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Archive of entries posted on January 2014

What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is [...]

Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts: I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide [...]

Everything You Wanted to Know about the Noel Canning Argument in Two Cartoons

Well, sketches, I guess we call them. But compare the looks on Justice Alito’s face during the Solicitor General’s argument and Noel Francisco’s. Tweet

Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR [...]

The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation. COGR [...]