McCain and Ted Cruz. McCain also walked back his remarks in the face of further media inquiry. (Source: Associated Press)

LEGAL NEWS ROUNDUP

Daniel Rodriguez, CC’18

The FBI announced in December 2015 that it would “dramatically expand[] the information it gathers on violent encounters” between law enforcement and citizens.  Acknowledging that “[p]eople want to know what police are doing, and they want to know why they are using force,” the FBI made this data collection “the highest priority.”  FBI Director James Comey recently speculated, however, that the numbers will not support the common notion that “there’s an epidemic of police shootings of black people.”  According to Director Comey, “a small group of videos” underlies the misconception that there is an epidemic of police shootings against people of color.  Whether Director Comey’s prediction will come to fruition will be determined after 2017, when the FBI begins collecting the information. [Washington Post, CNN]

Two criminal trials are receiving national attention.  The trial of the six men and one woman that occupied Oregon’s Malheur National Wildlife Refuge in January came to a close as closing arguments wrapped up on Wednesday.  During the six weeks of testimony, the prosecution focused “on the main charge of conspiring to prevent federal employees from doing their jobs at the refuge.”  The defendants attempted to recast the trial as revolving around “regulatory overreach by the federal government” rather than any negative impact on the jobs of the federal employees.  Whether the jury buys the defendants’ argument that they were “mere protesters who should not have been feared” by federal employees may have repercussions for future protests. [NPR, OPB]

Now in its fifth week, the Bridgegate trial shifted to the defendants’ case in chief after prosecutors rested last week.  According to the federal prosecutors, Bill Baroni and Bridget Kelly, two former high ranking officials in the Christie administration, knew that the George Washington Bridge lane closures were intended to punish Fort Lee Mayor Mark Sokolich “after he declined to endorse [Governor Christie] for re-election.”  Baroni, however, counters that he believed at the time that the lane closures were part of “a legitimate traffic study.”  Michael Drewniak, the Governor’s long-time spokesman, testified to something similar, stating that “traffic problem[s] at the George Washington Bridge ‘was in the bloodstream’ of the [Christie] administration” and that no senior staff had “any knowledge … that [the lane closures] had been a plot of political intimidation.”  Drewniak’s testimony had the troublesome effect of pitting the defendants against each other.  As Baroni’s witness, Drewniak testified that he “went to speak twice to Bridget Kelly [about the lane closures]… but … she brushed him off.”  Kelly is expected to take the stand in a few weeks, and all attention will focus on conversations she claims she had with Governor Christie that hopefully “convince[s] the jury that there is something fundamentally unfair to hold her responsible for conduct that was widely known within the governor’s office and directed by others.” [Politico, NJ.com]

LEGAL NEWS ROUNDUP

Samantha Shalowitz, CLS’18

US District Judge Daniel Jordan III ruled in favor of Planned Parenthood and blocked a Mississippi law that barred medical providers that perform abortions from receiving state Medicaid funds.  In his ruling, Judge Jordan cited a similar ruling by the Fifth Circuit holding that such laws violate federal law.  In its complaint, Planned Parenthood argued that the law unconstitutionally limited patients’ rights to choose their healthcare providers and prevented low-income patients from receiving care.  The governor of Mississippi, Phil Bryant, issued a statement voicing his support for the law and disagreement with the court’s decision.  (Source: Huffington Post)

A federal appeals court in Washington ruled that the president has the power to fire the head of the Consumer Financial Protection Bureau.  Though it did not dismantle the agency, the court ruled that the appointment process was unconstitutional, and made the director’s job subject to supervision, direction, and change by the president.  The ruling weakens the CFPB, considered one of President Obama’s signature accomplishments.  The CFPB was established in 2011 as part of the Dodd-Frank Act in response to the financial crisis.  Republicans have repeatedly tried to weaken the agency, and the court appeared to agree with some of their criticism, holding that the practice of having a single “unaccountable, unchecked director” is atypical and “poses a far greater risk of arbitrary decision-making and abuse of power” than does multi-member leadership.  The CFPB is exploring how it may challenge the decision.  (Source: CNN)

