FedSoc Blog

 On April 15, 2013, the Supreme Court heard oral argument in Association for Molecular Pathology v. Myriad Genetics, Inc.  The issue in this case is whether human genes are patentable.

To discuss the case, we have Gregory Dolin, associate rofessor and co-director of the Center for Medicine and Law at the University of Baltimore School of Law.

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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. . . .

On April 23, the Supreme Court announced its decision in Moncrieffe v. Holder. The question in this case was whether a conviction under state law that encompasses--but is not limited to--distributing marijuana without remuneration constitutes an “aggravated felony” for purposes of deportation under the Immigration and Nationality Act (INA).

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 7-2 that if a non-citizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction does constitute an “aggravated felony” for purposes of the INA.  Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Breyer and Kagan joined the majority opinion.  Justices Thomas and Alito filed dissenting opinions.

To discuss the case, we have Scott Broyles, an assistant professor at Charlotte School of Law.

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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.

On April 29, the Supreme Court announced its decision in McBurney v. Young.  The question in the case was whether Virginia's Freedom of Information Act (FOIA) violates the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution by declining to grant citizens of other states the right of access to public records that Virginia affords its own citizens.

In an unanimous opinion delivered by Justice Alito, the Court held that Virginia’s FOIA does not violate the Privileges and Immunities Clause or the dormant Commerce Clause.  Justice Thomas filed a concurring opinion.

To discuss the case, we have Christopher Green, a professor at the University of Mississippi School of Law  and currently visiting at the University of San Diego School of Law.

Click here to view this article on the source site »

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.”

On April 22, the Supreme Court heard oral argument in Agency for International Development v. Alliance for Open Society International, Inc.  The question in the case is whether United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation.

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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.

The Daily Caller reports:

The IRS may not be the only federal agency singling out conservative groups. Records suggest that the Environmental Protection Agency has made it easier for environmental groups to file Freedom of Information Act requests than conservative organizations.

According to EPA records obtained by the free market Competitive Enterprise Institute, since January 2012 the agency has granted fee waivers for 75 out of 82 Freedom of Information Act requests sent by major environmental groups, denying only seven of them — meaning green groups saw their fees waived 92 percent of the time.

At the same time, the EPA frequently denied fee waivers to conservative groups. EPA records show that the agency rejected or ignored 21 out of 26 fee waiver requests from such conservative groups as the Competitive Enterprise Institute, the Institute for Energy Research, and Judicial Watch — an 81 percent rejection rate.

Fees vary based on how many documents are requested, what medium they are requested in and how much government research is involved.

“This is as clear an example of disparate treatment as the IRS hurdles selectively imposed upon groups with names ominously reflecting an interest in, say, a less intrusive or biased federal government,” said CEI senior fellow Chris Horner, author of “The Liberal War on Transparency.”

Horner described the EPA’s actions as “a clear pattern of favoritism for allied groups and “a concerted campaign to make life more difficult for those deemed unfriendly.”

The Competitive Enterprise Institute has filed 15 fee waiver requests with the EPA since January 2012, but 10 of them have been denied by the agency and only one was granted. CEI won a lawsuit over their FOIA request regarding former EPA Administrator Lisa Jackson’s alias email account, and the EPA ignored three other requests.

The Franklin Center for Government and Public Integrity had both of its fee waiver requests denied, and the Institute for Energy Research had its only fee waiver request denied. The watchdog group Judicial Watch had two of four fee waivers denied, as did the National Center for Public Policy Research.

However, environmental groups were much more successful in getting the agency to cooperate. The Natural Resources Defense Council made 20 fee waiver requests, had 19 granted, and one denied; EarthJustice made 19 requests, had 17 granted, and two denied; the Sierra Club made 15 requests, had four granted and four denied, and Public Employees for Environmental Responsibility had all 17 of its requests granted.

The Waterkeeper Alliance had all three fee waiver requests granted, the Southern Environmental Law Center had both of its requests granted, the Center for Biological Diversity had all four of its requests granted and Greenpeace had both of its fee waiver requests granted.

The fee waivers to environmental groups were also granted on the “initial determination” stage, meaning these green groups did not have to appeal for fee waivers. However, Horner said he had to fight many fee waiver denials, all of which were overturned on appeal.

“Their practice is to take care of their friends and impose ridiculous obstacles to deny problematic parties’ requests for information,” Horner said. . . .

On April 17, the Supreme Court announced its decision in Kiobel v. Royal Dutch Petroleum.  The case involved the Alien Tort Statute (ATS), which permits non-U.S. citizens to bring a lawsuit in federal court in order to seek relief for certain violations of international law. 

This case was first argued February 28, 2012, and considered whether corporations, and not merely individuals, can be held liable in an ATS lawsuit, and whether that issue affects the jurisdiction of the court even to hear the case.  On March 5, 2012, however, the Supreme Court put the Kiobel case back on the calendar for re-argument, and directed the parties to brief an additional question--whether and under what circumstances the ATS allows courts to address violations of the law of nations that occur outside the United States.

In an opinion delivered by Chief Justice Roberts, the Court held that a presumption against extraterritoriality applies to claims under the ATS, and nothing in ATS rebuts this presumption.  Thus, plaintiff-petitioners cannot proceed under the ATS in this case.  Justices Scalia, Kennedy, Thomas, and Alito joined the Chief Justice’s majority opinion.  Justice Kennedy filed a concurring opinion. Justice Alito filed a concurring opinion, which Justice Thomas joined.  Justice Breyer filed an opinion concurring in the judgement, which Justices Ginsburg, Sotomayor and Kagan joined.

To discuss the case, we have Eugene Kontorovich, a professor at the Northwestern University School of Law.

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