Q: WHAT WILL HAPPEN IF COURTS RULE INCONSISTENTLY?
A: With different challenges filed in so many courts, there is likely to be confusion going forward, legal experts said.
“You have the opportunity, frankly, for a dizzying array of judicial decisions trying to parse out how it applies to different groups of noncitizens,” Vladeck said.
The Department of Justice is likely to take a case to a court of appeal to try to make sense of the many rulings, said Josh Blackman, a professor at South Texas College of Law in Houston.
Of course, those appellate courts could disagree, which has happened on many major issues including gay marriage and ultimately put the issue before the Supreme Court.
The high court would probably not hear the case until the fall. The orders, which could be extended, are due to expire long before that.
“This order will not be the final word on it,” Blackman said.
Day: February 2, 2017
On Tuesday evening, about 20 minutes after the nomination was made, I appeared on CNBC’s Squawk Box. (The late night broadcast is focused on Asian markets). We talked about the likely confirmation process ahead,and how Gorsuch’s views on administrative law may be appealing to businesses.
The Connection Between Judge Gorsuch, Justice Scalia’s Dissent in Morrison v. Olson, and Chevron Deference
Nearly three decades after he authored it, Justice Scalia’s dissent in Morrison v. Olson has stood the test of time. Indeed, Judge Kavanaugh’s recent decision in the CFPB case cites the dissent far more than Chief Justice Rehnquist’s majority opinion. But few people may know the connection between the author of that dissent, and the person nominated to replace him.
In 1982, the Democrat-controlled House of Representatives issued two subpoenas to the Administrator of the Environmental Protection Agency concerning the enforcement of the “Superfund.” At the time, Ted Olson served as the Assistant Attorney General for the office of Legal Counsel. (A position held by both Rehnquist, who wrote the majority opinion and Scalia who dissented).
Acting on the advice of the Justice Department, the President ordered the Administrator of EPA to invoke executive privilege to withhold certain of the documents on the ground that they contained “enforcement sensitive information.” The Administrator obeyed this order and withheld the documents. In response, the House voted to hold the Administrator in contempt, after which the Administrator and the United States together filed a lawsuit against the House. The conflict abated in March 1983, when the administration agreed to give the House Subcommittees limited access to the documents.
After the fallout of this scandal, the Administrator resigned. But that did not conclude the conflict. House Democrats continued an investigation into the Justice Department’s role concerning the EPA documents. Ted Olson testified before a House Subcommittee on March 10, 1983, the day after the Administrator resigned. Two years later, the majority staff “published a lengthy report,” which “suggested that appellee Olson had given false and misleading testimony.” The Chairman of the Judiciary Committee sent a report to the Attorney General, pursuant to 28 U.S.C. 592(c), and requested the “appointment of an independent counsel to investigate the allegations against Olson.” After an internal review, the Attorney General found cause existed to proceed. He requested that the Special Division appoint an independent counsel–they chose Alexia Morrison.
Olson refuse to comply with Morrison’s investigation–arguing that it was unconstitutional–which gave rise to the famous separation of powers battle, Morrison v. Olson. By a vote of 7-1 (Justice Kennedy had recently joined the Court, but did not participate), the Court upheld the constitutionality of the independent prosecutor statute. Justice Rehnquist’s majority opinion explained that independent counsel was not a principal officer, and thus did not require Senate confirmation. Because Morrison was under (at least) some supervision of the Attorney General, the Court held, there was no affront to the separation of powers.
Justice Scalia’s dissent is legendary.
That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish — so that “a gradual concentration of the several powers in the same department,” Federalist No. 51, p. 321 (J. Madison), can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.
Read the rest of it when you can.
So what’s the connection you ask, between Justice Scalia, and Judge Neil Gorsuch, his appointed successor: the Administrator of the EPA who resigned was Anne Gorsuch Burford. Neil’s mother. Indeed, according to Anne’s biography, her young son understood the idea of the unitary executive, implicitly:
When his mother resigned in March of 1983, an upset young Gorsuch told his mother she “never should have resigned,” his mother wrote in a memoir.
