FedSocBlog.com

New SCOTUScast: Moncrieffe v. Holder

2013-05-21T22:20:59+00:00

On April 23, the Supreme Court announced its decision in Moncrieffe v. Holder. The question in this case was whether a conviction under state law that encompasses--but is not limited to--distributing marijuana without remuneration constitutes an “aggravated felony” for purposes of deportation under the Immigration and Nationality Act (INA).

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 7-2 that if a non-citizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction does constitute an “aggravated felony” for purposes of the INA. Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Breyer and Kagan joined the majority opinion. Justices Thomas and Alito filed dissenting opinions.

To discuss the case, we have Scott Broyles, an assistant professor at Charlotte School of Law.

Should Obama Care About the Size of Government?

2013-05-21T20:15:10+00:00

Ilya Somin, professor at George Mason University Law School, comments at the Volokh Conspiracy:

In his first Inaugural Address, President Obama famously said that we should not ask “whether our government is too big or too small, but whether it works.” I criticized this indifference to the size of government in one of my very first posts of the Obama Presidency. More recently, however, longtime Obama adviser David Axelrod recognized that the size of government does matter after all:

As the nation’s chief executive, President Obama is accountable for the IRS, State Department and Justice Department. His longtime adviser David Axelrod last week blamed a too-big government for the scandals: “Part of being president is that there’s so much beneath you that you can’t know because the government is so vast.” [HT: Don Boudreaux]

In my 2009 post on Obama’s Inaugural Address and in a forthcoming book, I explained that one of the dangers of big government is that rationally ignorant voters are unable to effectively monitor its activities. A closely related problem is that the modern federal government is also too large for the president to effectively monitor – even with the help of topnotch advisers like Axelrod.

Axelrod’s defense of Obama is actually very plausible. It is quite possible that Obama didn’t know about the IRS’ abusive targeting of conservative groups, and that if he had known he would have ordered them to stop – if only to forestall a scandal that might become a dangerous political liability. Yet Obama probably didn’t know because, as Axelrod puts it, “the government is so vast” that he could not possibly keep track of what it was doing.

In fairness to Obama, much of the government growth that makes his job so difficult occurred on his predecessor’s watch. The current administration is far from solely responsible for the overgrown size of modern government. But the president would be entitled to greater sympathy if he hadn’t spent much of the last four years expanding the size of government even further, and claiming that we shouldn’t worry about its growth.

D.C. Circuit Allows Bin Laden Death Photos to Remain Secret

2013-05-21T17:24:38+00:00

BLT: The Blog of Legal Times reports:

More than 50 images of Osama bin Laden taken after his death in Pakistan in 2011 can remain secret, exempt from public disclosure under public records laws, a federal appeals court in Washington said today.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said 52 post-mortem images were properly classified as Top Secret. The panel upheld a trial judge's ruling that blocked the release of images. The appellate court ruling is here.

The U.S. Justice Department argued in the trial and appellate courts that the disclosure of graphic images of bin Laden—including a gunshot wound to his head—could expose the United States to retaliation. The plaintiff, Judicial Watch, rejected the notion that less gruesome images—for instance, bin Laden's burial at sea—would incite violence.

"As the district court rightly concluded, however, the CIA’s declarations give reason to believe that releasing images of American military personnel burying the founder and leader of al Qaeda could cause exceptionally grave harm," the D.C. Circuit panel said in its per curiam decision.

In the trial litigation, U.S. District Judge James Boasberg, in April 2012, said in his ruling that "verbal descriptions of the death and burial of Osama Bin Laden will have to suffice, for this court will not order the release of anything more.”

Boasberg said in his opinion: “The court declines plaintiff’s invitation to substitute its own judgment about the national-security risks inherent in releasing these records for that of the executive-branch officials who determined that they should be classified."

The D.C. Circuit heard argument in January. Michael Bekesha of Judicial Watch urged the court not to be a "rubber stamp" for the government. "The government just doesn't specify the harm assessment associated with those records," Bekesha said in court, describing any image depicting a solemn burial at sea. (Click here for a transcript of the hearing.)

The appellate panel—Chief Judge Merrick Garland, Senior Judge Harry Edwards and Judge Judith Rogers—said the government wasn't making predictions of violence based on "just any images."

"Rather, they are predicting the consequences of releasing an extraordinary set of images, ones that depict American military personnel burying the founder and leader of al Qaeda," the judges said.

The government, the appellate court said, is shielding the bin Laden images "to prevent the killing of Americans and violence against American interests."

Whey Can Prayer and Government Mix?

