FedSoc Blog

According to Thomson Reuters:

Federal courts in Kentucky, Ohio, Tennessee and Michigan may soon be seeing an influx of securities class actions claiming strict liability under Section 11 of the Securities Act of 1933, thanks to a ruling Thursday by the 6th Circuit Court of Appeals in Indiana State District Council of Laborers v. Omnicare. Judge Guy Cole, writing for a panel that also included Judge Richard Griffin and U.S. District Judge James Gwin of Cleveland, found that shareholders asserting Section 11 claims for misrepresentations in offering documents need not show that defendants knew the statements to be false.

"Under Section 11," Cole wrote, "if the defendant discloses information that includes a material misstatement, that is sufficient and a complaint may survive a motion to dismiss without pleading knowledge of falsity." The panel explicitly noted that its reasoning is at odds with the 9th Circuit's ruling in the 2009 case Rubke v. Capitol Bancorp and the 2nd Circuit's oft-cited 2011 decision in Fait v. Regions Financial.

But the court said it is bound only by the U.S. Supreme Court and insisted that high court precedent in the 1991 case Virginia Bankshares v. Sandberg is consistent with its Omnicare holding. "In the instant case, the plaintiffs have pleaded objective falsity," Cole wrote. "The Virginia Bankshares court was not faced with and did not address whether a plaintiff must additionally plead knowledge of falsity in order to state a claim. It therefore does not impact our decision today."

The Omnicare class action has quite a convoluted history. The case began in federal court in Kentucky as a securities fraud class action claiming that the pharmaceutical distributor deceived investors when it concealed its supposedly illegal kickback and false billing deals with pharma manufacturers. Shareholders later amended the complaint to include Section 11 claims based on disclosures in a 2005 public offering. The entire case was dismissed in 2007, but in 2009 the 6th Circuit revived and remanded the Section 11 claims, instructing the district court to determine whether they "sound in fraud" and must meet a heightened pleading standard.

Plaintiffs' lawyers at Robbins Geller Rudman & Dowd considered asking the U.S. Supreme Court to review the issue of scienter for Section 11 claims that sound in fraud, but instead amended their Omnicare complaint in an attempt to strip out hints of fraud, focusing only on the falsity of so-called "soft statements" about Omnicare's legal compliance in the offering documents. The district court nevertheless said shareholders failed to meet the requisite standard of establishing that defendants knew the statements were false.

In Thursday's ruling, the appeals court said such a showing is not necessary for Section 11 claims, which entail strict liability for offering documents that contain material misstatements. "No matter the framing, once a false statement has been made, a defendant's knowledge is not relevant to a strict liability claim," the panel said. . . .

Gene Healy comments at the Washington Examiner:

You may be appalled about IRS inquisitions for Tea Party groups and dragnet subpoenas for investigative reporters, but what's really outrageous, according to some commentators, is that a couple of Republicans recently dared to use the "I-word" -- "impeachment."

I'm not convinced that any of President Obama's recent scandal eruptions constitute an "impeachable moment." But surely something's gone wrong with our constitutional culture when opinion leaders treat the very invocation of the "I-word" as akin to screaming obscenities in a church.

"The notion of impeachment is industrial-strength insane," Michael Tomasky fumes in the Daily Beast. Over at the Atlantic, "communitarian" guru Amitai Etzioni moans "I see no way to protect the president and all of us from the second term curse."

"First among" the serious issues that confront us, Etzioni insists, is "the threshold for impeachment." It's distressingly low, he argues in a piece entitled "Why it should be harder to impeach the president."

"Harder"? We've impeached a total of two presidents in our 224-year constitutional history: Andrew Johnson and Bill Clinton (Richard Nixon resigned before the full House had a chance to vote on articles of impeachment). Let's be charitable and call it three. The question that should have occurred to Etzioni is, if we only manage to impeach a president once every 75 years or so, just how easy can it be?

As Alexander Hamilton explains in Federalist No. 66, the impeachment power was supposed to serve as "an essential check in the hands of [the legislature] upon encroachments of the executive." Unfortunately, that power has been too rarely used against presidents, and, on occasion, it's been abused.

