FedSoc Blog

New SCOTUScast: Jackson v. Hobbs and Miller v. Alabama


by SCOTUScaster
Posted April 24, 2012, 5:04 PM

On March 20, the Supreme Court heard oral argument in Jackson v. Hobbs and Miller v. Alabama. The question in both cases is whether a sentence of life in prison without possibility of parole, imposed for a murder committed when the defendant was fourteen years old, constitutes “cruel and unusual punishment” in violation of the Eighth and Fourteenth Amendments.

To discuss the case, we have John Stinneford, an assistant professor at the University of Florida Levine School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Profile of Elizabeth Price Foley, Author of “The Tea Party: Three Principles”


by Justin Shubow
Posted April 24, 2012, 12:15 PM

The Miami Herald published an excellent profile of Elizabeth Price Foley that highlighted her recent book, The Tea Party: Three Principles:

“She is one of constitutional law’s rising stars,” said Glenn Harlan Reynolds, a professor at the University of Tennessee College of Law.

Foley’s third book, The Tea Party: Three Principles, was published in February by Cambridge University Press. It follows The Law of Life & Death (Harvard University Press 2011) and Liberty for All: Reclaiming Individual Privacy in a New Era of Public Morality (Yale University Press 2006).

“For a relatively young law professor to publish three influential books with Harvard, Yale and Cambridge is a pretty freaking big deal,” Reynolds said. “And where she is different from some people who publish a lot of books is that she also is able to talk to people outside legal academia.”

That’s important, he said, because constitutional law and the Constitution are supposed to be understandable to all people.

Foley also co-wrote an amicus “friend of the court” brief for the blockbuster Affordable Healthcare Act case that recently went before the U.S. Supreme Court. Foley and Steve Simpson argued the individual mandate to purchase health insurance is unenforceable because it violates contract law that requires all agreements to be voluntary by all parties.

“I wanted the court to realize if it upholds this exercise of power under the interstate commerce power, it gives the federal government the ability to force us into any kind of contract for the rest of our lives,” she said. “They could force us into contracts of employment, mortgage agreements and into unions. Not just make us buy stuff.

“For someone who is into liberty, that scares the bajeebees out of me.”

Of the more than 100 amicus briefs filed for that case, Washington Post columnist George F. Will wrote in March that the one written by Foley and Simpson merited special attention because of its “elegant scholarship and logic with which it addresses an issue that has not been as central to the debate as it should be.”

Foley has worked with the Federalist Society on a number of occasions, including the following podcasts. 

Coleman v. Maryland Court of Appeals - Post-Decision SCOTUScast
SCOTUScast 04-06-12 featuring Elizabeth Foley
April 6, 2012
The Tea Party: Three Principles - Faculty Book Podcast
Faculty Division Podcast 03-19-12 featuring Elizabeth Price Foley and Jared Goldstein
March 19, 2012
Coleman v. Maryland Court of Appeals - Post-Argument SCOTUScast
SCOTUScast 01-18-12 featuring Elizabeth Price Foley
January 18, 2012

Read more here: http://www.miamiherald.com/2012/04/22/2759195/fiu-law-professor-publishes-third.html#storylink=cpy

Teleforum This Friday on Arizona Immigration Case


by Publius
Posted April 24, 2012, 9:50 AM

This week, the U.S. Supreme Court will hold oral arguments in the much talked about immigration law case, Arizona v. United States.  At issue is the constitutionality of Arizona's statute, S.B. 1070.  Does the statute cross the line into territory that has been pre-empted by federal law?  Or, as the law's proponents argue, is the statute a proper exercise of the state's police power?  After providing their analysis of the case, our experts will take questions from callers.  The call will feature Prof. John C. Eastman of Chapman University School of Law and Margaret D. Stock of Lane Powell PC.


Start : Friday, April 27, 2012 1:00 PM

End   : Friday, April 27, 2012 2:00 PM

Teleforum calls are open to all dues-paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Categories: Teleforum, Upcoming Events

Video of Panel on John Yoo and Julian Ku’s “Taming Globalization”


by Publius
Posted April 24, 2012, 7:49 AM

On April 19, 2012, The Federalist Society and AEI hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

You can watch a video of the entire event here.

New SCOTUScast: Astrue v. Capato


by SCOTUScaster
Posted April 23, 2012, 4:16 PM

On March 19, the Supreme Court heard oral argument in Astrue v. Capato. The question in the case is whether twins who were conceived in vitro after the death of their biological father, and who cannot inherit the father’s personal personal property under state law, are nevertheless eligible for Social Security child survivor benefits.

To discuss the case, we have Adam White, counsel at the Washington, D.C. law firm Boyden Gray and Associates.

