#9: Recess Appointments

Blog Post #9

Article II § 2 of the U.S. Constitution anticipates the president’s need to appoint a member of the executive branch while Congress is out of session. It reads:

“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

The use of the power dates back to the early days of the republic. This made a great deal of sense, of course, because legislative sessions were shorter and more infrequent than they are now. In addition, communications and travel were much more difficult. Together, this meant that, in the absence of the recess appointment power, important positions could be left empty for long periods of time.

Of course, this process has, like most things, become more politicized over time. Presdients who were unable to get their nominees confirmed by a hostile Senate would often use the recess appointment as a way to circumvent the Senate’s “advice and consent” role. But the Senate learned to fight back against this. In the waning years of George W. Bush’s final term, Senate Majority Leader Harry Reid regularly held pro forma sessions during any breaks in order to prevent Bush from using his recess appointment power. Something similar happened during the winter break between 2011 and 2012, when the Republican-controlled House of Representatives declined to assent to a recess. Instead, both the House and the Senate held pro forma sessions, this time preventing President Obama from making appointments.

This did not stop Obama from making appointments to the controversial Consumer Financial Protection Bureau and the National Labor Relations Board. On the advice of White House Counsel, the President argued that pro forma sessions were an unconstitutional attempt to block the use of an explicit power given to the executive by the Constitution. The NLRB appointment was challeneged in court, and the Supreme Court heard the case in NLRB v. Noel Canning et al. (2014). For a Plain English summary of the case, read this SCOTUSblog article.

Paper Topic #9: What is the impact of the Court’s recess appointment ruling on the balance of power between Congress and the President when it comes to administrative law? Was the Court just cleaning up the mess that came from years of politicizing the recess appointment power?

Suggested Reading: Corley, Pam. 2006. “Avoiding Advice and Consent: Recess Appointments and Presidential Power.” Presidential Studies Quarterly, 36(4): 670-680.

#8: Faithfully Fire the Unfaithful?

Blog Post #8

Since before the beginning of the Trump presidency, the FBI has been investigation whether and how the Russian government interfered in the 2016 election. For some background, make sure to read this timeline from factcheck.org. Part of the task of this investigation is to determine whether there was collusion between the Russian government and the Trump campaign.

Early on, Attorney General Jeff Sessions recused himself from the investigation. For the purposes of this investigation, then, Deputy Attorney General Rod Rosenstein became the point person. Soon after, Rosenstein appointed Robert Mueller as special counsel to carry out the investigation, which as of this writing is still ongoing.

In late September of 2018, the New York Times reported that Rod Rosenstein had acted in ways that contradicted President Trump’s wishes. In the aftermath of this report, the question of whether President Trump could (or should) fire Rosenstein or force him to resign. If Rosenstein is ousted, the person to take his place is likely to be Solicitor General Noel Francisco. Read this article from Slate that explains Francisco’s take on the executive’s power to remove government officials.

Among the specific powers and duties of the president, the Constitution specifies that:

“… he shall take Care that the Laws be faithfully excecuted.” (Art. I § 3).

The constitutionally-mandated oath of office makes a similar command:

“Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—’I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'” (Art. I, §1).

One of the key powers of the president is contained in the appointments clause. Here, the president is given the power to nominate people for appointment for certain government positions, including positions in the executive branch. This is important, of course, because the leaders of the major bureaucratic entities in the executive branch are the key to the president’s ability to faithfully execute the law.

However, in the context of the “Russia investigation,” these questions take on some important new meaning. Because Rosenstein oversees the special counsel’s investigation, replacing him with a “Trump loyalist” could shut down the investigation completely, or at least hinder its progress substantially. This article from vox.com helps to explain the ways in which the Justice Department and the Muller investigation are linked.

Paper Topic #8: In this current situation, does President Trump have the authority to fire Rosenstein (or force him to resign)? What does the existing case law say, and how might this situation be significantly different from the case facts at play in the prior cases? 

Suggested Reading: Breker-Cooper, Steven. 1992. “The Appointments Clause and the Removal Power: Theory and Seance.” Tennessee Law Review 60:841-904.

#7: Shelby County

Blog Post #7

The Court’s decision in South Carolina v. Katzenbach (1966) lays out the case for why Congress has broad amendment enforcing powers under the 15th Amendment. In this case, the Court relies on arguments dating back to the Marshall Court. Specifically, the Court held that the word “necessary” in the Supremacy Clause should be read rather broadly, so as to encompass legislation rationally in service of reaching a permissible legislative goal.

map of preclearance states
Jurisdictions covered by Section 5 of the Voting Rights Act under the preclearance formula overturned by the Court in Shelby Co (2013)


The Court in Katzenbach also noted that “exceptional conditions can justify legislative measures not otherwise appropriate.” This qualification was probably intended to emphasize the pervasiveness of voting rights restrictions based on race. This qualification was invoked by the Roberts Court in Shelby Co. v. Holder (2013). Read the excerpt of the majority opinion in the content area of WebCampus (in the “Online Readings” folder).

