Our State Courts project draws your attention to an editorial in today's Wall Street Journal lamenting the effect of the Missouri Plan for judicial selection in, fittingly enough, Missouri.  Many states use the plan, which was intended to be an improvement over choosing judges via elections.  Under the system, a non-partisan commission selects the "best qualified" among the candidates for a judicial vacancy, a slate that is then forwarded to the state's governor.  The governor may choose his selection from the pre-selected candidates. If he does not do so within a particular timeframe, the commission itself chooses the selection.

According to the article, "The Missouri Plan was intended to get politics out of the courtroom but has instead handed disproportionate power to trial lawyers and state bar associations. The effect has been to insulate the backroom-dealing from public scrutiny while stocking state courts with liberal judges."  As a case in point, the editors describe the slate of candidates recently selected in Missouri:

Leading the trio sent to Governor Jay Nixon is Joe Jacobson, a trial lawyer whose firm, Green Jacobson, is known for its work in securities fraud, lender liability and consumer class actions. A second nominee, County Circuit Judge Michael Manners, spent two decades as a trial lawyer himself, eventually serving as president of the Missouri Association of Trial Lawyers. Rounding out the trio is George Draper III, a state appeals-court judge and African-American who received the fewest votes (four) from the seven nominators.

Should you wish to explore this subject in far greater detail, see the dueling white papers the Federalist Society published in 2003: one arguing the case for judicial appointments, the other arguing the case for partisan judicial elections.

UPDATE: For a more recent analysis that examines the constitutionality of appointment plans, see George Mason University law professor Nelson Lund's 2011 article "May Lawyers be Given the Power to Elect Those Who Choose Our Judges? ‘Merit Selection’ and Constitutional Law."

In the Wall Street Journal, Orin Kerr warns that Congress might make committing fraud on the internet a felony.  At issue is the Computer Fraud and Abuse Act, which was enacted in 1986 to punish computer hacking. Over time, Congress has expanded the law's scope to include all sorts of violations, including activity that "exceeds authorized access" to any computer.  While that violation is currently a criminal misdemeanor, Kerr, a professor at George Washington Law School, points out that the Senate Judiciary Committee was set to vote today on whether to make the violation a felony, which would greatly encourage federal prosecutors to pursue such cases.

As Kerr explains:

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

Breaching an agreement or ignoring your boss might be bad. But should it be a federal crime just because it involves a computer? If interpreted this way, the law gives computer owners the power to criminalize any computer use they don't like. Imagine the Democratic Party setting up a public website and announcing that no Republicans can visit. Every Republican who checked out the site could be a criminal for exceeding authorized access.

If that sounds far-fetched, consider a few recent cases. In 2009, the Justice Department prosecuted a woman for violating the "terms of service" of the social networking site MySpace.com. The woman had been part of a group that set up a MySpace profile using a fake picture. The feds charged her with conspiracy to violate the Computer Fraud and Abuse Act. Prosecutors say the woman exceeded authorized access because MySpace required all profile information to be truthful. But people routinely misstate the truth in online profiles, about everything from their age to their name. What happens when each instance is a felony?

To err on the safe side, Publius would like to attest that he is not actually James Madison, Alexander Hamilton, and/or John Jay.

The Hartford Courant reports that Brooke Shields will be starring in a made-for-TV movie based on the controversial Kelo vs. New London Supreme Court case.  The actress will be playing Susan Kelo, a nurse who was the last holdout against the city of New London's attempt to seize privately owned land under eminent domain.  The city said it intended to use the land, which included Kelo's home, to further economic development.  In 2005, the Supreme Court ruled in favor of the city 5-4.  The film, which will air on Lifetime TV, is an adaptation of Jeff Benedict's book Little Pink House: A True Story of Defiance and Courage.

The latest edition of Engage, the journal of The Federalist Society's practice groups, is now available online--and exclusively so.  

Below is the table of contents for the edition--Volume 12, Issue 2--with direct links to articles.  A PDF of the entire volume can be found here.

Special Edition: Templeton Debates

• The Constitutionality of the Patient Protection and Affordable Care Act Richard A. Epstein & Jesse H. Choper
• Same-Sex Marriage and Conscience Exemptions Robin Fretwell Wilson & Jana Singer
• Healthcare Reform's Impact on Drug Patents Adam Mossoff
• Film Piracy and the Pirate Bay Cases John Malcolm
• Do We Trust Judges Too Much? Did the Framers? David Forte & Bruce Miller
• The Impact of Judicial Activism on the Moral Character of Citizens Ilya Shapiro & Fred Smith
• The Establishment Clause Richard W. Garnett & Kurt T. Lash
• Did the Supreme Court Properly Decide Christian Legal Society v. Martinez? Gregory Baylor & Ronald Chen

