FedSoc Blog

The Snowden Affair and Control of the Internet


by Publius
Posted December 18, 2013, 4:17 PM

Vincent J. Vitkowsky, Chairman of FedSoc's International & National Security Law Practice Group, published a detailed commentary for Advisen on the Snowden affair's relation to control of the internet. It begins:

There is a serious conflict over future control of the Internet, as nations seek to influence its delivery mechanisms, protocols, economics, security, content, and governance. Until now, key functions have been managed through a multi-stakeholder approach, using technical organizations such as the Internet Corporation for Assigned Names and Numbers (ICANN), with oversight conducted by the US. But the last several years have seen a growing challenge to this system and the US role. Now a tipping point may have been reached. The public disclosures of the scope of the NSA surveillance programs have led to widespread international criticism, focusing and catalyzing the call for changes in Internet governance. The Internet is the most dynamic engine for economic growth in the world today, as well as the vital mechanism for dissemination of ideas. So the outcome of the conflict for control will have profoundly important commercial and political consequences. . . .

In November 2013, at FedSoc's National Lawyers Convention, Vitkowsky moderated a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Mr. Joel F. Brenner, Principal, Joel Brenner LLC and former National Counterintelligence Executive, former Inspector General and Senior Counsel, National Security Agency
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law

You can watch a video of the discussion here.

Online UChicago Law Review Symposium: Judge Robert H. Bork (1927-2012)


by Publius
Posted December 18, 2013, 10:25 AM

The University of Chicago Law Review announces:

In recognition of the one-year anniversary of his passing on December 19, 2012, The University of Chicago Law Review Dialogue is proud to present an online symposium commemorating the Honorable Robert H. Bork. Judge Bork served as an Associate Editor for Volume 20 of The University of Chicago Law Review. The symposium features eight essays that discuss some of the judge's many contributions to the legal field over his distinguished career.

In 2007, as part of its 25th anniversary, the Federalist Society presented a full-day conference honoring Judge Bork and his contributions to the law. The conference featured a live conversation with Judge Bork, conducted by Judge Raymond Randolph, panel discussions on International Law, Law and Culture, Judicial Philosophy, and Antitrust Law. You can watch videos of the panels here.

Detroit Bankruptcy Judge Allows Appeal of Eligibility, Pension Rulings to Sixth Circuit


by Publius
Posted December 16, 2013, 2:48 PM

According to the Detroit News:

A bankruptcy judge Monday allowed creditors to appeal his recent eligibility and pension rulings directly to the U.S. 6th Circuit Court of Appeals.

The decision by U.S. Bankruptcy Judge Steven Rhodes followed several requests from unions, pension funds and retiree groups, who are fighting the city’s eligibility for Chapter 9 bankruptcy relief and the judge’s ruling that pensions can be cut in bankruptcy court.

Creditors pushed for an expedited appeal, arguing the bankruptcy case has implications on the treatment of vested pensions by bankrupt municipalities nationwide. Rhodes did not immediately rule on the expedited request.

“This is an issue of national importance,” said Sharon Levine, lawyer for the city’s largest union, the American Federation of State, County and Municipal Employees.

The move could slow Emergency Manager Kevyn Orr’s attempts to strike a deal among creditors to pare $18 billion in debt, said John Pottow, a University of Michigan bankruptcy professor.

The city’s bankruptcy teams wanted all appeals of Detroit’s bankruptcy eligibility put on hold until after a debt-cutting plan is approved by Rhodes. . . .

In October 2013, the Federalist Society hosted a panel on "Municipal Bankruptcy and Pension Reform: A Way Out?" It featured:

  •     Prof Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  •     Prof. David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School
  •     Moderator: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

You can watch a video of the event here.

9th Circuit Chief Judge Alex Kozinski Cites “Epidemic” of Prosecutorial Misconduct


by Publius
Posted December 12, 2013, 5:18 PM

Radley Balko, author of The Rise of the Warrior Cop, reports for the Huffington Post:

The dissent by Alex Kozinski, chief judge of the U.S. Court of Appeals for the 9th Circuit, from a decision not to rehear U.S. v. Olsen starts off with a bang:

"There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it."

