FedSoc Blog

There have lately been calls to repeal the 17th Amendment, which was ratified in 1913 and replaced the election of U.S. senators by state legislators under the original constitutional system with the current system of election by the people of each state.

To contribute to this debate, Professors Todd Zywicki and Ilya Somin of George Mason University School of Law have written an article for the forthcoming August 2011 edition of Engage: The Journal of the Federalist Society Practice Groups debating whether repealing the 17th Amendment would restore the original intent of the Founders by increasing the power of the states in the federal system.

Prof. Zywicki argues that repeal would benefit the federal system by returning to state legislatures the authority to elect senators and thus effectively granting them an opportunity to directly influence federal legislation being considered at the federal level. Prof. Somin argues, on the other hand, that repeal would do little if anything to curb federal power because states would probably still allow their citizens to elect U.S. senators, and because senators would still have insufficient incentive to limit federal power.

Click here for the pdf of the article, brought to you by the Federalist Society's Federalism & Separation of Powers Practice Group.

A commission tasked by President Obama to study alternatives to storing nuclear waste at Yucca Mountain in Nevada appears to be ready to recommend that at least one new site be found to store the leftover waste from U.S. nuclear power facilities, reports Steven Mufson at The Washington Post.

The report from the commission, with former Democratic congressman Lee Hamilton and former national security adviser Brent Scowcroft chairing, is set to be released today. Though it recommends that a new storage site be found, it does not say where that site should be.

Sources in the article say that the commission's report also will suggest that the federal government create a new corporation to manage the site and that local communities (not states) be given veto power over the site's construction.

For more on nuclear storage and the legal battle over the proposed Yucca Mountain site, click here to read a paper by C.J. Milmoe on these issues for the Federalist Society's New Federal Initiatives Project.

Listen to the audio here.

On June 16, 2011, the Supreme Court announced its decision in Bond v. United States. After discovering that her husband had impregnated her close friend, the petitioner, Bond, placed caustic substances on objects that her friend was likely to touch. Bond was indicted in federal district court for, among other things, violating a federal law that prohibits the "knowing possession or use of any chemical that 'can caused death, temporary incapacitation or permanent harm to humans or animals' where not intended for a 'peaceful purpose.'" The federal law was enacted as part of the implementation of a chemical weapons treaty.

Bond, on Tenth Amendment grounds, contended that Congress did not have the constitutional authority to enact the statute.While the case was in the court of appeals, the government maintained that Bond did not have standing to challenge the statute on Tenth Amendment grounds. (The government eventually changed its position and agreed that Bond did have standing to challenge the federal law on Tenth Amendment grounds.) The question that the Supreme Court answered was "whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States."

In an opinion delivered by Justice Kennedy, the Court unanimously held that Bond does have standing to challenge the federal statute on Tenth Amendment grounds. Justice Ginsburg filed a concurring opinion, which Justice Breyer joined.

To discuss the case, we have Dr. John C. Eastman, who is a Professor at the Chapman University School of Law.

Click here to view this article on the source site »

According to SCOTUSblog, the Thomas More Law Center, a conservative advocacy group in Michigan, filed the first appeal to the U.S. Supreme Court regarding the health care reform passed by Congress last year and, specifically, the individual mandate that requires some individuals to buy health insurance.

Click here to read the petition for certiorari.

The petition argues that the individual health insurance mandate is beyond the authority granted to Congress via the Commerce Clause because it regulates "inactivity" as opposed to "activity." It also makes a new, "as-applied" challenge based on three individuals who joined the Thomas More Law Center in the case, asserting that the law is unconstitutional as applied to these three people.

The 6th Circuit did not pass on this as-applied challenge in its decision below, from which the Center is appealing. The Sixth Circuit is also the only circuit court of appeals so far that has issued a ruling on the health care law.

Click here to read coverage from The Blog of Legal Times. Click here for coverage on the WSJ Law Blog.

Listen to the audio here.

On June 9, 2011, the Supreme Court announced its decision in Sykes v. United States. If an armed defendant has three prior "violent felony" convictions, the Armed Career Criminal Act (ACCA) provides that that defendant, if convicted, would face a fifteen-year mandatory minimum prison term. The petitioner in this case contested whether his class D Indiana felony of fleeing in a vehicle from a police officer counts as a violent felony for the purposes of this ACCA provision.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 6-3 that the petitioner's Indiana vehicle flight conviction is a violent felony for the purposes of the ACCA. Chief Justice Roberts and Justices Breyer, Alito, and Sotomayor joined Justice Kennedy’s opinion. Justice Thomas filed an opinion concurring in the judgment. Justice Scalia filed a dissenting opinion. Justice Kagan filed a dissenting opinion, which Justice Ginsburg joined.

To discuss the case, we have Brian J. Paul, who is a partner at Ice Miller LLP.

