December 17 | October
10 | September 13 | August
31 | June 26
| June 20 | June
13 | May 30 | May
23 | April 11 |
March 2 | February
26 | February 15
| February 5 | January
30 | January 24
| January 19 | January
17 | January 8 | January
December 17, 2001
October 10, 2001
September 13, 2001
- Ronald D. Rotunda, Professor of Law at the University of Illinois
and Visiting Professor of Law at George Mason University, spoke
before a Senate subcommittee on the Senate's role in the process
of nominating and confirming federal judges. Professor Rotunda
noted at the outset that, "if it ain't broke, don't fix it."
He wondered why the process was being reexamined despite the fact
that "the Senate has been confirming federal judges for years,
and the product is admired around the world." He noted that,
contrary to popular belief, judges do not rule on party lines.
"Judges are human, to be sure. But . . . they do not vote
based on the election returns. They know that their ultimate judge
is history, not the politics of the moment." Professor Rotunda
pointed out that commentators and politicians alike have historically
been unable to predict with any accuracy how nominees will vote
once confirmed. Reviewing the history of the nomination and confirmation
process, he concluded that the Senate should continue to focus
on a nominee's character and ability to follow the law, rather
than his or her putative political ideology. "The Senate
should continue to play the constitutionally mandated role of
reasoned advisor to the President, not prophet, seer, or investigative
reporter." Professor Rotunda was joined on the panel by Professor
Sanford Levinson, University of Texas Law School; Professor Judith
Resnik, Yale Law School; Dean Douglas Kmiec, Catholic University
Law School; and Professor Mark Tushnet, Georgetown University
Law School. You can read the full text of Professor Rotunda's
August 31, 2001
- John Yoo has written an article in the University of Chicago
Law Review, Volume 68.3 on "In defense of the Court's Legitimacy.
He writes, "This Essay will argue that concerns about the
Court's legitimacy are overblown. While it is certainly too early
to be sure, the Court's actions, and their impact on the political
system, come nowhere close to approaching the circumstances that
surrounded earlier, real threats to the Court's standing. The
Court did not decide any substantive issues-on a par with abortion
or privacy rights, for example-that call upon the Court to remain
continually at the center of political controversy for years.
Instead, the Court issued a fairly narrow decision in a one-of-a-kind
case-the procedures to govern presidential election counts-that
is not likely to reappear in our lifetimes. Rather than acting
hyprocritically and lawlessly, the Court's decisions to bring
the Florida election dispute to a timely, and final, end not only
restored stability to the political system but was also consistent
with the institutional role the Court has shaped for itself over
the last decade. "
June 26, 2001
June 20, 2001
- 9th Circuit Upholds San Francisco's Domestic Partner Benefits
"A city ordinance requiring contractors doing business with
San Francisco to offer benefits to domestic partners was unanimously
upheld Thursday by the 9th U.S. Circuit Court of Appeals. S.D.
Myers Inc., an Ohio-based transformer consulting company, challenged
the constitutionality of the 1997 ordinance and argued further
that it was pre-empted by the state's domestic partners registry,
which was enacted after a lower court sided with the city. Domestic
partner rights advocates hailed the decision as a significant
victory -- the first of its kind by a federal appellate court
-- that protects similar ordinances in Seattle, Los Angeles and
other cities in the West. The ordinances require companies contracting
with the city to provide the same benefits for domestic partners
as they do for married couples. "This is the green light
we've been waiting for," said Lambda Legal Defense and Education
Fund lawyer Jennifer Pizer. "We know that other cities and
counties have been looking to this case." The opinion was
written by Senior Judge J. Clifford Wallace, one of the more conservative
members of the court. But Wallace and his colleagues, Judges Raymond
Fisher and Johnnie Rawlinson, found that the ordinance was tailored
narrowly enough to avoid the Commerce Clause concerns raised by
S.D. Myers. "The most obvious problem with Myers' reading
is that the ordinance contains no language explicitly or implicitly
targeting either out-of-state entities or entities engaged in
interstate commerce," Wallace wrote."
June 13, 2001
- Joel Friedlander has written an article in the Texas Review
of Law and Politics on why the Bush v. Gore decision is consistent
with the rule of law and conservative jurisprudence. He writes,
"Notwithstanding the dicta, protests, and punditry, the role
of law was vindicated in Bush v. Gore. In this article,
I defend the proposition that the Florida Supreme Courts
order that ballots be hand-counted statewide offended the rule
of law, justifying reversal by the United States Supreme Court
based on the Equal Protection Clause and the Due Process s Clause.
