Federalism News 2000


December 21 | November 21 | November 3 | October 24 | October 13 | October 4 | September 27 | September 19 | September 13 | September 7 | August 31 | August 19 | August 1 | June 22 | June 1 | March 2000 | February 2000

December 21, 2000

  • On December 18, the U.S. Court of Appeals for the Eighth Circuit vacated its earlier ruling in Anastasoff v. United States. The court had previously struck down as violative of Article III the court's own rule that unpublished decisions are not precedent. The new ruling is available at http://www.ca8.uscourts.gov/opndir/00/12/993917P.pdf See the August 31 listing for further information.

In addition, Judge Danny Boggs of the U.S. Court of Appeals for the Sixth Circuit recently co-authored a law review article analyzing that decision and responding to previous essays on the subject by Judges Alex Kozinski and Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit. See Danny J. Boggs & Brian P. Brooks, Unpublished Opinions and the Nature of Precedent, 4 Green Bag 2d 17 (2000).

November 21, 2000

  • In the note below, Assistant Ohio Attorney General Todd Marti requests amicus assistance in a constitutional challenge to the federal Religious Land Use and Institutionalized Persons Act of 2000.

I am writing  about a  Federalism case that might be of interest to your members. It is a constitutional challenge to the portion the Religious Land Use and Institutionalized persons Act of 2000 ( RLUIPA) that regulates state prisons. I would also like to solicit amicus support.

RLUIPA is a limited reenactment of the former Religious Freedom Restoration Act (RFRA), the act that was struck down in City of Boerne v. Flores. Unlike RFRA,  RLUIPA only applies to prisons and land use decisions and its prison provisions are based on the spending and commerce clauses, rather than ' 5 of the 14th amendment.

We are challenging the validity of the prison portion of the act in two cases. They are  both brought by white supremacist inmates who are, inter alia,  demanding "religious" meetings that will likely be used to facilitate gang activity.  The case raises interesting spending  and establishment clause issues, as well as issues about the application of the Lopez,  New York/Printz,   and Ex Parte Young cases. I am attaching a copy of our brief on RLUIPA's validity.

We would welcome any amicus support that might be forthcoming. Because we are attacking a federal statute we will have to deal w/ the US Justice Department as well as the Plaintiff's' counsel. I also understand that the ACLU Prison Project might be coming in. The bottom line is that we could use all the help we can get.

Best Regards,
Todd Marti,
Assistant Ohio Attorney General
(614) 466-9577

November 3, 2000

  • On October 31, the U.S. Supreme Court heard oral arguments in what could be this Term's major federalism ruling, providing further definition to the scope of federal power under the Commerce Clause, U.S. Const. art. 1, sec. 8, cl. 3, following the Court's recent blockbuster decisions in United States v. Lopez, 514 U.S. 549 (1995), and Morrison v. United States, 120 S. Ct. 1740 (2000).
  • As the New York Times's Linda Greenhouse reports below, however, Solid Waste Agency v. United States Army Corps of Engineers, No. 99-1178, could instead be decided on statutory grounds alone, should the Court disagree with the Seventh Circuit's decision to defer to the federal government's regulatory definition of "navigable waters" under its migratory bird rule.
  • On a separate matter, practice group member and Chapman Law Professor John Eastman reports that the 9th Circuit recently decided Katz v. Regents of the Univ. of Cal., a somewhat unusual 11th Amendment case in which the court found state sovereign immunity against a suit under the Age Discrimination in Employment Act, 29 U.S.C. 621 et seq., waived at the urging of the state and over the objection of the plaintiffs.  The opinion is available at http://laws.findlaw.com/9th/9915384.html See also http://www.nytimes.com/2000/11/01/national/01SCOT.html

