ACSBlog

  • February 24, 2014

    by ACS Staff

    Federal District Court Judge William J. Martini dismissed a case against the New York Police Department for “engaging in blanket surveillance” of Arab Muslim communities after September 11, 2001. Adam Serwer of MSNBC exposes why the court’s decision shows that “religious profiling is okay, as long as you have a really good reason.”
     
    Christopher Sprigman of Just Security examines the public relations effort by the National Security Agency’s Director of Compliance John DeLong and the agency’s General Counsel Rajesh De concerning the NSA’s controversial surveillance activities. In the article, Sprigman reveals why these efforts “create the appearance but not the reality of lawfulness.”
     
    Today, the U.S. Supreme Court will hear arguments regarding the regulation of greenhouse gas emissions by the Environmental Protection Agency. Robert Barnes at The Washington Post breaks down Utility Air Regulator Group v. Environmental Protection Agency. For more on this case, please visit the ACSblog.
     
    Writing for the Brennan Center for Justice, Andrew Cohen comments on the lack of media coverage on states’ secrecy laws concerning the types of lethal injections used in executions. Cohen discusses the implications of the media’s inaction.   
     
    At ACLU’s Blog of Rights, Nusrat Choudhury deconstructs Lee Daniels' The Butler and how its depiction of the arduous legal battles of the 1960s Civil Rights movement reminds viewers that “considerable distance remains on the path to true racial equality.”
  • February 24, 2014
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter

    The U.S. Supreme Court will hear argument today in a case addressing EPA’s application of the Clean Air Act to greenhouse gases (“GHGs”). This will mark the third time the Court has dealt with a case related to climate change. Like its predecessors, this case has generated lots of attention, both from regulated parties and the media.

    Despite the attention, one of the most significant features of the case is, perhaps surprisingly, what is not at stake. This case had the potential to call into question the foundations of the Obama Administration’s efforts to address climate change. Before the D.C. Circuit, industry groups and a coalition of states opposed to federal regulation of GHGs, challenged an array of EPA regulatory decisions. These challengers sought to overturn: (1) EPA’s determination that GHGs endanger public health and welfare; (2) EPA’s further determination that GHGs from cars and trucks contribute to the danger; (3) EPA’s regulation of tailpipe emissions of GHGs from cars and trucks; (4) EPA’s reaffirmation of its long-held view that once an air pollutant is regulated, new and modified major stationary sources of that pollutant are regulated under the Prevention of Significant Deterioration Program (“PSD”); and (5) EPA’s decision to phase-in the applicability of PSD and exempt, at least in the short-term, sources that would plainly be covered by the statutory text. The D.C. Circuit ruled in favor of EPA on all counts, and the challengers sought Supreme Court review of all of those issues and also asked the Court to overrule its earlier decision in Massachusetts v. EPA, which held that GHGs are an air pollutant. The Court declined the vast majority of that invitation, deciding instead to consider only the fourth issue described above, whether EPA properly interpreted the statute to automatically trigger regulation under PSD once a pollutant is otherwise regulated.

    The limited grant is important for a couple of reasons. It suggests that the Court has little appetite to revisit the question of whether GHGs are air pollutants. It further indicates that the Court is willing to leave undisturbed, at least for the time being, EPA’s decision that GHGs endanger public health and welfare. Those two determinations underlie virtually any regulatory action under the Clean Air Act, and the Court’s denial of certiorari on those points leaves the agency in a strong position to continue regulating GHGs. Practically speaking, the limited grant means that any decision will have little consequence beyond the PSD Program itself, and that program was never likely to be the centerpiece of an EPA climate strategy under the Clean Air Act. 

    Nonetheless, the Supreme Court’s decision in this case will likely be invested with significant symbolic import. Some conservative commentators, legislators, and advocacy groups have repeatedly accused the Obama Administration of overreaching when it comes to addressing climate change, and a victory for the challengers will fuel that criticism. Progressive and liberal commentators, legislators, and advocacy groups have taken the opposite position and argued that the Administration has ample existing authority to tackle one of the biggest public policy challenges of our time. A victory for EPA will be heralded in those circles as a vindication for the broader climate strategy.

  • February 21, 2014
     
    Arizona lawmakers passed a bill that allows businesses to discriminate against gay and lesbian customers and to deny equal pay to women. GOP lawmakers are fervently defending the legislation, claiming that it protects the religious freedoms outlined in the Religious Freedom Restoration Act. MSNBC’s Adam Serwer reports on the controversial law.
     