US District Judge Sharion Aycock ruled that a Mississippi woman cannot sue the government after being jailed for 96 days after indictment without an arraignment or seeing a lawyer.  The plaintiff, Jessica Lauch, asserted her innocence in jail and asked for an arraignment, but did not request to see a lawyer.  The court held that her right to counsel was not violated, and that she had no right to an initial appearance because she was indicted.  Jauch was arrested after police pulled her over for traffic violations and noticed she had an outstanding arrest warrant.  However, evidence did not support the charges, and, after Jauch’s lawyer contacted the prosecutor, the charges were dropped.  Jauch has filed notice of appeal.  The case is part of a larger effort by civil liberties advocates to reform Mississippi’s criminal justice system, which they say “provides almost no state funding for public defenders.”  (Source: ABA Journal)

LEGAL NEWS ROUNDUP

Gahee Lee, CLS’18

The Massachusetts Superior Court dismissed a motion arguing that charter school attendance was a civil right. In response to plaintiffs’ complaints that they were being deprived of their constitutional rights to “adequate” education when denied admission to charter schools, the court held that even if the plaintiffs were currently attending schools that rated lowly on the state rating system for public schools and were denied admission to charter schools solely because the applications outnumbered the available seats, there existed no constitutional violation. Contrary to the plaintiff’s perspective that a subpar rating could be interpreted as the state’s negligence of some of the schools, the court stated that the grading system was established to “identify the schools most in need… and then provide such schools with the ways and means to improve.” The court also cited judicial deference to the legislature as yet another reason to defer judgment regarding school choices. [Source: Huffington Post]

The Oklahoma Supreme Court unanimously struck down a law imposing restrictions on abortion providers, holding that the requirement that providers take samples of fetal tissue from patients younger than 14 and preserve them for state investigators violated the state constitution’s requirement that each legislative bill only address “one subject.” Designated to “thwart legislators from including provisions that would not normally pass in otherwise popular bills,” the “one subject” rule seeks essentially to prevent a situation where legislators must decide between either wholly passing, or rejecting, a bill. The court rejected the legislators’ explanation that the bill sought to both capture child rapists (by use of the fetal tissue) and protect women’s health. Four of the concurring judges noted that they would have rejected the law as an unconstitutional burden on a woman’ right to have an abortion. [Source: Reuters]

The United States District Court for the Northern District of Florida extended Florida’s voter registration deadline by at least 24 hours in light of Hurricane Matthew. The Florida Democratic Party has requested a longer extension given the “strong likelihood” that many of the state’s voters have evacuated to seek refuge from the storm. Governor Rick Scott, on the other hand, has refused to allow more time. The District Court’s judge is to determine on Tuesday, October 11th whether to further extend the deadline. [Source: CNN]

LEGAL NEWS ROUNDUP

Chad Klitzman, CLS’18

The Supreme Court has refused the Obama administration’s request for a rehearing of United States v. Texas. A 4-4 decision last term resulted in the upholding of a Texas court’s decision to blockade the implementation of President Obama’s executive actions for undocumented immigrants. In the event of a tie on the Supreme Court, the lower court’s decision is affirmed. The controversial program at issue, Deferred Action for Parents of Americans (DAPA), could assist more than four million undocumented immigrants who have lived in the United States since 2010 and who have children who are either American citizens or permanent residents. [Source: CNN / CBS News]

The Pennsylvania Supreme Court has ruled that indigent criminal defendants may sue for alleged inadequate funding in a Pennsylvania public defender’s office. The criminal indigents maintained that their inadequate representation resulted in impairments to their 6th and 14th Amendment rights to counsel. According to Mary Catherine Roper of the ACLU, this decision will give criminal defendants the requisite standing to sue on the basis of inadequate public defender funding. [Source: ABA Journal]

President Obama commuted 102 sentences this week and has set a record for the greatest number of commutations in one year (590). In total, the President has commuted more than 774 sentences – more than the previous 11 presidents combined. The vast majority of the commutations are for drug crimes. White House Counsel Neil Eggleston explained that “The vast majority of [the grants] were for individuals serving unduly harsh sentences for drug-related crimes under outdated sentencing laws.” [Source: ABA Journal / USA Today]

Summer and Rusty Page are fighting to regain custody of their foster child in the face of the Indian Child Welfare Act, which was crafted in order to protect Native American children from large exercises of power by child welfare agencies. The legislation aimed to curtail the high percentage of Indian families broken up by the removal of their children, often without just cause, but the Pages contend that the law actually results in Indian children receiving disparate treatment – often resulting in placement against their own interests. [Source: ABA Journal]

Much Ado About Nothing: Attorney General Eric Schneiderman’s “Groundbreaking” Reforms

Isaac Lara, CLS ’17

The recent decision by Cook County State’s Attorney Anita Alvarez to return charges in the police shooting of Laquan MacDonald more than a year after his murder have raised questions again over whether local prosecutors are capable of impartially investigating police shootings. After all, many local prosecutors depend on law enforcement agencies in collecting evidence, producing testimony for criminal trials, and supporting them during their political campaigns. Such relationships can create conflicts of interest that undermine the public’s confidence in the judicial system to secure justice for victims of police homicides.

