Public Law

Public Law, Policy, and Public Administration -- Archives

What's New? Archives -- 2006 to June 30, 2021

Government Accountability Office Issues Another Key Report on Artificial Intelligence Focused on Issues of Accountability
June 30, 2021. The U.S. Government Accountability Office has issued a new report on Artificial Intelligence (AI) focused on issues of accountability. This follows another report issued yesterday on concerns with the use of facial recognition technology. Today's report is entitled "Artificial Intelligence: An Accountability Framework for Federal Agencies and Other Entities." The report grew out of an experts' forum convened by GAO as well as interviews by GAO staff with agencies and inspectors general. It is considerably longer and more fully developed than many GAO reports to Congress, running just over a hundred pages. The GAO summarized the work product this way: "To help managers ensure accountability and responsible use of artificial intelligence (AI) in government programs and processes, GAO developed an AI accountability framework. This framework is organized around four complementary principles, which address governance, data, performance, and monitoring. For each principle, the framework describes key practices for federal agencies and other entities that are considering, selecting, and implementing AI systems. Each practice includes a set of questions for entities, auditors, and third-party assessors to consider, as well as procedures for auditors and third- party assessors." GAO Report Announcement.
   For information on GAO's facial recognition programs report issued yesterday and key documents, see the Civil Rights page of this website.
   Read the "Artificial Intelligence: An Accountability Framework for Federal Agencies and Other Entities" Report.
   Access the Webpage on the Artificial Intelligence Report.

Supreme Court Rejects Third Major Challenge to the Affordable Care Act
June 18, 2021. Justice Breyer, writing for a 7-2 majority of the U.S. Supreme Court, has written that the states that brought the third major round of challenges to the Court lacked standing. Justices Alito and Gorsuch dissented.
Read the Opinion in Calfornia v. Texas.

Federal District Court Dismisses Challenge to Texas Medical Center COVID-19 Immunization Requirement
June 14, 2021. Judge Lynn N. Hughes of the U.S. District Court for the Southern District of Texas has dismissed a challenge brought by employees of the Houston Methodist Hospital and Houston Methodist The Woodlands Hospital who sought to overturn their employers' requirement that they receive vaccination against COVID-19. Judge Hughes rejected as "false" the claim that the vaccines are "experimental and dangerous." Bridges v. Houston Methodist Hospital, Order on Dismissal, at 1. The judge also rejected Bridges' claim that "the injection requirement violates public policy." Judge Hughes responded that: "The U.S. Supreme has held that (a) involuntary quarantine for contagious diseases and (b) state imposed requirements of mandatory vaccination do not violate due process." Id. at 2.
Read the Order on Dismissal.

Biden Administration Releases FY 2022 Budget Materials
May 28, 2021. The White House released the President's budget request for FY 2022 today. The Office of Management and Budget released the the budget proposal and the "fact sheets," . . . . other key documents include the "Major Savings and Reforms for FY 2022" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds. Those materials have now been released and all of the key budget documents are posted below.
   Download the FY 2022 Budget proposal as a single .pdf document, including the President's Message to Accompany the FY 2022 Budget.
   Download the FY 2022 Budget Facts Sheet.
   Access the FY2022 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY 2022 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the FY 2022 Federal Credit Supplement (information on direct loans and loan guarantees by the Federal Government.
   Access the FY 2022 Supplemental Materials website, including Federal Credit Supplement and other items.
   Access the U.S. Department of Education, Fiscal Year 2022 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2022 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2022 Budget-in-Brief.

Under Court Order the U.S. Justice Department Releases Part of 2019 Memo on Whether to Prosecute then President Trump Following Special Counsel Report, but Appeal is Pending as to the Full Document
May 25, 2021. Purusant to a federal district court ruling by Judge Amy Berman Jackson, the U.S. Department of Justice released yesterday portions of a March 24, 2019 memorandum to the Attorney General concerning whether a prosecution of then President Trump was warranted following the Special Counsel's report on Russian interference in the 2016 presidential election. However, the Justice Department is pursuing appeals with respect to the ruling that rejected DOJ claims that the document was exempt from disclosure under exemption 5 of the Freedom of Information Act. As Judge Berman Jackson indicated, Exemption 5 of the FOIA "bars disclosure of 'inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.' 5 U.S.C. § 552(b)(5)." Citizens for Responsibility and Ethics in Washington (CREW) v. U.S. Department of Justice, Case 1:19-cv-01552-ABJ, May 3, 2021, Memorandum Opinion at 10. AND ETHICS IN WASHINGTON
Read the District Court Memorandum Opinion of May 3.
Read the Redacted Memo as Released on May 24, 2021.

Supreme Court Agrees to Hear Mississippi Abortion Case
May 18, 2021. The U.S. Supreme Court yesterday granted certiorari in the case of Dobbs v. Jackson Women's Health Organization, No. 19-1392, to review the decision of the Fifth Circuit striking down a new Mississippi statute dramatically limiting a woman's right to obtain an abortion, a statute intentionally created in order to encourage the Court to reconsider its rulings in the Roe v. Wade, 410 U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992). In its order granting certiorari, the Court indicated that its review would be "limited to Question 1 presented by the petition." That issue is "Whether all pre-viability prohibitions on elective abortions are unconstitutional." Petitioner for Certiorari at (i).
   The case has already attracted many amicus curiae briefs and will certainly have a great many more as the case moves to a hearing on the merits in the fall. The Supreme Court docket sheet with links to all filings in the case is posted below.
   Read the Court's order granting certiorari "limited to Question 1 presented by the petition."
   Read the Petition for Certiorari.
   Read the Brief in Opposition to the Petition for Certiorari.
   Read Mississippi House Bill No. 1510 of December 2018, the Statute Challenged in Dobbs v. Jackson Women's Health Organization.
   Read the Fifth Circuit Opinion in Jackson Women's Health Organization v. Dobbs of December 13, 2019, Now Under Challenge in the U.S. Supreme Court.
   Access the Supreme Court Docket Sheet for Dobbs v. Jackson Women's Health Organization, No. 19-1392.

EPA Moves to Rescind Trump Administration EPA Rule on Cost/Benefit Calculations for Clear Air Regulation
May 13, 2021. The Environmental Protection Agency today announced that it was taking action to rescind the Trump administration's rule changing cost/benefit calculations for policies issued under the Clean Air Act that made it substantially more difficult to justify regulation. For more information and the key documents, see the Sustainable Development page of this website.

President Biden Executive Order Mandating $15 Minimum Wage for Federal Contractor Employees
April 27, 2021. President Biden issued Executive Order to "increasing the hourly minimum wage paid by the parties that contract with the Federal Government to $15.00 for those workers working on or in connection with a Federal Government contract."
Read the Order.

Biden Administration Hosts Leaders Virtual Summit on Climate
April 25, 2021. President Biden, together with the Vice President, Secretary of State, and the Special Envoy on Climate, hosted a two-day virtual summit on climate this week. The summit sought to have leaders from a variety of nations around the world dedicate themselves to new and more aggressive targets [(Nationally Determined Contributions (NDCs)] under the Paris Climate Accords ahead of the COP 26 conference to be held in Glasgow on November 1-12. In addition, the summit focused on the need for commitments needed to ensure effective implementation of those targets, including financing. For the U.S. the President promised that the U.S. will cut carbon emissions in half by 2030 and to be "net neutral" by 2050 in the global effort to stay within the global warming target of 1.5° Celsius. However, although he recognized that the largest economies have a special obligation to take serious action, he also pointed out that the U.S. is responsible for 15% of global carbon emissions.

White House Releases a Preliminary Version of the President's FY 2022 Budget
April 11, 2021. The White House has released what the Biden administration has termed the "President's Fiscal Year 2022 Discretionary Funding Request." Normally, the President's budget is released in February, but in the past few years that has varied significantly. It is not unusual for an incoming president to issue budget materials later than normal, particularly where there are major changes from a previous administration's expectations. In this instance, the White House has issued the basic budget request, which states the administration's goals and expectations in broad terms, as compared to the fully developed budget.
   In releasing this document, the Biden White House Office of Management and Budget indicated that the administration would issue the full budget documentation "later this spring." Those materials will be posted here as soon as they are available. Those materials usually include a "Major Savings and Reforms for FY 20__" document, the "Analytic Perspectives" document, which provides the economic and policy assumptions behind the budget, and the "Appendix," which is the document that contains the very detailed information on agency budgets and funds. There is also usually a "fact sheet" which summarizes broad major spending changes agency-by-agency.
   It is also normal for executive branch agencies to issue what are generally called budget-in-brief documents, which detail program-by-program spending changes, immediately after the full formal presentation of the budget documents by OMB. The budget-in-brief documents for the Departments of HHS, Education, and EPA will be posted here once they are available.
   The President's Budget and related documents for previous years are available online. See the posting below.
   Read the "President's Fiscal Year 2022 Discretionary Funding Request."
   Read the White House Press Release to Accompany the "President's Fiscal Year 2022 Discretionary Funding Request."
   Access Budget Documents for Previous Years.

New Treasury Secretary Issues Financial Report of the United States Government
April 12, 2021. Secretary of the Treasury Janet Yellen has released the Financial Report of the United States for FY20. The department publishes the report annually. The Government Accountability Office publishes a guide to understanding the financial report and the Congressional Research Service has provided a brief "primer" on "Federal Financial Reporting." The CRS published a more fully developed report on the subject in 2013 which remains a useful resource yet today.
   Read the FY 2020 Report.
   Access the Financial Report of the U.S. Government website
   Access the GAO Guide to the Financial Report
   Read the Congressional Research Service's Report, "Federal Financial Reporting" Federal Financial and Budgetary Reporting: A Primer," 2020
   Read the Congressional Research Service's Report, "Federal Financial Reporting" (A 2013 report, but still a useful resource.)

Biden-Harris Administration Announces Actions to Address Gun Violence, but Relies on Executive Departments Rather than Executive Orders or Memoranda
April 8, 2021. President Biden and Vice-President Harris yesterday announced policy actions to address gun violence, but notably did not, at this point at least, indicate any intention to use executive orders or presidential memoranda to do that work. The White House issued two "Fact Sheets" laying out the administration's proposed steps to address gun violence in addition to his previous requests to Congress to enact legislation in that area. The two documents were (1) "Fact Sheet: Biden-Harris Administration Announces Initial Actions to Address the Gun Violence Public Health Epidemic" and (2) "Fact Sheet: More Details on the Biden-Harris Administration's Investments in Community Violence Interventions." In addition to the discussion of the legislative proposals, the two fact sheets address planned actions by the Departments of Justice, Health and Human Services, Housing and Urban Development, and Education.
Read the "Fact Sheet: Biden-Harris Administration Announces Initial Actions to Address the Gun Violence Public Health Epidemic."
Read the "Fact Sheet: More Details on the Biden-Harris Administration's Investments in Community Violence Interventions."

