FedSoc Blog

New Engage Article: Michael McConnell on Sebelius v. Hobby Lobby Stores, Inc.

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by Publius
Posted April 16, 2014, 9:50 AM

Last week, our law journal Engage published an essay by Stanford Law Professor and former Tenth Circuit Judge Michael W. McConnell on the oral arguments in Sebelius v. Hobby Lobby Stores, Inc. Prof. McConnell said there are four major legal questions for the court to decide:

  1. Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
  2. Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
  3. Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
  4. Has the government satisfied the least restrictive means test?

He then argued that the answer to all four questions is "no." Read his full article here.

Coming Soon: Supreme Court Ruling on Michigan’s Affirmative Action Ban in College Admissions

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by Publius
Posted April 01, 2014, 9:24 AM

The Ann Arbor News reports:

The U.S. Supreme Court decision on whether or not to uphold Michigan's controversial voter-approved ban on affirmative action in public university admissions is due any day now.

The court heard arguments on Schuette v. Coalition to Defend Affirmative Action on Oct. 15, 2013, and is expected to release an opinion anytime between now and the end of June.

"It wouldn’t be amazing if it happened Monday. It wouldn’t be amazing if it happened at the end of June, or any of those days in between," said U-M Law Professor Richard Friedman. "It's very hard to know."

The case looks at a 2006 ballot initiative passed by Michigan voters that amended the state constitution to prohibit government units from considering race in admissions and hiring.

Proponents of affirmative action, led by By Any Means Necessary and the American Civil Liberties Union, say the college admissions portion of the ban violates the equal protection clause of the 14th amendment of the U.S. Constitution by making it too difficult for students to lobby university governing boards to consider race in admissions, because doing so would require amending the state constitution.

Proponents of the ban, called Prop 2, including Michigan attorney general Bill Schuette, say the measure passed with support from 58 percent of Michigan voters and the court should uphold the will of the people.

University of Michigan used affirmative action before the ban was in place — even defending its use of race in admissions twice before the Supreme Court in the early 2000s — and will be eying the Supreme Court's decision.

"It's one that we will continue to watch very carefully," spokesman Rick Fitzgerald said of the case.

If the Supreme Court were to uphold the ban, it would preserve the status quo. U-M hasn't used affirmative action since the Prop 2 was passed in 2006. If the court were to strike down the ban — which many who watch the court say is not likely — Michigan could revisit its admissions practices and once again consider race in admissions.

"It would be a positive thing for all of the schools in the state" if the ban was struck down, U-M admissions director Ted Spencer said in an February interview. "You never know. You never know... I'm still being a little optimistic."

Minority students at the school have spent the last year rallying against a lack of racial diversity on the Ann Arbor campus.

Blacks comprise 4.6 percent of undergraduates this year, down from 8.9 percent in 1995 and 7 percent in 2006. In response, the school has promised to put more resources toward promoting diversity on campus. . . .

In October 2013, Engage: The Journal of the Federalist Society's Practice Group, published an article by Gail Heriot titled "The Parade of Horribles Lives: Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary."

Major FDA Food Policy Developments: From Trans Fat to Menu Labeling

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by Publius
Posted March 20, 2014, 1:14 PM

Daren Bakst, Research Fellow at the Heritage Foundation, reports at the Federalist Society's Executive Branch Review:

The Food and Drug Administration (FDA) has been in the spotlight for some of its recent regulatory efforts regarding nutrition.

Trans Fat

The FDA has taken the first step to effectively ban trans fat from processed foods.  In November 2013, the FDA issued a tentative determination that partially hydrogenated oils, which are the major dietary source of trans fat in processed food, are not “generally recognized as safe” (GRAS). According to the FDA, “If FDA determines that [partially hydrogenated oils] are not GRAS, it could, in effect, mean the end of artificial, industrially-produced trans fat in foods, says Dennis M. Keefe, Ph.D., director of FDA’s Office of Food Additive Safety.”

This FDA effort would be unprecedented.  Instead of protecting the public from unsafe foods, the agency would now be focusing on nutritionally “unhealthy” foods.  This is a move that some applaud due to public health concerns.

However, this effort will likely be just the start of what could be an attack on dietary decisions.  In fact, even supporters of the FDA’s trans fat effort envision this action as a prelude to going after sodium, sugar, and other ingredients.

Menu Labeling Rule

The Affordable Care Act requires restaurants and similar retail food establishments that are part of a chain with 20 or more locations to provide caloric and other nutritional information to customers on standard menu items.

The FDA, in its April 2011 proposed rule, broadly defines “similar retail food establishments” to include grocery stores and convenience stores.  The interpretation is effectively reading out the word “similar” by deeming grocery and convenience stores to be similar to restaurants.  Even if the only processed and prepared food available at a grocery store is at a deli counter that accounts for one percent of the store’s floor space, the FDA would still impose the menu labeling requirements on that store.