I also argue that the Courts majority opinion is consistent
with conservative jurisprudence, properly understood, and that
the intellectual debate over the Courts decision reflects
a wider Kulterkamp in contemporary legal thought that extends
to the meaning and desirability of living under the rule of law."
The article is available at http://www.trolp.org
May 30, 2001
A recent ruling by a U.S. district court judge in Michigan rebuffed
attempts by some private groups to use federal courts to force Michigan
to provide more health care benefits to the uninsured poor under
Medicaid. See: http://detnews.com/2001/editorial/0105/21/a08-226465.htm
- What is the best way to change Medicaid rules?
To read the decision see: http://www.mied.uscourts.gov/JudgesOpinions/Cleland/_Cleland.htm
May 23, 2001
April 11, 2001
- The Real Division in the Supreme Court
- by Michael S. Greve
- On the Issues, American Enterprise Institute
- The ruling in the Supreme Court case of Bush v. Gore presents
no inversion of the federalist positions of conservative and
liberal justices. Instead, it reflects a pattern of division
between the justices who tend to enforce constitutional federalism
and those who favor cooperative federalism. CONTACT: American
Enterprise Institute, 1150 17th Street, NW, Washington, D.C.
20036, 202/862-5800, fax 202/862-7178, http://www.aei.org/oti/oti12430.htm
- President Bush issued a memorandum ordering the establishment
of the Interagency Working Group on Federalism. Composed on cabinet
officers and senior administration personnel, the group's functions
include identifying initiatives that promote principles of Federalism,
drafting a new executive order on Federallism, consulting with
state and local officials on the initiative, and producing a report
for the President on recommendations for promoting principles
of Federalism within six months. Several principles of Federalism
were specifically identified, including federal endeavors that
may be carried out more appropriately by state or local authorities;
opportunities that increase state and local flexibility; innovation,
and accountability; measures for improving federal responsiveness
to state and local concerns; and enforcement of rules, orders,
and procedures that advance Federalism. For more information,
March 2, 2001
The U.S. Supreme Courts decision in American Trucking,
while it did not strike down EPAs ozone rule under the non-delegation
doctrine, did place important limits on EPAs authority. First,
writing for the Court, Justice Scalia bounded EPAs regulatory
authority in the Clean Air context by saying that any new standard
needed to be "sufficient, but not more than necessary"
to protect public health. This restraint was suggested by the Solicitor
General in oral argument. By thus taking a major swipe at lead Industries
and reaffirming the Supreme Courts earlier pronouncement in
Benzene, the Courts application of this standard makes clear
that the use of sound science will be necessary in setting standards.
Secondly, the Courts opinion does in fact recognize that the
costs of compliance should be taken into account by the EPA and
the states in implementing any standards. Again, at the Solicitor
Generals suggestion, the Court underscored the relevance of
economic efficiency and feasibility to the implementation of standards.
To read the full text of this opinion, go to: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-1257
- Supreme Court Places Important Limits on EPA
- The Use and Misuse of Executive Orders and Other Presidential
A report by Todd Gaziano of the Heritage Foundation discusses
President Bill Clintons executive orders. The report begins:
"In recent years, there has been renewed interest in the
proper use and possible abuse of executive orders and other presidential
directives. Many citizens and lawmakers expressed concern over
the content and scope of several of President Bill Clinton's executive
orders and land proclamations. Congress responded with hearings
and the consideration of several bills designed to curb the President's
authority to issue such directives. In an exceedingly rare act,
the courts reacted by striking down one of President Clinton's
executive orders, and litigation to contest the validity of other
directives is ongoing.
Despite the increased public attention focused on executive orders
and similar directives, public understanding regarding the legal
foundation and proper uses of such presidential decrees is limited.
Thus, the increased public attention generally has been accompanied
by confusion and occasional misunderstandings regarding the legality
and appropriateness of various presidential actions. This legal
memorandum provides a general overview of the President's use
of executive directives, including a discussion of the historical
practice, the sources of presidential authority, the legal framework
of analysis, and reform proposals related to the use and abuse
of presidential Directives."
To read the memo, visit http://www.heritage.org/library/legalmemo/lm2.html.
February 26, 2001
- The U.S. Supreme Court ruled in Board of Trustees of Univ. of
Ala. v. Garrett, No. 99-1240, that Eleventh Amendment state sovereign
immunity bars federal suits against states for money damages for
violations of Title I of the Americans with Disabilities Act.