New Mexico Passes New Civil Rights Act Addressing Qualified Immunity Issues
April 8, 2021. New Mexico Governor Michelle Lujan Grisham has signed HB 4, the New Mexico Civil Rights Act, into law this week, barring state or local officals from using the qualified immunity defense in any suit brought under this state statute. This bill was enacted at the 2021 special session of the legislature following a report issued in November of 2020 by the New Mexico Civil Rights Commission, a body created by the legislature and governor in the summer of 2020 following the killing of George Floyd in Minnesota. For more information and key documents, see the Civil Rights page of this website.

Biden Administration Releases Fact Sheet on Its Major Infrastructure and Jobs Package
March 31, 2021. The Biden administration today released a fact sheet laying out the major elements of what it terms "The American Jobs Plan," which has an an important core the major infrastructure package the president had promised before taking office. It also contains other provisions aimed specifically at labor related issues.
Access the Fact Sheet.

GAO Issues a New Program Evaluation Key Terms and Concepts Resource
March 22, 2021. The Government Accountability Office (GAO) has issued a new document, Program Evaluation: Key Terms and Concepts. As GAO notes: "This product updates our previous glossary (GAO-11-646SP) to highlight different types of evaluations for answering questions about program performance, as well as relevant issues to ensure study quality. As agencies identify the key questions they will address in their Evidence-Building Plans (Learning Agendas) and Annual Evaluation Plans, they may consult guidance provided by the Office of Management and Budget (OMB). This glossary can help agency officials better understand fundamental concepts related to evaluation and enhance their evidence-building capacity."
Access the Key Terms and Concepts Resource

House Concurs with Senate on Biden Administration's COVID-Relief Package
March 10, 2021. The House today voted today 220-211 to approve the Biden administrations relief packaged, H.R. 1319 the American Rescue Plan Act of 2021, as amended by the Senate.
Read the H.R. 1319 as Amended by the Senate

NAACP Files Suit on Behalf of Representative Thompson Against Trump, Giuliani, Proud Boys, and Oath Keepers After Storming of U.S. Capitol Based on 1871 Civil Rights Statute
February 17, 2021. The NAACP announced yesterday that it filed suit in the U.S. District Court for the District of Columbia on behalf of Representative Bennie G. Thompson (D, MS.), alleging that these individuals and groups conspired to prevent Thompson and others from carrying out their officials duties with respect to counting the electoral college votes on January 6 in violation of the Ku Klux Klan Act of 1871, 42 U.S.C. § 1985(1). For more information and documents, see the Civil Rights page of this website.

Prosecutors and Defense File Key Documents Ahead of Impeachment Trial to Begin in the Senate Tomorrow
February 8, 2021. The Senate trial on the second impeachment of President Donald Trump begins tomorrow. House of Representatives' prosecutors have filed their trial memorandum in the matter and Mr. Trump's attorneys have filed their answer. Today Mr. Trump's lawyers filed their trial brief. The impeachment trial follows the passage of the impeachment resolution H. Res. 24 in the House of Representatives on January 13, charging the president with incitement of insurrection.
   News reports indicate that the Senate majority and minority leaders have reached agreement on a resolution posted below in its current form that sets forth the trial process.
   Read the House Prosecutors' Trial Memorandum
   Read President Trump's Attorney's Answer.
   Read President Trump's Attorney's Trial Brief.
   Read the Reply by the House Impeachment Managers (filed February 8) to President Trump's Answer to the Charges.
   Read H. Res. 24 as Engrossed.
   Read the Senate Impeachment Trial Resolution Setting Forth the Process.

House Considers Resolution to Remove Representative Marjorie Taylor Greene from Her Committee Assignments
February 4, 2021. The House of Representatives is considering today H. Res. 72 that states in part: "Marjorie Taylor Greene should be removed from her committee assignments."
Read the full text of H. Res. 72.

Biden Administration Issues National Strategy for COVID-19 Pandemic Response
January 21, 2021. The Biden Administration today published its National Strategy for COVID-19 Response and Pandemic Preparedness.
Read the Strategy.

White House Websites Change as President Biden Takes Office
January 20, 2021. As a new president takes office, it is now standard for the incoming administration to immediately take down its predecessor's website and load its own site. That has happened today. The new Biden Administration page is found below as is the archived Trump White House site. Also, the National Archives has a page with information about other archived Trump administration sites.
   Access the Biden Administration homepage.
   Access the Archived Trump White House Website.
   Access the National Arhives Site on the Archived Trump Websites.

Last Round of Pardons Expected as President Trump Prepares to Leave Office
January 17, 2021. President Trump, like other chief executives before him, is expected to issue pardons before leaving office on January 20. According to the Department of Justice listing, Mr. Trump had issued 70 pardons as of December 23, with 42 of those coming from November 25 on. (There may be other cases not yet posted on the DOJ list.) Pardons are primarily administered through the Office of the Pardon Attorney in the U.S. Department of Justice.
   The Congressional Research Service has provided a number of reports on the subject of pardons in response to questions from legislators that frequently arise at the point of presidential transitions.
   Read the January 2020 CRS Report "Presidential Pardons: Overview and Selected Legal Issues."
   Read the November 2020 CRS Report "Presidential Transitions: Executive Clemency."
   Read the July 2016 CRS Report "The President's Pardon Power and Legal Effects on Collateral Consequences."
   Access the DOJ Office of the Pardon Attorney FAQs.
   Read DOJ List of Pardons Granted by President Trump.

Justice Department Opinion and Other Sources on Self-Pardon
January 17, 2021 [Updated Item Originally Posted January 13.]. Now that the House has voted to impeach Mr. Trump again and as President Trump's term of office is nearing an end, there has been discussion of a possible self-pardon by the president as well as the likelihood of pardons of others which has drawn attention to a 1974 memorandum opinion issued by the Department of Justice Office of Legal Counsel on August 5, 1974. That opinion, Presidential or Legislative Pardon of the President, 1 Op. O.L.C. Supp. 370 (1974), begins with a statement that: "Under the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself." Id. at 370.
   The Congressional Research Service issued a report entitled "Presidential Pardons: Overview and Selected Legal Issues" on January 14, 2020, prepared by Michael A. Foster, that addresses the question of self-pardon briefly. It does provide a variety of citations to commentary and opinion on the question. Id. at 13-14. The CRS also issued a "Legal Sidebar" report entitled "Presidential Pardons: Frequently Asked Questions" in August 2017 that discusses the subject briefly as well.
   One of the widely cited pieces on the subject was a Note in the Yale Law Journal written by Brian C. Kalt, entitled "Pardon Me?: The Constitutional Case AgainstPresidential Self-Pardons" which, as the title indicates, argues against a self-pardon power.
   Read the DOJ Office of Legal Counsel Opinion on Pardon of the President.
   Read the 2020 "Presidential Pardons" CRS Report.
   Read the 2017 CRS Pardons FAQ Document.
   Read the Kalt Article.

House Impeaches President Trump for the Second Time
January 17, 2021. The House of Representatives voted to impeach President Trump on January 13 by a vote of 232-197. The resolution has not yet been presented to the Senate for trial. That trial will be conducted after Mr. Trump leaves office on January 20.
   The Congressional Research Service has published two reports on impeachment of particular relevance to the pending process. The first is a report on "The Impeachment Process in the Senate," published in January 2020, and the most recent item is a report on "The Impeachment and Trial of a Former President," published on January 15, 2021.
   Read H. Res. 24 as Engrossed.
   Read the CRS Report on The Impeachment Process in the Senate.
   Read the CRS Report on The Impeachment and Trial of a Former President.

House Begins Debate on the Resolution of Impeachment
January 13, 2021. The House of Representatives has begun debate on the H. Res. 24 "Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors."
Read H. Res. 24 as Debated today.

House Judiciary Committee Issues Impeachment Report
January 12, 2021. The House Judiciary Committee has issued its report on impeachment with the full house scheduled to vote on the resolution of impeachment tomorrow.
Read the House Judiciary Committee Report on H. Res. 24 January 12, 2021.

Speaker of the House Announces Next Step in Reponse to President's Conduct in Office
January 11, 2021. Speaker of the House Nancy Pelosi has announced in a letter to representatives the planned steps in the attempt to remove President Trump from office, following the insurrection at the Capitol last week and other actions. Her letter indicates that they will bring to the floor today the resolution calling upon Vice President Pence to start the process under the Twenty-Fifth Amendment to remove the president from office. (Now introduced as H. Res. 21.) It then indicates an intention to introduce the article of impeachment authored by Representatives David Cicilline (D.RI), Jamie Raskin (D.MD), Jerrold Nadler (D.NY), and Ted Lieu (D.CA), charging President Trump with "incitement of insurrenction."
   Read the H. Res. 21 Calling for Invocation of the Twenty-Fifth Amendment.
   Read the Article of Impeachment Introduced Today.
   Read the Speaker's Letter to the Democratic Caucus on Next Steps.

House Members Developing Article of Impeachment
January 8, 2021. The majority party members in the House of Representatives have a draft article of impeachment, charging the president with "Incitement of Insurrection" they are preparing to introduce as early as the beginning of next week. This action comes in the wake of Wednesday's assault on the U.S. Capitol.
Read the Draft Article of Impeachment.

Congressional Research Service Publishes Concise Report on Congressional Counting of Electoral Votes
December 30, 2020. In preparation for the January 6th convening of Congress for the purpose of formally counting the electoral votes in the presidential election, the Congressional Research Service earlier this month issued an updated version of its very concise report (10 pages) entitled "Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress." The report details the process by which that session of Congress is to be conducted under Article Article II, Section 1, and Amendment 12 of the Constitution and the Electoral Count Act of 1887 as amended in 1948. Sections 15-18 of Title 3 of the U.S. Code set forth the process for the counting of electoral votes and the manner of dealing with objections during the Joint Session of Congress on January 6, 2021.
Read the CRS Report.
Read the 3 U.S.C. §§15-18.

President Trump Has Signed the Consolidated Appropriations Act 2021, Containing COVID Relief Package
December 28, 2020. The president last night signed H.R. 133, the Consolidated Appropriations Act, 2021 which contains what is being called the COVID-19 package. The bill in its enrolled form is some 2,124 pages in length and was approved by 92-6 in the Senate and 359-53 in the House. The bill was presented to the president on December 24, but he did not sign it until Sunday evening.
Read the Enrolled Bill.