One such case, argues constitutional law professor Jonathan Turley, was the 1868 impeachment of President Andrew Johnson for firing his secretary of war and, through various intemperate speeches, "excit[ing] the odium and resentment of all good people of the United States against Congress," which is hardly a "high crime."

"The Johnson case shows the danger majority factions may pose if the constitutional standards for impeachment are ignored," Turley writes, but given how infrequently presidents are impeached, "a more significant danger lies in impeach[able] conduct that is ignored by the majority," as when presidents assert "a relativistic view of their authority to claim extraconstitutional powers at times of crisis."

That was a worry shared by many of the Framers. As Virginia's Edmund Randolph noted at the Philadelphia Convention, the impeachment power was essential, given that "the executive will have great opportunities of abusing his power; particularly in time of war. ... Should no regular punishment be provided, it will be irregularly inflicted by tumults & insurrections."

In this regard, the Atlantic's Conor Friedersdorf makes a key point: "The biggest Obama scandals are proven and ignored." Among other offenses, Friedersdorf writes, the president has "violated the War Powers Resolution ... when committing U.S. troops to Libya without Congressional approval" and "ordered the assassination of ... American citizens in secret without due process," while "refus[ing] to reveal even the legal reasoning he used."

"People may be starting to use the I-word before too long," Sen. James Inhofe, R-Okla., said last week in relation to the Benghazi scandal. But impeachment talk is relegated to the fringes of the Republican Party, and it's usually invoked for the wrong reasons. The real Benghazi scandal is how we got there in the first place. The president launched an illegal war in a country that his own secretary of defense admitted wasn't "a vital interest" for the United States.

One thing is clear, however: Given the massive abuses of power and public trust that modern presidents have committed, we've had far too few presidential impeachments. We should stop treating the "I-word" like it's a curse.

According to Greewire:

A Supreme Court ruling this week on government regulation of new cellphone towers could be a boon for U.S. EPA and could shield the agency from lawsuits, environmental law experts say.

On Monday, the high court upheld a 2009 Federal Communications Commission rule that said local authorities have 150 days to process an application for a new tower or antenna in City of Arlington v. FCC.

Four cities -- San Antonio, San Diego, Los Angeles and Arlington, Texas -- challenged the rule, arguing the FCC was exceeding authority granted by a 1996 law. The agency's reading of the statute, they reasoned, impinged on their local zoning authority.

In a 6-3 decision, the Supreme Court, however, deferred to FCC's interpretation. Relying on a framework established in the 1984 Chevron v. Natural Resources Defense Council, Justice Antonin Scalia wrote for the majority that agencies have the authority to determine the scope of their own jurisdiction if the law is unclear.

Otherwise, Scalia wrote, nearly every agency action would have to be reviewed by judges.

"Judges should not waste their time in the mental acrobatics needed to decide whether an agency's interpretation of a statutory provision is 'jurisdictional' or 'nonjurisdictional,'" Scalia wrote.

The ruling is "unquestionably welcome news" for EPA because it is often faced with unclear statutory language, said Jonathan Adler, a law professor at Case Western Reserve University School of Law.

"EPA, like the FCC, is often in the position of trying to apply older, perhaps outdated statutory language to newer problems," Adler said. "In that context, it is often easy to find some degree of ambiguity as to whether the statute applies to a situation or a problem that wasn't on the minds of the drafters."

A clear example is the Clean Water Act, where EPA has been frequently challenged over whether certain streams qualify as "waters of the United States" under the law. The same applies to EPA's definitions of what constitutes a wetland. . . .

Some court watchers took issue with the ruling, however, and pointed to the unique breakdown of how the justices voted.

Joining Scalia in the majority was Justice Clarence Thomas, another conservative, and the court's four liberal justices. Chief Justice John Roberts and Justice Samuel Alito -- two conservatives -- along with Kennedy, the usual swing vote, dissented.

Roberts, writing for the minority, condemned Scalia's opinion, saying his disagreement is "fundamental."