    Oregon officials announced that they will no longer uphold the state’s ban on same-sex marriage. Although the fate of the ban has yet to be decided in the courts, the state’s decision remains a significant victory for gay couples in Oregon. Lyle Denniston of SCOTUSBlog has the story.
     
    Environmentalists are engaged in a legal dispute with the Environmental Protection Agency after a North Carolina energy company polluted a nearby river with hazardous coal ash. Rena Steinzor and Michael Patoka of the CPRBlog discuss the need to regulate toxic coal ash and the alleged mishandling by the state’s Office of Information and Regulatory Affairs.
     
    Human Rights Watch explains why a deadly U.S. drone strike on a wedding procession in Yemen may have “violated the laws of war.”
     
    Writing for Balkinization, David Gans responds to Prof. Douglas Laycock’s claim that corporations can exercise religion.
     
    At Womenstake, Stephanie Glover provides an update on women’s enrollment in health insurance plans through the new Health Insurance Marketplaces established by the Affordable Care Act.

     

  • February 21, 2014
    Guest Post
    by Sara Murphy, 1L Section Representative, ACS Harvard Law School Student Chapter

    On January 31, the Honorable David S. Tatel and the Honorable Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit joined Harvard Law School Dean Martha Minow for a discussion about life on the D.C. Circuit. The event, co-sponsored by the ACS Harvard Law School Student Chapter and the school’s chapter of the  Federalist Society, drew a large crowd of both law students and members of the public.
     
    The D.C. Circuit essentially presides over the federal government; it has jurisdiction over all the federal agencies, and has original jurisdiction in some matters. Judge Tatel remarked that the court excels at issuing objective and non-ideological opinions – or comes as close to it as a court can get. He attributed this, in part, to small size of the court, which allows the judges to get to know each other well. The culture in the D.C. Circuit encourages judges to keep an open mind, and to have respect for each other and for panel decisions. Judge Kavanaugh agreed that the relationship between the judges was collegial, and noted that even when the judges disagree they do so with a tone of respect.
     
    According to Judge Tatel, the greatest challenge in being a judge is overcoming the immediate instinct judges develop about the case based on who they are and where they came from. How do you move beyond those instincts in trying to resolve the case within a framework of objective legal standards? He noted that the challenge is the greatest when the applicable standards drive the court to a decision that conflicts with the judge’s original instinct. This might end up leading the judge to decide a case that is different than how he might recommend resolving it as a member of Congress. Judge Tatel also commented that these sorts of decisions were the most satisfying.
     
  • February 20, 2014
    Guest Post
    by John H. Blume, Professor of Law, Cornell University Law School
     
    On March 3, the U.S. Supreme Court will hear argument in Hall v. Florida. The narrow but important question the Court must decide is whether persons who have been clinically diagnosed with mental retardation (now commonly referred to as intellectual disability) can nevertheless be put to death if they cannot satisfy the rigid IQ test score cutoff of 70 established by the Florida Supreme Court—a cutoff clearly inconsistent with the commonly agreed upon definition of mental retardation embraced by the Court in its 2002 decision in Atkins v. Virginia which all but a handful of outlier states use.     
     
    In Atkins, the Court recognized that a “national consensus” had developed against executing persons with mental retardation and concluded that the practice is prohibited by the Eighth Amendment’s ban on cruel and unusual punishment. Prior to Atkins, Florida courts had determined that “Freddie Lee Hall has been mentally retarded his entire life.” One would think this is a simple case. It should be. Yet, Hall is at risk of being executed. How could this be? 
     
    The Atkins Court relied upon the clinical definitions developed by the two premier professional organizations in the field: the American Association on Mental Retardation (AAMR), now the American Association on Intellectual and Developmental Disabilities (AAIDD); and, the American Psychiatric Association (APA). Both definitions have three prongs: significantly subaverage intellectual functioning; adaptive functioning deficits; and onset during the developmental period. Only the first prong is at issue in Hall, and without getting too “deep in the weeds,” significantly subaverage intellectual functioning is understood as an IQ of approximately 70. The question is—at bottom—a simple one: is Florida free—post-Atkins—to adopt a definition of intellectual functioning for capital cases, which is fundamentally inconsistent with the professional consensus regarding the use of IQ tests?