Third Circuit Rejects Appeal in Pennsylvania Elections Case
November 27, 2020. Judge Stephanos Bibas of the Third Ciruit wrote an opinion for a unanimous panel of that court rejected an appeal by the Trump campaign in Donald J. Trump for President v. Secretary of State of Pennsylvania, challenging to presidential elections results in Pennsylvania. He began the opinion: "Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
Read the Opinion.

Sharply Divided Surpreme Court Rules Against New York Governor on Some COVID Restrictions on Places of Worship
November 27, 2020. In a highly unusual move, a sharply divided Supreme Court has issued an injunction in a case brought by religious organizations seeking to block a COVID-199 order issued by New York's governor limiting the size of attendance at religious events. The Court issued a per curiam in Roman Catholic Diocese of Brooklyn v. Cuomo, but went beyond the usual brief statement of decision to explain in a manner more common in a fully developed opinion for the Court that the plaintiffs had demonstrated the likelihood of success on the merits of their claim against the governor, justifying an injunction. Justices Kavanaugh and Gorsuch each issued concurring opinions. Chief Justice Roberts wrote a strong dissent, arguing at the outset that there was absolutely no need for the Court to act, given that the governor has already modified his order and the plaintiffs' places of worship were no longer subject to the previous restrictions. In addition Justice Breyer issued a dissent joined by Justices Sotomayor and Kagan. Justice Sotomayor then also added an additional dissent joined by Justice Kagan.
As it issued the ruling, the majority explained that: "Respondent is enjoined from enforcing Executive Order 202.68's 10- and 25-person occupancy limits on applicant pending disposition of the appeal in the United States Court of Appeals for the Second Circuit and disposition of the petition for a writ of certiorari, if such writ is timely sought. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court." Id. at 1.
Read the Opinion.

Federal District Court Issues Injunction Against Trump Administration Policy of Turning Children Away at the Border Without Consideration of Asylum Claims
November 19, 2020. Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia yesterday issued a preliminary injunction against the administration in P.J.E.S. v. Wolf, a suit brought by the American Civil Liberties Union on behalf of thousands of children turned away at the U.S./Mexico border without consideration of asylum claims under an administration policy claiming it was necessary to take the action because of COVID-19. For more information and documents, see the Refugees and Immigrants page of this website.

U.S. District Court Finds Wolf Not Lawfully in Office at DHS When He Suspended DACA Program
November 16, 2020. Judge Nicholas G. Garaufis of the U.S. District Court for the Eastern District of New York ruled Saturday that Chad Wolf "was not lawfully serving as the Acting Secretary of Homeland Security when he issued the July 28 memorandum" suspending the DACA program. For more information and documents see the Refugees and Immigrants page of this website.

Supreme Court Hears Oral Argument in Affordable Care Act Cases
November 10, 2020. (Updated) At 10:00 am Eastern this morning, the U.S. Supreme Court will hear oral arguments in two cases consolidated by the Court that address the Affordable Act. The two cases, No. 19-840 California v. Texas and No. 19-1019 Texas v. California come after lower courts ruled that provisions of the Act were no longer valid after congressional amendments and that the statute should fall because those parts of the statute were not severable from the rest of legislation. C-Span is carrying the oral argument live. The transcript of the argument will be available later today and the streaming audio will be posted later in the week on the Supreme Court's Oral Arguments page.
   C-Span carried the argument live, but it is also now available on C-Span for replay at the link below.
   C-Span Live Broadcast of ACA Oral Arguments.
   Access the California v. Texas docket sheet with links to briefs and other documents.
   Access the Texas v. California docket sheet with links to briefs and other documents.
   Read the Fifth Circuit Opinion.
   Read the Opinion from the District Court for the Northern District of Texas.

Legal Challenges Have Already Begun to President Trump's Executive Order on Civil Service
October 28, 2020. Just days after President Trump issues Executive Order 13957 on career civil servants (see post for October 23 below), the National Treasury Employees Union has brought suit in the U.S. District Court for the District of Columbia seeing declaratory and injunctive relief blocking the order on grounds that it is beyond the president's authority under 5 U.S.C. § 3302.
Read the Complaint.

President Issues New Executive Order Allowing Action Against a Wide Range of Those Currently Protected by Civil Service Career Service Status
October 23, 2020 (Updated October 25, 2020). President Trump on Wednesday signed Executive Order 13957 entitled "Executive Order on Creating Schedule F In The Excepted Service." The nature of the order appears in Section 1, in which the administration states: "Pursuant to my authority under section 3302(1) of title 5, United States Code, I find that conditions of good administration make necessary an exception to the competitive hiring rules and examinations for career positions in the Federal service of a confidential, policy-determining, policy-making, or policy-advocating character. These conditions include the need to provide agency heads with additional flexibility to assess prospective appointees without the limitations imposed by competitive service selection procedures." The order then goes on to make a wide range of changes in federal civil service. The administration has made clear that these changes would subject those who write rules for the agencies and make other key decisons, though to this point in protected career positions, subject the noncompetitive appointment and expedited removal or subject to other steps that the administration asserts would be associated with performance from the administration's perspective.
Read the Order.
Access the Administration's "Fact Sheet" Released Along with the Executive Order.

Senate Judiciary Begins Hearings for Judge Amy Coney Barrett Supreme Court Nomination and She Provides Opening Statement
October 10, 2020. The Senate Judiciary Committee today began hearings on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court. Her opening statement to the committee is provided below. For more documents, including the the nominee questionnaire and supporting materals, see the posting for October 10 on this webpage.
   The Senate Judiciary Committee has not made it easy to find and access documents on the Coney Barrett nomination. When arriving at the page listing nominations, click on Judicial Nominations (not Supreme Court), scroll down to Amy Coney Barrett and click on the name. The page that comes up provides the committee questionnaire, appendices, and submitted letters. However, it does not provide copies of letters from the committee minority members requesting information. That requires a search of the committee website.
   To watch video of the hearings, go to the Senate Judiciary Committee and scroll down to find the specific day of the hearings and the video link will be on that page.
   Read Judge Coney Barrett's Opening Statement to the Judiciary Committee.
   Access letter from Senate Judiciary Minority Members Alleging that Materials were Missing from the Coney Barrett Files and Calling the Justice Department to Ensure They are Provided.
   Access Senate Judiciary Website.

Senate Judiciary Committee Holds Confirmation Hearings for Judge Amy Coney Barrett's Nomination to U.S. Supreme Court
October 10, 2020. The Senate Judiciary Committee has scheduled confirmation hearings to consider the nomination of Judge Amy Coney Barrett, currently of the United States Court of Appeals for the Seventh Circuit, as Associate Justice of the United States Supreme Court to replace Justice Ruth Bader Ginsburg who died on September 18. The hearings on the nomination are scheduled to begin at 9:00 am Monday, October 12, 2020 and to run through October 15.
   At this point, the committee has not posted information on witnesses other than the panel to introduce Judge Coney Barrett on Monday and that she will testify thereafter. However, she has completed the Senate Judiciary Questionnaire and that and other key documents are provided below. However, these documents were only recently filed, so there are as yet no materials from others in response to the nomination apart from the letters posted by the committee in support. (Additional information will be posted here as it becomes available.)
   Read the Nominee Questionnaire (SJQ).
   Read SJQ Appendix 11.c.(Presentations and Sponsorship of those Events).
   Read SJQ Attachments to Question 12.a. (Published Writings).
   Read Attachments to Question 12.b. (Reports, Memos and Other Documents Prepared for Organizations.
   Read Attachments to Question 12.c. (Testimony and Statements).
   Read Attachments to Question 12.d. (Speeches and Talks).
   Read Appendix 13.b. (Citations to Nominee's Opinions and Orders).
   Read Appendix 13.c. (List of Cases in Which Nominee Was a Member of the Panel but Did Not Write Opinions).
   Read SJQ Appendix 13.f.(Cases in Which Nominee Participated in Which Certiorari to the Supreme Court Was Requested or Granted).
   Read SJQ Appendix 14 (Cases in Which Nominee Recused).
   Read SJQ Attachments to Question 19 (Information on Teaching, Including Details of Courses and Syllabi).
   Read SJQ Supplement Attachments to Questions 12.a. 12.b. 12.d. and 12.e. (Additional Items Provided by Nominee on October 9 to Ensure Completeness of Responses to Items Under Question 12).
   Read Letter in Support of Nomination, NSSF to McConnell and Schumer - Barrett Nomination. (The Letter Explains National Shooting Sports Foundation (NSSF) is America's trade association for the firearm, ammunition, hunting and recreational shooting sports industry.)
   Read Letter in Support of Nomination, Tennessee Secretary of State Tre Hargett to President Trump - Barrett Nomination.
   Read Letter in Support of Nomination, 18 Secretaries of State to Chairman Graham - Barrett Nomination.
   Read Letter in Support of Nomination, 22 State Attorneys General to McConnell Schumer Graham Feinstein - Barrett Nomination.
   Access the Senate Judiciary Committee Hearings and Meetings Webpage for Further Information on Each Day of the Hearings.

Trump Administration Issues New Executive Order Limiting Diversity, Equity, and Inclusion Training by Federal Contractors or Grant Recipients or Federal Officials Directing Training
September 24, 2020. President Trump has issued a new executive order entitled "Executive Order on Combating Race and Sex Stereotyping" that places restrictions on the types of diversity, equity, and inclusion training and programs that can be used by federal contractors and also those receivnig federal grants. Just how the sweeping language will be implemented by federal agencies. For the documents and updates to follow, see the Civil Rights page of this website.

Federal Judge Issues Injunction Against USPS Changes
September 18, 2020. Judge Stanley A. Bastion of the U.S. District Court for the Eastern District of Washington has issued a preliminary injunction in a case brought by the Attorney General of Washington on behalf of 14 states against policy and management changes at the Postal service. For the order and other key documents, see the Washington page of this website.

Three Judge Federal District Court Blocks Trump Effort to Limit Census Count
September 11, 2020. A three judge federal district court in the Southern District of New York has issued an opinion ruling against the administration in a case brought by states, local governments, and nongovernmental organizations against a mandate from President Trump in a presidential memorandum that orderd the Commerce Department to report census data in one list with all residents and nother list that included only citizens and legal residents. For more information and the key documents, see the Refugees and Immigrants page of this website.