The FDA estimates that first-year compliance costs could be as high as $537 million for all regulated businesses covered under the rule, with recurring costs of as much as $64 million annually.  This is in stark contrast to an industry estimate for supermarkets alone.  According to this estimate, the rule could cost more than $1 billion in the first year, with recurring annual costs in the hundreds of millions.

More to Come

In late February of this year, the FDA published proposed changes to the nutrition labeling requirements for packaged goods.  The FDA’s Center for Food Safety and Applied Nutrition’s 2013-2014 Plan lists many nutrition and dietary objectives, including efforts to reduce sodium added to foods:

  • “Advance plan for promoting broad, gradual reduction of added sodium in the food supply”;

  • “Complete a plan for implementation in 2015 to promote broad, gradual reduction of added sodium in the food supply.”

Whether these objectives translate into mandatory sodium restrictions is unclear.  Regardless, the FDA appears to be taking a more aggressive approach to regulating food by trying to influence and direct the dietary choices of Americans.

 

Tennessee Special High Court Upholds Constitutionality of State’s Appellate Judge Election Process

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by Publius
Posted March 18, 2014, 4:37 PM

The Chattanoogan reports:

 A five-member Special Supreme Court convened solely to hear a lawsuit challenging the constitutionality of the way appellate judges are initially chosen and later stand for reelection to office ruled on Monday, that the current retention election system for choosing appellate judges does not violate the state’s Constitution.

The court also held that the issue raised in the lawsuit regarding how appellate judges are initially selected could not be decided as part of this proceeding, because the statutory authority for that initial judicial selection process – the Judicial Nominating Commission – expired in June 2013. Since the Judicial Nominating Commission is no longer the law of this state, there is no longer a real, live issue for the court to decide.

Also challenged in the suit was statewide voting for the judges of the Court of Appeals and the Court of Criminal Appeals. The appeal asserted that the state “Constitution requires that these judges be elected by the qualified voters of the District in which they reside, and to which they are assigned.” The court held that the judges of these intermediate appellate courts are not assigned to any one district and that each of these courts serves the entire state and, therefore, statewide elections are constitutionally appropriate.

The lawsuit, filed in 2012 by John Jay Hooker of Nashville, challenged the “Tennessee Plan,” specifically the authority of Gov. Bill Haslam to appoint Jeffrey S. Bivins to the Court of Criminal Appeals, maintaining that it violated the Tennessee Constitution. A Davidson County trial court found the process for selecting and voting for appellate judges to be constitutional, but held that district, rather than statewide, elections were required by the Constitution. The Court of Appeals reversed the trial court’s decision as to voting by district, determining instead that statewide elections were proper, but upheld the trial court in all other respects. . . .

For information on how judges are selected state-by-state, see the Federalist Society's State Courts Guide.

George W. Dent: Toward Improved Intellectual Diversity in Law Schools

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by Publius
Posted February 19, 2014, 11:06 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including George W. Dent, Jr., professor at Case Western Reserve University School of Law. In a paper (PDF here) adapted from his presentation, Dent writes:

The organizers and supporters of the conference on “Intellectual Diversity and the Legal Academy”—the Federalist Society,  Harvard Law School, and Milbank, Tweed, Hadley & McCloy LLP—deserve great credit. Law school faculties tilt heavily to the political left, and there is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This is a serious problem for students, who do not get the full range of views in important current debates. The problem is of special concern because advocates must understand the positions of their opponents, beginning with their fundamental premises.

Some participants in the Harvard Federalist Society’s conference argued that the views of the instructor are unimportant because good teachers explain both sides of each case. No doubt many teachers try to do so, but, as Professor Robert George has observed, opponents usually cannot justify a viewpoint as well as its supporters can. Moreover, the experience of students suggests that many instructors do not even try to give both sides. Many students say that they rarely hear conservative or libertarian viewpoints from their instructors and that, indeed, those viewpoints are often ridiculed in class.

The ideological imbalance of law faculties is also a problem for legal education and legal scholarship. Our adversarial judicial system is built on the premise that the truth is best discovered through a structured contest between parties to a dispute, and the free speech commitment of the First Amendment rests in part on the belief that the truth best emerges through competition in the marketplace of ideas. In law faculties, however, views are largely limited to a fairly narrow range on the left of our national political spectrum. The ideological imbalance produces a kind of partisan chain reaction or echo chamber. . . .

Can California Public-Employee Pensions Be Reformed?

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by Publius
Posted February 11, 2014, 5:05 PM

PublicCEO reports:

Almost everyone acknowledges that California’s public pension system needs reform. Gov. Jerry Brown brought up reform in his his Jan. 2014 budget proposal for fiscal year 2014-15, which begins on July 1:

“Future liabilities — to schools, public employees’ pensions and retirement health benefits, infrastructure debt, deferred maintenance, and unemployment insurance — total $355 billion. These liabilities were built up over decades, and likewise, it will take decades to pay them off.”