To address this problem, some state elected officials have advocated transferring authority for the investigation and prosecution of police-caused civilian deaths to state attorneys general. New York Attorney General Eric Schneiderman is one of the nation’s leading proponents for such a move. At Schneiderman’s behest, in 2015, Governor Andrew Cuomo issued Executive Order 147, which removed authority from local district attorneys over certain types of police-caused civilian deaths and transferred special powers to investigate police shootings to the Attorney General’s Office. Schneiderman himself touted the novelty of the action, suggesting that New York’s approach would eliminate the conflict of interest that may exist when district attorneys investigate law enforcement. He even went so far as describing it as a huge step towards stopping mass arrest and mass incarceration.

However, Schneiderman may have overestimated how effective his new powers really are. While these new prosecutorial powers may draw national headlines, models like Schneiderman’s are unlikely to have a strong impact on removing the conflict of interest that exists between district attorneys and law enforcement.

1. The Attorney General’s Office Already Has the Power to Intervene in Police Shooting Cases

First, Schneiderman’s new prosecutorial powers are not nearly as new or groundbreaking as he has described. The common law in New York already confers upon the Attorney General the authority to bring charges against defendants or intervene in criminal proceedings.[1] For example, in People v. Miner, the New York Supreme Court delineated the power to conduct and intervene in prosecutions of “certain classes” of criminal cases.[2] While this case alone may not justify the inference of power to intervene in any criminal proceeding—such as a police-caused civilian death—it, combined with later opinions, can generally be interpreted to apply to all types of state crimes.[3]

Subsequent case law also demonstrates the broad powers that the New York Attorney General has in prosecuting defendants relative to other law enforcement agencies. For example, in Johnson v. Pataki, the Court ruled that district attorneys do not operate in a “zone of independence” that shielded them from intervention from the Attorney General because the state constitution had not designated a specific—let alone exclusive—prosecutorial duty upon them.[4]

2. The New York Attorney General Lacks the Requisite Expertise and Resources

Second, the New York Attorney General’s office generally lacks the expertise and resources that district attorneys typically have in criminal prosecutions. After all, before Schneiderman’s transfer of power, the vast majority of the Attorney General’s criminal prosecutorial powers were statutorily limited to financial schemes such as securities fraud, money laundering, consumer fraud conspiracies, and occasionally organized crime.[5] Some of the notable homicides they have independently prosecuted without the assistance of outside agencies were based off referrals from local prosecutors involving either cold cases or elder abuse. On the other hand, district attorney offices like Robert Johnson’s in the Bronx have handled nine cases of fatalities involving the NYPD, as well as two nonfatal cases in the past year alone.

Given the office’s limitations, it is hard to believe that the Attorney General would be capable of adequately investigating a homicide case involving police officers, which is an extremely complex matter warranting extensive investigative resources, especially in the first few hours after an incident. Schneiderman, for his part, has argued that he is willing to dispense an unlimited amount of money from his office to support his new prosecutorial duties. However, little effort has been spent in showing how his office would ensure taxpayer funds are spent efficiently.

3. District Attorneys Still Remain Involved in the Investigation

Third, Schneiderman’s new prosecutorial powers are superfluous given the continuing involvement of district attorneys in police shooting cases. For example, after Governor Cuomo issued Executive Order 147, Schneiderman directed all of the state’s 62 district attorneys to conduct a preliminary investigation into any police shooting case before it is transferred to his office. This preliminary investigation includes interviewing witnesses, drafting search warrants, and collecting evidence, among other responsibilities.[6] Such an instruction therefore undermines the purpose of the Governor’s executive order, which was to strip district attorneys of their jurisdiction over police shootings.[7] Thus, Schneiderman has permitted New York’s district attorneys to remain part of the investigative process despite his purported lack of confidence in them to conduct impartial investigations in police shooting cases.