District Court Issues Temporary Restraining Order to Keep Census Count Going
September 8, 2020. Judge Lucy H. Koh of the U.S. District Court for Northern District of California has issued a temporary restraining order in a case brought against Secretary of Commerce Wilbur Ross, challenging the decision to end the census county. The cast was brought by the National Urban league and a number of groups and governmental jurisdictions challenging the administrations move. They include the National Urban League; League of Women Voters; Black Alliance for Just Immigration; Harris County, Texas; King County, Washington; City of Los Angeles, California; City of Salinas, California; City of San Jose, California; Rodney Ellis; Adrian Garcia; National Association for the Advancement of Colored People; City of Chicago, Illinois; County of Los Angeles, California; Navajo Nation; and Gila River Indian Community. The judge concluded: "Defendants Commerce Secretary Wilbur L. Ross, Jr.; the U.S. Department of Commerce; the Director of the U.S. Census Bureau Steven Dillingham, and the U.S. Census Bureau are enjoined from implementing the August 3, 2020 Replan or allowing to be implemented any actions as a result of the shortened timelines in the August 3, 2020 Replan, including but not limited to winding down or altering any Census field operations, until the Court conducts its September 17, 2020 hearing on Plaintiffs’ PI motion." National Urban League v. Ross, Order Granting Motion for Temporary Restraining Order, at 7. In her order, Judge Koh explains in part that: "There are also serious questions as to whether the Replan was arbitrary and capricious in violation of the APA. See 5 U.S.C. § 706(2)(A). The APA requires that Defendants consider the 'important aspect[s] of the problem' before them. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co. . . . Although Defendants justify the Replan based on the statutory deadline, Plaintiffs suggest that Defendants have failed to consider their other statutory obligations, including the statutory requirement that Defendants 'conduct a census that is accurate and that fairly accounts for the crucial representational rights that depend on the census and the apportionment.'. . . Thus, there are serious questions going to the merits of the Plaintiffs' APA claims." Id., at 4.
Read the Order Granting the TRO.
Read the Complaint in the Case.

Judge Gee Issues Order Against DHS Use of Hotels to House Children Before Deportation
September 8, 2020. Judge Dolly Gee of the U.S. District Court for the Central District of California who has long had jurisdiction over the implementation of the so-called Flores settlement, originally reached in 1997, has ruled that the recent program instituted by the Trump administration's Department of Homeland Security policy COVID-19 policy regarding placing minors in hotels pending rapid expulsion from the U.S. does not comply with the settlement. She found, inter alia, that: "On balance, the Court finds that the hotel program is not safe with respect to preventing minors from contracting COVID-19 or providing the type of care and supervision suitable for unaccompanied minors." at 15. She also found with respect to the children's access to counsel that the DHS policy and practice is: "woefully inadequate and not substantially compliant." at 16. Although she recognized the challenges associated with COVID-19, Judge Gee concluded: "This Court is sensitive to the exigencies created by COVID-19 and recognizes that the pandemic may require temporary, emergency modifications to the immigration system to enhance public safety. But that is no excuse for DHS to skirt the fundamental humanitarian protections that the Flores Agreement guarantees for minors in their custody, especially when there is no persuasive evidence that hoteling is safer than licensed facilities. While the legality of the Closure Order generally is beyond the scope of this Court’s jurisdiction, the Court is obligated to ensure that minors in DHS custody are not left in a legal no-man’s land, where no enforceable standards apply. Defendants may not exploit Title 42 to send children in their legal custody “off into the night.” Flores v. Sessions, 862 F.3d at 878 n.17 (quoting Reno v. Flores, 507 U.S. 292, 295 (1993))." Id. at 16-17. She ordered compliance with the settlement and an end to the hotel practice pending further proceedings.
Read the Order Granting the TRO.

Federal District Judge in Washington Blocks Education Secretary Requirements for School Districts to Give Significant Amounts of CARES Act Funding to Private Schools.
August 23, 2020. Judge Barbara J. Rothstein of the U.S. District Court for the Western District of Washington has granted a motion for a preliminary injunction against education secretary Betsy DeVos requirement for public schools to share significant amounts of CARES Act funding with private schools or lose their own funding. For more information and key documents, see the Washington page of this website.

State Attorneys General File Suit Against Trump Administration and Postmaster General Challenging Changes in Post Office Operations Ahead of the Fall Election
August 20, 2020. Washington State Attorney General Robert Ferguson has filed suit in federal district court on behalf of his state joined by Colorado, Connecticut, Illinois, Maryland, Michigan, Minnesota, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Virginia and Wisconsin, challenging changes in postal operations in the months before the fall election on both statutory and constitutional grounds. For more information and documents, see the Washington page of this website.

Senate Intelligence Committee Issues Final Volume on Investigation of Russian Attempts to Influence 2016 Elections
August 20, 2020. The U.S. Senate Select Committee on Intelligence has released the fifth and final volume what it describes as "the Committee's bipartisan Russia investigation titled, 'Volume 5: Counterintelligence Threats and Vulnerabilities,' which examines Russia's attempts to gain influence in the American political system during the 2016 elections."
   Read the Report Volume 5: Counterintelligence Threats and Vulnerabilities.
   Read the Report Volume I: Russian Efforts Against Election Infrastructure.
   Read the Report Volume II: Russia's Use of Social Media.
   Read the Report Volume III: U.S. Government Response to Russian Activities.
   Read the Report Volume IV: Review of the Intelligence Community Assessment.
   Read the Additional declassifications of 'Volume IV: Review of Intelligence Community Assessment'.
   Read the Committee's Press Release on the Report.

Trump Administration Announces Decision to Move Forward with Oil and Gas Leases in the Coastal Plain of the Alaska National Wildlife Refuse
August 17, 2020. Secretary of the Interior David L. Bernhard thas announced that he has signed the Record of Decision (ROD) in signed a Record of Decision providing approval for the the Coastal Plain Oil and Gas Leasing Program in the Arctic National Wildlife Refuge (ANWR) in Alaska to move forward. For more information and the relevant documents, see the Sustainable Development page of this website.

GAO Releases New Report on Facial Recognition Software Privacy and Accuracy
August 11, 2020. The U.S. Government Accountability Office has released a report entitled "Facial Recognition Technology: Privacy and Accuracy Issues Related to Commercial Uses." This is one of a number of efforts to catch up with a technology that has been utilized widely in the commercial context, and this is quite apart from government's use of this kind of technology. "This report examines (1) current and potential uses of facial recognition technology in the commercial sector, (2) the characteristics of facial image data sets assembled for commercial purposes and any related privacy and data security risks, (3) differences in how accurately the technology performs across demographic groups, and (4) privacy protections under federal and state law applicable to commercial use of facial recognition technology and privacy frameworks developed by private entities." Id. at 2.
Read the Report.

President Trump Issues Executive Order and Memoranda Claiming to Address COIV-19 Impacts
August 10, 2020. President Trump issued a series of memoranda and an executive order on August 7 and 8 which the administration claims address a number of COVID-19 impacts.
   The authority of the president in several of these areas is limited. The appropriations authority belongs to the Congress under Article I of the Constitution and the president cannot command state authorities to spend funds or be federal agents in enforcing federal law under the so-called commandeering doctrine based in Supreme Court interpretations of the Tenth Amendment and other provisions of the Constitution [See e.g., City of Chicago v. Barr, 961 F.3d 882 (7th Cir. 2020); Murphy v. National Collegiate Athletic Association, 138 S. Ct. 1461 (2018); New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 898 (1997)].
   Additionally, there are serious penalties for federal officials who expend funds in ways not authorized by law and proper appropriations under the provisions of the federal Antideficiency Act. The U.S. Government Accountability Office explains that: "This act prohibits federal agencies from obligations or expending federal funds in advance or in excess of an appropriation, and from accepting voluntary services.The Antideficiency Act prohibits federal employees from (1) making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law. 31 U.S.C. § 1341(a)(1)(A).(2) involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law. 31 U.S.C. § 1341(a)(1)(B). (3) accepting voluntary services for the United States, or employing personal services not authorized by law, except in cases of emergency involving the safety of human life or the protection of property. 31 U.S.C. § 1342. (4) making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations. 31 U.S.C. § 1517(a). Federal employees who violate the Antideficiency Act are subject to two types of sanctions: administrative and penal. Employees may be subject to appropriate administrative discipline including, when circumstances warrant, suspension from duty without pay or removal from office. In addition, employees may also be subject to fines, imprisonment, or both." GAO Antideficiency Act Resources webpage. The basis for criminal action for violation are found in §1350 and the basis for administrative action against federal employees is set out in §1349.
   It is also important to note that § 1351 of that statute mandates that any violations of the act must be reported. "If an officer or employee of an executive agency or an officer or employee of the District of Columbia government violates section 1341(a) or 1342 of this title, the head of the agency or the Mayor of the District of Columbia, as the case may be, shall report immediately to the President and Congress all relevant facts and a statement of actions taken. A copy of each report shall also be transmitted to the Comptroller General on the same date the report is transmitted to the President and Congress."
    There is another important source on federal expenditures which is the GAO Red Book. As the GAO explains, the Red Book is "Principles of Federal Appropriations Law, also known as the Red Book, is GAO’s multi-volume treatise concerning federal fiscal law. The Red Book provides text discussion with reference to specific legal authorities to illustrate legal principles, their application, and exceptions. These references include GAO decisions and opinions, judicial decisions, statutory provisions, and other relevant sources." See the GAO Red Book website (below).
   Read the Memorandum on Authorizing the Other Needs Assistance Program for Major Disaster Declarations Related to Coronavirus Disease 2019.
   Read the Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster.
   Read the Executive Order on Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners.
   Read the Memorandum on Continued Student Loan Payment Relief During the COVID-19 Pandemic.
   Read the Memorandum on the Extension of the Use of the National Guard to Respond to COVID-19 and to Facilitate Economic Recovery (Connecticut).
   Read the Memorandum on the Extension of the Use of the National Guard to Respond to COVID-19 and to Facilitate Economic Recovery (California).
   Read the Memorandum on the Extension of the Use of the National Guard to Respond to COVID-19 and to Facilitate Economic Recovery (Arizona).
   Access the GAO Anti-Deficiency Act Resources Website.
   Read the Codified version of the Act.
   Access the GAO Red Book.

A Frustrated Federal Judge in Mississippi Calls Upon the U.S. Supreme Court to Reverse the Doctrine of Qualified Immunity
August 5, 2020. Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi has issued an order granting qualified immunity in Jamison v. McClendon, but he also issued a dramatic call for the Supreme Court to overturn the doctrine of qualified immunity. For more information and the opinion, see the Civil Rights page of this website.

