FedSoc Blog

Philip Rucker and Krissah Thompson at the Washington Post write that Republicans are set to institute two new rules in the House of Representatives in the coming year intended to increase the importance of the Constitution in Congress. First, the House will read the Constitution aloud. Second, they will pass a rule under which every bill must contain a statement citing the constitutional authority under which it would be enacted.

Rucker and Thompson write that these moves could be called the "tea party-ization of Congress," in recognition of the focus of Tea Party supporters on the principles of the Constitution and their demands that Washington restrain itself within constitutional boundaries. Said Rep. Michele Bachman from Minnesota:

On November 2nd, voters called for an end to reckless spending and a renewed commitment to the Constitution. These new rules show that Republicans are serious about respecting the Constitution.

Some observers argue that the moves are merely symbolic and will accomplish little. Prof. Kevin Gutzman from Western Connecticut State University says:

This is the way the establishment handles grass-roots movements. They humor people who are not expert or not fully cognizant. And then once they've humored them and those people go away, it's right back to business as usual. It looks like this will be business as usual.

The Constitution will be read on January 6, a day after Rep. John A. Boehner is sworn in as Speaker. The House historian's office is unable to find any records of this chamber reading the Constitution aloud during its history.

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The Federalist Society has announced that it will be holding its fifth annual Western Conference on January 29, 2011 at the Ronald Reagan Presidential Library. The topic of the conference will be "After the 2010 Election: What's Next for Campaigns and California," and it will feature keynote speaker Hugh Hewitt, Chapman University Law School professor and syndicated radio show host. Space is limited, so click here to RSVP.

Listen to the audio here.

On Dec. 7, the Supreme Court heard oral argument in Janus Capital Group, Inc. v. First Derivative Traders. The question at issue was whether an investment advisor could be subjected to primary liability in a federal securities lawsuit brought by private parties, on the grounds that the investment advisor "helped" a mutual fund draft and disseminate a prospectus containing misleading statements.

To discuss the case, we have Jonathan Cohn, who is a partner at Sidley Austin LLP.

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The New York Times reports that President Obama signed legislation this morning ending the "don't ask, don't tell" policy banning openly gay troops from serving in the military. During the signing ceremony, the President said, "No longer will tens of thousands of Americans in uniform be asked to live a lie or look over their shoulder," and, quoting Admiral Mike Mullen, the chairman of the joint chiefs of staff, "Our people sacrifice a lot for their country, including their lives. None of them should have to sacrifice their integrity as well."

The repeal does not immediately end the policy: President Obama, Admiral Mullen, and Defense Secretary Robert Gates must certify that the repeal won't harm military readiness, though both Admiral Mullen and Secretary Gates have backed the President's stand in favor of repeal.

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Daniel Fisher at Forbes.com writes about the "trifecta" of cases that opponents of class actions have in the Supreme Court this Term. If these cases turn out in favor of the business defendants, Fisher writes, "plaintiff lawyers could have a much harder time convincing courts to certify lawsuits on behalf of large groups of consumers and employees."

The three cases are as follows:

• In Smith v. Bayer, scheduled to be argued on Jan. 18, the issue is whether a federal court can reject a class action and then stop state courts from allowing a class action based on the same claims from proceeding.
• In Dukes v. Wal-Mart, the Court will decide whether a class action on behalf of one million female employees of Wal-Mart who say Wal-Mart discriminated against them through pay and promotion can continue. While the plaintiffs say that the discrimination was based on a corporate culture that pervaded Wal-Mart, the defendants argue that such a large, nationwide class is not practicable, and that the claims against Wal-Mart among the members of the prospective class vary too greatly for the large class to be certified.
• In AT&T v. Concepcion, argued in November, the question is whether corporations can use arbitration clauses in contracts with consumers to get out of class action suits based on the policy of the Federal Arbitration Act, which encourages arbitration over litigation. Commentators see this case as a potential end to consumer class actions, since, if the Court rules for AT&T, businesses will likely all include arbitration clauses in their consumer contracts and thus end the possibility of these suits.

Fisher points out that Justice Ruth Bader Ginsburg may be the key vote in all three of these cases, calling her a "class-action skeptic who has previously voted to rein in cases on behalf of asbestos claimants and insurance customers." Whatever the outcome of these cases, businesses and class action litigants alike have a great deal at stake in the Court.

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Hayley Tsukayama at The Washington Post's Post Tech Blog writes about the proposal the Federal Communications Commission is considering Tuesday on net neutrality, under which the FCC would regulate broadband access (click here to see the earlier FedSoc Blog post on the upcoming vote). FCC Chairman Genachowski's proposal has generated a variety of responses, ranging from calls for more regulation to challenges to the legal authority of the FCC to regulate the Internet.

