ACSBlog

  • August 12, 2014

    by Caroline Cox

    Time’s Nolan Feeney reports that for the first time since June 2013 a prohibition against same-sex marriage has withstood a constitution challenge.

    The Editorial Board of The New York Times praises 16 states that have made it easier to vote despite the recent changes to the Voting Rights Act: “Congress needs to quit seeing voting in partisan terms and make it a fundamental right that cannot be limited by states trying to block access to the polls.”

    Dahlia Lithwick argues in Slate that Justice Breyer is the “unsung feminist” of the Supreme Court. 

    Adam Liptak of The New York Times discusses a new study from Harvard Law School Professor Cass R. Sunstein that questions the value of unanimity on the Supreme Court.

    In the Huffington Post, Philip Marcelo reports on Chief Justice Roberts’ recent comments at the American Bar Association’s annual meeting in which he advocated for lawyers to mend the growing partisan divide.

    The Brennan Center for Justice provides arguments against Arkansas’s new photo ID law based on an amicus brief filed yesterday. 

  • August 11, 2014

    by Caroline Cox

    The Editorial Board of The Washington Post calls for a removal of politics from judicial selection, “[t]he application of due process and the maintenance of Americans’ civil rights should be more isolated from the pressures of majoritarian elections.”

    Ari Berman writes for The Nation on the recent decision from the U.S.  District Court for the Middle District of North Carolina that denies a preliminary injunction to block provisions of one of the strictest voting laws in the country.   

    The Atlantic’s James Hamblin argues against a Florida law that bans doctors from talking about firearm safety with their patients.

    Abbe R. Gluck writes in Politico on the inconsistencies in the interpretation of Affordable Care Act found between the 2012 constitution challenge and the recent Halbig case. These inconsistencies seem to challenge the Halbig verdict and its reasoning.

    In The New York Times, Sonja B. Starr discusses the unfair and potentially unconstitutional practice of evidence-based sentencing. 

  • August 8, 2014
    Guest Post

    by Raha Wala, Senior Counsel, Defense & Intelligence, Human Rights First

    Last week President Obama admitted what most people have long known—that, in the president’s words, “we tortured some folks” after 9/11 in a bid to thwart future terrorist plots.  The president was referring to a soon-to-be released report by the Senate Select Committee on Intelligence (SSCI) that documents the CIA’s use of torture and cruel, inhuman, or degrading treatment at secret “black sites” around the world in the wake of the 9/11 attacks. But the CIA has resisted and even undermined oversight on this critical issue from the beginning. And now current and former CIA leaders appear poised to mount a “counterattack” to undermine the report’s key findings and defend the so-called “enhanced interrogation” program. President Obama can’t let that happen.  He should direct members of his administration, including CIA Director Brennan, to get in line with the anti-torture policy he laid out when he—as one of his first official acts as president—signed an Executive Order shuttering the CIA black sites and banning torture and other forms of cruel treatment. 

    The SSCI report is the result of a five-year inquiry into the CIA rendition, detention and interrogation program; it began when the committee discovered that the CIA had disregarded warnings from the White House and destroyed videotapes of waterboarding and other brutal torture sessions. The report—a voluminous account, at 6,700 pages—is based on a review of more than 6 million pages of official documents, and is said to conclude that interrogations in the CIA program were much more widespread and brutal than previously known, and much less effective at gathering intelligence to stop terrorist plots than proponents of so-called “enhanced interrogation” claim. The report will show, for example, how the interrogation program played no meaningful role in gathering intelligence to help discover Osama Bin Laden’s whereabouts. It is also said to document how the CIA systematically misled Congress, the Department of Justice, and the White House about the effectiveness of the program. Senator Dianne Feinstein, Chair of the SSCI, has called the investigation into the CIA’s use of torture one of the most significant in the history of the United States Senate, and the most important oversight activity ever conducted by the SSCI. The executive summary, findings and conclusions of the SSCI report—about 600 pages of material—are set to be released in the coming weeks.

  • August 8, 2014
    Guest Post

    by Nicholas Bagley. Bagley is an Assistant Professor at University of Michigan Law School. 

    *This post originally appeared on The Incidental Economist. 

    Now that the government has asked the full D.C. Circuit to rehear Halbigsome commentators have suggested that it’s an inappropriate candidate for en banc review. A Wall Street Journal op-ed from a lawyer representing a right-wing health-care think tank, for example, says that en banc review ought to be reserved for “cases raising serious constitutional issues.” Halbig, though, is just a “straightforward statutory interpretation case.”

    This is wrong for so, so many reasons. Under the Federal Rules of Appellate Procedure, a case can be taken en banc if it involves “a question of exceptional importance.” The rule does not say “a constitutional question of exceptional importance.” No judge, to my knowledge, has ever suggested that the rule be read so narrowly.

    To the contrary, the rules are drafted in open-ended terms—“exceptional importance”—because cases differ in their importance along many different dimensions. Some cases are trivial in themselves but present novel legal questions that will affect hundreds of other cases. Others are of “exceptional importance” because they implicate questions of faith or principle.

  • August 7, 2014
    Guest Post

    by Robert N. Weiner, Litigation Partner, Arnold & Porter LLP

    *This post originally appeared on Balkinization

    On July 22, in Halbig v. Burwell, a panel of the D.C. Circuit ruled 2-1 that low income families cannot get the tax subsidies the Affordable Care Act granted to enable them to afford health insurance, if their states opted to have the federal rather than the state government set up health insurance exchanges. Within hours, in King v. Burwell, a unanimous panel of the Fourth Circuit held just the opposite, that subsidies are available on all exchanges established under the Act. (I filed amicus briefs on behalf of Families USA in both cases.) 

    In making its ruling, the D.C. Circuit panel simultaneously issued an order on its own initiative making clear that its judgment was not effective until the full Court of Appeals decided whether to reconsider the case. The panel perhaps recognized that the other judges on the Court might view the decision as out of step with the Circuit’s precedents. A decision by the en banc Court to reconsider will automatically vacate the panel opinion. If the majority of the Court then concludes that the panel decision was wrong, they will issue an opinion reflecting the correct result.

    In arguing against en banc review in a Volokh Conspiracy post on August 5, Professor Jonathan Adler quotes with evident approval a 17-year old disquisition by Judge Harry Edwards, the dissenter in Halbig, regarding the standards for en banc review. The temptation of scoring a “gotcha” against Judge Edwards appears to have displaced reasoned analysis to whether those views make sense in this case. For example, Professor Adler commends Judge Edwards’ 1987 view regarding the limited value of having the entire D.C. Circuit reconsider en banc the 2-1 vote of the three-judge panel. A vote of 6 out of 11 judges, it is claimed, has no greater “legal validity” than a vote of 2 out of 3. If the implication is that any panel decision is as likely as an en banc ruling to be correct, then it was overbroad in 1987, and it is particularly fallacious here. Human fallibility being what it is, judges sometimes get an answer wildly wrong. As a matter of probability and logic, 6 judges are less likely to go off the deep end than 2.