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What's New? Archives -- 2006-2009

Car Allowance Rebate System (CARS) Program Presents Challenges
July 31, 2009. The Car Allowance Rebate System which was created as part of the Consumer Assistance to Recycle and Save Act of 2009, Title XIII of P.L. 111-32, provides for up to a $4,500 credit toward the purchase of a new vehicle for older and less fuel efficient trade-ins. The CARS program is also popularly referred to as the "Cash for Clunkers" program. The program has attracted both dealers and buyers and there is a press to file the necessary forms and process the purchases in time to take advantage of the program.
   The House has voted in H.R. 3435 to expand the program by $2 billion, but the Senate has yet to take up the measure. The bill moves funds from existing appropriations for energy loans, known as the Title 17 Innovative Technology Loan Guarantee Program from the American Recovery Act and Reinvestment Act of 2009, to cover the increase.
   Access the Administration Rule on the Operation of the Program.
   Read the Statute. Go to Title XIII of the legislation.
   Access the Officials Website for the CARS Program.
   Read H.R. 3435.

School Districts and Cities Seek "Race to the Top" and "Fiscal Stabilization" Funds
July 24, 2009. The President and the Secretary of State have announced recovery funds to be made available as state stabilization grants and for what the administration calls the "Race to the Top Program." The receipt of funds is tied to commitments by states and school districts to the administration's evaluation of student progress and teacher pay for performance requirements. For further information and key documents, go to the Local Government page of this website.

U.S. Attorney in New Jersey has Issued Criminal Complaints in Corruption Scandal
July 24, 2009. The Acting U.S. Attorney for the District of New Jersey, Frank J. Marra, Jr., has filed criminal complaints in a corruption scandal that has led to the arrests of a number of area officials. Marra said that: "The mayors of Hoboken, Secaucus and Ridgefield, the Jersey City deputy mayor and council president, two state assemblymen, numerous other public officials and political figures and five rabbis from New York and New Jersey were among 44 individuals charged today in a two-track federal investigation of public corruption and a high-volume, international money laundering conspiracy." Press release, p. 1. The press release indicates the names and hcarges that have been lodged against them. The office has also provided a website with links to the actual criminal complaints in the case.
   Read the U.S. Attorney Press Release.
   Access the criminal complaints.

Report Withheld On Cell Phone Use While Driving Released After FOIA Clash
July 21, 2009. A National Highway Traffic Safety Administration report that was withheld from release in 2003 showed evidence of dangers from cell phone use while driving and called for a large national study has been released following a Freedom of Information Act effort pressed by the Center for Auto Safety. It has been posted to the Internet by the New York Times.
   Read the NHTSA Report.
   Access the Center for Auto Safety Website on the FOIA conflict over the document.

New Health Care Plan Introduced in House and Senate Committee Moves on Bill
July 15, 2009. Representatives Henry Waxman, Charles Rangel, and George Miller have introduced H.R. 3200 America's Affordable Health Choice Act of 2009. The Senate Committee on Health, Education, Labor, and Pensions yesterday passed out of committee the Affordable Health Choices Act which is the Senate legislation that Senators Edward Kennedy, Chris Dodd, and Tom Harkin are moving in that body. For more information and links to the legislation and White House statements, see the Health Care, Disability, and Development page of this website.

Senate Judiciary Committee Confirmation Hearings for Sotomayor in Progress
July 13, 2009. The Senate Judiciary Committee has begun the confirmation hearings for Judge Sonia Sotomayor of the United States Court of the Appeals for the Second Circuit as an Associate Justice of the United States Supreme Court which will begin on July 13. The committee has made the hearings be available live as a webcast and the link for that is located on the hearing site below. The Senate Judiciary Committee has established a website for the hearings. The record available on the Judiciary Committee site includes the questionnaire complete by Judge Sotomayor, speeches, writings, and the records from her prior confirmation proceedings at the district court and court of appeals levels. There is also now available the majority and minority witness list
   The Clinton Library has released a large number of documents on Judge Sotomayor's nomination to the court of appeals and the George Herbert Walker Bush library has also released papers from the district court appointment.
   The Standing Committee on the Federal Judiciary of the American Bar Association has unanimously rated Judge Sonia Sotomayor as "well qualified," the highest of the three ratings that the committee can assign.
   Access the webcast and and other materials for the Senate confirmation hearings.
   Access the witness lists for the hearing.
   Access Judge Sotomayor's Submissions, Opinions, and other Documents.
   Access the papers from the Clinton Library.
   Access the papers from the Bush Library.
   Access the ABA rating statement.

Joint Inspector Generals' Report on Surveillance Program Released
July 10, 2009. The Inspectors General from the Department of Justice, DOD, CIA, NSA and the Office of the Director of National Intelligence have issued an unclassified report on what became known as the President's Surveillance Program (PSP). To access the report, go to the Post9/11 Policy Actions page of this website.

Obama Administration's Food Safety Working Group Announces Proposed Actions
July 8, 2009. The Food Safety Working Group, created by President Obama in March, has issued findings and an indication of forthcoming steps to be taking primarily by the Department of Agriculture and the Department of Health and Human Services to address concerns over the safety of the food supply. For the recommendations and related documents, see the Healthcare, Disabilities, and Development page of this website.

Supreme Court Delivers Ruling in the New Haven Firefighters Case
June 29, 2009. The Supreme Court has delivered its opinion in the Ricci v. DeStefano case, concerning the New Haven, Connecticut firefighters promotion test. The 5-4 ruling was delivered by Justice Kennedy, striking the city's decision not to use the results of the test for promotions. Justice Ginsburg wrote for the four dissenters, warning that the Court had ignored law, history, and the clear facts of the New Haven case. For more information and for the opinions in the case, see the Civil Rights page of this website.

House Passes Energy Legislation
June 27, 2009. By a vote of 219-22, the House of Representatives has passed H.R. 2454, the American Clean Energy and Security Act of 2009. The bill now moves on to the Senate.
   Access the bill as passed in the House.

Supreme Court Issues Major Ruling Limiting Remedial Authority of Federal Courts in Arizona English Language Learners Case
June 26, 2009. A sharply divided Supreme Court has issued an opinion in an Arizona case that originally came from English language instruction in the school district of Nogales, Arizona. However, the focus of the case at this time was actually on the judicially mandated remedies in the case. The Supreme Court, in an opinion by Justice Alito for a five person majority found that the judge had indeed exceeded his authority. Four justices dissented in an opinion written by Justice Breyer. The importance of the case as a precedent for the future is more about the manner in which judges exercise remedial authority in cases than it is just about the particular facts of the Arizona dispute. Both the majority's discussion of the law that must control efforts by lower courts to remedy civil rights violations and the focus on limiting judicial rulings affecting financial aspects of the problem are likely to be broadly applicable to a variety of cases involving state institutions and services. For more information, the opinion, and other key materials, see the Civil Rights page of this website.

Supreme Court Rules in School Strip Search Case
June 25, 2009. The Supreme Court, in an 8-1 opinion, ruled against school officials in a case in which they had engaged in a strip search of a young girl. The opinion in No. 08-479, Stafford Unified School District v. Redding. Writing for the Court, Justice Souter concluded that the type of search involved was both intrusive and degrading and therefore was not justified by the facts. For full information and links to the opinion, see the Civil Rights page of this website.

Supreme Court Avoids Constitutional Question in Challenge to Voting Rights Act
June 23, 2009. The Supreme Court has issued a ruling in a case brought by a Texas special district, but it avoided the important constitutional questional raised by the briefs and oral argument. Indeed, the Court in Northwest Austin Municipal Utility District Number One v. Holder, refused to strike Section 5 of the Voting Rights Act. For the opinion as well as the briefs and oral argument transcript, see the Civil Rights page of this website.

Congress Moves Apologies for Civil Rights Violations
June 19, 2009. Senator Tom Harkin (D. Iowa) led the successful effort in the Senate to pass S. Con. Res. 26, An Apology For Enslavement And Racial Segregation Of African-Americans. The resolution apologizes for slavery and for Jim Crow segregation laws and other actions. It has been sent to the House. As a concurrent resolution, this measure would not need to go to the president.
   There is also an effort led by Senator Brownback (R. Kansas) and Representative Dan Boren (D. Oklahoma) to adopt a resolution "To acknowledge a long history of official depredations and ill-conceived policies by the Federal Government regarding Indian tribes and offer an apology to all Native Peoples on behalf of the United States." The Senate version is S.J. Res. 14 and the House number is H.J. Res. 46. For the language of the resolutions and other materials, see the Civil Rights page of this website.

Obama Administration Announces Financial Regulatory Reform Package
June 18, 2009. President Obama has announced a new initiative on financial market regulation. The administration policy proposal is set forth in a White Paper entitled "Financial Regulatory Reform: A New Foundation."
   The treasury secretary appeared before the Senate Banking Committee to explain the proposal in hearings today. The statements and webcast of these hearings is available on the committee website. (See link below.) House hearings scheduled for this afternoon have been rescheduled.
   Access the White Paper.
   Access the Senate Banking Committee Hearings.

Supreme Court Rules West Virginia Judge Should Have Recused Himself
June 8, 2009. The Supreme Court has issued an opinion in Caperton v. A. T. Massey Coal Co., No. 08-22. Justice Brent Benjamin, a Justice of the West Virginia Supreme Court, who had received very large campaign contributions and indirect assistance in his campaign from the Massey firm had refused to recuse himself from the case, though the case was twice decided by one vote. The company's contributions came after it had lost in the lower court and with the expectation that it would come on for decision before the state supreme court. Justice Kennedy vote for the five member majority which found that campaign contributions alone do not render a judge incapable of sitting in a case, the company in this case "had a significant and disproportionate influence in placing Justice Benjamin on the case." Slip opinion at 14. Under these circumstances, the Court found a due process violation from bias. Chief Justice Roberts wrote for the four dissenters. Justice Scalia also issued a dissenting opinion.
   Read the opinion.

D.C. Circuit Affirms Ruling Against Tobacco Companies
May 23, 2009. A panel of the United States Circuit Court for the D.C. Circuit has issued a ruling in United States v. Philip Morris, No. 06-5267, affirming most of the key elements of district court ruling that found tobacco companies liable under in a civil cases brought by the Justice Department under the Rackeet Influenced and Corrrupt Organizations Act (RICO). The court found overwhelming evidence to support the findings of the lower court that the firms had: "engaged in a scheme to defraud smokers and potential smokers by (1) falsely denying the adverse health effects of smoking. . .; (2) falsely denying that nicotine and smoking are addictive . . .; (3) falsely denying that they manipulated cigarette design and composition so as to assure nicotine delivery levels that create and sustaina addiction . . . ; (4) falsely representing that light and low tar cigarettes deliver less nicotine and tar and therefore present fewer health risks than full flavor cigarettes . . . ; (5) falsely denying that they market to you . . . ; (6) falsely denying that secondhand smoke causes disease . . . ; and (7) suppressing documents, information, and research to prevent the public from learning the truth about these subjects and to avoid or limit liability in litigation. . . ." Slip opinion at 12. After affirming most of the substantive findings on liability, the panel remanded the case to the district court for further proceedings.
   Read the opinion.

President Issues Memorandum on Preemption
May 22, 2009. President Obama has issued a memorandum cautioning federal agencies against inappropriate use of preemption powers. For more information and links, see the Local Government page of this website.

Congress Sends Credit Card Reform Legislation to President
May 20, 2009. The Senate has joined the House in passing H.R. 627, the "Credit Card Accountability Responsibility and Disclosure (CARD) Act of 2009 and has sent the bill on to President Obama for signature.
   Access HR 627.

D.C. Circuit Upholds Observation of Taking of Urine Samples in Some Cases
May 16, 2009. A panel of the U.S. Court of Appeals for the D.C. Circuit has upheld a Department of Transportation rule that requires some transportation workers to be observed when they give urine samples for drug testing. The rule imposed this requirement in cases where the employee has refused to provide a sample previously or where the person had previously not passed a screening. 73 Fed. Reg. 62910, 62918 (2008). Judge Tatel wrote for the unanimous panel, finding that: "[W]e find the Department's considered justification for its policy neither arbitrary nor capricious, and although we recognize the highly intrusive nature of direct observation testing, we conclude that the regulation complies with the Fourth Amendment." BNSF Railway Co. v. DOT, Slip Opinion at 2.
   Read the opinion.

White House Announces Detailed FY2010 Budget Proposal
May 8, 2009. The White House has issued a more detailed set of information with respect to the Fiscal 2010 budget proposal than the overview material that was issued in February. The current and detailed information is provided in "The Fiscal Year 2010 Appendix." That is a very large file, but there is also a page that provides the detailed information by agency. Both links are provided below. This is in addition to the "Budget-in-Brief" documents issued by each of the federal agencies on their own websites. Links to the more detailed Budget in Brief documents for the Department of Health and Human Services, Department of Education, and Environmental Protection Agency are provided below.
   In place of the "Major Savings and Reforms" document issued previously, the Obama White House has issued a document it calls "Terminations, Reductions, and Savings for FY 2010."
   The full budget overview document and the agency by agency fact sheets as produced in February are provided below. The postings below also provide links to the Recovery.gov site that the administration has promised will provide transparency for the recovery act expenditues and to the USASpending.gov site that provides information on awards of grants and contracts. Links to the Federal Procurement Data System and the Domestic Catalog of Federal Domestic Assistance as well as the Grants.gov and FedBizOps sites are provided on the Public Contract Management page of this website.
   The administration continues to post links to the ExpectMore.gov website which provides the Program Assessment Rating Tool results. This is the set of evaluation tools developed during the Bush years. It is not year clear how these will be used by this administration. Entitled ExpectMore.gov, the site provides listings of programs that are "performing," programs that are described as "not performing -- which includes both those rated as "ineffective" and those listed as "results not determined." CAUTION In order to understand the ratings, it is essential not to stop with the summary assessment, but to drill down into the actual rating document for any given program, the links to which are provided on the ExpectMore.gov page.
   Access the Web Page for "The Fiscal Year 2010 Appendix" with detailed budget information by agency issued in May.
   Access the "The Fiscal Year 2010 Appendix" with detailed budget information as a single .pdf document (large file).
   Access Full Budget Documents as issued in February.
   Access The Entire Budget as issued in February in One .pdf File.
   Access Terminations, Reductions, and Savings for FY 2010.
   Access Budget Summary Tables.
   Access Agency by Agency Fact Sheets.
   Access USASpending.gov
   Access Recovery.gov
   Access OMB PART Summary Ratings by Program.
   Access ExpectMore.gov for Detailed PART Assessments.
   Access the U.S. Department of Education, Fiscal Year 2010 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2010 Budget-in-Brief.
   Access the Environmental Protection Agency, Fiscal Year 2010 Budget-in-Brief.

Ninth Circuit Rejects State Secrets Claim by U.S. in CIA Extraordinary Rendition Case
April 29, 2009. The United States Court of Appeals for the Ninth Circuit has rejected an attempt by the government to use the state secrets doctrine to block litigation in the case of Mohamed v. Jeppesen Dataplan Inc.. The plaintiffs all complain that they were placed in the extraordinary rendition program and were tortured while in that program and allege other violations of their rights. Jeppesen is a wholly owned subsidiary of Boeing. For links to the opinion, go to the Post 911 Policy Actions links on this page.

Supreme Court Rejects Challenge to FCC Indecency Policy Change
April 28, 2009. Justice Antonin Scalia has written the opinion for the Court in F.C.C. v. Fox Television, rejecting a challenge to a change by the Federal Communications Commission to its application of the indecency rule. The case arose from the use of expletives by celebrites in awards shows. In so ruling, the Court rejected the demand that the agency meet a higher standard to justify rejecting its former policy and focused on the application of the existing standard for arbitrary and carpricious administration behavior rather than focusing invoking a higher standard either because of the change in policy or the relationship of the agency's actions to First Amendment protected rights. Scalia wrote: "We find bo basis in the Administrative Procedure Act or in our opinions for a requirements that all agency change be subjected to more searching review. The Act mentions no such heightened standard. And our opinion in State Farm neither held nor implied that every agency action representing a policy change must be justified by reasons more substantial than those required to adopt a policy in the first instance." Slip opinion at 10. He added with respect to the First Amendment point: "If they mean to invite us to apply a more stringent arbitary and capricious review to agency actions that implicate constitutional liberties, we reject the invitation. Id. at 12.
   Four members of the Court dissented, with Justice Breyer writing for Justices Stevens, Souter, and Ginsburg. Stevens and Ginsburg also wrote their own separate dissents. Breyer rejected the assertion by Scalia that they were calling for a heightened standard of review and insisted that under the existing State Farm test, the agency action was plainly arbitrary and capricious. "Rather, the law requires application of the same standard of review to different circumstances, namely circumstances characterized by the fact that change is at issue. It requires the agency to focus upon the fact of change where change is relevant, just as it must focus upon any other relevant circumstance. It requires the agency here to docus upon the reasons that led the agency to adopt the initial policy, and to explain why it now comes to a new judgment." Breyer dissent, at
   Read the opinion.
   Read the Oral Argument Transcript.
   Read the Brief for the U.S..
   Read the Fox Television.

