FedSoc Blog

On March 27, the Supreme Court heard oral arguments in Windsor v. U.S., the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and which bars the federal government from recognizing the validity of, or extending attendant benefits to, any marriage conferred by any of the states other than those consisting of only one man and one woman. The Court considered whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are recognized to be married under the laws of their state, whether the Executive Branch’s assertion that DOMA is unconstitutional deprives the Court of jurisdiction to decide this case, whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing in this case to defend DOMA. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a FedSoc podcast available here.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

At Forbes, Pepperdine Law professor Greg McNeal comments extensively on President Obama's allegedly unprecedented personal involvement in targeting decisions:

President Obama is personally involved in vetting targets and approving strikes, according to a recent article in The New York Times entitled “Secret ‘Kill List’ Proves a Test of Obama’s Principles and Will.”  The piece has received a substantial amount of attention with expert commentators such as Ben Wittes describing it as “rich and detailed” and Ken Anderson writing that it is “the most detailed insider account of how the administration has gradually evolved a process for vetting targets.”

I think the article amounts to a largely self-serving campaign piece, which is to be expected when the piece is sourced to interviews with President Obama’s “current and former advisers.”  For those not familiar with the targeted killing process, the article may seem to be filled with rich details that suggest that President Obama, the “liberal law professor” who “approves lethal action without hand-wringing” has taken on unprecedented authority and responsibility.  I’m not convinced that his actions are remarkable or unprecedented, let’s unpack what we learn from this story.

The times writes Obama’s “current and former advisers described Mr. Obama’s evolution since taking on the role, without precedent in presidential history, of personally overseeing the shadow war with Al Qaeda.”  I’m sure those advisers are very impressed with the President and their role in supporting him, but he’s hardly the first President to approve targeting decisions, and he’s not the first President to approve targeting decisions against Al Qaeda.

When a botched bombing operation presents the risk of strategic consequences, Presidents have frequently relied on strict rules of engagement and high level approvals of specific targets.  Most students of history are familiar with the tight controls over both target selection and nomination that were implemented during the Vietnam War.  (A great history of the process is available in this School of Advanced Airpower Studies thesis).  Even during Vietnam, targets were selected in Washington by a small team on the joint staff, and approved only at the presidential level.  Thus, contrary to the Times’ assertions, there are some precedents for outsized influence by the Commander in Chief in the targeting process — a fact that was true of Johnson and was also true of President Clinton. . . .

The Times piece tries to paint President Obama as the first President to take moral responsibility for the actions of the military he commands.  Obama, we learn from his aides is a “student of writings on war by Augustine and Thomas Aquinas, he believes that he should take moral responsibility for such actions. And he knows that bad strikes can tarnish America’s image and derail diplomacy.”  Moreover, “[w]hen a rare opportunity for a drone strike of a top terrorist arises – but his family is with him – it is the president who has reserved to himself the final calculation.”  This would be an unprecedented act of political leadership if it weren’t for the fact that there is some precedent for it that predates President Obama.

As I point out in this book chapter, since at least September of 2008 (e.g. during George W. Bush) the Rules of Engagement in Afghanistan required the President or Secretary of Defense to sign off on any pre-planned strike (e.g. targeted killing) where even one civilian casualty was expected.

For a more detailed examination of American policy on targeted killings, see Professor McNeal's article "The U.S. Practice of Collateral Damage Estimation and Mitigation."  Also, in January 2011, FedSoc's International & National Security Law Practice Group aired a podcast on "Predator Drones and Targeted Killings."  It featured Michael W. Lewis, Ben Wizner, and Dean A. Reuter. You can listen to it here.

Listen to the audio here.

Richard Brookhiser's new book, James Madison, examines the life of America's fourth president, including his role in advising Thomas Jefferson, his relationships with various Founding Fathers, including George Washington, John Adams, Thomas Jefferson, and Alexander Hamilton.  In this Federalist Society Practice Groups podcast, Brookhiser discusses his book with James A. Haynes, a member of FedSoc's Professional Responsibility & Legal Education Practice Group Executive Committee.

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.

Listen to the audio here.

The decennial census has again produced the decennial redistricting litigation--not least in Texas, whose attempts to draw districts for the 2012 elections have engulfed two three-judge district courts, the Department of Justice, and the Supreme Court. The Texas litigation has been complicated by what some see as the conflicting demands of Sections 2 and 5 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the Constitution. In Perry v. Perez, the Supreme Court vacated the interim maps a lower court drew and gave that court instructions on how navigate the legal tangle. That may have expedited the resolution of Texas's election conundrum but by no means resolved the broader issues involved.

