Legal news. Independent commentary. Federalist Society contributors and independent experts.


Separation of Powers, Essential to Liberty, Is Under Attack by John C. Eastman

House Holds Hearing on the Power of the Purse

Timothy Courtney December 06, 2016

The R Street Institute has details on a recent House Oversight and Government Reform Committee hearing:

The House Oversight and Government Reform, Subcommittee on Government Operations and
Healthcare, Benefits, and Administrative Rules convened a hearing on the power of the purse on December 1, 2016. It is an important topic.

The power of the purse is a fundamental legislative authority. It is an authority that aims to limit executive power, encourage agency accountability to elected officials, and curb corruption.

Read more


Texas flag

Texas State Bar Racial and Gender Quotas Head to Court

Michael Connolly December 06, 2016

In a recent ad, the State Bar of Texas announced that it is accepting applications for an open position on its Board of Directors. As required by Texas law, however, the State Bar is refusing to consider any attorney who is not “female, African-American, Hispanic-American, Native American, or Asian-American.”

On Monday, Greg Gegenheimer, a family-law attorney in Austin, filed a civil-rights suit against the State Bar in the Western District of Texas. Mr. Gegenheimer, a white male, alleges that the State Bar is violating the Equal Protection Clause by excluding him from consideration for the open position based on his race and sex. Mr. Gegenheimer’s lawsuit is being supported by the Project on Fair Representation, the organization that successfully challenged the constitutionality of Section 4(b) of the Voting Rights Act in Shelby County v. Holder.

Mr. Gegenheimer’s complaint is available here.

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Michael Connolly is Counsel at Consovoy McCarthy Park PLLC.


Immigration and the Separation of Powers by Margaret D. Stock

The Trump administration and government contracting

Christopher Bowen December 05, 2016

A frequent complaint is that the Federal government pays more for similar products than do commercial enterprises. The election of Donald Trump could reset the clock for the Federal procurement changes that have arisen in the past 8 years and help bring down prices charged to Federal customers.[1] Most prominently, Mr. Trump could begin by revising or rescinding the executive orders on which myriad new contractor obligations are based. Additionally, Mr. Trump could push for legislation to narrow the False Claims Act, resetting it to its original intent as a vehicle for punishing contractors who submit false claims for payment, rather than as a general-purpose fraud or contract compliance tool. Either of these efforts would decrease the cost to the Federal government relative to what commercial customers pay for similar goods. [Read More]


Article: Supreme Court Season of Turmoil

SCOTUS order updates

Timothy Courtney December 02, 2016

This afternoon the Supreme Court issued an order granting certiorari in seven cases, three of which were consolidated:

(1) Howell v. Howell: Whether the Uniformed Services Former Spouses’ Protection Act pre-empts a state court’s order directing a veteran to indemnify a former spouse for a reduction in the former spouse’s portion of the veteran’s military retirement pay, when that reduction results from the veteran’s post-divorce waiver of retirement pay in order to receive compensation for a service-connected disability.

(2) Impression Products v. Lexmark Int'l: (1) Whether a “conditional sale” that transfers title to the patented item while specifying post-sale restrictions on the article's use or resale avoids application of the patent-exhaustion doctrine and therefore permits the enforcement of such post-sale restrictions through the patent law’s infringement remedy; and (2) whether, in light of this court’s holding in Kirtsaeng v. John Wiley & Sons, Inc. that the common-law doctrine barring restraints on alienation that is the basis of exhaustion doctrine “makes no geographical distinctions,” a sale of a patented article – authorized by the U.S. patentee – that takes place outside the United States exhausts the U.S. patent rights in that article. 

(3-5) The ERISA church-plan exemption cases (consolidated, one hour for oral argument):  Whether the Employee Retirement Income Security Act of 1974's church-plan exemption applies so long as a pension plan is maintained by an otherwise-qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

-Advocate Health Care v. Stapleton

-St. Peter's Healthcare v. Kaplan

-Dignity Health v. Rollins

(6) Water Splash v. Menon: Whether the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters authorizes service of process by mail.

(7) Los Angeles County v. Mendez: (grant limited to questions 1 and 3): (1) Whether the U.S. Court of Appeals for the 9th Circuit's “provocation” rule should be barred as it conflicts with Graham v. Connor regarding the manner in which a claim of excessive force against a police officer should be determined in an action brought under 42 U.S.C. § 1983 for a violation of a plaintiff's Fourth Amendment rights, and has been rejected by other courts of appeals; ... and (3) whether, in an action brought under Section 1983, an incident giving rise to a reasonable use of force is an intervening, superseding event which breaks the chain of causation from a prior, unlawful entry in violation of the Fourth Amendment.