Yesterday, FCC Commissioner Robert M. McDowell wrote an op-ed in The Wall Street Journal arguing that the increase in regulation proposed by Chairman Genachowski is the result of "quixotic pressure to fight an imaginary problem" and that the FCC, which appears ready to approve the measure, has not listened to industry analysts and companies who say "the new rules are likely to have the perverse effect of inhibiting capital investment, deterring innovation, raising operating costs, and ultimately increasing consumer prices."

Meanwhile, The New York Times published an editorial calling for stronger rules, arguing that "(a)ny new rules must prevent broadband service providers from foreclosing on competition." The rules, the editorial says, would not stop some companies from paying in order to prioritize the Internet traffic to their websites, and they do not adequately address new markets for broadband access, like wireless broadband.

The Federalist Society hosted a debate last week on the FCC's proposed regulation of the Internet with an address from FCC Commissioner Meredith Attwell Baker and a discussion by Prof. John F. Blevins of Loyola Univ. New Orleans College of Law, Christopher Libertelli of Skype, and Prof. Christopher S. Yoo of the Univ. of Pennsylvania Law School. Mr. Scott J. Wallsten of the Technology Policy Institute moderated. You can click above to watch the video on FedSoc Blog.

Listen to the audio here.

On November 30, the Supreme Court heard oral argument in Schwarzenegger v. Plata. The central question in this case is whether a court order requiring California to reduce its prison population in order to remedy unconstitutional conditions in its correctional facilities violates the Prison Litigation Reform Act.

To discuss the case, we have Sarah Hart, who is a Deputy District Attorney in Philadelphia. Ms. Hart is on an amicus brief in support of the appellants.

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According to Jasmin Melvin at Reuters, the FCC is scheduled to vote on Dec. 21 on regulations that would prohibit Internet service providers from blocking lawful traffic but would allow them to ration traffic on their networks, and it appears likely that the FCC will have the votes to push these regulations through.

FCC Chairman Julius Genachowski laid out this proposal on regulating Internet traffic two weeks ago, and there were concerns that the regulations may have been too strong for some members of the FCC but too weak for others. However, it appears that those who favor stronger regulation have decided that the proposal is good enough and will be in their best interest to approve.

The rules would decide whether Internet service providers can block or slow down information and whether they can charge websites extra in order to have a way to reach users more quickly than other websites.

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Listen to the audio here.

On Dec. 13, the Supreme Court announced its decision in Costco v. Omega, a case involving the first-sale doctrine of copyright law. Under the first-sale doctrine, a person who purchases a copyrighted work can later sell that work to someone else without the permission of the copyright owner. The question raised in the Costco case was whether the first-sale doctrine applied to imported works that were manufactured abroad and had not previously been sold in the United States with the copyright owner’s permission.

In a per curiam decision, an equally divided Court affirmed the Ninth Circuit’s decision that the first-sale doctrine does not apply to imported goods that are manufactured abroad and have not already been sold in the United States with the permission of the copyright owner. Justice Kagan took no part in the consideration or decision of the case.

To discuss the case in this post-decision edition of SCOTUScast, we have Professor David Olson, who is a member of the faculty at Boston College Law School.

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Nathan Koppel at the Wall Street Journal Law Blog has a post today linking to conflicting accounts of why there are unfilled spaces on the federal bench. While both sides agree that federal court vacancies are being filled at a slow pace, President Obama and Democrats in the Senate blame Republicans for slowing down the confirmation process, and Senate Republicans blame the President for a slow pace in making nominations.

In an editorial today, the New York Times writes: "Because of Republican delaying tactics, qualified Obama nominees who have been reported out of the Judiciary Committee have been consigned to spend needless weeks and months in limbo, waiting for a vote from the full Senate." Meanwhile, Carrie Severino at National Review Online's Bench Memos says that the vacancy-filling problem stems from President Obama's pick of "deeply-flawed nominees."

Rep. Michele Bachmann, who will be holding a series of classes on the U.S. Constitution for members of Congress, has landed Justice Antonin Scalia, who will teach her first class an hour before the new members take their first vote in Congress. The classes will continue each week, according to Bachmann, and will be held at the beginning of the congressional week. Said Bachmann: "That will set the tone for the week we're in Washington."

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Kevin Sack at The New York Times reports that today Judge Henry E. Hudson of the U.S. District Court for the Eastern District of Virginia struck down the individual mandate provision in President Obama's health-care law that requires individuals who can afford to do so to purchase health insurance.