In this recorded Federalist Society Teleforum, Justin Levitt, Ilya Shapiro, and Dean A. Reuter discuss Perry v. Perez, the Voting Rights Act, and other developments in election regulation.

Listen to the audio here.

The Keystone Pipeline is designed to transport petroleum products from Northeast Alberta, Canada, to as far away as the Gulf Coast of Texas. Proponents argue that the pipeline is essential to lower the cost of petroleum products and increase America’s energy independence. Opponents assert that the process used to “mine” the sand oils in Canada is not environmentally friendly, and that the pipeline itself presents environmental hazards that have not been completely taken into account. As Canada’s oil production and exports increased, President Obama postponed a decision that would have permitted construction of the pipeline extension. In this Environmental Law & Property Rights Practice Group podcast, our experts discuss the merits of the pipeline from differing perspectives.

Featuring:

• Mr. Daniel Simmons, Institute for Energy Research
• Prof. Mark Squillace, University of Colorado Law School
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

Listen to the audio here.

Having attended today's oral arguments in the Obamacare case, Professor Randy Barnett reported on them from the courthouse steps. What was the focus of the inquiry of the various justices? Who asked the most pointed questions? What is expected in tomorrow's oral argument focusing on the constitutionality of the individual mandate? Professor Barnett discussed these and other questions in this special Federalism & Separation of Powers Practice Group Teleforum call.

Featuring:

• Prof. Randy E. Barnett, Georgetown University Law Center and architect of the Individual Mandate Challenge
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

Writing in the Washington Post, George Will calls for the Supreme Court to address the constitutionality of New York's rent-control laws:

The Washington Post reports that a senior Obama Administration official has confirmed Anwar al-Aulaqi, an American-born Muslim cleric who has been linked to al-Qaeda, dead today after his convoy was struck by a U.S. drone and jet in northern Yemen.

Al-Aulaqi was a national of both the United States and Yemen and has been implicated in inspiring several terrorist attacks in the U.S., including the Fort Hood shooting in November 2009, the infamous attempted "Underwear Bombing" aboard a plane bound for Detroit in December 2009, and the car bomb that failed to detonate in Times Square in May 2010.

Do such airstrikes in foreign countries on American citizens and others who are suspected of terrorism comply with U.S. law and the international laws of war? For more on that question, click here for a podcast from the Federalist Society's International & National Security Law Practice Group on "Predator Drones and Targeted Killings," and click here for an Engage article on the subject from Michael Lewis and Vincent Vitkowsky.

The Washington Post reports that the United States is giving the leaders of the rebel forces in Libya full diplomatic recognition as the "legitimate governing authority for Libya." Hillary Clinton made the announcement today.

This decision allows the U.S. government to grant the rebels access to more than $30 billion in frozen U.S. assets in Libya. The recognition takes place following five months of the rebels' military conflict to topple Moammar Gaddafi, as opposition to the U.S. presence in the conflict has been ramping up in Congress.

Click here for the last FedSoc Blog post on Libya. Click here for a Practice Groups Podcast on "The President's Authority in Libya," with Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University - Beasley School of Law, and Hon. Edwin Williamson of Sullivan & Cromwell. Hon. Ronald Cass moderates.

AP reports that the Obama Administration has filed a brief supporting a lesbian federal employee's claim that she was improperly denied health insurance coverage for her same-sex spouse in California.

The brief states that the court should not dismiss the suit because the Federal Defense of Marriage Act (DOMA), which defines "marriage" as a union between a man and a woman and would deny the benefits to the spouse, is unconstitutional under the Equal Protection Clause of the 14th Amendment.

Click here to view the brief in opposition of a motion to dismiss, which argues:

The official legislative record makes plain that DOMA Section 3 [defining marriage as being between a man and a woman] was motivated in large part by animus toward gay and lesbian individuals and their intimate relationships, and Congress identified no other interest that is materially advanced by Section 3.

Because the law was motivated solely by animus toward this group, the brief asserts, it cannot meet the standard set out by the Supreme Court to be applied in these cases and thus violates equal protection.

The Administration previously concluded that it would not defend DOMA in court, but this is its first filing actually seeking to have a court strike down the law as unconstitutional.

For more on this topic, click here to listen to a Federalist Society Practice Groups podcast on "The Government's Duty to Defend the Law in Court," featuring Prof. John Baker of the Louisiana State University Law Center, Mr. Walter Dellinger of O'Melveny & Myers, and Dr. John Eastman of the Center for Constitutional Jurisprudence.