“You didn’t do anything wrong,” Anne Burford quoted her son as telling her. “You only did what the president ordered. Why are you quitting? You raised me not to be a quitter.”
But there is yet another SCOTUS connection at hand. Judge Gorsuch has made waves by stating that he would be willing to reconsider Chevron deference. Of course, Chevron arises from the famous case of Chevron v. NRDC, which was decided on June 25, 1984. That case considered whether the Court would defer to the interpretation of the Environmental Protection Agency.
But what was the case called in the D.C. Circuit? NRDC v. Gorsuch (1982). Yes–Neil’s mom! By the time the case was appealed up to the Supreme Court, Gorsuch had already resigned.
Had Gorsuch still been at the agency, and filed her petition quicker–as Lawrence Hurley pointed out–the case would have been Gorsuch v. NRDC. We would have the Gorsuch deference. Imagine if Justice Gorsuch overruled the Gorsuch doctrine?
If government had filed its petition sooner, my understanding is we would be talking about “Gorsuch deference”
— Lawrence Hurley (@lawrencehurley) February 1, 2017
There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.
— David Noll (@davidlnoll) February 1, 2017
Ready for a final mindblower: Who replaced Anne Gorsuch? William D. Ruckelshaus. Does that name sound familiar? Ruckelshaus was the Deputy Assistant General under President Richard Nixon. Recall that on Saturday, October 20, 1973, Nixon ordered Attorney General Richardson to remove Archibald Cox as Special Prosecutor. Richardson refused, and resigned. Who was next in line? Ruckelshaus. He too resigned. Ultimately the task fell to Solicitor General Bork. Bork indeed fired Cox. But the “Saturday Night Massacre” gave rise to the Independent Prosecutor statute, which gave rise to the investigation of Ted Olson over his role in the Gorsuch debacle, which gave rise to Justice Scalia’s dissent. Everything is connected.Read More
Scope of Federal Powers II
- Schechter Poultry Corp. v. United States (203 – 207)
- The New Deal Court (207 – 209)
- NLRB v. Jones & Laughlin Steel Corp. (209 – 212)
- United States v. Darby (213 – 215)
- Wickard v. Filburn (216 – 220).
- The Warren Court (229 – 230)
- Hearts of Atlanta Motel (230 – 238).
- Katzenbach v. McClung (239 – 242)
The lecture notes are here.
Schechter Poultry Corp. v. United States
In Schechter Poultry, often referred to as the Sick Chicken Case, the Supreme Court unanimously invalidated the National Recovery Act, which was a centrla plank of President Roosevelt’s New Deal program.
NLRB v. Jones & Laughlin Steel
Here are some photographs of the Jones & Laughlin Steel corporation, which was located outside of Pittsburgh, Pennsylvnaia.
United States v. Darby Lumber Co.
The Darby Lumber Company was located in Bulloch County, Georgia. A historical marker commemorates the business.
Wickard v. Filburn
This is farmer Roscoe Filburn.
This is Secretary of the Agriculture Claude Wickard.
This is Wickard, flanked by New Dealers, in front of various charts and projections about the price of agriculture.
Hearts of Atlanta Motel v. United States
The Hearts of Atlanta Motel, located at 255 Courtland Street NE in Atlanta, was owned by Atlanta lawyer Moreton Rolleston Jr. This was a segregate hotel. Rolleston represented himself all the way to the Supreme Court. The location is currently a Hilton.
During the Jim Crow era, “The Negro Motorist Green-Book” provided African Americans with a listing of hotels they could stay while traveling.
These cabins in South Carolina were advertised “For Colored.”
Katzenbach v. McClung
This is Ollie’s Bar-B-Q, the site of Katzenbach v. McClung in Birmingham, Alabama.
Many restaurants only served only white patrons, such as this restaurant in Lancaster, Ohio.
And because I am insane, I purchased an entire case of Ollie’s Bar-B-Q sauce.
