FedSoc Blog

The Los Angeles Times reports that the implementation of the contraceptive mandate in the Obama administration's healthcare law is likely to end up in the Supreme Court:

The Supreme Court and the Obama administration, already headed for a face-off in March over the constitutionality of the healthcare law, appear to be on another collision course over whether church-run schools, universities, hospitals and charities must provide free contraceptives to their students and employees.

The dispute stems from one of the more popular parts of the new healthcare law: its requirement that all health plans provide “preventive services” for free. That category includes vaccines and such routine screenings as cholesterol checkups and mammograms. Starting this year, it also includes coverage of birth control pills, IUDs and other contraceptives.

Catholic leaders reacted fiercely when the administration announced in recent days that it would hold most religious institutions to that mandate, even those that have moral and religious objections to what some of their lawyers describe as “abortion-inducing drugs.”

Already two religious colleges have sued, and their cause got a major boost earlier this month from a unanimous Supreme Court decision that greatly expanded the definition of religious freedom.

Archbishop Timothy M. Dolan in New York, president of the U.S. Conference of Catholic Bishops, denounced the requirement as “unconscionable,” saying the church should not be forced “to act as if pregnancy is a disease to be prevented at all costs.”

Women’s rights groups, on the other side, say that without the law’s coverage, hundreds of thousands of women, including students at Catholic universities and workers at church-related hospitals, would be denied coverage for one of the most commonly used forms of healthcare.

For FedSoc's previous coverage of the health care and conscience debate, see here.

The Chronicle of Higher Education profiles Jonathan Haidt, a psychologist who claims that the social sciences would be improved by the influx of more conservative professors, the presence of which would help mitigate liberal biases.  A professor of psychology at the University of Virginia, Haidt stirred controversy last year by making such points in a talk he gave at the annual convention of the Society for Personality and Social Psychology.  Haidt's newest book, The Righteous Mind: Why Good People Are Divided by Politics and Religion, will be published next month.

According to the Chronicle:

One of the core ideas in Jonathan Haidt's new book is that morality "binds and blinds." As the psychologist dug into that topic, it led him in an unexpected direction: examining what he sees as the liberal bias of his own field.

The University of Virginia professor went public with his concerns in an incendiary talk last year, portraying social psychologists as "a tribal moral community" bound together by liberal values.

In the speech at the annual convention of the Society for Personality and Social Psychology, the main scholarly organization for social psychologists, Haidt argued that the field discourages conservatives from entering—and leaves those who do feeling like closeted homosexuals. He called for affirmative action to make the field 10 percent conservative by 2020.

In support of his ideas, Haidt pointed to "taboos and danger zones," subjects that turn on the moral "force field" and prevent researchers from exploring "the full range of alternative hypotheses." He offered as one example the controversy that engulfed Lawrence H. Summers, a former president of Harvard, after he speculated that innate differences might partially explain why men are overrepresented in mathematics and science departments at leading universities.

"We psychologists should have been outraged by the outrage," Haidt said. "We should have defended his right to think freely."

Haidt also pointed to the extreme underrepresentation of conservatives in social psychology. When he surveyed the 1,000 colleagues who attended his talk, 80 to 90 percent identified themselves as liberals. Only three people said they were conservatives.

On January 18th, the Supreme Court announced its decision in Golan v. Holder.  The question was whether Congress has the power to restore copyright protection to works that have entered the public domain.

In an opinion delivered by Justice Ginsburg, the Court affirmed 6-2 that Congress does have the authority to put certain works that have entered the public domain back under copyright protection. Justice Breyer, joined by Justice Alito, filed a dissenting opinion.  Justice Kagan took no part in the consideration or decision of the case.

We have Christopher Newman, assistant professor at the George Mason University School of Law, to discuss the case.

Click here to view this article on the source site »

In an editorial over the weekend, The New York Times called for a stop to filibusters against nominees for presidential appointments:

The system for reviewing presidential appointments is broken. The Senate has a constitutional duty to provide advice and consent on the naming of judges and high-ranking executive branch officials. But the process has been hijacked by cynical partisanship and cheap tricks.