EU Court Strikes Down "Privacy Shield" Agreement
July 19, 2020. The Court of Justice of the European Union handed down an important legal ruling on Wednesday against the Privacy Shield Agreement between the EU and the United States, finding, among other things, that it does not meet the requirements of the EU's General Data Protection Regulation (GDPR). The shield agreement is extremely important in setting the requirements for data sharing between EU countries covered by the GDPR and the US. It obviously has great importance to technology companies in particular, but really is far more significant than that. Among other things, it will put pressure on the U.S. either to adopt the GDPR or something very close to it, or find a way to deal with limitations on data transfers among data centers around the world that make up what is today commonly referred to as "the Cloud."
   If the EU and the US cannot achieve agreement that will meet this ruling, the alternative is for the individual firms to use what are termed Standard Contractual Clauses (SCCs) which have been prepared by the EU to meet GDPR requirements. These are nonnegotiable. A number of the larger technology companies such as Microsoft have operated under both the Privacy Shield and an SCC. That company immediately posted an explanation of it practices and compliance on the day the EU ruling was released. However, it is unclear what will happen with thousands of firms that do not currently operate aunder an SCC.
   The Privacy Shiled was negotiated between the U.S. and the European Union Commission following a 2015 EU Court ruling concluding that the lack of adequate privacy regulation for online business and data center operations. The first case began when an Austrian citizen and resident who was a user of Facebook launched the action. Maximillian Schrems was then a law student and is currently a practicing attorney.
   Read the EU Court Ruling.
   Read the Court of Justice of the European Union Press Release on the Case.
   Read the GDPR, more Formally Regulation (EU) 2016/679 of the European Parliament and of the Council of 27April2016 .
   Access the Privacy Shield Agreement .
   Access Microsoft's Webpage on the Ruling and the SCC.

Oregon Attorney General Files Suit Against Federal Officials for Actions in Portland
July 19, 2020. On Friday Oregon Attorney General Ellen Rosenblum files Suit Against federal officials for their treatment of protesters in Portland. For more information and the key documents, see the Oregon page of this website.

Trump Administration HHS Diverts COVID-19 Data from CDC to DHS Working with a Private Firm
July 16, 2020. On July 10, the Trump administration issued something the Department of Health and Human Services called "COVID-19 Guidance for Hospital Reporting and FAQs For Hospitals, Hospital Laboratory, and Acute Care Facility Data Reporting," which mandated that COVID-19 data not be sent directly to the Centers for Disease Control at its National Healthcare Safety Network, but instead be sent to HHS in a system operating by a private firm, TeleTracking. For more information and documents, see the Healthcare, Disability, and Development page of this website.

Some Governors Issing Executive Orders Blocking Actions by Local Governments to Require Face Masks or Other Personal Protective Equipment or Other Restrictions
July 16, 2020. Georgia Governor Brian Kemp issued Executive Order 07.15.20.01 yesterday that specifically preempted efforts by local governments to mandate face masks and other personal protective equipment more stringent that measures to deal with COVID-19 than he had as governor mandated. For more details and documents, see the Local Government page of this website.

Massachusetts Attorney General Files Suit Against ICE Policy on Behalf of 18 States
July 13, 2020. Massachusetts Attorney General Maura Healey filed suit in the U.S. District Court for Massachusetts on behalf of Massachusetts and 16 other states plus the District of Columbia seeking an injunction against the ICE policy on international students and online courses announced a week ago (see posts below). For more information, including the complaint, see the Refugees and Immigrants page of this website.

California Attorney General Sues to Challenge DHS International Student Action
July 10, 2020. California Attorney General Xavier Becerra has filed suit in the U.S. District Court for the Northern District of California challenging the new ICE policy on international students seeking declaratory and injunctive relief on Administrative Procedure Act grounds. For more information and a copy of the complaint, see the Refugees and Immigrants page of this website.

Supreme Court Rejects Trump Claims to Absolute Immunity for his Financial Records, but also Does Not Give Congress a Clear Win
July 9, 2020. The Supreme Court today rejected President Trump's claim to absolute immunity from disclosure of his financial records in Trump v. Vance with an opinion by the Court by Chief Justice Roberts. In addition to the five members of the majority, Justices Kavanaugh and Gorsuch concurred. Justices Thomas and Alito dissented. "Given these safeguards and the Court's precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause." Slip op. at 17. The Court also rejected the Trump argument that even if he does not have absolute immunity, there is a need for a heightened standard. The Court said: "Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury's ability to acquire 'all information that might possibly bear on its investigation.'. . . And, even assuming the evidence withheld under that standard were preserved until the conclusion of a President's term, in the interim the State would be deprived of investigative leads that the evidence might yield, allowing memories to fade and documents to disappear. This could frustrate the identification, investigation, and indictment of third parties (for whom applicable statutes of limitations might lapse). More troubling, it could prejudice the innocent by depriving the grand jury of exculpatory evidence." Id. at 19.
   However, Roberts added: "Rejecting a heightened need standard does not leave Presidents with 'no real protection.' Post, at 19 (opinion of ALITO, J.). To start, a President may avail himself of thesame protections available to every other citizen. These include the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. . .. And, as in federal court, '[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.' . . . Furthermore, although the Constitution does not entitle the Executive to absolute immunity or a heightened standard, he is not 'relegate[d]' only to the challenges available to private citizens. . . . A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. . . . This avenue protects against local political machinations 'interposed as anobstacle to the effective operation of a federal constitutional power.'. . . In addition, the Executive can-as the district attorney concedes-argue that compliance with a particular subpoena would impede his constitutional duties. . . . Incidental to the functions confided in Article II is 'the power to perform them, without obstruction or impediment.'. . . As a result, 'once the President sets forth and explains aconflict between judicial proceeding and public duties,' or shows that an order or subpoena would 'significantly interfere with his efforts to carry out' those duties, 'the matter changes.'. . . At that point, a court should use its inherent authority to quash or modify the subpoena, if necessary to ensure that such 'interference with the President's duties would not occur.'" Id. at 19-21.
   The Court ruled in the Trump v. Mazars case that although it rejected the "demanding standards" called for by the government in the case, the lower courts did not adequately address the separation of powers aspects of the case and therefore vacated the lower court ruling. Roberts wrote for the 7-2 majority: "We disagree that these demanding standards apply here.Unlike the cases before us, Nixon and Senate Select Committee involved Oval Office communications over which the President asserted executive privilege. That privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is 'fundamental to the operation of Government.' . . . As a result, information subject to executive privilege deserves 'the greatest protection consistent with the fair administration of justice.' . . . We decline to transplant thatprotection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General-if applied outside the context of privileged information-would risk seriously impeding Congress in carrying out its responsibilities. The President and the Solicitor General would apply the same exacting standards to all subpoenas for the President's information, without recognizing distinctions between privileged and nonprivileged information, between official and personal information, or between various legislative objectives. Such a categorical approach would represent a significant departure from the longstanding way of doing business betweenthe branches, giving short shrift to Congress's important interests in conducting inquiries to obtain the information it needs to legislate effectively." Slip op. at 13-14.
   On the other hand, Roberts indicates that it is not prepared to agree to the congressional arguments as presented. "We therefore conclude that, in assessing whether a subpoena directed at the President’s personal information is 'related to, and in furtherance of, a legitimate task of the Congress,' . . . courts must perform a careful analysis that takes adequateaccount of the separation of powers principles at stake, including both the significant legislative interests of Congressand the "unique position" of the President several special considerations inform this analysis." The Chief Justice then lays out a standard for assessing such cases. "First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. '[O]ccasion[s] for constitutional confrontation between the two branches' should be avoided whenever possible.'. . . Congress may not rely on the President's information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. The President's unique constitutional position means that Congress may not look to him as a 'case study' for general legislation. . . . Unlike in criminal proceedings, where '[t]he very integrity of the judicial system' would be undermined without 'full disclosure of all the facts,' . . . efforts to craft legislation involve predictive policy judgments that are 'not hamper[ed] . . . in quite the same way' when every scrap of potentially relevant evidence is not available. . . . While we certainly recognize Congress's important interests in obtaining information through appropriate inquiries, those interests are not sufficiently powerful to justify access to the President's personal papers when other sources could provide Congress the information it needs. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective. The specificity of the subpoena's request 'serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.' Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress's legislative purpose, the better. . . . That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is 'impossible' to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President's information will advance its consideration of the possible legislation. . . . Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President's time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. . . . But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Id. at 19-20.
   Read the Trump v. Vance opinion.
   Read the Trump v. Mazars Opinion.

Ruling from Supreme Court on Oklahoma Native American Lands "Holds the Government to Its Word"
July 9, 2020. In a 5-4 decision, the Supreme Court has said that for purposes of the Major Crimes Act the Creek Nation's land claims remain "Indian Country." Chief Justice Roberts wrote a dissent joined by Justices Alito, Kavanaugh, and Thomas. Justice Thomas also filed a separate dissent. Justice Gorsuch wrote for the majority: "On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. . . . The government further promised that '[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.'. . . Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word." Slip op. at 1. This case arose from appeals by Jimcy McGirt, an enrolled member of the Seminole Nation of Oklahoma, of convictions in state courts under state law. He asserted that his crimes were committed on the Creek Reservation and therefore, under the federal Major Crimes Act, he could only be prosecuted in federal court. Thus, the Court said, the key question is whether he committed the crimes "in Indian country." Id. at 2. However, this case is about something considerably larger than this particular defendant's criminal convictions. Gorsuch explained that the Creek Nation came into the case as amicus curiae because it implicates Creek land claims in what is today Oklahoma. Gorsuch went on to focus on those larger claims as to the treaty obligations of land under Creek governance. "While there can be no question that Congress established a reservation for the Creek Nation, it's equally clear that Congress has since broken more than a few of its promises to the Tribe. Not least, the land described in the parties' treaties, once undivided and held by the Tribe, is now fractured into pieces. While these pieces were initially distributed to Tribe members, many were sold and now belong to persons unaffiliated with the Nation. So in what sense, if any, can we say that the Creek Reservation persists today? To determine whether a tribe continues to hold a reservation, there is only one place we may look: the Acts of Congress." Id. at 6-7. After a lengthy treatment of the history and the state's arguments about the land, the Court found: "But whatever the confluence of reasons, in all this history there simply arrived no moment when any Act of Congress dissolved the Creek Tribe or disestablished its reservation." Id. at 17.
The Court went on to make a much larger point and one that has often been at the heart of contemporary arguments over Native American land and sovereignty claims. "How much easier it would be, after all, to let the State proceed as it has always assumed it might. But just imagine what it would mean to indulge that path. A State exercises jurisdiction over Native Americans with such persistence that the practice seems normal. Indian landowners lose their titles by fraud or otherwise in sufficient volume that no one remembers whose land it once was. All this continues for long enough that a reservation that was once beyond doubt becomes questionable, and then even farfetched. Sprinkle in a few predictions here, some contestable commentary there, and the job is done, a reservation is disestablished. None of these moves would be permitted in any other area of statutory interpretation, and there is no reason why they should be permitted here. That would be the rule of the strong, not the rule of law." Id. at 28. In the end, though, the Court warns that its ruling only deals with the definition of Indian Country for purposes of the Major Crimes Act. Id. at 39-40. Gorsuch concluded the majority opinion by noting that: "The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe's authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes towithdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right." Id. at 42.
Read the Opinion.