Click here to view this article on the source site »

Categories: SCOTUScasts

SCOTUS Refuses to Hear NYC Rent Control Case


by Justin Shubow
Posted April 23, 2012, 11:34 AM

This morning the Supreme Court rejected a case regarding rent control in New York City.  According to the New York Observer:

Today will be a day of rejoicing—time to break out the Andre—for residents with rent control.

The Supreme Court has declined to hear the challenge to rent control brought by former federal prosecutor James D. Harmon Jr., the owner of a five-story townhouse on West 76th Street.

Mr. Harmon, who grew up in the brownstone and now lives there with his wife Jeanne, inherited the building and its three rent-controlled tenants from his grandfather. Mr. Harmon’s three rent-controlled tenants each pay around $1,000 a month for one-bedroom apartments, about 59 percent below market rate, according to court documents. Three other tenants in the building pay market rents.

Mr. Harmon argued that New York City’s rent laws violate the Constitution by taking his property without just compensation.

This is not the first time Mr. Harmon has challenged rent control laws in the courts, nor is it the first time that his case has been denied. The Supreme Court does not release any statements when it declines to hear a case.

Previous denials of Mr. Harmon’s Earlier suits filed by Mr. Harmon sought to remove a rent-controlled tenant so that the Harmons’ college-age granddaughter could live in the unit. Most recently, he took the case to the the United States Court of Appeals for the Second Circuit, which ruled last September that the rent-stabilization law did not constitute a “taking” and that Mr. Harmon had acquired the property with “full knowledge that it was subject to RSL.”

In February 2012, Professor Richard Epstein discussed the case in a Environmental Law & Property Rights Practice Group Podcast.  You can listen to it here.

Univ. Texas Hires Private Legal Team for Fisher Affirmative Action Case


by Justin Shubow
Posted April 23, 2012, 10:40 AM

"At the request of President William Powers Jr., [the University of Texas] has chosen a private legal team with noted experience defending affirmative action to represent the University in Fisher v. University of Texas at Austin," the Daily Texan reports:

UT has selected lawyers from the profitable Washington D.C. law firm Latham & Watkins instead of state Attorney General Greg Abbott and his lawyers, who hold the responsibility of representing the University and have defended UT’s position at the district court level through the 5th U.S. Circuit Court of Appeals.

Fisher v. University of Texas was filed in 2008, when two UT students were denied admission. The two contended that the University’s admissions policies, which take race into consideration when not automatically admitted as the top percentile, violated the plaintiff’s right to equal protection of the laws under the 14th Amendment. Rachel Michalewicz has since withdrawn from the suit and Abigail Fisher, now a senior at Lousiana State University, is the only remaining plaintiff.

In a March 29 letter to the state Attorney General’s office requesting the use of outside counsel, Powers stated that the University was at “critical juncture for briefing and argument before the Supreme Court.” Powers also mentioned that such counsel would possess significant experience in higher education and the Supreme Court.

The private legal team includes attorneys Maureen Mahoney and Scott Ballenger, who both successfully defended University of Michigan’s affirmative action program in the landmark 2003 Supreme Court decision Grutter v. Bollinger.

Former U.S. solicitor general Greg Garre, who represented the federal government before the Supreme Court from 2008 to 2009, heads the legal team.

For more on the case, see Joshua P. Thompson's Engage article "Fisher v. University of Texas at Austin: Could the Supreme Court Revisit Its Decision in Grutter?"

Arizona Immigration Law Heads to Supreme Court This Week


by Justin Shubow
Posted April 23, 2012, 7:48 AM

The Wall Street Journal reports on the much-watched immigration case Arizona vs. United States:

Arizona's campaign to push out illegal immigrants heads to the Supreme Court this week, in the second major challenge to federal power the justices have taken up in less than a month.

The Obama administration argues a 2010 Arizona measure aimed at fighting illegal immigration conflicts with federal law. The state law requires police to check the immigration status of people they stop if suspicious of their right be in the U.S.

It also makes it a crime for immigrants without work permits to seek employment.

Both of these provisions, among others, have been blocked by federal courts for interfering with federal immigration laws. Even so, the Arizona statute has sparked copycat measures in Alabama and other states.

All parties agree immigration is an area of federal supremacy. Last year, the Supreme Court upheld a separate Arizona law putting out of business companies that repeatedly hire illegal immigrants. Over objections from the Obama administration, the U.S. Chamber of Commerce and labor groups, the court held 5-3 that Congress had given states authority to strip corporate charters and other essential permits to punish employers for immigration violations.

