FedSoc Blog

According to Reuters:

The U.S. Supreme Court agreed on Monday to decide how broadly to apply its two-year old ruling that immigrants have a constitutional right to effective assistance of counsel and must be told about possible deportation stemming from a guilty plea.

The justices said they would consider whether its March 31, 2010, ruling would apply retroactively to previous convictions or would only to convictions after that date. Defense lawyers said in their Supreme Court appeal that the issue has profound practical significance.

In its original ruling, the Supreme Court decided by a 7-2 vote that an immigrant's constitutional right to effective counsel was violated when his attorney mistakenly told him he could plead guilty to drug charges without being deported.

Immigrant rights advocates said at the time the decision could potentially affect thousands of immigrants every year.

Since the decision, U.S. courts of appeals have issued conflicting rulings on whether the high court's ruling applied retroactively. The U.S. Justice Department told the Supreme Court the issue involved a recurring question of substantial importance that warranted review.

At National Review's Bench Memos, Carrie Severino reports on important news on how Tennessee selects its judges:

I am very pleased to report that the Tennessee legislature has given overwhelming approval to a constitutional amendment that would replace Tennessee’s current method of selecting judges, the Missouri Plan, with a modified federal method.  

Under the terms of the amendment — which must be approved by a two-thirds vote in the next legislative session and then by a majority of voters in the 2014 election — judges in Tennessee would be nominated by the governor, confirmed by the legislature, and then stand for retention elections every eight years. To avoid logjam or obstruction of judicial nominees, the amendment provides for confirmation by default if a nominee is not rejected by the legislature within 60 days.

This is a significant moment in Tennessee’s history.  The state has been in some form of debate over methods of selection for nearly 40 years, with the debate growing especially intense in the last several years. As I have explained before, there are Tennesseans who feel very strongly that judges should be elected and others who are equally committed to the Missouri Plan. It has not helped matters that the state uses the Missouri Plan despite text in the Tennessee Constitution stating that “judges of the supreme court shall be elected by the qualified voters of the state.”  

So Governor Bill Haslam, House Speaker Beth Harwell, and Lieutenant Governor Ron Ramsey called for a constitutional amendment that would end the debate. After a great deal of discussion and negotiation, a modified federal method emerged as a compromise that garnered bipartisan support from more than two-thirds of the state’s legislators in both chambers.  And unlike so many compromises that take on the worst elements of all sides of an issue, this compromise took on the best elements of the method set forth in the U.S. Constitution by our nation’s Founding Fathers.  JCN is proud to have been a vocal supporter of that principled compromise.  

The Federalist Society recently created a new website devoted to covering the selection of judges in all 50 states.  You can find it at StateCourtsGuide.com.

Yale Law School recently hosted a conference on Yale Law Professor Jack Balkin's new book, Living Originalism. At Liberty Fund's Law and Liberty Site, Michael Greve, a scholar at the American Enterprise Institute, responds to Balkin's theory on constitutional interpretation as it applies to the Obamacare case:

Jack Balkin’s theory goes something like this: the Constitution and especially its more open-ended clauses require construction. The way that happens is that social movements move “off the wall” propositions “on the wall”—that is, suitable for judicial ratification. Whatever the normative attractions of this view, it’s a good description of the entrenchment of liberal positions of equal protection, abortion, and gay marriage—in fact, the full range of liberal commitments. But that’s not good enough for progressives. For them, the process must be irreversible and exclusive: conservatives can’t have respectable social movements, and their ideas must remain off the wall. That’s not Jack Balkin’s position (he explicitly rejects it), and so his friends have no more use for his living originalism than for any other kind (except maybe Bruce Ackerman’s, but that’s another story). The ACA presents the difficulty in neon lights: just as Living Originalism appears in print, a handful of libertarian nutjobs paint the broccoli argument on the wall and half the country (at least) seems to believe them. Small wonder Jack Balkin is getting a lot of liberal pushback.

Listen to the audio here.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. On April 24, 20120, our experts discussed this legal rationale, and the future of targeting U.S. citizens.  Participating in the teleforum were:

• Prof. Michael W. Lewis, Ohio Northern University Pettit College of Law
• Prof. Stephen I. Vladeck, American University Washington College of Law
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the International & National Security Law Practice Group podcast here.

The AP reports:

Emboldened by signals that the U.S. Supreme Court may uphold parts of Arizona's immigration law, legislators and activists across the country say they are gearing up to push for similar get-tough measures in their states.

"We're getting our national network ready to run with the ball, and saturate state legislatures with versions of the law," said William Gheen, president of Americans for Legal Immigration. "We believe we can pass it in most states."