CIVIL RIGHTS

• Bullying as a Civil Rights Violation: The U.S. Department of Education's Approach to Harassment by Kenneth L. Marcus
• Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter? by Joshua Thompson
• Pruning the Overgrowth of Government Contracting Preferences by George R. La Noue
• Does the Fourteenth Amendment Protect Unenumerated Rights? Kurt T. Lash & Alan Gura

CORPORATIONS, SECURITIES & ANTITRUST

• Developments in Whistleblower Laws: Advantage Whistleblower? by Larry R. ("Buzz") Wood, Jr. & Richard William Diaz

CRIMINAL LAW & PROCEDURE

• The Evolution of Wiretapping by Paul Rosenzweig

FEDERALISM & SEPARATION OF POWERS

• Ramifications of Repealing the 17th Amendment Todd Zywicki & Ilya Somin
• The Unbearable Rightness of Marbury v. Madison: Its Real Lessons and Irrepressible Myths by William H. Pryor Jr.
• Critique of a Proposal to Allow State Bankruptcy by John S. Baker, Jr.
• Bailouts or Bankruptcy? by Michael S. Greve

FINANCIAL SERVICES & E-COMMERCE

• Is FINRA Constitutional? by Joseph McLaughlin
• Something for (Almost) Everybody in Dodd-Frank: Racial, Gender, and Diversity Considerations in the Dodd-Frank Wall Street Reform and Consumer Protection Act by Christopher Byrnes

INTERNATIONAL & NATIONAL SECURITY LAW

• War Powers Irresolution: The Obama Administration and the Libyan Intervention by Robert J. Delahunty
• Remarks upon Accepting the 2011 James Madison Award by Michael B. Mukasey

RELIGIOUS LIBERTIES

• European Court of Human Rights Finds No Right to Abortion Under European Human Rights Convention by William L. Saunders

Glenn Sulmasy had an article yesterday in U.S. News and World Report marking the tenth anniversary of the September 11 attacks and arguing that the United States must not return to its "9/10 mentality" of merely catching and prosecuting those who commit terrorist acts, but rather "take the fight to the enemy" by using our military and intelligence agencies to disrupt and destroy al Qaeda.

According to Sulmasy:

We need to use the might of our military and send a signal around the world that al Qaeda and like minded groups would not be able to mount an attack such as the one on 9/11 to anyone, anywhere again. Thus, the Bush administration decided to change the mindset and attack, disrupt and keep al Qaeda on the run. Without question, the financial networks, and nations that housed such extremists have received the message. The fight against al Qaeda is a war - and a war the West must remain determined to win.

He notes increased sharing among intelligence and law enforcement agencies like the CIA and FBI. He discusses adjustments to the anti-insurgency Powell-Weinberger Doctrine, which provides for "the use of overwhelming force to achieve victory," to take account of human rights concerns. He concludes that the U.S. must retain a war mentality over the next decade while using diplomacy to engage with Arab nations to stop terrorism from taking hold in those countries.

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According to How Appealing, the Fourth Circuit today did not reach the merits on two challenges to the Patient Protection and Affordable Care Act's health care mandate passed by Congress last year. Click here for the Reuters story.

The court ruled in Liberty University v. Geithner (decision available here) that the Federal Anti-Injunction Act "strips us of jurisdiction" over the suit because it was a "pre-enforcement action seeking to restrain the assessment of a tax." And in Virginia v. Sebelius (decision available here), the court determined that Virginia did not have standing to sue.

The Anti-Injunction Act prohibits any lawsuit whose purpose is "restraining the assessment or collection of any tax." Though would-be plaintiffs may sue for a refund on taxes already collected, they may not seek to restrain officials from collecting the taxes in the first place under the provisions of this law.

In Liberty University v. Geithner, the panel determined, despite the fact that both the plaintiffs and the federal officials being sued asserted in their briefs that the Anti-Injunction Act did not apply, that the Act took away the court's jurisdiction to hear the case.

In doing so, the panel concluded that the penalty for not complying with the individual mandate constituted a "tax" under the AIA. The Supreme Court has defined the AIA's use of the term "tax" to include "penalties that function as mere 'regulatory measure(s) beyond the taxing power of Congress' and Article I of the Constitution," according to the 2-1 opinion by Judge Diana Gribbon Motz. The Court's interpretation of the statute includes the mandate at issue in Liberty University, writes Judge Motz.

Judge Andre Davis, dissenting, relies on Congress's repeated use of the term "penalty" to describe the mandate to argue that the AIA does not bar the suit. Reaching the merits, he finds that the Commerce Clause authorized Congress to pass the mandate. Judge James Wynn, concurring in Judge Motz's opinion, writes that if he were to reach the merits, he would uphold the statute under Congress's taxing and spending power.