2013-05-21T13:28:30+00:00

Lyle Denniston comments at Constitution Daily:

Since 1962, the Supreme Court has been quite consistent in the constitutional view that prayer is a form of religious devotion that belongs in private settings—the home or the worship center—not in the halls of government. It broke with that consistency some 30 years ago, when it allowed prayer with decidedly religious content to be recited by a paid chaplain at the opening of a state legislature’s sessions. It said that was different, historically. After that, its skepticism about official prayer returned and has continued.

On Monday, the court signaled its willingness to reopen the entire issue of prayer in the public sphere, as a question under the First Amendment’s Establishment Clause. Just as the justices have slowly grown more tolerant of government displays of the 10 Commandments, especially if those exhibits have been in place for many years, they may now be pondering a greater acceptance of official prayer—if it occurs in a setting where most of the audience is made up of adults.

A defining feature of most of the court’s rulings against prayer rituals is that they have come in the public school setting, where the audience is composed of impressionable youngsters. What has emerged in the most recent rulings—a decision in 1992 against officially sponsored prayers at a public middle school graduation, and a 2000 decision against such prayers at a high school football game—is the court majority’s concern that younger students may be coerced into conforming to a dominant religious theme, and, if they are of a different faith (or of none), will feel isolated and hurt.

In a word, that reaction reflects the fear of coercion—that is, the government sending the message to go along with religious dogma. The coercion theory under the Establishment Clause has been most identified with Justice Anthony M. Kennedy.

There is a rather subtle difference between that theory of coercion and another theory that the court has sometimes used in trying to keep religion and government separated: the theory of endorsement. That theory is closely identified with the work of retired Justice Sandra Day O’Connor.

That, too, is about government sending a message: When government appears to be sponsoring a creed linked to one faith alone, it is said to be passing the word that this is essentially the official religion. Appearances count more under that theory than they do under coercion theory, which involves the implied taking away of choice.

When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Here is the way the appeals court summed up its ruling in the Greece town board case: “Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution.” What is forbidden, it went on to say, is a prayer practice that expresses “an official town religion.”

It is worth noting that, when the Supreme Court itself last used the endorsement test to strike down prayer in a public arena (the football game case), it did so with six justices in the majority, but now only three of those remain: Justices Kennedy, Stephen Breyer, and Ruth Bader Ginsburg.

That trio might still form the nucleus of a new majority in favor of continued application of the endorsement test to monitor the line between favored and disfavored religious expression, but again it may not. And the replacement, in the meantime, of Justice O’Connor by Justice Samuel A. Alito Jr. has definitely brought a strong new voice for acceptance of religious expression in the public sphere.

It would have been easy enough for the court to have passed up the Greece town board case, and stayed on the sidelines of the prayer controversy as it has for the past 13 years. It very well may mean something that it has decided to return to the fray, in a case where the appeal is so heavily focused on a challenge to the entire endorsement theory against official prayer.

In coming months, this case is sure to draw a heavy involvement by outside groups of many different persuasions, seeking to shape where the court goes from here on prayer.

New SCOTUScast: McBurney v. Young

2013-05-20T23:20:20+00:00

On April 29, the Supreme Court announced its decision in McBurney v. Young. The question in the case was whether Virginia's Freedom of Information Act (FOIA) violates the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution by declining to grant citizens of other states the right of access to public records that Virginia affords its own citizens.

In an unanimous opinion delivered by Justice Alito, the Court held that Virginia’s FOIA does not violate the Privileges and Immunities Clause or the dormant Commerce Clause. Justice Thomas filed a concurring opinion.

To discuss the case, we have Christopher Green, a professor at the University of Mississippi School of Law and currently visiting at the University of San Diego School of Law.

High Court Accepts Case on Prayer at Town Board Meetings

2013-05-20T18:46:50+00:00

The Christian Science-Monitor reports:

The US Supreme Court on Monday agreed to examine whether offering a prayer before a town meeting violates the First Amendment’s separation of church and state.

The issue in Town of Greece v. Galloway (12-696) is whether city officials violated the First Amendment’s ban on government endorsement of a particular religion when it set up a system that allowed local volunteers to offer a prayer prior to the town’s monthly meetings.

Although non-Christians delivered a few of the prayers, the vast majority of volunteers offered – and delivered – pre-meeting prayers that featured Christian religious references.

At least two regulars at town meetings objected to being forced repeatedly to listen to Christian prayers. They complained to town officials that they felt marginalized by the town’s prayer policy.

One of the complaining residents in the New York town was Susan Galloway, who is Jewish. The other was Linda Stephens, an atheist.

After the town refused to change its prayer policy, the two filed suit in federal court. They said that by consistently presenting Christian prayers prior to its meetings, the town was intentionally discriminating against non-Christians. They also argued that the pre-meeting prayers were advancing a single faith over other religions or nonreligion.