That goal may be a stretch, but lawmakers in about a dozen states told The Associated Press they were interested in proposing Arizona-style laws if its key components are upheld by the Supreme Court. A ruling is expected in June on the Department of Justice's appeal that the law conflicts with federal immigration policy.

Dan Stein, president of the Federation for American Immigration Reform, said he was encouraged that several justices suggested during Wednesday's oral arguments that they are ready to let Arizona enforce the most controversial part of its law - a requirement that police officers check the immigration status of people they suspect are in the country illegally. Another provision allows suspected illegal immigrants to be arrested without warrants

"The justices sent a clear signal that there's a huge zone for state action in this area," Stein said. "There will be an enormous amount of energy spent in next few months examining the full range of possibilities."

On March 26, the Supreme Court announced its decision in Credit Suisse Securities v. Simmonds. The question in the case was whether, under the Securities and Exchange Act of 1934, the two-year time limit on filing lawsuits to force a corporate insider to disgorge “short swing” profits only begins to run when the insider files the disclosure statement required by the Act.  The U.S. Court of Appeals for the Ninth Circuit had ruled that the limitations period was tolled--and therefore did not begin to run--until the disclosure statement was filed.

In an opinion delivered by Justice Scalia and joined by all other Justices except Chief Justice Roberts (who took no part in the consideration or decision of the case), the Court held that, even assuming the two-year limitations period could be extended, the Ninth Circuit erred in determining that it was tolled until the disclosure statement was filed.  The Court further indicated that it was divided 4-4 on whether the Ninth Circuit erred in rejecting the claim below that the two-year time limit created a “period of repose” not subject to equitable tolling.  As a result, the Court affirmed that determination without precedential effect, but otherwise vacated the Ninth Circuit ruling and remanded the case for further proceedings. 

To discuss the case, we have Deanne Maynard and Jordan Eth, partners and Morrison & Foerster, LLP.

Click here to view this article on the source site »

The Washington Post covers the story:

The House’s solid bipartisan vote for a cybersecurity bill sends a message to the Senate: Now it’s your turn to act.

Ignoring a White House veto threat, the House approved the Cyber Intelligence Sharing and Protection Act, which would encourage companies and the federal government to share information collected on the Internet to help prevent electronic attacks from cybercriminals, foreign governments and terrorists.

The vote Thursday was 248-168, with 42 Democrats joining 206 Republicans in backing the measure.

Congressional leaders are determined to get a cybersecurity bill completed this election year but that may be difficult. The Obama administration and several leading Senate Democrats and Republicans want a bill that would give the Homeland Security Department the primary role in overseeing domestic cybersecurity and the authority to set security standards. The House bill would impose no new regulations on businesses, an imperative for Republicans.

BLT: The Blog of Legal Times reports:

Sen. Mike Lee (R-Utah) voted against a federal judicial nominee today that he actually supports. Although that sounds like a mistake, Lee did this on purpose.

The reason: Lee got caught between a nominee and a hardened political stance during a Senate Judiciary Committee hearing on Capitol Hill when it came to Robert Shelby, a non-controversial nominee for district judge in Lee’s home state of Utah.

Lee has voted against all of President Barack Obama’s nominees as a response to Obama’s controversial recess appointments to consumer and labor boards in January. And he didn’t back down today.

As Lee explained: “I want to express my unequivocal support for the president’s nomination of Robert Shelby….He’ll be an outstanding judge and I do look forward to his confirmation.”

“I will nevertheless ask to be recorded as a 'no' on his nomination,” Lee said. “The president may not ignore the constitution and simply decide for himself when the Senate is or is not in session for purposes of the recess appointments clause.”

Senate Republicans have announced they will file an amicus brief challenging the constitutionality of Obama’s appointments to the National Labor Relations Board.

On March 28, the Supreme Court announced its decision in Federal Aviation Administration v. Cooper.  This case involves the Privacy Act, which governs the manner in which executive branch agencies collect, use and disseminate records containing information about individuals.  The Act authorizes an award of money damages to an individual who establishes that government misuse of such records was intentional or willful and resulted in the individual suffering “actual damages.”  The question here was whether mental and emotional injuries qualify as “actual damages” under the Privacy Act.

In an opinion delivered by Justice Alito, the Court held by a vote of 5-3 that mental and emotional distress does not constitute “actual damages” under the Privacy Act.  Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined Justice Alito’s opinion.  Justice Sotomayor filed a dissenting opinion, which was joined by Justices Ginsburg and Bryer.  Justice Kagan did not participate in the consideration or decision of the case.

We have Richard Peltz-Steele, an associate professor at the University of Massachusetts School of Law-Dartmouth, to discuss the case.