The syllabus of the opinion, transmitted by the Cornell Law School's
Legal Information Institute, appears below. Also included below
is coverage of the Garrett decision by Linda Greenhouse of the
New York Times.
OF TRUSTEES OF UNIV. OF ALA.v. GARRETT (99-1240)
February 15, 2001
- Last weekend on Fox News Sunday, Senator Arlen Specter suggested
that Congress has the power to impeach a former president. Though
such individuals are by definition no longer serving in presidential
office and therefore need not be removed, the question remains
whether Congress is authorized to disqualify a former president
from holding federal office in the future (or empowered to censure
him, or to take away his pension or other privileges).
Mark R. Levin, president of the Landmark Legal Foundation, articulates
a textual argument against Specter's constitutional theory. His
National Review Online article appears here: http://www.nationalreview.com/contributors/levin021201a.shtml.
Historical examples may further illuminate this debate. For example,
the 18th century impeachment trial of former Senator William Blount
presented a number of jurisdictional questions, including whether
Congress has the power to impeach former officers, or the power
to impeach members of Congress. Ultimately, the Senate dismissed
the charges. As David Currie of the University of Chicago explains,
the argument that former officers cannot be impeached "was
easily disposed of, and Blount's counsel did not press it."
David P. Currie, The Constitution in Congress: The Federalist
Period 1789-1801 at 278 (Chicago 1997). (Incidentally, the Blount
case is most commonly cited for the proposition that members of
Congress, qua members of Congress, cannot be impeached. Id. at
281. Currie also discusses potential arguments for Congressional
immunity from impeachment under the Speech or Debate Clause of
Article I. Id. at 276 n. 325.)
In addition, there is the example of Congressman Alcee L. Hastings
(D-Fla.), "a former federal judge and the only member of
the House previously impeached and removed from office by Congress."
Michael Barone & Grant Ujifusa, The Almanac of American Politics
1996 at 347 (Nat'l J. 1995). As a federal judge, Hastings was
impeached, convicted and removed from office in 1988. He was not
expressly disqualified from future federal office, however, and
indeed was elected to Congress in 1992. A suit by a Florida law
student charging that the conviction barred Hastings from office
was dismissed on the grounds that the student did not live in
the district and therefore did not have standing to file. Id.
Arguably, if removal can take place without disqualification,
then disqualification can take place without removal.
Thanks to C. Kevin Marshall of Sidley & Austin for bringing
this matter to our attention.
- Just 46 days into the new millennium, a number of interesting
federalism cases have already been announced by the lower federal
First, enumerated powers. In United States v. Corp, 236 F.3d
325 (6th Cir. Jan. 3, 2001), the Sixth Circuit found "serious
questions about the constitutionality" of the Child Abuse
Victims Right Act, 18 U.S.C. § 2252(a)(4)(B). The court avoided
the Commerce Clause challenge by narrowly construing the statute
against the government. The opinion is available at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=01a0002p
Thanks to Dr. Michael Greve of the American Enterprise Institute
for bringing this case to our attention.
In Gerling Global Reinsurance Corp. of America v. Low, --- F.3d
----, 2001 WL 99396 (9th Cir. Feb. 7, 2001), the Ninth Circuit
upheld California's Holocaust Victim Insurance Relief Act against
challenges that the act violates the dormant foreign commerce
clause and infringes upon the federal government's exclusive power
in foreign affairs. Thanks to University of San Diego Law Professor
Mike Ramsey for bringing this case to our attention. Click here
for his discussion of the case.
Moving on to the Eleventh Amendment, the Ninth Circuit in In
re Lazar, --- F.3d ----, 2001 WL 29160 (9th Cir. Jan. 12, 2001),
construed the scope of the 11th Amendment and the waiver doctrine
within the bankruptcy context. In Seminole Tribe v. Florida, 517
U.S. 44 (1996), the Supreme Court had held that Congress may not
abrogate state sovereign immunity when enacting legislation pursuant
to its Article I, Section 8 powers. In dissent, Justice Stevens
expressed concerns that the majority's ruling "prevents Congress
from providing a federal forum for a broad range of actions against
States, from those sounding in copyright and patent law, to those
concerning bankruptcy, environmental law, and the regulation of
our vast national economy." Id. at 72-73. Attempting to resolve
Justice Stevens's concerns, the Ninth Circuit held that, when
a state files a proof of claim in a bankruptcy proceeding, that
state waives its Eleventh Amendment immunity with regard to the
bankruptcy estate's claims that arise from the same transaction
or occurrence as the state's claim. A similar approach was urged
in Teresa K. Goebel, Comment, Obtaining Jurisdiction Over States
in Bankruptcy Proceedings After Seminole Tribe, 65 U. Chi. L.