October 24, 2000

  • Senate Passes Anti-Shipping Bill; President Expected to Sign
    The Senate unanimously passed legislation sponsored by Sen. Orrin Hatch, R-Utah, that puts federal enforcement power behind states' bans on interstate shipments of alcoholic beverages to consumers. President Clinton is expected to sign the legislation. http://www.winespectator.com/Wine/Spectator/_daily|news1015
  • The controversy over unpublished opinions continues: Forbes magazine criticizes the practice in its October 30 issue. The critique comes on the heels of the decision of the U.S. Court of Appeals for the Eighth Circuit in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), in which the court invalidated its own local rule providing that unpublished decisions are not precedent, holding instead that stare decisis is constitutionally required and that attempts to arbogate it by circuit rule unconstitutionally vest federal courts with extra-"judicial power."
    By contrast, coming to the defense of unpublished opinions (albeit on different grounds) are Ninth Circuit Judges Alex Kozinski and Stephen Reinhardt -- authors of a June 2000 California Lawyer essay, "Please Don't Cite This! Why We Don't Allow Citation to Unpublished Dispositions" – and Sixth Circuit Judge Danny Boggs, who co-authored with his former law clerk, Brian Brooks, an upcoming article entitled "Unpublished Opinions and the Nature of Precedent" in the fall 2000 issue of the Green Bag.  See http://www.greenbag.org  for more information. See: http://www.forbes.com/forbes/2000/1030/6612072a.html
  • The Texas Justice Foundation recently filed an appeal in the U.S. Court of Appeals for the Fifth Circuit in Shields v. Sierra Club, its commerce clause challenge to the constitutionality of the Endangered Species Act (see below).  Similar challenges have failed in other circuits, but over vigorous dissents.  See Gibbs v. Babbitt, 214 F.3d 483 (4th Cir 2000); Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041 (D.C. Cir. 1997).
    Thanks to the Foundation's Sharon Blakeney for bringing the Shields case to our attention.  If you know about a federalism-related case that might interest the practice group, please let us know.



    San Antonio, Texas                            
    Contact: Lisa Dudley
    September 7, 2000                              
    Phone:  (210) 614-7157

            Texas Justice Foundation lawyers have appealed Judge Lucius Bunton's Order in the case of John Shields (State Representative) and Hunter Schuehle (EAA Board Member) vs the Sierra Club and the United States Department of the Interior.  The appeal is to the 5th Circuit which has reversed Judge Bunton before on Edwards Aquifer issues. 

           Judge Bunton erred when he failed to hold the Endangered Species Act unconstitutional, by failing to follow the precedent established in the 1995 case of U.S. v. Lopez limiting federal power under the commerce clause. Judge Bunton upheld the statute based on harm to blind salamanders and other allegedly endangered species on the grounds that those species substantially affected interstate commerce. The judge also held that an obscure 1940's treaty called the "Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere" also bound Texans to protect the species.

            Judge Bunton wrote "there can be no dispute about the validity of the statute (implementing the treaty) Š as a necessary and proper means to execute the powers of government." Under the court's theory of law, all Congress has to do is negotiate a treaty to take away our constitutional rights.  Texas Justice Foundation CEO Allan Parker stated, "This shows the great danger of international environmental treaties."

            The Texas Justice Foundation adheres to the constitutional principle that local government should control local resources, not vague international treaties. This principle under girds the position of the Texas Justice Foundation which has been endorsed by the San Antonio North Side Chamber of Commerce in a recent resolution. "We specifically support the Texas Justice Foundation's challenge to the intrusive application of the Endangered Species Act in Shields and Schuehle v. Babbitt and the Sierra Club to restore local control for protection of threatened species . . ."

            State Representative John Shields, one of the plaintiffs in the case, said "The federal government and the Sierra Club keep telling us that they know best.  Maybe they should tell us how the endangered species survived the infamous drought of the 1950's."

            Hunter Schuehle the other plaintiff stated "As a South Texas rancher, I fail to see how blind salamanders and wild rice that have absolutely no effect on interstate commerce can be used to justify the very draconian federal water use controls we have today."  As Skip Hulett, President of the Texas Justice Foundation noted, "The greatest fear for a land owner is to find an endangered species on his property."

    For more information or to schedule an interview, call Lisa Dudley at (210) 614-7157.

    TJF is a non-profit, public interest litigation group representing people at no charge in cases of limited government, free markets, private property rights, and parental rights.

