by SCOTUScaster
Posted February 03, 2012, 10:30 AM
On January 10th, the Supreme Court heard oral argument in FCC v. Fox. The question in the case is whether the Federal Communications Commission’s standards for indecency are too vague to be constitutional.
We have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation, and Patrick Brennan, Associate Dean of Academic Affairs at the Villanova University School of Law, to discuss the case.
by SCOTUScaster
Posted February 02, 2012, 5:30 PM
On January 23, the Supreme Court announced its decision in Reynolds v. United States. The case concerned whether the Sex Offender Registration and Notification Act (SORNA) requires an offender who was convicted before the passage of SORNA to register under it even though the legislation appears to leave that determination to the U.S. attorney general. A lower court determined that SORNA itself required pre-SORNA offenders to register even if the attorney general had not yet deemed that requirement applicable to them.
In an opinion penned by Justice Breyer, the Supreme Court reversed the lower court’s decision and remanded the case for further proceedings. By a vote of 7-2, the Court held that SORNA’s registration requirements, properly interpreted, do not apply to pre-SORNA offenders until the attorney general so specifies. Justice Scalia filed a dissenting opinion, which was joined by Justice Ginsburg.
To discuss the case, we have Michael DeBow, a professor at the Samford University Cumberland School of Law.
by Publius
Posted February 02, 2012, 10:06 AM
On March 2nd and 3rd, Stanford Law School will be hosting the 2012 Federalist Society National Student Symposium on the theme "Bureaucracy Unbound: Can Limited Government and the Administrative State Co-Exist?"
We are delighted to announce that Senator Mike Lee of Utah will be the keynote speaker at the Symposium Banquet.
Please note that a generous 50% travel scholarship is being offered for attending student members. Students wishing to receive the scholarship must be registered members of the Federalist Society's national organization (information on becoming a member or renewing your membership is available here). We encourage students to request additional funding from their school administrations.
Here is the schedule:
FRIDAY, MARCH 2, 2012
Registration
1:00–4:30 p.m.
Hoover Lawn
Introductory Remarks
6:45 p.m.
Cemex Auditorium
Panel 1: The Rule of Law and the Administrative State
7:00 p.m. - 8:45 p.m.
Cemex Auditorium
The rule of law, whatever that term describes, is one of the central concepts in Anglo-American jurisprudence. Does the administrative state, either in its operation or in the legal moves necessary for its validation, undermine or support the rule of law? Does modern governmental administration, and modern conditions of life, require some redefinition of the rule of law? Is there a relationship between the rule of law and the separation of powers, and if so, how does the administrative state affect that relationship? This panel, in short, will explore how the administrative state relates to fundamental jurisprudential principles.
Panelists:
Cocktail Reception
9:00 p.m.- 10:30 p.m.
Rehnquist Courtyard
SATURDAY, MARCH 3, 2012
Continental Breakfast
8:00 a.m. – 9:00 a.m.
Cemex Lawn
Panel 2: Balancing Checks and Efficiency: Gridlock, Organized Interests, and Regulatory Capture
9:00 a.m.- 10:45 a.m.
Cemex Auditorium
The administrative state is often defended as a necessary response to modern conditions that make governance through ordinary legislation virtually impossible. Is the administrative process in fact more efficient than legislation (and what is meant in this context by “efficient”)? Do any benefits from the administrative process come at the expense of other values? If the legislative process is subject to gridlock, is gridlock all bad? If capture or influence by interest groups is a problem, is it likely to be a worse problem in agency or legislative settings?
Does congressional abdication contribute to bureaucratic sclerosis, which makes it difficult to start and maintain businesses? Finally, what role do the Court's doctrines play at the intersection of these questions? Is Chevron deference to agencies good? Does the president's control make the administrative state better or worse? Do the Court's doctrines in Bowsher and Chadha give agencies too much power?
Panelists:
Panel 3: Czars, Libya, and Recent Developments: Perspectives on Executive Power
11:00 a.m.- 1:00 p.m.
