ACSBlog

  • June 26, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. This piece is cross-posted on RegBlog, where it was originially published.

    As losses go, NLRB v. Noel Canning is going to be pretty easy for the National Labor Relations Board (NLRB) and future presidents to live with.

    In a 5-to-4 vote, the U.S. Supreme Court held that Article II’s Recess Appointments Clause empowers presidents to fill vacancies that occur at any time and during any recess—intra-session or intersession—of sufficient length. The Court did invalidate President Obama’s January, 2012, recess appointments of three NLRB members, but only on a narrow two-part rationale. First, a series of pro forma Senate sessions held between December 17, 2011, and January 23, 2012, were effective in dividing this 37-day break into periods of adjournment no longer than three days. Second, periods of intra-session adjournment shorter than 10 days are “presumptively” too short to count as recesses that trigger the president’s recess appointments power. (There is some ambiguity in the majority opinion whether the 10-day rule now applies even to intersession adjournments, which, as far as I know, no party ever argued.) Because of the pro forma sessions – which the D.C. Circuit had not addressed at all – the NLRB owes the Noel Canning Co. a do-over in its unfair labor practice proceeding.

    All in all, it was a good day for the legacy of Chief Justice John Marshall. The majority eschewed implausible claims for the supposed clarity of plainly ambiguous constitutional text, in favor of a constitutional reading that was guided by a history of interbranch practice. Marshall would have approved the Court’s framing of the intra- versus inter-session recess problem:

    The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The  question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all …We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.

    In short, pragmatism trumped an overconfident textualism.

  • June 26, 2014

    by Nicholas Alexiou

    Writing for The New York Times, Adam Liptak looks at today’s Supreme Court decisions in National Labor Relations Board v. Noel Canning and McCullen v. Coakley.

    At Salon, Katie McDonough examines yesterday’s decision by the U.S. Court of Appeals for the Tenth Circuit to affirm the trial court’s finding that Utah’s same-sex marriage ban is unconstitutional.

    Slate’s Jordan Weissmann makes the argument for why now is the time to enroll in law school. Joe Patrice at Above the Law redlines the article and explains why Weissmann is off base.

    Hina Shamsi and Hugh Handeyside discuss at the ACLU’s Blog of Rights a recent decision by Judge Anna J. Brown of the U.S. District Court for the District of Oregon which found unconstitutional the system in place for one to challenge their placement on the “No-Fly List.”

  • June 25, 2014
    Guest Post

    by Susan Freiwald, Professor of Law, University of San Francisco School of Law

    The Supreme Court faced the specific question in Riley v. California as a matter of first impression – can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement?  But several courts have recently established a privacy-protective trend when they addressed the broader question – when does new technology render pre-digital precedents inapposite?  The Supreme Court’s decision fits the trend in two key ways.  First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding.  Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents.  Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.

    Skepticism towards the government’s arguments about new technology.  In past cases, courts have generally deferred to government lawyers for information about the new technologies agents use and confront in their investigations.  Ex parte litigation and the defense bar’s lack of access has exacerbated an information disadvantage.   For example, the ACLU has recently tried to obtain more information about government use of stingray devices designed to mimic cell towers and obtain location and other personal information.

    In recent cases, however, courts have brought a more jaundiced eye to the government’s claims.  In Riley, the Supreme Court rejected the government’s claim that, without a ruling in its favor, agents would lose crucial information.  Educated by technologists, amici, and academics and other researchers, Justice Roberts explained that agents could merely pop a cell phone in a Faraday bag to protect against remote wiping.  (The opinion does merge encryption with passcode locking).  Nonetheless, the Court’s knowledgeable skepticism reminds me of the Eleventh Circuit’s recent approach to cell site location data in United States v. Davis.  In that case, the court dispensed with the government’s claim that such information is not as invasive as GPS tracking information.  Because phones follow people inside as GPS trackers on their cars do not, the court found even more justification for a reasonable expectation of privacy in cell site location information.   The courts’, and particularly the Supreme Court’s, increased technological savvy represents an important shift. 

    A refusal to “mechanically” extend pre-digital precedents to new technologies.  In past cases, the government has argued that, even though cases involve new technology, they may be easily decided based on prior rules.  The Riley opinion rejected the government’s argument that it could “mechanically” apply the incident-to-arrest exception merely because people carry cell phones the same way they carry cigarette cases.  Instead, the Court reviewed the rationales of protecting officer safety and preserving evidence and determined that neither of them justified the massive privacy intrusion of searching a cell phone without a warrant (at least without exigent circumstances or some other like exception). 

  • June 25, 2014

    by Paul Guequierre

    Earlier today, the Senate Judiciary Committee held a hearing on the Voting Rights Amendment Act (VRAA). The VRAA was introduced early this year by a bipartisan group of lawmakers and is intended to repair some of the damage to the Voting Rights Act caused by the Supreme Court’s 2013 opinion in Shelby County v. Holder.

    This summer marks the 50th anniversary of the Civil Rights Act and Freedom Summer—a time marked by bloodshed over the right to vote. Forty-nine years after that historic summer, the Roberts court in Shelby County invalidated a key provision of the landmark Voting Rights Act of 1965.

    This spring, ACS published “The Voting Rights Amendment Act of 2014: A Constitutional Response to Shelby County,” an Issue Brief by five constitutional scholars analyzing the major elements of the VRAA, which is aimed at remedying some of the damage inflicted by the Shelby County decision.

    Racial discrimination in elections is alive and well. From stringent voter ID laws to the weakening of the Voting Rights Act by the Roberts court, the right to vote is being undermined and the disenfranchisement of the marginalized is reaching significant proportions.

    So what can be done? Scholars William Yeomans, Nicholas Stephanopoulos, Gabriel J. Chin, Samuel Bagenstos, and Gilda R. Daniels examine various aspects of the legislation, and explain why the bill is well within congressional power to enact.

    Read the issue brief here.

  • June 25, 2014
    BookTalk
    Failure to Flourish: How Law Undermines Family Relationships
    By: 
    Clare Huntington

    by Clare Huntington, Professor of Law, Fordham University School of Law

    Inequality is the issue of the decade. Both income and wealth are concentrated at the top, and social mobility in the United States, although varied in its particulars, is lower than in most developed countries.

    One way to increase social mobility is to increase human capital, but, as I show in Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014), this can happen only if we strengthen families. Education is a key component of human capital, but what happens at home in the first few years of life—long before a child starts Head Start or pre-kindergarten—can set a child on a trajectory that is difficult to alter in later years.

    Family law is part of the problem. Too often, instead of helping strengthen families, our legal system undercuts family relationships, making it harder for parents to provide children with the relationships necessary for healthy child development.

    We can think of family law in concentric circles. At the center are rules about creating and ending relationships, including laws about marriage, divorce, adoption, and parentage. In the next ring are laws governing family behavior, such as child abuse and domestic violence laws. In an outer ring are legal structures and policies that we tend not to think of as family law but which deeply affect families nonetheless. These include tax policy, criminal justice, zoning, food stamp regulations, and laws governing workplace discrimination, among others.