In Virginia v. Sebelius, the unanimous panel, in another opinion written by Judge Motz, held that the Virginia law stating that "(n)o resident of this Commonwealth . . . shall be required to obtain or maintain a policy of individual insurance coverage," was insufficient to give the commonwealth standing to challenge the individual mandate.

The judges found that state laws successfully used to support standing in the past have "regulated behavior or provided for the administration of a state program." In contrast, the law in this case merely states its opposition to the federal health care law, according to the court, and Virginia was merely suing on behalf of its citizens, which is impermissible under the Supreme Court's standing doctrine.

Furthermore, the opinion says, if the standing of Virginia were conceded, states seeking in the future to enjoin federal laws could simply pass their own laws denying the legitimacy of these federal laws. This power "would convert the federal judiciary into a 'forum' for the vindication of a state's 'generalized grievances about the conduct of government,'" according to the panel, and is thus not permitted under Article III of the Constitution.

Click here for more on the decision from SCOTUSblog, here for a post by Orin Kerr on Volokh Conspiracy, and here for a post on the WSJ Law Blog. The Wall Street Journal, The New York Times, and The Washington Post all have articles on the decisions. Click here for the story from the Roanoke Times, which indicates that Virginia Attorney General Ken Cuccinelli will appeal the case to the Supreme Court.

Stay tuned for more.

Susan Dudley has an article in The Daily Caller about President Obama's decision last week to delay new Environmental Protection Agency regulations setting stricter standards for ozone levels (click here for the FedSoc Blog post on the President's decision).

Dudley predicts that the overruling of the new regulations will likely not be challenged by environmental groups until 2013, when the EPA is required by statute to reevaluate the current ozone standard. "The threat of litigation," she writes, "will make it much more difficult, at that point, for any president to maintain control of the outcome."

She says the President's decision to overrule the EPA's new standards for now was "a courageous step," but she calls upon Congress to revise the "unyielding language of the Clean Air Act" so that EPA officials will not inevitably decrease the authorized concentration of ozone in the ambient air in 2013, thus placing every area in the country in noncompliance and, as she writes, "at the mercy of EPA's enforcement discretion."

Join Jan Crawford and Neal Katyal, along with Mike Carvin, Tom Hungar, Adam Mossoff, Elizabeth Papez, and Mark Rienzi, for a panel discussion of interesting cases and themes in the upcoming October 2011 Supreme Court term.  

There is no charge for this event.  RSVP here.

Adam Liptak has a column in The New York Times today discussing the shift in federal policy following the attacks of September 11, 2001, and concluding that, "by the standards of the Alien and Sedition Acts of 1798, the Palmer raids of 1920, the internment of Japanese-Americans during World War II and the McCarthy era, the contraction of domestic civil liberties in the last decade was minor."

The article, which refers to the USA PATRIOT Act as "tinkering at the margins and nothing compared with the responses of other developed democracies," looks at such federal laws and policies enforced after 9/11 and how the courts have responded to them.

According to Liptak, "(a)s they generally have in the past, the courts acquiesced in the government's efforts to combat terrorism." The Supreme Court held that the prosecution of those who provided "material support" to terrorist groups, even some speech, could be prosecuted under a pre-9/11 law. Critics say that the Justice Department has overly broadened this law and has misused material-witness and immigration statutes in the war on terror, but the Supreme Court has sided on these issues with the Bush and Obama Administrations.

While Liptak says that large changes, endorsed by Congress, have taken place in intelligence gathering, and Presidents Bush and Obama have shielded these programs from litigation using the state secrets privilege, "(b)y international standards . . . the public has learned a great deal about secret government activities."

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John Yoo has an op-ed in The Wall Street Journal today noting the upcoming anniversary of the 9/11 attacks on the World Trade Center and the Pentagon in 2001 and the lack of attacks on such a large scale since then.

What has stopped a repeat of these massive attacks? According to Yoo, President Bush's decision to choose war over a law enforcement strategy was crucial:

Choosing war opened the arsenal that has decimated al Qaeda's leadership and blunted its plan of attack. A nation at war need not wait for a suicide bombing to arrest the "suspects" who remain. Instead, it can fire missiles or send in covert teams to pre-emptively capture or kill the enemy. . . . A nation at war can detain the enemy without lawyers or civilian trials and interrogate them for information to prevent future attacks.

Yoo also focuses on the Bush Administration's changes in intelligence analysis. He concludes that, as a result of the expansion of intelligence gathering and an overhaul of techniques used to gaininformation, the U.S. has been able to disrupt the al Qaeda network and learn the locations of high-value targets like Bin Laden.

Yoo's final point is that, despite the warnings of critics that these new tactics in waging war and gathering intelligence would lead to the decline of domestic freedom, nothing of the kind has occurred. Yoo writes, "The government did not censor the media, sabotage political opposition or mobilize the economy. No dictatorship arose." Elections have proceeded, and the principles of separation of powers have been upheld, he says.

