ACSBlog

  • June 30, 2014

    by Nicholas Alexiou

    Adam Liptak and Steven Greenhouse of The New York Times summarize today’s 5 to 4 rulings in Burwell v. Hobby Lobby Stores, Inc. and Harris v. Quinn, the final two decisions of the Court’s October Term 2013.

    Selina Maclaren writes at Salon that the justices of the Supreme Court have a problem understanding new technologies, especially when they try to analogize these technologies to previous inventions already protected.

    Jack Goldsmith explains at Lawfare how a proposed lawsuit by the House of Representatives against President Obama in an Article III court is not how the framers would have envisioned Congress attempting to rein in perceived executive overreach.

    At Vox, Dylan Matthews discusses how emerging technologies such as GPS may soon eliminate mass incarceration.

    Ronald K.L. Collins tracks efforts in the Senate to amend the First Amendment in a way that would allow congressional regulation of campaign financing at Concurring Opinions.

  • June 27, 2014

    by Rebekah DeHaven

    Because of ACS’s National Convention last week, we’ll be recapping the past two weeks of judicial nominations activity today.

    On Friday, June 13, President Obama nominated Victor Allen Bolden to the U.S. District Court for the District of Connecticut.

    On Monday, June 16, President Obama made four additional nominations to the U.S. District Court for the Eastern District of Pennsylvania: Gerald Pappert, Joseph Leeson Jr., Mark Kearney, and Wendy Beetlestone.

    Also on Monday, the Senate voted to invoke cloture on three district court nominees:

    Salvador Mendoza, Jr., U.S. District Court for the Eastern District of Washington, 55-37;

    Staci Michelle Yandle, of Illinois, U.S. District Court for the Southern District of Illinois, 55-37; and

    Darrin P. Gayles, of Florida, U.S. District Court for the Southern District of Florida, 55-37.

    The Senate followed on Tuesday, June 17 with confirmation votes on all three:

    Salvador Mendoza, Jr., U.S. District Court for the Eastern District of Washington, 92-4;

    Staci Michelle Yandle, of Illinois, U.S. District Court for the Southern District of Illinois, 52-44; and

    Darrin P. Gayles, of Florida, U.S. District Court for the Southern District of Florida, 98-0.

    There were historic confirmations—Darrin Gayles was the first openly gay African American man to be confirmed to the federal bench, it was the first time two openly gay nominees have been confirmed on the same day (Darrin Gayles and Staci Yandle), and Salvador Mendoza will be the first Latino to serve on U.S. District Court for the Eastern District of Washington.

  • June 27, 2014
    Guest Post

    by Daniel Tilley, Staff Attorney, ACLU of Florida; ACS Next Generation Leader

    By now it is cliché to observe that the advancements in equality for the lesbian, gay, bisexual, and transgender (LGBT) community in the past decade or so have been simply astounding. The victories have indeed been incredible, manifested not just in the securing of formal legal equality in some legislative and regulatory bodies but also dramatic shifts in public opinion and major wins in courts and administrative agencies (and, most recently, in President Obama’s announcement of a forthcoming executive order banning workplace discrimination against LGBT employees of federal contractors). This is something to celebrate.

    But the fight is far from over, and complacency is not an option. The triumphs of the past few years have created a sense of inevitability that can serve as a useful advocacy tool but that may also blind us to the challenges that remain ahead. Some things—like marriage for same-sex couples—really are inevitable (and I am proud to be the lead counsel in the ACLU of Florida’s case challenging Florida’s ban on recognizing marriages of same-sex couples); but marriage equality is only inevitable because countless people have been working for decades (and are continuing to work) to make it so. While the marriage equality movement will hopefully be sliding into home plate in one of the next two Supreme Court terms, there remains a long, hard road ahead on other issues.

    For example, many people are still shocked to hear that most states have no laws explicitly prohibiting employers from firing someone simply for being gay or transgender. While litigation will have a role to play in that fight as well, the real heavy lifting will have to be done in state legislatures (and not a single southern state has a non-discrimination law barring discrimination against LGBT people). Despite supermajority support for employment protections for LGBT people, legislatures are fertile ground for the harmful stereotypes and misinformation about LGBT people that continue to exist, thanks in substantial part to the harmful and misguided work of anti-LGBT groups.

  • June 26, 2014

    by Jeremy Leaming

    ACS will conduct its annual Supreme Court review tomorrow covering most of the high-profile cases that have come down this term and looking ahead to Monday when more opinions are expected. We are still waiting for opinions in Sebelius v. Hobby Lobby, regarding the contraception policy of the Affordable Care Act, and Harris v. Quinn, a case involving a First Amendment challenge to union representation of state home care workers.

    The high court today issued opinions in NLRB v. Noel Canning, involving the president’s recess appointments power, and McCullen v.Coakley, centering on a First Amendment challenge to a Massachusetts law creating buffer zones around abortion clinics.

    SCOTUSblog publisher Tom Goldstein, who will moderate tomorrow’s ACS Supreme Court Review, said of Noel Canning during live-tweeting at SCOTUSblog this morning:

    Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.

    Eric J. Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law, also a panelist for tomorrow’s high court review, told ACSblog, “When is a recess not a recess? When it’s less than 10 days. Justices issue a mixed ruling in NLRB v. Noel Canning.”

    Chief Counsel for the Constitutional Accountability Center Elizabeth Wydra in press statement said, “While the Supreme Court voted unanimously to strike down the particular exercise of the Recess Appointments Clause power in the Noel Canning case, more important, the Court – by a sharply divided 5-4 vote – rejected the sweeping arguments made by the U.S. Chamber of Commerce and its allies.” (Wydra is also scheduled to participate in tomorrow’s ACS Supreme Court Review.)

    The U.S. Court of Appeals for the District of Columbia Circuit ruled early last year that President Obama’s appointments to the National Labor Relations Board in early 2012 during “pro forma sessions,” where Congress took deliberate steps to shorten the period for the president to make recess appointments. The president took the action noting that the 5-member NLRB could not function with three languishing vacancies.

  • 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.