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November 2011

November 7, 2011
Passport Dispute Raises New Separation of Powers Questions
by Nicole Flatow

The U.S. Supreme Court heard oral arguments today in a case that is, on its face, about a boy’s right to have his birthplace listed as the state of Israel on his U.S. passport.

Underneath this dispute, however, is a question about the balance of power between the president and Congress that could have broad foreign relations consequences, explained Georgia State University law professor Neil Kinkopf during ACS’s Supreme Court Preview.
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Executive power, Supreme Court, Separation of powers, Constitutional Interpretation and Change, Separation of Powers and Federalism, M.B.Z. v. Clinton, Neil Kinkopf
November 7, 2011
Abuse of the Filibuster, Harming Ability to Function, Sen. Merkley Writes
by Jeremy Leaming

Wisconsin Sen. Ron Johnson, the state’s newest senator elected on a wave of Tea Party support, earlier this year lamented that during his tenure “virtually nothing” had been accomplished in the Senate.

In that same article and others, however, Sen. Johnson articulated his view that the federal government should be heavily constrained, and limited in its ability to confront national concerns.

But Sen. Jeff Merkley (D-Ore.) says Johnson, a “first-time legislator” and “a political work in progress,” as the Milwaukee Journal Sentinel described him in July, is wrong to suggest that the country’s Founders envisioned a do-nothing Senate.

Merkley writes in a column for The Washington Post:

At no time did our Founders envision that the Senate would require a supermajority to pass legislation. Indeed, the Constitution requires a supermajority only for very limited purposes, including the ratification of treaties and the override of a presidential veto.

Indeed Merkley notes that “many” Founders, including Alexander Hamilton, realized the “destructive” nature of requiring that action happen only by a supermajority vote.

“Alexander Hamilton,” Merkley writes, “observed in the Federalist papers that a supermajority requirement has a ‘tendency to embarrass the operations of government’ and would generate ‘tedious delays; continual negotiation and intrigue; contemptible compromises of the public good.’ This characterization matches how many Americans perceive the Senate today.”

Merkley then maps the changes from a time in the Senate when delaying tactics were rarely used to the present where “the Senate’s deliberative social contract has unraveled.”

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Tags:
Judicial Nominations, Separation of Powers and Federalism, filibuster, Sen. Jeff Merkley, Sen. Ron Johnson, supermajority
November 7, 2011
GPS Surveillance: A Crossroads for the Fourth Amendment
Guest Post
By Daniel J. Solove. Solove is the John Marshall Harlan Research Professor of Law and the George Washington University Law School. He is the author of Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).

The Supreme Court has long held that there is no expectation of privacy in public for the purposes of the Fourth Amendment. Because the Fourth Amendment turns on the existence of a reasonable expectation of privacy, the Court’s logic means that the Fourth Amendment provides no protection to surveillance in public. In United States v. Jones, the Court will confront just how far this logic can extend. FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant. Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment. The D.C. Circuit agreed with Jones. United States v. Jones, 615 F.3d 544 (D.C. Cir. 2010). Other federal circuit courts have reached conflicting conclusions on GPS, and now the Supreme Court will resolve the conflict.

Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology? Or will it follow its tortured logic to the end, and maintain its wooden and antiquated rule of no expectation of privacy in public?

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car. The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because the Supreme Court noted in Knotts that the beeper surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently. In concluding that the Fourth Amendment requires a warrant to engage in extensive GPS surveillance, the D.C. Circuit noted that “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.” As the court reasoned:

It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

The Supreme Court will determine if it agrees with this theory.

The problem with the Court’s existing view of no privacy in public is that people often do expect privacy in public. The Court’s conception of privacy wrongly views privacy as total secrecy and fails to recognize that people often have practical obscurity in public.

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Tags:
Supreme Court, Search and seizure/Fourth amendment, Privacy rights, Constitutional Interpretation and Change, Criminal Justice, GPS surveillance, Guest Post, Professor J. Solove, U.S. v. Jones, U.S. v. Knotts
November 4, 2011
This Week on JudicialNominations.org
President Obama nominated Arizona Supreme Court Justice Andrew D. Hurwitz to the U.S. Court of Appeals for the Ninth Circuit. This follows Obama’s nomination last week of Los Angeles attorney Paul J. Watford to the same court. He also nominated Kristine Gerhard Baker to the U.S. District Court for the Eastern District of Arkansas.

The president withdrew federal magistrate Judge Charles Day’s nomination to the U.S. District Court for the District of Maryland. Following the announcement, a spokeswoman for Sen. Charles Grassley (R-Iowa) told The Blog of Legal Times that several Senate Judiciary Committee members had “insurmountable concerns” about matters raised during Day’s background check. Day was nominated in July 2010, but the Senate Judiciary Committee never scheduled a hearing for him.

The Senate unanimously confirmed three judges this week. On Monday, Loyola University New Orleans law professor Stephen Higginson was confirmed to the U.S. Court of Appeals for the Fifth Circuit, 88-0, in spite of the “tough time” legal academics have had winning confirmation to high-profile jobs, The National Law Journal reports. On Thursday, the Senate confirmed two district court nominees: Scott Skavdahl to the District of Wyoming, 96-0, and Richard Andrews to the District of Delaware by unanimous consent. “I wish that we were able to vote today on the other 20 judicial nominees that have been ready and waiting for final Senate action,” Senate Judiciary Committee Chair Patrick Leahy (D-Vt.) said in a statement.

On Wednesday, the Senate Judiciary Committee held nominations hearings for a circuit court judge and two district court judges. The next day, they unanimously voted out by voice vote one circuit court judge and three district court judges. They also voted out the nomination of Miranda Du for U.S. District Judge for the District of Nevada along party lines. The committee held over the nomination of one judge to a district court.

Sen. Grassley alerted the Senate that he “intend[s] to object to any unanimous consent agreement for the consideration of S. 1014, the Emergency Judicial Relief Act of 2011,” a bill that would create new district judgeships in districts with significant backlog. The bill was voted out by committee with bipartisan support. Only Grassley, Sen. Jeff Sessions (R-Ala.), and Sen. Tom Coburn (R-Okla.) opposed the measure in committee.

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Federal judicial selection, Judicial Nominations, emergency judicial relief act;
November 4, 2011
National Meat Association v. Harris: More Preemption in the Supreme Court
Guest Post

By William Funk, the Robert E. Jones Professor of Law at Lewis & Clark Law School and a Member Scholar of the Center for Progressive Reform. Together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, he has filed an amicus brief supporting respondents’ arguments against preemption. This is a cross-post from CPRBlog.

On November 9 the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption. The Supreme Court, against the advice of the Solicitor General, granted certiorari.

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Tags:
Environmental protection, Supreme Court, Preemption, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Separation of Powers and Federalism, animal rights, Guest Post, National Meat Association v. Harris