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What Does Expanding Presidential Power Mean for the Future?

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by Publius
Posted September 09, 2014, 8:44 AM

Photo by Lucien Dalarun (Wikimedia Commons)At Vox Andrew Prokop looks at how President Obama is expanding presidential power and the Republican lawsuit in response. He writes:

When the voting closed, the House was 225 to 201 in favor of filing suit. All but 5 Republicans voted in favor — those opposed believed the lawsuit didn't go far enough. Speaker John Boehner chided the Democrats: "Are you willing to let any president choose what laws to execute and what laws to change?" . . .

The lawsuit was limited to the delay of the employer mandate because Boehner's lawyers believed the narrow charge had the best chance of success in the courts. But House Republicans made clear they believed Obama's overreach was far broader. Rep. Andy Harris (R-MD) said the mandate delay was "only one of the many areas he has abused his executive authority." And Rep. Doug Lamborn (R-CO) argued that the worst was yet to come, citing news reports that Obama was planning new executive actions on immigration. "These are not lawful actions," Lamborn said. "These are the power-hungry actions of a president who refuses to work with Congress."

It was a charge that, a few short years before, would have sounded perfectly natural coming from Senator Barack Obama. "I taught constitutional law for 10  years," Obama said in March 2008. "I take the Constitution very seriously. The biggest problems that we're facing right now have to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all. And that's what I intend to reverse when I'm president of the United States of America."

But interviews with academic, legal, and policy experts make clear Obama has done little to roll back Bush's expansion of executive power — and that, instead, he's added a few innovations of his own. "The consensus is that he's not the disruptor in terms of presidential power that he purported to be," says Mitchel Sollenberger, a political scientist at the University of Michigan. "Instead, he's largely continued consolidating and strengthening it." . . .

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Judge Posner’s Evolution on Marriage Equality

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by Publius
Posted September 08, 2014, 8:18 AM

Judge Posner's Evolution on Marriage EqualityChris Johnson, writing at the Washington Blade, has an analysis of U.S. Circuit Judge Richard Posner's evolution on the issue of same-sex marriage. He comments:

U.S. Circuit Judge Richard Posner has earned the distinction of delivering one of the most sharply written decisions affirming a constitutional right to same-sex marriage, but a look at the jurist’s three-decade career on the federal bench reveals it took time for him to reach those views.

Already renowned as a a legal scholar, the 75-year-old Reagan-appointed judge has become an overnight sensation for advocating marriage rights for gay couples. He won praise for his aggressive questioning during oral arguments of state attorneys defending bans on same-sex marriage before the U.S. Seventh Circuit Court of Appeals, and his ruling on Thursday striking down same-sex marriage bans in Wisconsin and Indiana. . . .

In a 1997 book review published in the Michigan Law Review, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment” by Yale Law Professor William N. Eskridge, Jr. The book, which came out at a time when Hawaii was on track through the judiciary to legalize same-sex marriage, espouses the idea that courts must grant same-sex couples the right to marry as quickly as possible.

Although Posner acknowledges his belief that, without further study, same-sex couples should be allowed to adopt children just the same as different-sex couples, he disputes the notion that the right to same-sex marriage is guaranteed under the U.S. Constitution. . . .

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Occupational Freedom, Competition, and the Supreme Court

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by Publius
Posted September 05, 2014, 9:11 AM

Photo by Jay Tamboli (Flickr)At The Library of Law and Liberty Blog, John O. McGinnis comments:

Next month the Supreme Court will consider an antitrust case [North Carolina Board of Dental Examiners v. Federal Trade Commission] that pits federalism against occupational freedom. Over the last decade, individuals and companies who are not practicing dentists have begun offering teeth whitening services. In North Carolina a state board has told them to desist. What makes the case interesting under antitrust law is that the substantial majority of the board is elected by  dentists and dental hygienists—precisely the groups that stand to lose from this competition. The Federal Trade Commission challenged their action as a restraint of trade and the Fourth Circuit Court of Appeals sustained it decision.

Antitrust law seeks a competitive marketplace. There is little doubt that it would condemn a private agreement among dentists to keep out competitors. It would be obviously the case that the potential competitors cannot evaluate health risks dispassionately.   But for reasons of federalism antitrust law exempts state action from its strictures even if that action is blatantly skewed to protect producers. Here the question is whether the Court will permit the state to cloak the actions of private competitors in its own authority.

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Full D.C. Circuit to Hear ACA Tax Credits Challenge

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by Publius
Posted September 04, 2014, 1:00 PM

Full D.C. Circuit to Hear ACA Tax Credits ChallengeThe National Law Journal reports:

The full U.S. Court of Appeals for the D.C. Circuit will consider a challenge to a key part of the Affordable Care Act—whether individuals buying health insurance on federally run exchanges can receive federal subsidies in the form of tax credits.

