February 2011

  • February 28, 2011
    Guest Post

    By William Yeomans, a Fellow in Law and Government at American University Washington College of Law.
    Last week, 107 law professors from 76 law schools joined in a letter to the Chairs and Ranking Members of the Senate and House Judiciary Committees calling on Congress to take up two issues central to the integrity of the Supreme Court: the lack of a mandatory code of ethics governing the justices and the lack of a transparent and enforceable process governing recusal. The letter urged its recipients to convene hearings in the Senate and House Judiciary Committees and to advance appropriate legislation. The letter noted that recent media reports have heightened the visibility of these issues, but emphasized that the letter is a nonpartisan call for reform.

    The letter starts from the foundation that Supreme Court justices, unlike all other federal judges, are not subject to a mandatory and enforceable code of judicial conduct. Yet, Canon 1 of the Code of Conduct for United States Judges states that "[a]n independent and honorable judiciary is indispensable to justice in our society" and adherence to high standards of conduct is essential in maintaining such a judiciary. This admonition applies with added force to justices, whose decisions have the greatest impact. While justices may look to the Code of Conduct for guidance, they are not bound by its provisions. The letter, therefore, urges Congress to apply the Code of Conduct for U.S. Judges to Supreme Court justices and to establish procedures for enforcing the Code.

    Similarly, justices are permitted to determine whether to recuse themselves from matters before the Court without review by an independent entity and without explaining their decisions. The letter recalls the fundamental principle identified by Lord Coke in the Seventeenth Century that "no man may be a judge in his own case." Yet, that is exactly what we tolerate when a Supreme Court justice is faced with a recusal issue. Because there is no requirement that justices explain their reasoning in recusal decisions, the bar and the public often are left in the dark. We understand the importance of judicial opinions to the development, legitimacy, and integrity of the law in other matters. Providing transparency regarding recusal decisions is at least as important, since they cut to the core of the Court's integrity. The letter, therefore, urges Congress to require written opinions when justices decline to recuse themselves and to establish a procedure -- or require the Court to establish one -- that provides for independent review of recusal decisions.

    Recognizing that there are difficult choices to be made, the letter stops short of endorsing specific solutions to two important issues. The first is how to structure a mechanism for enforcement of the Code of Conduct regarding justices. While the Judicial Conference oversees this process for other federal judges, it may be necessary to involve justices in the new process or to consider creation of a new body.

  • February 28, 2011
    Republican lawmakers' efforts to force the Supreme Court to quickly rule on the constitutionality of the landmark health care reform's individual responsibility provision [or the individual mandate] is "almost entirely bogus," write Simon Lazarus and Timothy Jost in an article for Slate.

    The Affordable Care Act's opponents claim that an extraordinarily quick opinion from the Supreme Court on the law is crucial to "avoid unnecessary ‘daunting and costly financial regulatory burdens implementing [the ACA] over the coming year," write Lazarus, author of the recent ACS Issue Brief on the radical efforts the law's opponents are advancing, and Jost, law professor Washington and Lee University.

    Judge Roger Vinson ruled against the individual responsibility provision in late January and said the entire law contained too many parts for him to determine which ones could function with or without the individual responsibility provision in place. The Department of Justice has lodged a "Motion to Clarify," asking Vinson if his opinion halted the implementation of the entire health care law. Vinson, as noted by Lazarus and Jost, is expected to rule this week on that motion, which could if Vinson "rebuffs" the administration's motion send the case quickly to the federal appeals court.

    The authors maintain that quick legal rulings, especially one from the Supreme Court, are unnecessary and unwise.

    Lazarus and Jost continue:

    While it's true that, as of this moment, three district judges have upheld the mandate, and two, including Vinson, have struck it down, the overwhelming majority of state governments are proceeding right along, pocketing the benefits and undertaking the responsibilities prescribed by the ACA.

    As noted in the Justice Department's ‘Motion to Clarify,' 25 plaintiff states (all but Alaska) have already applied for and been awarded federal grants to set up the ‘exchanges' necessary to give individuals not covered by group health plans access to affordable insurance. Twenty-two plaintiff states have been awarded a total of $22 million to create or improve oversight of health-insurance premium increases. And 12 plaintiff states have contracted with HHS to run federally funded high-risk insurance pools established by the act.

    Beyond its uselessness, a speedy route to the Supreme Court "deprives the justices of the sorting-out process that multiple lower-court decisions can provide over time, especially helpful in a complex and controversial case like this one."