October 13, 2000

  • In No. 3 of the American Enterprise Institute’s Federalist Outlook, Michael Greve discusses his views of cooperative federalism by relating the problems of Germany, “a citadel of cooperative federalism and, consequently, of economic malaise and civic disaffection.” See http://www.federalismproject.org/outlook/9-2000.html.
  • The Supreme Court heard oral arguments October 11 in University of Alabama Board of Trustees v. Garrett, which considers whether Congress exceeded its authority by granting state employees the right to sue in federal court under the ADA. Jeff Sutton argued the case for the state of Alabama. For more information, see:
  • Federalism Cases
    The Practice Group is commencing a federalism case tracking project. From time to time, we will publish developments on cases relating to federalism concerns.  In doing so, we will try to note when such cases offer opportunities for amicus or other assistance.
    We kick off the project by forwarding the note, below, from Anne Hayes of the Pacific Legal Foundation, regarding United States v. Faasse (6th Cir. 2000), in which the court strikes down a provision of the federal Child Support Recovery Act as beyond Congress's interstate commerce authority. In doing so, the Sixth Circuit has created a split in authority.  The government has not yet decided whether to file a petition for certiorari in the Supreme Court.
    She also discusses Schuehle v. Babbitt, a Commerce Clause challenge to the Endangered Species Act respecting the Edwards Aquifer species currently pending in the Fifth Circuit.
    If you know about a federalism-related case that might interest the practice group, please let us know by emailing jamescho@stanfordalumni.org.
  • United States v. Faasse, 2000 U.S. App. Lexis 23708, (6th Cir., Sept. 25, 2000).
    The Sixth Circuit struck down 18 U.S.C. 228 (1994), a provision of the federal Child Support Recovery Act which made it a federal crime to "fail[] to pay a past due support obligation with respect to a child who resides in another state," holding held that this was not a valid exercise of Congress' authority under the Commerce Clause.  Judge Batchelder (with Judges Norris and Boggs) refused to follow other circuits which had upheld the CSRA against constitutional challenge.  Those courts had upheld the CSRA under each of the three Lopez categories.  The Sixth Circuit found none of these cases persuasive:

". . . child support obligations are not commercial in character.  In the absence of a mechanism that would link particular support obligations to some sort of economic enterprise, sustaining the constitutionality of the CSRA on the basis of its current jurisdictional nexus would require paring the "Interstate Commerce Clause" to the "Interstate Clause."  This, of course, we cannot do."