A divided D.C. Circuit panel in July ruled that individuals buying insurance through federal exchanges in the 36 states that declined to set up their own exchanges weren’t eligible to receive the credits. The U.S. Department of Justice asked the en banc court to reconsider the decision.

Arguments in Halbig v. Burwell are scheduled for 9:30 a.m. on Dec. 17, according to an order released Thursday morning by the appeals court.

At issue is an Internal Revenue Service regulation that interpreted the Affordable Care Act’s tax credit provision to apply to insurance purchased through the federal exchange. The ACA said the credits were for insurance bought through exchanges “established by the state,” which the challengers argued meant they were limited to state-run exchanges. The government argued for a broader interpretation.

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U.S. District Judge Upholds Louisiana’s Ban on Same-Sex Marriage

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by Publius
Posted September 04, 2014, 8:45 AM

Photo by comedy_nose (Flickr)The Wall Street Journal Law Blog asks, "Game-changer or outlier?" You be the judge: 

A U.S. district judge on Wednesday upheld Louisiana’s ban on same-sex marriage, breaking with the vast majority of federal courts on a constitutional question likely to be settled by the U.S. Supreme Court.

Acknowledging he was sounding a discordant note amid a “hopeful chorus” of recent rulings, U.S. District Judge Martin Feldman said he was unconvinced that gay couples have a constitutional right to marry. The judge said federal court decisions striking down gay marriage bans “exemplify a pageant of empathy,” but he doubted their legal wisdom.

“This Court is persuaded that Louisiana has a legitimate interest…whether obsolete in the opinion of some, or not, in the opinion of others…in linking children to an intact family formed by their two biological parents,” wrote Judge Feldman, leaving in place a state constitutional ban backed by 78% of Louisiana voters in a 2004 referendum.

The ruling ends a remarkable winning streak for the marriage-equality movement. Since the Supreme Court in 2013 invalidated Defense of Marriage Act provisions denying federal benefits to same-sex spouses,19 different federal courts have ruled against same-sex marriage bans in 16 states, according to Lambda Legal, a national gay rights legal group. Two other federal courts had ruled against gay plaintiffs in Hawaii and Nevada in older cases filed before last year’s high-court decision.

The string of victories also includes two appellate courts, the 10th U.S. Circuit Court of Appeals in Denver and the Fourth U.S. Circuit Court of Appeals in Richmond, Va. Two other circuit courts are expected to weigh in with decisions this year.

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Fear-Based Instruction Can be Harmful to Law Students

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by Publius
Posted September 03, 2014, 8:56 AM

Photo by Jirka Matousek (Flickr)The Wall Street Journal Law Blog reports:

Law schools have their own version of Scared Straight in the form of cautionary tales. Those are the stories that professors share with students about attorneys who suffered embarrassment or worse for a mistake they made. A good example is the story about the attorney who failed to notice an autocorrect error in his appellate brief that changed the phrase “sua sponte” to “sea sponge.”

But professors who sprinkle their classroom lecture with cautionary tales about attorneys’ goofs should themselves take heed, says Abigail Patthoff, a legal research and writing scholar at Chapman University in California.

In a new paper forthcoming in the Utah Law Review, Ms. Patthoff warns that such classroom tactics, if deployed unwisely, can make life even more stressful for beleaguered law students, whom she says are already “among the most dissatisfied, demoralized, and depressed of graduate student populations.”

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Are Republican Law Professors Cited More Often than Democratic Law Professors?

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by Publius
Posted September 02, 2014, 8:17 AM

Are Republican Law Professors Cited More Often than Democratic Law Professors? As a follow up to the post on Political Bias in Legal Scholarship, Eric Posner writes:

A number of people asked me this question in light of my paper, An Empirical Study of Political Bias in Legal Scholarship (with Adam Chilton), which I discuss here. To answer this question, we obtained citation data from Gregory Sisk (see this paper for his methodology). The results (the number of articles that cite a specific professor over the last five years, averaged over each group) are below:

Affiliation Mean Citations Median Citations
Democrat 329 251
None 236 164
Republican 492 326

So the answer is “yes” (at a statistically significant level). It is interesting, and possibly puzzling, that non-donors are cited less often than both Democrats and Republicans are. Maybe articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited. . . .

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State Judge: Texas Failing to Properly Fund Public Schools

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by Publius
Posted August 29, 2014, 8:01 AM

Photo by Billy Hathorn. The Wall Street Journal Law Blog reports:

Austin state judge John Dietz, a Democrat, ruled that the Texas Legislature has “failed to meet its constitutional duty to suitably provide for Texas public schools.” The judge stayed his ruling until July of next year to give the legislature, which will next convene in January, an opportunity to make additional changes.

