News 2001

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 4, 2001

December 17, 2001

  • Can the President Terminate the ABM Treaty?

    Separation of powers and foreign affairs law expert Michael Ramsey addresses this question, looking at the scope of the President's foreign affairs powers. Click HERE.

  • Debate Over Judicial Confirmations
    There has been much controversy lately concerning the pace of Senate confirmations of Bush Administration judicial nominees, as well as the manner in which nominees ought to be scrutinized by the Senate. Click HERE for a bibliography of materials to shed further light on this subject, as well as a history of the ABA's response on this general subject.

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 testimony at

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 Court’s 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 Court’s majority opinion is consistent with conservative jurisprudence, properly understood, and that the intellectual debate over the Court’s 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

May 30, 2001

  • What is the best way to change Medicaid rules?
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:

To read the decision see:

May 23, 2001

  • AEI Scholar Michael Greve considers in the May Federalist Outlook the meaning of federalism, Justice Brandeis style--what's wrong, what's right, and what's disturbing about his "laboratories of democracy."

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,
  • 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, visit

March 2, 2001

  • Supreme Court Places Important Limits on EPA
The U.S. Supreme Court’s decision in American Trucking, while it did not strike down EPA’s ozone rule under the non-delegation doctrine, did place important limits on EPA’s authority. First, writing for the Court, Justice Scalia bounded EPA’s 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 Court’s earlier pronouncement in Benzene, the Court’s application of this standard makes clear that the use of sound science will be necessary in setting standards. Secondly, the Court’s 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 General’s 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:
  • The Use and Misuse of Executive Orders and Other Presidential Directives

A report by Todd Gaziano of the Heritage Foundation discusses President Bill Clinton’s 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

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.


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:

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 courts.

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

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 . 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 disagree.

I should note in the interest of full disclosure that I served as co-counsel to the state of California in this litigation.
--Mike Ramsey
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


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 Commission.

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 intervention.

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 private entities.

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 it."

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 or declined.

  • 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 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,, 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

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 problems.

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 budget.

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 delegates.


January 17, 2001

  • The battle over federalism continues at the U.S. Supreme Court.

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

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

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

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 Court—Constitutional 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.

  • 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 New 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 <>, and we will publish highlights within the next couple of days.



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