Notably, the Court also refused to apply Wickard's aggregation principle.
Mr. Faasse's case is being handled by Christopher Yates of the Federal Public Defenders office out of Grand Rapids, Michigan.  The U.S. Attorney's office has already filed a request for extension of time to request any rehearing or rehearing en banc.  Mr. Yates informs me that they may simply bypass this process and ask the Solicitor General's office to directly petition for writ of cert.  He welcomes support from interested parties.
Given this panel, a rehearing is highly unlikely.  Should a rehearing en banc be granted, the normal rule is that there is no new briefing, simply new oral argument.  Because the court has no time limits on when it must act on rehearing petitions, any deadlines depend upon the actions of the Court.  Generally, if a rehearing is granted, the Court will specify the date of oral argument in its grant order, and might request additional briefing.  If no new briefing is requested, amici may be able to participate if they proceed by motion with sufficient time for the Court to consider the brief (note:  there are no rules on this--amicus participation is strictly at the discretion of the court).
Until a petition for rehearing is filed, there is no action to take. Should the petition be filed, Mr. Yates may have to file a response--generally, no response is required, but the court may ask for one.  I would suggest that no amici chime in at that stage--the more attention drawn to the importance of the case, the more likely the court would grant en banc rehearing.  However, it might behoove interested attorneys to review any petition to offer suggestions or thoughts to Mr. Yates on the best response.
As for a petition for cert., the good news is that the case is somewhat cert. proof, in that the particular provision at issue was amended this year; I consider it unlikely that the Court would want to rule on the constitutionality of a now-defunct law, despite the conflict in the circuits.  At the petition stage, I would suggest, again, that no amici participate in opposition, since amici involvement tends to call more attention to the importance of a given case.  An opp. cert. brief must be filed by Mr. Yates, and he might welcome suggestions.  Of course, if cert. is granted, amicus briefs are due at the same time as the party supported (see Supreme Court rules--but also note that when the U.S. is the petitioner, they almost invariably request extensions of time).
  • Schuehle v. Babbitt.
    This is a Commerce Clause challenge brought by a landowner to the Endangered Species Act. To those familiar with ESA litigation, this is yet another case dealing with the Edwards Aquifer species.  In short, the Edwards Aquifer supplies much of the water to landowners in and around San Antonio, Texas; it is also home to some listed species.  In dry years, the Sierra Club regularly threatens landowners and state agencies with intent-to-sue letters if they draw too much water from the aquifer.  The district court found for FWS; the case is now before the Fifth Circuit, and briefing is probably due in mid-November.  FYI, the Fifth Circuit had an opportunity to rule on the Commerce Clause issue in a case called Sierra Club v. Babbitt.  At oral argument, the court was very skeptical of the Sierra Club's Commerce Clause argument, but ultimately decided the case on abstention grounds.
    If you are interested, you may call Paul Terrill of Hazen & Terrill in Austin, Texas.  His number is (512) 474-9100; e-mail is pterrill@hazen-terill.com.
  • On September 26, 2000, the Supreme Court granted the State of Alabama's certiorari petition in Alexander v. Sandoval (No. 99-1908), in which the 11th Circuit held that the Alabama "Department of Public Safety's . . . official policy of administering its driver's license examination only in the English language [pursuant to a 1990 constitutional amendment stating that] 'English is the official language of the state of Alabama', . . . violates Title VI by creating an adverse, disproportionate impact on non-English speaking Alabama residents who wish to obtain a driver's license."
    The issue presented in Alabama's cert. petition is: "Whether Congress intended to create a private right of action in federal court against a State agency that receives federal grant funds, thereby allowing a private individual to enforce disparate effect regulations promulgated by federal agencies under Section 602 of the Civil Rights Act of 1964 and bypass the federal agency review and enforcement process established by Congress."
    Amici briefs in support of Alabama are due Monday, 13 November.  The next conference call among potential amici curiae is scheduled for 2:00 pm on Thursday, 19 October.  Anyone interested in participating should contact Joe Schmitz (202-457-6086) or Greg Walden (202-457-6135).

October 4, 2000

  • Fifth Circuit En Banc Denies Jurisdiction to Conduct Program-Wide Review or Issue Program-Wide Injunctions Against Federal Agencies

September 27, 2000

  • Regulatory Takings Victory

    On September 15, the U.S. Court of Appeals for the Fifth Circuit handed down an important regulatory takings decision in United States Fidelity & Guar. Co. v. McKeithen, No. 99-30475 (5th Cir. Sept. 15, 2000).  At issue in the case was 1995 amendments to Louisiana's Workers' Compensation Second Injury Fund ("SIF") Assessment Statute.  The SIF is a state created fund designed to socialize among all employers in the state the cost of "second injuries" to previously injured workers (e.g., a worker who previously blinded in one eye in an industrial accident who loses the other eye and thus becomes totally disabled).  Established in 1974, the fund assessed each employer in the state for a share of the cost of all second injuries during a given year.  Because collecting from all employers was an inefficient method of operating the fund, the 1974 law used workers' compensation insurers as an intermediary in the collection of the assessment.  As originally enacted, the law assessed each insurer based on the premiums written in a given policy year, and the insurer was allowed to pass through the assessment to the employer in its rate base.

    In 1995, after numerous insurers had ceased or substantially reduced underwriting in the state because of high costs and bad experience, the State changed the methodology for the assessment from a premium-based assessment to an assessment on the basis of benefits paid in the current year.  The net effect of the change was to shift a substantial portion of the costs of the SIF to insurers that had withdrawn from the state. Insurers sued in federal district court in Baton Rouge, but the district court upheld the statute.  The Fifth Circuit, in an opinion written by Judge Edith Jones, reversed the district court and ordered that the statute be enjoined as applied to the plaintiff insurers.  Applying Eastern Enterprises v. Apfel, the court held that the statute constituted impermissible retroactive legislation in violation of the Takings Clause.  As applied to defendants' pre-enactment workers' compensation policies, the legislation "retroactively imposes a heavy economic burden on those who could not reasonably anticipate the liability."