Rev. 911 (1998). The opinion is available at http://laws.lp.findlaw.com/9th/9756635.html
. Thanks to Chapman Law Professor John C. Eastman for bringing
this case to our attention.
Lastly, in AT&T Communications v. BellSouth Telecommunications
Inc., --- F.3d ----, 2001 WL 38281 (5th Cir. Jan. 16, 2001), the
Fifth Circuit held in a 2-1 decision that the Telecommunications
Act of 1996 did not unconstitutionally abrogate state sovereign
immunity, because federal law merely conditioned the option for
state commissions to regulate telephone interconnection agreements
upon waiver of the state's sovereign immunity. The Associated
Press article, below, discusses the decision.
Gerling Global Reinsurance Corp.
of America v. Low (9th Cir. 2001)
On February 7, 2001, the Ninth Circuit issued a ruling upholding
the constitutionality of California's Holocaust Victim Insurance
Relief Act against challenges that the act violated the dormant
foreign commerce clause and infringed upon the federal government's
exclusive power in foreign affairs. In general, the Act requires
insurance companies that issued policies in Europe in the pre-World
War II era to publicly disclose their insurance records. This
arises in the context of many Holocaust victims and their survivors
attempting to claim benefits under Holocaust-era insurance policies
but often being denied relief because they were unable to prove
their claims due to lost policies, etc. In addition, the federal
government has been pursuing negotiations with various nations
including Germany and Austria to attempt to establish funds from
which Holocaust victims, including those with unpaid insurance
claims, might be compensated.
Several insurers challenged the Act on the grounds that, among
other things, (1) it was an impermissible state intrusion into
foreign affairs, barred under the doctrine of Zschernig v. Miller;
and (2) it violated the dormant foreign commerce clause becuase
it interfered with the federal government's ability to speak with
one voice in foreign affairs, under Japan Line v. County of Los
Angeles. A federal district court (Shubb, E.D. Cal.) agreed, and
enjoined the operation of the statute.
In the decision issued on Wednesday, the Ninth Circuit (Graber,
J.) reversed the district court on both points. As to the foreign
affairs power, the court read Zschernig narrowly to apply only
to cases of overt criticism of foreign governments, not to generalized
state activities that have some impact on foreign affairs. As
to the commerce clause argument, the court, among other things,
followed the Supreme Court's decision in Barclays Bank v. Franchise
Tax Board, holding that the voice of the federal government in
foreign commerce is Congress, and as long as Congress had not
disapproved the statute (which it hadn't), the state statute was
permissible. (The court left the injunction in place while the
district court considered an unrelated due process challenge.)
This seems to me to be a strong decision vindicating the ability
of the states to act in foreign affairs absent statutory preemption.
In my view that is a good thing, both as a matter of the original
undertanding and of constitutional structure (see my article on
this, 75 Notre Dame Law Review 341 (1999)), although others may
I should note in the interest of full disclosure that I served
as co-counsel to the state of California in this litigation.
Professor of Law
University of San Diego Law School
- AT&T Communications v. BellSouth
Telecommunications Inc. (5th Cir. 2001)
Associated Press Newswires
Copyright 2001. The Associated Press. All Rights Reserved.
Tuesday, January 16, 2001
Question of federal courts in telephone deregulation debated
By ALAN SAYRE
AP Business Writer
NEW ORLEANS (AP) - A key portion of the historic federal law
allowing various aspects of the telecomunications industry to
compete against each other was upheld by an appeals court on Tuesday.
Acting on a dispute holding up competition to BellSouth Corp.'s
local telephone business in Louisiana, the 5th U.S. Circuit Court
of Appeals ruled that Congress was within its boundaries when
it allowed such fights to be reviewed by federal courts.
