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Separation of powers

October 23, 2009
Federal Judges Riling Calif. Governor
California Gov. Arnold Schwarzenegger is a little peeved and perplexed by the outcomes of federal court cases that invalidated some crafty state budgetary moves that would have curbed state funding of health care and environmental services.
As noted by Cheryl Miller at Legal Pad blog, Schwarzenegger vented about some of those rulings at a recent press briefing.

"They are going absolutely crazy," the governor said of federal judges. "So we have to have a very serious conversation with the federal government, because they've got to let us run our state."

Miller went on to note that Schwarzenegger defended state budgeting by saying his team of lawyers had assured him on the legality of the cuts. "Every decision we run by the legal department and by the experts, and their opinion is, those things are legal."

Tags:
Separation of powers, Federal Courts, Gov. Arnold Schwarzenegger
October 19, 2009
Katrina Victims' Suit Against Agents of Climate Change Goes Forward
With courts seeming to trend towards raising the bar for plaintiffs seeking their day in court, a recent decision by the historically conservative U.S. Court of Appeals for the Fifth Circuit stands out. Hurricane Katrina victims suing an oil company and other alleged polluters were validated today, as a three-judge panel of the Fifth Circuit determined that they have standing to sue those who have contributed to climate change.

In its opinion, the Fifth Circuit wrote that it "accepted as plausible the link between man-made greenhouse gas emissions and global warming." The court relied on the landmark Second Circuit opinion in Connecticut v. AEP reinstating federal public nuisance claims of several states against a number of carbon dioxide emitters.

The defense argued that issues involving climate change's impact are best left "wholly and indivisibly" to the political branches. The court replied, "The defendants have failed to show how any of the issues inherent in the plaintiffs' nuisance, trespass, and negligence claims have been committed by the Constitution or federal laws 'wholly and indivisibly' to a federal political branch."

Tags:
Access to Justice, Class actions, Procedural barriers to court, Other courts, Separation of powers, Separation of Powers and Federalism, Fifth Circuit, Hurricane Katrina
September 29, 2009
Constitutional Argument Against Health Care Reform Draws Fire
Professor Orin Kerr, 2007 recipient of the conservative Federalist Society's Paul M. Bator Award, identifies a recent piece by Andrew Napolitano as a prime example of when an op-ed is "filled with so many errors, misstatements, and plainly weak claims that the mere number of those becomes far more interesting than the argument of the op-ed itself."

Here's FOX News's Napolitano in his own words:

[I]t's clear that his plan is unconstitutional at its core. The practice of medicine consists of the delivery of intimate services to the human body. In almost all instances, the delivery of medical services occurs in one place and does not move across interstate lines. One goes to a physician not to engage in commercial activity, as the Framers of the Constitution understood, but to improve one's health. And the practice of medicine, much like public school safety, has been regulated by states for the past century.

From the other side of the political spectrum, Anonymous Liberal digs deeper into Napolitano's claims:

More
Tags:
Corporate governance, Economic inequality, Federalism, Separation of powers, Economic, Workplace and Environment Regulation, Equality and Liberty, Separation of Powers and Federalism, Andrew Napolitano, Anoymous Liberal, Health Care Reform, Orin Kerr, Roe v. Wade, U.S. v. Lopez
September 25, 2009
Professor Frost on New ‘State Secrets’ Policy
In a guest post for The Volokh Conspiracy, Amanda Frost, professor of law at American University and frequent ACS participant, examines the new policy issued earlier this week by the Department of Justice on the state secrets privilege. Frost writes that the new policy, which place constraints on the government's use of the privilege to squelch litigation raising national security issues, "should be welcomed not only by critics of the privilege, but also by its fans." She continues, "As the Obama Administration surely realized, the privilege was in danger of being limited by both the courts and Congress, since at least some members of both branches had lost faith in the executive's ability to assert the privilege in good faith."
Frost and Justin Florence, an associate at O'Melveny & Myers, wrote in an ACS Issue Brief about the use historical use of the state secrets privilege, concluding that "there is no need to choose between full disclosure of state secrets on the one hand or immediate dismissal of all pending litigation challenging (secret government) programs on the other. A middle ground exists that can accommodate both interests.

Tags:
Separation of powers, Amanda Frost, Department of Justice, State Secrets
September 23, 2009
DOJ Sets New Policy for State Secrets
The Department of Justice (DOJ) has issued new procedures on when the government employs the state secrets privilege in litigation involving national security issues. The new policy, reports The Washington Post, would require government agencies such as the CIA to "convince the attorney general and a team of Justice Department lawyers that the release of the sensitive information would present significant harm to ‘national defense or foreign relations.'"
In a statement annou ncing the policy, Attorney General Eric Holder said, "This policy is an important step toward rebuilding the public's trust in the government's use of this privilege while recognizing the imperative need to protect national security. It sets out clear procedures that will provide greater accountability and ensure the state secrets privilege is invoked only when necessary and in the narrowest way possible."
Holder also states that the DOJ is committed to ensuring that the state secrets privilege is not used "for the purpose of concealing government wrongdoing or avoiding embarrassment to government agencies or officials."
In a recent guest article for ACSblog, Professor Amanda Frost critiqued the Obama administration's use of the state secrets privilege, saying it was too similar to that of its predecessor and concluded that Congress should pass legislation to limit the privilege. For more discussion of the state secrets privilege, see video of the ACS event, "The State Secrets Privilege: Time for Reform?"
The Bush and Obama administrations have drawn criticism for invoking the privilege to scuttle litigation over national security policy including rendition and warrantless spying, The Post reports. Some lawmakers, such as Sen. Patrick Leahy, have promoted legislation that would limit the privilege.
Adam Serwer writes on Tapped that the new policy falls "well short of the standards that would be set by Senator Leahy's bill, but they seem more rigorous than I would have expected ...." Serwer concludes that the "guidelines are certainly better than I would have expected from the preliminary reports, but we'll see if they satisfy the senators sponsoring the state secrets bill. Leahy gave some positive feedback, (he also takes credit for some of the changes) but he didn't say that he would abandon the bill."
Tags:
Separation of powers, Eric Holder, State Secrets

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