Although the Supreme Court struck down the reauthorization of the original formula, it did leave room for Congress to develop a new, more modern formula. Congress tried to do this, getting support from a surprising figure. But the efforts failed, and the 2016 federal elections were the first in decades to be conducted without these protections. 

Paper Topic #7: In your view, how does the majority opinion treat the amendment enforcing power of Congress? How does the Court go about explaining its holding that the preclearance formula, which was held to be constitution in the 1960s, is no longer constitutionally permissible? What is the status of the amendment enforcing power of Congress in the wake of Shelby Co.?

Recommended Reading: Katz, Ellen D. 2014. “Dismissing Deterrence.” Harvard Law Review, 127(6): 248-52.


#6: Freezers Full of Speech and Debate

Blog Post #6

The Speech or Debate Clause is intended to protect members of Congress from harassment on the basis of the things they say on the floor of the chamber. As the textbook notes, this originated as a way to promote the independence of the English Parliament from the Crown. Read this detailed annotation of the Speech or Debate Clause from the Legal Information Institute. Of course, sometimes members of Congress are up to no good, so it’s important to draw the line between harassing members of Congress for their speech and allowing them to hide evidence of corruption behind the protection of the Speech or Debate Clause.

This is essentially what happened in the case of Rep. William Jefferson. The background of this case as recounted by the Justice Department in its petition for a writ of certiorari in the caseUS v. Rayburn House Office Building (2007).

 In the spring of 2005, the government began investigating whether Representative Jefferson had accepted payments for undertaking official acts as a Congressman to promote business ventures in West Africa. The government also investigated whether, in furtherance of those efforts, the Congressman planned to bribe officials in Nigeria and elsewhere.

The government discovered, among other things, that Representative Jefferson’s family had received an equity stake in a Nigerian company and more than $400,000 in cash in exchange for the Congressman’s promotional efforts. The Congressman also accepted a briefcase containing $100,000 with the understanding that he would forward it to a high-level Nigerian official. During a search of Representative Jefferson’s Washington, D.C., residence, $90,000 was found inside the Congressman’s freezer. Two individuals, including one of Representative Jefferson’s former staff members, have pleaded guilty to bribing and conspiring to bribe the Congressman.

In the summer of 2005, subpoenas were issued to Representative Jefferson and his chief of staff. The government worked for months to obtain the responsive records, but none was ever produced. See App., infra, 29a n.7; C.A. App. 314-315. Having “exhausted all reasonable and timely alternative means of obtaining the evidence sought,” the government applied to the United States District Court for the District of Columbia for a warrant to search Representative Jefferson’s Capitol Hill office. The warrant sought paper documents and computer files relating to the crimes under investigation. It did not seek any “legitimate legislative material that would be considered privileged under the Speech or Debate Clause.” The district court found probable cause to believe that evidence of criminal activ ity would be found in Rayburn House Office Building, Room 2113, and issued the warrant.

On May 20, 2006, the warrant was executed in accordance with special court-approved procedures designed to limit interference with congressional activity. Federal Bureau of Investigation (FBI) agents with no other role in the investigation conducted the search on a Saturday evening, outside of the office’s normal business hours. See ibid. The non-case agents reviewed paper documents in the office for responsiveness to the warrant and were to seize only responsive records. They were forbidden thereafter from disclosing any politically sensitive or non-responsive items inadvertently seen during the search. They ultimately seized two boxes of responsive paper documents. The agents also copied the computer hard drives in the office, without reviewing their contents, so that the computer files, along with the seized paper documents, could later be searched off-site by a filter team. The filter team, which consisted of persons with no other involvement in the investigation, was to review the paper documents and computer files for responsiveness and privilege and provide to the prosecution team only those documents that it found to be responsive and not potentially privileged. Potentially privileged documents would be given to the district court for review.

Following the execution of the warrant and before the filter teams gained access to the materials, Representative Jefferson moved for the return of all of the seized materials pursuant to Federal Rule of Criminal Procedure. In response, the government agreed to provide Representative Jefferson with copies of all of the seized materials so that he could raise speech or debate claims in the district court before any documents were transferred to the prosecution team. The day after Representative Jefferson filed his motion, the President directed that the materials be sealed, placed in the custody of the Solicitor General, and not reviewed by Executive Branch agents. That directive expired on July 9, 2006.

