Law

Legislative Stranglehold

Passing the REINS bill would give Republicans the ability to veto any significant new regulations.

With only four Democrats voting for the measure, yesterday the House passed H.R. 10, “Rules from the Executive in Need of Scrutiny” (REINS). If it were to become law, this radical piece of legislation would prohibit all federal agencies, including the Environmental Protection Agency, the Food and Drug Administration, and the Securities and Exchange Commission from minting any new regulations impacting the economy by more than $100 million unless they passed both the U.S. House and Senate within 70 legislative days. The requirement that regulations be agreed to by both the House and Senate would give the staunchly anti-government Republican majority in the House the ability to unilaterally veto significant regulations by simply refusing to pass the legislation within the accorded time frame. Many of the new protections scheduled to go into effect this year and next are the result of laws passed by Congress and signed by President Barack Obama in his first two years in office. These...

Rip It Up and Start Again

Democrats were fed up at the start of the year. They had held 59 seats in the Senate for most of the previous two years, their largest majority since the 1970s. But that near-supermajority wasn't enough to overcome a Republican fillibuster. A 60-vote hurdle became a common deathtrap for every Democratic bill or Obama nomination confirmation, leaving the executive branch understaffed and the federal bench depleted. It looked like Democrats had finally had enough and developed the backbone to fight back when the Senate reconvened in January. There was talk of rewriting Senate rules to end the filibuster. Republicans would have moaned about how Democrats were breaking with all sorts of historical norms, but ending the filibuster falls well within constitutional limits; no previous body can dictate the procedural rules for a future Congress. It never reached that point, though, because Republicans—no longer concerned with progressive legislation originating in Speaker Nancy Pelosi's House...

Do Kagan and Sotomayor Bleed Blue?

For Obama's Supreme Court appointees, a case involving the right to face one's accuser provides an important litmus test on civil liberties.

The Sixth Amendment requires that “the accused … be confronted with the witnesses against him.” While the confrontation clause is a relatively obscure provision of the Bill of Rights—and not as well known as, say, the equal-protection or freedom of assembly clauses—disagreements over what it means have become an important part of the Supreme Court’s civil-liberties docket. Yesterday, the Court heard oral argument in another confrontation clause case, which both demonstrates the importance of this protection and reveals important divides among both conservative and liberal factions on the Supreme Court. The case being considered yesterday, Williams v. Illinois , concerned the question of how the landmark 2007 case Melendez-Diaz v. Massachusetts should be applied. In Melendez-Diaz , the Supreme Court held that the Sixth Amendment requires forensic analysts working for the state to testify if their analysis is introduced at trial and they are called by the defense. Earlier this year, the...

Justice, Deferred

It may be frustrating when federal watchdogs strike toothless deals with Wall Street, but it reflects regulators' alarming lack of resources.

During the early aughts, the financial sector freely gambled with money implicitly or directly guaranteed by taxpayers, selling securities based on worthless subprime mortgages to their customers. We all know how that turned out. Yet those responsible for the worst recession since the Great Depression have for the most part escaped federal prosecution. Given this context, it is easy to understand why United States District Court Judge Jed Rakoff angrily rejected a proposed deal between the Securities and Exchange Commission (SEC) and Citigroup over the company's practice of selling toxic mortgage-backed securities to its customers at the same time it bet against them. His decision to reject the settlement—in which Citigroup would have to pay $285 million but not have to admit any wrongdoing—was praised as a win, at least in spirit, for the Occupy Wall Street crowd, and indeed it may have some positive effects, including letting banks know they can't get off that easy. But it is...

Death, Interrupted

AP Photo/Rick Bowner
Governor John Kitzhaber of Oregon put a moratorium on executions in his state last week, and he didn't mince words about why. At a November 22 press conference, he called the death penalty broken, unfair, and a "perversion of justice" and said he will urge legislators to consider reforms during their 2013 session. His move halts the execution of Gary Haugen, a man convicted of two murders and scheduled to die December 6. “I am convinced we can find a better solution that keeps society safe, supports the victims of crime and their families, and reflects Oregon values,” Kitzhaber said. “I refuse to be a part of this compromised and inequitable system any longer.” The governor is hardly alone. His decision is the latest step in the accelerating movement to abolish capital punishment in the U.S. through state-by-state moratoriums and voter initiatives. As several states across the country take concrete action to ban the death penalty, activists and political leaders are unabashedly...