While President Obama has "fumbled with his failed effort to close Gitmo, try al Qaeda leaders in Manhattan, and prosecute CIA officers," according to Yoo, he asserts that "reality and political opposition forced the administration to return to many of its predecessor's core terrorism policies."

Michael Barone has an interesting take on Jeffrey Toobin's article on Justice Clarence Thomas and his wife Virginia entitled "Partners" and subtitled "Will Clarence and Virginia Thomas succeed in killing Obama's health-care plan?"

According to Barone, "It's possible to read the article as a partisan hit, but the bulk of it is worthy of attention because Toobin, despite his obvious distaste for Justice Thomas' views, takes him seriously as a judicial thinker and pathfinder."

Click here to read Toobin's article on the Thomases, which appeared in The New Yorker on August 29.

In the article, Toobin calls Justice Thomas's views on the Eighth Amendment "eccentric" and "even bizarre," and says that these views "underline() some of the problems with his approach to the Constitution, and with originalism generally" (according to Toobin, years of Court precedents would have to be thrown out in order to accommodate this form of interpretation).

But, as Barone quotes from Toobin's article, despite the problems he finds in Thomas's philosophy, "In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication."

Thus, Barone says, "Toobin's article represents the end of the fashionable left's attempt to portray Thomas as an intellectual lightweight." Rather, Barone argues, Toobin "paints Thomas as a brilliant Svengali, ready to disregard precedent and - the president's nightmare - overturn ObamaCare."

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Today, President Obama decided to prevent a new rule from the Environmental Protection Agency (EPA) on smog from taking effect, finding that the rule would be antithetical to the Administration's goal of "reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover."

Click here to see the AP story. Click here to see the White House announcement.

The EPA rule, backed by the unanimous opinion of a panel of scientific advisers, aimed to reduce ground-level ozone concentrations and thus to cut back on smog, according to the AP report. EPA Administrator Lisa Jackson has stated that the current smog standard would be struck down by the courts because it was against the opinion of the independent panel of scientific advisers.

Following the White House announcement, a new standard for smog would be set out in 2013.

Though House Speaker John Boehner agreed with the White House's decision to scrap the smog standard, his spokesman Michael Steel said the action was not enough, and more cuts in regulation and taxes were necessary to create new jobs.

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The New York Times reports that the Federal Housing Finance Agency, which is charged with overseeing the mortgage institutions Fannie Mae and Freddie Mac, is about to file lawsuits against over a dozen large banks, who the agency says misrepresented the prospects of mortgage securities they sold during the housing bubble that led to the financial crisis three years ago.

The federal agency is looking for billions of dollars in compensation for the alleged securities misrepresentations from banks like Bank of America, Goldman Sachs, JPMorgan Chase, and Deutsche Bank. According to the article:

The suits will argue the banks, which assembled the mortgages and marketed them as securities to investors, failed to perform the due diligence required under securities law and missed evidence that borrowers' incomes were inflated or falsified. When many borrowers were unable to pay their mortgages, the securities backed by the mortgages quickly lost value.

Partly because of these deals, Fannie Mae and Freddie Mac lost over $30 billion, and taxpayers were required to foot most of that bill. Though private holders of these mortgage securities have been trying to convince courts to require the big banks to buy them back, this lawsuit would be different in that it would be requesting compensation for Fannie and Freddie's securities losses.

Sources in the financial services industry, says the article, argue that the mortgage-backed securities losses were merely a result of an economic downturn and housing market decline. They assert that Fannie and Freddie were experienced investors and knew that the securities came with risk. A massive lawsuit like this one, investors say, could lead to further losses in an industry that was only recently stabilized.

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The Wall Street Journal has another article on raids by the Fish and Wildlife Service (FWS) on Gibson Guitars following this article it published last Friday (for the FedSoc Blog post on the first article, click here). Although the federal government has not filed charges against Gibson, the FWS raided the company last week because it suspects Gibson of illegally importing wood from India that has been labeled fraudulently to prevent notice from India export authorities.

The CEO of Gibson says that a broker probably made a mistake in labeling the wood but that Indian authorities approved the legal sale of partially finished ebony for use in guitar fingerboards. FWS agents say the wood was intentionally mislabeled to fool Indian officials into allowing the wood to be exported in contravention of Indian law.

If the export was against the law in India, Gibson would have violated the Lacey Act of 1900, which "requires companies to make detailed disclosures about wood imports and bars the purchase of goods exported in violation of a foreign country's laws."

A prior FWS raid of Gibson, which took place in 2009, focused on whether a Gibson "wood product engineer" illegally imported contraband wood from Madagascar for fingerboards. The engineer has not yet been formally accused of breaking the law, but he has been told that if he did, he may face five years in prison.