Click here to view this article on the source site »

The Wall Street Journal Law Blog notes today that the 6th Circuit is hearing a challenge to the Family Smoking Prevention and Tobacco Control Act, which gives the Food and Drug Administration authority to restrict tobacco advertising and prevents tobacco companies from sponsoring certain events and from giving out free samples. Tobacco companies say that the law violates their right to free speech.

The Kentucky district court below held that the law did not violate the companies' free speech rights. Click here for the pdf of the district court's decision.

The brief on behalf of the tobacco companies argues that the only reason for the ban is to make it harder for the companies to sell cigarettes. The reply brief from the U.S. Department of Justice asserts that images in tobacco ads "seek() to distract potential users from the fact that tobacco products are lethal and addictive," and it states that the restrictions are necessary in order to prevent new customers from becoming hooked on the product.

Orin Kerr on the Volokh Conspiracy today links to a New York Times article about what New York police say was a man's incredibly intricate way of getting revenge on his former girlfriend, who had accused him of rape.

Following his arrest for allegedly raping Seemona Sumasar, Jerry Ramrattan used his knowledge of the criminal justice system from shows like "C.S.I." and "Law & Order" and from his time as an informer for law enforcement to hatch a scheme to have Sumasar locked up, authorities say. He convinced several "witnesses" to lie and tell police that someone matching Sumasar's description had robbed them while dressed as a police officer and then drove off in Sumasar's car.

Sumasar, who worked on Wall Street and owned a restaurant, was eventually arrested for these supposed crimes and spent seven months in jail when police didn't believe her claims that Ramrattan had set her up. She was only freed after an informer told police that Ramrattan had faked the crimes and they found in his phone records that he had called all of the apparently-fake witnesses.

Ramrattan now sits in Rikers Island awaiting trial for charges of rape and conspiracy. He says that he is being set up by Sumasar and is innocent.

As for Sumasar, she feels that she can no longer trust the American justice system, where "(f)rom the beginning I was presumed guilty - not innocent." She says, "I can never have faith in justice in this country again."

The Wall Street Journal published an article Saturday by Gary Fields and John R. Emshwiller on the reach of criminal laws created by the federal government. The article discusses a number of people who unwittingly became federal criminals by committing some seemingly innocuous actions, including:

• Collecting arrowheads on land that turned out to belong to the federal government (a year's probation, $1,500 fine for each defendant)
• Accidentally driving a snowmobile onto federal land during a blizzard (misdemeanor conviction, $75 fine)
• Importing non-regulation-size lobsters, violating a Honduran law that had, following the actions in question, been struck down by the Honduran courts (69 months in federal prison)

These federal criminal laws, according to the article, have been increasing quickly, with the Justice Department estimating in the 1980s that there were 3000 federal criminal offenses, and the ABA determining in the 1990s that there were much more than 3000 such offenses. The ABA concluded:

(T)he amount of individual citizen behavior now potentially subject to federal criminal control has increased in astonishing proportions in the last few decades.

As the number of federal offenses increased, the number of federal criminals went up as well. The number of people sentenced to federal prison has increased by almost three times over the past 30 years (the population of the U.S. only rose by about 36% during that time), and the federal prison population increased by more than eight times. While the proportion of people sentenced under drug laws went down, the proportion of people sentenced for most other offenses, like fraud, possession of a firearm, and other non-violent crimes, doubled over the last 20 years.

Two major issues raised by the growth of federal criminal law, Fields and Emshwiller write, are (1) that such criminal laws often do not have a requirement of a "guilty mind," leading to citizens who have not read all 27,000 pages of the federal code to violate them inadvertently, and (2) that these laws may be unconstitutional insofar as they go beyond the federal government's authority to regulate activity and thus infringe on the sovereignty of the states.

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Listen to the audio here.

On June 6, 2011, the Supreme Court announced its decision in Erica P. John Fund, Inc. v. Halliburton Co. The question in this case was whether securities fraud plaintiffs must prove "that the defendant's deceptive conduct caused their claimed economic loss" in order to be certified as a class.

In an opinion delivered by Chief Justice Roberts, the Court held unanimously that securities fraud plaintiffs do not need to prove that the defendant's deceptive conduct caused their claimed economic loss in order to be certified as a class.

To discuss the case, we have Adam C. Pritchard, who is the Frances and George Skestos Professor of Law at the University of Michigan Law School.

Click here to view this article on the source site »

Catherine Ho of The Washington Post reported yesterday that as the lukewarm job market continues to frustrate new law graduates, and the number of law degrees granted by schools continues to increase, the regulators and lawmakers are scrutinizing the American Bar Association for allegedly not doing enough to pressure law schools to get jobs and reduce debt levels for their students.

The Department of Education, in a recent report on the ABA's accreditation work, determined that the ABA did not set a standard for schools to follow on loan default rates, as it is required to do, or on postgraduate employment rates. According to the Department, the ABA failed to meet 17 standards that the federal government mandates for accreditation agencies.

