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court's own rule that unpublished decisions are not precedent.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P. Brooks, Unpublished Opinions and the Nature of Precedent, 4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.
Assistant Ohio Attorney General
- 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
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.
- 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.
FOR IMMEDIATE RELEASE
SHIELDS AND SCHUEHLE APPEAL JUDGE BUNTON'S FAILURE
TO UPHOLD CONSTITUTION IN ENDANGERED SPECIES RULING
San Antonio, Texas
Contact: Lisa Dudley
September 7, 2000
Phone: (210) 614-7157
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) 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
. . ."
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."
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 Institutes 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
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 firstname.lastname@example.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:
Notably, the Court also refused to apply Wickard's aggregation principle.
". . . 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
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 email@example.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
October 4, 2000
Circuit En Banc Denies Jurisdiction to Conduct
Program-Wide Review or Issue Program-Wide Injunctions Against
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
- 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
September 7, 2000
- CIR Seeks to Extend its Morrison Victory to the Clean Water
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
Circuits holding that an expansive interpretation of the
Act by the Corps of Engineers falls within the federal governments
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
migratory birds which cross state lines. CIR argues
that the Supreme courts holding in U.S. v. Morrison
in which CIR successfully represented Tony Morrisons
challenge to the Violence against Womens Act governs
the Solid Waste case. Morrison held that the
federal government cannot regulate non-economic activity under
the Constitutions 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,
CIRs 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,
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
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
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
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.
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,
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
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
- 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
- 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
- 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
- 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
- Recess Appointments Clause, U.S. Const. art. II, sec. 2,
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
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
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,
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.
Here for the Article
- Is there tension between federalism and original intent or
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
Here for an Editorial in the Washington Post That Takes
a Similar View.
2003 The Federalist Society