Alan B. Morrison

  • November 2, 2012

    by Jeremy Leaming

    Earlier this year after U.S. Solicitor General Donald B. Verrilli Jr. took to the Supreme Court to defend the Obama administration’s landmark health care reform law and argue against portions of Arizona’s rigid anti-immigrant law, some pundits scored Verrilli for apparently dropping the ball, so-to-speak. After the oral argument in the Arizona case, the Drudge Report claimed “Obama’s Lawyer Chokes Again.” And from the left Adam Serwer in a piece for Mother Jones said Verrilli (pictured) seemed unprepared for defending the Affordable Care Act, saying he appeared to advance only “jargon and talking points.”

    At the time there was some push back, including this ACSblog post, against the trashing of Verrilli’s work. Andrew Pincus, a partner at Mayer Brown, scoffed at the criticism telling MSNBC that oral argument very rarely plays a major factor in determining the outcome of cases before the high court.

    But in a much more thoughtful and in-depth piece for SCOTUSblog, distinguished law professor Alan B. Morrison explains why figuring out Supreme Court wins is not a simple endeavor.

    For example, Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law at GW, notes the complexity of the case involving the ACA – there were multiple issues at play in that one.

  • June 25, 2012
    Guest Post

    By Alan B. Morrison, Lerner Family Association Dean for Public Interest & Public Service at George Washington University Law School

    The Supreme Court today by a vote of 5-3 upheld most of the rulings of the lower federal courts that Arizona’s efforts to supplement federal enforcement of federal immigration law was preempted by that law. Justice Kagan did not participate because she had worked on the case when she was Solicitor General. The ruling constituted a major victory for the Obama administration in a case that was vitally important to the Hispanic community.

    Others will join the debate on whether the majority or the dissent was correct. I am writing to explore how progressives and others who support the American Constitution Society should react to this decision and how it compares to other decisions in which preemption was invoked to set aside other state laws that we might favor. My thesis is that, for most people, where you stand on preemption is where you sit on the substantive laws being preempted. A few examples will illustrate the point, after which I will try to put the issue in some perspective.

    The proposition that federal law trumps state law if there is a conflict is not in dispute. The problem arises because Congress is often not clear, or does not anticipate what state laws might look like in a field where Congress has legislated. The Arizona case can fairly be described that way.  Nonetheless, the Supreme Court has also been clear that state laws that stand as obstacles to the objectives or means used in federal laws are also preempted, which was the claim made here when the United States sued over the Arizona law that avowedly sought to “discourage and deter unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States.” Opponents of the Arizona law saw it as an effort to harass immigrants as well as other Hispanics, while proponents claimed that it was designed to take up the slack in federal enforcement. Progressives generally favored the preemption side, while conservatives (including the three dissenting Justices, who did not include the Chief Justice) supported Arizona. For States, being opposed to federal preemption is their almost universal response, although they often take a different position when the issue is whether state law preempts actions by counties or towns. The United States is a little less monolithic, but tends to favor preemption in many if not most cases.

  • June 28, 2010
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School
    The Supreme Court's 5-4 decision today invalidating a portion of the statute creating the Public Company Accounting Oversight Board (PCAOB) extends the implied power of the President to remove officers of the United States, but does so in a back-handed manner and introduces confusion into whether thousands of persons who work for the federal government are entitled to the statutory protections against removal that are currently contained in multiple provisions of the United States Code.

    Unfortunately, the statutory structure and relation of the Board to the Securities & Exchange Commission really matter, so here they go. After the various accounting and other securities fraud scandals that surfaced in the early 2000s, Congress passed Sarbanes-Oxley, one portion of which created the Board to regulate the accounting profession as applied to the securities field, modeling its structure on the bodies that regulate the stock exchanges, except that it made the Board a governmental entity, exercising government power. All five members of the Board are appointed by the Commission for terms of years (staggered) and are removable only for cause and only by the Commission, not the President. The majority opinion, written by Chief Justice Roberts, asserted that the Commission members are also removable only for cause, but as Justice Breyer pointed out in his 37 page dissent (plus 36 pages of statutory tables) the Commission's statute does not include any for cause language, unlike most of the comparable agencies, although it has always been assumed that the Commissioners can only be removed for cause.

    As befitting an agency that regulates a profession, the Board has the right to approve applications of accountants to practice before the Commission, issue rules, conduct investigations, and bring administrative enforcement proceedings to sanction accountants that violate its rules or those of the Commission. It is also undisputed that all Board rules must be approved by the Commission, and all of its administrative decisions are reviewable by the Commission, which has the power to reverse them, as well as to increase or decrease the Board's level of sanctions.

  • June 25, 2010
    Guest Post

    By Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School
    Like a brakeless train careening down a mountain, the Supreme Court delivered another blow to those seeking to avoid having their claims shunted off into arbitration when it held in Rent-a Center v. Jackson (No. 09-497, June 21, 2010) that the company's contract with its employee gave the power to the arbitrator, instead of a court, to decide when the terms of the arbitration were unconscionable. The 5-4 decision is significant in its own right (and wrongly decided as well), but that outcome is hardly surprising given the single-mindedness with which a narrow majority of the Court has pushed the Federal Arbitration Act of 1925 (FAA) into places that its authors could never have foreseen.

    The FAA was passed by Congress to overcome decisions that made agreements to arbitrate unenforceable, even between two sophisticated businesses, the only ones that were seeking to use arbitration instead of the courts in those days. In recent years, the Court has embraced arbitration with a passion and upheld arbitration clauses that applied not only to contract claims, but to claims arising under federal laws of all kinds, including those barring discrimination in employment on grounds of race, gender, age, and other protected categories. Moreover, although the FAA contains an exception for contracts involving employees working "in commerce," the Court narrowly construed this exemption so that the employment agreements of workers who, under the prevailing interpretation of the Commerce Clause in 1925, could not constitutionally have been reached then, had their claims forced into arbitration so long as they, or as the Court ruled in a subsequent case, their union, "agreed" to have those claims arbitrated. The Court also rejected attempts by states to preclude arbitrations in certain situations, or impose conditions on their use, beyond those generally applicable all contracts, such as the defense of unconscionability.