Alan B. Morrison

  • October 15, 2014

    by Katie O’Connor

    This past spring, McCutcheon v. FEC dealt the latest in a series of blows to campaign finance reform, striking down aggregate limits on the total amount of money a person can contribute to all candidates, parties, and PACs. Chief Justice Roberts wrote the opinion for the majority of the Court and Justice Breyer dissented. In this ACS Issue Brief, Alan Morrison asserts that while “the Chief Justice is right that the prior decisions of the current Court, as well as some of its predecessors dating back to Buckley v. Valeo, almost certainly support his conclusion on the invalidity of aggregate limits…Justice Breyer has by far the better argument that our democracy and the Constitution permit campaign finance laws that prevent more than what the majority will allow.”

    By the time the Court considered the aggregate limits in McCutcheon, most of the arguments in defense of such limits and other campaign finance reforms had been gradually eroded by the Court’s previous cases. The only defense to aggregate limits in McCutcheon was an argument that, without such limits, donors would be able to circumvent limits on contributions to parties, candidates, and PACs. However, there were a number of weaknesses in this defense, and given the Court’s decision in Buckley v. Valeo, it could hardly withstand scrutiny. Thus, the Court struck the aggregate limits as unconstitutional.

  • July 1, 2014
    Guest Post

    by Alan B. Morrison, Lerner Family Associate Dean for Public Interest & Public Service Law, George Washington University Law School

    Why would you pay for something if you can get it for free?  The obvious answer is that you wouldn’t.  And after this week’s decision in Harris v. Quinn (No. 11-681), if you work as a homecare provider in Illinois, you can get all the pay raises and benefits increases that the union negotiates without having to pay a penny to support those efforts.  According to the 5-4 opinion written by Justice Samuel Alito, the First Amendment guarantees that outcome.  Here’s how he got there, and where he went off the proper constitutional track.

    In about half the states, employees who work for state agencies (including teachers) have the right to join unions, and those unions have the right to bargain with the state or its agencies over terms and conditions of work. Depending on both the state and the job, the union may be able to negotiate over pay and benefits, as well as working conditions. Many such contracts have grievances procedures in which the union represents workers in an effort to resolve disputes with the employer.  Negotiating and implementing contracts cost money, and to pay for those services, states authorize unions, where a majority of the workforce agrees to establish one, to charge all employees for those services directly related to collective bargaining.  In exchange, the union is under a legal obligation to fairly represent all individuals covered by the collective bargaining agreement. The right to organize for public employees is governed by state law, and there is another system for private sector employees that generally operates in the same way, albeit with some significant differences that were not relevant in Harris.

    The workers in Harris were paid by the state, but worked for Medicaid recipients who needed a variety of home care services. Under Illinois law, the recipients choose the person who would provide those services (many of whom are family members) and direct and control his or her assignments. There were many other distinctions between those workers and the typical state employee, but Illinois decided that it would be willing to allow those workers to form a union to bargain with the state over wages and benefits, if a majority of those who performed such services voted for a union, which would mean the mandatory payment of monthly dues to support its work.

  • 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.