The chief justice went on to write that courts should reserve the right to review whether an agency has properly interpreted ambiguous statutory language.

The Chicago Tribune reports:

Lawyers for two Roman Catholic-owned companies in Illinois and Indiana argued before the Seventh Circuit Court of Appeals Wednesday that a law forcing them to include birth control in their employees' benefits would violate their First Amendment rights.

But in an unexpected twist during a hearing on the merits of a preliminary injunction, the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.

Edward L. White III, a lawyer representing Korte & Luitjohan Contractors in the Downstate city of Highland, said the fines imposed for ignoring the contraception mandate would impose a substantial burden on the southern Illinois construction company and therefore violate the U.S. constitution.

“The mandate is depriving my clients of the free exercise of their Catholic faith,” said White, a lawyer for the American Center for Law & Justice based in Ann Arbor, Mich.

“The company is an extension of their beliefs as the two people who control the company,” he told the court.

But Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

“At bottom, the concern is about establishing religion,” Klein said.

Judge Diane Sykes said the question before the court is not whether the mandate violates religious beliefs, but whether acting on those beliefs imposes a significant burden on a business owner.

“We are not competent to answer religious questions,” she said.

About 60 businesses, half of them for-profit and most of them Catholic-owned, have sued the Obama administration over a health-care mandate that requires employers to provide health benefits, including contraception, some sterilization procedures and the morning-after pill.
 
In February, the Obama administration proposed a rule that attempted to address the First Amendment concerns expressed by non-profits. But the rule did not offer to shield for-profit businesses with more than 50 employees. They still must comply, even if they object on religious grounds.

The Tenth Circuit Court of Appeals in Denver will hear arguments on behalf of the evangelical Christian owners of craft supplier Hobby Lobby on Thursday.
 
Lawyers for the business owners have relied heavily on the 1993 Religious Freedom Restoration Act, a law that allowed exemptions from certain rules, as long as those exceptions don't harm the welfare of society.
 
Klein argued that the scope of that act doesn’t apply in this case.
 
Sykes frequently interrupted Klein’s arguments, leading spectators in the packed courtroom to conclude at least one judge had already made up her mind. . . .

The Wall Street Journal reports:

The Obama administration is set to restart transfers of detainees from Guantanamo Bay, Cuba, U.S. officials said, kick-starting a long-stalled drive to close the prison.

In a speech Thursday, President Barack Obama will reassert his case that closing Guantanamo is crucial to U.S. counterterrorism goals. While he isn't planning to detail how to speed up transfers from the prison, officials said the president in coming weeks plans to lift the administration's prohibition on sending detainees to Yemen.

The president also is set to lay down the broader outlines of his administration's approach to efforts to fight al Qaeda and its affiliates, including through the use of unmanned aircraft strikes.

Ahead of the speech, the administration told Congress in a letter Wednesday that four Americans have been killed in drone strikes, the first official acknowledgment of the U.S. deaths by the government.

Attorney General Eric Holder wrote that only Anwar al-Awlaki, a radical Muslim cleric killed in September 2011, was specifically targeted. The others included Mr. Awlaki's son, Abdulrahman al-Awlaki, and Samir Khan, an al Qaeda propagandist, both killed in Yemen; and Jude Kenan Mohammad, killed in Pakistan, who was on the Federal Bureau of Investigation's most-wanted list for supporting terrorism.

Mr. Mohammad was the only one of the four who wasn't previously identified as having been killed in a drone strike.

The renewed push to close Guantanamo stands to put the White House on another collision course with Congress. Closing the prison, which was opened by George W. Bush, was a priority for Mr. Obama when he came to office. At its peak, the prison had nearly 800 detainees, mostly accused militants captured in Afghanistan and Pakistan. The transfers of detainees back to their home countries or other nations picked up in 2004 and continued throughout the Bush administration.

Only a handful of detainees have been transferred since 2011.

A hunger strike that now involves 102 Guantanamo detainees, protesting their confinement and the slow pace of transfers, has increased pressure on the administration to push to close the prison. Of 166 detainees now held, 86 have been cleared for transfer, including 56 from Yemen. The resumption of transfers is likely to begin with some of the non-Yemeni detainees, which will give that nation's government time to build up its rehabilitation and oversight program, current and former officials said.