Cemex Auditorium
This panel will address the role of Executive branch officials in making high-level policy decisions, and their relationship to Congress. This is particularly relevant in the context of two recent debates: can the President ignore congressional attempts to strip funding from high-level officials who are not confirmed by the Senate? Is the Obama administration’s use of “czars” constitutional? Moreover, what is the power of the Executive branch to start a war without any authorization from Congress?
Panelists:
Lunch
1:00 p.m.- 2:30 p.m.
Cemex Lawn
Debate: The Constitutionality of the Affordable Care Act
2:30 p.m. -3:45 p.m.
Cemex Auditorium
This debate will focus on the constitutionality of the Affordable Care Act. While specific attention will be given to administrative law issues, including the constitutionality of giving out compliance waivers and of medical expert boards, the discussion will be free-ranging and address all constitutional questions of interest.
Debaters:
Panel 4: Technology and Regulation
4:00 p.m. - 5:45 p.m.
Cemex Auditorium
Being in Silicon Valley, Stanford is known for its strong focus on intellectual property law and technology more broadly. This panel seeks to ask: what is the relationship between technology and the administrative state? Does technological progress require regulatory guidance? This panel will also consider to what degree development in technology in recent years has been slower than anticipated and whether the administrative state has been an asset or a hindrance to the effective utilization of technology.
Panelists:
Cocktail Reception
6:00-7:00 p.m.
Arrillaga Center for Sports and Recreation
Banquet
7:00-10:00 p.m.
Arrillaga Center for Sports and Recreation
Registration details:
Click here for the 2012 Student Symposium Web Site
Registration includes copies of Symposium materials, refreshments, the Friday reception, and the Saturday lunch. Please note that the Saturday Banquet (featuring Senator Lee) is an additional cost. Associated fees are as follows:
Student Registration Fees
Non-Student Fees
Additional Information:
For information regarding lodging, please click here.
For information regarding travel and reimbursements please click here.
by Justin Shubow
Posted February 01, 2012, 5:23 PM
At Liberty Law Blog, Mike Rappaport, professor at University of San Diego law school, weighs in on The New York Times' change of position on filibusters:
I don’t think there is anything unconstitutional or improper about filibustering nominees. Nor do I believe the Senate should necessarily vote to confirm qualified nominees if they disagree with the nominee’s legal philosophy. There is nothing in the Constitution that requires the Senate to defer to the President.
That said, I believe the best arrangement governing nominees is as follows: Lower court judges should be subject to a majority confirmation rule. Thus, they should not be subject to being filibustered. Supreme Court Justices, however, should be subject to a supermajority rule for confirmation. They have enormous power and there is a benefit from having the more centrist justices that a supermajority rule would produce. I defend this arrangement in these two articles written with John McGinnis.
This arrangement should be adopted through an agreement by both parties and now would be a good time to do so. . . . [N]o one knows who will win the next Presidential election or hold a majority in the Senate. Thus, an agreement to establish the arrangement in January 2013 would be possible if there were support for it. But there is no real support for a supermajority rule for Supreme Court appointments. I don’t even think there is Senate support to eliminate filibusters of lower court judges.
In 2003, the Federalist Society published a white paper on filibusters and the constitution authored by Reid Alan Cox, Tammi Kannar, Allyson Newton Ho, and Evan Rikhye.
You might also wish to read the transcript of the 2003 hearing before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights on the subject “Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent.” Among the speakers are Steven G. Calabresi, John C. Eastman, Bruce Fein, Michael Gerhardt, Marcia D. Greenberger, and Douglas W. Kmiec.
by SCOTUScaster
Posted February 01, 2012, 10:40 AM
On January 11th, the Supreme Court announced its decision in Perry v. New Hampshire. The question was whether, in a criminal case, the Due Process Clause requires a court to evaluate the reliability of an eyewitness identification of the defendant when the circumstances under which the identification occurred were suggestive, regardless of how those circumstances came about. The lower court rejected the defendant’s argument and concluded that a court is required to assess the reliability of identification evidence only when law enforcement employs suggestive identification techniques.