Congress and Obama Administration Release Additional Documents on Methods of Interrogation of Detainees
April 22, 2009. A report prepared by the Senate Armed Services Committee in 2008 has been released "Inquiry Into the Treatment Of Detainees In U.S. Custody," was actually prepared November 20, 2008 but was released today. It comes as debates continue in Washington about possible investigations into the preparation of legal memoranda and other documents used to justify methods employed on detainees at Guantanamo and elsewhere.
    The Justice Department has released a series of memoranda prepared by the Office of Legal Counsel in support of the Bush administration's assertions of authority following 9/11. This is the second in a series of documents that have been released. For more information and links to all of these documents, select the Post 9/11 Policy Actions button on the menu and click on the link to that page.

George W. Bush Administration Website and Documents On Line
April 18, 2009. As noted earlier, the Obama administration replaced the Bush administration websites on taking office in January. That website is now available from the National Archives through the George W. Bush library site. This allows researchers to access documents that were posted on the Bush site, but are no longer available through the current White House website.
   The George W. Bush Lbrary website does contain some materials beyond the original White House website. However, the library explains the position on access to presidential records as follows: "When will the George W. Bush records be available for research? The George W. Bush Presidential records are governed by the Presidential Records Act (PRA). Under the provisions of the PRA, George W. Bush Presidential records are not available to public access requests for the first five years after the end of the Administration. George W. Bush Presidential records will become subject to Freedom of Information Act requests on January 20, 2014."
   Access George W. Bush White House website.
   Access George W. Bush "Public Papers of the President" now through 2004.
   Access George W. Bush Presidential Library.

The Supreme Court Once Again Rejects Navajo Suit for Breach of Trust Obligations
April 10, 2009. Writing for the Court in rejecting the Navajo claims against the government for misconduct in the Department of the Interior, Justice Antonin Scalia said: "For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the federal government based on an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. . . . Six years ago, we held that 'the Tribe's claim for compensation . . . fails,' United States v. Navajo Nation, 537 U.S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of APpeals for the Federal Circuit resuscitated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe's claim for compensation failes. This matter should now be regarded as closed." United States v. Navajo Nation, Slip opinion at 1. There were no dissenting opinions, though Justice Souter, added a concurring opinion noting that he had dissented in the earlier case and still thought that position was correct, but considered himself bound by the earlier ruling as precedent. He was joined by Justice Stevens.
   The Court heard oral argument in the case, No. 07-1410, only in February. It stems from Department of the Interior actions governing coal mining contracts on the Navajo reservation. In particular it grew out of ex parte communications between lobbyists for the coal company and the Secretary of the Interior that shaped the Department of Interior actions on the Navajo requests to increase coal rates. The Court previously rejected the suit on one ground, but the lower courts still found liability on other grounds. Four previous Interior secretaries have field an amicus brief supporting the Navajo and roundly condemning the federal government's behavior in the matter.
   Access the Supreme Court opinion in United States v. Navajo Nation (Navajo II).
   Access the Oral Argument Transcript.
   Access the briefs in the U.S. v. Navajo Nation case.
   Access the Amicus Curiae brief of the Four Previous Interior Secretaries in the U.S. v. Navajo Nation case.

Iowa Supreme Court Strikes Marriage Law Restrictions
April 4, 2009. The Iowa Supreme Court has announced its opinion in the case of Varnum v. Brien in which it affirmed a lower court, finding that the state's marriage statute limiting marriage to a man and a woman was a violation of the state constitution's equal protection requirements. For further information and links, go to the Civil Rights page of this website.

District Court Rules Habeas Available to Some Held in Afghanistan
April 4, 2009. Federal District Judge John Bates ruled in favor of three men held in Afghanistan as "illegal combatants" but seized outside the country. As the judge put the issue in Al Maqaleh v. Gates: "The petitioners are all foreign nationals captured outside Afghanistan yet held at the Bagram Theater Internment Facility at Bagram Airfiled in Afghanistan for six years or more. The issue at the heart of these cases is whether these petitioners may, in the wake of Boumediene v. Bush, 128 S.Ct. 2229 (2008), invoke the Suspension Clause of the Constitution, Art I. 9 cl. 2. If so, then section 7(a) of the Military Commissions Act of 2006 (MCA), Pub. L. No. 109-266, 120 Stat. 2600, is unconstitutional as applied to these petitioners and they are entitled to seek the protection of the writ of habeas corpus." , Slip opinon at 1-2. He found that: "the Suspension Clause extends to, and hence habeas corpus is available to three of the four petitioners." Id., at 4.
   Read the memorandum opinion.

Supreme Court Allows Cost/Benefit by EPA on Clean Water Issues
April 2, 2009. The Supreme Court has issued an opinion, written by Justice Scalia, in Entergy v. Riverkeeper. The case involved a challenge to Environmental Protection Agency regulations concerning impact on organisms from cooling intake structures on power plants. The Clean Water Act calls for the use of the best available technology to mitigate the impact of these structures, but the EPA used a cost/benefit calculation to determine what was the best available technology. The dissenters, led by Justice Stevens, argued that prior Supreme Court precedents and the language of and purpose of the statute argue against an agency's substitution of a standard for that provided in the statute. In addition, they contended that the EPA's decision to use a cost-benefit analysis that included only 1.8% of the affected species guaranteed that a cost-benefit standard in practice was dramatically contrary to the intent and language of the Clean Water Act.
   Read the opinion.

Supreme Court Rejects Standing in Case Challenging Timber
March 30, 2009. Justice Scalia wrote for the Court denying standing in Summers v. Earth Island Institute. Institute and others in the case had sought "to prevent the United State Forest Service from enforcing regulations that exempt small fire-rehabilitation and timber-salvage projects from the notice, comment, and appeal process used by the Forest Service for more significant land management decisions." Slip opinion at 1. Four of the justices dissented, with Justice Breyer writing the opinion for that group.
   Read the opinion.

Treasury Secretary Outlines Framework for Regulatory Reform
March 26, 2009. Treasury Secretary Geithner outlined what he terms the Framework for Regulatory Reform in testimony yesterday before the House Financial Services Committee The secretary's testimony as well as explanatory documents are provided below. The committee website on the hearing provides the archived webcast for the session.
   Read the Treasury Department description of proposed new regulatory programs.
   Access the Secretary's testimony.
   Access the House Financial Services Committee page on the hearing.
   Access the initial proposal for a "Resolution Authority for Systemically Significant Financial Companies Act of 2009.

House Joins Senate in Passing Public Lands Bill
March 25, 2009. The House of Representatives has joined the Senate and approved H.R. 146, commonly known as the lands bill. For more information and links, see the Oregon page of this website.

Federal District Court Overturns FDA Limit on Plan B Access
March 24, 2009. Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York issued a ruling in Tummino v. Torti, No. 05-CV-366, a case brought to challenge the denial by the Food & Drug Administration of a petition by a number of groups and individuals to make the "Plan B" medications available to women of all ages for nonprescription over-the-counter sales. The FDA had denied the petition and said the drug could be available to women 18 and older. The challengers argued that the decision was arbitrary and capricious and the judge agreed. In fact, the judge wrote, the FDA actions were characterized by "political considerations, delays, and implausible justifications for decision-making." Slip opinion at 3. The judge went on to find that the decision was largely controlled by political intervention rather than expert decision-making. He vacated and remanded the FDA decision for further action, but ruled that the drug is to be available to women 17 years of age and older, the position taken by expert staffed at FDA.
   Read the opinion.

EPA Proposes Endangerment Finding on Greenhouse Gas Emissions Under Clean Air Act
March 23, 2009. The U.S. Environmental Protection Agency has submitted a proposed endangerment finding for greenhouse gas emissions associated with global warming to the Office of Management and Budget for regulatory review. For more information and links, see the Sustainable Development page of this website.

Treasury Department Announces Massive New Economic Policy
March 23, 2009. The Department of the Treasury has announced what it calls the "Public Private Investment Program" intended to have the government purchase some toxic assets and to encourage and support private investors to purchase such assets.
   Read Treasury Department Fact Sheet.
   Read the White Paper.
   Read "Legacy Securities Summary of Terms."
   Read "Legacy Securities FAQ.".
   Read "Application for Private Assets Managers."
   Read the "Legacy Loans Summary of Terms."
   Read the "Legacy Loans FAQs."

Attorney General Issues New Freedom of Information Act Guidance
March 22, 2009. The Attorney General has issued a memorandum to agencies intended to dispose of the Bush administration's policy on the handling of FOIA requests originally issued by Attorney General Ashcroft and to replace it with a new policy that the Department of Justice indicates will provide a presumption of disclosure. The AG quoted President Obama's memorandum on the subject: "In the face of doubt, openness prevails."
   Read the Attorney General's Memorandum to Agencies.
   Read the DOJ press release explaining policy change.
   Read the Presidential Memorandum.

President Issues Memorandum on Recovery Act Funding Selection
March 21, 2009. President Obama has issued a presidential memorandum that orders merit-based evaluation of proposals submitted under the Recovery Act and seeks to block lobbying efforts.
   Read the presidential memorandum.

Following Madoff Charges, the SEC and U.S. Attorney file Charges Against Accountant
March 11, 2009. In addition to the charges that have been filed by the U.S. Attorney for the Southern District of New York, additional charges have now been lodged by the Securities and Exchange Commission and the U.S. Attorney's office against a Madoff accountant. The U.S. Attorney filed criminal information in lieu of a grand jury indictment against Bernard Madoff. The 11 count information charges Madoff with securities fraud, investment adviser fraud, mail fraud, wire fraud, international and domestic money laundering, giving false statements and filing false reports with the Securities and Exchange Commission, perjury, and theft from an employee benefit plan.
   The SEC has issued a complaint against David G. Friehling and Friehling & Horowitz, CPA's, P.C., alleging that Friehling "enabled Madoff's misconduct by falsely representing to investors that BMIS was financially sound and that Friehling and F&H were independent auditors that had conducted audits of BMIS each year." In fact, the Commission alleged, the firm and its principal "knowlingly or with reckless disregard falsely" stated a variety of information to the Commission and investors. SEC v. Friehling, Complaint, p. 2. The U.S. Attorney for the Southern District of New York announced the arrest of Mr. Friehling on sealed charges just opened by the U.S. District Court.
   Access the Prosecutor's Criminal Information in the Madoff Case.
   Access the SEC Complaint.
   Read the U.S. Attorney Announcement of Arrest of and Charges Against Friehling.

Investigations Underway of AIG Bonus Payments
March 18, 2009. The New York Attorney General has obtained copies of the contracts that AIG claimed required the firm to pay bonuses in excess of $160 million dollars to employees of the firm in the unit that was key to AIG's financial downfall. He published his letter to House Financial Services Committee Chair Barney Frank in the run-up to the committee's hearings on the matter. The Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises of the Financial Services Committee will held hearings on March 18 entitled "American International Group's Impact on the Global Economy: Before, During, and After Federal Intervention." The webcast of the hearing was archived on the committee's hearing page noted below. A link, via arborlaw.biz, to the AIG Financial Products Cor. 2008 Employee Retention Plan that is the subject of the criticism is provided below.
   Access the letter to Representative Frank.
   Access the House Committee Hearing information and testimony.
   Read the AIG FInancial Products Corp. 2008 Employee Retention Plan.

Congress Passes FY09 Omnibus Spending Package
March 11, 2009. The Senate passed on a voice vote H.R. 1105, the Omnibus Appropriations Act, 2009. This bill seeks to wrap up the budget for the current fiscal year. It is another very large omnibus bill. President Obama is expected to sign the bill shortly.
   Access H.R. 1105.

President Obama has Issued a Presidential Memorandum on Signing Statements
March 9, 2009. President Obama has issued a memorandum to executive branch departments and agencies in which he directs agencies to check with the Department of Justice before acting on a previously issued signing statement, but also claims his own authority to issue signing statements and provides a set of principles that will guide his administration's use of the devices..
    Read the Presidential Memorandum on Signing Statements.

President Issues Stem Cell Executive Order and Science Protection Memorandum
March 9, 2009. President Obama has issued an executive order reversing President Bush's prohibition on the use of fetal stem cells in stem cell research. At the same time, he issued a presidential memorandum intended to protection scientific analyses used in government agency policymaking.
    Read the Executive Order.
    Read the Presidential Memorandum.

President Starts Process Aimed at Rescinding Bush Endangered Species Act Process Changes
March 7, 2009. President Obama issued a memorandum executive branch agencies, calling on the Secretaries of Interior and Commerce to undertake a rulemaking process to determine whether to rescind the rule issued by those two agencies as the Bush administration left office, entitled "Interagency Cooperation Under the Endangered Species Act which relaxed requirements for consultations with the Fish & Wildlife Services and the National Marine Fisheries Service before taking actions that might pose risks under the Endangered Species Act. That rule was issued on December 16, 2008 at 73 Fed. Reg. 76272 (2008).
    Read President's Memorandum.
    Read the December 2008 rule on consultation.

Supreme Court Drops Al Marri Case, but Vacates Lower Court Ruling
March 7, 2009. The Supreme Court issued a one paragraph order approving the government's motion to move the Al Marri v. Spagone case, No. 08-368, to the civilian court system which the Court found makes the detention issue that was pending before the Court moot. However, the Court went beyond that step to vacate the lower court ruling, an opinion that had created a precedent supporting detention authority.
   In an en banc ruling, the Fourth Circuit found that (1) . . . if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) . . . assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforeded sufficient process to challenge his designation as an enemy combatant." Al-Marri v. Pucciarelli, 534 F.3d 213, 216 (4th Cir. 2008).
   President Obama had issued a memorandum to the Secretary of Defense, transferring authority over Al-Marri from military detention to the control of the Attorney General for prosecution in civilian courts.
   Read the Supreme Court order in Al-Marri.
   Read the Fourth Circuit en banc ruling in Al Marri v. Pucciarelli.
   Access the President's memorandum transferring Al-Marri to civilian custody for prosecution.

Supreme Court Rejects Drug Company Preemption Challenge Against State Failure-toWarn Suits
March 5, 2009. The Supreme Court in the case of Wyeth v. Levine has rejected a challenge by drug company Wyeth to suits in state court brought under state "failure-to-warn" statutes. The company had claimed that such state laws were preempted by the Food Drug & Cosmetic Act as amended and by Food and Drug Administration (FDA) rules.
   Read the Wyeth v. Levine opinion.
   Read the amicus curiae brief of former FDA Commissioners .
   Read the other briefs in the case.

Justice Department Releases Bush Era Memoranda on Administration Claims to Authority after September 11, 2001
March 3, 2009. The Justice Department has released a series of memoranda prepared by the Office of Legal Counsel in support of the Bush administration's assertions of authority following 9/11. The most recent memoranda specifically reject earlier pronouncements. To find the titles and links to these memoranda, click on the Post 9/11 Policy Action tab on this webpage.

Obama Administration Proposes to Rescind Bush Rule on Refusal to Provide Health Care Services on Conscience
February 27, 2009. The Office of Management and Budget is currently reviewing a proposal by the Department of Health and Human Services to rescind the regulation issued by the department on December 19, 2008. The title of the proposal is "Rescission of the Regulation Issued by the Department of Health and Human Services on December 19, 2008, Implementing the Church Amendments (42 U.S.C. 300a-7), Section 245 of the Public Health Service," and its RIN (Regulatory Information Number) is 0991-AB49. The proposal was submitted on February 26, 2009.
   The rule targeted for recission was entitled "Ensuring That Department of Health Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law," 73 Fed.Reg. 78072, known popularly as the conscience rule under which health providers can refuse to provide services to which they are morally opposed. The rule explained that it was intended to "prohibit recipients of certain federal funds from coercing individuals in the health care field into participating in actions they find religiously or morally objectionable." Id. This was a very controversial rule opposed by family planning and women's rights groups and supported by some faith-based groups and anti-abortion organizations. Litigation was filed to challenge the rule by a number of organizations.
   Access the RegInfor.gov information on the OMB review of the proposed recission.
   Access the Rule Targeted for Recision.

Obama Administration Issues PPD-1 on NSC Organization
February 27, 2009. Following practice of previous administrations, the Obama administration has issued its first national security directive, termed by this administration presidential policy directives (PPD), which sets forth the basic organization and operation of the National Security Council (NSC). Most administrations issue such directives to make clear to allies and warn potential adversaries that the new government has its national security apparatus organized and operating effectively.
   Access PPS-1 via the FAS website.

Supreme Court Blocks Effort to Designate Native American Trust Land
February 25, 2009. The Supreme Court has issued a ruling in Carcieri v. Salazar, No. 07-526, which rejected a decision by the previous Secretary of Interior to designate trust lands for the Narragansett Tribe in Rhode Island under the Indian Reorganization Act of 1934. In an opinion by Justice Thomas, the Court held that the secretary's authority extends only to tribes under the jurisdiction of the department at the time the statute was enacted and not those recognized later, like the Narragansett. Justice Breyer and Ginsburg concurred in part and dissented in part. Justice Stevens dissented.
   Access the opinion.

Supreme Court Rejects Demand to Allow Monument to be Placed in City Park
February 25, 2009. The long awaited ruling in a local government free speech case was delivered today in an opinion by Justice Alito. As Alito explained the matter: "This case presents the question whether the Free Speech Clause of the First Amendment entitles a private group to insist that a municipality permit it to place a permanent monument in a city park in which other donated monuments were previously erected. The Court of Appeals held that the municipality was required to accept the monument because a public park is a traditional public forum. We conclude, however, that although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applied. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause." Pleasant Grove City v. Summum, No. 07-665, Slip opinion at 1. There were four concurring opinions, but no dissent.
   Access the opinion.