The 2-1 ruling by a three-judge panel means two long-distance
carriers who want to offer local telephone service in the state
can continue a federal lawsuit against the Louisiana Public Service
The PSC had established rates in 1997 that AT&T and e.spire
considered too high for using BellSouth connecting lines. BellSouth
thought the rates were proper. However, BellSouth joined the companies
in arguing that Congress acted properly in allowing federal court
U.S. District Judge John Parker of Baton Rouge dismissed the
suit in March 1999, saying Congress violated the 11th Amendment
to the Constitution by allowing federal court review of local
telephone disputes in the Telecommunications Act of 1996.
The 11th Amendment bans federal lawsuits against states by most
Parker had also rejected the contention that AT&T could sue
individual PSC members in their official capacity - rather than
the entire agency - to challenge the connecting line charges.
However, the 5th Circuit said Parker erred on that point.
Both aspects of Parker's ruling were reversed and sent back to
the district court.
The Federal Communications Commission, which intervened on the
side of the telecommunications companies, said deregulated telephone
service falls within interstate commerce.
The PSC contended that the regulation of local telephone service
is still a state matter. The 5th Circuit disagreed, saying the
Telecommunications Act "validly pre-empted the states' power
to regulate local telecommunications competition."
Under the Telecommunications Act, state utility regulatory bodies
can decide whether to act as an arbiter in disputes over competing
local telephone service. The PSC in Louisiana decided to take
the function and the 5th Circuit said that because of that, the
PSC had waived its 11th Amendment protection.
"Congress may still obtain a nonverbal voluntary waiver
of a state's Eleventh Amendment immunity, if the waiver can be
inferred from the state's conduct in accepting a gratuity after
being given clear and unambiguous statutory notice that it was
conditioned on waiver of immunity," said the majority 5th
Circuit opinion by Judges Henry Politz and James Dennis.
In dissent, Judge Jerry Smith said the PSC was immune from the
suit under the 11th Amendment and that the Telecommunications
Act "is unconstitutional and it is up to Congress to fix
Partially at stake in the dispute is BellSouth's prospect of
providing long-distance service in Louisiana.
The Telecommunications Act requires that the former service monopolies,
such as BellSouth, show that they have adequately opened their
local networks to competitors before they can offer long-distance
service in their primary service areas. The FCC has twice rejected
BellSouth's application to provide long-distance service in Louisiana.
February 5, 2001
- Practice group vice chairman and Heritage Foundation senior
fellow Todd Gaziano writes in response to our January
30 posting about midnight pardons and the question of whether
a pardon must be delivered to be effective:
Although the issue of whether Bush would attempt to undue
some of Clinton's pardons is now moot, I couldn't resist responding
with a few of my thoughts regarding the question of whether
a pardon must be delivered and accepted before it is final.
As lawyers, we know that delivery of only a few documents
is required for them to be effective. For example, a gift
generally must be delivered to prove and impress upon the
donor the finality of his act. However, a beneficiary in a
will need not even know of the testator's intent until after
the will is probated. I disagree with the Wilson case that
a pardon is equivalent to a deed that must be delivered and
accepted. (As an aside, I don't think a deed must be delivered
and accepted by the owner to be effective anymore, if it ever
did, if it is recorded.) Similarly, I don't see why a person
receiving a pardon even needs to know about it for it to be
effective. One way to think about a pardon is that the President
is exercising a power analogous to his prosecutorial discretion,
albeit with permanent effect. It is enough that federal prosecutors
or the courts have proof that a President exercised such discretion.
Just as the President can order a criminal investigation or
prosecution to be stopped without consulting the target/defendant
(the target may want to "prove" his innocence),
the subject of a pardon need not be involved either. As for
other, lower court cases, I love these Nineteenth Century
judges that state "familiar" maxims of law without
any analysis, rationale, or citation of controlling precedent.
I really do like reading their opinions for their ipse dixit
quality, but they are not very convincing as a matter of law.