A federal judge disagreed and dismissed the case. On appeal, the Second Circuit Court of Appeals reversed. The Town of Greece, the appeals court ruled, had aligned itself with a single religion in violation of the First Amendment’s Establishment Clause.

“Christian clergy delivered each and every one of the prayers for the first nine years of the town’s prayer practice, and nearly all of the prayers thereafter,” the appeals court said.

It added that “the rare handful of cases, over the course of a decade, in which individuals from other faiths delivered the invocation, cannot overcome the impression, created by the steady drumbeat of often specifically sectarian Christian prayers, that the town’s prayer practice associated the town with the Christian religion.”

This put audience members at town meetings who are nonreligious or non-Christian in an awkward position, the court said.

The town defended its prayer policy, saying it was neutral and nondiscriminatory. The town created a list of anyone who might be willing to present a prayer prior to the town meeting. An official went through the list until someone agreed to deliver a prayer.

“Members of many different religious traditions accepted the opportunity to offer a prayer, including Catholics, Protestants from several denominations, a Wiccan priestess, the chairman of a local Bahai congregation, and a lay Jewish man,” Washington lawyer Thomas Hungar wrote in his brief on behalf of the town, urging the high court to take up the case. . . .

New Book Details How the Federalist Society Shifted the Legal and Policy Landscape of America

2013-05-20T15:25:14+00:00

Writing in the Chronicle of Higher Education, Michael Avery and Danielle McLaughlin summarize their new book The Federalist Society: How Conservatives Took the Law Back From Liberals:

. . . The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

The Federalist Society's membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society's critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.

Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states' rights to action by the federal government.

Members have held senior policy making positions in the Reagan, George H.W., and George W. Bush administrations; have a commanding presence on the federal bench; and, as private lawyers, advocates in public-interest law firms, and government lawyers, challenge laws that are anathema to their worldview. The dockets of the federal and state courts (including the Supreme Court) are brimming with test cases brought or defended by Federalist Society members to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women's ability to obtain an abortion; and otherwise advance conservative ideas.

Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine's and George Mason's, and succeeded in gaining respect and traction for conservative legal ideas. Those stem in large part from an originalist interpretation of the Constitution, exemplified by the jurisprudence of Justice Scalia. That view posits that to interpret the Constitution, one must search for the original meaning of its provisions. The argument is that the original meaning of words may be objectively determined by recourse to historical sources that reveal how the words were used at the time, and that the original meaning is the only legitimate method of interpreting the document. . . .

Jeffrey Rosen--president of the National Constitution Center, a law professor at George Washington University and the legal affairs editor of The New Republic--reviewed the book in The New York Times:

More than two decades ago, when I was a law student, I used to sneak into meetings of the conservative Federalist Society for lunchtime conversations about constitutional issues. Although neither conservative nor a Republican, I had libertarian leanings and appreciated the society’s openness to debating its political opponents. I felt slightly illicit in crossing ideological lines: once, when the dean spotted me leaving a meeting, I felt as if I’d been caught walking out of an X-rated movie. But the discussions themselves were always intellectually engaging, and my fellow law students seemed more interested in converging around a shared approach to interpreting the Constitution than in squabbling about partisan differences. . . .

“[E]very single federal judge” appointed by the two Presidents Bush “was either a member or approved by members of the society,” including four Supreme Court justices: Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. The Federalist Society model has been so successful that other organizations have adopted it — societies named after Benjamin Rush, Alexander Hamilton and Adam Smith have been started to promote conservative and free market ideas in medical education, foreign policy and business school.

How was the society able to achieve this remarkable feat? According to the authors, by persuading the competing factions of the modern conservative movement to set aside their ideological differences and to converge around a constitutional methodology known as “originalism” — the idea that judges should interpret the Constitution as understood by its framers and ratifiers. . . .

In 2010, Steven Teles published a book convering much of the same ground: The Rise of the Conservative Legal Movement: The Battle for Control of the Law.

Cato Institute and Others File Amicus Brief in Bond v. U.S. Treaty Power Case

2013-05-20T12:33:58+00:00

Nicholas Rosenkranz, professor at Georgetown Law School, writes at the Volokh Conspiracy:

[T]he Supreme Court granted certiorari in Bond v. United States in January. The case raises the question of whether a treaty can increase the power of Congress. Last week I posted about Paul Clement’s first-rate brief on behalf of the Petitioner.

Yesterday, I filed an amicus brief on behalf of the Cato Institute, the Center for Constitutional Jurisprudence, and the Atlantic Legal Foundation. (My superb co-counsel are Ilya Shapiro of Cato, John Eastman of CCJ, Martin Kaufman of ALF, and, I am honored to say, former Attorney General Ed Meese III.) The brief is based upon my Harvard Law Review article, Executing the Treaty Power.