    Defendant insurers were represented by Mark F. Horning and Shannen W. Coffin of Steptoe & Johnson LLP (Co-Chair, Federalism & Sep Powers Practice Group).

    The opinion is available at http://www.ca5.uscourts.gov/opinions/pub/99/99-30475-cv0.HTM


September 19, 2000

September 13, 2000

  • The President's powers under the Antiquities Act of 1906, 34 Stat. 225, 16 U.S.C. 431 et seq., to designate public land as national monuments has become an election issue this year.
  • In the recent article below, the New York Times editorializes on the Act, which raises both federalism and separation of powers issues.
  • See also 16 U.S.C. 431 ("The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.  When such objects are situated upon a tract covered by a bona fide unperfected claim or held in private ownership, the tract, or so much thereof as may be necessary for the proper care and management of the object, may be relinquished to the Government, and the Secretary of the Interior is authorized to accept the relinquishment of such tracts in behalf of the Government of the United States.").

September 7, 2000

  • CIR Seeks to Extend its Morrison Victory to the Clean Water Act

Arguing that the Clean Water Act has been given an unconstitutionally broad interpretation, the Center for Individual Rights submitted an amicus brief in the Supreme Court case Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. The Court will review the U.S. Court of Appeals for the Seventh Circuit’s holding that an expansive interpretation of the Act by the Corps of Engineers falls within the federal government’s authority to regulate interstate commerce.  The disputed interpretation purports to allow the Corps to regulate even “intrastate and isolated waters” that could “be used as habitat by…migratory birds which cross state lines.” CIR argues that the Supreme court’s holding in U.S. v. Morrison – in which CIR successfully represented Tony Morrison’s challenge to the Violence against Women’s Act – governs the Solid Waste case.  Morrison held that the federal government cannot regulate non-economic activity under the Constitution’s Commerce Clause simply because the activity has some indirect effect on interstate commerce.  Given that holding, “it would be…strange to suggest that Congress can regulate non-economic acts that have some long-range effect on the ability of birds or insects to travel in interstate commerce,”  CIR’s brief argues. CIR notes that the Corps’ interpretation would allow it to regulate even backyard bird feeders visited by migratory birds. Oral argument in Solid Waste is set for October 31.

The Institute for Justice recently published “State of the Supreme Court 2000: The Justices’ Record on Individual Liberties.” Visit http://www.ij.org/publications to view the publication.

August 31, 2000

  • According to popular convention, the champions of federalism and states' rights are members of the political right, and the enemies, members of the political left.
    For example, our June 8, 2000 e-mail announced that the Nov/Dec. 99 issue of The Record of the Association of the Bar of the City of New York (http://www.abcny.org) contained a report from the Association's Committee on Federal Legislation, entitled "The New Federalism," expressing "great[] concern[] that the New Federalism developed by the Supreme Court and expanded by the lower federal courts is both inappropriate and dangerous." (That report is available on LEXIS, at 54 The Record 712 (NY library, RECORD file).)
    However, such a political alignment need not be the case. For example, during his Law Day remarks, below, New York Attorney General Eliot Spitzer noted that "the devolution of decision making from Washington to the States about how to enforce statutes or non statutory rights did not determine the substantive conclusion of those making decisions of the state level. Indeed, I now see this change as a tremendous opportunity for legal ingenuity and innovation on the part of state actors." See http://www.oag.state.ny.us/press/statements/law_day.html.
  • In Anastasoff v. United States, the U.S. Court of Appeals for the Eighth Circuit invalidated its own rule providing that unpublished decisions are not precedent, holding that stare decisis is constitutionally required and that attempts to abrogate it by circuit rule unconstitutionally vest federal courts with extra-"judicial power." To read the decision, see http://www.ca8.uscourts.gov/cgi-bin/8th_bykey.pl?search=99-3917&or=0.
    Taking a different approach, Minnesota Law Professor Michael Stokes Paulsen recently argued that Congress has the power to abrogate stare decisis by statute, and thereby to remove the precedential effect of past Supreme Court rulings such as Roe v. Wade. See Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535 (2000); De-precedenting Roe, 3 Green Bag 2d 347 (2000).
    In addition, Anastasoff only held that courts are constitutionally required to apply the doctrine of stare decisis. The decision did not, however, define the scope of that doctrine or explore the universe of possible exceptions. For example, Charles Cooper has argued that stare decisis has greater force when courts sit at common law, than when courts act merely as interpreters of statutory or constitutional law. See Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. Rev. 401 (1988).