This is not a new problem, but it has gotten intolerably worse and is now threatening to paralyze government, as Republicans use the filibuster to try to kill off agencies they do not like. The number of unfilled judicial seats is nearing a historic high.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly.

To get a sense of just how "major" this "change of position" is, compare this NYT editorial from 2005, during the George W. Bush administration:

The Senate will return from Easter vacation with nuclear options on its mind. Republicans seem determined to change the rules so Democrats will no longer be able to stop judicial nominations with the threat of a filibuster. If they're acting out of frustration, it's understandable. In the past we've been frustrated when legislators tried to stop important bills from passing by resorting to the same tactic. The filibuster, which allows 41 senators to delay action indefinitely, is a rough instrument that should be used with caution. But its existence goes to the center of the peculiar but effective form of government America cherishes.

Similarly, in 2003 the Times' editorial board called for Democrats to maintain the filibuster against Miguel Estrada, whom President Bush had nominated for the United States Court of Appeals for the District of Columbia Circuit:

Republicans are attacking Democratic senators for using a filibuster. The criticism rings hollow, given that some Republicans making it, including the majority leader, Bill Frist, voted to filibuster when President Clinton nominated Richard Paez, a Mexican-American, to an appeals court.

UPDATE: At the Volokh Conspiracy, Jonathan H. Adler defends the spirit of the NYT's current position:

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Writing for The Hill, Alan Charles Raul, a partner at Sidley Austin who served as vice chairman of the Privacy and Civil Liberties Oversight Board, offers his concerns about the newly created Consumer Financial Protection Bureau:

The Department of Justice’s Office of Legal Counsel opined recently that since most of the Senators weren’t around during their pro forma sessions, the Senate wasn’t really in a position to advise and consent regarding the President’s nominees. But OLC’s opinion never actually concluded that the specific recess appointment of Richard Cordray to be Director of the Consumer Financial Protection Bureau was constitutionally valid. This raises serious issues for anyone concerned about excessive concentration of government power. 

The reason the OLC opinion doesn’t address whether the Senate was available to consider Mr. Cordray’s nomination is obvious. The Senate did in fact consider Mr. Cordray’s nomination. On December 8, 2011, the Senate provided President Obama with all the advice he needed and rejected cloture on Cordray’s nomination by a 53-45 vote.

The Senate’s problem with Cordray was not at all personal, but rather, was a matter of principle involving serious constitutional concerns about the new agency itself. Sen. Richard Shelby (R-Ala.), wrote to President Obama on May 5 calling on him to support structural changes to the CFPB that would enhance oversight and make the new agency more accountable. As Shelby as said, “Unless Congress enacts reform, it is only a matter of time before this concentration of power is abused or misused to the detriment of American businesses and consumers.”

 So whether there was a constitutionality sufficient “recess” to appoint Mr. Cordray is a red herring – it is the director’s unchecked power that is the fundamental problem. The new agency simultaneously offends the constitutional authorities – and responsibilities – of both the Congress and the President. And it is no cure that both branches acquiesced in the infringement of their own authority. The Dodd-Frank legislators simply let their good intentions blind them to the need for respecting traditional checks and balances.

In December 2010, C. Boyden Gray and John Shu expressed similar misgivings about Dodd-Frank in an article they published in Engage, FedSoc's practice journal.  As they wrote in their introduction:

There has been much debate over whether Dodd-Frank will accomplish its stated intent, but there is also a growing exchange about whether the law is constitutionally infirm, primarily due to separation of powers, vagueness, and due process. Central to this discussion is the fact that Dodd-Frank grants bureaucracies broad and unchallengeable discretionary authority; we query whether the Act provides effective oversight by any branch of government—the President, Congress, or the Judiciary.

On January 10, the Supreme Court announced its decision in Minneci v. Pollard. The question in the case was whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.  