Brady, of course, is shorthand for the Supreme Court decision that requires prosecutors to turn over exculpatory evidence to defense attorneys. In Olsen, a ruling from a three-judge 9th Circuit panel in January detailed extensive questionable conduct on the part of the prosecutor, Assistant U.S. Attorney Earl Hicks (*see clarification below), who works for the Office of the U.S. Attorney for the Eastern District of Washington. (Kozinski's opinion this week doesn't name Hicks, nor do most press accounts of the decision, but I will. These prosecutors need to be identified by name.)

Kenneth Olsen was convicted of "developing a biological agent for use as a weapon." While there was little question Olsen did try to produce ricin, the problem for the government was that there was little specific evidence that Olsen intended to kill someone with it. He attributed his chemistry to morbid curiosity. The strongest evidence from the government was a bottle of allergy pills found in Olsen's lab that, according to forensic specialists, contained traces of ricin. This would seem to indicate that Olsen was preparing to use the ricin to poison people.

But at the time of the trial, one forensic analyst who handled the pills, Arnold Melnikoff, was under investigation for forensic misconduct. His testimony had already led to three wrongful convictions. A broad and damning internal investigation of his work looked at 100 randomly chosen cases and found improprieties in 14 of them, including contaminants in his tests; "mistakes in case documentation, administrative documentation, evidence analysis, data interpretation, and written reports"; and "a tendency for conclusions to become stronger as the case developed, from notes to written reports to testimony."

AUSA Hicks knew about the investigation of Melnikoff and its sweeping scope. But not only did he fail to disclose this to Olsen's attorneys, he allowed Melnikoff's attorney to characterize it as an "administrative" review that was limited to one case from 10 years ago.

While the 9th Circuit panel found that the investigation was evidence unfavorable to the prosecution that wasn't turned over to Olsen's attorneys, the court also determined that the evidence wasn't "material" to Olsen's conviction. That is, even if it had been turned over to Olsen's attorneys, Olsen would likely have been convicted anyway. (The opinion did not address whether the evidence had been suppressed.) Here's where Kozinski, dissenting from the 9th Circuit's decision Tuesday not to rehear the case before the full court, rips into his colleagues . . .

In November 2012, the Federalist Society hosted a panel discussion on prosecutorial conduct at its National Lawyers Convention. Participating were:

  • Mr. James C. Dunlop, Jones Day
  • Ms. Sidney K. Powell, Sidney Powell, PC
  • Prof. Ronald D. Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
  • Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP and former U.S. Homeland Security Advisor
  • Moderator: Hon. Merrick B. Garland, U.S. Court of Appeals, D.C. Circuit

You can watch a video of the event here.

Chief Judge Wood Dismisses Ethics Accusations Re Judge Diane Sykes’ Appearance at FedSoc Dinner


by Publius
Posted December 11, 2013, 1:43 PM

Carrie Severino comments at Bench Memos:

Last month, liberal attack dogs Common Cause and Alliance for Justice convinced Representative Slaughter to join them in a baseless attack on Justice Thomas’s and Seventh Circuit Judge Diane Sykes’ ethics. The effort was a blatant hack job, so frivolous that it was recently rejected by the chief judge of the Seventh Circuit as just that. Chief Judge Diane Wood (a short-lister for each of President Obama’s Supreme Court nominations), dismissed the complaint as either “lack[ing] any factual foundation or . . . conclusively refuted by objective evidence.”

As Chief Judge Wood’s two-page dismissal indicates, the allegations were easily refuted. Representative Slaughter’s press release cited a provision in the federal judges’ code of conduct that forbids judges serving as “a speaker, a guest of honor, or featured on the program” of a fundraising event. But Justice Thomas and Judge Sykes could not possibly violate this provision by speaking at the Federalist Society dinner [see above video] because it is not a fundraising event. The event is not designed to raise money, has never been advertised as a fundraiser, and in fact costs more to put on than it brings in in ticket prices. 