Click here to view this article on the source site »

The Washington Post reports:

The United States has begun launching drone strikes against suspected al-Qaeda operatives in Yemen under new authority approved by President Obama that allows the CIA and the military to fire even when the identity of those who could be killed is not known, U.S. officials said.

The policy shift marks a significant expansion of the clandestine drone war against an al-Qaeda affiliate that has seized large ­pieces of territory in Yemen and is linked to a series of terrorist plots against the United States.

U.S. officials said that Obama approved the use of “signature” strikes this month and that the killing of an al-Qaeda operative near the border of Yemen’s Marib province this week was among the first attacks carried out under the new authority.

The decision to give the CIA and the U.S. Joint Special Operations Command (JSOC) greater leeway is almost certain to escalate a drone campaign that has accelerated significantly this year, with at least nine strikes in under four months. The number is about equal to the sum of airstrikes all last year.

The expanded authority will allow the CIA and JSOC to fire on targets based solely on their intelligence “signatures” — patterns of behavior that are detected through signals intercepts, human sources and aerial surveillance, and that indicate the presence of an important operative or a plot against U.S. interests.

On April 5, 2012, at FedSoc's National Security Symposium, former Secretary of Homeland Security Michael Chertoff discussed the nature of intelligence gained from behavior patterns.  You can watch the video of his talk here.

Bloomberg news reports on an 11th Circuit antitrust case:

A U.S. appeals court handed the Federal Trade Commission a defeat in its campaign to block so- called pay-for-delay arrangements between brand-name and generic drug makers, ruling a settlement involving a patent on Androgel didn’t violate antitrust laws.

The appeals judges in Atlanta upheld a lower court ruling in favor of Brussels-based Solvay SA (SOLB), which sold Androgel, a treatment for low testosterone in men, and three other companies including Watson Pharmaceuticals Inc. A settlement among the four delaying generic versions until 2015 prompted the FTC’s lawsuit.

The decision is a setback for FTC Chairman Jon Leibowitz, who estimates such deals cost consumers about $3.5 billion a year in higher prescription drug prices. The agency has failed to successfully challenge such agreements in court or to persuade Congress to outlaw them.

“We continue to believe this conduct violates the antitrust laws,” Leibowitz said in a statement, calling the situation a “lose-lose” for consumers. He said the FTC “will consider all our options going forward.”

David Balto, a Washington-based attorney who represents consumer groups on the issue, said Congress may have to find a solution.

“The FTC has been extremely dogged in pursuing these settlements, but you can’t expect antitrust litigation to solve these problems,” Balto said. “We really need legislation.”

On March 21, 2012 the Supreme Court announced its decisions in Lafler v. Cooper and Missouri v. Frye. The questions in both cases revolved around what happens when a criminal defendant receives deficient legal advice.  In Lafler v. Cooper, the Court considered whether a criminal defendant who rejects a favorable plea offer based on his lawyer’s advice and later is convicted and received a harsher sentence can seek to overturn that sentence on the grounds that his attorney was unconstitutionally deficient.  Missouri v. Frye considered whether a criminal defendant whose lawyer failed to communicate a plea offer from the prosecution can successfully claim ineffective assistance of counsel if he is later convicted and sentenced more harshly under a less favorable plea agreement.

In Lafler v. Cooper, the Court vacated and remanded the judgment of the lower court, holding by a vote of 5-4 that a criminal defendant who (a) rejects a plea offer based on legal advice so deficient that it violates the Sixth Amendment, and (b) later is convicted at trial and receives a harsher sentence, can (c) seek reconsideration of his sentence if he can show a reasonable probability that, but for the ineffective assistance of counsel, (1) the plea agreement would have been presented to and accepted by the court, and (2) the subsequent conviction and sentence (or both) under that plea agreement would have been less severe than the judgment and sentence that were actually imposed.  Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Scalia filed a dissenting opinion that was joined by Justice Thomas in full and by the Chief Justice as to all except Part IV, and Justice Alito filed a separate dissenting opinion.

The Court likewise vacated and remanded the judgment of the lower court by a vote of 5-4 in Missouri v. Frye, holding that the Sixth Amendment right to effective assistance of counsel in criminal cases includes the right to notice from one’s attorney of the terms of a plea offer from the prosecution.  Failure to convey such terms to the defendant violates that right.  To obtain relief, however, the defendant must still establish a reasonable probablility that, had he received effective assistance of counsel, (a) the defendant would have accepted the plea offer, (b) the resulting plea agreement would have been entered by the court, and (c) that agreement would have resulted in a plea to a lesser charge or a lighter sentence than was actually imposed.  Justice Kennedy delivered the opinion of the Court, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Scalia, joined by the Chief Justice and Justices Thomas and Alito, filed a dissenting opinion.