Now, a new view on fixing the pensions comes from Alexander “Sasha” Volokh, a professor at the Emory University Law School in Atlanta.

Volokh has been writing a series of “white papers” for the Federalist Society on public pension and public employee compensation (see here and here).  The Federalist Society is a group of conservatives and libertarians that favors decentralized government and local control.

In his recent white paper, “Can We Fix the ‘California Rule’ for Public Employee Pensions?” he moves from descriptions to prescriptions for fixing the state’s perpetual deficit spending on pensions.

California rule

Volokh defines the “California Rule” as:

“[The] constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed.” (emphasis in original)

A problem Volokh identifies is that public employees and retirees consider their pensions to be a form of private property guaranteed by the taxpayers not only for today, but tomorrow. That is, if the pension payouts are raised, they never can be cut. And if taxes are needed to be raised to continue the payouts, then so be it. As he wrote:

"n California (and some other states), the courts give constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed. I argue that protecting pensions accrued based on past work is reasonable; protecting the current rules into the future is far less so.”

A proposal is one thing. But do such reforms stand a chance in a state where the unions hold so much clout?

Fixes

First, Volokh rules out some fixes, such as local emergency reforms to resolve a fiscal crisis or looking to the U.S. Supreme Court for relief.

But here are the fixes Volokh considers possible:

1.  A flexible definition of benefits.  Volokh believes that pensions can be modified based on “actuarial advice” as provided in the legal case of International Association of Firefighters vs. City of San Diego in 1983. This would get around the current problem of pensions being considered inflexible and inviolate.

2. Short-Term Contracts.  Instead of a life-long, lease-like pension, Volokh proposes short-term employment contracts. “If pension terms are enshrined in memoranda of understanding … that expire at a certain time, it seems hard to argue that the employees have acquired any vested right to compensation, benefits, pensions, or anything else beyond the term provided.” This would be difficult to get by unions unless their power is reduced.

3. State Constitutional Amendment.  Volokh brings up San Jose Mayor Chuck Reed’s Pension Reform Act of 2014, which could be on the November ballot.

Volokh acknowledges that, even if passed, the reform would only apply to employees hired after passage.  The prospects for passage of such an amendment may partially hang on State Attorney General Kamela Harris’ ballot argument, which was called biased not only by conservatives, but even by the left-leaning editorial page of the Los Angeles Times. The courts will decide the initiative’s final wording. But the San Jose Mercury News wrote that Harris’ tactics may be a way to stall the initiative  so it can’t gain enough signatures to appear on the ballot this year.

4. Changing State Case Law By Stacking the State Supreme Court. How this would ever happen in these times of Democratic dominance in the state is a good question. Democrats backed by unions likely will win future elections for the post of governor, who appoints court justices, and the members of the state Senate, which confirms the justices.

However, Supreme Court justices also have to be confirmed by state voters. And in 1986, voters removed from the court three justices, including Chief Justice Rose Bird, for refusing to allow executions under the state death penalty. So justices that rule against pension reform might be vulnerable.

5. Privatization. Volokh writes that “firing state employees is constitutional and providing pensions and retirement plans for the contractors’ employees will be left to the private employers.” The problem, again, is whether union power would allow this.

6. Defined Contribution Plans. Volokh proposes switching from a defined (assured) benefit plan to a defined contribution plan.  The California Rule on pensions does not protect contributions by government employers, only the benefits.

Crisis

Another trump card for Volokh, Reed and other reformers is that California’s pension crisis isn’t going away. The recent bankruptcies of the cities of Stockton, San Bernardino and Vallejo all were caused at least in part by an inability to meet hefty pension obligations.

Union power also may have peaked, as shown by the dissatisfaction even many progressives showed last year when union workers twice went on strike and shut down the Bay Area Rapid Transit system. As the U-T San Diego noted:

“Even in the strongly Democratic Bay Area, residents have very little sympathy for BART workers. In August, Sen. Mark DeSaulnier, D-Concord, said he was considering legislation that would deny transit workers the right to strike, which is the norm in most large U.S. metropolitan areas.

If pension costs rise even higher and threaten bankruptcy for more California cities, some of Volokh’s “fixes” could start popping up as potential solutions.

Michael Stokes Paulsen: The Uneasy Case for Intellectual Diversity in Legal Academia

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by Publius
Posted February 11, 2014, 10:56 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including Michael Stokes Paulsen, Distinguished University Chair and Professor at the University of St. Thomas School of Law. In a paper (PDF here) adapted from his presentation, Paulsen writes:

Might I suggest that intellectual diversity in legal academia is an overrated commodity? That it is overvalued in theory as well as undervalued in practice? Might I suggest that the value of intellectual diversity is distinctly secondary and instrumental? That intellectual rigor and quality, and the search for intellectual “Truth,” (with a capital T) are the true prime values, and that these values are not necessarily furthered by the quest for “diverse views,” simpliciter, but flow more reliably from other academic values, virtues, and attributes? And that the primary value of the argument for intellectual diversity, today, is that it serves as a good and effective rhetorical trope with which to bludgeon the currently entrenched Illiberal Academic Orthodox Establishment in the terms of a value they pretend to embrace?