The U.S. has been in talks with the Afghan government about transferring Afghan detainees from Guantanamo. Human-rights advocates believe these detainees could be among the first transferred.

A U.S. official said the transfers to Yemen would begin slowly, starting with two or three detainees, to ensure Yemen can keep track of the detainees and prevent them from joining militant groups. The official said that transfers to Yemen could still be months away.

The administration has argued that Guantanamo undermines national security in part because it is used to rally would-be militants. Human-rights advocates have criticized the president's failure to fulfill his 2009 pledge to close it. . . .

The New York Times reports:

One day before President Obama is due to deliver a major speech on national security, his administration on Wednesday formally acknowledged that the United States had killed four American citizens in drone strikes in Yemen and Pakistan. 

In a letter to Congressional leaders obtained by The New York Times, Attorney General Eric H. Holder Jr. disclosed that the administration had deliberately killed Anwar al-Awlaki, a radical Muslim cleric who was killed in a drone strike in September 2011 in Yemen.

The American responsibility for Mr. Awlaki’s death has been widely reported, but the administration had until now refused to confirm or deny it.

The letter also said that the United States had killed three other Americans: Samir Khan, who was killed in the same strike; Mr. Awlaki’s son Abdulrahman al-Awlaki, who was also killed in Yemen; and Jude Mohammed, who was killed in a strike in Pakistan.

“These individuals were not specifically targeted by the United States,” Mr. Holder wrote.

While rumors of Mr. Mohammed’s death had appeared in local news reports in Raleigh, N.C., where he lived, his death had not been confirmed by the United States government until Wednesday.

According to former acquaintances of Mr. Mohammed in North Carolina, he appears to have been killed in a November 2011 drone strike in South Waziristan, in Pakistan’s tribal area. Mr. Mohammed’s wife, whom he had met and married in Pakistan, subsequently called his mother in North Carolina to tell her of his death, the friends say.

Mr. Holder, in a speech at Northwestern University Law School last year, laid out the administration’s basic legal thinking that American citizens who are deemed to be operational terrorists, who pose an “imminent threat of violent attack” and whose capture is infeasible may be targeted. That abstract legal thinking — including an elastic definition of what counts as “imminent” — was further laid out in an unclassified white paper provided to Congress last year, which was leaked earlier this year.

But Mr. Holder’s letter went further in discussing the death of Mr. Awlaki in particular, an operation the administration had previously refused to publicly acknowledge. He said it was not Mr. Awlaki’s words urging violent attacks against Americans that led the United States to target him, but direct actions in planning attacks.

Mr. Holder alleged that Mr. Awlaki not only “planned” the attempted bombing of a Detroit-bound airliner on Dec. 25, 2009, a claim that has been widely discussed in court documents and elsewhere, but also “played a key role” in an October 2010 plot to bomb cargo planes bound for the United States, including taking “part in the development and testing” of the bombs.

“Moreover, information that remains classified to protect sensitive sources and methods evidences Awlaki’s involvement in the planning of numerous other plots against U.S. and Western interests and makes clear he was continuing to plot attacks when he was killed,” Mr. Holder wrote.

He added, “The decision to target Anwar al-Awlaki was lawful, it was considered, and it was just.”

Mr. Obama announced the death of Mr. Awlaki on Sept. 30, 2011, and credited United States intelligence agencies, but he did not explicitly acknowledge that Mr. Awlaki had been killed by an American strike.

Richard Epstein, the Laurence A. Tisch Professor at NYU School of Law, writes at the Hoover Institution's Defining Ideas:

. . . The dismal performance of the IRS is but a symptom of a much larger disease which has taken root in the charters of many of the major administrative agencies in the United States today: the permit power. Private individuals are not allowed to engage in certain activities or to claim certain benefits without the approval of some major government agency. The standards for approval are nebulous at best, which makes it hard for any outside reviewer to overturn the agency’s decision on a particular application.