Here is the Summary of Argument:

The court below held that the Chemical Weapons Convention increased the power of Congress, empowering it to enact 18 U.S.C. § 229. It held, in other words, that Congress is not limited to those powers enumerated in the Constitution; rather, those powers may be increased by treaty. The Third Circuit believed that it was bound to reach this conclusion by a single, conclusory sentence in Missouri v. Holland: “If the treaty is valid there can be no dispute about the validity of the [implementing] statute under Article I, Section 8, as a necessary and proper means to execute the powers of the Government.” Missouri v. Holland, 252 U.S. 416, 432 (1920).

But the Third Circuit was obviously uneasy with this conclusion: “with practically no qualifying language in Holland to turn to, we are bound to take at face value” that single sentence. Bond, 681 F.3d at 162. “It may be that there is more to say about the uncompromising language used in Holland than we are able to say, but that very direct language demands from us a direct acknowledgement of its meaning, even if the result may be viewed as simplistic. If there is nuance that has escaped us, it is for the Supreme Court to elucidate.” Id. at 164-65 (footnote omitted).

Judge Ambro was even more explicit in concurrence:

I write separately to urge the Supreme Court to provide a clarifying explanation of its statement in . . . Holland . . . . I hope that the Supreme Court will soon flesh out “[t]he most important sentence in the most important case about the constitutional law of foreign affairs,” and, doing so, clarify (indeed curtail) the contours of federal power to enact laws that intrude on matters so local that no drafter of the Convention contemplated their inclusion in it.

Id. at 170 (Ambro, J., concurring) (quoting Rosenkranz, supra, at 1868 (2005)).

That one conclusory sentence from Holland implies that if a treaty commits the United States to enact some legislation, then Congress automatically obtains the power to enact that legislation, even if it would otherwise lack such power. It implies, in other words, that Congress’s powers are not constitutionally fixed, but rather may be expanded by treaty.

In Holland, Justice Holmes provided neither reasoning nor citation for this proposition. It appears in that one conclusory sentence, in a five-page opinion that is primarily devoted to a different question. And this Court has never elaborated. The most influential argument supporting this proposition appears not in the United States Reports but in the leading foreign affairs treatise. This argument has largely short-circuited jurisprudential debate on the question. But recent scholarship has shown that the historical premise of this academic argument is simply, demonstrably false.

The proposition that treaties can increase the power of Congress is inconsistent with the text of the Treaty Clause, the Necessary and Proper Clause, and the Tenth Amendment. It is inconsistent with the fundamental structural principle that “[t]he powers of the legislature are defined, and limited.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176 (1803). It implies, insidiously, that that the President and the Senate can increase their own power by treaty. And it implies, bizarrely, that the President alone–or a foreign government alone–can decrease Congress’s power and render federal statutes unconstitutional. Finally, it creates a doubly perverse incentive: an incentive to enter into foreign entanglements simply to increase domestic legislative power.

Holland is wrong on this point and it should be overruled. This Court should hold that treaties cannot vest Congress with additional legislative power.

Cato has more here. Our brief itself is available here.

Songs for the Supremes

2013-05-17T15:45:57+00:00

The Wall Street Journal's Law Blog reports:

WASHINGTON–Supreme Court justices Wednesday heard an alien drug offender’s plea for atheism, the abolition of property and the end of American exceptionalism–and responded with a standing ovation.

The occasion wasn’t a case, of course, but the court’s spring musicale, a private concert for the justices and their guests.

The star, Broadway legend Barbara Cook, closed with “Imagine,” John Lennon’s 1971 song envisioning a world free of nations, religion and property, something strikingly at odds with court precedents granting privileges to religious institutions, enshrining property rights and limiting the reach of international law.

“Imagine no possessions. I wonder if you can,” Ms. Cook sang to the justices, seated just a few feet from her in the court’s East Conference Room.

“Imagine all the people, sharing all the world,” she continued, as Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan, along with retired Justice Sandra Day O’Connor sat rapt.

“Who could ask for anything more,” proclaimed Justice Ginsburg, the event’s organizer, at the conclusion, invoking a line from another number Ms. Cook sang, George Gershwin’s “I Got Rhythm.”

Wednesday’s program was a rare foray into popular song, featuring standards by Cole Porter, Hoagy Carmichael and other 20th century songwriters, for a musicale tradition that has focused on classical works.

In addition to Ms. Cook, a Tony Award-winning singer and 2011 Kennedy Center honoree, the concert featured the husband and wife team of jazz guitarist John Pizzarelli and vocalist Jessica Molaskey.