Universities Challenge Newest Trump Administration Policy on International Students
July 2, 2020. Harvard University and the Massachusetts Institute of Technology have filed suit in the U.S. District Court for Massachusetts against the new ICE policy announced yesterday, alleging a number of violations of the Administrative Procedure Act. For more information and the complaint, see the Refugees and Immigrants page of this website.

Federal District Court Orders Shutdown of Dakota Access Pipeline
July 7, 2020. Judge James E. Boasberg of the U.S. District Court for the District of Columbia yesterday issued a ruling in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, ordering shutdown of the Dakota Access Pipeline. For more information and the opinion, see the Sustainable Development page of this website.

ICE Issues Restrictions on Student Visas in Schools Using Online Courses During COVID-19 Pandemic
July 7, 2020. U.S. Immigration and Customs Enforcement issued an announcement yesterday entitled "SEVP modifies temporary exemptions for nonimmigrant students taking online courses during fall 2020 semester," warning that those attending university using only online courses during the pandemic in the fall face a loss of their visa status. For the full announcement, see the Refugees and Immigrants page of this website.

District Court Vacates Trump Administration Asylum Rule
July 2, 2020. Judge Timothy J. Kelly of the U.S. District Court for the District of Columbia has vacated a rule issued by the Trump administration in 2019 that required asylum seekers to demonstrate that they first applied for asylum in another country before a claim would be processed at the U.S. southern border. For more information and the opinion, see the Immigrants and Refugees page of this website.

Supreme Court Denies Habeas Corpus Hearing Rights to Asylum Seekers
June 26, 2020. Justice Samuel Alito has written an opinion for four other members of the Court overturning a decision of the Ninth Circuit that the denial of the opportunity for habeas corpus consideration for asylum seekers facing expedited removal was an unconstitutional suspension of habeas corpus. For more information and the opinion, see the Refugees and Immigrants page of this website.

D.C. Circuit Panel Directs Dismissal of Flynn Prosecution
June 26, 2020. Judge Naomi Rao issued an opinion for a panel of the D.C. Circuit in In re Michael T. Flynn requiring the district court to grant the motion to dismiss the case against former national security adviser Michael Flynn. Flynn had twice admitted his guilt and was awaiting sentencing when the Attorney General directed action by the Department of Justice to dismiss the prosecution. The district court judge was considering whether to grant that motion in light of the unprecedented process used by the DOJ in the case. However, Judge Rao wrote a sharply worded critism of the district court and directed dismissal.
Judge Wilkins wrote a strong dissent arguing that the behavior of the court of appeals was unprecedented and inappropriate. He wrote "It is a great irony that, in finding the District Court to have exceeded its jurisdiction, this Court so grievously oversteps its own. This appears to be the first time that we have issued a writ of mandamus to compel a district court to rule in a particular manner on a motion without first giving the lower court a reasonable opportunity to issue its own ruling; the first time any court has held that a district court must grant “leave of court” pursuant to Federal Rule of Criminal Procedure 48(a) without even holding a hearing on the merits of the motion; and the first time we have issued the writ even though the petitioner has an adequate alternative remedy, on the theory that another party would not have had an adequate alternate remedy if it had filed a petition as well. Any one of these is sufficient reason to exercise our discretion to deny the petition; together, they compel its rejection." Dissent at 1.
Read the Opinion.

Supreme Court Finds Trump Administration Termination of "Dreamers" Policy Arbitrary and Capricious
June 18, 2020. Writing for the Supreme Court majority, Chief Justice Roberts wrote that the Trump administration's actions rescinding the DACA policy (more commonly known as the Dreamers program was arbitary and capricious in violation of the Administrative Procedure Act. For the opinion and more information, see the Refugees and Immigrants page of this website.

Supreme Court Rules Title VII Does Cover Sexual Orientation and Gender Identity
June 15, 2020. The U.S. Supreme Cour today ruled 6-3 (Alito dissenting joined by Thomas and Justice Kavanaugh also filed a dissent) that Title VII of the Civil Rights Act of 1964 does provide protection against discrimination by employers on the basis of sexual orientation or gender identity. The opinion was written by Justice Gorsuch. The opinion consolidates the Clayton County case, the Altitude Express case, and the Harris Funeral Homes case. Gorsuch wrote: "In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law." Bostock v. Clayton County, Slip op. at 33. For more information on the cases and the Supreme Court opinion itself, see the Civil Rights page of this website.

CRS Study of the Posse Comitatus Act on Legal Barriers to Use of Federal Troops Within the U.S.
June 2, 2020. Given the President's recent statements and the role apparently played by military helicopters and troops in Washington D.C., there is interest in understanding the Posse Comitatus Act that restricts the use of federal troops for domestic law enforcement and other purposes. The Congressional Research Service provided a report to Congress in 2018 entitled "The Posse Comitatus Act and Related Matters: The Use of the Military to Execute Civilian Law." The report also discusses the Insurrection Act and other means presidents have used to avoid the restrictions of the Posse Comitatus Act.
Read the Report.

New Executive Order Targets Social Media
May 29, 2020. President Trump has issued an executive order targeting social media companies and, in so doing, made clear that it was in respomse to Twitter fact-checking postings. This reaction came after Twitter fact-checked some of Mr. Trump's tweets. The president's remarks on the signing the order indicate that his "executive order further instructs the Federal Trade Commission" to take action. Of course, both the Federal Trade Commission and the Federal Communications Commission, which are the two agencies that have regulatory authority in the area, are independent regulatory commissions and the president does not have the authority to direct their actions. He can request that they look into issues or problems, but he has not authority to compel them to do so.
Read the Executive Order.
Read the President's Remarks on Signing the Order.

Federal District Court Strikes Florida Felon Voting Law
May 25, 2020. Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida issued a 125 page opinion yesterday striking down provisions of a Florida statute, SB7066, requiring inter alia, that even if felons have served any prison sentence, they still cannot vote until they have paid any fees, fines, costs, or restitution involved in the case. Hinkle started from the premise that: "When a state decides to restore the right to vote to some felons but not others, the state must comply with the United States Constitution, including the First, Fourteenth, Fifteenth, Nineteenth, and Twenty-Fourth Amendments. It is no answer to say, as the State does, that a felon has no right to vote at all, so a state can restore the right to vote or not in the state’s unfettered discretion. Both the Supreme Court and the Eleventh Circuit have squarely rejected that assertion." Jones v. DeSantis, at 32. Although there was a dispute as to the level of scrutiny, Judge Hinkle found that the statute failed on even the lowest level, rational basis standard. "First, as applied to those who are unable to pay, the pay-to-vote system is subject to heightened scrutiny and fails. Second, as applied to those who are unable to pay, the pay-to-vote system fails even rational-basis scrutiny. Third, if as-applied challenges are not available to a subset of those affected by a provision that is subject to only rational-basis scrutiny, the pay-to-vote system still fails, because the system is irrational as applied to the mine-run of affected felons and thus is irrational as a whole." Id. at 43-44.
Read the Opinion.

Most Recent Round of COVID-19 Legislation Becomes Law
April 27, 2020. Congress has passed and the President has signed H.R. 266 the "Paycheck Protection Program and Health Care Enhancement Act" which is now P.L. 116-139. The new legislation added some $322 billion in additional spending for the programs involved.
   Although President Trump rejected key provisions of the CARES Act concerning inspectors general, the legislation also contained mandates for the U.S. Government Accountability Office to maintain oversight over expenditures under the legislation and report to Congress on a regular bases. The GAO has announced its intentions to carry forward with that work. In its press release on the subject, GAO indicated. "The CARES Act requires GAO to issue a report on its oversight of CARES Act spending 90 days after enactment; issue bi-monthly reports through the first year; and conduct oversight of the programs covered by the CARES Act, Coronavirus Preparedness and Response Supplemental Appropriations Act and the Families First Coronavirus Response Act." In that same press release, GAO announced: "GAO's FraudNet Hotline Ready to Help Combat Fraud Under COVID-19 Assistance" and said: "'The public can play a critical role in helping to identify improper activities or weaknesses in programs that warrant scrutiny. And FraudNet can play an important role in alerting GAO, potentially early on, to questionable uses of CARES Act funds,' said Gene L. Dodaro, Comptroller General of the United States and head of the GAO. 'The Act has set aside over two trillion dollars to address the public health emergency and related economic impacts. Experience tells us that the risk of fraud and abuse grows when large sums are spent quickly, eligibility requirements are being established or changed, and new programs created.' Dodaro added. To report allegations of fraud, waste, and abuse, the public can visit the FraudNet website at https://www.gao.gov/fraudnet. Although the website is the preferred reporting method, allegations can also be sent by e-mail to fraud@gao.gov or by calling 1-800-424-5454 (an automated phone answering system)." The GAO, of course, works directly for Congress and is not part of the executive branch.
   Read P.L. 116-139.
   Read the GAO press release on oversight.
   Read the President's Statement on Signing H.R. 748 the CARES Act.

CDC and WHO Continue to Release Daily Updates and other Key Sources for Current Status on COVID-19
April 10, 2020. The most commonly used websites for key health information on the COVID-19 pandemic are the World Health Organization (WHO) website, the Centers for Disease Control and Prevention (CDC), and, each state's lead health agency website.
Access the CDC COVID-19 Website.
Access the WHO COVID-19 Website.