And who says trolling eBay for worthless mementos from Supreme Court cases is useless. Recently, for the princely sum of $3.99 plus shipping, I purchased a matchbook from Ollie’s Barbecue–the Birmingham, Alabama establishment of Katzenbach v. McClung fame that refused to serve black customers, insisting that it did not engage in interstate commerce. Though, as the Court found, it purchase most of its meat from a butcher who had procured it from out of state.
In the 12 months preceding the passage of the Act, the restaurant purchased locally approximately $150,000 worth of food, $69,683 or 46% of which was meat that it bought from a local supplier who had procured it from outside the State. The District Court expressly found that a substantial portion of the food served in the restaurant297*297 had moved in interstate commerce.
Now, thanks to the magic of eBay, I submit to the world additional proof that Ollie’s engaged in interstate commerce! Their matchbooks were manufactured by the Universal Match Corporation in Atlanta–across state lines! Read it and weep.
It is impossible to tell exactly when the matchbook was manufactured, but based on the zip code it would have been at least 1963, as that is when zip codes were introduced. The seller on ebay–an expert in matchbooks–told me “I’m guessing late 50’s to early 60’s. The paper from that time was a bit lighter on the back, but not bright white or smooth like later on.” So this is squarely in the time period in which Ollie’s would have run right into Title II of the Civil Rights Act of 1964.
So here we have it. Further proof that Ollie’s did engage in interstate commerce!
The McClung’s were apparently quite religious, as their matchbook struck a Christian spark. (Oh that pun was awesome).
On the front, the Matchbook says:
“If you never know me, you’ll miss nothing, If you never know Jesus Christ, you’ll miss everything.”
The back of the matchbook quotes from 2 Chronicles 7:14 (King James Version):
If my people, which are called by my name, shall humble themselves, and pray, and seek my face, and turn from their wicked ways; then will I hear from heaven, and will forgive their sin, and will heal their land.
The Universal Match Corporation, as evidenced by this 1950-era promotional matchbook was located at 317 Buckhead Ave, N.E., Atlanta, Georgia.
On January 23, I spoke at a conference on Bioethics after the Holocaust, sponsored by the Center for Medicine after the Holocaust. My lecture focused on Bioethics and the Constitution, starting with the 3/5 Clause, moving onto Prigg v. Pennsylvania and Dred Scott, onto Jacobson v. Massachusetts and Buck v. Bell, followed by Roe v. Wade and Washington v. Glucksberg. I’ve included video, audio, and my slide deck.Read More
Class 7 – 2/2/17
Acquisition by Find – Finders Keepers?
- Armory v. Delamirie, 125-126 (shortest case of the semester!)
- Notes, 126-129
- Hannah v. Peel, 129-134
- Notes, 134-135
- McAvoy v. Medina, 135-136
- Notes, 136-144 (Skim)
The lecture notes are here.
When you think of a Chimney Sweep, this image may come to mind.
But this image is probably a lot closer to young Master Armory.
This diagram shows the different ways a sweep can get stuck in a flue.
Frequently the boys would get stuck (the image on the right).
Here are some examples of de Lamerie’s work (courtesy of the Dukeminier property web site).
Here are a number of stories about finding abandoned stuff:
- New York Times article on a jobless man’s find of early Anglo-Saxon treasure in Staffordshire, England, September 2009
- Article on on-going dispute over ownership of Titanic artifacts, Mar. 2009
- NPR story St. Louis’s byzantine process for dealing with lost property, Mar. 2009
- Divers discover thousands of pearls while searching Santa Maria, June 2007
- Odyssey Marine Exploration fights with Spanish government over $500 million in coins recovered from sunken ship, May 2007
- New Yorker article on Odyssey Marine Exploration, April 2008
- Sub Sea Research battles Spain & France over $3 billion of treasure, January 2003
- New York Times article on people who live by finding things in the garbage
- Discovering a ring that was lost 60 years ago
This is a lithograph of Gwernaylod House in Overton-on-Dee, Wales (1829)
Here is a trailer for a fascinating documentary about the legal fight between two men who claim to have caught Barry Bonds’s record-breaking 73 homerun in 2004.
And here is the moment it hits the crowd.Read More