Inaugurated in 1988 by the late Justice Harry Blackmun and produced in cooperation with the Washington Performing Arts Society, the concert offers the justices a respite from jurisprudential rigor as their annual term approaches its June close, and provides arts patrons an unusual setting to enjoy a performance. Previous years have seen jazz singer Bobby Short, pianist Marian McPartland and opera soprano Renee Fleming.

Nevertheless, with love and marriage perennial lyrical subjects, there was no avoiding an occasional, if perhaps unintentional, reminder that two major cases involving same-sex marriage rights hang over the docket.

“Getting Married Today,” from the 1970 Sondheim musical “Company,” featured in the Pizzarelli-Molaskey repertoire. “What’s a wedding, it’s a prehistoric ritual/where everybody promises fidelity forever, which is/maybe the most horrifying word I ever heard of,” the song goes.

And it was fidelity to Sondheim, not the court’s precedents, that clearly weighed on the performers’ minds. At one point, Ms. Molaskey recalled she had sung before the musical genius himself.

“He was sitting about where you guys—” she stopped herself, suddenly unsure of the etiquette for her majestic surroundings. ” ‘You guys’—it’s the Supreme Court!” she said.

Then, to an audience peppered with lawyers who might not agree, she confessed: “It’s a lot more nerve-racking to perform before Stephen Sondheim than the entire Supreme Court.”

New SCOTUScast: Agency for International Development v. Alliance for Open Society International

2013-05-16T22:37:10+00:00

On April 22, the Supreme Court heard oral argument in Agency for International Development v. Alliance for Open Society International, Inc. The question in the case is whether United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation.

Second Appeals Court Invalidates Obama’s NLRB Recess Appointments

2013-05-16T19:03:23+00:00

Politico reports:

A second appeals court has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional, concluding that some board actions taken in the wake of those appointments were also invalid.

The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment.

The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here) found that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions. The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.

The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.

The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.

The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.

The opinion, written by Judge D. Brooks Smith, said the recess clause of the Constitution should be read not just to give the president executive power, but also to preserve the “advice and consent” role of the Senate.

In his dissent, Judge Joseph. A Greenaway Jr. said the majority’s reading of the clause was needlessly narrow and ignored the Founding Fathers' intent to give the president the ability to act when the Senate is not available to “advise and consent.”

The administration late last month petitioned the Supreme Court to overturn the D.C. Circuit Court’s ruling on the issue.

The decision comes the same day that the Senate Help Subcommittee held a hearing on five nominations to the NLRB. Sen. Tom Harkin said they nominations would be moved next Wednesday.

Evidence Suggests EPA Gave Environmentalist Groups Preferred FOIA Treatment

2013-05-16T12:37:09+00:00

The Daily Caller reports:

The IRS may not be the only federal agency singling out conservative groups. Records suggest that the Environmental Protection Agency has made it easier for environmental groups to file Freedom of Information Act requests than conservative organizations.

According to EPA records obtained by the free market Competitive Enterprise Institute, since January 2012 the agency has granted fee waivers for 75 out of 82 Freedom of Information Act requests sent by major environmental groups, denying only seven of them — meaning green groups saw their fees waived 92 percent of the time.

At the same time, the EPA frequently denied fee waivers to conservative groups. EPA records show that the agency rejected or ignored 21 out of 26 fee waiver requests from such conservative groups as the Competitive Enterprise Institute, the Institute for Energy Research, and Judicial Watch — an 81 percent rejection rate.

Fees vary based on how many documents are requested, what medium they are requested in and how much government research is involved.

“This is as clear an example of disparate treatment as the IRS hurdles selectively imposed upon groups with names ominously reflecting an interest in, say, a less intrusive or biased federal government,” said CEI senior fellow Chris Horner, author of “The Liberal War on Transparency.”

Horner described the EPA’s actions as “a clear pattern of favoritism for allied groups and “a concerted campaign to make life more difficult for those deemed unfriendly.”

The Competitive Enterprise Institute has filed 15 fee waiver requests with the EPA since January 2012, but 10 of them have been denied by the agency and only one was granted. CEI won a lawsuit over their FOIA request regarding former EPA Administrator Lisa Jackson’s alias email account, and the EPA ignored three other requests.

The Franklin Center for Government and Public Integrity had both of its fee waiver requests denied, and the Institute for Energy Research had its only fee waiver request denied. The watchdog group Judicial Watch had two of four fee waivers denied, as did the National Center for Public Policy Research.

However, environmental groups were much more successful in getting the agency to cooperate. The Natural Resources Defense Council made 20 fee waiver requests, had 19 granted, and one denied; EarthJustice made 19 requests, had 17 granted, and two denied; the Sierra Club made 15 requests, had four granted and four denied, and Public Employees for Environmental Responsibility had all 17 of its requests granted.