In an opinion delivered by Justice Ginsburg, the Court affirmed the lower court decision 8-1. Where there is no improper law enforcement activity involved, the Court held, it suffices to test reliability through the normal rights and opportunities afforded for that purpose, such as the presence of counsel at post-indictment lineups and vigorous cross-examination. Justice Thomas wrote an opinion concurring in the judgment, and Justice Sotomayor filed a dissenting opinion.
To discuss the case, we have Jessie Liu, a partner at Jenner & Block.
by Justin Shubow
Posted January 31, 2012, 3:27 PM
The Los Angeles Times reports that the implementation of the contraceptive mandate in the Obama administration's healthcare law is likely to end up in the Supreme Court:
The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the healthcare law, appear to be on another collision course over whether church-run schools, universities, hospitals and charities must provide free contraceptives to their students and employees.
The dispute stems from one of the more popular parts of the new healthcare law: its requirement that all health plans provide “preventive services” for free. That category includes vaccines and such routine screenings as cholesterol checkups and mammograms. Starting this year, it also includes coverage of birth control pills, IUDs and other contraceptives.
Catholic leaders reacted fiercely when the administration announced in recent days that it would hold most religious institutions to that mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”
Already two religious colleges have sued, and their cause got a major boost earlier this month from a unanimous Supreme Court decision that greatly expanded the definition of religious freedom.
Archbishop Timothy M. Dolan in New York, president of the U.S. Conference of Catholic Bishops, denounced the requirement as “unconscionable,” saying the church should not be forced “to act as if pregnancy is a disease to be prevented at all costs.”
Women’s rights groups, on the other side, say that without the law’s coverage, hundreds of thousands of women, including students at Catholic universities and workers at church-related hospitals, would be denied coverage for one of the most commonly used forms of healthcare.
For FedSoc's previous coverage of the health care and conscience debate, see here.
by Justin Shubow
Posted January 31, 2012, 11:50 AM
The Chronicle of Higher Education profiles Jonathan Haidt, a psychologist who claims that the social sciences would be improved by the influx of more conservative professors, the presence of which would help mitigate liberal biases. A professor of psychology at the University of Virginia, Haidt stirred controversy last year by making such points in a talk he gave at the annual convention of the Society for Personality and Social Psychology. Haidt's newest book, The Righteous Mind: Why Good People Are Divided by Politics and Religion, will be published next month.
According to the Chronicle:
One of the core ideas in Jonathan Haidt's new book is that morality "binds and blinds." As the psychologist dug into that topic, it led him in an unexpected direction: examining what he sees as the liberal bias of his own field.
The University of Virginia professor went public with his concerns in an incendiary talk last year, portraying social psychologists as "a tribal moral community" bound together by liberal values.
In the speech at the annual convention of the Society for Personality and Social Psychology, the main scholarly organization for social psychologists, Haidt argued that the field discourages conservatives from entering—and leaves those who do feeling like closeted homosexuals. He called for affirmative action to make the field 10 percent conservative by 2020.
In support of his ideas, Haidt pointed to "taboos and danger zones," subjects that turn on the moral "force field" and prevent researchers from exploring "the full range of alternative hypotheses." He offered as one example the controversy that engulfed Lawrence H. Summers, a former president of Harvard, after he speculated that innate differences might partially explain why men are overrepresented in mathematics and science departments at leading universities.
"We psychologists should have been outraged by the outrage," Haidt said. "We should have defended his right to think freely."
Haidt also pointed to the extreme underrepresentation of conservatives in social psychology. When he surveyed the 1,000 colleagues who attended his talk, 80 to 90 percent identified themselves as liberals. Only three people said they were conservatives.
by SCOTUScaster
Posted January 30, 2012, 5:44 PM
On January 18th, the Supreme Court announced its decision in Golan v. Holder. The question was whether Congress has the power to restore copyright protection to works that have entered the public domain.