These baseless accusations are all the more absurd when viewed in contrast to the American Constitution Society, a liberal group that aspires to replicate the Federalist Society’s success but from the opposite philosophical perspective. That organization also regularly has Supreme Court Justices speak at its conferences. Last year retired Justice John Paul Stevens spoke. The previous year it was (active) Justice Ruth Bader Ginsburg. The speaker list includes a host of other federal judges. And their sponsor list includes corporations and law firms, many of which are the same ones who have sponsored the Federalist Society’s conference. If speaking at an event with corporate or law-firm sponsors actually did violate ethical rules, it would implicate judges across the spectrum, not only Justice Thomas and Judge Sykes.

This crude personal attack is disappointing, both for its partisan nature and its reckless disregard of the absence of any factual basis for its harmful allegations against two federal judges. Unfortunately, at least one respectable media outlet parroted these accusations, lending them credibility. I trust they will put forth equal effort in rehabilitating the maligned judges.

Mayor of New London Seeks to Use Eminent-Domain Seized Property for True “Public Use”


by Publius
Posted December 11, 2013, 11:36 AM

The Day of Connecticut reports:

A "tiny house neighborhood" and a symbolic cleansing of the Kelo ruling "stain" are among the development options discussed for Fort Trumbull by New London Mayor Daryl Justin Finizio in his recent meeting with The Day editorial board. What remains murky is the mayor's vision for how any development takes place on the long barren peninsula and who will be in charge of guiding and promoting it.

The 2005 Supreme Court decision in New London v. Kelo, in which the court by a 5-4 majority constitutionally validated the New London Development Corp.'s use of eminent domain to purchase and raze the homes of Fort Trumbull residents who refused to sell, remains a "black stain" on the city, said its mayor

NLDC wanted to clear the site to attract large corporate development and expand the city's tax base. Its judicial triumpth proved a pyrrhic victory, the decision widely despised for interpreting "public use" to include the government taking the property of citizens to turn over to private developers. Count the New London mayor among the despisers. He characterized the Kelo decision as a "corruption of the constitutional interpretation of public use."

Fort Trumbull has seen no new construction since the bulldozers departed the flattened neighborhood.

Mayor Finizio said he would like New London to symbolically overturn Kelo by undertaking a true "public use" of the seized private properties. He offered as an example a parking garage, under discussion recently as a means of meeting the parking demands generated by Electric Boat's offices in the former Pfizer buildings, the one major project resulting from NLDC's corporate development vision.

This would not be any municipal parking garage, but one with solar panels to power it, landscaping and design to fit it into the setting, and first-floor shops to generate revenues.

"What really gets us beyond the eminent domain debacle may be effectively overturning the Kelo opinion if not de jure before the Supreme Court, then de facto in the city of New London," said Finizio. "What (New London) justified this (eminent domain seizure) on was generating private development for economic development purposes, but what we are actually going to do is create public development for economic development purposes." . . .

In November 2013, the Federalist Society hosted a panel on "New Directions in Takings Law" at its National Lawyers Convention.  Participating were:

  • Mr. Paul J. Beard II, Principal Attorney, Pacific Legal Foundation
  • Prof. James L. Huffman, Dean Emeritus, Lewis & Clark Law School
  • Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  • Prof. Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law, Cardozo School of Law
  • Moderator: Hon. Edith Brown Clement, United States Court of Appeals, Fifth Circuit

You can watch a video of the event here.

Senate Republicans Get Supreme Court Argument Time in NLRB Recess Case


by Publius
Posted December 09, 2013, 1:19 PM

BLT: the Blog of Legal Times reports:

The U.S. Supreme Court on Monday granted Senate Republicans argument time on Jan. 13 when the justices hear historic debate over the constitutionality of President Barack Obama's recess appointments to the National Labor Relations Board.

As a result, the argument in NLRB v. Noel Canning will run 90 minutes instead of the usual 60. Miguel Estrada of Gibson, Dunn & Crutcher had asked the court on November 25 for additional time on behalf of his client Sen. Mitch McConnell, (R-Kentucky) and 44 other senators who object to Obama's appointments. He will have 15 minutes, in addition to the 30 minutes allotted to Noel Francisco of Jones Day, who represents the appellee Noel Canning company, a Pepsi bottler from Yakima, Washington. For balance, the court extended the government's argument time from 30 to 45 minutes, for a total of 90.