President Trump Issues Signing Statement that Seeks to Constrain Transparency Provisions of the Coronavirus Response (CARE) Act
March 27, 2020. On Friday evening, after signing the Coronavirus, Aid, Relief, and Economic Security Act, President Trump issued a Presidential Signing Statement that seeks to constrain the transparency requirements for the expenditure of the funds provided in the act. His statement reads in part: "Section 15010(c)(3)(B) of Division B of the Act purports to require the Chairperson of the Council of the Inspectors General on Integrity and Efficiency to consult with members of the Congress regarding the selection of the Executive Director and Deputy Executive Director for the newly formed Pandemic Response Accountability Committee. The Committee is an executive branch entity charged with conducting and coordinating oversight of the Federal Government’s response to the coronavirus outbreak. I anticipate that the Chairperson will be able to consult with members of the Congress with respect to these hiring decisions and will welcome their input. But a requirement to consult with the Congress regarding executive decision-making, including with respect to the President’s Article II authority to oversee executive branch operations, violates the separation of powers by intruding upon the President's power and duty to supervise the staffing of the executive branch under Article II, section 1 (vesting the President with the “executive Power”) and Article II, section 3 (instructing the President to "take Care" that the laws are faithfully executed). Accordingly, my Administration will treat this provision as hortatory but not mandatory. Section 4018 of Division A of the Act establishes a new Special Inspector General for Pandemic Recovery (SIGPR) within the Department of the Treasury to manage audits and investigations of loans and investments made by the Secretary of the Treasury under the Act. Section 4018(e)(4)(B) of the Act authorizes the SIGPR to request information from other government agencies and requires the SIGPR to report to the Congress "without delay" any refusal of such a request that “in the judgment of the Special Inspector General” is unreasonable. I do not understand, and my Administration will not treat, this provision as permitting the SIGPR to issue reports to the Congress without the presidential supervision required by the Take Care Clause, Article II, section 3."
Read the Statement on Signing H.R. 748 the CARES Act.
Read the Bill as Passed in the Senate on March 25.

House Has Senate-Passed Coronavirus Response (CARE) Act
March 27, 2020. The Senate has passed and sent to the House H.R. 748 which is known under the Senate Amendments as the Coronavirus, Aid, Relief, and Economic Security Act or the "CARES Act" which is the $2.2 trillion package, now the third major piece of coronavirus response legislation. The House leadership has promised action as early as today on the bill. The previous two bills have been signed by the president. The second bill now was P.L. 116-127 Families First Coronavirus Response Act and the first was P.L. 116-123 the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020."
   Read the Bill as Passed in the Senate on March 25.
   Read P.L. 116-127 the Families First Coronavirus Response Act as an enrolled bill.
   Read P.L. 116-123 the Coronavirus Preparedness and Response Supplemental Appropriations Act, 2020.

Recent Policy Actions from Congress and the White House on COVID-19 Virus Pandemic
March 19, 2020. The Congress sent H.R. 6201 the Families First Coronavirus Response Act to the White House yesterday and the president signed it into law this morning. In addition, President Trump has issued a number of proclamations, executive orders, and presidential memorandum.
   Read H.R.6201 Families First Coronavirus Response Act as an enrolled bill.
   Read the March 18 Executive Order "Prioritizing and Allocating Health and Medical Resources to Respond to the Spread of Covid-19."
   Read Proclamation 9996 "Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus."
   Read Presidential Memorandum of March 18 "Expanding State-Approved Diagnostic Tests."
   Read Presidential Proclamation 9994 of March 13 Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID–19) Outbreak.
   Read Presidential Memorandum of March 13 "Expanding State-Approved Diagnostic Tests."
   Read Presidential Proclamation 9993 of March 11 "Suspension of Entry as Immigrants and Nonimmigrants of Certain Additional Persons Who Pose a Risk of Transmitting 2019 Novel Coronavirus."
   Read Memorandum of March 11 "Memorandum on Making General Use Respirators Available."

Court of Federal Claims Issues Injunction Against U.S. in JEDI Contract Bid Protest by Amazon
March 7, 2020. Judge Patricia E. Campbell-Smith of the Court of Federal Claims has blocked federal officials from moving forward with its so-called "Services Joint Enterprise Defense Infrastructure ("JEDI") contract, a massive defense department contract for cloud computing services, awarded to Microsoft Corporation. This ruling addresses one of the technical bases on which Amazon protested the JEDI bid. The court has not yet dealt with the claim that the award to Microsoft rather than Amazon Web Services was "the result of improper pressure from President Donald J. Trump . .. to harm his perceived political enemy-Jeffrey P. Bezos, founder and CEO of AWS's parent company, Amazon.com, Inc. ("Amazon"), and owner of the Washington Post." Amazon Web Services v. United States, Complaint, at 2. For more information and relevant documents, see the Public Contract Management page of this website.

Federal District Court Will Conduct a Review of the Unredacted Version of the Mueller Report in FOIA Suit
March 6, 2020. Judge Reggie B. Walton of the U.S. District Court for the District of Columbia issued an opinion yesterday in Electronic Privacy Information Center (EPIC) v. U.S. Department of Justice, requiring the U.S. Department of Justice to provide him with the unredacted Mueller report so that the court can determine whether the DOJ refusal to release the report in response to Freedom of Information Act (FOIA) requests was justified by the exemptions to disclosure provided in the FOIA. Judge Walter explained that: "[T]he Court has reviewed the redacted version of the Mueller Report, Attorney General Barr's representations made during his April 18, 2019 press conference, and Attorney General Barr's April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr's statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary. These circumstances generally, and Attorney General Barr's lack of candor specifically, call into question Attorney General Barr's credibility and in turn, the Department's representation that 'all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]' is protected from disclosure by its claimed FOIA exemptions. . . . In the Court's view, Attorney General Barr's representation that the Mueller Report would be 'subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests' cannot be credited without the Court's independent verification in light of Attorney General Barr's conduct and misleading public statements about the findings in the Mueller Report . . . and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr's actions and representations." Id. at 19-20. In addition to EPIC v. DOJ opinion, and in order to provide additional context and information, the related documents are provided below. See also the post on this webpage for May 8, 2019.
   Read the Memorandum Opinion in EPIC v. DOJ.
   Read the Special Counsel Mueller's letter to Attorney General Barr of March 27, 2019.
   Read the Redacted Version of Special Counsel Robert Mueller's Report as Released by Attorney General Barr.
   Read Attorney General William Barr's Summary for Congress of the Mueller Report Conclusions, March 24, 2019.
   Read Attorney General William Barr's Remarks on the Release of the Report of the Special Counsel.

Idaho Federal Magistrate Blocks Trump Administration Policy on Oil and Gas Leases in Sage Grouse Territory
February 28, 2020.Chief Magistrate Judge Ronald E. Bush of the U.S. District Court for Idaho yesterday issued a preliminary injunction against oil and gas leases under a Trump administration Bureau of Land Management (BLM) Instruction Memorandum of January 2018 in a case brought by the Western Watershes Project of the Center for Biological Diversity aimed at protection of Sage Grouse habitat. The opinion finds that the 2018 IM failed to provide notice and comment process and the judge therefore ordered the 2010 policy reinstated pending a proper process to change it by BLM. For more information and relevant documents see the Sustainable Development page of this website.

DOD Considers New Policies on Artificial Intelligence
Feburary 24, 2020. One part of the current discussion of the dramatically increasing role of artificial intelligence in contemporary policy and governance is an effort by the Defense Innovation Board (DIB) on behalf of the Department of Defense (DOD) to develop a set of policy proposals, the most recent of which is "AI Principles: Recommendations on the Ethical Use of Artificial Intelligence by the Department of Defense." This set of recommendations was accompanied by the "Support Document," providing the foundation work on the basis of which the recommendations were developed. These documents are part of what DIB calls its "AI Principles Project." The "AI Principles" document sets forth the foundation statement that: "[T]he Department should set the goal that its use of AI systems is: "1. Responsible. Human beings should exercise appropriate levels of judgment and remain responsible for the development, deployment, use, and outcomes of DoD AI systems. 2. Equitable. DoD should take deliberate steps to avoid unintended bias in the development and deployment of combat or non-combat AI systems that would inadvertently cause harm to persons. 3. Traceable. DoD's AI engineering discipline should be sufficiently advanced such that technical experts possess an appropriate understanding of the technology, development processes, and operational methods of its AI systems, including transparent and auditable methodologies, data sources, and design procedure and documentation. 4. Reliable. DoD AI systems should have an explicit, well-defined domain of use, and the safety, security, and robustness of such systems should be tested and assured across their entire life cycle within that domain of use. 5. Governable. DoD AI systems should be designed and engineered to fulfill their intended function while possessing the ability to detect and avoid unintended harm or disruption, and for human or automated disengagement or deactivation of deployed systems that demonstrate unintended escalatory or other behavior." "AI Principles" at 8.
   Read AI Principles.
   Read the AI Principles Support Document.
   Access the Defense Innovation Board's AI Principles Project.
   DOD Joint Artificial Intelligence Center.

Stanford and New York University Researchers Publish New Report on Artificial Intelligence in Federal Agencies as Part of Administrative Conference of the United States Project
February 19, 2020. Professors David Freeman Engstrom, Stanford University, Daniel E. Ho, Stanford University, Catherine M. Sharkey, New York University, and Justice Mariano-Florentino Cuéllar, Stanford University and Supreme Court of California have completed a report for the Administrative Conference of the United States (ACUS) entitled Government by Algorithm: Artificial Intelligence in Federal Administrative Agencies. This report is part of an initiative launched by ACUS aimed at "exploring the growing role that artificial intelligence (AI), such as machine learning and related techniques, is playing in federal agency adjudication, rulemaking, and other regulatory activities.exploring the growing role that artificial intelligence (AI), such as machine learning and related techniques, is playing in federal agency adjudication, rulemaking, and other regulatory activities." (ACUS website) The report provides a number of case studies in very different policy domains involving a range of federal agencies. They include: "Regulatory Enforcement at the Securities and Exchange Commission; Law Enforcement at Customs and Border Protection; Formal Adjudication at the Social Security Administration; Informal Adjudication at the United States Patent and Trademark Office; Regulatory Analysis at the Food and Drug Administration; Public Engagement at the Federal Communications Commission and Consumer Financial Protection Bureau; and Autonomous Vehicles for Mail Delivery at the United States Postal Service."
   This report comes just after the Trump administration took action to accelerate the development and implementation of artificial intelligence systems and programs. These actions are described below in the posting for January 10.
   Read the Report.
   Access the ACUS Webpage on the AI Project.
   Access the ACUS website.