More importantly, though, since both the Attorney General and district attorneys are obligated to follow the Governor’s executive order as issued, any attempt by Schneiderman to amend that order by delegating a portion of an investigation to district attorneys may be unlawful. After all, only the Governor may amend a legal executive order.[8] This makes it likely that the evidence collected by district attorneys during the preliminary stages of an investigation will be challenged by opposing counsel as inappropriately obtained.

4. Conclusion

Although New York Attorney General Eric Schneiderman praised Governor Andrew Cuomo’s executive order to transfer cases involving police-caused civilian deaths from local prosecutors to his office, he may have overstated its efficacy. First, his office already possesses the power to intervene in police shooting cases without the executive order. Second, even if Schneiderman chooses to manage these cases, his office still lacks the requisite experience and resources to manage the increasingly complex investigations to which district attorneys are already accustomed. Third, the executive order itself is redundant in that it strips district attorneys of their jurisdiction over police shooting cases because of presumed bias, while still requiring them to be part of the preliminary investigation.

Therefore, Schneiderman—who has never prosecuted a crime, let alone a homicide—faces difficulty in explaining what impact his “new” powers will ultimately have on police-involved shootings. Perhaps a more effective response than Executive Order 147 would have been to lobby the state legislature to reduce the broad legal latitude that officers currently have in determining what constitutes a reasonable risk to his or her own safety. That would help alleviate the perception of a conflict of interest by reducing the high barriers that district attorneys face in convicting police officers for shooting unarmed civilians. It would also ensure that the families of those who lost their lives during encounters with the police have a fair opportunity to obtain justice.

[1] Earl H. De Long, Powers and Duties of the State Attorney-General in Criminal Prosecution, 25 J. Crim. L. & Criminology 358, 362 (1934).

[2] People v. Miner, 2 Lans. 396 (N.Y. App. Div. 1868).

[3] Long, supra note 1, at 363.

[4] Johnson v. Pataki, 229 A.D.2d 242 (N.Y. App. Div. 1997).

[5] NY CLS Exec. § 63.

[6] E-mail from Eric Scheiderman, Att. Gen., State of New York, to District Attorneys of the State of New York (July 13, 2015) (on file with author).

[7] “Such appointment of a special prosecutor will supersede in all ways the authority and jurisdiction of a county district attorney to manage, interpret, prosecute or inquire about such incidents.” New York Exec. Order No. 147 (July 8, 2015) (emphasis added).

[8] NY CLS Const. Art. IV, § 1.

Climate Change Policy and the 2016 Presidential Election

Gregg Badichek, CLS ’16

The primary debates offer the false impression that climate change is a political issue, with consequences coming decades from now. Climate change is likely be the defining human crisis of the 21st century,[1] requiring a consistent, immediate array of responses. For this reason, voters should consider how candidates would treat President Obama’s considerable—and innovative—climate legacy.

President Obama’s Climate Action Plan

A focal point of the President’s climate legacy is his Climate Action Plan (“CAP”), outlined in June 2013. The plan is a broad aggregation of tactics united under three strategic pillars.[2] First, the plan aims to reduce America’s reliance on carbon fuels and instead promote clean energy sources. This pillar incorporates the contentious Clean Power Plan, which refers to the Environmental Protection Agency rule for regulating carbon output from existing power plants. Also involved is the EPA’s rule implementing final Carbon Pollution Standards for new, modified, and reconstructed power plants. Both finalized this year, the rules are promulgated pursuant to EPA’s authority under Clean Air Act sections 111(d) and 111(b), respectively.[3] The second pillar promotes climate change preparedness through a large mix of Executive tools, such as directives to administrative agencies, the creation of task forces to meet various infrastructural goals,[4] and Administration-led educational initiatives.[5] The third pillar involves Executive efforts to spur global climate communication, the building of dedicated coalitions and forums, and the development of multi-national public-private partnerships pursuing specific climate-related missions. This would include US efforts to seek a robust framework for global emission reduction at the November 2015 UNFCCC conference Paris, France

The Plan’s nuances are many, and far beyond the scope of this article. The takeaway is that the plan—for its reliance on administrative agencies, central coordination, and international partnering—is intrinsically Executive in nature. Thus far, the involvement of the other two co-equal Federal branches has largely taken the form of mitigations of the Plan or outright assaults on its integrity. Unlike environmental legislation or court rulings, the Plan’s Executive characterization binds its survival to the election. The President has vast authority over administrative agencies and their regulations, including the appointment of agency leadership and the setting of their agendas. Just as the President’s Executive authority upholds the Plan, so too will a subsequent President’s agenda result in either the Plan’s continuance or death.