The Washington Times reports that President Obama, speaking to the media last week for the first time after the House of Representatives voted down an authorization of U.S. military involvement in Libya, said that the legal and constitutional criticisms of his decisions in Libya were "noise" and that "(a) lot of this fuss is politics."

The President stated in the White House East Room news conference:

We have engaged in a limited operation to help a lot of people against one of the worst tyrants in the world, somebody who nobody should want to defend. And this suddenly becomes the cause celebre for some folks in Congress? Come on.

Members of both parties in Congress have criticized the President for going beyond the original support mission in Libya and for violating the 1973 War Powers Resolution by not seeking authorization from Congress in the military venture, which began over three months ago.

In the Senate, the Foreign Relations Committee has approved a resolution purporting to allow President Obama to continue the Libyan military mission for up to a year with a 14-5 vote. This, however, came after the House voted down a resolution offering support for the mission last week.

Click here to listen to a podcast from the Federalist Society's International & National Security Law Practice Group on "The President's Authority in Libya," featuring Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. David Rivkin of Baker & Hostetler, Prof. Peter J. Spiro of Temple University's Beasley School of Law, and Hon. Edwin D. Williamson of Sullivan & Cromwell. Hon. Ronald A. Cass of Cass & Associates moderates.

The Washington Post reports today that the Obama Administration has responded to criticism and a lawsuit from a bipartisan group of lawmakers over its military operation in Libya with a 32-page report stating that, under the 1973 War Powers Resolution (WPR), such authorization is unnecessary.

The U.S. has been participating in the operation to oust Libyan leader Moammar Gaddafi from power for three months, surpassing the sixty-day deadline set under the WPR for the President to obtain congressional approval for military operations. The Republican House leadership and some Democrats have criticized the President for not obeying the WPR or adequately consulting with Congress about the operation. In a letter to President Obama on Tuesday, House Speaker John Boehner wrote:

(T)he ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your administration.

The report issued today states that the President will not seek any extra funding for the operation in Libya and that "there has not been a significant operational impact on United States activities in Iraq and Afghanistan." Responding to arguments that the operation is illegal under the WPR because the President did not seek congressional operations, the report states that the operation does not constitute the kind of "hostilities" contemplated by the WPR.

For more on the President's authority in the Libyan operation, be sure to dial in next Wednesday, June 22, at 1 PM to a Federalist Society Teleforum Conference Call featuring David Rivkin of Baker & Hostetler and Prof. Ilya Somin of George Mason University School of Law discussing this topic. The number is 1-888-752-3232.

Also, click here to listen to a Practice Groups Podcast on the President's authority in Libya by Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. Rivkin, Prof. Peter Spiro of Temple University Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell, with Ronald Cass of Cass & Associates moderating.

And click above to watch the video of an event co-hosted by the Fordham Student Chapter and the International & National Security Law Practice Group on "Domestic and Legal Issues Arising from American Intervention in Libya."

David A. Fahrenthold at the Washington Post reports today that the U.S. House of Representatives has passed a resolution critizing President Obama for not providing to Congress "a compelling rationale" for military action in Libya. However, it did not demand a withdrawal of troops, rejecting a competing resolution from Rep. Dennis Kucinich that demanded such a withdrawal.

The resolution would give Obama two weeks to persuade Congress that the military campaign is justified. Click here for the Washington Times story.

For more on the President's constitutional authority to initiate and maintain military action in Libya, click here to listen to a podcast from the Federalist Society's International & National Security Law Practice Group on "The President's Authority in Libya." The podcast features Prof. Saikrishna Prakash of the University of Virginia School of Law, David Rivkin of Baker & Hostetler, Prof. Peter Spiro of Temple University's Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell. Ronald Cass of Cass & Associates moderates.

David Ingram posted yesterday on The Blog of Legal Times about the legal justification of the killing of terrorists and, specifically, the killing of al-Qaeda leader Osama bin Laden Sunday at a compound in Abbottabad, Pakistan.

While many lawyers assert that the operation to kill Bin Laden was on solid legal footing, with the operation falling in the "sweet spot" of the Authorization for Use of Military Force against al-Qaeda passed by Congress in 2001, they predict that this killing will renew the debate about when and how it is appropriate to use deadly force against alleged terrorists in the War on Terror.

For more on targeted killings and the use of predator drones in the War on Terror, click here to listen to a practice groups podcast entitled "Predator Drones and Targeted Killings" with Prof. Michael W. Lewis of Ohio Northern University Pettit College of Law and Mr. Ben Wizner of the ACLU.