• May 22, 2015

    by Caroline Cox

    Yesterday, President Obama nominated Edward L. Stanton III to serve on the United States District Court for the Western District of Tennessee. Stanton is currently the U.S. Attorney for the Western District of Tennessee and would replace Judge Samuel H. Mays.

    Also on Thursday, senators confirmed Jill Parrish to be a U.S. District Judge for the District of Utah and Jose Rolando Olvera Jr. to be a U.S. District Judge for the Southern District of Texas. Both nominations were confirmed by votes of 100-0.

    These confirmations doubled the number of judges confirmed in 2015. As The Hill reports, Senate Minority Leader Harry Reid made critical comments about the pace of judicial confirmations earlier in the week, saying, “We know there are judicial emergencies and vacancies throughout the country. But we’ve only considered two judges in this entire Congress.” Articles in The Washington Post and The Wall Street Journal also voiced concern over the low number of confirmations so far this year.  

    There are currently 55 vacancies, and 24 are now considered judicial emergencies. There are 17 pending nominees. For more information see

  • May 22, 2015

    by Caroline Cox

    Kara L. Hartzler, the 2013 recipient of ACS’s David Carliner Public Interest Award, won a major immigration case before the U.S. Court of Appeals for the Ninth Circuit, which Daniel M. Kowalksi highlighted at LexisNexis Legal Newsroom . Hartzler, who has served on the San Diego Lawyer Chapter’s Board of Directors, successfully represented George Camacho Garcia in appealing an immigration judge’s decision.

    In The New York Times, Richard Pérez-Peña reports on the indictment of six Baltimore police officers for the death of Freddie Gray.

    At the Democracy in America blog of The Economist, Steven Mazie discusses the Court’s decision in Comptroller v. Wynne, calling the decision an encouraging sign “that the justices are not always captive to their predilections.”

    Cristian Farias takes a look in New York Magazine at the Supreme Court’s first decision on a police officer shooting case since the Ferguson protests began.

  • May 21, 2015
    Guest Post

    by Gene R. Nichol, the Boyd Tinsley Distinguished Professor of Law and Director of the Center for Poverty, Work & Opportunity, UNC School of Law

    It’s no easy feat to crown a favorite Abraham Lincoln quote. The heartfelt urging of “malice toward none … charity for all,” the challenge to ordain “a new birth of freedom,” the recognition that “our republican robe is soiled and trails in the dust,” the tapping of the “better angels of our nature’, and the “mystic chords of memory stretching from every battlefield and patriot grave.” Many could quickly nominate a dozen others.

    My own is less noted: “Allow all the governed an equal voice in the government, and that, and that only, is self government.” [Though it is etched on the gallery walls at the Lincoln Memorial, our national temple of democracy.] The line comes from Lincoln’s 1854 Peoria address. Taking the national stage to decry Stephen Douglas’ repeal of the Missouri Compromise, Lincoln demanded, as Lewis Lehrman has written, that “the nation get right with the Declaration of Independence.” The defining portrait of democracy was the cornerstone, Lincoln reminded, of “our ancient faith.” It is the idea of America.     

    It would be hard to produce a stouter debasement of Lincoln’s sense of our national meaning than the recent parade of presidential hopefuls seeking audience, in humbled supplication, before a creepy and lengthening list of billionaire funders to secure meaningful entry into the 2016 race. The mega-buck primary is apparently more compelling, and decidedly more exclusive and demeaning, than the electoral one.  

    The Koch brothers have announced that a billion dollars is up for grabs for the candidate who pleases. Scott Walker reportedly has the inside track in what The New York Times calls the “Koch Primary.” But the mercurial pair has chosen to delay the purportedly outcome-bending announcement. Suspense, one supposes, augments the drama.

    When Sheldon Adelson let it slip that he was again in the market for a candidate, Chris Christie, Jeb Bush, John Kasich, Scott Walker rushed to Las Vegas to pay homage. The pageant was held, fittingly, in one of the Adelson casinos. The ever-belligerent Christie quickly apologized for prior statements about the Middle East. So much for tough-and-brutal talk. It is easy to see why. Adelson, who coughed up almost $100 million in 2012, suggested he’ll consider putting up serious money this time around. 