Judge Hudson, who concluded that the individual mandate exceeds Congress's authority under the Federal Constitution's Commerce Clause, becomes the first judge to invalidate a provision of the law. He wrote that his review of past cases

yielded no reported decisions from any federal appellate courts extending the Commerce Clause or General Welfare Clause to encompass regulation of a person's decision not to purchase a product, not withstanding its effect on interstate commerce or role in a global regulatory scheme.

The Department of Justice is currently considering appeal to the 4th Circuit Court of Appeals, which already has before it a case from the district court in Lynchburg, Va., where the court held that the individual mandate was constitutional. Judge Hudson decided not to halt implementation of the law pending appeal.

Click here for the Wall Street Journal article. Click here for David Kopel's post on Volokh Conspiracy on the "Key Points" in the decision and here for Orin Kerr's take.

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It appears that the New Jersey Supreme Court has lost the vote of one of its justices, at least for the time-being, as Justice Roberto A. Rivera-Soto issued an opinion in an unrelated case on racial discrimination explaining that he was not taking part in the ruling because he believed the appointment of one of the other justices violated the New Jersey Constitution.

The dispute began when Gov. Chris Christie decided not to reappoint New Jersey Justice John E. Wallace and instead nominated Anne M. Patterson, a partner at Riker Danzig and former Deputy Attorney General of the State of New Jersey, in an effort to reshape what he says is an overly-liberal state judiciary. This move had not occurred since the court was created, and the New Jersey Senate refused to vote on Patterson's nomination in protest.

Chief Justice Stuart J. Rabner picked Edwin Stern, an appellate judge, to fill the open seat temporarily. This move prompted Justice Rivera-Soto's opinion arguing that the state constitution did not authorize such an appointment and his refusal to take part in any more decisions until Stern is taken off the court.

While another justice, Helen E. Hoens, has written that she has concerns about the appointment, she did not join Justice Rivera-Soto in refusing to participate in the court's rulings. Senate Democrats are now calling for the resignation of the abstaining justice.

Click here for the New York Times article on the appointment fight. Click here for the story from The Wall Street Journal.

Matt Lewis at Politics Daily wrote yesterday on the dispute and notes the possible motives of the parties involved:

Some see this as a battle over judicial independence, but this dispute may best be understood as merely a microcosm of a larger battle between Christie and Senate President Stephen Sweeney (and the Democrats running Trenton).

Over at NRO's The Corner, Kathryn Jean Lopez writes that "(t)he obvious solution to this is to confirm Patterson and stop the uncertainty and now downright chaos."

The Federalist Society issued a white paper in September by Earl M. Maltz on the constitutional issues involved in temporarily assigning judges to fill empty seats on the New Jersey Supreme Court: click here to read it. Click here to read a statewide survey of likely voters in New Jersey regarding this dispute, the New Jersey Supreme Court, and judicial philosophy.

Ben Conery at The Washington Times writes that the Supreme Court appeared to split along conservative-liberal lines during its hearing yesterday of the immigration law case Chamber of Commerce v. Whiting.

The case involves an Arizona law (not that Arizona law) that requires employers to access the federal database E-Verify to make sure that job applicants are authorized to work in the United States.

Business owners, unions, and libertarian groups are challenging the Arizona law, arguing that federal law, which provides for voluntary, not mandatory, use of E-Verify, preempts this provision. Justice Scalia seemed skeptical of this claim during oral arguments:

Arizona and other states are in serious trouble financially and for other reasons because of unrestrained immigration. And therefore, they had to take this very massive - I agree this step is massive and one wouldn't have expected it to occur under this statute - but expectations change when the federal government has simply not enforced the immigration restrictions.

Justice Breyer was concerned that the provision would result in discrimination against people of Hispanic descent because employers would choose not to hire them rather than risk hiring an undocumented worker:

So Arizona comes along and says: "I'll tell you what, if you discriminate, you know what happens to you, nothing? But if you hire an illegal immigrant, your business is dead."

Justice Kagan has recused from the case because the Obama Administration opposed the Arizona law while she was Solicitor General. As Justices Kennedy, Ginsburg, Breyer, and Sotomayor expressed varying levels of concerns about the law, and Chief Justice Roberts and Justices Scalia and Alito (who appear likely to align with Justice Thomas) seemed to lean in favor of the law's constitutionality, the Court may come to a four-four split, which would mean that the 9th Circuit's decision below upholding the law would stand.

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Click above to see audio/video from The Federalist Society event "Changing the Federal Rules of Civil Procedure: Has the Time Come?" at the National Press Club on Dec. 9, 2010. Participating on this panel were Prof. Ronald J. Allen of Northwestern Law, Prof. E. Donald Elliott of Yale Law, Prof. Richard M. Esenberg of Marquette Law, and Prof. Martin H. Redish of Northwestern Law. Hon. Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit moderated.

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