Architects of the Arizona law now under challenge say they sought to reduce the state's illegal population, or achieve "attrition by enforcement." They call the law a success because many immigrants without papers have voluntarily left.

In January, the Federalist Society's Sixth Annual Western Conference held a panel on "Federalism and State Immigration Policy."  The speakers were Gabriel J. (Jack) Chin, John C. Eastman, Joe Sciarrotta, Margaret D. Stock, Edwin Meese III, and Eugene B. Meyer. You can listen to the full audio here.

Heritage Guide to the Constitution Now Online


by Justin Shubow
Posted April 20, 2012, 2:38 PM

At Bench Memos, Ed Whelan announced that the Heritage Foundation has placed its Guide to the Constitution online.  Here is how Whelan reviewed the guide when it was first published:

nder the auspices of the Heritage Foundation, [former Attorney General Ed] Meese, together with Matthew Spalding and David Forte, has compiled a comprehensive explanation of the original meaning of every line of the Constitution.

The Heritage Guide to the Constitution is an invaluable reference work that anyone interested in learning more about the Constitution should have on his bookshelf. It consists primarily of a couple hundred or so brief essays — the vast majority no more than a page or two in length — on every clause or subclause in the Constitution. Each essay attempts to explain the original meaning of the provision that it addresses as well as to set forth the current state of the law on that provision. Each essay also sets forth, where appropriate, cross-references to other relevant provisions in the Constitution, citations to legal materials for further exploration, and a list of significant cases.

More than 100 experts — mostly law professors but also academics from a variety of other fields as well as a smattering of judges and lawyers — have contributed the essays. The essays are clearly written, concise, and highly informative. They are scholarly and dispassionate, not polemical. The Heritage Guide also contains three brief and elegant introductory essays by the editors — one by Meese on basic constitutional principles, one by Spalding on the history of the Constitutional Convention, and one by Forte on originalism.

Anyone doing serious research on a question of constitutional law will find the Heritage Guide an excellent starting point. But the book is also a pleasure to browse, as the casual reader can bounce from topics like the Recess Appointments Clause to Treason to the Rights Retained by the People. The fact that less than one-fourth of the book relates to constitutional amendments may also serve to remind the modern reader, who too often hears about little other than the Bill of Rights and some generalized, nontextual right of privacy, that the real genius of the Constitution, the greatest guarantee of our liberties, lies in its scheme of separated powers.

Categories: External Articles

New SCOTUScast: Sackett v. EPA


by SCOTUScaster
Posted April 20, 2012, 1:07 PM

On March 21, the Supreme Court announced its decision in Sackett v. EPA.  This case involved two landowners who graded a lot in a residential subdivision so that they could build a home there.  The Environmental Protection Agency then issued the landowners an administrative compliance order stating that the graded lot was a wetland, and directed the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance.  The question before the Court was whether the landowners could seek judicial review of the EPA’s compliance order before it was actually enforced against them and, if the answer to that question is “no,” whether the compliance order deprived the landowners of due process of law.

In an opinion delivered by Justice Scalia, the Court held unanimously that the landowners may file suit to challenge the EPA’s administrative compliance order before it is enforced against them.  Justices Ginsburg and Alito each filed concurring opinions.

To discuss the case, we have Elizabeth Papez, a partner at Winston & Strawn.

Click here to view this article on the source site »

Categories: SCOTUScasts

Should Judges Be Moral Arbiters?


by Justin Shubow
Posted April 20, 2012, 10:05 AM

David Schaub, a visting professor of law at the University of Illinois, has provocatively argued that it is a good thing for judges to moralize in their opinions (H/T Volokh):

Opinions of the form "the law is constitutional, but moronic" (or vice versa, for that matter) serve at least two important functions. First, they serve a dialogic function that can help make better law. Courts see how laws play out on the ground, this experience gives them insight on how (and whether) the law works and whether it is worth preserving. Why should the judiciary not provide the public with this perspective, parallel to (not replacing) their primary obligation to interpret the law in front of them?

But more importantly, these opinions help sap judicial decisions of unwarranted and unintended "moral endorsements" by the judiciary. When a law is upheld by a court, this usually is followed by a press release by its supporters bragging about how "this demonstrates we were right all along and this law is the bestest thing ever and totally just and fair." Of course, courts often mean to imply none of these things -- the decision might be based on anything from a jurisdictional block to a contested turn of a statute. The blurriness by which courts are seen as moral as well as judicial arbiters means that, absent language to the contrary, a favorable ruling on the law is considered to be a favorable ruling on the underlying ethical merits of the dispute.