The district court found “no support” for Representative Jefferson’s assertion of a right to remove purportedly privileged materials before the search.  …

Representative Jefferson appealed and sought a stay of the district court’s order. …

While the appeal was pending, Representative Jefferson was charged in a 16-count indictment in the United States District Court for the Eastern District of Virginia. The indictment charges Representative Jefferson with, inter alia, soliciting bribes; depriving citizens of honest services; violating the Foreign Corrupt Practices Act, 18 U.S.C. 371; engaging in a pattern of racketeering activity; obstructing justice; money laundering; and conspiracy.

Following expedited briefing, a divided panel of the court of appeals held that the search of the paper files in Representative Jefferson’s office violated the Speech or Debate Clause and barred the contemplated further role of the filter team in identifying legislative- act materials.

The court then held that the Speech or Debate Clause includes an “absolute” “non-disclosure privilege.”  Acknowledging that no decision of [the Supreme] Court had recognized such a privilege, the court purported to ground its holding in circuit law that ad dressed a subpoena seeking legislative documents. Although this case involved a search warrant in a criminal investiga ion, not a subpoena in a civil action, the court subsumed its non-disclosure rule in the “testimonial privilege un er the Speech or Debate Clause,” despite acknowledg ng the district court’s view that “a seizure of documents did not involve a testimonial element.”

In the end, the Supreme Court denied the Justice Department’s petition for a writ of certiorari. As Ben Winograd for SCOTUSblog explains:

the Justices declined to enter a dispute involving the first ever executive raid of an office of a sitting member of Congress. As part of an ongoing corruption probe, FBI agents had discovered $90,000 in cash in a freezer at the Capitol Hill home of Rep. William Jefferson (D-La.). A year later, after receiving a tip from one of the Congressman’s aides, agents obtained a search warrant for his legislative office as well. To avoid separation of powers concerns, the warrant required a “filter team” of separate agents to screen all materials for legislatively privileged documents. But a D.C. Circuit panel held that under the Constitution’s “Speech and Debate Clause,” Rep. Jefferson should have received an opportunity to review the materials before, not after, their seizure by the Executive. The government’s petition argued the clause was designed to shield members of Congress from liability for legislative acts, not criminal investigations, and as a practical matter would impair corruption probes.  The petition was denied March 31.

The Supreme Court has essentially left the Circuit Courts to deal with the question of whether there are any real limits to the protection offered members of Congress by the Speech or Debate Clause. The 9th Circuit took up the mantle more recently in a case called US v. Renzi.

Paper Topic 6: Are there real limits to the protection offered by the Speech or Debate Clause? What kept the Supreme Court from granting certiorari in the Rayburn Office Building and Renzi cases? Is the Speech or Debate Clause living up to its original purpose?

Suggested Reading: Green, A. J. 2012. “United States v. Renzi: Reigning in the Speech or Debate Clause to Fight Corruption in Congress Post-Rayburn.” Brigham Young University Law Review 2012:493.



#5: Limits on Supreme Court Power

Blog Post #5

So far this semester, we’ve been talking quite a bit about how the Supreme Court makes its decisions. One of the main tenets of the attitudinal model is that Supreme Court justices are essentially unconstrained. This means that they can pretty much decide cases how they want to, and then sort of rationalize that decision in the language of legal reasoning. But the Case or Controversy Clause has been invoked as a real limitation on the Supreme Court’s power. For a summary of the constitutional limitations on judicial power, see the very helpful “Exploring Constitutional Conflicts” page.

As your textbook explains, these limitations have been envoked on a number of occasions by the Supreme Court as an explanation of why it declined to hear a particular case on the merits. This, of couse, seems a lot like a limitation on the Supreme Court’s power. In other words, they are essentially saying that they don’t have the power to decide a case because of the constitutional limitations placed upon them by the Case or Controversy Clause.

A recent example of this is the Court’s decision in Hollingsworth v. Perry (2013). The Court held that the Case or Controversy Clause prohibited the Court from deciding the case because the propoents of the same sex marriage ban did not have standing to sue. Read this New York Times summary of the case called “Between the Lines of the Proposition 8 Opinion.” As you can see, there is disagreement amongst the Justices about whether the CAse or Controversy Clause really exerted a limit on the power of the Court in this situation. In this context, then, it is important for us to consider carefully whether the Case or Controversy Clause puts real limits on the ability of the Court to exercise policy making power.

Paper Topic 5: Does the Case or Controversy Clause put real limits on the Supreme Court’s power? What does this say about the possibility of (and breadth of) an attitudinal model of judicial decision making?

Suggested Reading: Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisisted. Cambridge University Press. ISBN: 0-521-78971-0.