August 19, 2000

  • Free Commerce in Wine: Trapped in a Tangled Legal Web
    By John A. Hinman and Robert T. Wright Jr., Legal Backgrounder, Washington Legal Foundation
    A debate has raged this year in state legislatures, courts, and Congress over the ability of alcohol producers to directly ship their products to consumers over state lines. The controversy directly implicates the constitutional parameters of the commerce power and the 21st Amendment, regulation of the Internet, and federal versus state power. For additional information, click here.

August 1, 2000

  • Whoever wins the presidential election this November may inherit from President Clinton a broader executive power than that which existed eight years ago -- a topic that will be among the many presidential power questions debated at the Society's Convention in Washington this November, and is discussed in the op-ed, below, by Bruce Bartlett of the National Center for Policy Analysis. http://www.townhall.com/columnists/brucebartlett/bb2000728.shtml

June 22, 2000

  • The Nov/Dec. 99 issue of The Record of the Association of the Bar of the City of New York (http://www.abcny.org) contains a report from the Association's Committee on Federal Legislation, entitled "The New Federalism." That report canvasses recent case law and expresses "great concern that the New Federalism developed by the Supreme Court and expanded by the lower federal courts is both inappropriate and dangerous." The report is available on LEXIS, at 54 The Record 712 (NY library, RECORD file).

June 1, 2000

  • Pro Bono Prospects

    • McDonnell v. Illinois, 2000 N.J. Lexis 140 (2000). This case involves whether a state can be sued in the courts of another state. The Supreme Court indicated that a state could be sued in another state's courts in Nevada v. Hall, 440 U.S. 410 (1979), but suggested that some limitations may apply. Illinois maintains a revenue office in New Jersey and fired an auditor working in that office. The employee sued for age discrimination and the New Jersey Supreme Court upheld the employee's right to sue in New Jersey. Illinois is planning to file a petition for writ of certiorari.
      Joel Bertocchi, Solicitor General
      100 West Randolph Street, 12th Floor
      Chicago, IL 60601
      (312) 814-3698

