Elizabeth Wydra

  • June 26, 2014

    by Jeremy Leaming

    ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.

    The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.

    SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:

    Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

    Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”

    Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)

    The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.

  • November 2, 2012
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center (CAC). This analysis originally appeared on CAC’s Text & History Blog.


    The Supreme Court was in session Nov. 1 for a rare Thursday hearing, after rescheduling the arguments that were originally to be heard this past Tuesday due to Hurricane Sandy. It was odd to be in the courthouse on a Thursday, and it was mostly empty. Which is a shame, because the arguments in Chaidez v. United States are important and were very well made by both advocates in the case (Jeffrey Fisher for Ms. Chaidez, and Deputy Solicitor General Michael Dreeben for the United States).

    But the Justices, of course, were in the house, and we saw Hurricane Ginsburg make landfall (albeit in her usual elegant, well-mannered, and pointed yet respectful way). However, before getting into this morning’s argument in more detail, it is worth briefly recounting the facts of the case. Petitioner Roselva Chaidez, a citizen of Mexico, came to the United States in 1971 and became a lawful permanent resident in 1977. In 2003, Ms. Chaidez, on advice of counsel, pleaded guilty to mail fraud in connection with an insurance fraud scheme; she received $1,200 from the scheme, and in its entirety the fraud operation netted about $26,000. Ms. Chaidez was sentenced to four years of probation under the terms of her guilty plea. Unfortunately for Ms. Chaidez -- and unbeknownst to her at the time she pleaded guilty -- under federal immigration law, a fraud conviction involving a total loss in excess of $10,000 constitutes an “aggravated felony” for which a non-citizen can be deported. In 2009, after Ms. Chaidez unsuccessfully filed a petition for naturalization (and subsequently disclosed her criminal conviction in the interview, reflecting her lack of awareness of its immigration consequences), the U.S. government initiated removal proceedings based on her conviction.

  • September 17, 2012
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center. This post is part of an ACSblog Constitution Day Symposium.


    September 17th is Constitution and Citizenship Day, marking the day 225 years ago when our Founding charter was signed in Philadelphia and presented to “We the People” for ratification.  As Yale Law Professor Akhil Amar has eloquently explained, never before in world history had a government charter been ratified by the people themselves.  Calling our constitutional moment in 1787 the hinge of modern democratic history, Prof. Amar notes that the Founding generation took important steps to increase the number of eligible voters in the ratification process, with many states waiving voting restrictions (such as property requirements) and some allowing African Americans to vote for convention delegates.

    However advanced this expanded voting pool may have been during the 18th century; through a modern lens it is obviously profoundly flawed and restrictive.  Fortunately, after declaring that “We the People” would be the ones to establish and ordain the Constitution, the preamble also boldly states our intention to “create a more perfect union.”  The goal was not just to create something “more perfect” than what Americans had seen before -- whether it be the tyranny of the British crown or the dysfunction of the Articles of Confederation -- but to establish a Union that was itself perfectible across history.  Article V, authorizing Amendments, made it clear that the 1787 Constitution was not an end, but a beginning.  And perhaps nowhere is that arc of constitutional progress seen more plainly than in the story of suffrage.

  • June 24, 2011
    Guest Post

    By Elizabeth B. Wydra, Chief Counsel, Constitutional Accountability Center. This analysis is cross posted at CAC’s Text & History blog.


    Two years ago in Wyeth v. Levine, the Supreme Court refused to allow federal food and drug law to displace state consumer-safety law.  Instead, the Court held that Diana Levine, a Vermont musician whose arm had to be amputated after Levine suffered adverse effects from Wyeth’s brand-name drug, Phenergan, could hold the drug manufacturer liable under state failure-to-warn laws—laws which hold drug and other manufacturers responsible for inadequate safety labels.  Yesterday, in a 5-4 ruling, the Supreme Court held in PLIVA, Inc. v. Mensing that generic drug manufacturers may not be sued under state failure-to-warn law because it would be “impossible” for the generic drug manufacturers to comply with both state failure-to-warn law and federal law.  Given the nearly identical storylines, how did the Supreme Court come up with a happy ending for consumers in Wyeth but a happy ending for big business in PLIVA?

    To be sure, there are important differences between the labeling laws for brand-name and generic drugs.  Federal law, for example, requires a generic drug to carry the same label as the brand-name drug it replicates.  But this “duty of sameness” for generic manufacturers is tempered by a duty under federal law to report problems with generic drugs.  So, while generic drug manufacturers cannot unilaterally change their labels, they can—and must—approach the FDA to seek to revise a drug’s label when they have reasonable evidence of a serious problem with the drug.  Such a label change would then go into effect for both brand-name and generic drugs. There is no guarantee, of course, that the FDA will act based on the information provided by the generic drug manufacturer, but the manufacturer’s attempt to achieve a safe and adequate warning label would nonetheless likely serve as a defense to state liability.  In other words, if the generic manufacturer did what it could under federal law, a state failure-to-warn claim should be preempted by federal law because it would be impossible for the manufacturer to comply with both federal and state law.

    But if a generic drug manufacturer doesn’t even try to comply with federal drug safety law and state failure-to-warn standards, it is difficult to see how it is “impossible” for the manufacturer to comply with both sets of laws.  As Justice Sotomayor explained in her PLIVA dissent, “because federal law affords generic manufacturers a mechanism for attempting to comply with their state-law duties to warn, . . . federal law does not categorically pre-empt state-law failure-to-warn claims against generic manufacturers.”  

    For the majority, led by Justice Thomas, to find impossibility preemption in this context is to twist the word “impossibility” beyond recognition.

  • June 14, 2011
    Guest Post

    By Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center


    In New Hampshire’s Republican presidential debate this week, former Minnesota Governor Tim Pawlenty made the following remarkable statement:

    This issue of birthright citizenship, again, brings up the importance of appointing conservative justices. That result is because the U.S. Supreme Court determined that that right exists, notwithstanding language in the Constitution.

    Is it remarkable that Pawlenty (pictured) supports appointing conservative justices to the Supreme Court?  Of course not.  But it is truly astonishing for a candidate for President of the United States to speak with such ignorance of the words of the Constitution.  After all, the Constitution itself, in Article II, section 1, requires the President to swear or affirm that he or she will “preserve, protect and defend the Constitution of the United States.”  That’s pretty hard to do if you don’t know what the Constitution says. 

    The Constitution’s 14th Amendmentprovides that “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  This language plainly lays out a constitutional rule of citizenship at birth.  No question. 

    Pawlenty’s claim that “the U.S. Supreme Court determined that [the right to citizenship at birth] exists, notwithstanding language in the Constitution,” is thus totally mind-boggling given that the Constitution spells out such a right.  But let’s give Pawlenty the benefit of the doubt and assume that he intended to make a narrower point: that activist judges somehow made up the rule that constitutional citizenship attaches at birth for children born on U.S. soil to non-citizens.  Such a claim would be flat wrong as well.

    In fact, one thing that is striking when you compare the debate over birthright citizenship today with the debates in Congress in 1866 over the 14th Amendment’s Citizenship Clause is that, in 1866, both the proponents and opponents of the Citizenship Clause agreed that the Clause recognizes and protects birthright citizenship for the children—including children of aliens—born on U.S. soil.  (It should be noted, however, that birthright citizenship today is not necessarily a partisan issue.  Many prominent conservatives, from Linda Chavez to Lou Dobbs, recognize that the Constitution provides citizenship at birth for children born on U.S. soil, including children born to undocumented immigrant parents.)