    The authors, in part, conclude:

    But - far worse than the loss of intermediate appellate review - premature Supreme Court intervention would also pre-empt the ongoing policy and political debate about the new law, and the individual mandate in particular. Active public and academic discussion about a number of issues is now raging over whether the mandate is indeed essential for its most central mission - ensuring affordable coverage for individuals with pre-existing conditions, whether other, more flexible incentive mechanisms could be nearly as effective (and be enacted); or whether the public will in time accept the connection between the mandate (of which a majority disapprove) and pre-existing conditions protection (which is highly popular).

    The entire Slate article is available here.

    Some of the "active public" discussion over the constitutionality of the health care law will take place March 3 at an event hosted by ACS. The event will include a keynote address by former U.S. Senate Majority Leader Thomas A. Daschle and a panel discussion, in which Lazarus will participate.

  • February 25, 2011
    Guest Post

    By David M. Uhlmann, the Jeffrey F. Liss Professor from Practice, and Director of the Environmental Law and Policy Program, University of Michigan Law School.
    Over the last 40 years, the United States has amassed a remarkable record of environmental, health, and safety accomplishments-with cleaner air and water, safer food, less dangerous cars, and overall a much higher quality of life for most Americans. It no longer physically hurts to breathe the air in major American cities, as it did in Los Angeles during the 1970's. The indelible image of the Cuyahoga River on fire, which burned as it passed through Cleveland during the 1960's, is now a distant memory.

    America today is better and stronger than it was 30 or 40 years ago as a result of the changes brought by our environmental, worker safety, and food and drug laws. In the span of a generation, we have outlawed lead in gasoline and paint, cars without seatbelts, and red dye number two in food. We have engineered startling health and safety advances from air bags and catalytic converters to scrubbers on smoke stacks and the elimination of chemicals like Freon that were burning a hole in the ozone layer.

    Yet it is unlikely that any of the health and safety gains we have enjoyed would have been possible under legislation proposed by Senator Rand Paul called the "REINS Act," which would strip federal agencies of the authority to implement environmental, public health, and safety protections unless a majority in both the House and the Senate approved the rules and they were signed by the President. The REINS Act is described as an effort to increase accountability and transparency in the regulatory process, but as with other "regulatory reform" measures, the high-minded rhetoric glosses over what is a cynical attempt to block further environmental, public health, and safety protections.

    We can and should ensure that we regulate American businesses only when necessary to meet broader societal objectives like limiting harmful pollution or preventing worker injuries or reducing motor vehicle deaths. For that reason, the Executive Branch only has the power to regulate when Congress passes laws that confer regulatory authority. As a further protection against unwarranted regulation, the Congressional Review Act allows Congress to veto any regulations that a majority in both Houses deem unacceptable. Congress also retains its authority to limit funding for marginal regulatory programs and to enact new laws if it believes regulatory protections are no longer necessary.

  • February 25, 2011

    The Senate is scheduled to vote Monday on two district court nominees, Amy Totenberg and Steve C. Jones. The Judiciary Committee will hold a second confirmation hearing on March 2 for Goodwin Liu, a Berkeley law professor, associate dean, and former ACS Board Chair who was first nominated for a seat on the U.S. Court of Appeals for the Ninth Circuit over a year ago, according to The Blog of Legal Times. Several district court nominees are also scheduled for a hearing on March 2. To learn more about federal judicial vacancies and follow the latest developments, visit JudicialNominations.org.

  • February 25, 2011
    Guest Post

    By Peter Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University. This analysis was originally posted on Shane Reactions.

    A distinguished fellow law professor, Adam Winkler, has recently argued that the Obama Administration's decision not to defend the constitutionality of the federal Defense of Marriage Act (DOMA) is an abdication of the responsibilities of the presidential office. He wrote: "For decades, presidents, Democrats and Republicans alike, have taken the position that it's the executive's obligation to defend the constitutionality of all federal laws. The basis for this view is the Constitution's command that the president ‘shall take Care that the Laws be faithfully executed.'"

    This position, however, is wrong on history and reflects an incomplete reading of the Constitution.
    In analyzing this question, it's important to distinguish two very different things: the executive duty to carry out the law and the President's duty to defend statutes challenged in court. On the first matter, Attorneys General have long set a very high bar before opining that the executive branch can decline to carry out the law. In 1919, Attorney General A. Mitchell Palmer, justly infamous on other grounds, penned a line that Attorneys General have consistently followed on the issue of whether questionable laws should be enforced: "Ordinarily, . . .it is not within the province of the Attorney General to declare an Act of Congress unconstitutional-at least, where it does not involve any conflict between the prerogatives of the legislative department and those of the executive department."

    The only likely defensible exception to this stance would occur if Congress were to enact law plainly violating well-established constitutional rights. Thus, for example, if Congress purported to reestablish racial segregation in D.C. public schools, the executive branch could rightly decline implementation.