NLRB Proposes Rule to Streamline and Speed Union-Organizing Elections

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by Publius
Posted February 05, 2014, 7:12 PM

The Wall Street Journal reports:

The National Labor Relations Board Wednesday revived a sweeping proposed rule that would streamline and speed union-organizing elections at private-sector companies, positioning the federal agency for a fight with business groups that had opposed the failed measure in 2011.

The NLRB said the proposal is aimed at modernizing the election process, increasing transparency, becoming more efficient and reducing unnecessary litigation and delay. The rule would usher in some of the biggest procedural changes for union-organizing elections in decades, and would mark a victory for unions that often complain it takes too long to schedule a vote.

The changes would delay employers' ability to complete legal challenges that can drag out the process of voting to unionize. Unions contend this would eliminate employer litigation used to stall the election process, but business groups say it would limit employers' ability to launch timely challenges and counter union-organizing campaigns.

The changes would also require employers to provide the union with email addresses of employees who would be eligible to vote, and would allow for electronic filing of election materials—two hot-button issues that business representatives have strongly opposed.

The proposal drew quick praise from unions and criticism from business groups and Republicans.

"We applaud the National Labor Relations Board for proposing these common-sense rules to reduce delay in the NLRB election process," Richard Trumka, president of union federation AFL-CIO, said in a statement. "When workers petition for an NLRB election, they should receive a timely opportunity to vote."

Geoff Burr, vice president of government affairs for the Associated Builders and Contractors trade group, saw it differently. "This proposal is a solution in search of a problem," he said. "Shortening the election period does nothing to ensure a fairer election…In addition, it denies employers their rights to free speech and employees the opportunity to make a fully informed decision."

Some legal experts have said the proposed changes would compress the time between when workers file a petition with the NLRB to hold an election and when the actual voting occurs, shrinking that period to 25 days or fewer—nearly two weeks less than last year's median of 38 days. In contested cases, the median was 59 days.

Unions appear to have a good chance of seeing the rule implemented. The proposal got the solid backing of the board's three Democrats. But the two Republican members dissented, underscoring the partisan divide at a labor agency that has become a symbol of political clashes over workplace regulation and unionization.

Last year, unions represented 11.3% of U.S. workers, down from about 20% in 1983. For years, unions have blamed some of that slide on the lengthy unionization process they say allows employers to wage counter-campaigns that can include threats and other forms of intimidation.

NLRB Chairman Mark Pearce, a Democrat and the only current board member who was installed when the measure was first proposed in 2011, suggested Wednesday that the board's Republicans are open to discussing ways to improve the process of union elections.

"The board is unanimous in its support for effective representation case procedures," Mr. Pearce said in a written statement. "I am pleased that all members share a commitment to constructive dialogue, and we agree that important issues are involved in this proposed rule making," he said. . . .

The October 2012 edition of Engage: The Journal of the Federalist Society's Practice Groups featured the paper "Union Organizing and the NLRB Under President Obama" by Raymond J. LaJeunesse. You can read it here.

Now Online: FedSoc State Court Docket Watch Winter 2013-2014

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by Publius
Posted February 03, 2014, 1:11 PM

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. Here is the table of content for the Winter 2013-2014 edition:

New Mexico Supreme Court: Wedding Photographer May Not Decline Business from Same-Sex Couple’s Commitment Ceremony By Jordan Lorence

Illinois Supreme Court Ruling Explores Scope of Second Amendment By Tara A. Fumerton

Florida Supreme Court Finds That the Sixth Amendment Right to Counsel Allows Withdrawal of Public Defenders from Criminal Cases By Caroline Johnson Levine

New Jersey Supreme Court Strikes Down Reorganization of the Council on Affordable Housing By Alida Kass

Maryland Court of Appeals Limits Asbestos Liability By Michael J. Ellis

Washington Supreme Court Addresses Constitutionality of Water Pollution Control Mandate By Seth L. Cooper

*LITIGATION UPDATE*: Washington By Seth L. Cooper

Announcing the Launch of the Richard Epstein University

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by
Posted February 03, 2014, 11:15 AM

According to the new "Epstein University" website:

Epstein University is a complete education in classical liberal theory by its greatest expositor, Richard Epstein. Its format is a series of audio recordings culled from videos and podcasts freely available online. They focus on the key concepts that are essential to understanding the Epsteinian approach to the social sciences.