The Latest Roberts Court Atrocity

The Supreme Court rules to return to prison a grandmother who poses no danger to society.

Emily Bazelon has a terrific piece about a recent Supreme Court order that has received very little attention. The case concerned Shirley Ree Smith, a grandmother given 15 years to life for the death of her granddaughter. The conviction was based on "shaken baby syndrome," although the most current evidence suggests that it's extremely unlikely that Smith caused her granddaughter's death. Taking this evidence into account, the Ninth Circuit Court of Appeals freed Smith in 2006. Last month, as the culmination of a lengthy back-and-forth between the Court and 9CA, the higher court by a 6-3 majority reinstated the jury verdict, requiring Smith to return to prison although she is almost certainly innocent and does not pose any threat to society. Taken in isolation, the Court's order is by no means outrageous. Generally, appellate courts are only permitted to assess legal errors by lower courts, not to second-guess how juries evaluate evidence. It should be noted, however, that the...

Republican Dream Map Dashed

Texas congressional hopefuls will begin filing the paper work for their House campaigns today after an eventful holiday weekend. On Saturday, a federal court in San Antonio court approved a new congressional map that overturned the one drawn up by the state's Republican legislature earlier this year, granting Democrats and the state's burgeoning Hispanic population a significantly better chance of picking up seats next year. Texas Republicans had a golden opportunity after the party increased on its already substantial legislative majority in the 2010 midterm elections. Results from the U.S. Census granted the state four new seats in the US House, and Texas Republicans used their majority to draw a new congressional map that would likely have made three of those seats a sure-win for Republicans. Of course, the 20.6 percent increase in population over the past decade didn't come from a swell in likely GOP voters. Minorities have accounted for 87 percent of the population growth over...

Republicans Deep-Six the NLRB

Doing filibustering Senate Republicans one better, the one Republican member on the (currently) three-member National Labor Relations Board appears to have decided to bring the board to a screeching halt by refusing to vote and thus denying it a quorum. In a letter made public yesterday, Republican Brian Hayes wrote fellow GOP-er John Kline, chairman of the House Education and Workforce Committee, that he might well not participate in the Board’s scheduled November 30 vote on changing the rules for union certification elections. The proposed rule change essentially would shorten the period between the time that workers file for a union-representation election and the election itself from the current time period, which is as long as management can delay a vote (sometimes, for years) to roughly three or four weeks. In his letter, Kline complained that he was not privy to some of the deliberations of the board (that is, of the two Democratic members) and thus might fail to show up for...

Stare Indecisis

The Supreme Court won't likely rule on the Affordable Care Act based on precedent.

Unfortunately, I haven't yet had the chance to read Michael Bailey and Forrest Maltzman's new book , but given that Maltzman's previous is probably the strongest example of a new wave of political science modeling of Supreme Court decision-making, I'm certainly looking forward to it. And I'm in general agreement with the bottom line of their argument at the Prospect : That the Court is less likely to rule that the Affordable Care Act is unconstitutional than the attitudinal model, which predicts Supreme Court outcomes based on general political affiliation, might indicate. I'm a little less optimistic, though, with respect to the argument about precedent and how it might constrain the Court in this case. Without having read the new book (and hence seen their model laid out in detail), I'm obviously just going by what is presented in the piece. But while quantitative analysis of the Court is powerful and very useful, trying to determine the effects of precedent in this case is an...

Busted in 'Bama

Last Wednesday night, a cop in Tuscaloosa, Alabama, pulled over a rental car that didn’t have the right tag on it. He asked the driver for his license, and the driver instead produced his German identification card. Before Alabama’s new immigration law took effect this fall, the driver would have been ticketed, but under the terms of the new law, the cop arrested the driver and hauled him off to the police station for the crime of lacking proper identification. In fairly short order, a colleague of the arrestee showed up with the driver’s passport, visa, and German driver’s license. At that point, the driver was released—but the story had just begun. Turns out the driver was a Mercedes executive in town to visit a Mercedes SUV plant about 20 miles outside Tuscaloosa, which employs roughly 2,800 Alabamians. And his arrest drew the immediate attention of Robert Bentley, the state’s Republican governor, who had signed the immigration bill into law. Bentley called his homeland security...

DNA, Massachusetts, and the Question: Why Exonerate the Innocent?