Categories: External Articles

Romney’s Potential High Court Picks?


by Justin Shubow
Posted April 20, 2012, 8:09 AM

Now that Mitt Romney is the presumptive Republican presidential nominee, Reuters reports that speculation as to his possible Supreme Court picks is beginning. Among the frequently mentioned frontrunners are:

Paul Clement, who served as U.S. solicitor general under President George W. Bush and is now a lawyer in private practice, is the favorite of many conservatives. Clement argued last month for the Supreme Court to strike down Obama's 2010 healthcare law, and he is defending laws that ban same-sex marriage and that target illegal immigrants.


Clement, 45, would be "at the top of any short list right now," said Curt Levey, executive director of the Committee for Justice, a group that advocates for conservative nominees.


Asked about Clement, Mary Ann Glendon, a co-chairwoman of Romney's Justice Advisory Committee, voiced "unbounded admiration" for him.


"He's the type of person who fits the mold that the governor has pledged to look for," Glendon said, adding that "it's much too soon to speculate about names."


Mentioned as often as Clement is Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit.


Kavanaugh, 47, sits on a court that produced four sitting justices. He has deep roots in Washington, D.C., having worked in the Bush White House and assisted in the 1990s investigation that nearly led to President Bill Clinton's ouster.


Kavanaugh is known for elaborate opinions such as a 65-page dissent he wrote in November exploring how an 1867 tax law barred courts from considering Obama's healthcare law until 2015.


A third possibility, Judge Diane Sykes, is often mentioned as a likely Romney nominee if the next person to leave the Supreme Court is Justice Ruth Bader Ginsburg, the court's senior woman justice. Ginsburg has survived cancer twice.


Sykes, 54, was appointed to a Chicago-based U.S. appeals court in 2004, overcoming Democratic criticism of her record in abortion-related cases. Last year, she pleased advocates for gun rights when she wrote an opinion saying Chicago could not enforce a ban on firing ranges within city limits.


John Yoo and Julian Ku Discuss Taming Globalization: International Law and the U.S. Constitution


by Justin Shubow
Posted April 19, 2012, 6:00 PM

The Federalist Society and AEI today hosted a panel discussion of John Yoo and Julian Ku's new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order.  The two authors--from Berkeley and Hofstra Law, respectively--were joined by Martin Flaherty of the Fordham University School of Law and Jeremy Rabkin of the George Mason University School of Law. Jennifer Rubin moderated.

Ku began by laying out three concepts they authors see as affecting the constitutional environment: 1) globalization, 2) global governance, and 3) sovereignty.  Globalization is exogenous, a neither good nor bad force.  It is leading to a change in global governance, including a deepening of legal and non-legal international cooperation, the rise of new and important international organization, and the expansion of international law, which formerly used to deal with diplomatic issues, to areas that used to be considered solely in the domestic sphere.  As for sovereignty, Ku claimed that our conception of it should depend on the U.S. Constitution’s understanding of sovereignty, not the conception of Westphalian sovereignty.

Yoo explained that globalization poses the same kind of stresses for the country as did the economic nationalization that occurred during the New Deal, which unfortunately lead to the creation of independent agencies given sweeping authority.  The solution he sees is to turn to the Constitution as the only means by which the government can exercise the power delegated to it by the people.  Laws implementing international law should largely be the domain of Congress, not the courts.  This would preserve popular sovereignty while still allowing the U.S. to engage in the kind of international cooperation the Framers envisioned.  Yoo proposed three doctrines: 1) Most treaties should be considered to be non-self-executing (meaning they require implementing legislation), 2) The political branches, especially the president, should take the lead role in interpreting international law, 3) the 50 states should play a larger role in international law given show it is becoming more difficult for the federal government to regulate international issue that impact state laws, such as the nature of marriage. 

Flaherty said he enjoyed the book, which he found stimulated, comprehensive, and lucid.  However, he said he found something to disagree with on virtually every page.  He claimed that the book’s ideas are so original as to be idiosyncratic.  He agreed with the authors the Constitution is the body of law that mediates how the U.S. engages with the rest of the world.  He also said he accepts Justice Scalia’s method of constitutional interpretations: start with the text, then move to original understanding, structure, custom, precedent, and maybe policy as a tie-breaker.  But using this method, he argued, poses problems for the book’s positions.  For example, the plain meaning of the text of the Constitution’s Supremacy Clause appears to strongly suggest that treaties are self-executing.  And if there is any doubt there, the original understanding of the Clause was that it was intended to solve the problem that America could not enforce its treaties—in particular, the states were not enforcing the Treaty of Paris that ended the Revolutionary War.