That power also gives the agency discretion to drag out its review, since few individuals or groups are foolhardy enough to jump the gun and set up shop without obtaining the necessary approvals first. It takes literally a few minutes for a skilled government administrator to demand information that costs millions of dollars to collect and that can tie up a project for years. That delay becomes even longer for projects that need approval from multiple agencies at the federal or state level, or both.

The beauty of all of this (for the government) is that there is no effective legal remedy. Any lawsuit that protests the improper government delay only delays the matter more. Worse still, it also invites that agency (and other agencies with which it has good relations) to slow down the clock on any other applications that the same party brings to the table. Faced with this unappetizing scenario, most sophisticated applicants prefer quiet diplomacy to frontal assault, especially if their solid connections or campaign contributions might expedite the application process. Every eager applicant may also be stymied by astute competitors intent on slowing the approval process down, in order to protect their own financial profits. So more quiet diplomacy leads to further social waste.

One reason the administrative process gets so bogged down is the grandiose standards the agencies employ. The FDA’s mission statement provides one example: “The FDA is responsible for protecting the public health by assuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation’s food supply, cosmetics, and products that emit radiation.”

What is left unstated is how the FDA determines “the safety, efficacy, and security” of the huge list of products whose use it oversees. Clearly, absolute “safety, efficacy, and security” are unattainable, so it falls to the FDA to turn differences in kind into differences of degree. For example, just how safe is safe enough when all “safe” drugs have deadly side effects for which some FDA warnings are appropriate? The ambiguity in these key areas lets the FDA ask companies for additional trials in a two-page letter, often needlessly tacking on years to any particular application.

Similarly, “The mission of the California Environmental Protection Agency (Cal/EPA) is to restore, protect, and enhance the environment, to ensure public health, environmental quality, and economic vitality.” Once again, such a grand vision does not answer any of the hard decisions that an agency faces when the scarcity of social resources precludes perfect restoration, complete protection, and vigorous enhancement of the environment. But the mission statement does permit the agency to slow down growth, often for years, and never with compensation for the aggrieved owner.

The Federal Communications Commission is no better. It issues and reviews broadcast licenses by asking whether an application promotes the “public interest, convenience, and necessity.” This formless standard often allows the FCC to do largely what it wants. The short duration of these licenses inspire all sorts of objections at renewal time. And the want of outright ownership allows the FCC to impose a host of technical conditions that can impair the overall efficiency of spectrum use.

These three mission statements share a common feature with the tax-exemptions in the IRS: They use broad mandates that foster administrative discretion and delay, both of which pose a threat to the rule of law. Even though the disease is the same in all cases, the cure surely is not. Here is a quick primer on what ought to be done in these different settings. . . .

Ilya Somin, professor at George Mason University Law School, comments at the Volokh Conspiracy:

In his first Inaugural Address, President Obama famously said that we should not ask “whether our government is too big or too small, but whether it works.” I criticized this indifference to the size of government in one of my very first posts of the Obama Presidency. More recently, however, longtime Obama adviser David Axelrod recognized that the size of government does matter after all:

As the nation’s chief executive, President Obama is accountable for the IRS, State Department and Justice Department. His longtime adviser David Axelrod last week blamed a too-big government for the scandals: “Part of being president is that there’s so much beneath you that you can’t know because the government is so vast.” [HT: Don Boudreaux]

In my 2009 post on Obama’s Inaugural Address and in a forthcoming book, I explained that one of the dangers of big government is that rationally ignorant voters are unable to effectively monitor its activities. A closely related problem is that the modern federal government is also too large for the president to effectively monitor – even with the help of topnotch advisers like Axelrod.

Axelrod’s defense of Obama is actually very plausible. It is quite possible that Obama didn’t know about the IRS’ abusive targeting of conservative groups, and that if he had known he would have ordered them to stop – if only to forestall a scandal that might become a dangerous political liability. Yet Obama probably didn’t know because, as Axelrod puts it, “the government is so vast” that he could not possibly keep track of what it was doing.

