On November 1, 2011, the Supreme Court heard oral arguments in Minneci v. Pollard, a case that will determine whether employees of government contractors can be held liable for damages for alleged constitutional violations under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and its progeny. Minneci should resolve a circuit split between the Ninth Circuit, which held that employees of government contractors can be held liable under Bivens, and the Fourth, Tenth, and Eleventh Circuits, which held that they could not. In resolving this circuit split, the Supreme Court will need to address a number of questions that have divided lower courts for many years, such as whether employees of governmental contractors are considered federal actors; whether recognition of a Bivens claim is precluded if a plaintiff has alternative remedies, even if those remedies are not congressionally crafted; and how the imposition of asymmetrical liability costs on government contractors impacts availability of a Bivens remedy. [Read more!]

The Federalism & Separation of Powers Practice Group hosted this panel on "Meet the New Boss: Continuity in Presidential War Powers" on Thursday, November 10, 2011, during the 2011 National Lawyers Convention. The panel featured Prof. Martin S. Flaherty of the Leitner Center for International Law and Justice at Fordham Law School; Mr. Andrew C. McCarthy of the National Review Institute; Prof. Michael D. Ramsey of the University of San Diego School of Law; Prof. John C. Yoo of the University of California Berkeley School of Law; and Dr. John C. Eastman of the Center for Constitutional Jurisprudence at Chapman University School of Law as the moderator.

One thing often mentioned about the Federalist Society is that it’s for judicial restraint. I’m not sure that’s the official policy of the Federalist Society, but in any event, these terms like “restraint,” “activism,” “minimalism,” “neutrality”—you certainly don’t want judges to have political bias—what do they mean? Quite often, “activist” is synonymous with any decision the speaker doesn’t like, and “restraint” means the judge is being wise and “I agreed with that decision” (coincidentally)...

The topic of the discussion between Professor Jesse Choper and myself is the Commerce Clause and how it relates to the constitutionality of ObamaCare, or, more dispassionately, the Patient Protection and Affordable Care Act. I approach this topic with much ambivalence. As a matter of first principle, I do not have much faith in all the individual mandate arguments that have been raised with great effectiveness and imagination by Professor Randy Barnett of Georgetown University Law Center. Randy is one of the few people who can mesmerize you with his low-key approach. What he says in measured tones may seem at first to be outrageous, only to become more persuasive to audiences as he continues to talk...