Fans of Milton Friedman, Hayek, and the like will find that Epstein fine-tunes familiar ideas to perfection. If this is your first exposure to classical liberal ideas, expect to be challenged by the most rigorous version of arguments that are far from the mainstream.

This project is organized by Epstein fans who found each other through the Richard Epstein fan site. We are not associated with Mr. Epstein, and he would probably be embarrassed to learn that he has a fan site. Our mission is to promote Epstein's work as an authority, a kind of OED for high-end "right wing" political theory that works out the most difficult questions with unmatched precision.

Epstein speaks quickly, so pay close attention and rewind frequently. We encourage you to share your thoughts and questions by commenting on the posts, but no trolling, please. These sections are only an introduction to Richard Epstein and are by no means comprehensive. We hope that they will inspire you to explore the inexhaustible genius of the world's greatest thinker.

Here are some of Epstein's recent collaborations with the Federalist Society:

Marvin M. Brandt Revocable Trust v. United States Post-Argument SCOTUScast
SCOTUScast 1-22-14 featuring Richard Epstein
January 22, 2014

 

Patent Re-Reform in Congress - Podcast
Intellectual Property Practice Group Podcast
November 21, 2013
 
Intellectual Property, Free Markets and Competition Policy - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013
 
Showcase Panel I: Textualism and the Bill of Rights - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013

Executive Branch Review: The State of the Union and Environmental Policy

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by Publius
Posted January 30, 2014, 10:40 AM

Mart Rutzick comments at the Federalist Society's Executive Branch Review blog:

Presidents use their State of the Union address to present their priorities and goals for the coming year.  President Obama’s speech Tuesday night did exactly that, which means that to understand the President’s priorities and goals for 2014 we have to look at what he said, and also what he did not say.  Among the President’s most noteworthy omissions from his 2014 objectives was the virtual absence of any initiatives on environmental issues.

Only one “environmental” issue made the cut, and that was climate change, which in its present incarnation is more of an energy issue than a traditional environmental issue.  Even on that issue, environmental groups were quick to respond to the SOTU speech by denouncing the President’s climate change agenda.  Their reason is that while urging movement on climate change, the President also reaffirmed his “all-of-the-above” energy policy, including fossil fuels, which he first presented in 2010.  Environmental advocates jumped on that policy, heatedly arguing that effective action on climate change demands an end to the consumption of fossil fuel in the United States.  Thus, environmentalists appear to view the Obama SOTU speech as a net loser for their interests.

One could postulate several possible reasons to explain the absence of environmental issues from the President’s 2014 agenda:  the environment is perfect and needs no further improvement; the President understands that environmental regulation can kill jobs, and he does not wish to undermine the weak economic recovery with additional environmental burdens; the President has little personal interest in environmental issues; environmental issues do not currently resonate with voters, and there is little chance for political gain through environmental initiatives; or the President believes all environmental policies must be established by Congress through legislation, and he sees no prospect for Congressional movement on any environmental issue in 2014.

But maybe there is another:  perhaps the President knows that environmental issues appeal only to a small swath of voters,  he understands those voters put environmental issues over almost everything else; and he knows that he can satisfy that constituency by taking “beneath-the-radar” administrative actions that the public will never notice.  Avoiding environmental issues in his SOTU speech may help him to deflect public scrutiny over forthcoming environmental actions that could be fatal to those actions in the political sphere.

Here are some of the potentially job-destroying executive actions the President’s administration might take in 2014 to appeal to his environmental constituency:

1.  The Environmental Protection Agency (EPA) may complete its rulemaking to effectively ban new fossil-fuel power plants.

2.  The Bureau of Land Management and U.S. Forest Service could further tighten restrictions on economic uses of public lands in western states, where hundreds of small rural communities depend on mining, grazing and forestry on those lands.

3.  Federal land management agencies (BLM, Forest Service, U.S. Fish and Wildlife Service, Park Service) could create new de facto “wilderness” areas on public land, a status requiring Congressional approval, by prohibiting all activity within those areas.

4.  The Fish and Wildlife Service is likely to add new species, subspecies and “distinct population segments” of species to the Endangered Species Act’s threatened and endangered lists, enabling more and more federal regulation of private business through the ESA “consultation” procedures.

5.  The EPA and the National Marine Fisheries Service could ban or restrict  agricultural use of pesticides through “re-registration” of those pesticides, prohibiting their use near fish-bearing streams.

 

6.  The U.S. Army Corps of Engineers may continue to expand its Clean Water Act jurisdiction to lands far removed from navigable waters of the U.S., and to further restrict development in those areas.

7.  Fish and Wildlife and the Marine Fisheries Service will continue to establish legally-protected “critical habitat” on public and private land, sometimes more than one million acres in size, to help recover a single ESA-listed species, and they could hide the impacts of their decisions by officially ignoring the costs of the action while assigning phantom economic value to the non-use of the designated areas.

