Separation of Powers and Federalism

  • November 15, 2013
    Guest Post
    by Hillary B. Farber, Associate Professor of Law, University of Massachusetts School of Law, and author of a forthcoming article on the domestic deployment of drones in Vol.64 of the Syracuse Law Review
     
    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.
  • November 6, 2013
    Guest Post
    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.
  • November 5, 2013
    Guest Post
    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.)
  • November 5, 2013
    Guest Post
     
    This post originally appeared at BORDC's People's Blog for the Constitution. It is the second installment in a two-part series; the first installment can be read here.
     
    As the NSA spying scandal has progressed, congressional Democrats have grown co-opted by an Obama administration committed to defending, entrenching, and perpetuating the Bush administration’s legacy—despite the president’s campaign promises in 2008 to reverse it. This co-optation spells grave threats not only to partisan Democrats, but also to principled progressives attached to an ideology inadvertently weakened by partisan Democrats aligned with the president.
     
    Rallying around President Obama…to shoot themselves in the feet
     
    In August 2013, during the debate on the House defense appropriations bill, only 7 votes protected the NSA from debilitating budget cuts that would have ended its domestic bulk collection activities. Seven members of Congress could have changed the outcome of the vote, reflecting a razor thin (under 2%) margin of victory for the surveillance state.
     
    That margin of victory could be explained in many ways. One explanation may surprise progressives: Democrats from the Bay Area and Chicago, representing safe blue seats, who were outspoken about surveillance abuses at one point, comprised the NSA’s entire margin of victory. They chose to resign their principles, oaths of office, and constituents’ concerns in order to support their partisan patron, the president. They’re carrying the Bush administration’s water because it’s now President Obama holding the glass.
     
    After raising a righteous ruckus about government spying under the Bush administration, congressional Democrats saved the NSA from a transformative challenge initiated from within the GOP. Their constituents have already indicated—loudly—that they are not happy.
  • November 1, 2013
    Guest Post
     
    * This post originally appeared on CAC’s Text & History Blog.
     
    In December, the Supreme Court is scheduled to hear an important case out of Mount Holly, New Jersey, that involves Fair Housing Act (FHA) claims in the context of an effort by Mount Holly Township to use eminent domain to redevelop its only predominately minority community – and in the process, displace and raze the homes of its residents. As such, the case raises an important test of whether conservatives hate eminent domain more than they detest civil rights statutes like the FHA that protect minority homeowners from unjustified disparate impact. The answer apparently is the latter.
     
    As everyone knows, the property rights movement has led a crusade against eminent domain in the courts over the past decade, highlighted by the case of Kelo v. New London.  While they lost Kelo, property rights groups such as the Institute for Justice and the Pacific Legal Foundation (PLF) have used public sentiment against the Kelo ruling to fuel ballot initiatives and legislation that have passed in whole or in part in 42 states. A critical talking point for leading groups in this crusade has been the impact that eminent domain can have on low-income and minority communities. This concern has activated some important groups on the Left.  For example, the NAACP, the Southern Christian Leadership Conference, and other big names of the civil rights community filed briefs for the plaintiff in Kelo alongside the property rights groups.
     
    It would seem, then, that something we could all agree on is that eminent domain should not be used as a tool for racial discrimination. That is precisely what is being alleged by the homeowners in the Mount Holly case, whose homes are slated to be demolished to make way for a planned community of significantly more expensive housing units with a tony-sounding name, “The Villages at Parker’s Mill.” They are seeking a court hearing on their claims under the FHA that the township is employing eminent domain in a way that unjustly disadvantages minority homeowners and residents.