More than 600 school districts, educating about three-fourths of the five million K-12 public-school students in Texas, filed a legal challenge in 2011, after the state cut more than $5 billion from school budgets, citing fiscal pressures.

Judge Dietz sided with the schools last year, ruling that Texas wasn’t spending enough to meet its constitutional duty to provide a “general diffusion of knowledge.” Afterward, legislators increased spending on K-12 public schools by about $3.5 billion.

But Texas school districts returned to court, claiming the increase was still insufficient to meet the demands of educating children in the fast-growing state, now home to more than 26 million people. On Thursday, the judge concurred that the state’s school-finance system remained inadequate. . . .

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President’s Plan to Bypass Congress on Climate Agreement

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by Publius
Posted August 27, 2014, 1:07 PM

President's Plan to Bypass Congress on Climate Treaty Roger Kimball, at PJ Media, comments on a report that President Obama is forging an international climate treaty without need for Congressional approval. He writes:

Do you remember this bit from the Constitution of the United States?

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; . . .

That’s so-called “Treaty Clause” from Article II, Section 2, Clause 2 of the Constitution.  It is one of several checks on executive power thoughtfully provided by the Founders . . .

When it comes to Barack Obama’s cavalier treatment of the Constitution, you need look no further than this morning’s New York Times. Under the headline Obama Pursuing Climate Accord in Lieu of Treaty the paper explains how the President, frustrated by Congress’s unwillingness to barter away U.S. sovereignty by signing on to the so-called “Kyoto Protocol" . . .  is planning to “sidestep” Congress.

The Obama administration is working to forge a sweeping international climate change agreement to compel nations to cut their planet-warming fossil fuel emissions, but without ratification from Congress.

In preparation for this agreement, to be signed at a United Nations summit meeting in 2015 in Paris, the negotiators are meeting with diplomats from other countries to broker a deal to commit some of the world’s largest economies to enact laws to reduce their carbon pollution. But under the Constitution, a president may enter into a legally binding treaty only if it is approved by a two-thirds majority of the Senate.

To sidestep that requirement, President Obama’s climate negotiators are devising what they call a “politically binding” deal that would “name and shame” countries into cutting their emissions.

I’ve highlighted a few passages for special consideration. I invite you to ponder in particular the conjunction of these two nuggets: 1.) “under the Constitution, a president may enter into a legally binding treaty only if it is approved by a two-thirds majority of the Senate.” and 2. “To sidestep that requirement, . . .” In other words, even The New York Times is onto the extra-Constitutional, i.e., the illegal, activities of the Obama administration.  Do they care? Do you?

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Net Neutrality and International Consequences

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by Publius
Posted August 27, 2014, 11:21 AM

Photo by Flickr user Dennis Skley.At InsideSources, Shawn McCoy writes about the potential (and unintended) international consequences of our domestic "net neutrality" debate. He reports

As some call for government oversight of the Internet in the United States, there are worries that implementing such regulation could undermine the US in pressing for more Internet freedom worldwide. Leading up to the Global Internet Governance Forum in early September, other countries are watching the domestic debate in the US and looking for clues in Washington’s thinking. . . .

In an interview with InsideSources, the Heritage Foundation’s James Gattuso said he sees the greatest international danger in Title II coming as other countries also move to institute common carrier and “unintentionally suppress the Internet.”

Others view the debate over Title II, and the larger discussion of net neutrality, as an opportunity for the US to lead by example. President Obama, speaking recently at a forum of African leaders, suggested that he would support a move toward stronger regulation. . . .

Dr. Daniel Calingaert, executive vice president at Freedom House, tells InsideSources that while the US should lead by example, authoritarians will still do as they wish. “Dozens of governments around the world censor Internet content, just as they restrict traditional media. While a U.S. policy decision may give them a talking point, they are driven above all by their own interest in silencing their critics,” says Calingaert. . . .

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Can Judge-Found Facts Be Used to Increase Federal Sentences?

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by Publius
Posted August 26, 2014, 11:51 AM

Can Judge-Found Facts Be Used to Increase Federal Sentences? At the Volokh Conspiracy, Will Baude provides some good background information and context about an issue the Supreme Court may decide in the near future: 

Last May I noted a recent cert. petition challenging the use of judge-found facts to increase a federal sentence. (The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.)

I thought I’d post with a short update about the petition. Two amicus briefs were filed in support of the petition — one from the Cato Institute and Rutherford Institute, and one from Professor Douglas Berman, known to all of the blogosphere for his tireless work at Sentencing Law and Policy. . . .

