As the Supreme Court prepares to address the recess appointment dispute in National Labor Relations Board v. Noel Canning, Victor Williams at The Huffington Post reminds Justice Scalia of “his former, much broader view of originalism in the context of presidential appointment authority.”
The Supreme Court’s decision in Riley v. California and American Broadcasting Co. v. Aereo, Inc. “may significantly alter the way we capture, store, and consume information (Aereo) and the extent to which we can expect privacy with regard to, or control, that information (Riley).” Writing for the Brennan Center for Justice, Victoria Bassetti addresses whether the justices are “tech literate enough to get these cases right.”
Yesterday, the House Judiciary Committee voted to amend the USA Freedom Act which “would require the National Security Agency to get case-by-case approval from the Foreign Intelligence Surveillance Court before collecting the telephone or business records of a U.S. resident.” Kevin Drum at Mother Jones has the story.
Oklahoma Gov. Mary Fallin is facing criticism for her decision to bypass the state Supreme Court’s stay in the execution of Clayton Lockett. Jamelle Bouie at Slate argues that “Lockett’s execution was a horrifying display—a cruel and unusual death that wouldn’t have happened without Mary Fallin.”
by Saul Cornell, Paul and Diane Guenther Chair in American History, Fordham University
* May 15 marks the 75th anniversary of United States v. Miller, a 1939 case in which the Supreme Court unanimously held that Congress could prohibit the possession of weapons that were not related to the “preservation or efficiency of a well regulated Militia.” For decades, this was the only consideration the Court gave the Second Amendment, and arguably, it was generally understood that the Amendment's scope was limited to the use of firearms in connection with military activities. This changed in 2008 in District of Columbia v. Heller, and subsequently in 2010 in McDonald v. Chicago, when the Court declared that the Second Amendment provided an "individual right to possess a firearm.” The Court explained that they were not overturning Miller; that Miller only limited the type of weapon to which the individual right applies. As we consider the constitutional, legal and policy questions that now surround the Second Amendment, we should take a step back and ask if the Supreme Court got it right in Heller and McDonald. How should the Second Amendment be interpreted? ACS is pleased to raise this important question with progressive constitutional scholars and historians in an ACSblog symposium this week, May 5 through May 9.
In District of Columbia v. Heller, Justice Scalia engaged in a revisionist exercise, rewriting history to further his ideological agenda. If you have any doubts about this proposition, just consider the following: according to Heller’s logic, it would have been okay for the first Congress to pass a law making muskets illegal in the District of Columbia, but Congress would have been prohibited from banning dueling pistols. Such a conclusion is pretty hard to reconcile with the Amendment’s text and history.
Justice Ruth Bader Ginsburg has been a passionate advocate for progressive ideals during her long tenure on the Supreme Court. However, many on the left are urging Justice Ginsburg to retire at the end of the Court’s current term, in order to avoid risking “a Republican president filling her seat.” Garrett Epps at The Atlanticexplains why “this Supreme Court justice will leave the bench when she's ready, regardless of what others think.”
Writing for NYRblog, David Cole—Co-Faculty Advisor for the Georgetown University Law Center ACS Student Chapter—comments on the growing controversy regarding the Central Intelligence Agency’s alleged tampering with a Senate torture investigation. Cole argues that the CIA’s “desperate efforts to hide the details … are only the latest evidence of the poisonous consequences of a program euphemistically called ‘enhanced interrogation.’”
The Cleveland-Marshall College of Law has announced a plan to allow its students the opportunity to end law school early while earning a Master of Legal Studies degree. Karen Sloan at The National Law Journal breaks down the first “risk-free Juris doctor program.”
Ronald K. L. Collins at Concurring Opinions examines how Justice Antonin Scalia’s “view of textualism and originalism … plays out in the First Amendment context.”
At Balkinization, Marty Lederman provides readers with a collection of his commentary on Sebelius v. Hobby Lobby Stores, Inc. A list of ACS resources on Hobby Lobby and other challenges to the Affordable Care Act can be found here.
Peter Hardin at GavelGrab discusses the Tennessee Supreme Court’s decision to uphold retention elections.
Writing for Bloomberg, distinguished Harvard Law School professor Cass R. Sunstein objects to the “originalist” approach to constitutional interpretation. Sunstein reveals originalism’s “alluring siren’s call” and why “our constitutional tradition has been right to resist it.”
Today, members of the Privacy and Civil Liberties Oversight Board will testify before the Senate Judiciary Committee regarding their report on the National Security Agency’s bulk collection of phone records. Jennifer Granick of Just Security offers eight important questions Congress should be asking the PCLOB about the controversial surveillance tactics under section 702 of the FISA Amendments Act.
Last year, the Internal Revenue Service proposed new rules regulating political speech for select nonprofit organizations. Reporting for the ACLU’s Blog of Rights, Gabe Rottman and Sandra Fulton explain why these rules “create the worst of all worlds.”
At the NAACP, U.S. Secretary of Health and Human Services Kathleen Sebelius and NAACP Senior Director of Health Programs Shavon Arline-Bradley celebrate Black History Month with a discussion about the Affordable Care Act.
NPR’s Carrie Johnson notes Attorney General Eric Holder, Jr.’s call for 11 states to repeal laws prohibiting current or formerly convicted felons from voting
Presidents have been making recess appointments since the founding; in fact President George Washington employed a recess appointment to name John Rutledge the Second Chief Justice of the United States, though his nomination was eventually defeated by the Senate. There has long been a political understanding which has governed recess appointments. In a recent ACS conference call, David Strauss, Gerald Ratner Distinguished Service Professor of Law and ACS National Board of Directors member, noted that, for example, since the administration of President James Monroe, it has been understood that a vacancy need not arise during a congressional recess in order for it to be filled via a recess appointment. However, this political consensus may soon collapse as the Court fully examines the clause for the first time.
The case before the Court deals with the validity of a 2012 National Labor Relations Board (NLRB) decision rendered by a panel made up of three members of the five-member Board. President Obama had appointed two of the three members to the Board via a recess appointment. A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit agreed with Noel Canning (a division of the Noel Corporation) that the recess appointments to the NLRB were unconstitutional. During the recent ACS call, American Enterprise Institute Resident Scholar Norman J. Ornstein called the D.C. Circuit’s decision a “breathtaking exercise of judicial activism.” On appeal, three questions are before the Court: whether a president’s recess appointment power is limited to inter-session recesses, or if it extends to intra-session recesses; whether a recess appointment can fill any vacancy, or if it is limited to those vacancies, which arose during the recess; and whether recess appointments can take place when the Senate is meeting every three days in pro-forma sessions, a practice that has become increasingly frequent in recent years as partisan rancor has escalated.