Analysis and Commentary on Government

Did the Supreme Court Err by Rejecting Political Deadlock as a Basis for Recess Appointments?

Cornell University law professor Michael Dorf comments on the U.S. Supreme Court’s recent decision in NLRB v. Noel Canning, in which the Court unanimously invalidated President Obama’s 2012 appointment of three members of the National Labor Relations Board. Dorf discusses the differences between rationales and implications of the five-Justice majority opinion authored by Justice Breyer and those of the four-Justice concurrence authored by Justice Scalia. Dorf argues that the Court’s rejection of political deadlock as a basis for recess appointments could prove to be an important weapon anytime the majority in the Senate is actively hostile to the President.

Follow-Up on California’s Legislative Effort to Repeal Proposition 187

U.C. Davis law professor Vikram David Amar continues his discussion of the California Legislature’s efforts to repeal, by ordinary legislation, provisions of a proposition that have been blocked indefinitely by a federal district court judge. Amar responds to arguments by the State Legislative Counsel that Proposition 187 can be repealed by simple legislation. He contends that the Legislative Counsel overreads the import of a judicial block on enforcement of the proposition and ignores the expressive effects of that law. Amar concludes by proposing that while he agrees that the repeal should go forward, it should follow prescribed procedures and include popular approval.

Grounding the No-Fly List: Part One of a Three-Part Series of Columns

In this first of a three-part series of columns, former counsel to the president John W. Dean discusses government watch lists in the post-9/11 era—specifically No-Fly Lists. He explains the questionable means by which these No-Fly Lists are created and maintained, and he calls attention to the absence of any way for people erroneously listed to seek any legal recourse.

Why the California Legislature Can’t Simply Repeal the Judicially Invalidated Proposition 187

U.C. Davis law professor Vikram David Amar discusses efforts by California lawmakers to repeal provisions of the state code that a federal judge invalidated many years ago. Amar explains why those efforts, though understandable, reflect fundamental understandings of the scope of the legislature’s authority and the essence of judicial review.

The Soda Ban or the Portion Cap Rule? Litigation Over the Size of Sugary Drink Containers as an Exercise in Framing

Guest columnist and Touro Law Center professor Rodger Citron comments on the litigation in New York over a rule prohibiting food-service establishments from serving sugary drinks in sizes larger than sixteen ounces. Citron describes the arguments put forth by each side and explains why the critical issue is whether the Board of Health's has the authority to promulgate such a rule.

Federal Judge Turns Back Hunt for Gays in the Department of Justice

Hofstra law professor Joanna Grossman comments on a federal lawsuit by a conservative group seeking to “expose” the U.S. Department of Justice as having been taken over by gay and lesbian employees. Grossman compares the attempt to 1950s-era McCarthyism and the largely successful effort to purge the federal government of gays and communists at that time. She argues that the district court in this case correctly found that the DOJ was justified in refusing to release sensitive documents pertaining to the sexual orientations of its employees.

Impeachment Insanity Has Consequences

Justia columnist and former counsel to the president John Dean describes a recent trend of hard-right conservatives using the impeachment process as a weapon against government officials with whom they have mere political differences. Dean comments on the “Impeach Obama” movement and explains why it is unfounded and dangerous. He explains how the trend is now also starting to affect state officials, and he cautions that the impeachment movement could have serious consequences and cause significant problems that its advocates seem not to understand.

The Legal Story of the Year, and Next Year Too: Edward Snowden

Justia columnist and former counsel to the president John Dean comments on the ongoing importance of Edward Snowden, whose spectacular leaking of National Security Agency (NSA) secrets continues to have profound implications, in a set of specific ways that Dean describes. Accordingly, Dean argues that Snowden’s should be deemed the key legal story of 2013 and very likely that of 2014, too. Dean also compares what Snowden should do now, with what Daniel Ellsberg did after revealing the Pentagon Papers.

GAO Report Highlights Compelling Reasons for New Federal Privacy Law

Justia columnist and U.Washington law professor Anita Ramasastry comments on the world of big data, in which, as our data gets resold, recombined, and repurposed, we often have little idea what companies have data about us, where a given company may have initially obtained that data, and what that data will be used for in the future. Ramasastry argues that regulation in this area is sorely needed, and discusses the recent GAO report on the issue.

Who Benefits From Filibuster Reform?

Justia columnist and Cornell law professor Michael Dorf explains the politics behind filibuster reform, in the wake of the elimination of the rule requiring a supermajority vote to end debate—and thus to move to a merits vote—on presidential nominations to the lower federal courts and executive offices.

Could the President Bomb Syria Even If Congress Says No?

Justia columnist and Cornell law professor Michael Dorf comments on President Obama’s options in Syria. Dorf notes that Secretary of State John Kerry’s position is that the President can act without Congress. But Dorf calls that position profoundly misguided, citing international law and the U.N. Charter on the use of force. Dorf also points out that Congressional approval cannot substitute for Security Council authorization. Moreover, he comments on prior presidents who faced situations in which there was a lack of Congressional authorization for the use of force.