Looking at the petition and the amicus briefs, I was struck by something: Different people are concerned about different types of judge-found facts. Some are most concerned about facts that are made legally dispositive (emphasized by the cert. petition). Some are most concerned about facts about the offense, as opposed to facts about the offender (noted at the end of the Cato brief). Some are most concerned about facts on which the jury acquitted, as opposed to those that were simply never charged (emphasized by the Berman brief).

So far as I can tell, these defendants’ case lies at the center of all three concerns. So if the Court is indeed interested in deciding whether appellate common-law rules are subject to the same constraints as statutory law—as Justices Scalia and Thomas have argued—the case seems like the right vehicle. . . .

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Thoughts on Argentina’s World Court Lawsuit Against the U.S.

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by Publius
Posted August 25, 2014, 2:10 PM

Copyright: UN Photo/CIJ-ICJ/Frank van Beek. Courtesy of the ICJ. All rights reserved.At the Opinio Juris blog, Julian Ku has some thoughts about Argentina's lawsuit against the United States. He comments:

Based on Argentina’s own description of its legal arguments, I stand by my earlier assessment: Argentina’s international law claim against the United States is frivolous and would have almost no chance of succeeding, even if Argentina somehow convinced the U.S. to accept [International Court of Justice] jurisdiction. . . .

What makes this claim ridiculous is that Argentina chose to grant the U.S. judicial system a wide-ranging jurisdiction over bonds it sold to private investors. When issuing those bonds, Argentina promised that it had “irrevocably agreed not to claim and has irrevocably waived” immunity “to the fullest extent permitted by the laws of the U.S. and New York. Argentina also agreed to allow “any of its revenues, assets or properties” to be subject to judicial execution and enforcement to whatever degree permitted by U.S. law.

The power of a country to give up its sovereign immunity rights is well-established under international law. As Article 19 of the 2004 Convention on Jurisdictional Immunities states, sovereign assets will be immune from judicial measures unless that sovereign “has expressly consented to the taking of such measures as indicated by…a written contract.” In other words, nations can waive judicial seizure of sovereign assets, and there is no doubt Argentina did so here. . . .

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Contraception Mandate Changes Its Address

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by Publius
Posted August 25, 2014, 8:48 AM

Contraception Mandate Changes Its AddressJon Healey, writing in the Los Angles Times, comments on the Obama administration's proposed changes to the contraception mandate:

Under the previous approach, a religious-affiliated nonprofit (such as a Catholic hospital) could get an exemption from the contraception mandate by sending a specific form to the government and its insurer or insurance administrator. The insurer would then, on its own dime, offer the coverage to the nonprofit's female employees with no out-of-pocket costs.

In the new setup, such a nonprofit could claim an exemption by informing the Department of Health and Human Services in writing -- but not using any particular federal form -- that it had a sincerely held religious objection to the mandate. The notice would have to identify which contraceptive services the nonprofit objected to, as well as providing contact information for its insurer or insurance administrator. HHS and the Department of Labor would then inform said insurer or administrator that it had to provide the coverage, even though the nonprofit employer would have no financial or administrative involvement.

In short, a nonprofit will now exempt itself by sending a letter to the government, which will effectively shift the cost of providing and administering the contraceptive coverage to the insurer or third-party administrator. That's almost exactly the way it used to work. The main difference is that the insurer will be notified of the change by the government, not by an employer sending it a copy of a federal form. . . .

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Supreme Court Signals on Same-Sex Marriage

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by Publius
Posted August 22, 2014, 12:56 PM

Photo by Nicolas STAMBACH via Wikimedia Commons.SCOTUSblog has in-depth and interesting commentary about which way the Supreme Court might be leaning on same-sex marriage. Lyle Denniston comments:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so. . . .

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29.  That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. . . .

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NC Judge: Private School Voucher Program Unconstitutional

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by Publius
Posted August 22, 2014, 8:43 AM

Jurist reports:

Judge Robert Hobgood of the Wake County Superior Court specifically ruled that [North Carolina's school voucher program] violates article 1 section 15 and article 9 section 2(1) of the North Carolina constitution, ordering a permanent injunction against the Opportunity Scholarships program. Hobgood said:

The plaintiffs—public schools grades K through 12 and the taxpayers of North Carolina—will suffer irreparable harm if the state is not permanently enjoined from making unconstitutional disbursement of taxpayer funds to parents for the enrollment of their children in private schools. The court issues a permanent injunction to any further implementation of the opportunity scholarship program.

The judge denied a request for a stay pending appeal citing that it has been proven beyond a reasonable doubt that the program is unconstitutional.

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