In seeking the extra time, Estrada told the court that the senators have "incomparable interest in the constitutional issues involved," and an "unmatched stake" in defending the Senate's prerogatives to establish its own procedures, including when to adjourn. The senators should be given the opportunity, Estrada said, to describe the "adverse separation-of-powers consequences of allowing the Executive to seize control of congressional procedure."

Francisco told the court he agreed with giving the senators argument time, so long as it did not cut into his allotted half hour. His side needed 30 minutes, he said, to give "a full and complete presentation of its position." . . .

In November 2013, the Federalist Society sponsored a panel discussion at its National Lawyers Convention on "Recess Appointments: Implications of Noel Canning." Participating were:

  • Mr. John Elwood, Partner, Vinson & Elkins LLP
  • Mr. Noel J. Francisco, Partner, Jones Day
  • Prof. John N. Raudabaugh, Reed Larson Professor of Labor Law, Ave Maria School of Law; former member, National Labor Relations Board and Staff Attorney, National Right To Work Legal Defense Foundation
  • Ms. Elizabeth B. Wydra, Chief Counsel, Constitutional Accountablity Center
  • Moderator: Hon. Raymond M. Kethledge, United States Court of Appeals, Sixth Circuit

You can watch a video of the event here.

5th Circuit Upholds Arbitration Agreement Prohibiting Employee Class Action, Overturns NLRB Decision


by Publius
Posted December 05, 2013, 4:21 PM

JURIST reports:

The US Court of Appeals for the Fifth Circuit on Wednesday ruled that employers can require their employees to sign an arbitration agreement prohibiting them to pursue claims in courts or in a class action. The ruling overturned a prior decision by the National Labor Relations Board which held that requiring employees to sign an arbitration agreement violated the National Labor Relations Act. The case involved a Texas-based home builder that required its employees to sign an arbitration agreement as a condition of employment. The three-judge panel, in a 2-1 decision, stated that pursuant to case law addressing the Federal Arbitration Act the use of class action procedure is not a substantive right. It further noted that the general language of the NLRA is insufficient to override the application of the FAA which favors arbitration. Thus, the court held that the employer's arbitration agreement containing class-action waivers are enforceable under the FAA. However, the court noted that the agreement must clarify that the employee does not waive his right to file a claim with the NLRB. Under the current version the employee would reasonably interpret the agreement as prohibiting such a right. . . .

On June 10, 2013, The Supreme Court announced its decision in Oxford Health Plans LLC v. Sutter. The question in the case was whether an arbitrator exceeds his powers under the Federal Arbitration Act in determining, by consent of the parties, whether the parties’ contract authorized class arbitration. In a unanimous decision, the Court held that the arbitrator did not exceed his powers under the Federal Arbitration Act and affirmed the judgment of the lower courts, which had refused to vacate that arbitrator’s decision.  Justice Kagan delivered the opinion of the Court. Justice Alito filed a concurring opinion, which Justice Thomas joined. To discuss the case, the Federalist Society produced a post-decision podcast with Peter “Bo” Rutledge, the Herman E. Talmadge Chair of Law at the University of Georgia School of Law. You can listen to it here.

NSA: “Not (So) Secret Anymore”


by Publius
Posted December 04, 2013, 5:24 PM

Joel Brenner, former Senior Counsel at the National Security Agency, begins a fascinating essay at Lawfare as follows:

The National Security Agency is down in the dumps. It’s used to being heralded for brilliance.  It can’t understand how millions of Americans, not to mention foreigners, think it’s engaged in voracious, useless, and unlawful eavesdropping around the world, and dangerous to liberty at home.  Past intelligence scandals have always involved the failure to collect or understand critical information – the attack on Pearl Harbor in 1941, for example – or unlawful spying on Americans for political reasons, like in 1976.  This one is different.  NSA is being criticized for collecting too muchintelligence, or the wrong foreign intelligence, and for collecting of U.S. telephony metadata that it does under an act of Congress and repeated orders of the Foreign Intelligence Surveillance Court.  Congress knew when it amended the Foreign Intelligence Surveillance Act law how it was being used, and more than a dozen judges have approved the specific uses of this authority.  Nor has there been a whiff of intelligence abuse for political purposes.  We’re in the midst of the only intelligence scandal in history involving practices approved by Congress and the federal courts and subject to heavy and effective oversight.  How did this happen, and what should be done? . . .