OMB Issues Implementation Guidance for the Stimulus Package
February 23, 2009. The Office of Management and Budget has issued a memorandum to executive agencies and departments entitled "Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009.
   The House and Senate passed the American Recovery and Reinvestment Act of 2009 and it has been signed by the president as P.L. 111-5. The final bill is a modified version of the Collins-Nelson Amendment (570) which was an amendment in the nature of a substitute which completely replaced the legislation that previously passed theU.S. House of Representatives. The GPO has not yet published P.L. 111-5 in public law format, but the law is available in the bill number format as adopted by both houses and signed by the president.
   Access the OMB Initital Implementation Guidance.
   Access the bill as passed by the house and Senate.

President Issues New Executive Orders
February 12, 2009. President Obama has issued Executive Order 13499, modifying the membership of the National Economic Council, a body now operating under Executive Order12835 originally issued by President Clinton in January 1993. He also issued Executive Order 13500 which modifies the membership in the Domestic Policy Council. He also issued Executive Order 13501 creating the Economic Recovery Advisory Board.
   Access EO 13499.
   Access EO 13500.
   Access EO 13501.

Three Judge Federal District Court Orders Dramatic Action to Reduce California Prison Overcrowding
February 10, 2009. A three judge federal district court sitting in the consolidated California prison conditions cases, Coleman v. Schwarzenneger and Plata v. Schwarzenneger, has issued a tentative ruling in the case which found that "crowding is the primary cause of the underlying constitutional violations" which have been primarily concerned with a lack of adequate health care and mental health care for inmates. Slip Opinion, at p. 2. These two cases have been before the court since 1995 and 2002 respectively. "Second, the evidence is compelling that there is no relief other than a prisoner release order that will remedy the unconstitutional prison conditions." Id, at 4. The court made clear that it expects to issue a prisoner release order, but it invited the parties to enter into settlement negotiations and offers to appoint two settlement referees who have been working in the cases before the present action.
   The California Attorney General, Jerry Brown, has denounced the ruling as an "intrusion by the federal judiciary into California's prison system" and "a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals" and has promised to appeal the case to the U.S. Supreme Court as soon as a final order is issued.
   Access the tentative order.
   Access the California Attorney General's statement.

President Issues Another Labor Relations Order and Strikes Another Bush Order
February 7, 2009. President Obama has issued another executive order dealing with labor relations and, in the process, revoked another Bush order. The order, entitled Use of Project Labor Agreements for Federal Construction Projects, permits executive branch agencies to mandate the use of such agreements for all contractors on a particular major construction project. Section 8 of the order also provides that: "Executive Order 13202 of February 17, 2001, and Executive Order 13208 of April 6, 2001, are revoked. The heads of executive agencies shall, to the extent permitted by law, revoke expeditiously any orders, rules, or regulations implementing Executive Orders 13202 and 13208."
    Read the order.

President Calls for Expedited Issuance of Energy Efficiency Standards
February 6, 2009. President Obama has issued a memorandum to the Secretary of Energy with respect to Appliance Efficiency Standards. For more information and a link to the memorandum, go to the Sustainable Development page of this website.

President Obama Issues Faith-Based Policy in Executive Order
February 6, 2009. President Obama has issued an executive order entitled "Amendments to Executive Order 13199 and Establishment of the President's Advisory Council for Faith-Based and Neighborhood Partnerships." For more information and link the order, go to the Public Contract Management page of this website.

President and Treasury Secretary Announce Restrictions on Executive Compensation
February 4, 2009. The Obama administration administration has moved to place restrictions on executive compensation for firms receiving assistance from the federal government.
    Read the Treasury Department Announcement and Explanation.
    Read the President's Announcement of the new policy.

President Obama Issues a String of Directives in Important Areas
February 4, 2009. President Obama has issued a number of executive orders over the past several days. On January 30, he issued an order entitled "Notification of Employee Rights Under Federal Labor Laws" and another entitled "Economy in Government Contracting." The first order overturns the Bush EO 13201 and the second prevents firms from counting expenses of involvement in union representation elections as expenses under federal contracts. A third order issued on that same date, entitled "Nondisplacement of Qualified Workers Under Service Contracts," calls on contractors to provide opportunities for displaced workers in service contracts.
   Also on January 30, the president issued a memorandum, creating the Task Force on the Middle-Class family to be headed by Vice President Biden.
   The president has also issued an executive order revoking orders on rulemaking review issued by George W. Bush and a memorandum to executive branch agencies calling for a reexamination of the process of regulatory review with each agency to provide information and recommendations for a new regulatory review order within 100 days. The memorandum uses the E.O. 12866 issued by President Clinton as the starting point for that discussion.
   Finally, the president issued a finding with respect to the need to extend assistance in connection with the "Unexpected Urgent Refugee and Migration Needs Related to Gaza."
   Access "Notificiation of Employee Rights Under Federal Labor Laws" order.
   Access "Economy in Government Contracting" order
   Access "Nondisplacement of Qualified Workers Under Service Contracts" order.
   Access the memorandum on White House Task Force on Middle-Class Working Families.
   Access Revocation of Executive Orders Concerning Regulatory Review.
   Access Regulatory Review Memorandum to Reassess EO12866.
   Access Finding with regard to Refugee and Migration Issues Relating to Gaza .

President Issues Memoranda on Fuel Efficiency and California Emissions Standards
January 27, 2009. President Obama has issued memoranda to the Secretary of Transportation and National Highway Traffic Safety Administration and to the Administrator of the Environmental Protection Agency. The transportation memorandum calls for to institute rulemaking proceedings to address more stringent fuel economy standards under the Energy Independence and Security Act of 2007. The EPA memorandum calls upon the agency to reexamine the waiver request for more stringent standards under the Clean Air Act that the Bush administration had not approved.
   Access the memorandum on fuel economy.
   Access the memorandum on California's request for Clean Air Act waiver.

Obama Administration Rejects Mexico City Policy on Family Planning Assistance Funds
January 24, 2009. President Obama has issued a memorandum repealing the Reagan era Mexico City policy. The policy was originally announced by President Reagan in 1984, repealed by President Clinton, and reinstated and expanded by President George W. Bush. It blocked U.S. assistance to international organizations that provided abortion information, assistance, or services.
   Access the White House home page.
   Access the Obama statement to accompany policy change.

OMB Issues Directions on Review of Pending Regulations
January 23, 2009. The Director of the Office of Management and Budget, Peter Orszag, has issued a memorandum explaining to administrative agencies how they are to implement the memorandum issued earlier in the week by White House Chief of Staff Rahm Emanuel concerning the moratorium on and review of pending administrative rules prepared by the Bush administration.
   Access the OMB Memorandum.
   Access the Chief of Staff's memorandum on regulatory review.

President Obama Issues Initial Directives
January 23, 2009. The Obama administration has issued a series of directives of various kinds. The White House webpage has been attempting to catch up on positings and some items are not available on the White House site, so some of the items are links to the documents through other sources.
   Read the executive order on lawful interrogation.
   Read executive order on review and disposition of individuals at Guantanamo Bay.
   Read executive order on detention policy.
   Read the memorandum on the detention of Ali Saleh Kahlah al-Marri.
   Read executive order on ethics.
   Read meorandum on transparency.
   Read the executive order on presidential records.
   Read the memorandum to agencies on Freedom of Information Act.
   Read the memorandum on White House staff pay freeze.
   Read memorandum from White House Chief of Staff to executive departments freezing rulemaking.
   Read the presidential proclamation on the National Day of Renewal and Reconciliation.

U.S. Supreme Court Rejects Title IX as Sole Option for Sexual Harassment Claims in Schools
January 21, 2009. The Supreme Court has handed down an unanimous ruling rejecting a finding by lower courts that Title IX of The Education Amendments of 1972 is the only route available for sexual harassment claims in schools as compared to 42 U.S.C. §1983 or the Equal Protection Clause of the Fourteenth Amendment. For more information and a link to the case, go to the Civil Rights page of this website.

Justice Department Inspector General Reports Highlighted in Holder Confirmation Hearings
January 16, 2009. The series of reports issued by the Department of Justice Inspector General during 2008 in response to allegations of politicization of the hiring of interns and of misconduct in the firing of U.S. Attorneys have been raised repeatedly during hearings before Senate Judiciary Committee on the nomination of Eric Holder to become Attorney General of the United States. One of these was the Department of Justice Inspector General final public version of a report that was released in an earlier form on July 2, 2008. Links to that report and the others issued in September and earlier in June 2008 are provided below. The committee called upon Holder to address the problems raised in these reports and to work to restore the credibility and reputation of the department.
   Access Final DOJ IG Report of January 13, 2009.
   Read the DOJ OIG Report on Firings of U.S. Attorneys of September 2008.
   Access Original the IG Report on Political and Ideological Discrimination in Hiring (June 2008).
   Access the Follow-on Report on Specific Actions by Political Appointees (July 2008).

Eleventh Hour Fight to Ensure Preservation of Bush Administration Records
January 15, 2009. A last minute fight is being waged in the effort to prevent the Executive Office of the President from deleting records or failing to preserve e-mails that are being sought in connection with litigation brought by Citizens for Responsibility and Ethics in Washington (CREW). Judge Kennedy of the U.S. District Court for the District of Columbia issued an order for the preservation of records on January 14, but the administration has taken the position that his order applies "only upon those divisions whose records are subject to the Federal Records Act ("FRA") and not to those subject to the Presidential Records Act ("PRA"). As a result, they have not and will not fulfill the obligations now imposed by Judge Kennedy's order as to the latter." Citizens for Responsibility and Ethics in Washington v. Executive Office of the President, Civil Action Nos. 07-1707; 07-157, Memorandum Opinion, at 3. Magistrate John M. Facciola has moved to reject the administration's interpretations and block any actions that might lead to a loss of the records. He concluded, "the Order I am issuing requires them to search for e-mails in the specified periods in both PRA and FRA agencies." Id., at 4.
   Access the Magistrate's Memorandum Opinion.

Supreme Court Rejects Suppression of Evidence Taken in a Search Based on Invalid Police Assumption About the Warrant.
January 14, 2009. In an opinion by Chief Justice Roberts, the Supreme Court ruled that although an arrest was a violation of the Fourth Amendment and that the evidence seized was not justified by a valid warrant, that evidence was not subject to suppression. "Our cases established that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turnes on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence." Herring v. United States, No. 07-513, Slip Opinion at 1.
   Access the opinion.

FDA Inspector General Finds a Lack of Adequate Conflict of Interest Information for Clinical Trial Investigators
January 12, 2009. The Inspect of the Food and Drug Administration has issued a report indicating that the agency has not collected and investigated conflict of interest information on new drug or medical devices trials. For more information and a link to the report, see the Healthcare, Disabilities, and Development page of this website.

Illinois Supreme Court Rejects Challenge to Adequacy of Burris Credentials
January 9, 2009. The Illinois Supreme Court has rejected a challenge to the adequacy of Illinois Senator designee Roland Burris based on the lack of a countersignature and seal from the Illinois Secretary of State. The court found that "no further action is required by any officer of this state to make that appointment valid." Burris v. White, Slip opinion, at 1.
   Access the Illinois Supreme Court opinion.

Transition Presents Complex Issues of Internet Information
January 3, 2009. The George W. Bush administration will be the second with a broad Internet presence to leave office, presenting complex issues of Internet site information retention and access. The Presidential Records and Recordings Act mandates that the National Archives take possession of the records and ensure action to protect them and provide access to them. President George W. Bush issued a controversial executive order on the administration response to PRA requirements. The practice of the George W. Bush administration was to take down existing federal government Internet sites and replace them with those of the new administration immediately upon taking office.
   Access PRA and information on it from National Archives.
   Read E.O. 13233.

Possible Battle Emerges Over Seating of Newly Appointed Illinois Senator
December 31, 2008. Congressional leaders have indicated an intention to resist seating anyone appointed by the current governor of Illinois who has now made such an appointment in the face of the threat. It is useful, as the possible conflict evolves, to reexamine the opinion of the U.S. Supreme Court in Powell v. McCormack, 395 U. S. 486 (1969). That case involved action taken by Congress to block the seating of Representative Adam Clayton Powell (D, NY). (NOTE: The facts of the two situations are very different, and it is not yet clear precisely how congressional leaders might or might not proceed, but the Powell case does provide the primary precedent in this field.)
   Access the Powell v. McCormack opinion.

Nation Congress of American Indians Advances Transition Agenda for Obama Administration
December 22, 2008. The National Congress of American Indians (NCAI) has provided a report that outlines key transition issues for the Obama administration as it comes to office. This agenda provides a number of unique characteristics relative to other groups who have been advocating priorities for the new administration because of the special government to government relationship of sovereign Native American tribes and nations with the U.S. Government. The document is entitled Indian Nations and the 2009 Presidential Transition.
   Access the Report.

Department of Interior Inspector General Issues Report Criticizing Political Interference in Scientific Decisions on Endangered Species
December 16, 2008. The Department of Interior Inspector General has issued a report to the Senate Public Lands and Forests committee, confirming inappropriate efforts at political influence in endangered species act decisions in the Fish & Wildlife Service. Ron Wyden (D, OR), Chair of Senate Subcommittee on Public Lands and Forests requested the investigation into sixteen Endangered Species Act decisions that allegedly involved inappropriate political interference. The DOI IG has published what his office terms the "final redacted" version of the report. The initial version of the report has been posted on Senator Wyden's website. (NOTE: As posted, this is a very large .pdf file.).
   Access the report via Senator Wyden's website.
   Access the "final redacted" version of the report from the Department of Inspector General IG.

Supreme Court Rejects Preemption Bar to Tobacco Suits
December 15, 2008. A divided Court has rejected tobacco industry arguments that a state court suit against the companies brought under Maine's Unfair Trade Practices Act was prohibited because of the preemption doctrine. The case, Altria Group v. Good, was decided by a five to four majority with the majority opinion written by Justice Stevens. Justice Thomas wrote for the four dissenters.
   Access the opinion.

Special Inspector General for Iraq Reconstruction Prepares "Hard Lesson" Report
December 14, 2008. The New York Times and ProPublica.com were provided with and have published a draft of the report prepared by the Special Inspector on Iraq Reconstruction entitled Hard Lessons: The Iraq Reconstruction Experience which details a history of problems with the plans and implementation of those plans after the invasion of Iraq and replacement of its previous regime. For further information and link to the report, go to the Sustainable Development page of this website.

U.S. Department of Interior Issues Controversial Changes to Endangered Species Act Decision Process
December 12, 2008. The Secretary of Interior has announced publication of final rules that change the process for decisionmaking on Endangered Species Act determination which currently requires a process of consultation with agency experts. For more information and links, go to the Sustainable Development page of this website.

Senate Armed Services Committee Issues Report on Treatment of Detainees and Interrogations
December 11, 2008. The Senate Armed Services Committee has issued a report on its inquiry into the treatment and interrogation of detainees held in U.S. custody. The report was released in a joint effort by committee chair Senator Carl Levin (D, MI) and ranking member Senator John McCain (R, AZ). The committee has released the executive summary of the report and the conclusions while the remainder of the report is undergoing security review. The report rejects the assertion that abuses were actions by "a few bad apples," but states that they resulted from a series of decisions made by high level officials in the Bush administration and particularly points to actions by then Defense Secretary Donald Rumsfeld as well to Justice Department officials.
   Read the Senate Armed Services Report Executive Summary and Conclusions.
   Access the press release from Senator Levin on publication of the report.

House Passes Automotive Bailout Bill
December 11, 2008. The House of Representatives has passed H.R. 7321, the Auto Industry Financing and Restructing Act, introduced by Representative Barney Frank, Chair of the House Committee on Financial Services. The status of the bill in the Senate is at this point uncertain.
   Read the Auto Industry Financing and Restructuring Act proposal as introduced by Representative Frank.
   Access the bill summary as presented by Representative Frank.

The U.S. Brings Corruption Charges Against the Illinois Governor
December 9, 2008. Federal authorities today filed a two count criminal complaint against Illinois Governor Rod R. Blagojevich and his Chief of Staff John Harris. The complaint and the press release are provided below.
   Access the criminal complaint against the Illinois governor.
   Access the U.S. Attorney press release.

The U.S. Supreme Court Agrees to Hear Indefinite Detention Case
December 5, 2008. The U.S. Supreme Court has granted certiorari in No. 08-368, Al-Marri v. Pucciarelli, the latest in the series of cases to come before the court testing the Bush administrations detention practices with respect to those called illegal combatants. In this case, it concerns a man held in the United States was legally residing in the U.S. This case presents the following issue: "Does the Auhtorization for Use of Military Force . . . authorize -- and if so does the Constitution allow -- the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities?" Cert. Petition, p. i.
   Read the Petitioner for a Writ of Certiorari.
   Access the Brennan Center Materials on the case.
   Access the en banc opinion of the U.S. Court of Appeals for the Fourth Circuit.