In fairness to Obama, much of the government growth that makes his job so difficult occurred on his predecessor’s watch. The current administration is far from solely responsible for the overgrown size of modern government. But the president would be entitled to greater sympathy if he hadn’t spent much of the last four years expanding the size of government even further, and claiming that we shouldn’t worry about its growth.

BLT: The Blog of Legal Times reports:

Lyle Denniston comments at Constitution Daily:

Since 1962, the Supreme Court has been quite consistent in the constitutional view that prayer is a form of religious devotion that belongs in private settings—the home or the worship center—not in the halls of government. It broke with that consistency some 30 years ago, when it allowed prayer with decidedly religious content to be recited by a paid chaplain at the opening of a state legislature’s sessions. It said that was different, historically. After that, its skepticism about official prayer returned and has continued.

On Monday, the court signaled its willingness to reopen the entire issue of prayer in the public sphere, as a question under the First Amendment’s Establishment Clause. Just as the  justices have slowly grown more tolerant of government displays of the 10 Commandments, especially if those exhibits have been in place for many years, they may now be pondering a greater acceptance of official prayer—if it occurs in a setting where most of the audience is made up of adults.

A defining feature of most of the court’s rulings against prayer rituals is that they have come in the public school setting, where the audience is composed of impressionable youngsters. What has emerged in the most recent rulings—a decision in 1992 against officially sponsored prayers at a public middle school graduation, and a 2000 decision against such prayers at a high school football game—is the court majority’s concern that younger students may be coerced into conforming to a dominant religious theme, and, if they are of a different faith (or of none), will feel isolated and hurt.

In a word, that reaction reflects the fear of coercion—that is, the government sending the message to go along with religious dogma. The coercion theory under the Establishment Clause has been most identified with Justice Anthony M. Kennedy.

There is a rather subtle difference between that theory of coercion and another theory that the court has sometimes used in trying to keep religion and government separated: the theory of endorsement. That theory is closely identified with the work of retired Justice Sandra Day O’Connor.

That, too, is about government sending a message: When government appears to be sponsoring a creed linked to one faith alone, it is said to be passing the word that this is essentially the official religion. Appearances count more under that theory than they do under coercion theory, which involves the implied taking away of choice.

When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Here is the way the appeals court summed up its ruling in the Greece town board case: “Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.” What is forbidden, it went on to say, is a prayer practice that expresses “an official town religion.”

It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It would have been easy enough for the court to have passed up the Greece town board case, and stayed on the sidelines of the prayer controversy as it has for the past 13 years. It very well may mean something that it has decided to return to the fray, in a case where the appeal is so heavily focused on a challenge to the entire endorsement theory against official prayer.

In coming months, this case is sure to draw a heavy involvement by outside groups of many different persuasions, seeking to shape where the court goes from here on prayer.

The Christian Science-Monitor reports:

The US Supreme Court on Monday agreed to examine whether offering a prayer before a town meeting violates the First Amendment’s separation of church and state.

The issue in Town of Greece v. Galloway (12-696) is whether city officials violated the First Amendment’s ban on government endorsement of a particular religion when it set up a system that allowed local volunteers to offer a prayer prior to the town’s monthly meetings.

Although non-Christians delivered a few of the prayers, the vast majority of volunteers offered – and delivered – pre-meeting prayers that featured Christian religious references.  

At least two regulars at town meetings objected to being forced repeatedly to listen to Christian prayers. They complained to town officials that they felt marginalized by the town’s prayer policy.

One of the complaining residents in the New York town was Susan Galloway, who is Jewish. The other was Linda Stephens, an atheist.

After the town refused to change its prayer policy, the two filed suit in federal court. They said that by consistently presenting Christian prayers prior to its meetings, the town was intentionally discriminating against non-Christians. They also argued that the pre-meeting prayers were advancing a single faith over other religions or nonreligion.

A federal judge disagreed and dismissed the case. On appeal, the Second Circuit Court of Appeals reversed. The Town of Greece, the appeals court ruled, had aligned itself with a single religion in violation of the First Amendment’s Establishment Clause.

“Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter,” the appeals court said.

It added that “the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation, cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion.”