8.  The President could make new national monument designations under the 1905 Monuments Act, effectively transforming economically-valuable multiple-use public lands into non-productive parklands.

All of these actions (except possibly the EPA fossil-fuel power plant rule) will likely occur without any public announcement, little notice by Congress, and no serious attention by the mainstream, bi-coastal media.  Yet President Obama’s environmental constituency will certainly take favorable note of these decisions (even if they maintain “radio-silence”).  The President would thus be able to score big points with that group of his supporters, while avoiding any political or media scrutiny of his decisions.  So maybe the omission of environmental issues from the SOTU speech is an omen of pro-environmental executive actions to come during 2014.

- See more at: http://www.executivebranchproject.com/the-state-of-the-unions-environment/#sthash.fZnw40o9.dpuf

Presidents use their State of the Union address to present their priorities and goals for the coming year.  President Obama’s speech Tuesday night did exactly that, which means that to understand the President’s priorities and goals for 2014 we have to look at what he said, and also what he did not say.  Among the President’s most noteworthy omissions from his 2014 objectives was the virtual absence of any initiatives on environmental issues.

Only one “environmental” issue made the cut, and that was climate change, which in its present incarnation is more of an energy issue than a traditional environmental issue.  Even on that issue, environmental groups were quick to respond to the SOTU speech by denouncing the President’s climate change agenda.  Their reason is that while urging movement on climate change, the President also reaffirmed his “all-of-the-above” energy policy, including fossil fuels, which he first presented in 2010.  Environmental advocates jumped on that policy, heatedly arguing that effective action on climate change demands an end to the consumption of fossil fuel in the United States.  Thus, environmentalists appear to view the Obama SOTU speech as a net loser for their interests.

One could postulate several possible reasons to explain the absence of environmental issues from the President’s 2014 agenda:  the environment is perfect and needs no further improvement; the President understands that environmental regulation can kill jobs, and he does not wish to undermine the weak economic recovery with additional environmental burdens; the President has little personal interest in environmental issues; environmental issues do not currently resonate with voters, and there is little chance for political gain through environmental initiatives; or the President believes all environmental policies must be established by Congress through legislation, and he sees no prospect for Congressional movement on any environmental issue in 2014.

But maybe there is another:  perhaps the President knows that environmental issues appeal only to a small swath of voters,  he understands those voters put environmental issues over almost everything else; and he knows that he can satisfy that constituency by taking “beneath-the-radar” administrative actions that the public will never notice.  Avoiding environmental issues in his SOTU speech may help him to deflect public scrutiny over forthcoming environmental actions that could be fatal to those actions in the political sphere.

Here are some of the potentially job-destroying executive actions the President’s administration might take in 2014 to appeal to his environmental constituency:

1.  The Environmental Protection Agency (EPA) may complete its rulemaking to effectively ban new fossil-fuel power plants.

2.  The Bureau of Land Management and U.S. Forest Service could further tighten restrictions on economic uses of public lands in western states, where hundreds of small rural communities depend on mining, grazing and forestry on those lands.

3.  Federal land management agencies (BLM, Forest Service, U.S. Fish and Wildlife Service, Park Service) could create new de facto “wilderness” areas on public land, a status requiring Congressional approval, by prohibiting all activity within those areas.

4.  The Fish and Wildlife Service is likely to add new species, subspecies and “distinct population segments” of species to the Endangered Species Act’s threatened and endangered lists, enabling more and more federal regulation of private business through the ESA “consultation” procedures.

5.  The EPA and the National Marine Fisheries Service could ban or restrict  agricultural use of pesticides through “re-registration” of those pesticides, prohibiting their use near fish-bearing streams.

6.  The U.S. Army Corps of Engineers may continue to expand its Clean Water Act jurisdiction to lands far removed from navigable waters of the U.S., and to further restrict development in those areas.

7.  Fish and Wildlife and the Marine Fisheries Service will continue to establish legally-protected “critical habitat” on public and private land, sometimes more than one million acres in size, to help recover a single ESA-listed species, and they could hide the impacts of their decisions by officially ignoring the costs of the action while assigning phantom economic value to the non-use of the designated areas.

8.  The President could make new national monument designations under the 1905 Monuments Act, effectively transforming economically-valuable multiple-use public lands into non-productive parklands.

All of these actions (except possibly the EPA fossil-fuel power plant rule) will likely occur without any public announcement, little notice by Congress, and no serious attention by the mainstream, bi-coastal media.  Yet President Obama’s environmental constituency will certainly take favorable note of these decisions (even if they maintain “radio-silence”).  The President would thus be able to score big points with that group of his supporters, while avoiding any political or media scrutiny of his decisions.  So maybe the omission of environmental issues from the SOTU speech is an omen of pro-environmental executive actions to come during 2014.