In November 2013, at the the Federalist Society's National Lawyers Convention, Brenner took part in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were Stephen G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice; Michelle Richardson, Legislative Counsel, American Civil Liberties Union; Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal; Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law; Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society.

You can watch a video of the discussion here.

If Obamacare Is Overturned, Case Western Law Prof. Jonathan Adler gets the Credit


by Publius
Posted December 04, 2013, 3:11 PM

Stephen Koff writes in the Cleveland Plain Dealer:

If the law known as Obamacare gets struck down in the latest court challenge, the victors will thank a Hudson resident and Case Western Reserve University law professor who discovered what the law's critics say is a major flaw.

Jonathan Adler, 44, says he didn't even appreciate initially how significant his discovery might be. He thought it was an interesting bit of legal arcana, worthy of scholarship. But his analysis of the Affordable Care Act, or ACA, has led to four pending cases in federal courts, two likely to be decided within months, that offer ACA opponents their best chance of gutting the law.

Oral arguments were heard in one of the cases, in U.S. District Court in Washington, DC, on Tuesday.

Adler, a Case law professor since 2001, pored over the ACA after it passed in 2010 and found this:  Congress created a system for providing tax subsidies  and penalties in order to give incentives for people to buy health insurance or for employers to provide it. States were supposed to create new agencies that would offer online insurance-shopping options, and states would tie into a federal tax system to dole out the subsidies and assess the penalties.

But the ACA made clear, Adler says, that the subsidies were to be used in these new state marketplaces, or "exchanges." There is no record, he says, that shows Congress directed the subsidies to what has since evolved: a large, federally run, health-policy shopping exchange. When the subsidies are mentioned in the law, Adler says, it is always and only in the context of state exchanges.

Congress did provide for the creation of a federal exchange, but as a backup, Adler says.

Things haven't worked out that way. When the law was put into practice, 27 states, including Ohio, said they did not want to start their own exchanges or partner with the federal government for a jointly run exchange. They are using the federal system instead, forgoing federal grants that would have helped them establish their own marketplaces. According to the Pew Research Center, that means nearly 60 percent of Americans who lack insurance live in states that refused to have their own exchanges.

Based on the law, Adler says, the Internal Revenue Service has no legal authority to give tax subsidies to people enrolling in the federal exchange. The IRS wrote a regulation as if it has that right, but Adler says the ACA never empowered it to do so.

Although this particular issue involves the signature law of President Barack Obama's White House, there have been legal parallels with the desires of other administrations, including President George W. Bush's, on environmental and other matters, Adler says.

"In none of these areas does that authorize the administrative agencies to rewrite the laws altogether," Adler said in a telephone interview this morning with The Plain Dealer. "They've got to go back to Congress."

This may sound like a novel theory for the policy and law blogs, some of which Adler participates in. He initially used his research for a paper that he presented at a legal conference at the University of Kansas in February of 2011.

But then a friend and influential health-policy analyst, Michael Cannon at the libertarian-leaning Cato Institute, a Washington think tank, told Adler that he was onto something big -- something that could profoundly affect Obamacare.

Without the tax subsidies, the ACA cannot work. . . .

In June 2013, Professor Adler participated in a panel on the "Implementation of the Affordable Care Act" the Federalist Society's First Annual Executive Branch Review Conference. Also participating were James C. Capretta,  Visiting Fellow at the American Enterprise Institute; Ian Millhiser, Senior Constitutional Policy Analyst at the Center for American Progress, and Terry Eastland, Publisher of The Weekly Standard. You can watch a video of the event here.