    • Goldin v. Montana (In re Pegasus Gold Corp.), No. BK-N-98-30088 (GWZ), Adversary 00-3070 (D. Nev.)
      This case involves the extent to which a state agency's filing of a proof of claim in a core bankruptcy waives the state's Eleventh Amendment immunity for tort and contract-based claims in an adversary proceeding. The original proofs of claim sought compliance with an existing mine reclamation plan by increasing bond coverage at two mine sites. The proofs of claim sought no monetary recovery. After a dispute arose over the use of a corporation created by the estate for the reclamation activities, the estate filed numerous claims against the state in a separate adversary proceeding. The state is planning to move for dismissal on Eleventh Amendment grounds and would welcome amicus support.
      Clay Smith, State Solicitor
      Office of the Attorney General
      215 N. Sanders
      P.O. Box 201401
      Helena, MT 59620-1401
      (406) 444-2026
    • Almond v. Rhode Island Lottery Commission, No. 99-525, In the Rhode Island Supreme Court. This case involves whether the Rhode Island General Assembly violated state separation of powers principles when it created a lottery commission that it controls by appointing sitting state legislators as a majority of the commission. The governor and attorney general are challenging the arrangement.
      Lauren S. Zurier
      Office of the Attorney General
      150 South Main Street
      Providence, RI 02903
      (401) 274-4400 ext. 2327
  • Newsworthy Federal Cases
    • One significant one is Gibbs v. Babbitt, a Commerce Clause challenge to a Fish & Wildlife Service regulation (dealing with red wolves) under the Endangered Species Act. The case is currently before the Fourth Circuit. Oral argument was earlier this year, before Judges Luttig, Michaels & Wilkinson. On April 26, the panel issued an order staying its decision pending the Supreme Court's decision in Brzonkala (to which Judge Luttig dissented--he thought they should issue their decision and that Brzonkala would not alter their analysis). Since Brzonkala is decided, we are expecting a decision anytime. In general, the vulnerabily of the ESA under the Commerce Clause is the subject of many law review articles, notwithstanding NAHB v. Babbitt. This has prompted many to argue that the feds ought to rely, instead, upon the treaty power. This notion raises its own interesting constitutional question; that is: can Congress acquire unenumerated powers via a treaty. Believe it or not, there is no definitive case law on this--a few equivocal cases here and there. And we have also seen Fish & Wildlife assert the Property Clause as a basis for their power under ESA--on the basis that species declines affect the "ecosystem" in which federal property sits, therefore the feds can regulate species to protect federal property.
    • There is another ESA/Commerce Clause case in district court in Texas that is up on summary judgment. There are some other ESA cases that implicate federalism concerns in a very peculiar way. In the 1st, 11th and 9th circuits there are cases where environmentalist plaintiffs are suing state and local government agencies for violating the ESA on the basis that their regs do not prevent the "take" of listed species by private third parties. In the California case, for example, the Environmental Protection Information Center et al. have sued the heads of three state agencies, saying that their timber harvest regs do not do enough to protect listed coho salmon, therefore the state itself is in violation of the Act. The federalism aspect falls under the New York line of cases, specifically, does the ESA mandate that states regulate in a certain way? The Tenth Amendment issue does not need to be reached, necessarily, because one does not have to read the ESA to include "harmfully inadequate regulation" as part of the "take" definition. However, the First Circuit has already gone the other way (Strahan v. Coxe), basically implying that the ESA requires the state to modify its fishing/timber/what-have-you regulations in such a way as to affirmatively enforce the ESA.
  • An article by Stuart Taylor Jr. (Newsweek) discusses the Court's recent opinions in United States v. Morrison, Nos. 99-5, 99-29 (ruling on Commerce Clause and Fourteenth Amendment, Section 5 grounds). http://www.newsweek.com/nw-srv/printed/us/na/a20105-2000may21.htm

March 2000

  • Members may be interested to learn of a recent controversy in California over statements made by Democratic Governor Gray Davis regarding his own judicial appointments. The dispute raises interesting questions about the tension between judicial independence and judicial accountability. In his writings (click here to view), American Bar Association President William Paul criticizes Davis's statements. Practice group member John Yoo, law professor at Boalt Hall, has articulated an alternative point of law. See John C. Yoo, Criticizing Judges, 1 Green Bag 2d 277, 278 (1998) ("[D]efenders of the federal judiciary ... would have us believe that these structural guarantees for judicial independence [life tenure and salary protection, U.S. Const. art. III, sec. 1] are under threat from the current crop of political attacks. These observers mistake the criticism of a branch of government that undeniably wields enormous power in our society for an actual attempt to interfere with the decisional and institutional independence of our federal judges. The former is but one aspect of the polity's discussion of contemporary moral and social issues. While the latter would be a serious and undesirable political development, no true attack on judicial independence has occurred in sixty years and none is occurring now. Current criticism of sitting judges and the intensified examination of judicial candidates has more to do with the struggle between the President and the Senate over judicial nomination policy than with judicial independence."). James C. Ho

February 2000

  • Recess Appointments Clause, U.S. Const. art. II, sec. 2, cl. 3

    First, in the article by John Nowacki of the Free Congress Foundation objects to anticipated December 1999 recess appointments by President Clinton on the grounds that the recess appointment power can be used to fill only those vacancies that are first created during a recess of the Senate. For Senator Inhofe's Senate Floor statements, see 145 Cong. Rec.S14665 (Nov. 17, 1999), available in 1999 WL 1041285; 145 Cong. Rec. S15059 (Nov. 19, 1999), available in 1999 WL 1050355.

    Nowacki's argument is based on plain text. Historical evidence supporting Nowacki's position can be found in David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801 at 154 n. 168 (Chicago 1997). The case law of the lower federal courts and other historical evidence support the opposite view, however. See Swan v. Clinton, 100 F.3d 973, 985 (D.C. Cir. 1996); United States v. Woodley, 751 F.2d 1008, 1012-13 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 709-14 (2nd Cir. 1962); Staebler v. Carter, 464 F. Supp 585, 597 (D.D.C. 1979); In re Farrow, 3 F. 112, 115 (C.C.N.D. Ga. 1880).