Moreover, there is at least one more important counter-example
that comes to mind. On December 25, 1868, President Andrew
Johnson issued a proclamation (the "Christmas Proclamation")
pardoning "all and every person who directly or indirectly
participated in the late insurrection or rebellion" related
to the Civil War. President Johnson did not attempt to deliver
a copy of the Christmas Proclamation to every former rebel,
and it is no doubt true that many of the former rebels would
have refused such a pardon if they were given an opportunity
do so. Yet, the Supreme Court subsequently ruled that the
proclamation was an "act of which all courts of the United
States are bound to take notice, and to which all courts are
bound to give effect." Armstrong v. United States, 80
U.S. 154, 156 (1871). Armstrong is not directly on point and
also lacks the overly verbose reasoning of modern court opinions,
but it is a more recent decision of the Supreme Court than
Wilson (for those care about such cryptic precedents). One
could try to harmonize these Nineteenth Century cases by suggesting
that a pardon by proclamation is effective upon its issuance
but a private pardon is not, but that still begs the question
(in the latter case) of why not. Ultimately, we must return
to first principles to answer the question. If we really studied
the historical antecedents of the pardon power and thought
hard about the proper analogies, I bet we would conclude that
the most significant aspect of a pardon is not that it is
equivalent to a gift, but that it is like an exercise of the
President's executive power over federal prosecutions (analogous
to an exercise of prosecutorial discretion), which is absolute
and final upon the President's action. Admittedly, the pardon
power is broader than prosecutorial discretion, including
as it does the power to commute sentences, etc. But the important
point is that it is of the same species of act, an exercise
of executive authority/clemency that is wholly within the
president's constitutional prerogative and not a personal
gift from one person to another than can be graciously accepted
- Judge Kenneth Starr delivered a speech at the Hoover Institution,
reflecting on government structure and constitutional literacy
in light of his experience as an independent counsel. Read http://www-hoover.stanford.edu/publications/digest/011/starr.html
for a transcript of his remarks.
January 30, 2001
- Midnight pardons issued by President Clinton on the eve of his
final day in office raise substantial questions as to the proper
scope and administration of presidential power with respect to
pardons. One particular legal issue has come to the fore: whether,
and how, pardons must be delivered to be effective.
The Newsweek article, http://www.msnbc.com/news/522717.asp,
summarizes the political controversy surrounding this legal question.
See also United States v. Wilson, 32 U.S. (7 Pet.) 150, 161 (1833)
("A pardon is a deed, to the validity of which, delivery
is essential, and delivery is not complete, without acceptance.
It may then be rejected by the person to whom it is tendered;
and if it be rejected, we have discovered no power in a court
to force it on him."); In re De Puy, 7 F. Cas. 506, 513 (S.D.N.Y.
1869) (pardon ineffective where there was "no delivery of
the pardon ... to the petitioner, or to any one for him, or to
the warden of the prison, who, by act of congress, had the exclusive
control and custody of the petitioner"); Saunders v. United
States, 73 F. 782, 784, 791 (C.C.D. Me. 1896) ("It was essential
that the warrant of pardon, granted by the President, should be
delivered, and should be accepted by the convict. ... It is familiar
law that a pardon is inoperative till delivered and accepted.").
January 24, 2001
- Last week the U.S. Supreme Court heard oral argument in Alexander
v. Sandoval, No. 99-1908. Although the case arises out of a disparate
impact suit challenging Alabama's English-only driver's test pursuant
to regulations promulgated under Title VI of the Civil Rights
Act of 1964, important questions of federalism are at issue.
Congress enacted Title VI pursuant to its Spending Clause powers
to prohibit recipients of federal grants from discriminating on
the basis of race or national origin. Title VI does not explicitly
grant individuals a private cause of action to sue states, however.
Jeff Sutton argued to the Court that, absent explicit direction
from Congress, courts should not confer private rights of action
upon individuals to enforce a federal funding restriction against
the states. In the past the Court has characterized federal funding
legislation as a contract between the states and the federal government.
Consequentially, Sutton and the state of Alabama argue that state
sovereign immunity against suit cannot be waived unless Congress
makes waiver an explicit requirement of the federal funding "contract."
Linda Greenhouse of the New York Times describes the case (see:
and the argument below. In addition, copies of the briefs and
opinion below are available at http://supreme.lp.findlaw.com/supreme_court/briefs/index.html.
January 19, 2001
- On this, the eve of the inauguration -- the first day on which
ties in the United States Senate will be broken by the incoming
Vice President Richard Cheney, rather than by the outgoing Vice
President Albert Gore, Jr. -- the practice group posts member
responses to the questions: To what extent does a Vice President
who is heavily involved in the affairs of the Senate offend separation
of powers? The discussion was sparked by a previously-circulated
January 3 New York Times op-ed authored by Bruce G. Peabody, political
science professor at Fairleigh Dickinson University.
Thanks to all who posted!
Kerry Morgan, Detroit, Michigan:
The Constitution gives the President power to adjourn Congress
in the case of disagreement between the houses with respect to
a date for adjournment (Art. II, sec. 3). This is another example
(in addition to the Vice-president's tie breaking authority in
the Senate only, Art 1, sec 3) of executive participation in the
legislative branch's affairs. I would not classify these as separation
of powers issues, but rather as noninterventionist limited remedial
provisions crafted by the Framers in order to prevent deadlock
in the legislative branch.