Judge Rules Detroit Rligible for Historic Chapter 9 Bankruptcy, Says Pensions Can be Cut


by Publius
Posted December 04, 2013, 10:51 AM

The Detroit Free Press reports:

The city of Detroit today officially became the largest municipality in U.S. history to enter Chapter 9 bankruptcy after U.S. Bankruptcy Judge Steven Rhodes declared it met the specific legal criteria required to receive protection from its creditors.

The landmark ruling ends more than four months of uncertainty over the fate of the case and sets the stage for a fierce clash over how to slash an estimated $18 billion in debt and long-term liabilities that have hampered Detroit from attacking pervasive blight and violent crime.

“It is indeed a momentous day,” Rhodes said at the end of a 90-minute summary of his ruling. “We have here a judicial finding that this once proud city cannot pay its debts. At the same time, it has an opportunity for a fresh start. I hope that everybody associated with the city will recognize that opportunity.”

Rhodes — in a surprise decision this morning — also said he’ll allow pension cuts in Detroit's bankruptcy. Rhodes emphasized that he won’t necessarily agree to pension cuts in the city’s final reorganization plan unless the entire plan is fair and equitable.

“Resolving this issue now will likely expedite the resolution of this bankruptcy case,” he said. . . .

In October 2013, the Federalist Society hosted a panel on "Municipal Bankruptcy and Pension Reform: A Way Out?" It featured:

  •     Prof Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  •     Prof. David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School
  •     Moderator: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

You can watch a video of the event here.

Notre Dame Re-Files Suit Against HHS Mandate


by Publius
Posted December 03, 2013, 10:14 AM

Michael Sean Winters comments in the National Catholic Register:

This morning, the University of Notre Dame will re-file its lawsuit against Kathleen Sebelius, Secretary of the Department of Health and Human Services, regarding the administration’s controversial contraception mandate. Notre Dame originally filed suit last year, but the suit was dismissed in January, 2013 because the mandate had not yet taken effect. It is scheduled to take effect January 1, 2014.

If the University of Notre Dame is not a ministry of the Catholic Church, what is it? This is the question the Obama administration has been unable or unwilling to answer the past couple of years in the seemingly endless back-and-forth over the HHS mandate. U.S. laws have long recognized a “ministerial exemption” to the application of its laws. For example, the Civil Rights Act of 1964 exempted religious institutions from its requirements. And, in January, 2012, the U.S. Supreme Court upheld the ministerial exemption in a unanimous 8-0 vote in the case Hosanna-Tabor v. EEOC. 

In its filing, Notre Dame makes clear that the core issue is whether or not government can or should be so entangled with religious institutions that, no matter its objectives in terms of public policy, it places those institutions in compromising situations. The complaint, filed in the U.S. District Court for Northern Indiana states:

This lawsuit is about one of America’s most cherished freedoms: the freedom to practice one’s religion without government interference. It is not about whether people have a right to abortion-inducing drugs, sterilization, and contraception. Those services are, and will continue to be, freely available in the United States, and nothing prevents the Government itself from making them more widely available. But the right to such services does not authorize the Government to force the University of Notre Dame (“Notre Dame”) to pay for, facilitate access to, and/or become entangled in the provision of products, services, practices, and speech that are contrary to its sincerely held religious beliefs. It does not authorize the Government to coerce Notre Dame to participate in a program whose central financial premise—“cost neutrality” through reductions in the number of childbirths—is antithetical to Notre Dame’s faith. Finally, it does not authorize the Government to require Notre Dame to facilitate and appear to endorse practices that Catholic doctrine considers morally wrong.

This is not about Taco Bell or Hobby Lobby, which may be led by people with deep religious convictions, but which are obviously not ministries. This is about a Catholic university that is permeated from top-to-bottom by its religious mission, despite what you might have heard about Notre Dame from its critics at the unfortunately named Cardinal Newman Society. . . .

In November 2013, at the Federalist Society's National Lawyers Convention, Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit moderated a panel on Religious Liberties: Religious Liberty & Conflicting Moral Visions. Participating were:

  •     Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
  •     Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
  •     Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
  •     Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law

You can watch a video of the event here.