The Waterkeeper Alliance had all three fee waiver requests granted, the Southern Environmental Law Center had both of its requests granted, the Center for Biological Diversity had all four of its requests granted and Greenpeace had both of its fee waiver requests granted.

The fee waivers to environmental groups were also granted on the “initial determination” stage, meaning these green groups did not have to appeal for fee waivers. However, Horner said he had to fight many fee waiver denials, all of which were overturned on appeal.

“Their practice is to take care of their friends and impose ridiculous obstacles to deny problematic parties’ requests for information,” Horner said. . . .

New SCOTUScast: Kiobel v. Royal Dutch Petroleum

2013-05-15T23:05:25+00:00

On April 17, the Supreme Court announced its decision in Kiobel v. Royal Dutch Petroleum. The case involved the Alien Tort Statute (ATS), which permits non-U.S. citizens to bring a lawsuit in federal court in order to seek relief for certain violations of international law.

This case was first argued February 28, 2012, and considered whether corporations, and not merely individuals, can be held liable in an ATS lawsuit, and whether that issue affects the jurisdiction of the court even to hear the case. On March 5, 2012, however, the Supreme Court put the Kiobel case back on the calendar for re-argument, and directed the parties to brief an additional question--whether and under what circumstances the ATS allows courts to address violations of the law of nations that occur outside the United States.

In an opinion delivered by Chief Justice Roberts, the Court held that a presumption against extraterritoriality applies to claims under the ATS, and nothing in ATS rebuts this presumption. Thus, plaintiff-petitioners cannot proceed under the ATS in this case. Justices Scalia, Kennedy, Thomas, and Alito joined the Chief Justice’s majority opinion. Justice Kennedy filed a concurring opinion. Justice Alito filed a concurring opinion, which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgement, which Justices Ginsburg, Sotomayor and Kagan joined.

To discuss the case, we have Eugene Kontorovich, a professor at the Northwestern University School of Law.

Ninth Circuit Voids HP Printer Class-Action Settlement Citing High Attorney Fees

2013-05-15T19:45:41+00:00

According to Reuters:

A divided federal appeals court on Wednesday voided a class action settlement between Hewlett-Packard Co and millions of consumers who bought its inkjet printers over nearly a decade, saying the fees awarded to the consumers' lawyers were too high.

The decision by the 9th U.S. Circuit Court of Appeals in San Francisco could discourage class action settlements involving "coupons" rather than cash, saying Congress intended that class action lawyers not be awarded fees "grossly disproportionate" to relief obtained by the people they represent.

In the HP case, Circuit Judge Milan Smith wrote for a 2-1 majority that fees should take into account the value of coupons actually being redeemed, not the total coupon relief offered. The 9th Circuit returned the case to U.S. District Judge Jeremy Fogel in San Jose, California, for further proceedings.

The settlement was intended to resolve claims that consumers who bought HP printers between September 2001 and September 2010 were misled into spending too much on or misusing ink cartridges.

HP agreed to provide up to $5 million of coupons, known as "e-credits," for future printers and printer supplies on its website, and to improve disclosures. Lawyers for the consumers were awarded $1.5 million of fees and $597,000 of costs.

About 122,000 of the millions of class members filed claims before Fogel granted final settlement approval in March 2011.

But the accord drew objections from people including Ted Frank, a longtime advocate against high legal fees.

They said the settlement was the product of collusion between lawyers for HP and consumers, and violated portions of the federal Class Action Fairness Act that govern fees in settlements that have coupon components. . . .

Fourth Circuit Ponders “What Is a Pirate?”

2013-05-15T16:57:31+00:00

The Associated Press reports:

In the violent world of piracy, Mohammad Saaili Shibin was a multilingual negotiator based in lawless Somalia, working his cellphone to negotiate multimillion-dollar ransoms for merchant ships and sailors that dared to venture into pirate-infested international waters off Africa.

Does that make him guilty of piracy?

The question was the central argument Tuesday as a federal appeals court debated with an attorney seeking to overturn Shibin's piracy conviction and a government prosecutor arguing against it.

A three-judge panel of the 4th U.S. Circuit Court of Appeals is expected to issue an opinion in several weeks or longer in a case that could ultimately end up before the U.S. Supreme Court.

A federal judge sentenced Shibin last August to a dozen life sentences for his role in the hijacking of a German merchant vessel in 2010 that involved the torture of crewmembers to secure a higher ransom and the shooting deaths of four Americans aboard the yacht Quest in 2010.

Shibin has been called the top U.S. catch since it joined an international effort to combat piracy off Africa. That effort has brought nearly 20 bedraggled pirates for prosecution to Norfolk, where ships based at the huge naval base there have been deployed to combat the crimes.