The Report of the Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism Issues Report
December 3, 2008. The Commission on the Prevention of Weapons of Mass Destruction Proliferation and Terrorism has issued its report entitled World at Risk. That report has been posted on the Homeland Security Digital Library page of operated by the Naval Postgraduate School Center for Homeland Defense and Security. Click on the Post 9/11 Policy Actions links on this page

Iraq Government Agrees to U.S. and Iraq Forces Pact
November 27, 2008. The government of Iraq has now ratified the agreements on the future strategic relationship with the United States and another regarding the stationing of U.S. forces in Iraq that the Bush administration has been negotiating with Iraq over the past year. One of these is entitled "Strategic Framework Agreement" and the second is a "Security Agreement" which the White House notes is "often called a Status of Forces Agreement or SOFA." These agreements are the result of a process to which the U.S. and Iraq committed themselves November 26, 2007 in what was entitled the "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America," entered into by President Bush and Prime Minister Nouri Kamel Al-Maliki. Links to the final agreements and the "Declaration of Principles" are provided below.
   Read the U.S./Iraq Strategic Framework Agreement .
   Read the U.S./Iraq Security Agreement .
   Access the Declaration of Principles document of November 2007.

D.C. Federal District Judge Orders Release of Guantanamo Detainees
November 20, 2008. U.S. District Court Judge Richard J. Leon has ordered the release of Mr. LakhDar Boumediene and four other Algerians now being held at the Guantanamo Bay facility. It was in Mr. Boumediene's case that the Supreme Court ruled against the Military Commission Act ban on habeas corpus.
   Read the Memorandum Order.

Senate Judiciary Issues Report to Support Contempt of Congress Resolution Aimed at Rove and Bolten
November 19, 2008. The Senate Judiciary Committee has filed the committee report (and minority views) in support of the resolution to cite Karl Rove and Joshua Bolten for contempt of Congress.
   Read the report.

Panel on Veterans' Gulf War Illness Reports Findings
November 12, 2008. The Research Advisory Committee on Gulf War Veterans' Illnesses which was established by Congress in 1998 and its members appointed by the Secretary of Veterans Affairs in 2002 has reported its findings and recommendations to the current secretary with respect to its research on health impacts on service members during the Persian Gulf War. In its statement summarizing the report for the media, the committee stated: "At least one in four of the 697,000 U.S. veterans of the 1991 Gulf War suffer from Gulf War illness, a condition caused by exposure to toxic chemicals, including pesticides and a drug administered to protect trops against nerve gas, and no effective treatments have yet been found."
   Read the report.
   Read the media release for the report.

Supreme Court Overturns Injunction on Environmental Issues in Navy Sonar Exercises
November 12, 2008. The Supreme Court has reversed a ruling of the U.S. Court of Appeals for the Ninth Circuit which affirmed a ruling by a district court in California that had imposed an injunction that set conditions on Navy sonar training exercises. The case had been brought by the Natural Resources Defense Council and other groups on grounds that the exercises, if conducted without essential environmentally sensitive procedures, would injure or cause the death of marine mammals. The challengers alleged violations of the Endangered Species Act, the Coastal Zone Management Act, and the National Environmental Policy Act. The opinion for the Court by Chief Justice Roberts concluded that: "even if plaintiffs have shown irreparable injury from the Navy's training exercuses, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors." Winters v. Natural Resources Defense Council, Slip Opinion at 13. Justice Breyer, joined by Justice Stevens, concurred in part and dissented in part. Justice Ginsburg issued a dissenting opinion joined by Justice Souter.
   Read the Winters v. Natural Resources Defense Council opinions.

Supreme Court Hears Important Preemption Case
November 4, 2008. The Supreme Court has heard oral arguments in No. 06-1249 Wyeth v. Levine, a case coming from Vermont that presents an important question about federal preemption of state law. The case involves a suit brought by a patient who argued that the drug company had failed to provide essential warnings about the dangers of administering the drug by one technique rather than another. She prevailed in a suit brought under state law, but the drug company, supported by the U.S. Food and Drug Administration, has taken the case to the U.S. Supreme Court, arguing that federal food and drug laws concerning FDA approval of medications preempts state suits of the type involved in this case. Friend of the Court briefs have been filed by a variety of states and groups because of the potential significance of the case for the larger question of federal preemption.
   Access the brief for petitioners.
   Access the brief for respondents.
   Read the brief of former FDA administrators opposing FDA.
   Access the ABA briefs page with links to the amicus curiae briefs in the case.
   Read the oral argument transcript.

House Financial Services Committee Holds Hearing on Future Regulatory Strategies
October 22, 2008. The House Financial Services Committee on "The Future of Financial Services Regulation" on October 21. The following website provides witness lists, testimony, and video.
   Access Hearing and Materials

Connecticut Supreme Court Declares Ban on Gay Marriage Unconstitutional Even if Civil Unions are Available
October 11, 2008. The Connecticut Supreme Court has issued a ruling in Kerrigan v. Commissioner of Public Health, striking down the state ban on gay marriage where the state provides for civil unions. The majority found: "We conclude that, in light of the history pernicious discrimination faced by gay men and lesbiands, and because the institution of marriage carries with it a status and significance that the newly created classification of civil unions does not embody, the segregation of heterosecual and homosexual couples into separate institutions constitutes a cognizable harm. We also conclude that (1) our state scheme discriminates on the basis of sexual orienation, (2) for the same reasons that classifications predicated on gender are considered quasi-suspect for purposes of the equal protection provisions of the United States constitution, sexual orienation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the United States constitution, sexual orientation constitutes a quasi-suspect classification for purposes of the equal protection provisions of the state constitution, and, therefore, our statutes, discriminatin against gay persons are subject to heightened or intermediate judicial scrutiny, and (3) the state has failed to provide sufficicent justification for excluding same sex couples from the institution of marriage." Slip opinion, p. 3. There were three dissenting opinions which were posted as separate documents.
   Read the majority opinion.
   Access the dissenting opinion.

Federal District Judge Orders Release of Detained Chinese
October 8, 2008. Judge Ricardo M. Urbina of the United States District Court for the District of Columbia has ruled that the U.S. government has no authority to hold a number of Uighur Chinese currently being detained at Guantanamo Bay. He has ordered that they produced in his courtroom on Friday October 10 and has indicated that he will order their release. This case follows a ruling issued in June by the U.S. Court of Appeals for the D.C. Circuit that overturned the judgment by the Combatant Status Review Panel at Guantanamo that found the Uighur to be illegal combatants. The case is Ghaffar v. Bush, Civil Action No. 2008-1310. (NOTE: The court security office is currently reviewing the opinion in order to redact security restricted material. The full opinion will be posted during the day at the url indicated below. This information provided through the courtesy of the District Court for the District of Columbia Systems Office.)
   Read the Memorandum Opinion
   Access the D.C. Circuit Opinion on the Uighur designation as illegal combatants.

Federal Reserve Creates Commercial Paper Funding Facility to Support Market
October 7, 2008. The Federal Reserve has created a Commercial Paper Funding Facility to fund various types of commercial paper in an attempt to ease constraints on the availability of credit for business operations. In announcing the new program, the Fed explained that: "The CPFF will provide a liquidity backstop to U.S. issuers of commercial paper through a special purpose vehicle (SPV) that will purchase three-month unsecured and asset-backed commercial paper directly from eligible issuers." (See link below.)
   The Federal Reserve Bank of New York has issued terms and conditions for firms seeking assistance under the program. "The Commercial Paper Funding Facilty (CPFF) will be structured as a credit facility to a special purpose vehicle (SPV) authorized under section 13(3) of the Federal Reserve Act. The SPV will serve as a funding backstop to facilitate the issuance of term commercial paper by eligible issuers. The Federal Reserve will commit to lend to the SPV at the target federal funds rate. Draws on the facility will be on an overnight basis, with recourse to the SPV, and secured by all the assets of the SPV." (See link to terms and conditions page.)
   Access the Federal Reserve announcement of new Commercial Paper Funding Facility.
   Access the New York Federal Reserve Bank "Terms and Conditions" announcement.

House Committee on Oversight and Government Reforms Holds Series of Hearings on Financial Crisis That Bring Key Participants to Testify
October 8, 2008. The House Committee on Oversight and Government Reform has been and will be conducting a series of hearings on the financial crisis. Today's hearing focused on the failure of AIG that resulted in a demand for major federal intervention of some $85 billion. On October 6, the committee held hearings on the failure of Lehman Brothers. Three more hearings are scheduled in October, including an October 16 hearing on hedge funds, an October 22 on major credit rating agencies and their role in the financial crisis, and an October 23 hearing on federal regulators' performance. The hearings so far have presented testimony by CEOs and key participants. Access video, witness lists, and testimony from each of the hearings at the links below.
   AIG Hearing
   Lehman Brothers Hearing
   Access information on forthcoming hearings

Emergency Economic Stabilization Act Becomes Law
October 4, 2008. The president signed H.R. 1424 into law the same day that it cleared the House. It became P.L. 110-343. The Senate passed H.R. 1424 by a vote of 74-25 on Wednesday. The House approved the measure by a vote of 263-171 Friday afternoon. The bill was a house bill but became the Emergency Economic Stabilization Act in the Senate by means of an amendment in the nature of a substitute which eliminated the former content of the legislation and substituting the Senate Banking Committee's compromise bill. A link is provided below to the legislation.
   Access H.R. 1424

House Defeats Proposed Emergency Economic Stabilization Act
September 30, 2008. The House of Representatives defeated the proposed Emergency Economic Stabilization Act by a vote of 228 to 205. A link to the version of the bill defeated yesterday is provided below. Congressional leaders have indicated their intention to try again to pass a bill within the next few days.
   Access H.R. 3997.

Draft of Proposed Bailout Legislation
September 22, 2008. The New York Times has posted a copy of the "legislative proposal for treasury authority to purchase mortgage-related assets." It contains broad and unreviewable authority for the Secretary of the Treasury.
   Read the Draft Legislatione via the New York Times.

Federal Reserve Approves Request of Goldman Sachs and Morgan Stanley to be Bank Holding Companies
September 22, 2008. Over the weekend, the Federal Reserve Board on Sunday granted the requests by Goldman Sachs and Morgan Stanley to become bank holding companies with the related supports available from the Fed in exchange for subjecting themselves to regulation by the Fed. The approval requires a five day anti-trust waiting period.
   Read the Federal Reserve Announcement.

Federal District Court Issues Preliminary Injunction to Secure and Maintain Vice President Cheney's Records
September 22, 2008. Federal District Court Judge Colleen Kollar-Kotelly has issued a preliminary injunction to the Office of the Vice President, the Executive Office of the President, and the National Archives and Records Administration, requiring that they preserve records associated with the office of vice president pending the outcome of litigation brought by Citizens for Responsibility and Ethics in Washington (CREW). The organization has argued that the vice president and the other named offices have taken an excessively narrow interpretation of the coverage and requirements of the Presidential Records Act and fear that this interpretation will be used to justify elimination or exclusion of records that are required to be preserved under the law.
   Read the opinion.

Administration Presses Proposal for $700 Billion Asset Purchase Plan
September 20, 2008. The Department of the Treasury has posted a "fact sheet," describing the plan, estimated at some $700 billion, to purchase troubled assets in the marketplace, particularly troubled mortgages and related financial instruments, that the Bush administration has asked Congress to adopt as quickly as possible.
   Treasury Department Fact Sheet on Asset Purchase Proposal to Congress.

SEC Issues Emergency Order to Block Short Selling
September 19, 2008. The Securities Exchange Commission has issued an emergency order prohibiting short selling in financial securities.
   Read the SEC announcement of emergency actions.
   Read the SEC emergency order blocking short selling.

President Approves $50 Billion Backstop for Money Market Funds and Treasury Announces Plan for Massive Intervention with Public Dollars"
September 19, 2008. President Bush has issued a presidential memorandum to the Secretary of the Treasury authoring an Exchange Stabilization Fund of up to $50 billion to support a guaranty for money market mutual funds. Also today, Secretary of the Treasury Paulson announced the intention of the administraiton working with congressional leaders to enact massive new legislation to remove what are described as troubled assets from the marketplace with public dollars.
   Read Treasury announcement of the creation of the new program.
   Read the president's memorandum.
   Read Treasury statement announcing plans for massive program to remove troubled assets.

FDA Issues Draft Guidance Documents on "the Regulation of Genetically Engineered Animals"
September 18, 2008. The U.S. Food and Drug Administration has issued its long-awaited guidance document on the regulation of what the agency terms genetically engineered animals. FDA Docket No. FDA-2008-D-0394. The FDA defines six classes of animals and related purpsoes in the guidance. "GE animals curretnly being developed can be divided into six broad classes based on the intended purpose of the genetic modification: (1) to enhance food quality or agronomic traits (e.g. pigs with less environmentally deleterious wastes, faster growing fish); (2) to improve animal health (e.g., disease resistance); (3) to produce products intended for human therapeutic use (e.g., pharmaceutical products or tissues for transplantation, these GE animals are sometimes referred to as 'biopharm' animals; (4) to enrich or enhance the animals' interactions with humans (e.g., hypo-allergenic pets); (5) to develop animal models for human diseases (e.g., pigs as models for cardiovascular diseases); and (6) to produce industrial or consumer products (e.g., fibers for multiple uses." Comments will be accepted on this proposed guidance until November 18, 2008 through regulations. gov (http://www.regulations.gov/).
   Read the FDA Proposed Guidance on Genetically Modified Animals.
   Read the FDA Press Release on Genetically Modified Animals.

DOJ Inspector General Reports on Gonzales' Mishandling of Classified Document
September 2, 2008. The Department of Justice Inspector General has issued a report on allegations of mishandling of classified documents by former Attorney General Alberto Gonzales. For more information and a link to the report see the Post 9/11 Policy Actions page of this site. (see menu above).

Consumer Product Safety Improvement Act of 2008 Becomes Law
August 28, 2008. Congress has enacted and the president has signed H.R. 4040, the Consumer Product Safety Improvement Act of 2008 which is now P.L. 110-314. The new statute responds to broad criticism of the Consumer Product Safety Commission and the fact that the agency lacked authority and resources to do its work. The criticism and congressional investigations followed revelations of numerous toys and other children's products that were imported into the U.S. from China with high lead levels. The new legislation not only reauthorizes the CPSC and makes changes to the commission's authority and operations, but Title I of the act, entitled Children's Product Safety also specifically addresses a range of issues concerning toys and other products designed for children, including "Children's products containing lead; lead paint rule; Mandatory third party testing for certain children's products; Tracking labels for children's product; Standards and consumer registration of durable nursery products; Labeling requirements for advertising toys and games; Mandatory toy safety standards; Study of preventable injuries and dealths in minority children related to consumer products; and Prohibition on sale of certain products containing specified phthalates."
   Read H.R. 4040.

D.C. Circuit Rejects EPA Rule Limiting Monitoring Requirements by State and Local Permitting Agencies
August 20, 2008. A divided panel of the U.S. Court of Appeals for the D.C. Circuit has issued another ruling striking down a U.S. Environmental Protection Agency rule on Clean Air Act issues. The decision in Sierra Club v. EPA strikes down rules issued in 2006 in which the EPA banned state and local permitting authorities from supplementing monitoring requirements as part of the permitting process. The panel concluded: "We vacate this rule because it is contrary to the statutory directive that each permit must include adequate monitoring requirements." Slip opinion, at 1.
   Read the D.C. Circuit opinion.

U.S. District Court in Wyoming Strikes Roadless Rule
August 13, 2008. Judge Clarence Brimmer of the U.S. District Court for the District of Wyoming has, for the second time, rejected the so-called roadless rule, prohibiting roads in certain forest areas, originally issued during the Clinton administration. Brimmer had initially struck down the rule in 2003, but in a different case in California, a magistrate struck down the Bush administration's replacement rule and reinstated the previous Clinton era rule. In the new case, Wyoming v. U.S. Department of Agriculture, the judge found that the Clinton rule violated the National Environmental Policy Act and the Wilderness Act and issued a permanent injunction against it. The order has not yet been posted on the court's website and the link below is through the Earthjustice website, one of the parties in the case. That organization has announced its intention to appeal the case to the U.S. Court of Appeals for the Tenth Circuit.
   Read the district court order.

Fish and Wildlife Service Changes Critical Habitat Designations for Spotted Owl
August 13, 2008. The U.S. Fish and Wildlife Service has issued a final rule on the changed designation of critical habitat for the Northern Spotted Owl.
   Access the rule.

California Governor Issues Executive Orders Cutting Pay and Terminating Contracts
August 12, 2008. California Governor Arnold Schwarzenegger issued Executive Order S-09-08, taking dramatic moves to suspend contracts, block spending, and cutting or eliminating payments of wages to state employees except where mandated by federal law. The state is facing a shortfall in excess of $15 billion and there is no new budget bill that has been passed and signed as the state enters the new fiscal year. State Controller Chiang has taken positions that disagree with the governor in terms of what can and cannot be paid under the current conditions and has created a website which details that information. The dispute has sparked legal action by the governor against the controller that has been filed in Sacramento. The controller has replied that: "I am confident the court will share my concern that it will be infeasible existing payroll system to reduce the wages of more than 180,000 public servants down to the federal minimum wage in such a short time. I am also conident that the court will share my conerns that the existing payroll system fill not be able to quickly restore wages so that each employee is paide what they are legall owed." Press release, August 11, 2008
   Read Executive Order S-09-08.
   Access the California Controller's Website on Payments and Limits in Current Crisis.