    Nor were others idle. Hedge Fund magnate Robert Mercer disclosed he will sponsor Ted Cruz. Rick Santorum, once again, will carry the colors of investment manager Foster Friess. Florida billionaire Norman Braham will provide at least ten million for Marco Rubio. Jeb Bush’s new super PAC, Right To Rise, will reportedly secure $100 million of individual and corporate donations by the end of May. The game is underway.

    The Democrats are no better – though they add a grotesque and habitual hypocrisy to the mix. 

  • May 21, 2015
    Guest Post

    by Ilya Somin, Professor of Law, George Mason University School of Law; author of The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press).

    The Obama administration’s immigration policy deferring deportation for more than four million illegal immigrants has been the focus of extensive constitutional debate since it was announced last fall. One conservative federal trial judge has ruled that the policy is unconstitutional, and another has concluded that it violates the Administrative Procedure Act, on the basis of arguments that suggest it is likely unconstitutional as well.  Despite these rulings, the Obama policy is constitutional, and appellate courts would do well to uphold it. Ironically, the case for it is particularly strong if we accept two principles that many of the policy’s conservative critics strongly support in other contexts: the unitary executive and limiting the scope of congressional power  as close as possible to its original meaning. At the same time, the Obama policy highlights the dangers posed by executive discretion in a world where there is far more federal law than any administration can effectively enforce.

    In many ways, the administration policy is simply an exercise of longstanding executive discretion in deciding when to enforce federal laws. There are more than 11 million illegal immigrants in the United States, and no administration is likely to deport more than a small fraction of them. Similarly, scholars estimate that a majority of Americans have violated federal criminal law at some point in their lives. Only a small fraction of these offenders are ever prosecuted. The executive generally has broad discretion to decide which suspected lawbreakers to go after and which ones to ignore.

    Many of  the administration’s critics claim that, by choosing not to enforce deportation against a large category of aliens, Obama is violating the Take Care Clause of the Constitution, which requires the president to “take care that the laws are faithfully executed.” But whatever else that Clause might mean, it surely does not require the president to enforce every federal law to the hilt, especially in a world where it would be literally impossible to even come close to doing so. Otherwise, virtually every president would be in constant violation of the Clause.

    Both judicial rulings against the Obama policy emphasize that it goes beyond ordinary executive discretion because it replaces “case by case” discretion with a general rule imposed by the president that categorically excludes broad categories of aliens from deportation. The categories in question cover numerous undocumented migrants who are either parents of U.S. citizens or permanent residents, or entered the U.S. as children. As Judge Arthur Schwab put it in the first ruling, the policy “provides for a systematic and rigid process by which a broad group of individuals will be treated differently from others… rather than case-by-case examination.” But the difference between case by case examination and categorical rules is one of degree rather than kind. Unless case by case discretion is completely arbitrary, it must be guided by some sort of generalizable criteria, such as the severity of the offense or the danger posed by the offender. And if such general rules can be applied by low-level law enforcement offenders handling particular cases, they can also be applied systematically by the president. After all, lower-level law enforcement officials are ultimately merely the president’s agents and subordinates.

  • May 21, 2015

    by Caroline Cox

    Irin Carmon of MSNBC reports on a ruling from the U.S. Court of Appeals for the Seventh Circuit that the Hobby Lobby decision does not mean religiously affiliated organizations can choose not to fill out a form to opt out of birth control coverage.   

    Mark Berman of The Washington Post writes that the Nebraska legislature has passed a bill to abolish the death penalty in the state.

    At Salon, Katie McDonough also explores the Seventh Circuit’s ruling and warns that “this isn’t the final word on the case, and the religious objectors will live to fight another day.”

    Jennifer L. Clark writes at the blog for the Brennan Center for Justice that Texas legislators are again trying to make it more difficult for citizens to vote.

    At Bloomberg View, Noah Feldman takes a look at the Supreme Court’s decision in Comptroller v. Wynne, calling it “one of the strangest 5-4 lineups” in recent memory.

    Scott Lemieux considers at the Lawyers, Guns & Money blog the potential aftermath of the King v. Burwell ruling.

    Dahlia Lithwick of Slate writes about the many new dramatizations of Supreme Court justices.