James O. Broccoletti argued his client couldn't be convicted of piracy because he never set out on the high seas, a requirement set out by U.S. law. "He never left Somalia," he told the judges.

Define the "line, where does it cut off," for someone to be considered a pirate? asked Judge Paul V. Niemeyer. "I'm trying to find out what piracy is," he said.

Broccoletti responded that the crime must occur in international waters. "He never left the territorial water of Somalia," he said.

U.S. law governing piracy, which dates back nearly two centuries, defines piracy as boarding a ship at sea and robbing it. Since the U.S. began its crackdown in 2010, courts have come to conflicting conclusions on how the law should be interpreted.

The government maintains the U.S. statute incorporates broader international law and recognizes that piracy is an organized crime. That means it includes those who work onshore, such as Shibin, to research how much ransom a pirated vessel can come up with and to negotiate a payment for release.

"It's very difficult to get them," Assistant U.S. Attorney Benjamin Hatch told the judges. "It was very difficult to get Mr. Shibin. But we got him."

Broccoletti and Hatch, a lead prosecutor in the U.S. piracy convictions, each could barely string two sentences together as Niemeyer, Judge Diana Gribbon Motz and Judge Henry F. Floyd fired question after question at the two attorneys. The questioning, though, didn't signal which way they were leaning on the appeal. . . .

Prosecutors are seeking the death penalty against the three men charged with shooting the Americans on the Quest.

Eleven other men who boarded the yacht have pleaded guilty and been sentenced to life terms.

Quest owners Jean and Scott Adam of Marina del Rey, Calif., and friends Bob Riggle and Phyllis Macay of Seattle were the first Americans to be killed in pirate attacks in the Gulf of Aden and Indian Ocean.

Shibin also was involved in the piracy of the Marida Marguerite, a German-operated tanker carrying $10 million worth of fuel when it was hijacked in early May 2010.

Investigators said the Somali pirates tortured the 22 crewmembers "in indescribable ways" for hours at a time before receiving several million dollars' ransom and releasing the ship on Dec. 27, 2010.

Is Obama Right that the IRS Is an “Independent Agency”?

2013-05-15T14:03:53+00:00

Yesterday Eileen J. O'Connor commented at ExecutiveBranchReview, FedSoc's new blog devoted to executive branch regulatory activity:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.” Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

In 1976, to prevent another 48-year term of service like J. Edgar Hoover’s, Congress enacted Public Law 94-503, limiting the service of an FBI Director to a single term of no more than 10 years. Director Mueller is now completing a Congressionally-approved two-year extension of his ten-year term. Rather than find a new FBI Director, President Obama chose to hold over President Bush’s selection.

Effective in 1997, Congress enacted 26 USC 7803, creating a five-year term for the IRS Commissioner. Charles Rossotti was the first IRS Commissioner to be appointed to a five-year term. He was followed by Mark Everson, and then by Douglas Shulman, who left IRS when his term ended last November. Shulman had announced as early as April 2012 that he would not seek a second term. More than a year hence, the Administration has not nominated a successor.

Press Secretary Carney noted at his press briefing Friday, “The individual who was running the IRS at the time was actually an appointee from the previous administration.”

Can this mean the Administration subscribes to the axiom: “In politics, it’s not whether you win or lose, it’s how you place the blame”?

The Wall Street Journal similarly editorialized today:

One notable aspect of the Internal Revenue Service scandal is President Obama's strange view of accountability within the executive branch. In his Monday remarks addressing the targeting of conservative groups for tax-exempt scrutiny, Mr. Obama declared that the IRS is "an independent agency."

In his press briefing after the story broke on Friday, White House press secretary Jay Carney hit the same note. "The IRS is an independent enforcement agency with only two political appointees," he said.

The IRS is many things, but "independent" isn't one of them. It is formally part of the Treasury Department and is headed by the Commissioner of Internal Revenue, who is appointed by the President. The Commissioner is accountable to the President reporting through the Treasury Secretary.

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he's the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration's recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit's decision declaring its NLRB recess appointments unconstitutional. . . .

Second Circuit Rules NY Fire Dept. Did Not Intentionally Discriminate Against Minorities

2013-05-14T22:01:40+00:00

According to the Daily News:

The U.S. Court of Appeals has rejected a Brooklyn judge's ruling that the city intentionally discriminated against minority applicants to the FDNY, and ordered a new bench trial before a different judge to determine that issue.

The panel of appellate judges, though, left in place the appointment of a court-ordered monitor to oversee the FDNY's efforts to recruit more minorities and develop anti-discrimination policies. But the FNDY can do their recuitment in-house instead of hiring outside consultants.

The decision is a victory for city lawyers, who argued that Federal Judge Nicholas Garaufis had wrongly accused Mayor Bloomberg of willfully failing to end discrimination in the predominantly white ranks of the fire department.