In an opinion delivered by Justice Ginsburg, the Court affirmed 6-2 that Congress does have the authority to put certain works that have entered the public domain back under copyright protection. Justice Breyer, joined by Justice Alito, filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.
We have Christopher Newman, assistant professor at the George Mason University School of Law, to discuss the case.
by Justin Shubow
Posted January 30, 2012, 12:16 PM
In an editorial over the weekend, The New York Times called for a stop to filibusters against nominees for presidential appointments:
The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.
This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.
It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.
This is a major change of position for us, and we came to it reluctantly.
To get a sense of just how "major" this "change of position" is, compare this NYT editorial from 2005, during the George W. Bush administration:
The Senate will return from Easter vacation with nuclear options on its mind. Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable. In the past we've been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes.
Similarly, in 2003 the Times' editorial board called for Democrats to maintain the filibuster against Miguel Estrada, whom President Bush had nominated for the United States Court of Appeals for the District of Columbia Circuit:
Republicans are attacking Democratic senators for using a filibuster. The criticism rings hollow, given that some Republicans making it, including the majority leader, Bill Frist, voted to filibuster when President Clinton nominated Richard Paez, a Mexican-American, to an appeals court.
UPDATE: At the Volokh Conspiracy, Jonathan H. Adler defends the spirit of the NYT's current position:
Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.
Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used. If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal. Their willingness to consider the filibuster’s end will be necessary to secure a truce.
by Justin Shubow
Posted January 27, 2012, 7:28 PM
Writing for The Hill, Alan Charles Raul, a partner at Sidley Austin who served as vice chairman of the Privacy and Civil Liberties Oversight Board, offers his concerns about the newly created Consumer Financial Protection Bureau:
The Department of Justice’s Office of Legal Counsel opined recently that since most of the Senators weren’t around during their pro forma sessions, the Senate wasn’t really in a position to advise and consent regarding the President’s nominees. But OLC’s opinion never actually concluded that the specific recess appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau was constitutionally valid. This raises serious issues for anyone concerned about excessive concentration of government power.
The reason the OLC opinion doesn’t address whether the Senate was available to consider Mr. Cordray’s nomination is obvious. The Senate did in fact consider Mr. Cordray’s nomination. On December 8, 2011, the Senate provided President Obama with all the advice he needed and rejected cloture on Cordray’s nomination by a 53-45 vote.
The Senate’s problem with Cordray was not at all personal, but rather, was a matter of principle involving serious constitutional concerns about the new agency itself. Sen. Richard Shelby (R-Ala.), wrote to President Obama on May 5 calling on him to support structural changes to the CFPB that would enhance oversight and make the new agency more accountable. As Shelby as said, “Unless Congress enacts reform, it is only a matter of time before this concentration of power is abused or misused to the detriment of American businesses and consumers.”
So whether there was a constitutionality sufficient “recess” to appoint Mr. Cordray is a red herring – it is the director’s unchecked power that is the fundamental problem. The new agency simultaneously offends the constitutional authorities – and responsibilities – of both the Congress and the President. And it is no cure that both branches acquiesced in the infringement of their own authority. The Dodd-Frank legislators simply let their good intentions blind them to the need for respecting traditional checks and balances.
In December 2010, C. Boyden Gray and John Shu expressed similar misgivings about Dodd-Frank in an article they published in Engage, FedSoc's practice journal. As they wrote in their introduction:
There has been much debate over whether Dodd-Frank will accomplish its stated intent, but there is also a growing exchange about whether the law is constitutionally infirm, primarily due to separation of powers, vagueness, and due process. Central to this discussion is the fact that Dodd-Frank grants bureaucracies broad and unchallengeable discretionary authority; we query whether the Act provides effective oversight by any branch of government—the President, Congress, or the Judiciary.
by SCOTUScaster
Posted January 27, 2012, 11:22 AM
On January 10, the Supreme Court announced its decision in Minneci v. Pollard. The question in the case was whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.