Senator Chuck Grassley of Iowa pressed the ABA on what it is doing to help students with their loans, sending a letter earlier this month to the ABA with 31 questions, including one on the ABA's tracking of merit-based scholarships and another on programs for helping students plan how much they will borrow and calculate whether they will be able to pay it back.

Grassley wrote, "The ABA appears to be doing little to assess student-loan default rates in its law school accreditation process."

The ABA says that it doesn't track default rates for most law schools because the universities with which these schools are affiliated do not break the default rates down for each program; however, it does track the remaining schools. ABA President Stephen Zack responds that the ABA is attempting to deal with Sen. Grassley's other concerns, as well as those raised by the Dept. of Education, "in an expedited manner."

Jonathan Adler has a post on Volokh Conspiracy this afternoon highlighting the end of this New York Times story, where President Obama is quoted as saying that the President does not in fact have the constitutional authority to ignore the federal law mandating that the debt ceiling be set by statute.

According to the President, "I talked to my lawyers . . . (and) they are not persuaded that that is a winning argument."

In rejecting this authority, President Obama disagrees with his fellow former-constitutional-law-professor-turned-president Bill Clinton, who stated in an interview this week that the President has the authority to unilaterally change the debt ceiling under the 14th Amendment's somewhat obscure provision stating that the validity of U.S. debt "shall not be questioned."

While experts on obscure 14th Amendment provisions awaiting a Great Debate scenario between the current President and former President on the subject should probably not hold their collective breath, there are plenty of interesting opinions and debates across the web on this topic, including this one, linked to by Prof. Adler, where Prof. Laurence Tribe responds to some of Prof. Neil Buchanan's comments on the debt ceiling.

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The Wall Street Journal reports that a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit today held that a new rule from the Securities Exchange Commission that grants more power to investors to throw out corporate directors was invalid.

Click here to read the ruling.

As Jessica Holzer explains in the article, the SEC's "proxy access" rule would have required corporations to print the names of nominees to the board of directors on ballots if certain conditions were met. Currently, investors have to pay their own way if they wish to mail ballots to shareholders in order to run their own nominees for the board. 

The D.C. Circuit panel ruled that business groups, including the U.S. Chamber of Commerce and the Business Roundtable, were correct that the SEC was acting "arbitrarily and capriciously" when it issued the proxy access rule, and it contradicted itself when it analyzed the rule's costs.

William Messenger has written a new paper for the Federalist Society's New Federal Initiatives Project on "Executive Order 13502: Use of Project Labor Agreements for Federal Construction Projects." The paper discusses how President Obama's executive order "encourages federal agencies to use union-only project labor agreements ('PLAs') on construction projects, the cost of which exceeds $25 million."

You can check out the paper by clicking here. To read the executive order, click here.

The Wall Street Journal Law Blog has a post today discussing Title IX's application to high school sports programs.

Title IX was passed in 1972 to provide equal funding to males and females in every educational program receiving federal funding. Since 1993, federal courts have ruled that the legal standard for schools under Title IX is a three-part test, with the first part - the "proportionality" prong - generating most of the conflict in litigation.

Under the proportionality prong, the percentage of women active in intercollegiate athletics at an institution must be proportionate to the percentage of women throughout the entire school. Some plaintiffs are now suing to apply this proportionality test to high schools.

However, the American Sports Council, a group whose goal is "to advanc(e) the student-athlete experience through its efforts to restore the original intent of Title IX," is challenging this interpretation of the law, arguing not only that application of the proportionality test to high schools was never the aim of Title IX, but that such an application would be unconstitutional as violative of the Equal Protection Clause.

Department of Education spokesman Jim Bradshaw counters by pointing to a footnote in Title IX regulations referring to a 1979 policy interpretation setting out the proportionality prong of the test. He says, "Although the 1979 Policy Interpretation is designed for intercollegiate athletics, its general principles . . . often will apply to interscholastic, club, and intramural athletic programs."

Following the nomination of Ohio Attorney General Richard Cordray to head the new Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank Wall Street Reform and Consumer Protection Act passed last year, Sen. Richard Shelby of Alabama has an op-ed in today's Wall Street Journal on what he considers to be the lack of accountability of the CFPB and proposals on how he would fix the problem.

According to Sen. Shelby:

In its current form, the bureau is headed by a single director. Over a five-year term, the director will have unfettered authority over thousands of American businesses, not just banks. While the bureau receives hundreds of millions of dollars of public money annually, the elected representatives of the American people have no say in how it spends this money. Moreover, other regulators have no meaningful ability to prevent bureau mandates that may threaten the financial health of banks...

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.

In May, Sen. Shelby and 43 of his fellow senators sent a letter to President Obama stating that they would confirm no one as head of the CFPB unless structural changes were made. He writes that three reforms would fix the unaccountability problem: oversight by a board of directors, subjecting the CPFB to a congressional appropriations process, and giving bank regulators the power to keep the bureau from harming financial institutions.