Rabkin followed by saying that much of the book is very attractive.  Above all, it sidesteps angry debates about what should or should not be America’s stance toward the world.  He said he was sympathetic to the authors’ underlying project, but he did not agree that globalization is an unstoppable force that we cannot change.  The implication of the authors’ view is that we will have more and more treaties going forward so let us just focus on process.  But can we make a treaty on just about anything?  He said “no.”  If we assume the opposite, then we can make treaties about international human rights.  Such treaties address not the relations between states, as treaties solely used to do, but what all states must do, including what states may do to their citizens.  International law thus becomes something like Natural Law, a brooding omnipresence in the sky that has moral urgency.

John Stossel to Speak at FedSoc D.C. Luncheon May 3rd


by Publius
Posted April 19, 2012, 12:31 PM

On May 3, 2012 the Federalist Society will host a D.C. luncheon at which John Stossel will speak about his new book, No, They Can't: Why Government Fails-But Individuals Succeed.

Details below:

Start : Thursday, May 3, 2012 12:00 PM

End   : Thursday, May 3, 2012 1:30 PM

Location: Tony Cheng's Restaurant, 619 H St. NW (Gallery Place Metro)

Copies of the book will be available for purchase and Mr. Stossel will be available for signing at the conclusion of the lunch.

The cost is $15.00 for members and $20.00 for guests.

Space is limited, so please register online now.

Please call (202) 822-8138 with any questions.

Categories: Upcoming Events

Former CIA Director Hayden Speaks Frankly About Interrogation, Common Article 3


by Justin Shubow
Posted April 19, 2012, 8:24 AM

At Opinio Juris, Deborah Pearlstein reports on a forthright talk by General Michael Hayden, director of the CIA under President George W. Bush:

Hayden was deeply skeptical of Obama (for some combination of what Hayden saw as hypocrisy and naiveté), aggressive in his defense of Bush-era detention and interrogation programs, and strikingly candid in describing his role and the depth of his support for the CIA’s involvement in these endeavors. It seems worthwhile briefly summarizing his remarks in sense and sensibility here.

To some extent, the speech’s greatest rhetorical flourishes were phrases we’ve heard before. As Hayden described, he set his course according to the CIA’s “vision statement” that “ye’ shall know the truth, and the truth shall set you free.” Our counterterrorism efforts require the engagement of “rough men,” the ones who make it possible for us (as Orwell, and then Churchill, and later, Jack Nicholson, put it) to “sleep safely at night because [they] stand ready to visit violence on those who would harm us,” and who (this is Hayden now) “go where others cannot go, and do what others cannot accomplish.” This conflict is especially novel in its needs for such “rough men” because our enemy this time doesn’t follow the Geneva Conventions, and because we can’t, as Hayden put it, “define who the enemy is.” Thus, what we need are men willing to get “chalk on their cleats” in walking at the edge of the boundaries set by the law on detention, interrogation, etc.

It was difficult to take notes without editorializing. I had thought, for example, that many of our past enemies had also failed to abide by the Geneva Conventions. (The Vietcong comes to mind.) I’m likewise not sure how it is one wages a war without knowing, with at least some specificity, who the enemy is. The football metaphor was at least familiar from Hayden’s previous public statements. But I hadn’t fully understood that in Hayden’s version of the game, the object seems to be all unrelated to, say, scoring a touchdown, but is rather more about getting chalk on one’s cleats as a matter of first principles.

Confronted as CIA Director with the courts’ increasingly vigorous engagement on these questions, Hayden was scathing in his criticism of Justice Stevens and his opinion for the Court in Hamdan. That case of course held, among other things, that Common Article 3 applied in the armed conflict with Al Qaeda, at least as it played out (as CA3 puts it) “in the territory of” Afghanistan. In response to this and other judicial decisions, Hayden recounted encouraging his subordinates to buck up: “We’ve been kicking their asses in FATA [describing the volatile tribal region in the northwest of Pakistan], we’re going to kick their asses here too” in the habeas cases the courts allowed to proceed.

As for the use of interrogation techniques the U.S. authorized (techniques CA3 would seem to prohibit), from slapping prisoners to waterboarding, Hayden expressed the view that he believes those actions lawful, and indeed that it would have been “selfish” for him not to support such measures being taken. For then he would have been putting his own personal concerns (namely, it seemed, a fear that one might later be held legally liable for such actions) above those of the nation. “Democracies cannot wage war over the long term on the basis of strict legalisms,” he said.

In 2009, Pearlstein--along with Gabor Rona, Edwin D. Williamson, Benjamin Wittes, William Kristol, and Dean A. Reuter--participated in a FedSoc panel discussion on "Preventing Attacks through Interrogation and Transfer of Terrorist Suspects".  You can watch the video here.

Categories: External Articles




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