This put audience members at town meetings who are nonreligious or non-Christian in an awkward position, the court said.

The town defended its prayer policy, saying it was neutral and nondiscriminatory. The town created a list of anyone who might be willing to present a prayer prior to the town meeting. An official went through the list until someone agreed to deliver a prayer.

“Members of many different religious traditions accepted the opportunity to offer a prayer, including Catholics, Protestants from several denominations, a Wiccan priestess, the chairman of a local Bahai congregation, and a lay Jewish man,” Washington lawyer Thomas Hungar wrote in his brief on behalf of the town, urging the high court to take up the case. . . .

Writing in the Chronicle of Higher Education, Michael Avery and Danielle McLaughlin summarize their new book The Federalist Society: How Conservatives Took the Law Back From Liberals:

. . . The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

The Federalist Society's membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society's critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.

Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states' rights to action by the federal government.

Members have held senior policy making positions in the Reagan, George H.W., and George W. Bush administrations; have a commanding presence on the federal bench; and, as private lawyers, advocates in public-interest law firms, and government lawyers, challenge laws that are anathema to their worldview. The dockets of the federal and state courts (including the Supreme Court) are brimming with test cases brought or defended by Federalist Society members to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women's ability to obtain an abortion; and otherwise advance conservative ideas.

Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine's and George Mason's, and succeeded in gaining respect and traction for conservative legal ideas. Those stem in large part from an originalist interpretation of the Constitution, exemplified by the jurisprudence of Justice Scalia. That view posits that to interpret the Constitution, one must search for the original meaning of its provisions. The argument is that the original meaning of words may be objectively determined by recourse to historical sources that reveal how the words were used at the time, and that the original meaning is the only legitimate method of interpreting the document. . . .

Jeffrey Rosen--president of the National Constitution Center, a law professor at George Washington University and the legal affairs editor of The New Republic--reviewed the book in The New York Times:

More than two decades ago, when I was a law student, I used to sneak into meetings of the conservative Federalist Society for lunchtime conversations about constitutional issues. Although neither conservative nor a Republican, I had libertarian leanings and appreciated the society’s openness to debating its political opponents. I felt slightly illicit in crossing ideological lines: once, when the dean spotted me leaving a meeting, I felt as if I’d been caught walking out of an X-rated movie. But the discussions themselves were always intellectually engaging, and my fellow law students seemed more interested in converging around a shared approach to interpreting the Constitution than in squabbling about partisan differences. . . .

“[E]very single federal judge” appointed by the two Presidents Bush “was either a member or approved by members of the society,” including four Supreme Court justices: Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. The Federalist Society model has been so successful that other organizations have adopted it — societies named after Benjamin Rush, Alexander Hamilton and Adam Smith have been started to promote conservative and free market ideas in medical education, foreign policy and business school.

How was the society able to achieve this remarkable feat? According to the authors, by persuading the competing factions of the modern conservative movement to set aside their ideological differences and to converge around a constitutional methodology known as “originalism” — the idea that judges should interpret the Constitution as understood by its framers and ratifiers. . . .

In 2010, Steven Teles published a book convering much of the same ground: The Rise of the Conservative Legal Movement: The Battle for Control of the Law.

Nicholas Rosenkranz, professor at Georgetown Law School, writes at the Volokh Conspiracy:

[T]he Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “It may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement of its meaning, even if the result may be viewed as simplistic. If there is nuance that has escaped us, it is for the Supreme Court to elucidate.” Id. at 164-65 (footnote omitted).

Judge Ambro was even more explicit in concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in . . . Holland . . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

Id. at 170 (Ambro, J., concurring) (quoting Rosenkranz, supra, at 1868 (2005)).

That one conclusory sentence from Holland implies that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would otherwise lack such power. It implies, in other words, that Congress’s powers are not constitutionally fixed, but rather may be expanded by treaty.

In Holland, Justice Holmes provided neither reasoning nor citation for this proposition. It appears in that one conclusory sentence, in a five-page opinion that is primarily devoted to a different question. And this Court has never elaborated. The most influential argument supporting this proposition appears not in the United States Reports but in the leading foreign affairs treatise. This argument has largely short-circuited jurisprudential debate on the question. But recent scholarship has shown that the historical premise of this academic argument is simply, demonstrably false.