The legislative power of impeachment trials vested in the Senate
(Art. 1, sec. 3), rather than the Supreme Court is similar in
nature; it is remedial and limited, designed to correct specific
internal defects or problems that run to the heart of the government's
operation itself. Even the Chief
Justice's role is limited as is the remedy -- removal from office.
It is not a broad power such as granted to the Supreme Court in
Article III. Again, I would classify these not as separation of
powers issues, but rather as structural limited remedies for specific
Jeffrey Clark, Kirkland & Ellis, Washington DC:
The separation of powers is nothing more or less than the Constitution
itself deems it to be. The structure of government created by
the Constitution and the writings of the Framers (and of Montesquieu)
indicate that the powers and duties of the branches must be kept
separate to the greatest possible extent, but it is (or should
be) clear to any reader of the Constitution that there are express
limits on the implicit principle of separation of powers. One
of those obvious limits is the Vice President's tie-breaking power.
... I smell politics at work here, for I heard no objections ...
when Al Gore broke the tie in 1993 to pass President Clinton's
Brad Smith, Ann Arbor, Michigan:
Mr. Peabody's concerns are valid, but there is no better alternative.
It is true that the Executive, through the Vice President, may
effectively decide some important legislative matters (whether
the V.P. actually casts a vote or not). But a means to break ties
in the Senate is essential for such an important legislative body.
To ensure the legitimacy of that deciding vote - and more important,
the perception of legitimacy - it should be cast by an elected
leader with some claim to nationwide acceptance. Prior to the
adoption of the 12th Amendment permitting popular election of
the President and Vice President, the V.P. was the ideal choice
because he remained relatively autonomous from the President.
If a 50-50 tie were to persist for more than a few years, the
Senate might evolve to resemble more of a parliamentary body,
with the President, Vice President, and Senate Majority Leader
devising ways to enforce rigid party loyalty. There is little
likelihood of a tie lasting long, however, and there are many
Senators who will quickly break with their party to support regional
politics, individual principle, or simple self interest. In short,
the executive incursion on legislative power is necessary, limited
in scope, and likely short lived.
John Eastman, Chapman University School of Law:
Our concern should be more with losing Dick Cheney as a key day-to-day
force in the administration with significant inside-the-beltway
experience than with any separation of powers concerns. Remember,
separation of powers is a two-sided coin. On the other side, and
equally important, in my view, is the doctrine of checks and balances.
The Vice-President's role in the Senate is an important, though
rarely exercised, example of checks and balances. We should therefore
not hesitate to embrace such a role for Vice-President Cheney
on separation of powers grounds.
S. B. Benjamin:
If one views the federal Constitution as the philosophical brain
child of John Adams (mainly from the example he gave to all through
the Massachusetts Constitution of 1780, but also from other works
and writings that span the period from 1775-1788), then one must
conclude that the legislative branch was designed essentially
to include the executive. One may see that from his letter to
Elbridge Gerry (if memory serves me right) in November 1779, after
the Massachusetts convention had approved the draught of the constitution
as written virtually single handedly by Adams. In that letter,
he states that the convention had expressed the legislature as
'tripartite' though awkwardly so. He then explained how he had
considered a tripartite legislative branch to be proper, following
on somewhat from the English model. He repeated that argument
in his treatise on government, the first volume of which was circulated
at the Philadelphia convention of 1787. It was Benjamin Rush who
wrote in a letter during the proceedings (Farrand has it in volume
IV, page 33 I think) saying that Adams's concept of a 'compound
federal legislature' was the best advice he could have given the
January 17, 2001
- The battle over federalism continues at the U.S. Supreme
Last week, the Court split 5-4 in Solid Waste Agency v. United
States Army Corps of Engineers, No. 99-1178, construing the Clean
Water Act not to permit federal regulation of all migratory bird
habitat. That decision is discussed in the New York Times article,
The opinions are available at http://supct.law.cornell.edu/supct/html/99-1178.ZS.html.
It may not be long before the next major federalism battle appears
at the Court. In support of their position, the four dissenting
justices in Solid Waste Agency cited the Fourth Circuit's ruling
in Gibbs v. Babbitt. That 2-1 ruling upheld an Endangered Species
Act regulation against claims that the regulation is not a valid
exercise of the Commerce Clause. Taking the more expansive view
of federal power was Chief Judge J. Harvie Wilkinson. Judge J.