 

 

DOJ to Prohibit Profiling Based on Religion, National Origin, and Gender in Federal Investigations

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by Publius
Posted January 16, 2014, 11:22 AM

The New York Times reports:

The Justice Department will significantly expand its definition of racial profiling to prohibit federal agents from considering religion, national origin, gender and sexual orientation in their investigations, a government official said Wednesday.

The move addresses a decade of criticism from civil rights groups that say federal authorities have in particular singled out Muslims in counterterrorism investigations and Latinos for immigration investigations.

The Bush administration banned profiling in 2003, but with two caveats: It did not apply to national security cases, and it covered only race, not religion, ancestry or other factors.

Since taking office, Attorney General Eric H. Holder Jr. has been under pressure from Democrats in Congress to eliminate those provisions. “These exceptions are a license to profile American Muslims and Hispanic-Americans,” Senator Richard J. Durbin, Democrat of Illinois, said in 2012.

President George W. Bush said in 2001 that racial profiling was wrong and promised “to end it in America.” But that was before the terrorist attacks of Sept. 11. After those attacks, federal agents arrested and detained dozens of Muslim men who had no ties to terrorism. The government also began a program known as special registration, which required tens of thousands of Arab and Muslim men to register with the authorities because of their nationalities.

“Putting an end to this practice not only comports with the Constitution, it would put real teeth to the F.B.I.’s claims that it wants better relationships with religious minorities,” said Hina Shamsi, a national security lawyer with the American Civil Liberties Union.

It is not clear whether Mr. Holder also intends to make the rules apply to national security investigations, which would further respond to complaints from Muslim groups. . . .

In 2003, the Federalist Society published an article by Roger Clegg and Keith Noreika titled "Racial Profiling, Equal Protection, and the War Against Terrorism." According to its summary:

In this paper, we hope to familiarize policymakers with how courts are likely to analyze government law-enforcement officials' use of racial and ethnic classifications in terrorism investigations. We conclude that whether a court will find equal protection concerns to be implicated at all is likely to depend on whether law-enforcement agents have an identified suspect or ring of suspects, for which race is an identifying characteristic, who are linked to a specific action that has been threatened or has occurred. As we move further away from a specific suspect committing a specific act, it is more likely that a court will find that law-enforcement officials have engaged in "racial profiling," i.e., attributing thoughts or actions to individuals based on their membership in a particular racial group, which they then may have to justify to under equal protection "strict scrutiny" analysis. In the terrorism context, the government will generally have little problem with the first, "compelling interest," prong of strict scrutiny; the issue will be whether the classification is "narrowly tailored."

En route to these conclusions, we briefly provide an overview of the relevant equal protection legal doctrine. Thereafter, we list other legal issues that may arise from law-enforcement officers' use of racial and ethnic classifications, which are not analyzed in this paper but about which the reader should be aware. Then, we note the inherent dilemma of the use of race and ethnic classifications in law enforcement: that precisely because race is an immutable characteristic, it serves as an important law-enforcement investigative tool because a suspect cannot easily change it. At the heart of this paper, we offer and then analyze several factual scenarios in the context of two opposing legal views, one for and one against application of equal protection analysis for the factual scenarios outlined.

You can read the full article here.

Who Loves a Jury? The Founders, That’s Who

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by Publius
Posted January 13, 2014, 1:24 PM

Professor David Wagner of Regent University Law School comments in the Weekly Standard:

As an institution, the jury—especially in civil cases—is having a bad run these days. Nobody likes that summons in the mail (even though clerks-of-court in the electronic era have figured out ways to make jury service less of a hassle). Experts who monitor medical-legal issues scoff at the notion that a jury, informed by a limited range of paid experts chosen for advocacy purposes, can reach a better decision on the safety of a drug or medical device than can the Food and Drug Administration; and health reform proposals, including some put forth by Republicans in their commendable efforts to repeal and replace Obamacare, contain provisions to direct health care cases away from courts with juries and towards “special tribunals.”

It seems the civil jury can’t get no respect.

Although it’s conservatives who most often make the case against civil justice excesses, the downgrading of juries in popular respect marks a huge, though almost unnoticed, divide between this generation and the Framers.

Ask most people today what is the most direct way they participate in government. They will probably say voting. And yes, the right to vote is in the constitutional text, although something of a latecomer, in various forms in the 14th, 15th, 19th, 23rd, and 26th Amendments.

But 81 years before the right to vote made its first appearance in the Constitution, the jury right in criminal cases was already included in the unamended Constitution (Article III, Section 2, paragraph 3), as it came from the Philadelphia Convention. But the convention declined to extend this right to civil cases. This alone lost the Constitution the votes of George Mason and Elbridge Gerry, and got the ball rolling on the movement for a Bill of Rights, either as a condition of ratification (constitutional opponents lost on that), or as a top item of business when the new government convened (they won on that; politicians kept promises in those days). And so a guarantee of jury trial in civil cases became the 7th Amendment.