In light of the fact that this plan is uniquely tied to the executive branch, how would the likeliest Presidential candidates of each party wield the broad Executive discretion that underlies much of the CAP’s substance? Will they honor these Executive maneuvers as prudent, and continue them? Or will they denounce the plan as Executive overreach, scaling it back with their own authority?

Democratic Candidates

Leading Democratic candidates Hillary Clinton and Senator Bernie Sanders have both supported climate change action and endorsed the supporting scientific consensus. While Senator Sanders’ environmental record is the stronger of the two, both have time and again reaffirmed their commitment to addressing the issue. During the October 2015 Democratic Debate, Sanders highlighted his efforts to pass legislation that would put a price on carbon. Sanders has called climate change the greatest threat to national security, and opposed the politically charged Keystone XL Pipeline for far longer than Secretary Clinton, who only recently denounced the project. Clinton, for her part, supported President Obama’s efforts at establishing a climate change legacy during her time at the State Department. Clinton fully endorses the President’s Plan, and because of her experience in the Obama Administration, she appears well positioned to continue implementing it should she take office. Were either leading Democratic candidate to take office, the contours of President Obama’s climate legacy would persist—if not expand.

The Republicans

The Republican positions on climate change stand in stark contrast to those of the Democratic frontrunners. While a considerable number of the Republican presidential candidates do not, in fact, deny the existence of climate change, the group’s current leaders—Senator Ted Cruz and Donald Trump—embrace ideas that stand contrary to scientific evidence. Cruz has referred to mainstream climate science as “partisan dogma and ideology.” Trump has haphazardly presented his views in occasional interview exchanges and Tweets, claiming not to believe in anthropogenic global warming and often conflating climate and weather. Trump frequently describes global warming and climate change as schemes laid bare when he experiences cold weather.

Senator Marco Rubio and Dr. Ben Carson—who trail Trump and Cruz at time of writing—likewise refuse to acknowledge the pressing risks of anthropogenic climate change. Carson has referred to climate and weather variations as natural phenomena, over which humans have no control and on which society should not focus. He has also discounted the idea that there is scientific consensus on anthropogenic climate change. Rubio, perhaps struggling to stake out a more moderate position on the subject, has recently argued that America’s economy cannot sustain governmental climate regulation.

Conclusion

For the President’s climate change legacy to endure, a Democratic candidate must win the 2016 election. However, the results of one presidential elections will not ensure climate progress. All presidential candidates should be rigorously challenged—by each other, the media, and, most importantly, the voters—on their climate change positions, and asked to describe with specificity what their administration would do with its inherited CAP: use the executive authority to roll it back, or turn it into the foundation for a sustainable climate change infrastructure? Without the answers to these questions, voters will not be able to make an informed decision on the most important issue facing humanity.

[1] The various risks of climate change were discussed with unprecedented force in the Intergovernmental Panel on Climate Change’s 5th Assessment Report, which can be found here: https://www.ipcc.ch/report/ar5/.

[2] President’s Climate Action Plan Tracker, Sabin Center for Climate Change, http://web.law.columbia.edu/climate-change/resources/presidents-climate-action-plan-tracker.

[3] 42 U.S.C. § 7411 (1963). The EPA maintains an overview of the differences here: What EPA is doing, Environmental Protection Agency, http://www2.epa.gov/cleanpowerplan/what-epa-doing#overview (last accessed December 5, 2015).

[4] President Obama established the Task Force on Climate Preparedness and Resilience on November 1, 2013 to “advise the Administration on how the Federal Government can respond to the needs of communities nationwide that are dealing with the impacts of climate change.” State, Local, and Tribal Leaders Task Force on Climate Preparedness and Resilience, TheWhiteHouse.Gov, https://www.whitehouse.gov/administration/eop/ceq/initiatives/resilience/taskforce.

[5] The U.S. Climate Resilience Toolkit, http://toolkit.climate.gov/ (last visited Dec. 1, 2015).