U.S. District Court Rules in Long-Running Native American Trust Funds Case
August 8, 2008. Judge James Robinson of the U.S. District Court for the District of Columbia ruled that Native Americans were entitled to restitution in the long-running case charging mismanagement trust funds held by the government that were supposed to go to Native Americans. Robinson found that "the evidence supports an award in the amount of $455,600,000. . . . I have rejected the plaintiffs' claim of entitledment to an additional sum representing 'benefit to the government.' . . . This opinion . . . neither deals with nor resolves any claims that IIM account holders may have for damages against the government." Cobell v. Kempthorne, Slip opinion at 5. The Native American calculations had concluded that the government actually owed approximately $47 billion.
   Read the Cobell opinion.

Laptop Computers and Other Electronic Devices May be Held, Searched, and Copied Without Probable Cause or Reasonable Suspicion at Borders Under U.S. Customs and Border Protection Policy
August 1, 2008. U.S. Customs and Border Protection issued policy guidance to its agents on July 16, outlining procedures for holding and searching laptop computers or other electronic devices without warrant, probably cause, or reasonable suspicion for those entering the U.S., including U.S. citizens. This policy guidance follows previous testimony by Jayson P. Ahern, Deputy Commissioner, U.S. Customs and Border Protection, Department of Homeland Security, Before The Senate Committee on the Judiciary Constitution Subcommittee, in hearings entitied "Laptop Searches and Other Violations of Privacy Faced by Americans Returning from Overseas Travel" held on June 25, 2008. Ahern's position statement, provided below, asserts that the service has always had the authority to detain, analyze the contents, and copy any of the materials on those devices as well as to share that information with other agencies. He claims that authority was supported in an April ruling by the U.S. Court of Appeals for the Ninth Circuit U.S. v. Arnold in which the court concluded: "We are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border. Los Angeles International Airport may examine the electonic contents of a passenger's laptop without reasonable suspicion." Slip opinion at 4182.
   Access the U.S. Customs and Border Enforcment Policy on Electronic Device Detention and Search.
   Access the Ahern statement.
   Read Ninth Circuit ruling in US. v. Arnold, upholding detention and search of laptops and other devices without reasonable suspicion.

U.S. District Court Rejects Administration Claims of Absolute Privilege for Close Aides Against Compelled Testimony
July 31, 2008. United States District Judge John D. Bates has rejected the claim of executive privilege as a bar to a required appearance by former White House Counsel Harriet Miers before the House Judiciary Committee. Judge Bates ruled that: "Clear precedent and persuasive policy reasons confirm that the Executive cannot be the judge of its own privilege and hence Ms. Miers is not entitled to absolute immunity from compelled congressional process. Ms. Miers is not excused from compliance with the Committee's subpoena by virtue of a claim of executive privilege that may ultimately be made. Instead, she must appear before the Committee to provide testimony, and invoke executive privilege where appropriate. And as the Supreme Court has directed, the judiciary remains the ultimate arbiter of an executive privilege claims, since it is the duty of the courts to declare what the law is. See United States v. Nixon, 418 U.S. at 703-05; see also Marbury v. Madison, 5 U.S. (1 Cranch) at 177." Committee on Judiciary v. Miers, Slip opinion at 91.
   Read the Committee on Judiciary v. Miers opinion.

California Passes Ban on Trans Fats, But Exempts School Cafeterias
July 25, 2008. California has enacted Assembly Bill 97 outlawing transfats in restaurants. However, it is also interesting that the bill provides that "This section shall not apply to public elementary, middle, junior high, or high school cafeterias." Section114377 (e).
   Access Assembly Bill 97.

Third Circuit Reverses F.C.C. on Superfund Half-Time Show Sanctions
July 21, 2008. The U.S. Circuit Court of Appeals for the Third Circuit has issued an opinion in the CBS v. F.C.C. case which challenged the fine imposed by the regulatory agency on broadcasters following the controversial half-time showing featuring Justin Timberlake and Janet Jackson in 2004. The Third Circuit panel found that the F.C.C. action was arbitrary and capricious under the Administrative Procedure Act and also that CBS could not be held responsible for the actions of the two performers.
   Access the CBS v. F.C.C. opinion.

D.C. Circuit Strikes Down EPA Clean Air Interstate Rule
July 12, 2008. A panel of the U.S. Court of Appeals for the D.C. Circuit has struck down the Clean Air Interstate Rule that implemented a cap and trade system for pollutants. In a relatively rare example in which environmental interest groups supported the Bush Administration Environmental Protection Agency, the court found multiple difficulties with the EPA interpretation of the Clean Air Act, concluded that its decisionmaking was in several instances arbitrary and capricious, and ultimately vacated the rule, telling EPA to start over. Unlike the typical situation in which the reviewing court upholds some aspects of the administrative action and remands others for further consideration consistent with the court's opinion, the CAIR ruling vacated the entire rule because, the court wrote, "No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule." Instead, the court said, "EPA must redo its analysis from the ground up." North Carolina v. EPA, Slip opinion, at 59.
   Access the opinion.

Appeals Court Rejects Challenge to District Court Ruling in Cheney Visitors Case
July 12, 2008. The D.C. Circuit has ruled that it did not have jurisdiction to rule on the government's appeal that a lower court ruling mandating FOIA access to information about visitors to Vice President Cheney. The case, Citizens for Responsibility and Ethics in Washington (CREW) v. Department of Homeland Security, grew out of a ruling by the U.S. district court in December 2007 that required the Secret Service to "process [CREW's] Freedom of Information Act request and produce all responsive records that are not exempt from disclosure within 20 days." The organization had sought information about visits by a number of lobbyists and others to the vice president during critical periods in the development of policy.
   Access the opinion.

Congress Passes FISA Amendments
July 10, 2008. The Congress has adopted and sent to the president H.R. 6304, the FISA Amendments Act of 2008. The president had announced his support for the legislation and has signed it into law.. For more information and link to the legislation go to the Post 9/11 Policy Actions portions of this web page.

U.S. District Court Finds that FISA Preempts State Secrets Privilege
July 3, 2008. Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California concluded that: "FISA preempts the state secrets privilege in connection with electronic surveillance for intelligence purposes and would appear to displace the state secrets privilege for purposes of plaintiffs' claims." The case is In re National Security Agency Telecommunications Records Litigation, which comes out of the Al-Haramain Islamic Foundation v. Bush litigation, 507 F.3d 1190 (9th Cir. 2007). The appellate court had remanded the case for a decision on the question, "whether FISA preempts the state secrets privilege and for any proceedings collateral to that determination," Id. at 1206.
   Access the opinion.

D.C. Circuit Unanimously Rejects Illegal Combatant Ruling
July 1, 2008. The U.S. Circuit Court of Appeals for the D.C. Circuit has released its ruling in the first case of a finding that a detainee was an illegal combatant through the combatant status review tribunal to be tested. Judge Garland, writing for the panel, explained: "A Combatant Status Review Tribunal has decided that petitioner Huzaifa Parhat, a detainee at the United States Naval Base at Guantanamo Bay, Cuba, is an 'enemy combatant.' This is the first case in which this court has considered the merits of a petitioner to review such a decision under the Detainee Treatment Act of 2005. . . . We conclude that the Tribunals' decision in Parhat's case was not valid." Parhat v. Gates, Slip opinion at 1. The opinion finds that even under the limited review available under the act, the government's evidence was insufficient to find Parhat to be an illegal combatant. "We therefore direct the government to release or to transfer the petitioner, or to expeditiously hold a new CSRT consistent with this opinion. This disposition is without prejudice to the Parhat's right to seek release immediately through a writ of baheas corpus in the district court, pursuant to the Supreme Court's decision in Boumediene." Id. at 38.
   Access the opinion.

Army Panel Issues Report Strongly Critical of Post-Invasion Iraq Policy and Actions
June 30, 2008. A panel created to study the U.S. Army's post-invasion actions in Iraq under the auspices of United States Army Combined Arms Center has issued a highly critical report, entitled On Point II: Transition to the New Campaign. The report was written by Donald P. Wright and Col. Timothy R. Reese working with the Contemporary Operations Study Team. This is the second of two reports on Iraq, with the first coming in 2004. An additional report on Afghanistan is scheduled for release in 2009. (NOTE: The reports are exceptionally large files. The On Point II report is over 700 pages.)
   Access the Iraq On Point II Report.
   Access the Iraq On Point I Report.
   The website for Army Combined Arms Center reports at .

Supreme Court Hands Down Long-Awaiting Gun Control Ruling
June 26, 2008. The United States Supreme Court has issued its long-awaited ruling in the D.C. gun control case, District of Columbia v. Heller. Justice Scalia wrote for the 5-4 majority, finding that the Second Amendment does apply to individuals and that the D.C. ban violated that right. He wrote: "There seems to us no doubt, on the basis of both text and history, that the Second Amendment Conferred an individual right to keep and bear arms." Slip opinion, at 22. However, Scalia said, "nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildigns, or laws inposition conditions and qualifications on the commercial sale of arms." Id., at 54-55. Justice Scalia also added that his historical interpretation would support "the historical tradition of prohibiting the carrying of 'dangerous and unusual weapons.'" Id, at 55. He did not explain precisely what that meant.
    Justice Stevens issued the lead dissent, joined by Justices Souter, Ginsberg, and Breyer. Stevens warned: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations." Stevens, J., sissenting, Slip Opinion, at 45.
    Justice Breyer also issued a dissenting opinion joined by the three other dissenters. "The majority's conclusion is wrong for two independent reasons. The first reason is that set forth by Justice Stevens -- namely, that the Second Amendment protects militia-related, not self-defense-related interests. . . . The second independent reason is that the protection the Amendment provides is not absolute. The Amendment permits government to regulate the interests that it serves. Thus, irrespective of what those interests are -- whether they do not include an independent interest in self-defense -- the majority's view cannot be correct unless it can show that the District's regulation is unreasonable or inappropriate in Second Amendment terms. This the majority cannot do." Breyer, J., dissenting, slip opinion, at 1.
   Access the District of Columbia v. Heller opinion.

Supreme Court Issues End of Term Rulings
June 25, 2008. The U.S. Supreme Court has issued a number of end of term rulings, though there remain important cases, including the District of Columbia gun control case, still pending, with decisions expected soon. Today the Court issued rulings in the Exxon Valdez punitive damages case, the Louisiana death penalty for rape case, and the Plains Commerce Bank case testing the limits of tribal courts.
    The Court issued a long-awaited ruling on the whether the 2.5 billion dollar punitive damages award, stemming from the Exxon Valdez oil spill, against Exxon would be upheld. Justice Souter wrote for the Court, though a number of justices entered separate opinions. Souter explained: "There are three questions of maritime law before us: whether a shipowner may be liable for punitive damages without acquiescence in the actions causing harm, whether punitive damages have been barred implicitly by federal statutory law making no provision for them, and whether the award of $2.5 billion in this case is greater than maritime law should allow in the circumstances. We are equally divided on the owner's derivative liability, and hold that the federal statutory law does not bar a punitive award on top of damages for economic loss, but that the award here should be limited to an amount equal to compensatory damages." Slip opinion, at p. 1.
    The Kennedy v. Louisiana case tested the Eighth Amendment validity of the Louisiana law that permitted the application of the death penalty in a rape case where the victim was a child. Justice Kennedy wrote for a 5-4 majority, striking the law. "This case presents the question whether the Constitution bars respondent from imposing the death penalty for the rape of a child where the crime did not result, and was not intended to result, in the death of the victim. We hold the Eighth Amendment prohibits the death penalty for this offense. The Louisiana statute is unconsitutional." Slip opinion, at p.1.
    A case that attracked far less public attention was one that tested the boundaries of the jurisdiction of tribal courts. The case arose when a bank sold land that it owned on a reservation to a nonmember of the reservation. A Native American couple on the land sued, claiming that the bank had offered the non-Indian purchaser better terms than they were offered and that they had an option that the bank was obligated to honor. The couple brought suit in tribal court and prevailed. The bank challenged the jurisdiction of the tribal court in U.S. federal courts which ruled in favor of the tribal court's jurisdiction. Chief Justice Roberts wrote for the Supreme Court, finding that: "The question presented is whether the tribal court had jurisdiction to adjudicate a discrimination claim concerning the non-Indian bank's sale of fee land it owned. We hold that it did not." Plains Commerce Bank v. Long Family Land and Cattle Company, Slip opinion, at p. 1.
   Access the Exxon Shipping Co. v. Baker opinion.
   Access the Kennedy v. Louisiana opinion.
   Access the PlainsCommerce Bank Opinion .

Supreme Court Holds Burden in Age Discrimination Cases on Employer
June 19, 2008. The United States Supreme Court has issued a decision in a case testing whether the burden of proof rests with the challenger or the employer in an Age Discrimination in Employment Act (ADEA) case in which the employer has sought an injunction based on "reasonable factors other than age." In an opinion by Justice Souter, the Court ruled that the statute requires that the burden rests with the employer in such cases. "The question is whether an employer facing a disparate-impact and planning to defend on on the basis of RFOA must not only produce evidence raising the defense, but also persuade the factfinder of its merits. We hold that the employer must do both." Meacham v. Knolls Atmomic Power Laboratory, Slip opinion at 1.
   Access the opinion.

GAO Upholds Boeing Bid Protest on KC-X Air Force Tanker Contract Award
June 19, 2008. The U.S. Government Accountability Office has issued a "Statement Regarding the Bid Protest Decision Resolving the Aerial Refueling Tanker Protests by the Boeing Company," B-311344, June 18, 2008, that announces a bid protest ruling in favor of Boeing in the hotly contested Air Force effort to acquire a new air tanker. For more information and link, go to the Public Contract Management page of this website.

D.C. District Court Rejects FOIA Suit Seeking Administration E-Mail
June 16, 2008. U.S. District Court for the District of Columbia, Colleen Kollar-Kotelly issued an opinion in Citizens for Responsibility and Ethics in Washington v. Office of Administration, dismissing a Freedom on Information suit to force the White House Office of Administration to produce e-mails that have been reported missing or simply not reported in response to legislative oversight requests. She concluded that the OA is not an agency within the meaning of the FOIA.
   Access the opinion.

U.S. Supreme Court Rejects Oregon Public Employee Equal Protection Argument
June 15, 2008. Writing for a 6-3 majority, Chief Justice Roberts ruled against an equal protection argument under the Fourteenth Amendment and, in so doing, ruled out a class of employee suits in Engquist v. Oregon Department of Agriculture. Three dissenters, in an opinion by Justice Stevens, warn that the majority opinion "carves a novel exception out of state employees' constitutional rights." Stevens, J., dissenting, Slip opinion, at 1. For more information and link to the opinion, go to the Oregon page of this website.

Supreme Court Again Rejects Guantanamo Policy
June 12, 2008. The Supreme Court has issued its long awaited ruling in theBoumediene v. Bush and Al Odah v. United States cases, rejecting the bar to habeas corpus for prisoners held at the Guantanamo Bay detention facility. The case was brought to challenge the provisions of the Military Commission Act and administration policy denying prisoners at the facility access to habeas corpus in federal courts. The cases also challenged the Combatant Status Review Tribunal process for proceedings at the facility.
   In addition to the opinion, the links below provide access to the oral arguments and briefs in the case.
    The Court also decided Munaf v. Green, holding that habeas corpus also applies to those held by U.S. forces in Iraq.
   Access the Boumediene v. Bush opinion.
   Access the Oral Argument Audio via the Oyez Project.
   Access the Oral Argument Transcript
   Access the Briefs in both cases via the ABA Supreme Court Preview site.
   Access the Munaf v. Green opinion.

Senate Intelligence Committee Issues Report on Iraq Intelligence and Administration Public Assertions before the Invasion.
June 7, 2008. The Senate Intelligence Committee has issued a report that compares Bush administration public assertions leading up to the invasion of Iraq with available intelligence on those issues. The report is formally entitled Whether Public Statements Regarding Iraq by U.S. Government Officials Were Substantiated by Intelligence Information and is informally known as the Phase 2a report. There is a Phase 2b report that is entitled Intelligence Activities Relating to Iraq Conducted by the Policy Counterterrorism Evaluation Group and the Office of Special Plans Within the Office of the Under Secretary of Defense for Policy. This part of the review followed the issuance in February 2007 of a report by the DOD Office of Inspector General Review of Pre-Iraqi War Activities of the Office of the Under Secretary of Defense for Policy. The committee had previously published a report entitled Prewar Intelligence Assessments About Postwar Iraq.
   Access the Senate Intelligence Committee Phase 2a report.
   Access the Senate Intelligence Committee Phase 2b report.
   Access the Senate Intelligence Committee Prewar Intelligence Assessments About Postwar Iraq report.
   Access the DOD OIG February 2007 Report.
   Access the Executive Summary of the DOD OIG February 2007 Report.

California Supreme Court Strikes California Refusal to Recognize Gay Marriage
May 30, 2008. The California Supreme Court has rejected, on state constitutional grounds, the state's current statutory scheme under which gay couples may enter into domestic partnerships but are denied the recognition of a marital relationship. As the Court put it: "The question we must address is whether, under these circumstances, the failure to designate the official relationship of same-sex couples as marriage violates the the California Constitution." In re Marriage Cases, Slip op. at 4. The court answered that it does. "We therefore conclude that in view of the substance and significance of the fundamental constitutional right to form a family relationship, the California Constitution properly must be interpreted to guarantee this basic civil right to all Californias, whether gay or heterosexual, and to same-sex couples as well as to opposite-sex couples." Id. at 7.
   Access the In reMarriage Cases opinion.