1993 Religious Freedom Act Is at Heart of Contraception Case


by Publius
Posted November 25, 2013, 3:31 PM

According to the Los Angeles Times:

When the Supreme Court confronted the case of Native Americans who were fired for smoking an illegal drug during a religious ceremony, Justice Antonin Scalia called a halt to granting religious exemptions under the Constitution's protection for the "free exercise" of religion. It "would be courting anarchy" to permit "religious objectors" to ignore the law, he said.

But Democrats in Congress rose up to overturn his decision and to bolster religious freedom.

Backed by a broad coalition, including the American Civil Liberties Union and the Christian Legal Society, the Religious Freedom Restoration Act became law 20 years ago this month. It declared that the government may not "substantially burden a person's exercise of religion" unless it had a "compelling" reason to do so.

Now, that little-known law is at the center of a major "religious liberty" challenge to President Obama's health insurance overhaul and its requirement that employers pay for full contraceptive coverage for their female employees.

Christian employers have gone to court, citing the 1993 law and saying they have a sincere religious objection to providing "abortion causing" drugs such as the "morning after" pill. And they have won before the U.S. appeals courts in Denver and Chicago.

The appeals court judges relied on the Supreme Court's much-disputed Citizens United decision that said corporations have the same right as people to make political contributions; they concluded that "for-profit corporations" can be considered "persons" with religious beliefs.

"We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression," the 10th Circuit said in ruling for Hobby Lobby Inc., a nationwide chain of more than 500 crafts stores with 13,000 full-time employees. The company is owned by the Green family of Oklahoma City.

Obama administration lawyers appealed the Hobby Lobby case to the Supreme Court, calling the decision incorrect and unwise. The justices are likely to hear the case and may announce their decision to do so as soon as Tuesday.

"We are at a scary moment in our history if they say there is a constitutional right to shape benefits based on the religious beliefs of the owners," said Marci Hamilton, a Benjamin N. Cardozo School of Law professor and a critic of the religious freedom law. "Why isn't this discrimination against women based on gender and religion?"

If so, it will put a new spotlight on an old and recurring question: When and under what circumstances can people cite their religious beliefs to avoid complying with the law? And thanks to the 1993 law, it will give the court's conservatives, including Scalia, a chance to deal a blow to Obama's healthcare law. . . .

In November 2013, at the Federalist Society's National Lawyers Convention, Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit moderated a panel on Religious Liberties: Religious Liberty & Conflicting Moral Visions. Participating were:

  • Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty
  • Prof. William A. Galston, Ezra Zilkha Chair, Governance Studies Program, The Brookings Institution
  • Prof. Robert P. George, McCormick Professor of Jurisprudence and Director, James Madison Program in American Ideals and Institutions Department of Politics, Princeton
  • Prof. Andrew M. Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law

You can watch a video of the event here.


Wisconsin Gov. Scott Walker Jokes About Appointing Judge Diane Sykes to U.S. Supreme Court


by Publius
Posted November 21, 2013, 6:01 PM

Daniel Bice reports for the Milwaukee Journal-Sentinel:

Gov. Scott Walker has spent the bulk of his book tour outlining a platform for a possible presidential bid in 2016 -- all the while gently dismissing any suggestion he is planning to run.

But Walker didn't mind joking about the possibility.

Speaking before the Federalist Society's 2013 National Lawyers Convention in Washington, D.C., Walker noted the presence of U.S. Court of Appeals Judge Diane Sykes at the event.

The first-term Republican governor pointed out that as a state lawmaker, he had supported Sykes' appointment to the state Supreme Court in 1999. Sykes garnered national attention for tossing softballs to U.S. Supreme Court Justice Clarence Thomas during an interview at the group's gala dinner last Thursday.

"Diane Sykes is here as well -- one of our favorite jurists," Walker said Friday at the Mayflower Hotel.

"If I ever got the chance to appoint you to something in the future, I'd be inclined to do that," he joked before being interrupted with laughter and then applause. "The rest of my staff just wilted with that comment."