#3: Judicial Review as We Know It

Blog Post #3

The conventional wisdom about Marbury v. Madison is clear. It is perhaps best summarized in this short post called “Marbury v. Madison” on the History Channel website. In that last little section, the author of this blurb is clear about the implications of Marbury v. Madison. But is this accurate? From your close reading of the excerpt in the textbook, think about what kind of constitutional review Marshall is actually engaged in. Everyone from your middle school civics teacher to justices on the Supreme Court cite Marbury as the source of the Court’s power of judicial review. But are they right? In today’s legal landscape, we think of judicial review as a broad exercise of a constitutional veto against laws of Congress or state legislatures, as well as against the actions of the federal or state executive branch officials. We assume that the courts have the ability to strike down all sorts of laws, not just laws dealing directly with the way the Court operates. Using this wide definition, can we really credit Marbury v. Madison for judicial review?

Paper Topic #3: Have we overestimated the importance of Marbury v. Madison in creating the power of judicial review out of whole cloth? Were subsequent exercises of judicial review consistent with Marbury, or were they extensions of a limited power developed in that case?

Suggested Reading: Whittington, Keith E. and Amanda Rinderle. 2012. “Making a Mountain Out of a Molehill? Marbury and the Construction of the Constitutional Canon.” Hastings Constitutional Law Quarterly, 39:823.

#2: SCOTUS Decision Making

Blog Post #2.

The various models of Supreme Court decision making rely on fundamentally different assumptions about the nature of the Supreme Court’s power. Although the Justices almost always use the language of legal methods, many social science experts argue that these methods do not and cannot lead to a single inevitable outcome. As such, we have developed a number of different ways to characterize the way that the Supreme Court justices actually make their decisions. Of course, many American citizens would be unwilling to accept the Supreme Court’s rulings if they believed that Supreme Court Justices were just like any other politician. But the Supreme Court is lucky in that it has the ability to use the uniqueness of its role to promote an image of authority. For an introduction to some of the symbols that help to increase the Court’s perceived legitimacy, complete the activity called “The Look of Authority” at PBS.org.

Paper Topic 2: In the wake of legal realism, does the Supreme Court still have the institutional legitimacy to to make controversial decisions? Does the increased politicization of the appointment process contribute to this? How?

Suggested Reading: Gibson, James L. and Cregory A. Caldeira. 2011. “Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?” Law & Society Review, 45(1):195-219.



#1: Supreme Court Procedure

Blog Post #1

As you may already have noticed, the language of Supreme Court procedure can be a bit confusing. There are a lot of terms introduced in the first reading assignment. To help you straighten them out, you’ll need to read this short Supreme Court Procedure example from the good folks over at SCOTUSblog. It walks you through a hypothetical case to help you understand what the terminology means in context.

The other major highlight of this section of the book is the stunningly heavy workload associated with sifting through the petitions for writs of certiorari. One of the more interesting components of this process is the role of the “cert pool,” which is staffed by law clerks.

Paper Topic 1: Do the Supreme Court clerks wield too much power in the process of selecting cases to be heard on the merits? What could be done about this? 

Suggested Reading: Ward, Artemus and David L. Weiden. 2007. Sorcerers’ Apprentices: 100 Years of Law Clerks at the United States Supreme Court. NYU Press. ISBN: 978-0814794203.


2016 Clark County Judicial Primary Voter Guide

As most of you know, the primary election for Clark County is June 14, 2016. Although it is generally easy to choose from among the candidates for the state legislature, it is often very difficult to make heads or tails of the judicial candidate. Our judicial selection system is a perfect storm of large districts and non-partisan elections, which means that we may see a large number of candidates on the ballot but have little or no information about any of them. To assist you, I have assembled some information that may be helpful as you make you Primary 2016 choices.

The information provided in the link below is up to date as of 5/31/2016, and is accurate to the best of my ability. If you become aware of inaccuracies or updates, please contact me at rebecca.gill@unlv.edu.

The 2016 Clark County Judicial Primary Voter Guide


Those of you who have seen my previous voter guides may notice that I have not included links to the Las Vegas Review-Journal biennial “Judging the Judges” performance evaluation survey results. There are a couple of reasons for this. First, I have demonstrated the problems with these surveys in popular outlets herehere, and here, in reports here and here, and in scholarly articles here and here. My results have been discussed herehere, and here (although the reporter willfully mischaracterized my argument in this article). However, the full reports can still be a source of useful information for voters, provided that voters interpret them with caution. But the biggest reason I have not included this information here is that the “Judging the Judges” survey seems to have disappeared completely from the LVRJ servers in the last couple of months. If anyone can find them, please let me know.