The corruption trial of former congressman Rick Renzi began this week in federal court in Arizona. A number of Speech or Debate issues can be expected to arise during the trial. The Bipartisan Legal Advisory Group (affectionately known as BLAG) has already filed this amicus brief addressing the question of whether Renzi would waive the [...]
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The Government’s Trick Question in Noel Canning
The first question presented by the administration’s cert petition in the Noel Canning case turns out to be a trick question: “Whether the President’s recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.” Why [...]
Miranda, Congress and the Boston Marathon Bombing Suspect
A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude [...]
Noel Canning: Does It All Depend On What The Meaning Of “The” Is?
In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the [...]
Recess Appointment News
The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting [...]
Six Answers for Six Puzzles
Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception. That relates to the first puzzle, which involves the Succession Clause’s [...]
The Nuclear Option, the Law of the Senate and the Conscientious Senator
This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below: Legal Scholar Letter to the Senate on Procedures for Changing the Rules Professor Bruhl and Senate Continuity Professor Chemerinsky and Senate Precedent on Changing the [...]
House Democrats Support BLAG’s Standing in DOMA Case
Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states: The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in [...]
Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)
In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar: Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers? Puzzle 2. Does Impeachment Extend to Former “Officers”? Puzzle 3. Who are the “Officers of the United States”? Puzzle 4. Is the President an “Officer of the United [...]
Noel Canning Timing
I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term. Tweet