Three Judge Federal District Court Rejects Challenge to Voting Rights Act
May 30, 2008. A three judge panel of the U.S. District Court for the District of Columbia has rejected a challenge to the Voting Rights Act with respect to Section 5 preclearance of proposed changes in voting rules by covered states. A Texas utility district had challenged the continued designation of covered states as compared to other jurisdictions that are not required to obtain preclearance of changed from the U.S. Department of Justice. Rulings from three judge federal district courts can be appealed directly to the U.S. Supreme Court, which is widely expected in this case. (NOTE: This is a large file and the user may wish to download it before opening it.)
   Access the Northwest Austin Municipal Utility District Number One v. Mukasey opinion.

Supreme Court Finds Reprisals a Basis for Civil RIghts Action
May 28, 2008. The Supreme Court has delivered two opinions that found that 42 U.S.C. §1981, enacted as part of the Civil RIghts Act of 1866, provided a basis for a civil rights action where employers had taken reprisals for reporting of discrimination by employees. One of the cases, CBOCS West, Inc. v. Humphries, involved a private employer, while the other, Gomez-Perez v. Potter, involved a postal employee.
   Access the CBOCS West, Inc. v. Humphries opinion.
   Access the Gomez-Perez v. Potter opinion.

U.S. Supreme Court Let's Favorable Tax Treatment for State and Local Bonds Stand
May 21, 2008. In a long-awaited ruling on a seemingly arcane subject, the Surpeme Court has upheld a state tax policy that allowed tax policy under which it exempts interest on bonds issued by the state and its local governments from taxation, but taxes interest from bonds issued in other states. For more information and link to the opinion, go to the Local Government page of this website.

Department of Justice Inspector General Issues Report on FBI Reporting of Defense Department Interrogations Abuses
May 20, 2008. The Department of Justice Inspector General's office has issued a report providing information on situations in which FBI agents were present when DOD personnel used interrogations practices prohibited by FBI policy. The report is an unclassified short version of a much longer classified report.
   Access the report.

Director of National Intelligence Issues Reports to Address Classification Problems and Information Sharing Issues
April 12, 2008. The Office of the Director of National Intelligence has released a report issued in January on problems in classification inconsistencies entitled Intelligence Community CLassification Guidance Findings and Recommendations Report. This report was made available in an unclassified form this week, while on April 4, the DNI published a separate report on issues in information sharing. For more information and a link to the memorandum go to the Post 9/11 Policy Actions portions of this web page.

Another of the Yoo Memoranda Supporting Broad Executive Branch Power to Use Interrogation Techniques Released
April 4, 2008. During the debates that led to passage of the Detainee Protection Act, it became clear that John C. Yoo, then Deputy Assistant Attorney General in the Office of Legal Counsel in the Department of Justice, had prepared a number of memoranda rejecting concerns that detainees at Guantanamo had constitutional and other legal protections and supporting the use of a wide range of interrogation techniques that raised serious questions as to whether they would be considered torture. Another memorandum was declassified and released this week in connection with a suit filed by the American Civil Liberties Union. It is a March 14, 2003 memorandum from John Yoo to William J. Haynes, II, then Defense Department General Counsel. For more information and a link to the memorandum go to the Post 9/11 Policy Actions portions of this web page.

Supreme Court Rejects Federal Application of Vienna Convention Ruling to Texas Penalty Case
March 27, 2008. A six to three majority of the U.S. Supreme Court, in an opinion in the case of Medellin v. Texas authored by Chief Justice Roberts, rejected the efforts of the Bush administration to compel Texas to respond to the ruling of the International Court of Justice finding that the state, and therefore the United States, had violated the Vienna Convention on consular access for those charged with captial offenses. The majority concluded that Texas could not be bound by the international agreement in the absence of clear enforcement legislation from Congress. The three dissenters, in an opinion by Justice Breyer, argued that the ruling dramatically undermined the meaning of the Supremacy Clause of the Constitution.
   Access the opinion.

Second Circuit Strikes New York Airline Passenger Protection Policy
March 26, 2008. A panel of the U.S. Court of Appeals for the Second Circuit has issued a per curiam opinion striking down a New York state statute entitled the New York Passenger Bill of Rights. The panel found that the New York law is preempted by the Airline Deregulation Act of 1978.
   Access the opinion.

U.S. Supreme Court Hears D.C. Gun Control Case
March 18, 2008. The U.S. Supreme Court today heard oral arguments in No. 07-290, District of Columbia v. Heller, a case testing the District of Columbia hand gun ban on grounds of the Second Amendment to the U.S. Constitution. Many parties are interested to see how the Court will explain the Second Amendment in the current context. The oral argument audio (via the Oyez Project), the argument transcript and two primary briefs on the merits are provided below.
   Access the Supreme Court Oral Argument Audio.
   Access the Supreme Court Oral Argument Transcript.
   Read the Brief for the District of Columbia.
   Read the Brief for Heller.

Report for Joint Forces Command Finds no Direct Saddam Hussein Connections to al Qaeda
March 18, 2008. A report prepared under contract for the Joint Forces Command by the Institute for Defense Analyses found connections between Saddam Hussein's government and a various of terrorist organizations, but not al Qaeda. For a link to the report go to the Post 9/11 Policy Actions portions of this web page.

GAO Issues Report on Presidential Signing Statements
March 14, 2008. The Government Accountability Office has issued a report to Congress on the many in which presidential signing statements are reflected in selective implementaiton of laws passed by Congress.
   Access the GAO Report.

President Vetoes Bill Limiting Interrogation Methods
March 12, 2008. On March 8, President Bush vetoes H.R. 2082, the Intelligence Authorization Act for FY 2008. The veto message objects to variety of provisions of the bill, but the one that has drawn most attention is a set of constraints on interrogation techniques by the CIA. For more information as well as links to the veto message and the bill itself, go to the Post 9/11 Policy Actions portion of this website.

Court of Appeals Affirms Key Elements of District Court Ruling in Navy Sonar Case
March 2, 2008. A panel of the U.S. Court of Appeals for the Ninth Circuit has issued the most recent opinion in the ongoing battle between the Natural Resource Defense Council, along with other environmental groups, and the U.S. Navy, upholding in most respects the modified injunction placed by District Court Judge Florence-Marie Cooper on Navy sonar training exercises due to dangers to a number of ocean species. The Ninth Circuit panel modified the injunction in two ways but stayed its own ruling to give the Navy opportunity to appeal its decision to the U.S. Supreme Court. The earlier decisions in the case were presented in earlier postings on this page and are reproduced below.
   Judge Florence-Marie Cooper of the U.S. District Court for the Central District of California has rejected the validity of the waiver of the requirements of the National Environmental Policy Act by the Council on Environmental Quality and has therefore lifted the stay that she had imposed on her own injunction placing limitations on Navy sonar training exercises. While she did not rule on the matter, her opinion also "expresses significant concern about the constitutionality of the President's exemption of the Navy from the requirements of the Coastal Zone Management Act." Natural Resources Defense Council v. Winter, Slip opinion, at 2. She had previously issued an injunction in the case, placing conditions and limitations on the further Navy sonar training exercised, but following the White House action and a ruling by the Ninth Circuit, she placed a stay on that injunction. She has now lifted the stay, placing the injunction back in force.
    A previous posting explained the case as follows. The Natural Resources Defense Council has been one of the groups leading an ongoing battle to block or limit some uses of sonar in Navy training, particularly in sensitive near-shore ocean environments. The legal action was brought under the Coastal Zone Management Act and the National Environmental Policy Act. For its part, the Bush administration responded that the sonar training in these areas is essential to national security. The U.S. District Court for the Central District of California placed an injunction against the planned Navy exercises, but later, on January 3, 2008, narrowed the injunction. The Bush administration took two separate actions in response. It appealed the district court action to the U.S. Court of Appeals for the Ninth Circuit. The president then issued a presidential "Memorandum for the Secretary of Defense and the Secretary of Commerce" in which the administration granted a waiver from the CZMA to allow the Navy to proceed. At the same time, The Council on Environmental Quality, authorized Navy training using provisions of the NEPA that permit the CES to find "emergency circumstances" and permitting "alternative arrangements" to meet the requirements of the Act. Almost immediately, a panel of the Ninth Circuit issued an opinion sending the case back to the district court for further consideration in light of the administration's actions, though the appeals court retained jurisdiction in the case. The next day, Judge Florence-Marie Cooper of the Central District of California issued a conditional stay to her earlier injunction pending consideration of further arguments in the case at the end of January.
   Read the Ninth Circuit February 29, 2008 Order.
   Read the Ninth Circuit February 29, 2008 Opinion.
   Read the Ninth Circuit Panel Opinion of January 16, 2008.
   Access the Presidential Memorandum.
   Read the Council on Environmental Quality Letter to Navy.
   Read the Disrict Court January 17 opinion.
   Read the Disrict Court February 4 opinion reimposing the injunction.

Senate Environment Committee Releases Internal EPA Documents Showing Warnings About the Decision to Rejects State Clean Air Act Waiver Requests to Limit Auto Emissions Contributing to Global Warming
February 27, 2008. The Senate Committee pm Emvoronment and Public Works, chaired by Senator Barbara Boxer (D., CA) has published internal Environmental Protection Agency memoranda issued while the agency administrator was considering whether to approve waiver requests by California and other states to increase emissions standards to address global warming concerns and warning that the agency would be on weak ground legally and politically should Administrator Johnson reject the state requests.
    This webpage carried the following postings in December at the time that the EPA rejected the state requests. December 20, 2007. The U.S. Environmental Protection Agency administrator has announced that the agency has refused a request brought by California and joined by 18 other states for a waiver of the EPA regultions in order to permit more stringent vehicle emissions standards aimed at addressing global warming. The EPA Administrato announced that the new standards were unnecessary due to the recent passage of a new national energy act. "The two primary approaches for reducing greenhouse gas emissions from vehicles are increasing the fuel economy of vehicles and reducing the greenhouse gas emissions associated with their fuel. The recently signed energy bill addresses both approaches by increasing the fuel economy from vehicles to 35 miles per gallon, an increase of forty percent, as well as increasing the amount of renewable fuel used to 36 billion gallons, nearly a five-fold increase." California and several other states immediately announced their intention to seek judicial review of the EPA decision.
    These events took place against a backdrop of prior rulings against EPA refusal to issue standards for vehicle greenhouse gas emissions aimed at global warming and other opinons rejecting efforts by vehicle manufacturers to block state efforts to issue emissions limits. The U.S. Supreme Court ruled against EPA in 2007 and a U.S. district court rejected challenges to the states. However, these rulings were issued before the EPA refusal to grant the waiver requests.
   Read the EPA Internal Memoranda Released by Senate Environment and Public Works Committee.
   Read the EPA explanation of the refusal to grant the California waiver petition .
   Access the Energy Legislation.
   Read the U.S. District Court for the District of Vermont ruling in California v. General Motors.
   Read the U.S. District Court for the Eastern District of California ruling in Central Valley Chrysler-Jeep Inc. v. Goldstone.
   Read the Supreme Court opinion in Massachusetts v. EPA opinion.

PEW Issues Report Showing Dramatic Increases in U.S. Incarceration Levels
February 27, 2008. The PEW Center on the States has released a report entitled "One in 100: Behind Bars in America 2008" which found that: "The United States incarcerates more people than any country in the world, including the far more populous nation of China. At the start of the new year, the American penal system held more than 2.3 million adults. China was second, with 1.5 million people behind bars, and Russia was a distant third with 890,000 inmates. . . . Beyond the sheer number of inmates, America also is the global leader in the rate at which it incarcerates its citizenry, outpacing nations like South Africa and Iran." (p. 5.)
   Access the PEW Report.

Supreme Court Rules in Preemption Cases.
February 21, 2008. The U.S. Supreme Court has issued a ruling in Rowe v. New Hamphsire Motor Transport Assn., No. 06-457, holding the the Airline Deregulation Act preempted Maine's effort to impose requirements ensure that shippers make arrangements to have the identity of the recipient verified in order to reduce the shipment into the state of tobacco products that were ordered by minors over the Internet. Justice Breyer wrote for the Court and, although there were concurring opinions, there were no dissents.
    The Court also ruled yesterday in a preemption case involving a common law suit brought against a medical device manufacturer on a claim that a coronary catheter had failed. In an opinion by Justice Scalia, the Court ruled that the Medical Device Act preempted state actions to the extent that they involve requirements that are "'different from, or in addition to' the requirements imposed by federal law." Riegel v. Medtronic, Slip op. at 17. In this case, Justice Ginsburg wrote a dissenting opinion.
    Finally, the Court also found preemption in a case, Preston v. Ferrer, No. 06-1463, testing whether the Federal Arbitration Act "override[s] not only state statutes that refer certain state-law controversies initially to a judicial forum, but also state statutes that refer certain disputes initially to an administrative agency." Slip op. at 1-2. In an opinion by Justice Ginsburg, the held that: "when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative are superseded by the FAA." Slip op. at 2.
   Read the Rowe opinion.
   Read the Medtronic opinion.
   Read the Preston opinion.

D.C. Circuit Strikes Bush Administration EPA Mercury Policy
February 9, 2008. A three judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the Bush administration Environmental Protection Agency's policy for controlling mercury from power plants. State attorneys general or environmental agency directors from 17 states challenge the EPA removal of mercury emissions from direct regulation and substitution of a voluntary cap and trade program in 2005. 70 Fed. Reg. 28,606 (2005). The court found that EPA violated the Clean Air Act when it delisted mercury emissions from powerplants and ceased direct regulation of those emissions. The EPA argued, inter alia, that the agency had simply reversed an earlier agency finding and therefore the court should defer to agency's interpretation of the applicable Clean Air Act provisions. The D.C. Circuit panel answered that: "This explanation deploys the logic of the Queen of Hearts, substituting EPA's desires for the plain text of section 112(c)(9)." New Jersey v. EPA, Slip opinion, at 15.
   Read the opinion.

President Bush Issues a New and Controversial Signing Statement on Defense Authorization That Implicates US/Iraq Agreements for the Future
January 31, 2008. On January 28 President Bush issued a statement on signing H.R. 4986, the National Defense Authorization Act for Fiscal Year 2008. The brief statement points to four sections (841, 846, 1079, and 1222) of the new statute to which the president has constitutional objections, though, unlike many of the earlier signing statements, he did not indicate what it is about each of these sections that he found to be in violation of the Constitution or how those provisions violated the law. Section 841 creates a Commission on Wartime Contracting in Iraq and Afghanistan. Section 846 provides "protection for contractor employees from reprisal for disclosure of certain information." Section 1079 provides for required communication of information needed for oversight and legislative purposes to the Armed Services committees of both houses of Congress. The statement asserts a very broad sweep of executive authority on the basis of which the president asserts his objections, but does not specify which presidential constitutional power justifies his assertions with respect to the particular sections he cited. The statement does not specify which executive branch officials are to take or refrain from taking specific actions. However, it concludes: "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."
    The statement's objection to Section 1222 has drawn particular attention. That provision states: "No funds appropriated pursuant to an authority of appropriations in this Act may be obligated or expended for a purpose as follows: (1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq. (2) To exercise United States control of the oil resources of Iraq." The controversy over the president's objection to this section of the law is connected to a document issued by the White House in late November entitled "Declaration of Principles for a Long-Term Relationship of Cooperation and Friendship Between the Republic of Iraq and the United States of America." The agreement commits the U.S. to long-term commitments to, inter alia, "Supporting the Republic of Iraq in defending its democratic system against internal and external threats" and "Providing security assurances and commitments to the Republic of Iraq to deter foreign aggression against Iraq that violates its sovereignty and integrity of its territories, waters, or airspace." This and other language has been interpreted by members in Congress to provide a foundation for the establishment of permanent military bases in Iraq and Section 1222 rejects spending for that purpose. The agreement indicated that these principles are to provide the foundation for negotiations between the U.S. and Iraq on all of the subjects discussed in the document with the goal of more specific agreements by July 31, 2008. The administration does not characterize this document as a treaty that requires consultation with or ratification by Congress. The Subcomittee on International Organizastions, Human Rights, and Oversight of the House Foreign Affairs Committee, in cooperation with the Subcommittee on the Middle East and South Asis, is in the process of conducting hearings on these policy actions.
   Read the President's Signing Statement on H.R. 4986.
   Read the National Defense Authorization Act.
   Access the Declaration of Principles for a Long-Term Relationship of Cooperation and Freidnship Between the Republic of Iraq and the United States of America.
   Access Information on Subcommittee on Oversight hearings on the above policy actions.

President Issues Executive Order Aimed at Blocking Earmarked Appropriations
January 31, 2008. Following on his recent speeches against budget earmarks, President Bush has issued an executive order entitled "Protecting American Taxpayers From Government Spending on Wasteful Earmarks." Section 3(b) of the order indicates that the term earmark "means funds provided by the Congress for projects, programs, or grants where the purported congressional direction (whether in statutory text, report language, or other communication) circumvents otherwise applicable merit-based or competitive allocation processes, or specifies the location or recipient, or otherwise curtails the ability of the executive branch to manage its statutory and constitutional responsibilities pertaining to the funds allocation process." The order notes that it is to apply "all appropriations laws and other legislation enacted after the date of this order."
   Access the Executive Order.