In an 82-page decision, the appellate judges noted that intentional bias is not proved so much by steps city officials did not take, rather by than intentional actions they undertook.

But the appellate decision left in place most of the Garaufis' remedies to cure the disparate treatment.

"We do not believe the cited omissions of the mayor or the (fire) commissioner suffice to support a reasonable inference that they declined to act because they wanted to discriminate against black applicants," the judges wrote.

"In light of the myriad duties imposed upon the chief executive of a city of eight million people, more evidence would be needed," to prove Bloomberg or any other city official intentionally tried to keep blacks and Hispanics out of the FDNY, the judges concluded.

The Justice Department under then President George Bush had filed suit in 2007 against the city alleging that two written exams for firefighter candidates were biased against minorities. The Vulcan Society of black firefighters later joined the suit in Brooklyn Federal Court.

Vulcans' lawyer Richard Levy said the appellate decision leaves untouched the $128 million in back pay and damages to minorities who were never hired from those two tests or their hiring was delayed.

"We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case," said Corporation Counsel Michael A. Cardozo. . . .

Obama Administration Says Universities Must Implement Broad Speech Codes

2013-05-14T17:40:29+00:00

Eugene Volokh, Gary T. Schwartz Professor at UCLA School of Law, writes at the Volokh Conspiracy:

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials”
making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary. . . .

Justice Department Obtained Associated Press Phone Records in Leak Investigation

2013-05-14T13:04:29+00:00

The Washington Post reports:

In a sweeping and unusual move, the Justice Department secretly obtained two months’ worth of telephone records of journalists working for the Associated Press as part of a year-long investigation into the disclosure of classified information about a failed al-Qaeda plot last year.

The AP’s president said Monday that federal authorities obtained cellular, office and home telephone records of individual reporters and an editor; AP general office numbers in Washington, New York and Hartford, Conn.; and the main number for AP reporters covering Congress. He called the Justice Department’s actions a “massive and unprecedented intrusion” into newsgathering activities.

The aggressive investigation into the possible disclosure of classified information to the AP is part of a pattern in which the Obama administration has pursued current and former government officials suspected of releasing secret material. Six officials have been prosecuted, more than under all previous administrations combined.

In a letter to Attorney General Eric H. Holder Jr., the AP’s president and chief executive, Gary B. Pruitt, said that the Justice Department sought information beyond what could be justified by any specific probe and demanded that the government return the phone records and destroy all copies.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt wrote to Holder. “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

The inquiry is one of two leak investigations ordered last June by Holder. The second involves a New York Times report about the Stuxnet computer worm, which was developed jointly by the United States and Israel to damage nuclear centrifuges at Iran’s main uranium-enrichment plant.

The two leak inquiries were started after Republicans in Congress accused the Obama administration of orchestrating news stories intended to demonstrate the president’s toughness on terrorism and improve his chance for reelection. The Republicans sought a special prosecutor, but Holder instead named two veteran prosecutors to handle the inquiries.

In the AP case, the news organization and its reporters and editors are not the likely targets of the investigation. Rather, the inquiry is probably aimed at current or former government officials who divulged classified information.

But experts said the scope of the records secretly seized from the AP and its reporters goes beyond the known scale of previous leak probes.

“This investigation is broader and less focused on an individual source or reporter than any of the others we’ve seen,” said Steven Aftergood, a government secrecy expert at the Federation of American Scientists. “They have swept up an entire collection of press communications. It’s an astonishing assault on core values of our society.” . . .

Tomorrow 5/14: FedSoc Event and Webcast “Is the Patent System Working or Broken?”

2013-05-13T21:05:37+00:00

Today, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, the FTC, and the Supreme Court are considering adopting a variety of reform measures. On the other hand, the availability of patents and the property rights they secure are driving technological innovations once imagined only as science fiction - tablet computers, smart phones, genetically modified seeds, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others - and these technological marvels are now a commonplace feature of our lives.

A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.

The panelists have combined many years of experience in adjudicating patent cases, writing and speaking on patent or IP policy, and engaging with legal and policy issues closely connected with the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion will be insightful and illuminating. The event is co-sponsored by the Center for the Protection of Intellectual Property at George Mason University School of Law and the Federalist Society's Intellectual Property Practice Group.

Featuring:

Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

Event details:

Start : Tuesday, May 14, 2013 12:00 PM

End : Tuesday, May 14, 2013 2:00 PM

Location: National Press Club, 529 14th St. NW, Washington, DC

This event will be webcast live.

Registration details: Registration for this event is now closed. There is no cost to attent this event. Lunch will be included. Please dial 202-822-8138 with any questions.