Why exonerate the innocent? For some of us, the answer is obvious: justice. It's immoral to keep a person behind bars for someone else's crime. But not everyone believes that's enough of a reason. Here's how they think: Is it really worth overwhelming the underfunded criminal justice system (in Massachusetts, the vast majority of assistant district attorneys, the workhorses of the system, make between $40,000 and $80,000 a year, plus death threats) to process DNA requests for the few outliers who think they're innocent? For that side of the fence, here's the motivator: If the wrong person is in jail, there's a rapist or murderer still walking around, endangering the rest of us. Neither of those reasons has been enough for my home state of Massachusetts, putatively so liberal, to require judges to grant prisoners access to DNA evidence. This weekend Michael Blanding and Lindsay Markel of the Schuster Institute for Investigative Journalism , where I am a senior fellow, published a...

Will the Supreme Court Overturn Obamacare?

The Supreme Court has reinserted itself in the heart of domestic politics by agreeing to review the Patient Protection and Affordable Care Act (PPACA). How is the Court likely to rule? Consider two scenarios. The first scenario relies on a prominent theory of judicial decision-making called the attitudinal model . It holds that justices are unconstrained policymakers. To predict and explain Court actions we simply need to figure out the policy implications of the legislation and justices policy preferences. The vote takes care of itself from that point. In our recently published book, The Constrained Court (you should buy it here —think holiday stocking stuffer), we use politicians’ positions on Court cases to “bridge” preference estimates making them comparable across Congress and the Supreme Court (see here for more details). Applying this technique to the PPACA we can estimate probability that each justice would vote to overturn the law if ideology were the only factor. Based on...

One Small Step for Climate Scientists

Researcher gains legal standing to sue for privacy against global-warming skeptics.

In a small victory for global-warming advocates, the case against climate scientist Michael Mann has hit some rough ground. Mann, a climate scientist who has been fighting a battle against the American Traditions Institute (ATI) since January, received his first piece of good news in the case on November 1 when a Virginia judge ruled that Mann did, in fact, have standing to join the case over the release of his e-mails from his time at the University of Virginia (UVA). The judge also decided to reopen the consent decree between UVA and ATI concerning exempted e-mails. Facing a Freedom of Information Act request, UVA maintained that there was material in Mann’s e-mails that should be safe from release under an academic-material exemption. Mann and UVA were concerned that the initial consent order allowed the contested material to be reviewed by ATI’S lawyers, Chris Horner and David Schnare—an arrangement that struck many as inappropriate. As I wrote about in October , Mann’s struggle...

Roe v. World

It's a myth that the Supreme Court got ahead of public opinion when it legalized abortion in 1973.

As the Prospect 's Gabriel Arana correctly noted yesterday, the litigation challenging the constitutionality of Proposition 8—the voter referendum that banned same-sex marriage in California—has become the high-stakes battle it was originally intended to be. The Supreme Court is almost certain to hear the case, which means either the biggest progressive legal victory in many years or a terrible precedent like Bowers v. Hardwick , which upheld a Georgia ban on sodomy in 1986. Ian Millhiser adds a couple of more important points. First, although the bad guys won, the decision to allow Prop. 8 supporters to defend the constitutionality of the bill was correct. Contrary to the claim of some conservatives that it was somehow tyrannical for the Obama administration to refuse to defend the Defense of Marriage Act in the courts, or for California Governor Arnold Schwarzenegger to refuse to defend Prop. 8, there's nothing wrong with an administration signalling it doesn't support a law by...

Fixing the Courts

Rick Perry introduced a disastrous congressional reform plan earlier this week that has been rightfully ripped to shreds . Perry's plan would rewrite the constitution to turn Congress into a part-time body, opening the path to far more corruption, increasing the influence of lobbyists and money. We don't often praise the Texas governor here on Vox Pop, but he should be given credit where it is due, and somehow mixed in Perry's plan, which would be Jack Abramoff's dream government, was the most sensible policy proposal from a Republican candidate this year. Perry suggested a constitutional amendment that would end lifetime appointments for federal judges, including the nine justices on the Supreme Court. Here's how his plan puts it : There are a number of proposals which might be considered—one would be a Constitutional Amendment creating 18-year terms staggered every 2 years, so that each of the nine justices would be replaced in order of seniority every other year. This would be a...

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