In an opinion delivered by Justice Breyer, the Court held 8-1 that it could not imply a Bivens remedy here because state law authorized alternative damages actions that provide both significant deterrence and compensation.  Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the Court’s judgment.  Justice Ginsberg filed a dissenting opinion.

We have Alexander Volokh, assistant professor at Emory University School of Law, to discuss the case.

Click here to view this article on the source site »

Writing for The American Spectator, Jack Park, an attorney at Strickland Brockington Lewis, comments on the Supreme Court's decision in Perry v. Perez:

On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court's ruling highlights the importance of a state's legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.

In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn't done with its work.

The Supreme Court told the Texas court to give greater respect to the legislature's work. As the Court explained, that's as it should be, given that redistricting involves the making of "policy judgments" that courts are "at best, ill suited" to make.

The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out "any discriminatory purpose" on the part of a covered jurisdiction.

When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren't. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don't have the purpose or effect of "denying or abridging the right to vote on account of race or color."

On January 9th, the Supreme Court heard oral argument in Sackett v. EPA.  The case involves two landowners who graded a lot in a residential subdivision so that they could build a home there.  The Environmental Protection Agency subsequently issued an administrative compliance order to the landowners stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance.  

The question before the Court is whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if not, whether the compliance order deprives the landowners of due process of law.

We have Elizabeth Papez, a partner at Winston & Strawn, to discuss the case.

Click here to view this article on the source site »

The Wall Street Journal reports that a federal court in North Dakota dismissed a complaint filed by the Obama Justice Department against three oil companies under the Migratory Bird Act:

Continental Resources, Brigham Oil & Gas and Newfield Production Company were accused of causing the deaths of six Mallard ducks and one Say's Phoebe, which had waded in oil pits. The criminal charges carried fines and potential prison sentences.

In a ruling that can only be called withering, district Judge Daniel Hovland contrasted "incidental and unintended" deaths during "legal, commercially-useful activity" with "hunting and poaching." The court rejected U.S. Attorney Timothy Purdon's "expansive interpretation of the law" because it "would yield absurd results": If the government's case carried the day, "many everyday activities become unlawful—and subject to criminal sanctions—when they cause the death of pigeons, starlings, and other common birds."

The newspaper had previously claimed that the Obama administration was selectively prosecuting the Migratory Bird Act against oil companies but not companies generating energy via wind turbines, which kill many birds.

For some of the Federalist Society's previous examination of overcriminalization in federal law, see here. On January 31st, FedSoc's Triangle Lawyers Chapter will be hosting a talk on the subject in Raleigh, North Carolina.  The guest speaker is John S. Baker, Jr., Distinguished Scholar in Residence at Catholic University of America Law School and Emeritus Professor at Louisiana State University Law School.

On January 10, the Supreme Court announced its decision in Gonzalez v. Thaler.  The case presented two questions arising under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).  The first was whether a judge’s failure to “indicate” the constitutional issue that a state prisoner has raised in a habeas appeal deprives a court of subject-matter jurisdiction to hear that appeal.  The second question was when a judgment becomes “final” for purposes of calculating the one-year limit that state prisoners have in which to file a federal habeas petition.

In an opinion delivered by Justice Sotomayor, the Court held 8-1 that (1) a judge’s failure to “indicate” the requisite constitutional issue raised by a state prisoner does not deprive a court jurisdiction to hear a state prisoner’s habeas appeal, and (2) for a state prisoner who does not seek review in the state’s highest court, judgment becomes final on the date that the time for seeking such review expires.  On that basis, the Court affirmed the decision of the lower court that the state prisoner’s federal habeas petition was time-barred.  Justice Scalia filed a dissenting opinion.

To discuss the case, we have Ozan Varol, visiting assistant professor at the Chicago-Kent College of Law.