In fact, 3 of the first 10 amendments mention juries: We have grand juries in the 5th, criminal petit juries in the 6th, and civil juries in the 7th. For comparison, the right to vote is nowhere mentioned in the Bill of Rights. A latecomer, as I said.

Perhaps, though, we shouldn’t drive too thick a wedge between jury service and voting. A jury votes, after all. Yale’s Akhil Amar, a major advocate of juries, even suggests that the Framers likened juries to a Parliament in miniature, with the jury analogized to the House of Commons, making the most important decisions, and the judge to the House of Lords, exercising a moderating but rarely reversing power. 

To whom did this “jury right” belong? The criminal suspect? The civil plaintiff and defendant? All of these—but also to the citizen who would take a turn as a juror. This was an important element of self-government. Citizens were to have a role not only in making laws (by voting for their representatives), but in enforcing and interpreting them too.

In May 2003, Mark Behren, a partner at Shook, Hardy & Bacon LLP, wrote a paper for the Federalist Society on a similar theme titled "Preserving the Right to a Representative Jury." You can read it here.

L.A. Woman Sues McDonald’s Over Hot Coffee, 20 Years After Huge Verdict

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by Publius
Posted January 10, 2014, 9:44 AM

The Los Angeles Times reports:

A woman has filed suit against McDonald’s Corp., saying she was burned by hot coffee that spilled on her at one of the fast-food chain’s Los Angeles restaurants.

The lawsuit comes 20 years after a jury awarded $2.9 million to a woman who was badly burned after she spilled hot coffee into her lap at a McDonald’s in Albuquerque. That verdict was widely criticized and became a rallying cry for advocates of legal reform.

A judge later reduced the verdict to $640,000 and the case settled out of court for an undisclosed amount.

The new case was filed by Paulette Carr, who said she was injured Jan. 12, 2012, after ordering the coffee at the drive-through window of a McDonald’s on Sepulveda Boulevard in Van Nuys. She seeks unspecified monetary damages in the lawsuit, filed Tuesday in Los Angeles County Superior Court.

“The lid for the hot coffee was negligently, carelessly and improperly placed on the coffee cup … resulting in the lid coming off the top of the coffee at the window, causing the hot coffee to spill onto the plaintiff,” Carr said in the lawsuit.

The lawsuit does not describe the severity of Carr’s injuries. Her attorney, Sheri Manning, did not respond to a request for comment. A McDonald’s spokeswoman also did not respond to a request for comment.

The 1994 verdict attracted worldwide media attention and was mocked by radio and television talk-show hosts and in one episode of the television comedy, “Seinfeld.” The verdict was also cited by proponents of tort reform.

Relatives of the woman injured in the 1992 coffee spill said the verdict was justified, noting the woman suffered third-degree burns that required skin graft surgery. They said McDonald’s directed its franchises to serve coffee at dangerously hot levels.

On September 9, 2010, the Louisiana State Student Chapter of the Federalist Society hosted a panel discussion on tort reform titled "The Law of McDonald's:
Spilled Coffee, Obesity Laws, and Prank Phone Calls
." Participating were:

  • Prof. William R. Corbett, Louisiana State University Law Center
  • Mr. Theodore H. Frank, Adjunct Fellow, Manhattan Institute for Policy Research and President, Center for Class Action Fairness
  • Introduction: Mr. Mark Andrew Hill, President, Louisiana State Student Chapter

You can watch a video of the event here.

New Engage Article: The Parade of Horribles Lives: Schuette Affirmative Action Case

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by Publius
Posted January 09, 2014, 11:25 AM

The latest edition of Engage: The Journal of the Federalist Society's Practice Groups features an article by Gail Heriot titled "The Parade of Horribles Lives: Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary." It begins:

If you are tired of Court watchers who like to hedge their bets, you might appreciate this:  I predict a reversal in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary.  It seems unlikely that the Court granted certiorari in order to congratulate the Sixth Circuit on its keen legal insight.  But I can’t help wondering why Supreme Court intervention has been necessary.  How did the Sixth Circuit, sitting en banc, arrive at the profoundly counter-intuitive conclusion it did?  And what does it say about our legal culture that the 8-7 vote broke down precisely on party lines?

The case concerns the Michigan Civil Rights Initiative (“MCRI”)—a voter initiative passed in 2006 by a wide margin.  Its core provision prohibits the state from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” In other words, it enshrines in the Michigan Constitution the principle that the state should not engage in (among other things) race discrimination.  For exactly that reason, the Sixth Circuit found it unconstitutional.

Let me just repeat that in case you weren’t paying attention:  By a vote of 8 to 7, the Sixth Circuit held that laws that prohibit race discrimination are unconstitutional.  Do you understand it so far?  I hope not, because if that sounds ordinary and unobjectionable, I would be deeply troubled. . . .

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