On November 21, the Senate voted to change the rules on filibusters for judicial nominations to require 50, not 60, votes for cloture on a nominee. This so-called “nuclear option” was a controversial move, yet ultimately necessary to stop Senate obstructionists from effectively shutting down the judiciary with filibusters of President Obama’s nominees.
Following the rules change vote, Senate Majority Leader Harry Reid (D-Nev.) made a motion to reconsider the cloture vote on Patricia Millet for the D.C. Circuit, which was previously blocked. The vote on her confirmation is expected to be held when the Senate returns to session on December 9. It is anticipated that reconsideration of Federal Housing Finance Agency nominee Rep. Mel Watts (D-N.C.), as well as D.C. Circuit nominees Cornelia “Nina” Pillard and Richard Wilkins, will soon follow.
ACS President Caroline Fredrickson explained: “With obstructionists in the Senate bent on shutting down the judiciary, something had to give…Our judicial system is hamstrung and a rules change was necessary to ensure it gets back up and running.” Leading up to the rules change, Fredrickson discussed the importance of confirming judicial nominees on PBS’s NewsHour and MSNBC’s The Cycle.
Without the filibuster, the hope is that judicial nominations and confirmations will speed up when the Senate returns after the holidays. This depends, however, on the blue slip process, which some observers predict will be the obstructionist tactic of choice without the filibuster. Under current Senate Judiciary Committee rules, Senators must sign off on judicial nominees for judgeships in their state, known as “returning a nominee’s blue slip,” before the Committee can hold a hearing on a nominee.
In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.” Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003. Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.
The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering. According to the unitary executive theory, since the Constitution assigns the president all of “the executive power”, he can set aside laws that attempt to limit his power over national security. This is an enormous power: critics charge that it effectively places the president above the law. Advocates of broad presidential power argue it is necessary to defend the nation against the threat posed by terrorism.
Editor’s Note: On Tuesday, November 19, ACS is hosting a panel discussion on constitutional protections of privacy in a time of rapid technological innovation and increasing surveillance, featuring Dahlia Lithwick of Slate, Chris Calabrese of the ACLU, Stephen Vladeck of American University Washington College of Law and others. We hope that you will join us for this important and timely conversation. If you are interested in attending, please RSVP here.
By the end of this decade it is estimated that 30,000 drones will occupy national airspace. In 2012, Congress passed the Federal Aviation Administration Modernization and Reform Act, which ordered the Federal Aviation Administration (FAA) to promulgate regulations for the integration of drones into the national airspace. Law enforcement agencies around the country have purchased drones and are testing the new technology. As of May 2013, four Department of Justice (DOJ) divisions had acquired drones: the FBI; Bureau of Alcohol, Tobacco and Firearms (ATF); Drug Enforcement Agency (DEA); and, the U.S. Marshals Service. On June 19, FBI Director Robert Mueller told Congress that the FBI has deployed drones for surveillance on domestic soil and is developing guidelines for their future law enforcement use.
As compared with manned airplanes and helicopters, unmanned aerial surveillance bears unique risks to society's expectation of privacy. Drones, properly called unmanned aerial vehicles (UAVs), are practically invisible at altitudes where a manned aircraft could be seen with the naked eye. Smaller UAVs operate almost silently, making them significantly harder to detect. Moreover, UAVs can be equipped with sensory enhancing technologies such as thermal imaging devices, facial recognition software, Wi-Fi sniffers, GPS systems, license plate readers and cameras that can provide high resolution images from significant altitudes. This type of aerial surveillance presents the potential for intrusion of privacy far more pervasive than the flyover of a plane or helicopter. Drone surveillance has the potential to enable users to gather unprecedented amounts of information about people and retain it well into the future.
by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law. To hear more from Professors Tushnet and Lobel about Bond and the rest of the Court’s October Term 2013, please RSVP here.
The Roberts Court is properly described as a business-friendly Court. It’s also a Court that is sort of friendly toward federalism, as the commerce clause holding in the Affordable Care Act decision – though thankfully not the ultimate outcome – shows. But, federalism and business interests sometimes come into conflict. Businesses operating on a national scale often hope that Congress will preempt state regulations, so that they face only a single national rule rather than fifty or more regulations different in every state and sometimes in a bunch of cities. And, when Congress doesn’t make it clear that its statutes preempt state regulations, businesses want the Court to interpret federal statutes to be preemptive.
On Tuesday, the Court heard oral argument in Bond v. United States, a bizarre case on its facts that raises important questions about the scope of Congress’s power to enact statutes implementing treaties. The arguments suggested that some of the Court’s conservatives, and perhaps Justice Breyer, were inclined to say that Congress couldn’t use its power to implement treaties to reach truly local activities (although the precise formulation of the restriction they might adopt wasn’t clear).
Everyone seemed to agree, though, that the Bill of Rights limited the power to implement a treaty. And, whatever you might say about the treaty power and federalism, that does indeed seem to be a consensus position.
The consensus might be on a collision course with business interests, though, for the same reason that businesses sometimes favor preemption and national regulation over state regulation. In a forthcoming article in the Harvard Law Review, Marvin Ammori describes what he learned from general counsels at major commercial disseminators of information over the internet. For them, Ammori reports, Congress is basically just one state legislature or city council trying to regulate their activity along with a whole bunch of other legislatures – parliaments in France and Japan, and everywhere else. And, just as with preemption, these businesses might want to replace a system of lots of different regulations with one regulatory system.
by Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
Editor’s Note: This Thursday, November 7, the ACS Pittsburgh Lawyer Chapter and the University of Pittsburgh School of Law Student Chapter will host a Supreme Court Preview featuring Professor Tushnet and Professor Jules Lobel of the University of Pittsburgh School of Law. To hear more from Professors Tushnet and Lobel about Noel Canning and the rest of the Court’s October Term 2013, please RSVP here.
Courts of appeals panels with majorities appointed by Republican presidents have teed up a problem for the Supreme Court: Are the Court’s Republican appointees devotees of originalism or executive power – or, will they use originalism as an excuse for supporting executive power when the executive is a Republican but for opposing it when the executive is a Democrat?
National Labor Relations Board v. Noel Canning involves the president’s power to make recess appointments. Filibusters over nominations to the National Labor Relations Board had paralyzed the NLRB (aided and abetted by a Supreme Court decision holding that the NLRB couldn’t act through panels of fewer than three members), when Republicans in the Senate refused to go forward with nominations to fill three vacancies on the five-member board. Republican Senators also refused to allow a vote on the nomination of Richard Cordray to head the Consumer Financial Protection Bureau because they opposed the Bureau’s existence (and by law, the Bureau’s powers were quite limited in the absence of an agency head). President Obama responded by seizing on a technical “recess” in the Senate – a series of days out of session punctuated by minutes-long “pro forma” sessions – as the basis for making recess appointments to the NLRB and the CFPB.
With its new “members” on board, the NLRB entered an order against Noel Canning, which appealed. The U.S. Court of Appeals for the D.C. Circuit held that President Obama didn’t have the power to make the recess appointments because the recess appointment power allowed him to make appointments only when the Senate was between its major sessions – basically, between the adjournment of the House of Representatives pending an election and the new House’s convening. (A majority of the court of appeals also held that the recess appointment power extended only to vacancies that arose during that same period – not to vacancies that extended into a session of a sitting Congress.)