In an opinion delivered by Justice Breyer, the Court held 8-1 that it could not imply a Bivens remedy here because state law authorized alternative damages actions that provide both significant deterrence and compensation. Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the Court’s judgment. Justice Ginsberg filed a dissenting opinion.
We have Alexander Volokh, assistant professor at Emory University School of Law, to discuss the case.
by Justin Shubow
Posted January 26, 2012, 7:15 PM
Writing for The American Spectator, Jack Park, an attorney at Strickland Brockington Lewis, comments on the Supreme Court's decision in Perry v. Perez:
On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court's ruling highlights the importance of a state's legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.
In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn't done with its work.
The Supreme Court told the Texas court to give greater respect to the legislature's work. As the Court explained, that's as it should be, given that redistricting involves the making of "policy judgments" that courts are "at best, ill suited" to make.
The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out "any discriminatory purpose" on the part of a covered jurisdiction.
When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren't. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don't have the purpose or effect of "denying or abridging the right to vote on account of race or color."
by SCOTUScaster
Posted January 26, 2012, 11:04 AM
On January 9th, the Supreme Court heard oral argument in Sackett v. EPA. The case involves two landowners who graded a lot in a residential subdivision so that they could build a home there. The Environmental Protection Agency subsequently issued an administrative compliance order to the landowners stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance.
The question before the Court is whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if not, whether the compliance order deprives the landowners of due process of law.
We have Elizabeth Papez, a partner at Winston & Strawn, to discuss the case.
by Justin Shubow
Posted January 25, 2012, 7:09 PM
The Wall Street Journal reports that a federal court in North Dakota dismissed a complaint filed by the Obama Justice Department against three oil companies under the Migratory Bird Act:
Continental Resources, Brigham Oil & Gas and Newfield Production Company were accused of causing the deaths of six Mallard ducks and one Say's Phoebe, which had waded in oil pits. The criminal charges carried fines and potential prison sentences.
In a ruling that can only be called withering, district Judge Daniel Hovland contrasted "incidental and unintended" deaths during "legal, commercially-useful activity" with "hunting and poaching." The court rejected U.S. Attorney Timothy Purdon's "expansive interpretation of the law" because it "would yield absurd results": If the government's case carried the day, "many everyday activities become unlawful—and subject to criminal sanctions—when they cause the death of pigeons, starlings, and other common birds."
The newspaper had previously claimed that the Obama administration was selectively prosecuting the Migratory Bird Act against oil companies but not companies generating energy via wind turbines, which kill many birds.
For some of the Federalist Society's previous examination of overcriminalization in federal law, see here. On January 31st, FedSoc's Triangle Lawyers Chapter will be hosting a talk on the subject in Raleigh, North Carolina. The guest speaker is John S. Baker, Jr., Distinguished Scholar in Residence at Catholic University of America Law School and Emeritus Professor at Louisiana State University Law School.
by SCOTUScaster
Posted January 25, 2012, 12:48 PM
On January 10, the Supreme Court announced its decision in Gonzalez v. Thaler. The case presented two questions arising under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). The first was whether a judge’s failure to “indicate” the constitutional issue that a state prisoner has raised in a habeas appeal deprives a court of subject-matter jurisdiction to hear that appeal. The second question was when a judgment becomes “final” for purposes of calculating the one-year limit that state prisoners have in which to file a federal habeas petition.
In an opinion delivered by Justice Sotomayor, the Court held 8-1 that (1) a judge’s failure to “indicate” the requisite constitutional issue raised by a state prisoner does not deprive a court jurisdiction to hear a state prisoner’s habeas appeal, and (2) for a state prisoner who does not seek review in the state’s highest court, judgment becomes final on the date that the time for seeking such review expires. On that basis, the Court affirmed the decision of the lower court that the state prisoner’s federal habeas petition was time-barred. Justice Scalia filed a dissenting opinion.
To discuss the case, we have Ozan Varol, visiting assistant professor at the Chicago-Kent College of Law.
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