We have Kent Scheidegger, the Legal Director of the Criminal Justice Legal Foundation, to discuss the cases.

Click here to view this article on the source site »

Robert Barnes writes in the Washington Post:

The Supreme Court on Wednesday seemed receptive to the argument that Arizona’s tough plan to have state and local law enforcement play a much more active role in identifying illegal immigrants was a valid exercise of its power to protect its borders.

Hearing final oral arguments in the case, justices seemed skeptical of the Obama administration’s claim that a requirement that police check the immigration status of those arrested or detained was an impermissible intrusion on Congress’s power to set immigration policy and the executive branch’s ability to implement it.

“What could possibly be wrong,” Chief Justice John G. Roberts Jr. asked Solicitor General Donald B. Verrilli Jr., with Arizona officers simply checking the status of someone detained and giving the information to the federal government.

If the federal authorities do not wish to invoke deportation proceedings against the person, Roberts said, they don’t have to.

Justice Antonin Scalia went further, sharply questioning Verrilli about whether a state has the ability to “defend its borders.”

Justice Sonia Sotomayor told Verrilli that the government’s argument that “systematic enforcement” might violate federal law was “not selling.”

Verrilli said the structural problem with Arizona’s far-reaching law is that its goal of “attrition through enforcement” would simply move the problem of illegal immigration from one state to its neighbor. “That’s something that Arizona cannot do,” he said.

The justices seemed to have more concerns with other portions of Arizona’s S.B. 1070, which has led to similar attempted crackdowns in Alabama, Georgia, South Carolina, Utah and Indiana.

That could lead to the court to allow some parts of the Arizona law to go into effect, but restrict others.

The Los Angeles Times covered the story:

The Justice Department on Tuesday unveiled the first criminal charges in its investigation of the 2010 BP oil spill: two counts of obstruction of justice filed against a former BP engineer accused of destroying records describing the rate at which oil was flowing from the broken well at the bottom of the Gulf of Mexico.

The engineer, Kurt Mix, was involved in efforts to plug the well as well as internal BP efforts to estimate the amount of oil leaking from it in the first months after the spill. Prosecutors allege that Mix deleted two text message strings even after he was told by BP to preserve them.

In one string, Mix allegedly stated that the flow rate on the evening of May 26, 2010, was "over 15,000" barrels per day. At the time, prosecutors note, BP's public estimate of the rate was 5,000 barrels per day.

The charges show that federal prosecutors are not only interested in the handling of the drilling operation before the April 20, 2010, Deepwater Horizon explosion that killed 11 men, but also in the actions company officials took afterward, as crude gushed from the undersea well for 89 days, wreaking environmental havoc and a public relations catastrophe for the British oil giant.

The charges did not offer much of a hint as to how extensive the criminal reckoning could eventually be.

Writing for the Christian Science Monitor, Pratik Jones comments on the prosecutorial tactic involved:

While more criminal arrests are expected, the indictment against Mix – a mid-level engineer who had his pulse on how much oil was blowing out of the compromised well a mile below the Gulf of Mexico – has the earmarks of a common prosecutorial tactic in corporate cases: Single out a weak link in a company’s armor and put pressure on that person to testify on the government’s behalf.

Mix was released on $100,000 bail on Tuesday. He faces up to 20 years in prison if convicted on both counts.

“As a prosecutor, that’s the first thing you look for, a weak link,” says Jane Barrett, an environmental law professor at the University of Maryland. “And somebody obstructing an investigation is pretty easy to prove … and the goal would be to use this as a way to negotiate a cooperator deal, where [Mix] would, in exchange for [a reduced sentence], agree to provide information to the government on other aspects of the case.”

After a drawn-out legal fight, a settlement has finally been reached regarding a cross formely on public land in the Mojave Desert.  The settlement gets around the issue of whether the cross violated the Establishment Clause.  The AP reports:

A veterans group can restore a memorial cross in the Mojave Desert under a court settlement that ends a decade-old legal battle, the National Park Service said Tuesday.

A federal judge approved the lawsuit settlement on Monday, permitting the park service to turn over a remote hilltop area known as Sunrise Rock to a Veteran of Foreign Wars post in Barstow and the Veterans Home of California-Barstow.

The park will give up the acre of land in exchange for five acres of donated property elsewhere in the 1.6 million acre preserve in Southern California.

The swap, which could be completed by the end of the year, will permit veterans to restore a cross to the site and end a controversy that became tangled in the thorny issues of patriotism and religion and made its way to the U.S. Supreme Court in 2003.

The last cross was ordered removed by the park service in 2010 because of a court order.