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that “[t]he powers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone–or a foreign government alone–can decrease Congress’s power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.

Holland is wrong on this point and it should be overruled. This Court should hold that treaties cannot vest Congress with additional legislative power.

Cato has more here. Our brief itself is available here.

The Wall Street Journal's Law Blog reports: 

WASHINGTON–Supreme Court justices Wednesday heard an alien drug offender’s plea for atheism, the abolition of property and the end of American exceptionalism–and responded with a standing ovation.

The occasion wasn’t a case, of course, but the court’s spring musicale, a private concert for the justices and their guests.

The star, Broadway legend Barbara Cook, closed with “Imagine,” John Lennon’s 1971 song envisioning a world free of nations, religion and property, something strikingly at odds with court precedents granting privileges to religious institutions, enshrining property rights and limiting the reach of international law.

“Imagine no possessions. I wonder if you can,” Ms. Cook sang to the justices, seated just a few feet from her in the court’s East Conference Room.

“Imagine all the people, sharing all the world,” she continued, as Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan, along with retired Justice Sandra Day O’Connor sat rapt.

“Who could ask for anything more,” proclaimed Justice Ginsburg, the event’s organizer, at the conclusion, invoking a line from another number Ms. Cook sang, George Gershwin’s “I Got Rhythm.”

Wednesday’s program was a rare foray into popular song, featuring standards by Cole Porter, Hoagy Carmichael and other 20th century songwriters, for a musicale tradition that has focused on classical works.

In addition to Ms. Cook, a Tony Award-winning singer and 2011 Kennedy Center honoree, the concert featured the husband and wife team of jazz guitarist John Pizzarelli and vocalist Jessica Molaskey.

Inaugurated in 1988 by the late Justice Harry Blackmun and produced in cooperation with the Washington Performing Arts Society, the concert offers the justices a respite from jurisprudential rigor as their annual term approaches its June close, and provides arts patrons an unusual setting to enjoy a performance. Previous years have seen jazz singer Bobby Short, pianist Marian McPartland and opera soprano Renee Fleming.

Nevertheless, with love and marriage perennial lyrical subjects, there was no avoiding an occasional, if perhaps unintentional, reminder that two major cases involving same-sex marriage rights hang over the docket.

“Getting Married Today,” from the 1970 Sondheim musical “Company,” featured in the Pizzarelli-Molaskey repertoire. “What’s a wedding, it’s a prehistoric ritual/where everybody promises fidelity forever, which is/maybe the most horrifying word I ever heard of,” the song goes.

And it was fidelity to Sondheim, not the court’s precedents, that clearly weighed on the performers’ minds. At one point, Ms. Molaskey recalled she had sung before the musical genius himself.

“He was sitting about where you guys—” she stopped herself, suddenly unsure of the etiquette for her majestic surroundings. ” ‘You guys’—it’s the Supreme Court!” she said.

Then, to an audience peppered with lawyers who might not agree, she confessed: “It’s a lot more nerve-racking to perform before Stephen Sondheim than the entire Supreme Court.”

Politico reports:

A second appeals court has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional, concluding that some board actions taken in the wake of those appointments were also invalid.

The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment.

The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here) found that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions. The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.

The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.

The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.

The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.

The opinion, written by Judge D. Brooks Smith, said the recess clause of the Constitution should be read not just to give the president executive power, but also to preserve the “advice and consent” role of the Senate.

In his dissent, Judge Joseph. A Greenaway Jr. said the majority’s reading of the clause was needlessly narrow and ignored the Founding Fathers' intent to give the president the ability to act when the Senate is not available to “advise and consent.”

The administration late last month petitioned the Supreme Court to overturn the D.C. Circuit Court’s ruling on the issue.

The decision comes the same day that the Senate Help Subcommittee held a hearing on five nominations to the NLRB. Sen. Tom Harkin said they nominations would be moved next Wednesday.