Click here to view this article on the source site »

Brian Kalt is guest blogging at the Volokh Conspiracy regarding his new book Constitutional Cliffhangers.   In his first post, the Michigan State University professor defines "constitutional cliffhangers" as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.”  Why should we care about scenarios that many might think are bizarre and unlikely?  Kalt explains:

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late.

On January 10th, the Supreme Court announced its decision in CompuCredit Corp. v. Greenwood.  The case regarded the Credit Repair Organizations Act (CROA), which requires credit repair organizations to disclose to consumers that they have a right to sue credit repair organizations that violate the Act.  At issue was whether a credit repair company being sued by former customers under CROA could force those customers to arbitrate their claims based on an arbitration provision contained in the customers’ credit card applications.

In an opinion written by Justice Scalia, the Court held 8-1 that CROA does not address the arbitrability of claims made under it, and that the Federal Arbitration Act therefore requires the arbitration agreement to be enforced according to its terms.  Justice Sotomayor filed a concurring opinion, joined by Justice Kagan.  Justice Ginsburg filed a dissenting opinion. 

We have Christopher Drahozal, a professor at the University of Kansas School of Law, to discuss the case.

Click here to view this article on the source site »

The Federalist Society has posted videos of nearly the entire 14th annual Faculty Conference, which was held January 5-6, 2012, in Washington, D.C.

Below please find the schedule with links to the videos.

Thursday, January 5, 2012

Panel 1: The Sovereign Shareholder? Government Ownership and Corporate Law Post-Bailout  

• Prof. Lynn Stout, UCLA School of Law
• Prof. J.W. Verret, George Mason University School of Law
• Prof. David Zaring, The Wharton School, University of Pennsylvania
• Moderator: Dean Donald Weidner, Florida State University College of Law
• Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

Friday, January 6, 2012

Panel 2: Public Sector Unions  

• Prof. Samuel Estreicher, New York University School of Law
• Prof. John McGinnis, Northwestern University School of Law
• Prof. Joseph Slater, University of Toledo College of Law
• Moderator: Prof. James Lindgren, Northwestern University School of Law

Young Legal Scholars Paper Presentations  

• Mr. William Baude, Stanford Constitutional Law Center, "Beyond DOMA"
• Prof. Dan Markel, Florida State University College of Law, "Retributive Justice and the Demands of Democratic Citizenship"
• Prof. Andrew Schwartz, University of Colorado Law School, "The Perpetual Corporation"
• Prof. Houman Shadab, New York Law School, "Credit Risk Transfer Governance: The Good, the Bad, and the Savvy"
• Commenter: Prof. Eugene Volokh, UCLA School of Law
• Commenter: Prof. Todd Henderson, University of Chicago Law School
• Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center

Luncheon Debate: The Alien Tort Statute, International Law, and the Judiciary  
Co-sponsored by the American Society of International Law

• Prof. Eugene Kontorovich, Northwestern University School of Law
• Prof. Stephen Vladeck, American University Washington College of Law
• Moderator: Ms. Elizabeth Andersen, Executive Director & Executive Vice President, American Society of International Law

Panel 3: Judicial Ethics  

• Prof. Charles Geyh, Indiana University Maurer School of Law
• Prof. Stephen Gillers, New York University School of Law
• Hon. A. Raymond Randolph, U.S. Court of Appeals, District of Columbia Circuit
• Prof. Ronald Rotunda, Chapman University School of Law
• Moderator: Hon. Deanell Tacha, Pepperdine University School of Law

The Supreme Court today delivered its opinion in United States v. Jones, a case regarding whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violated the Fourth Amendment.  (Find Orin Kerr's earlier SCOTUScast on the case here.)  The court ruled unanimously that the use of the GPS tracking was in fact an unconstitutional search.

Justice Antonin Scalia delivered the opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Sonia Sotomayor (who also filed a concurring opinion), and Clarence Thomas:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

Justice Samuel Alito filed a concurring opinion, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan. Alito wrote:

[The majority's] holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Fox News reports:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.

The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena. 

Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

"To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." Romero told Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.