Among others attending Walker's speech at the conservative legal group's convention were Milwaukee County Circuit Judge Rebecca Bradley; his chief legal counsel, Brian Hagedorn; and Andrew Hitt, assistant deputy secretary at the state Department of Administration.

Walker talks about Sykes at the six-minute mark of the video.

Recapping the Federalist Society’s 2013 National Lawyers Convention


by Publius
Posted November 21, 2013, 3:02 PM

Asheesh Agarwal comments at Liberty Fund's Liberty Law blog:

This year’s Federalist Society convention had it all. Prospective presidential candidates. Potential Supreme Court nominees. Lively debates on issues ranging from the proper role of federalism to the impact of the Obama Administration’s regulatory agenda. Throughout the convention, many speakers, of all ideological stripes, agreed that the Obama Administration has taken a very expansive view of executive and agency power.

One of the first prominent speakers, Senator Ted Cruz, discussed the Administration’s track record in the Supreme Court on the scope of executive power. A former law clerk to Chief Justice William Rehnquist and longtime member of the Federalist Society, Cruz highlighted nine cases in which the Administration unsuccessfully sought to expand the scope of executive power. In those nine cases, the Administration’s position lost unanimously, failing even to garner the votes of either of President Obama’s own nominees, Justices Kagan and Sotomayor. For instance, in United States v. Jones, the Administration sought to place a GPS tracking device on a suspected drug dealer’s car — without a warrant. In Sackett v. EPA, the Administration sought to deprive landowners of the right to challenge potential government fines as high as $75,000 per day. According to Cruz, these unanimous losses demonstrate that the Obama Administration has taken an overly aggressive view of executive and federal power. Cruz, who received a standing ovation, interspersed history and humor throughout his speech, sharing anecdotes about his time at the Supreme Court.

Another prospective presidential candidate, Wisconsin Governor Scott Walker, also received a warm reception. Coyly alluding to his presidential prospects, Walker praised current Seventh Circuit Judge Diana Sykes (who formerly sat on Wisconsin’s Supreme Court), and stated that he “would welcome the opportunity to appoint her to something else.” After describing Wisconsin’s many recount battles and legislative dramas, Walker devoted much of his talk to the judiciary. He explained both the process and criteria he used to select judges in Wisconsin. Walker tasked a panel of experts, headed by a prominent member of the Federalist Society, to create a list of judicial candidates who would satisfy three criteria: integrity, exceptional ability, and perhaps most importantly, an understanding of the proper role of the judiciary. Walker noted that, unlike some of his predecessors, he did not place the highest value on a prospective judge’s electability.

Justice Clarence Thomas provided the highlight of the convention. Speaking with Judge Sykes during an informal interview, Justice Thomas described his life and career in personal, sometimes moving terms. He discussed his early life in Savannah and initial desire to enter the seminary, his battles with racism, and struggles finding work after graduating law school from Yale. He heaped praise on his many friends and mentors, particularly Senator Danforth and Justice Scalia, while sadly stating that he felt like his alma mater had abandoned him. He touched only briefly on his judicial philosophy. He noted that his colleagues encourage him to write what he thinks, even if they disagree with him. He stated that he respects the principle of stare decisis, but “not enough to keep me from going to the Constitution” (this line received standing applause). Mostly, Thomas described his happiness with his job and his colleagues. If he harbors any bitterness from his contentious confirmation fight, or anything else, he showed no signs of it.

Tenth Circuit Judge Neil Gorsuch delivered the Barbara Olson memorial lecture. In a thoughtful, amusing address, Gorsuch analyzed the state of the legal profession and the practice of law. Quoting Bleak House, he expressed concern for the time and expense involved in discovery, especially e-discovery. He worried that the trend toward private mediation may deprive businesses of valuable precedents, and more generally, that the trend may show that the court system no longer works efficiently.

In addition to the big speeches, the convention also featured panel discussions on a range of interesting topics. . . .

You can videos of the entire convention here.




Originally Speaking Debate Archive

Blog Roll