Marijuana Use and Firearm Ownership

Joseph Greenlee November 29, 2016

On November 8th, voters approved recreational marijuana initiatives in California, Massachusetts, Maine, and Nevada, and medicinal marijuana initiatives in Florida, North Dakota, and Arkansas (Montanans voted to roll back already existing medical marijuana restrictions). 28 states and the District of Columbia have now passed laws legalizing the medicinal and/or recreational use of marijuana.   

Meanwhile, Americans set a record in each of the last 18 months for the number of National Instant Criminal Background Check System firearm background checks processed, which is the most accurate indicator of the number of firearm sales (because nearly all sales by federally licensed firearm dealers require a background check, as do many private sales). This year almost certainly will surpass 2015 as the year with the most firearm background checks ever. 

Thus, legal marijuana use and firearm ownership are likely both at all-time highs. However, since federal law (18 U.S.C. § 922(g)(3)) makes it a felony for an “unlawful user of … any controlled substance” to “possess … any firearm,” and since marijuana is classified as a Schedule I controlled substance, it is a felony for a user of marijuana to possess a firearm.   [Read More]


Should Legal Outcomes Reflect the Truth? by William G. Otis

Right to Work laws at the polls and in the courts

Raymond J. LaJeunesse, Jr November 28, 2016

Right to Work laws prohibit requirements that workers pay union dues as a condition of employment. Section 14(b) of the National Labor Relations Act authorizes states to enact such laws. The U.S. Supreme Court has twice upheld the constitutionality of state Right to Work laws. Davenport v. Washington Educ. Ass’n, 551 U.S. 177, 184-85 (2007) (public sector); Lincoln Federal Labor Union No. 19129 v. Northwestern Iron & Metal Co., 335 U.S. 525 (1949) (private sector).  In the last four years four states—Indiana, Michigan, Wisconsin and West Virginia—have enacted new Right to Work laws, bringing to twenty-six the total number of states having such laws. Finding themselves on the losing side of recent legislative battles over Right to Work, unions have turned to the courts, challenging all four new Right to Work laws, plus Idaho’s, as unconstitutional on various grounds not explicitly addressed in the Supreme Court’s decisions. However, the litigation has ended in Indiana and Michigan with the challenged laws upheld, and the challenged laws continue to be enforceable in the other three states in which the litigation is still pending. Brief summaries of the cases are available.

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Raymond J. LaJeunesse, Jr. is Vice President & Legal Director at the National Right to Work Legal Defense Foundation, Inc.



National Lawyers Convention Live Stream

Timothy Courtney November 16, 2016

The Federalist Society Blog is pleased to host live streams of ten National Lawyers Convention panels and addresses this week, starting with Thursday morning's showcase panel. Check back here if you can't make it to the Convention, and share!

Concluded panels:

The Evolution of Justice Scalia's Views on Administrative Law

How Justice Scalia's Writing Style Affected American Jurisprudence

Justice Scalia's Contribution to Antitrust Law

Courts vs. Congress: What is a Patentable Invention?

Barbara K. Olson Memorial Lecture: Senator Ben Sasse

International & National Security Law: Justice Scalia’s Jurisprudence & National Security

Addresses by Gov. Nikki Haley & Sen. Ted Cruz

Rules v. Standards in Constitutional & Statutory Interpretation

Justice Scalia on Federalism and the Separation of Powers

Labor and Employment Law: the Battle for the Gig Economy

Panel discussion on Justice Scalia's constiutional legacy concerning statutory interpretation



Teleforum Preview: Regulatory Crimes: Clay v. U.S. Oral Argument by John J. Park, Jr.

10 Controversial Fixes to the Regulatory State

Daniel Epstein November 15, 2016

Whether legitimacy, democracy, accountability, non-partisanship, or separation of powers motivates the sentiment, there are a number of ways, albeit controversial, to reform the federal regulatory state:

(1) Codify the principle in McGrain v. Daugherty (1927) as it applies to regulatory decision-making, forcing agencies to publish jurisdictional statements in the federal register prior to beginning investigations or enforcement actions. This would have avoided many of the due process issues at the center of the LabMD case. [Read More]


gavel with stacks of money

The Resurgence of Campaign Finance Regulation, Trumped?

Steve Klein November 14, 2016

Last March, during a Federalist Society teleforum discussing the Supreme Court’s 4-4 decision in Friedrichs v. California Teachers Association, as an aside Prof. Richard Epstein summarized the effect a new liberal justice would have on the celebrated (and concurrently derided) Citizens United v. Federal Election Commission decision from 2010: 

[I]n terms of its practical consequences, a case like Citizens United, which was 5-4 . . . I think that’s absolutely toast, and you will start to see comprehensive regulation of various forms of speech activities by corporations and ordinary individuals and so forth . . . .

[Read More]

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