Supreme Court Hears Oral Argument on Lethal Injections Cases
January 8, 2008. The U.S. Supreme Court has heard oral argument in the case questioning whether death by lethal injection, as administered presently using a three drug protocol, constitutes cruel and unusual punishment within the meaning of the Eighth Amendment to the Constitution. Baze v. Rees, No. 07-5439, comes to the Court from Kentucky. A number of other states have are operating under a self-imposed moratorium on the use of lethal injection, pending the Court's ruling in this case.
   Read the Oral Argument Transcript in .

House Passes Compromise Consolidated Appropriations Act for FY2008
December 18, 2007. The House of Representatives has passed H.R. 2764, the "State, Foreign Operations, and Related Programs Appropriations Act, 2008 (Consolidated Appropriations Act, 2008)." The file is very large since the bill is a very large document. The Senate has agreed to the bill but with additional amendments to address military spending for Iraq and Afghanistan. See below. For additional information, see the "THOMAS" appropriations bills status page also provided below.
   Consolidated Appropriations Act, 2008 as passed by House.
   Agreement by the Senate with Iraq/Afghanistan Military Spending Amendments.
   Access theTHOMAS Appropriations Legislation Status Page for FY2008.

FDA Science Advisory Panel Paints Bleak Picture of FDA Capacity to Protect Public
December 4, 2007. A subcommittee of the FDA Science Advisory Committee has issued a report that found that the scientific capacity of the Food and Drug Administration to do its job has been dramatically eroded by a lack of resources and support. "The Subcomittee concluded that science at the FDA is in a precarious position: The Agency sufferences from serious scientific deficiencies and is not positioned to meet current or emerging regulatory responsibilities. The Subcommittee found that the deficiency has two sources: [1] The demands on the FDA have soared due to the extraordinary advance of scientific discoveries, the complexity of the new products and claims submitted to FDA for pre-market review and approval, the emergence of challenging safety problems, and the globalization of the industries that FDA regulates. [2] The resources have not increased in proportion to the demands. The result is that the scientific demands on the Agency far exceed its capacity to respond. This imbalance is imposing a significant risk to the integrity of the food, drug, cosmetic and device regulatory system, and hence the safety of the public." FDA Science and Mission at Risk, p. 2
    Read the Science Advisory Board Report.

U.S. Court of Appeals for the Ninth Circuit Strikes Light Truck and SUV Average Fuel Economy Standards
November 14, 2007. A panel of the Ninth Circuit has rejected the Average Fuel Economy Standards for light trucks, including many SUVs, issued in 2006 by the National Highway Traffic Safety Administration (NHTSA). Challenges were brought by eleven states and a variety of other groups to the standards on the basis of the Energy Policy and Conservation Act of 1975 and the National Environmental Policy Act. The court held: "The Final Rule is arbitrary and capricious, contrary to the EPCA in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close the SUV loophole, and failure to set fule economy standards for all vehicles in the 8,500 to 10,000 gross vehicle weight rating ("GVWR") class. We also hold that the Environmental Assessment was inadequate and that Petitioners have raised a substantial question as to whether the Final Rule may have a significant impact on the environment." The court remanded the matter to NHTSA for new rules and required a full environmental impact statement. Center for Biological Diversity v. NHTSA, Slip opinion at 7-8.
   . Access the Ninth Circuit Opinion.

Bush Administration Creates Agency Performance Improvement Officers and Delegates Authority to OMB for Action
November 14, 2007. President Bush signed a new Executive Order 13,450 on November 13, creating Performance Improvement Officers in all executive agencies and also creating an executive branch-wide Performance Improvement Council. Among a substantial list of responsibilities, these PIOs are to "supervise the performance management activities of the agency," which raise some interesting questions about their relationship to the existing managers within executive agencies.
   . Access the Executive Order.

Federal Court Striks Bush Order Limiting Access to Presidential Papers
October 2, 2007. Judge Colleen Kollar-Kotelly has issued an opinion striking down restrictions on access to presidential papers provided by President George W. Bush in Executive Order 13233. Ruling in a case brought by the American Historical Association, the judge found that: "Executive Order 13,233 is contrary to the terms of the PRA [Presidential Recordings Act] and lacks a valid constitutional basis. The Court shall therefore declare that the Archivist's reliance on section 3(b) of Executive Order 13,233 is unlawful pursuant to the APA." The Court also found "the Archivist's reliance on section 3(b) to be arbitary, capricious, and contrary to law in violation of the Administrative Procedure Act )"APA"). American Historical Association v. National Archives and Records Administration, Slip opinion at 3.
   . Read the American Historical Association v. National Archives and Records Administration opinion.

D.C. Circuit Rules FBI Search of Representative Robinson's Office Violated Constitution
August 3, 2007. The United States Circuit Court of Appeals for the D.C. Circuit has ruled that the FBI violated the Constitution in searching Representative William J. Robinson's (D.-LA) office in May 2006. The D.C. CIrcuit panel wrote: "We hold that the compelled disclosure of privileged material to the Executive during execution of the search warrant for Rayburn Office Building Room 2113 violated the Speech or Debate Clause and that the Congressman is entitled to the return of documents that the court determines to be privileged under the Clause." United States of America v. Rayburn House Office Building, Slip opinion at 3.
   . Access the USA v. Rayburn Office Building opinion.

Senate Judiciary Committee Chair Votes Issues Subpoena for Karl Rove and J. Scott Jennings
July 26, 2007. Senator Patrick Leahy (D-VT) has issued a subpoena calling upon presidential advisors Karl Rove and J. Scott Jennings to appear before the Senate Judiciary Committee in connection with the committee's investigation into the firing of U.S. Attorneys. (See the item further down in this web page providing the previous exchanges of documents between the White House and the House and Senate Committees on the Judiciary.)
   . Read the Subpoenas and Letters from Leahy to Rove and Jennings.

House Judiciary Committee Votes in Favor of Contempt Citation Against Witnesses Who Refuse to Respond Under Claim of Executive Privilege
July 25, 2007. The House of Representatives Judiciary Committee has voted to recommend to the full House that a contempt of Congress resolution be adopted with respect to former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten in connection with subpoenas issued by the Judiciary Committee in the investigation of the firings of U.S. Attorneys. President Bush had previously invoked executive privilege to prevent these individuals from testifying. (See the item further down in this web page providing the previous exchanges of documents between the White House and the House and Senate Committees on the Judiciary.)
   . Read the Conyers Letter to White House Counsel and Report of the Judiciary Committee on Contempt Resolution.

D.C. Circuit Orders Disclosure to the Court and Defense Counsel of Information on Guantanamo Detainees
July 21, 2007. A panel of the Circuit Court of Appeals for the D.C. Circuit, in Bismullah v. Gates, has rejected arguments by the Bush administration that it need not turn over information concerning detainees facing tribunals in Guantanamo Bay, finding that the court needs that information to properly review the status review process and the detainees' attorneys require information to properly prepare their clients' arguments.
    In an opinion by Chief Judge Ginsburg, the panel held that: "In order to review a Tribunal's determination that, based upon a preponderanec of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as'such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,' which includes any information presented to the Tribunal by the detainee or his Personal Representative." (Slip Opinion, at 3. And, the Court said, "In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adopting a presumtion, as proposed by the petitioners, that counsel for a detainee has a 'need to know' the classified information relating to his client's case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information. The protective order also will provide that the Government may inspect correspondence from counsel to a detainee, including 'legal mail,' and redact anything that does not pertain to the events leading up to the detainee's capture and culminating in the conduct of his CSRT, including such events in between as bear upon the decision of the Tribunal or our review thereof. Finally, the protective order will provide that a lawyer offering his or her services may, as the petitioners propose, have up to two visits with a detainee in order to obtain the detainee's authorization to seek review of the CSRT's determination of his status." Id.
   . Read the Bismullah v. Gates opinion.

President Bush Issues a Number of Policies by Executive Order and National Security Directive
July 20, 2007. In addition to his recent use of a presidential proclamation to grant clemency in the Libby case, President Bush has taken other significant policy actions by presidential action recently.
   On July 20 the president issued a new executive order entitled "Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency," providing the president's interpretation of Common Article 3 and approving the program of interrogation techniques offered to him by the director of the CIA.
   Second, on July 17, the President issued an executive order entitled "Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq" that contains very open-textured language such that it may be some time before it is entirely clear what the White House intends with this order.
   These two orders come on the heels of the president's controverial National Security Presidential Directive (NSPD) 51 entitled National Continuity Policy which asserts executive authority to take steps the president decides are necessary to maintain what the directive terms "national essential functions" in the event of catastropic emergency. The term "Catastrophic Emergency" is defined in extremely broad terms and, according to the NSPD "means any incident, regardless of location, that results in extraordinary levels of mass casualties, damage, or disruption severely affecting the U.S. population, infrastructure, environment, economy, or government functions." These actions are worthy of careful reading, given the nature and scope of the language.
   . Read the "Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency" Executive Order .
   . Read the Blocking Property of Certain Persons Who Threaten Stabilization Efforts in Iraq .
   . Read NSPD 51 National Continuity Policy.

White House Rejects Demands for Testimony Under Oath in Hearings: Legal Battle Takes Shape Between Judiciary Committees and White House Over Executive Privilege
July 9, 2007. The chairs of the House and Senate judiciary committees issued subpoenas to the White House that have been met by a refusal to comply on grounds of executive privilege in a letter from the White House counsel. In committee chairs have, in return, issued demands for the bases supporting the claim and have indicating their intentions to pursue their legislative and legal options in response to executive privilege claims. On Monday, July 7, White House Counsel Fred Fielding, formally asserted executive privilege and notified the chairs of the Senate and House Judiciary Committees that their demands for testimony and other materials would be rejected. Links to the relevant documents in the matter, via the Washington Post and Judiciary Committee sites, are provided below
   .Read the Senate Judiciary subpoena to the Attorney General re the surveillance program.
   .Read the Senate Judiciary supoena to Josh Bolton for White House re surveillance program.
   .Read the Senate Judiciary subpoena to the National Security Council re surveillance program.
   .Read the Senate Judiciary subpoena to the David Addington (counsel to V.P. Cheney) re surveillance program.
   .Read the letter from White House Counsel, Fred Fielding, asserting executive privilege.
   .Read the letter from the Solicitor General to the White House, supporting the claim to executive privilege.
   .Read the attachments to the subpoenas detailing document and materials demanded.
   .Read the Letter from Senator Leahy and Representative Conyers in Response to While House Claim of Privilege.
   .Read the July 7 Letter from White House Counsel Fred Fielding.

President Bush Grants Executive Clemency to I. Lewis (Scooter) Libby
July 2, 2007. President Bush has granted executive clemency to I. Lewis Libby, who had been sentenced to 30 months in prison, 2 years supervised release, and a $250,000 fine. The grant of clemency leaves in place the other aspects of the sentence, but removes the 30 month imprisonment.
   . Read the president's grant of clemency.
   . Read the president's statement accompanying the grant of clemency.

GAO Report Shows Implementation of Legislation According to Presidential Signing Statement Direction
June 19, 2007. The U.S. Government Accountability Office has produced a report for Congress on a study of a limited number of recent presidential signing statements showing that the administration implemented according to the signing statement rather than the language of the statute. For a full set of relevant links to presidential signing statements, see the links below on this page under "The White House."
   Access the GAO Signing Statements Report.

Supreme Court Issues Global Warming and New Source Performance Standards Opinions
April 2, 2007. The U.S. Supreme Court has issued opinions in the global warming case, Massachusetts v. EPA, and the new source performance standards case, Environmental Defense v. Duke Energy. In the global warming case, a 5-4 majority concluded that EPA does have authority under the Clean Air Act to regulate greenhouse gas emissions that affect global warming and rejected the agency's claim that, even it did have authority, it also had discretion to refuse to undertake a standard-setting process. The Court concluded that it did not have the range of discretion that the agency suggested it had and that its actions in this case were arbitrary and capricious. The Court in the Duke Energy case found that the Court of Appeals had erred in the manner in which it had construed and reviewed the EPA regulations. It vacated and remanded for further proceedings.
    Read the Massachusetts v. EPA opinion.
    Read the Environmental Defense v. Duke Energy opinion.

President Bush Issues New Executive Order Adding Additional Constraints on Rulemaking by Administrative Agencies
January 23, 2007. President Bush has issued an executive order 13422, amending the existing order 12866 that sets requirements that executive branch agencies must meet over and above the requirements imposed by statute in order to issue administrative rules and governs Office of Managemnet and Budget clearance process that reviews rules proposed by agencies. The amendments make a variety of changes, among others including so-called guidance documents (generally referred to in administrative law as interpretive rules) in the OMB clearance process. No additional statement was provided by the White House at the time the new order was issued, but OMB Watch, an organization that monitors, analyzes and critiques OMB actions has issued a critical analysis of the new order.
   Read the new executive order.
   Read the OMB Watch Critique.

National Research Council Report Calls on OMB to Withdraw a Flawed Risk Assessment Bulletin
January 16, 2007. A panel of the National Research Council that has studied the 2006 draft OMB bulletin explaining to executive branch agencies how they are to understand risk assessment and how they are to incorporate it into their rulemaking processes has called on the OMB to withdraw the document as "fundamentally flawed." The chair of the panel indicated that: "We began our review of the draft bulletin thinking we would only be recommending changes, but the more we dug into it, the more we realized that from a scientific and technical standpoint, it should be withdrawn altogether. . . ." News Release. The full report is entitled Scientific Review of the Proposed Risk Assessment Bulletin from the Office of Management and Budget. The report finds that: "In several respects, the bulletin attempts to move standards for risk assessment into territory that is beyond what previous reports have recommended and beyond the current state of the science. Such departures from expert studies are of serious concern, because any attempt to advance the practice risk assessment that does not reflect the state of the science is likely to produce the opposite effect." Executive summary, p. 2. The risk assessment bulletin is part of a series of policy documents prepared by OMB to govern the making of rules by executive branch agencies that not only indicate what OMB considers best practice but also that are used by OMB in reviewing proposed rules.
    Read the National Research Council Press Release on the Report.
    Read the National Research Council Report Executive Summary.
    Read the full National Research Council Report.

Iraq Study Group Issues Report
December 6, 2006. The Iraq Study Group has issued its report calling for a variety of changes in U.S. policy and operations in Iraq.
    Read the Iraq Study Group Report.

USDA Animal and Plant Health Inspection Service and FDA Declare GMO Rice Safe After Unintended Release that was Found in US Rice Supply
November 25, 2006. The Animal and Plant Inspection Service of the U.S. Department of Agricuture yesterday issued a statement announcing the deregulation of a genetically modified form of rice that was discovered to have entered the U.S. rice supply last summer. The product, which had not been intended for commercial release, was found in rice at the consumer level. Arkansas rice famers have sued the company, Bayer CropScience, for damages they claim have come to their ability to sell their crops in the U.S. and abroad. The Food and Drug Administration has issued a statement declaring the product safe as well, though it did not go through the normal assessment process. The modified rice was intended to protect the grain from an herbicide used to kill weeds. The company has not indicated any intention to market the product.
    Access the FDA Statement on Rice.
    Read the Bayer CropScience Statement on the situation.
    Read the APHIS Statement on Deregulation of Rice.
    Read the APHIS Environmental Impact Assessment with a Finding of No Significant Impact.

New Jersey Supreme Court Insists on Rights and Benefits for Committed Same-sex Couples
October 25, 2006. The New Jersey Supreme Court has rejected on state constitutional ground the distinctions in the state's current marriage laws between married couples and committed homosexual couples. The Court was asked, in Lewis v. Harris, No. A-68-05, to determine whether the couples also should have a right to marriage, but the court ruled only on "whether those couples are entitled to the same rights and benefits afforded to married heterosexual couples." Slip Opinon at 48. The Court announced that: "We now hold that under the equal protection guarantee of Article I, Paragraph 1 of the New Jersey Constitution, committed same-sex couples must be afforded on equal terms the same rights and benefits enjoyed by married opposite-sex couples. Slip Opinion at 57. However, the Court left it for the state legislature to determine just how it would bring the state's policies into compliance. "The equal protection requirement of Article I, Paragraph 1 leaves the Legislature with two apparent options. The Legislature could simply amend the marriage statutes to include sam-sex couples, or it could create a separate statutory structure, such as a civil union, as Connecticut and Vermont have done." Id.
   Read the Lewis v. Harris opinion.

Bush Administration Continues Controversial Use of Presidential Signing Statements with the Statement on Signing of the Homeland Security Appropriations Act
October 5, 2006. Notwithstanding the continuing criticism of the broad use of signing statements, the White House has issued a statement on signing the Department of Homeland Security Appropriations Act that approves the legislation but asserts presidential authority to interpret and order implementation of a number of provisions of the law in ways that are at odds with the language of the bill. The statement also indicates an unwillingness to implement certain provisions as written on the claim that they intrude on "the President's exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief."
   The use of signing statements in this way has been the subject of continuing controversy and has resulted in congressional proposals for constraints as well as an American Bar Association resolution, approved in August, calling for action to stop the inappropriate use of these devices. Links to materials explaining this controversy are provided under the "White House" heading later on this page. Links to signing statements of this and other administration are provided under "Public Law Resources" later on this page.
   Read the Signing Statement on H.R. 5441.