New Accusations by a Nixon Apologist Based on Recently Discovered Information Regarding the Watergate Cover-Up Trial

Justia columnist and former counsel to the president John Dean comments on Watergate revisionism, and, in particular, Geoff Shepard’s recent piece in The Atlantic claiming that Nixon’s top advisers did not get justice when they were convicted for conspiracy, obstruction of justice, and perjury. Dean strongly differs with Shepard’s account, and explains precisely why. Among other points, Dean rebuts Shepard’s claim that former Watergate Special Prosecutor Leon Jaworski and Judge Sirica held secret ex parte meetings which were unlawful.

The Facts, the Verdict, and the Role of the Department of Justice’s Community Relations Service (CRS) in the Zimmerman Trial: A Model of Opacity

Justia columnist and Cardozo law professor Marci Hamilton comments on the role of the CRS—a little-known division of the Department of Justice—in the trial of George Zimmerman for the killing of Trayvon Martin. Hamilton starts with the facts that we do know and the many that we don't, and the perspective each side presented at trial. In addition, Hamilton questions the unclear role, here, of the Department of Justice’s Community Relations Service (CRS). Hamilton notes the role the CRS usually plays, and the evidence that has—and has not—been made public regarding the role it played here.

Why the Proponents of California’s Same-Sex Marriage Ban Are Unlikely to Succeed in Getting the California Supreme Court to Enforce Proposition 8: Part One in a Two-Part Series on What Should Happen to Same-Sex Marriage in California after Hollingsworth v. Perry

In Part One of a two-part series of columns, Justia columnist and U.C., Davis law professor Vikram David Amar explains why the Prop. 8 proponents are very unlikely to get the California Supreme Court to enforce Prop. 8 in light of the U.S. Supreme Court’s related ruling, although they are trying to do so with various gambits nonetheless. Amar describes the proponents’ strategies and explains why they seem doomed to fail. (Part Two of this series will appear here on Justia on August 2.)

The Promise of May, the Betrayal of June, and the Larger Lesson of Manning and Snowden

Justia guest columnist and Northwestern law professor Joseph Margulies offers an interesting perspective on the controversies raised by the classified information leaked by Bradley Manning and Edward Snowden. Margulies asks what it reveals about ourselves and our life and times that Manning and Snowden, two anonymous functionaries in the vast machinery of the American military complex, have—within three years of each other—committed both the largest and apparently most important unauthorized releases of classified material in American history?

What the Supreme Court Should Have Said in the Proposition 8 Case, and How an Important Tweak Would Have Avoided Unnecessary Damage to the Initiative Device

Justia columnist and U.C., Davis law professor Vikram Amar comments on initiative-sponsor standing and its role in the Supreme Court’s Proposition 8 case. Amar deems the High Court’s invocation of such standing both attractive and hazardous, and explains why that is the case. He also notes that an appealing middle path was ignored here: A state should be free to authorize sponsors to defend initiatives (in a way that federal courts will accept), but the authorization has to be done carefully and in a fashion that the voters can see.

Whom Should Chris Christie Name to Frank Lautenberg’s Senate Seat? Current Law Provides No Perfect Options

Justia columnist and Cornell law professor Michael Dorf explains the complex situation regarding the New Jersey Senate seat that was held by Frank Lautenberg, who just recently passed away. Lautenberg was a devoted Democrat, but now a Republican will name his immediate successor, who will then have the advantage of incumbency in the next election. Dorf explains how and why this somewhat odd-seeming sequence of events occurred, and explains the role that the U.S. Constitution’s Seventeenth Amendment, in conjunction with New Jersey law, played here. Dorf also contends that there are far better ways than this to fill Senate vacancies, and describes one such system.

Dealing With National Security Leaks: Obama’s “Plumbers”: Part One in a Two-Part Series of Columns

Justia columnist and former counsel to the president John Dean comments on how certain presidents—specifically, Nixon, Bush, and Obama—have respectively chosen to deal with national security leaks. Most strikingly, Dean notes that President Obama still fully embraces an only slightly modified Bush/Cheney viewpoint on dealing with leaks of national security information. And that Obama position, Dean points out, is quite notable, since such thinking can be traced directly to Richard Nixon’s infamous “Plumbers.” In the column, Dean also tells the story of the original “Plumbers,” to illuminate the parallel. Dean will continue his series on this topic with Part Two on June 14, here on Justia’s Verdict.

Supreme Court’s Ruling in Arlington v. FCC Highlights Debate Over the Meaning and Future of Chevron Deference Doctrine in Administrative Law

Justia columnist and U.C., Davis law professor Vikram David Amar comments on a very recent Supreme Court administrative law opinion, Arlington v. FCC. First, Amar explains the key doctrine of Chevron deference, which was established in an earlier Court precedent, and was central here. He also comments on the Court’s rejection of an interpretation of the doctrine that would have significantly narrowed it. Finally, Amar also discusses the contrasting views of the concurring and dissenting opinions in the case.

Meet our Columnists

Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan is an economist and legal scholar and a Professor of Law at The George... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Anita Ramasastry
Anita Ramasastry

Anita Ramasastry is the UW Law Foundation Professor of Law at the University of Washington School... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more