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Federalism

Cooperation or Coercion on Climate: Is the EPA Trying to Deputize the States? - Podcast

Federalism & Separation of Powers Practice Group Podcast
Michael S. Greve, Mario Loyola, Bryan W. Shaw August 04, 2014

It has been argued that EPA's recently announced carbon emissions rule is just the latest attempt to draw states into the implementation of its regulations. The Supreme Court has long been permissive of such "cooperative federalism" programs in both the regulatory and spending contexts, insisting in New York v. United States (1992) and Printz v. United States (1997) that such programs constitute mere "encouragement" not rising to the level of coercion or commandeering. But Texas's fight to resist being drawn into implementing EPA's greenhouse gas regulations suggests that federal "encouragement" can be deeply coercive, employing penalties against the state's economy that courts have no doctrine to account for.

  • Prof. Michael S. Greve, George Mason University School of Law
  • Mario Loyola, Senior Fellow, Texas Public Policy Foundation
  • Dr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality

Who Judges Who is a Judge? - Podcast

Administrative Law & Regulation and Federalism & Separation of Powers Practice Groups Podcast
Kristin E. Hickman, Tuan Samahon July 18, 2014

At bottom, in Kuretski v. Commissioner, presidential power is at stake. Judges of the U.S. Tax Court (26 USC 7443(f)), were arguably characterized by the U.S. Supreme Court, in Freytag v. Commissioner, as exercising a portion of the judicial power of the United States. Recently, however, the D.C. Circuit Court of Appeals disagreed when it found that the Tax Court exercises only executive power. What are the implications of the D.C. Circuit Court’s opinion on the president’s removal power? Has the D.C. Circuit misread Freytag, or faithfully applied it?

  • Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law, University of Minnesota Law School
  • Prof. Tuan Samahon, Professor of Law, Villanova University School of Law

National Labor Relations Board v. Noel Canning - Post-Decision SCOTUScast

SCOTUScast 7-1-14 featuring Noel Francisco, Kristen Hickman, and Michael Rappaport
Noel J. Francisco, Kristin E. Hickman, Michael B. Rappaport July 01, 2014

Noel FranciscoKristin HickmanMichael B. RappaportOn June 26, 2014, the Supreme Court issued its decision in National Labor Relations Board v. Noel Canning. This case presented three questions arising from President Obama’s attempt to make three recess appointments to the National Labor Relations Board or NLRB. First, it asked whether the President can exercise the recess appointment power during a temporary recess that occurs while the Senate is still in session, or is instead limited to recesses between enumerated sessions. Second, the case asked whether the President may exercise the recess appointment power to fill any vacancy that exists during a recess--including vacancies that arose before the recess occurred--or whether that power is limited to vacancies that arise during the recess.  Finally, the case asked whether the Senate is in continuous recess if, though effectively out of town, it continues to convene every three days in brief pro forma sessions.

In a 9-0 decision, the Court found President Obama’s attempted recess appointments to the National Labor Relations Board invalid.  In his opinion for the Court, Justice Breyer ruled that the Recess Appointments Clause empowers the President to fill any existing vacancy during any recess, whether it be intra-session or intersession, of sufficient length. He also held that the phrase 'vacancies that may happen during the recess of the Senate,' applies both to vacancies that first arise during a recess and to vacancies that arise before a recess but continue to exist during the recess. Finally, he concluded that because the Senate was in session during its pro forma sessions, the recess during which the President made the appointments was only 3 days, and therefore too short to trigger the President’s recess appointment authority.  The appointments were therefore invalid. Justices Kennedy, Ginsburg, Sotomayor, and Kagan joined the opinion of the Court. Justice Scalia filed an opinion concurring in the judgment, which the Chief Justice and Justices Thomas and Alito joined. The opinion of the D.C. Circuit, which held that the recess appointments fell outside the scope of the Clause, was affirmed.

To discuss the case, we have Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law.

Recess Appointments Case Decided: NLRB v. Noel Canning - Podcast

Federalism & Separation of Powers Practice Group Podcast
Noel J. Francisco, Michael B. Rappaport, Kristin E. Hickman June 27, 2014

Constitution and gavelOn June 26, 2014 the U.S. Supreme Court issued its opinion in NLRB v. Noel Canning. In a unanimous decision authored by Justice Breyer, the Court holds that recess appointments made in pro forma sessions are invalid. Our experts discussed the decision and its implications.

  • Noel J. Francisco, Partner, Jones Day
  • Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School
  • Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law

The Great Debate

Speech by Attorney General Edwin Meese III before the American Bar Association on July 9, 1985
Edwin Meese III June 20, 2014

Attorney General Edwin Meese III

Before the American Bar Association
July 9, 1985, Washington, DC

Welcome to our Federal City. It is, of course, entirely fitting that we lawyers gather here in this home of our government. We Americans, after all, rightly pride ourselves on having produced the greatest political wonder of the world-a government of laws and not of men. Thomas Paine was right: "America has no monarch: Here the law is king."

Perhaps nothing underscores Paine's assessment quite as much as the eager anticipation with which Americans await the conclusion of the term of the Supreme Court. Lawyers and laymen alike regard the Court not so much with awe as with a healthy respect. The law matters here and the business of our highest court-the subject of my remarks today-is crucially important to our political order.