GAO Estimates $600 Million to $1.4 Billion in Improper or Fraudulent Payments in the Wake of Katrina and Rita
June 14, 2006. The Government Accountability Office has released a report prepared for congressional testimony before the Subcommittee on Investigations of the House Committee on Homeland Security concerning improper and potentially fraudulent individual assistance payments issued following hurricanes Katrina and Rita. The report details really quite extreme situations, including undercover operations that demonstrated serious issues of management and lack of controls in this difficult setting.
   Read the GAO testimony.

House Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina Issues HIghly Criticial Report
February 15, 2006. A House of Representatives bipartisan investigating committee has issued a report that is highly critical of the federal government's preparation for and response to Hurricane Katrina.
   Read the Report.
   Access the appendices to the report.

Supreme Court Activity

Judge Sonia Sotomayor's Confirmation Hearings for Supreme Court Post Scheduled and Documents Published by Senate Judiciary Committee
June 18, 2009. Senator Patrick Leahy, Chair of the Senate Judiciary Committee, has announced that confirmation hearings on the nomination of Judge Sonia Sotomayor of the United States Court of the Appeals for the Second Circuit as an Associate Justice of the United States Supreme Court will begin on July 13. The committee has also announced that the hearings will be available live as a webcast.
   The Judiciary Committee has posted a large number of documents, including the questionnaire completed by Judge Sotomayor. The record available on the site includes the questionnaire, speeches, writings, and the record of her prior confirmation proceedings.
   Access Judge Sotomayor's Submissions.
   Read the Judiciary Committee announcement on the hearings.

New Materials Provide More of a Picture of Judge Samuel A. Alito
November 30, 2005. The nomination of Judge Samual A. Alito to succeed Justice Sandra Day O'Connor is attracting renewed attention now that more documents are available to supporters and critics of President Bush's choice. In particular, Alito's responses to the Judiciary Committee's questionnaire are now available as are materials recently released from other sources concerning his service during the Reagan administration. Currently a Judge of the U.S. Circuit Court of Appeals for the Third Circuit based in Philadelphia, a website has been developed by the Washington Post with some of his opinions and other documents.
   Read a Alito's Responses to Judiciary Questionnaire.
   Read a Brief Federal Judicial Center Bio Statement on Judge Alito.
   Read Alito opinion summaries via the Washington Post site.

Chief Judge John Roberts Begins New Term of Court After Confirmation
October 4, 2005. After the Senate Judiciary Committee and the full Senate voted to recommend confirmation of John G. Roberts, Jr. to replace William Rehnquist as Chief Justice of the United States. He has taken his seat and begun the October 2005 term. For those interested, there are sites with useful information on the new Chief Justice. The New York Times has published a transcript of the Judiciary Committee debate. See the link below. The hearings for his nomination to the D.C. Circuit are available at the links indicated below. Also, the New York Times has provided links to judicial opinions authored by Judge Roberts on the D.C. Circuit and a link to that New York Times resource is provided below. There are also links to his responses to Senate Judiciay Committee questions which include discussions of his litigation history, biographical information, and his current financial statement.
   Visit New York Times Transcript of Judiciary Committee Debate.
   Read the Congressional Hearings on his D.C. Circuit Nomination in 2003, Part I
   Read Part III of the Hearings
   Visit New York Times resource on Roberts opinions.
   Read Part I of Roberts' Responses to Judicial Committee Questions, via the New York Times link.
   Read Part II Roberts' Responses to Judicial Committee Questions, via the New York Times link.

Action in Other Courts

Federal District Court Rules in Roadless Forest Cases
September 20, 2006. Judge Elizabeth D. LaPorte of the U.S. Federal District Court for the Northern District of California has issued a ruling setting aside the so-called State Petitions Rule, issued by the Bush administration, and resinstating the Roadless Rule, issued by the Clinton administration. The Bush administration had issued the State Petitions rule, formally known as the State Petitions for Inventoried Roadless Area Management Rule, in May 2005, 70 Fed. Reg. 25654. The Clinton rule was entitled the Roadless Area Conservation Rule, 66 Fed. Reg. 3244 (2001). Judge LaPorte ruled that the State Petitions Rule violated both the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA), rejecting federal government arguments that the State Petitions rule was merely an administrative change that did not require environmental assessments and consultation under the NEPA and ESA. The court did not reach the question whether the issuance of the State Petitions Rule also violated the Administration Procedure Act.
   Read the opinion.

Federal District Court Rules Against Tobacco Firms in RICO Case
August 17, 2006. Federal District Judge Gladys Kessler issued a more than 1,600 page opinion finding that tobacco companies violated the Racketeer Influenced and Corrupt Organizations Act (RICO) statute in the making and selling of tobacco products. The federal government had brought the case in 1999, claiming that the firms had for many years been "engaging in a lengthy, unlawful conspiracy to deceive the American public about the health effects of smoking and environmental tobacco smoke, the addictiveness of nicotine, the health benefits from low tar, "light" cigarettes, and their manipulations of the design and composition of cigarettes in order to sustain nicotine addiction." Judge Kessler concluded that: "The following voluminous Findings of Fact demonstrate that there is overwhelming evidence to support most of the Government's allegations." United States v. Philip Morris, Slip opinion, at 1-2.
   Access Judge Keeler's final opinion.
   Read the Judgement and Remedial Order.

Federal District Court Blocks New Department of Defense Human Resource Management System
February 27, 2006. Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia ruled yesterday that portions of the new rules issued by the Department of Defense to implement its new human resource management system interfere with rights to collective bargaining and do not provide an "independent third party review of labor relations" determinations as required by statute. He has enjoined the implementation of portions of the regulations. Links to the opinion and the accompanying order are provided below. (As is sometimes true with such sites, it may work best to save the files before attempting to open them.)
   Read the opinion.
   Access the court's order.

U.S. District Court Strikes Dover School District Intelligent Design Policy
December 20, 2005. U.S. District Judge John E. Jones, III, of the U.S. District Court for the Middle District of Pennsylvania has issued an opinion striking down the Dover Area School District Intelligent Design policy as an establishment of religion in violation of the U.S. and Pennsylvania Constitutions. The policy, which provided in part that: "Students will be made aware of gaps/problems in Darwin's theory and of other theories of evolution including, but not limited to, intelligent design." Slip Opinion, p. 1. The case is Kitzmiller v. Dover Area School District, Case No. 04cv2688.
   Read the Opinion

U.S. District Court Orders Department of Interior to Disconnect Native American Trust Funds Data From the Internet
October 20, 2005. The United States District Court for the District of Columbia has ordered the Department of the Interior to disconnect any data associated with the Indian Trust Fund from Internet availability until system security problems are resolved. This is the latest in the ongoing battle over the DOI management of the trust fund (see report of other recent decisions later in this web page). Judge Lamberth's 205 page memorandum opinion carefully details the evidence in the case that DOI had failed to obey previous orders to ensure the security of those data. Lamberth found that: "Every Interior IT professional who was asked confirmed that there are serious, systemic problems with Interior's IT security program. . . . (Slip Opinion at 202)" and that these vulnerabilities "threaten, directly or indirectly, the confidentiality, integrity, and availability of individual Indian Trust data (171)."
   Read the October 20 Cobell v. Norton Memorandum Opinion. NOTE: It may work best to download the file before attempting to open it.
   Read the October 20 Order

U.S. District Court Files Latest Order Critical of Department of Interior's Handling of Native American Trust Funds
July 12, 2005. U.S. District Court for the District of Columbia judge Royce Lamberth has issued the latest in the nearly decade long battle to ensure that a full accounting is provided for Native American Trust Funds and that benefits are properly paid. The Court issued a blistering criticism of the federal government's handling of the trust funds and, in response to a motion from the plaintiffs in this class action suit, required the Department of the Interior to inform trust account holders that information provided by those governments "may be unreliable."
   Read the July 12 Cobell v. Norton Memorandum Opinion
   Read the July 12 Order

The White House

Transition Resources Grow with Addition of Obama Administration Transition Website and Others
November 8, 2008. The range of transition materials that are now available is increasing rapidly, most recently with the addition of the Obama transition team website. The link is provided below.
   The Presidential Transition Act of 2000 (P.L. 106-293) called upon the General Services Administration and the National Archives to cooperate on the development and operation of a presidential transition website. The link is provided below.
   The Senate Committee on Homeland Security and Governmental Affairs has produced the 2008 edition of United States Government Policy and Supporting Positions, better known as the "Plum Book," which lists the positions requiring political appointment. The link is provided below.
   There are a number of other resources available. President Bush issued an executive order on October 9 entitled "Facilitation of a Presidential Transition" which identifies responsibilities for members of the current administration. In late September, the Subcommittee on Government Management, Organization, and Procurement held hearings entitled "Passing the Baton: Preparing for Presidential Transition." The White House Transition Project, which is not a governmental organization, but an organization that seeks to be a clearing house for transition information, maintains a website with materials on transition. Access these items at the links below.
   The U.S. Government Accountability Office has created a new transition resource which is a website aimed at indentifying key issues and challenges for the presidential and congressional transitions. The page provides information on what GAO considers urgent issues, agency by agency issue agendas, management challenges, long term fiscal challenges, and suggested areas for cost-cutting.
   Access the Obama transition website
   Read the Executive Order on "Facilitation of a Presidential Transition."
   Access the witness list and prepared statements for the House Subcommittee on Government Management, Organization, and Procurement hearing "Passing the Baton: Preparing for the Presidential Transition."
   Access the White House Transition Project Website. NOT A GOVERNMENTAL SITE
   Access the GAO Transition Website
   Access the GSA Transition Website
   Access the "2008 Plum Book."

White House Announces FY2009 Budget Proposal
February 4, 2008. The president has presented his FY2009 Budget proposal to Congress.
   The President and the Director of the Office of Management and Budget have once again indicated that there are 151 programs that have been marked for elimination or serious reduction which the White House asserts will save $18 billion ("Overview of the President's 2009 Budget, p. 7"). The OMB has not yet released a "major savings and reforms" document as it did the last three years. In the past program major cuts cuts or eliminations were explained in terms of performance ratings from the Program Assessment Rating Tool (PART) process. The OMB summary spreadsheet listing the ratings for all programs is also provided below.
    The OMB has a website that provides more complete and detailed information on PART assessments for agencies and programs. Entitled ExpectMore.gov, the site provides listings of programs that are "performing," programs that are described as "not performing -- which includes both those rated as "ineffective" and those listed as "results not determined." CAUTION In order to understand the ratings, it is essential not to stop with the summary assessment, but to drill down into the actual rating document for any given program, the links to which are provided on the ExpectMore.gov page.
    Because there is usually a great deal of interest, the page normally provides links to the expanded budget summaries for the Departments of Education and Health and Human Services and links to those documents are provided below.
    Access Full Budget Documents.
    Analytical Perspectives, Budget of the United States Government, Fiscal Year 2009.
   Access the Major Savings and Reforms Document for FY09.
    Access OMB PART Summary Ratings by Program.
    Access ExpectMore.gov for Detailed PART Assessments.
   Access the U.S. Department of Education, Fiscal Year 200 Budget Summary and Background Information TBA.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2009 Budget-in-Brief. TBA

ABA House of Delegates Adopts Report of the Task Force Critical of Abuses of Presidential Signing Statements
August 8. 2006 The American Bar Association House of Delegates approved the report of the Task Force on Presidential Signing Statements and the Separation of Powers. The report examined abuses of presidential signing statements and called for change in the behavior from the White House, action by Congress to defend the separation of powers, and the availability of judicial review.
   Read the ABA Task Force Report Adopted as Resolution 304. THIS COPY HAS FORMAT ERRORS CREATED WHEN UPLOADED TO THE WEB.
   Read the original ABA Task Force Report.
   View the ABA House of Delegates Debate.

Constitution Project Issues Statement Critical of Abuse of Presidential Signing Statements
June 27, 2006. The bipartisan Contitution Project's Coalition to Defend Checks and Balances issued a statement that was presented to Senator Spector at the time of Senate hearing on signing statements critical both of the White House for its use of signing statements and of the Congress for failure to address the problems. The statement begins: "We are members of the the Constitution Project's Coalition to Defend Checks and Balances. We are former government officials and judges, scholars, and other Americans who are deeply concerned about the risk of permanent and unchecked presidential power, and the accompanying failure of Congress to exercise its responsibility as a separate and independent branch of government." The group also provided a memorandum on the subject that supported the statements prepared by attorneys at Covington & Burling. The memorandum by David H. Rmes, Gerard J. Waldron, anf Shannon A. Lang, is entitled "Presidential Signing StatementsL Will Congress Pick Up the Gauntlet?
   Read Constitution Project Statement on Presidential Signing Statements.
   Read the Covington & Burling Memorandum on Signing Statements.

Battles Take Shape Over Presidential Signing Statements
January 5, 2006. After announcing that the White House had reached a compromise with Senators led by John McCain (R-AZ) on prohibition of torture of subjects in U.S. control, the White House has issued a presidential signing statement that effectively says the White House reserves the power to make exceptions to the language of the statute. That same signing statement on the DOD appropriations bill, issued December 30, rejects the stipulation added by Senator Carl Levin (D-MI) that would leave active pending judicial challenges brought by detainees at Guantanamo. The Justice Department has announced its intentions to move to stop all pending cases. At about the same time, the Washington Post published a piece indicating that Samuel Alito wrote a memorandum supporting the use of presidential signing statements while in the Reagan Justice Department in February of 1986 which appears likely to lead to further questions about the Supreme Court nominee's views on separation of powers at the confirmation hearings scheduled to begin on Monday. Senator Levin issued a press release denouncing the signing statement and the administration's stated intention to move to stop pending Guantanamo case. Senators McCain and Warner also issued a brief statement reacting to the signing statement escape clause with respect to the anti-torture provisions. At the suggestion of some of those interested, I include a link to my article in the Presidential Studies Quarterly on signing statements in the Bush II administration.
   Read the Alito Memorandum.
   Read the Presidential Signing Statement on H.R.2863.
   Read the Levin Response to the Signing Statement.
   Read the McCain and Warner Response.
   Access Phillip J. Cooper, George W. Bush, Edgar Allan Poe, and the Use and Abuse of Presidential Signing Statements.

Bush Administration Moves to Constrain Alternatives to Standard Regulations
January 3, 2006. Quiety, just before the holidays, the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget (OMB) issued a "Proposed Bulletin for Good Guidance Practices" which sets out procedural requirements for the issuance of guidance documents issued by administrative agencies. Since this White House and its recent predecessors have made the rulemaking process increasingly burdensome, a number of agencies have sought to use various types of guidance documents to meet their statutory obligations and enhance effective implementation of policy without becoming bogged down in rulemaking constraints under existing executive orders and OMB regulatory review processes. The proposed bulletin would effectively require a process like notice and comment rulemaking with regulatory analysis and review a requirement for guidance documents as well as substantive rules. The proposed bulletin was posted the day before Thanksgiving with comments required two days before Christmas. The comment period has since been extended to January 9.
   Read the Proposed OMB Bulletin on Guidance Documents
   Access the OIRA regulatory affairs site

Bush Administration uses PART process as key feature of budget plans.
OMB has published the Program Assessment Rating Tool (PART) summaries by agency and, within that, by program. This is the basis for the White House assertion that major program cuts and changes had to be made in the FY2006 budget proposal to reflect results -- or the lack of them -- from existing operations.
   Program Assessment Rating Tool Summaries by Agency and Program
   Access the PART and Related Instructions

Office of Management and Budget Publishes Regulatory Analysis Requirements
The OMB issued Circular A-4 on September 17, 2003, setting forth the Regulatory Analysis requirements executive branch agencies are to meet when promulgating rules.
   Read Circular A-4

OMB Issues Report Under Bush Regulatory Change Policy
The Office of Management and Budget has issued its report entitled "Stimulating Smarter Regulation." This report to Congress follows on the Administrations 2001 report setting out the developing Bush Administration policy on regulation. While it was clear that the orginal policy was expected to move the deregulatory policy forward, the events of 9/11 meant a variety of new regulations, some based in statute and others initiated administratively from the White House and cabinet agencies.
   Access "Simulating Smarter Regulation"
   Access the 2001 Report

Bush Administration Sets Forth President's Management Agenda
The Office of Management and Budget has published the President's Management Agenda which announces the guiding principles, programs, and changed procedures to be used by Bush administration officials in their effort to reshape the federal government.
   Read the Agenda

The Congress

Thomas Provides Information on FY 2009 Appropriations Legislation
    NOTE: At this point, the chart still provides the information on the FY08 appropriations, but it will be updated shortly to reflect the pending bills for FY09. See also the FY2009 first budget resolution below.
   Check Reference Information on FY2009 "Appropriations Legislation."

Congress Passes FY2009 First Budget Resolution
July 1, 2008.Congress has adopted the first budget resolution, S. Con. Res. 70 setting targets for the Fiscal 2009 appropriations bills.
   Read the Budget Resolution.

Fiscal Year 2008 Budget Passed As Consolidated Appropriations Bill
January 10, 2008. The Congress passed and President Bush has signed a lengthy consolidated appropriations bill to address the large number of unresolved appropriations bills for FY2008 still pending at the end of December. (Note: This is a large file, over 600 pages in document length.)
   Access P.L. 110-161.

Public Law Resources -- See Main Page

General Legal Research Sites -- See Main Page