    Second, some have objected on the additional grounds that the recess appointments power does not apply to federal judges, because federal judges enjoy life tenure, whereas recess commissions expire at the end of the next session of the Senate. The two circuits that have addressed this issue have permitted recess judicial appointments, however, on grounds of historical practice. See Allocco, 305 F.2d at 708-9 (2nd Cir. 1962); Woodley, 751 F.2d 1008, rev'g 726 F.2d 1328 (9th Cir. 1984). Indeed, to date there have been 309 recess judges, including 11 recess justices of the Supreme Court. The last recess judicial appointee was installed by President Carter in 1980. See Woodley, 726 F.2d at 1335-36.

    Lastly, some have argued that recess appointments cannot -- or at least ought not -- be used to install individuals in order to avoid expected rejection by the Senate. See, e.g., 145 Cong. Rec. S15059 (Nov. 19, 1999) (Sen. Inhofe). At least one court has expressed sympathy with this view. See Staebler, 464 F. Supp. at 601 & n. 41. Click Here for the Article

  • United States v. Morrison and the Violence Against Women Act: Supreme Court to consider scope of Congressional power to regulate commerce

    This morning (January 11, 2000) the U.S. Supreme Court will hear oral arguments in the case of United States v. Morrison, styled in the court of appeals below as Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820 (4th Cir. 1999) (Luttig, J.), cert. granted, 120 S. Ct. 11 (Mem), 68 U.S.L.W. 3021, 3175, 3177 (U.S. Sep. 28, 1999) (Nos. 99-5, 99-29).

    Morrison presents the Court with the opportunity to articulate further its jurisprudence of enumerated federal powers under the Commerce Clause and Section 5 of the Fourteenth Amendment. Court watchers thus eagerly anticipate further elaboration on recent rulings in United States v. Lopez, 514 U.S. 549 (1995), and City of Boerne v. Flores, 521 U.S. 507 (1997).

    Needless to say, one should expect substantial national debate and discussion on the Morrison case in coming months. Professor James F. Blumstein of the Vanderbilt Law School provides helpful analysis and insight in a recent Wall Street Journal article. Click Here for the Article

  • Is there tension between federalism and original intent or textualism?

Before the U.S. Supreme Court this Term are a number of potentially significant federalism cases.

Just recently argued, for example, was United States v. Morrison, styled in the court of appeals below as Brzonkala v. Virginia Polytechnic Institute and State University, 169 F.3d 820 (4th Cir. 1999) (Luttig, J.), cert. granted, 68 U.S.L.W. 3021, 3175, 3177 (U.S. Sep. 28, 1999) (Nos. 99-5, 99-29). Morrison involves the scope of Congressional power under the Commerce Clause and Section 5 of the Fourteenth Amendment.

The Court recently handed down important decisions relating to state sovereign immunity under the 10th and 11th Amendments. The unanimous opinion in Reno v. Condon, finding no state sovereign immunity against the federal Driver's Privacy Protection Act, is available at <http://supct.law.cornell.edu/supct/html/98-1464.ZS.html>.

Kimel v. Florida Bd. of Regents, in which a bare majority concludes that states are immune from private suits under the Age Discrimination in Employment Act, can be found at <http://supct.law.cornell.edu/supct/html/98-791.ZS.html>.

The Court also recently granted certiorari in another 11th Amendment case, this one involving the Americans with Disabilities Act. See Kimel v. State Bd. of Regents, 139 F.3d 1426 (11th Cir. 1998), cert. granted sub nom., Florida Dept. of Corrections v. Dickson, 67 U.S.L.W. 3364, 3397 (U.S. Jan. 20, 2000) (No. 98-829).

These cases focus attention not only on federalism but also on textualism original intent, and the proper role of the courts. For example, in a dissenting opinion in Kimel, joined by Justices Souter, Ginsburg, and Breyer, Justice Stevens concluded by asserting that the states' rights majority had improperly engaged in "judicial activism."

Click Here for an Editorial in the Washington Post That Takes a Similar View.


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