Michael Luttig wrote a dissent. The opinions are available at
A petition for certiorari has already been filed. Parties interested
in filing an amici brief in the Gibbs case should contact Mark
Perry at Gibson, Dunn & Crutcher, at email@example.com.
January 8, 2001
- The Chapman University Law Review will host a symposium entitled
The Spending Clause: Enumerated Power or Blank Check, on January
19, 2001, from 8:30 a.m. to 5:00 p.m. at the Chapman University
School of Law in Orange, California. 6 Hours of CLE credit are
available. Details and on-line registration are available at http://www.chapman.edu/law/students/ConLawSymp.html
Federal Election Commissioner Bradley A. Smith will deliver the
keynote address. Other conference participants are: Richard Epstein,
James Parker Hall Distinguished Service Professor, University
of Chicago Law School; Erwin Chemerinsky, Irmas Professor of Public
Interest Law, Legal Ethics, and Political Science, University
of Southern California Law School; Earl Maltz, Distinguished Professor,
Rutgers University School of Law; Lynn Baker, Thomas Watt Gregory
Professor of Law, University of Texas Law School; John C. Eastman,
Associate Professor, Chapman University School of Law; Celestine
McConville, Associate Professor, Chapman University School of
Law; Denis Binder, Professor, Chapman University School of Law
Conference papers and proceedings will be published in a forthcoming
issue of the Chapman University Law Review.
January 4, 2001
- President Clinton's decision to exercise his recess appointments
power to install Virginia litigator Roger Gregory to the U.S.
Court of Appeals for the Fourth Circuit returns to the fore the
constitutional question: Does the recess appointments power apply
to federal judges?
Article III, Section 1 of the U.S. Constitution insulates federal
judges from political influence by granting them life tenure.
Recess commissions provided under Article II, Section 2, however,
expire at the end of the next session of the Senate. Which provision
ultimately controls the appointment of federal judges -- Article
II or Article III?
Scholarship can be found on both sides of the issue. Compare
Paul Ferris Solomon, Answering the Unasked Question: Can Recess
Appointees Constitutionally Exercise the Judicial Power of the
United States?, 54 U. Cin. L. Rev. 631 (1985) (Article III trumps)
and Virginia L. Richards, Temporary Appointments to the Federal
Judiciary: Article II Judges?, 60 N.Y.U. L. Rev. 702 (1985) (Article
III trumps) with Thomas A. Curtis, Recess Appointments to Article
III Courts: The Use of Historical Practice in Constitutional Interpretation,
84 Colum. L. Rev. 1758 (1984) (Article II trumps) and Note, Recess
Appointments to the Supreme CourtConstitutional But Unwise?,
10 Stan. L. Rev. 124 (1957) (Article II trumps).
Two circuits that have addressed this issue have ultimately decided
to permit recess judicial appointments on grounds of historical
practice. See United States v. Allocco, 305 F.2d 704 (2nd Cir.
1962); United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985)
(en banc), rev'g 726 F.2d 1328 (9th Cir. 1984). By one official
count, Gregory is the 310th recess judge in our nation's history,
including 11 recess justices of the Supreme Court, and the last
recess judicial appointee was named by President Carter in 1980.
See Woodley, 726 F.2d at 1335-36. http://www.nytimes.com/2000/12/28/politics/28JUDG.html
- The 107th Congress will feature a Senate divided evenly along
party lines, only the second occurrence of that phenomenon in
U.S. history. The first was in 1881.
Under Article I, Section 3 of the U.S. Constitution, "[t]he
Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided."
Of course, that the Constitution permits an occurrence does not
necessarily mean that it is a good idea. To what extent does a
Vice President who is heavily involved in the affairs of the U.S.
Senate offend separation of powers? Is the Vice President's role
really any more problematic with respect to separation of powers
than, for example, the President's power to veto legislation previously
approved by both Houses of Congress?
One point of view, that of Bruce G. Peabody, political science
professor at Fairleigh Dickinson University, is presented in the
York Times. Some of our members may agree, while others may
disagree, with Professor Peabody's observations. The Federalism
and Separation of Powers practice group would like to spark an
e-mail discussion on this topic. If you have thoughtful comments,
please submit them to <firstname.lastname@example.org>,
and we will publish highlights within the next couple of days.
2006 The Federalist Society