Justice Department Launches Civil Actions Against Companies that Provide Robocalling Capabilities to Criminal Organizations
January 30, 2020. The U.S. Department of Justice has taken what it calls a "First of its Kind" enforcement action against what DOJ described as "U.S. telecom carriers who facilitated hundreds of millions of fraudulent robocalls to American consumers." In explaining its action, DOJ wrote: "The Department of Justice filed civil actions for temporary restraining orders today in two landmark cases against five companies and three individuals allegedly responsible for carrying hundreds of millions of fraudulent robocalls to American consumers, the Department of Justice announced. The Department of Justice alleges that the companies were warned numerous times that they were carrying fraudulent robocalls--including government--and business-imposter calls--and yet continued to carry those calls and facilitate foreign-based fraud schemes targeting Americans. The calls, most of which originated in India, led to massive financial losses to elderly and vulnerable victims across the nation." . . . The two cases announced today contain similar allegations. The defendants in one case are Ecommerce National LLC d/b/a TollFreeDeals.com; SIP Retail d/b/a sipretail.com; and their owner/operators, Nicholas Palumbo, 38, and Natasha Palumbo, 33, of Scottsdale, Arizona. The defendants in the other case include Global Voicecom Inc., Global Telecommunication Services Inc., KAT Telecom Inc., aka IP Dish, and their owner/operator, Jon Kahen, 45, of Great Neck, New York. In each case, the Department of Justice sought an order immediately halting the defendants' transmission of unlawful robocall traffic. A federal court has entered a temporary restraining order against the Global Voicecom defendants." Press release.
   Read the Complaint in U.S. v. Polumbo.
   Read the Complaint in U.S. v. Kahen.
   Read the Temporary Restraining Order issued against Global Voicecom.
   Read DOJ Press Release on the Cases.
   Access the Justice Department Graphic that Explains How these Calls Work.
   Access the Justice Department Graphic showing the Calling in One Month.

Trump Administration Proposes Changing Federal Policy on Grants and Grants Management
January 28, 2020. The Office of Management and Budget has announced a major set of changes in Grants policy and administration to conform to the priorities laid out in the President's Management Agenda issued by the Trump administration in March 2018. The administration also indicated that the new policy would comply with the Grant Reporting Efficiency and Agreements Transparency Act signed into law in December.
   Government Executive magazine, in an article by Courtney Bublé, described a number of the changes and provided some comments from those who have review the proposed guidance.
   Read the Propsed OMB Guidance as published in the Federal Register.
   Read the President's Management Agenda.
   Read the Grant Reporting Efficiency and Agreements Transparency Act of 2019.
   Read the Bublé article in Government Executive.

USDA Proposes to Roll Back Obama Era Nutrition Requirements for School Meals
January 22, 2020. The US Department of Agriculture announced on January 17 that its Food and Nutrition Service was issuing a notice of proposed rulemaking to change the nutritional requirements for school meals. The proposed rules roll back increased school meal nutrition requirements issued by the Obama administration in 2012, implementing the provisions of the Healthy, Hunger-Free Kids Act of 2010. This action follows rule changes in 2018 issued by the Trump administration, reducing other restrictions from the Obama era related to milk, whole grains, and sodium restrictions in school meals. For more information and the relevant documents, see the Health Care, Disability, and Development page of this website.

GAO Finds that President Trump's Withholding of Urkraine Security Assistance Violated the Law and was a Failure to Faithfully Execute the Law
January 16, 2020. The U.S. has issued a decision "In the Matter of Office of Management and Budget--Withholding of Ukraine Security Assistance," B-331564, finding that: "In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine apportionment schedules with footnotes that made all unobligated balances unavailable for obligation. Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA). The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA." Decision at 1.
   In reading its conclusion, GAO explained: "The Constitution specifically vests Congress with the power of the purse, providing that 'No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.' U.S. Const. art. I, § 9, cl. 7. The Constitution also vests all legislative powers in Congress and sets forth the procedures of bicameralism and presentment, through which the President may accept or veto a bill passed by both Houses of Congress, and Congress may subsequently override a presidential veto. Id., art. I, § 7, cl. 2, 3. The President is not vested with the power to ignore or amend any such duly enacted law. See Clinton v. City of New York, 524 U.S. 417, 438 (1998) (the Constitution does not authorize the President 'to enact, to amend, or to repeal statutes'). Instead, he must 'faithfully execute' the law as Congress enacts it. U.S. Const., art. II, § 3. An appropriations act is a law like any other; therefore, unless Congress has enacted a law providing otherwise, the President must take care to ensure that appropriations are prudently obligated during their period of availability. . . . The Constitution grants the President no unilateral authority to withhold funds from obligation. . . . Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. In fact, Congress was concerned about exactly these types of withholdings when it enacted and later amended the ICA." Id. at 5-7
   GAO was also frustrated by the administration's unwillingness to provide important information and concluded that those actions raise serious constiutional issues. "OMB and State have failed, as of yet, to provide the information we need to fulfill our duties under the ICA regarding potential impoundments of FMF funds. . . . We consider a reluctance to provide a fulsome response to have constitutional significance. GAO's role under the ICA--to provide information and legal analysis to Congress as it performs oversight of executive activity--is essential to ensuring respect for and allegiance to Congress' constitutional power of the purse. All federal officials and employees take an oath to uphold and protect the Constitution and its core tenets, including the congressional power of the purse." Id. at 9.
   Read the Decision

Federal District Blocks Trump Administration Order Allowing States to Refuse Refugees
January 16, 2020. Judge Peter J. Messitte of the U.S. District Court for the District of Maryland yesterday issued a preliminary injunction blocking implementation of President Trump's Executive Order 13888 issued in September, 84 Fed. Reg. 52,355 (September 26, 2019), that permitted that announced that "[T]he Federal Government .. . should resettle refugees only in those jurisdictions in which both the State and local governments have consented to receive refugees under the Department of State’s Reception and Placement Program." §1.It then mandated, in part, that "the Secretary of State and the Secretary of Health and Human Services shall develop and implement a process to determine whether the State and locality both consent, in writing, to the resettlement of refugees within the State and locality, before refugees are resettled within that State and locality under the Program." §2 That allowed states, of course, to withhold consent and Texas promptly announced its intentions to block refugee resettlement in the state. The case HIAS v. Trump, was brought in November by three organizations that provide refugee resettlement assistance, HIAS, Lutheran Immigration and Refugee Service, and Church World Service, represented by the International Assistance Project. For more information and key documents, see the Refugees and Immigrants page of this website.

Virginia Legislature Has Voted to Ratify the Equal Rights Amendment to the U.S. Constitution
January 15, 2020. The Virginia House of Delegates today voted 59-41 to ratify the Equal Rights Amendment. The Senate has also voted to ratify 28-12 the Equal Rights Amendment to the U.S. Constitution first sent to the states in 1972. This is the last state required in order to add the amendment to the Constitution. However, the U.S. Department of Justice issued an Office of Legal Counsel opinion over the signature of Assistant Attorney General General Steven Engel on January 6, asserting that ratification by the state would have no effect since the proposed amendment failed to gain the necessary votes during the period allowed by Congress for ratification. For more information and the key documents, see the Civil Rights page of this website.

House of Representatives Passes Resolution Against Presidential Military Action Against Iran
January 10, 2020. The U.S. House of Representatives voted 224-194 yesterday in favor of H. Con. Res. 83, stating: "Pursuant to section 5(c) of the War Powers Resolution (50 U.S.C. 1544(c)), Congress hereby directs the President to terminate the use of United States Armed Forces to engage in hostilities in or against Iran or any part of its government or military, unless—(1) Congress has declared war or enacted specific statutory authorization for such use of the Armed Forces; or (2) such use of the Armed Forces is necessary and appropriate to defend against an imminent armed attack upon the United States, its territories or possessions, or its Armed Forces, consistent with the requirements of the War Powers Resolution." The resolution now goes to the Senate.
Read H. Con. Res. 83.
Read the War Powers Resolution 50 U.S.C. §§1541-1549.

Trump Administration Warns Agencies to Avoid "Burdensome" Regulation of Artificial Intelligence and Promote the Technology
January 10, 2020.The Trump administration took action this week to accelerate the development and implementation of artificial intelligence (AI) systems and programs by moving to limit regulatory efforts and encourage data-sharing by federal agencies. The Trump action came in the form of an announcement of the initiative by U.S. Chief Technology Officer Michael Kratsios in an op-ed in Bloomberg Opinion on January 7 and released on the same day of a draft OMB guideline for administrative agencies setting forth the new policy.
   The OMB document entitled "Guidance for Regulation of Artificial Intelligence Applications" goes well beyond the language Kratsios used in the Bloomberg piece, in which he indicated that the regulatory agencies were to take a "light touch" approach. The OMB guidance calls for active facilitation of AI programs and business enterprise activity through reduced regulatory limitations, active promotion of AI developments, expanded data sharing, and action to preempt steps by state governments that might inhibit AI development and expanded use in government programs and policies. The announced intention of the OMB action is to implement aggressively the provisions of Executive Order 13859 issued by President Trump in February 2019 entitled "Maintaining American Leadership in Artificial Intelligence," 84 Fed. Reg. 3967 (February 14, 2019).
   The OMB policy also relies on portions of P.L. 115-232, the John S. McCain National Defense Authorization Act for FY 2019. Section 238 of that statute concerns "Joint artificial intelligence research, development, and transition activities" and Section 1051 creates a "National Security Commission on Artificial Intelligence."
   The OMB draft explains: "This draft Memorandum sets out policy considerations that should guide, to the extent permitted by law, regulatory and non-regulatory oversight of AI applications developed and deployed outside of the Federal government. Although Federal agencies currently use AI in many ways to perform their missions, government use of AI is outside the scope of this Memorandum. While this Memorandum uses the definition of AI recently codified in statute, [citing P.L. 115-232] it focuses on 'narrow' (also known as 'weak') AI, which goes beyond advanced conventional computing to learn and perform domain-specific or specialized tasks by extracting information of the potential regulation on AI innovation and growth. Agencies must avoid a precautionary approach that holds AI systems to such an impossibly high standard that society cannot enjoy their benefits. Where AI entails risk, agencies should consider the potential benefits and costs of employing AI, when compared to the systems AI has been designed to complement or replace." The guidances goes on to stress that: "Furthermore, in the context of AI, as in other settings, agencies must consider the effect of Federal regulation on existing or potential actions by State and local governments. In some circumstances, agencies may use their authority to address inconsistent, burdensome, and from data sets, or other structured or unstructured sources of information. More theoretical applications of 'strong' or 'general' AI-AI that may exhibit sentience or consciousness, can be applied to a wide variety of cross-domain activities and perform at the level of, or better than a human agent, or has the capacity to self-improve its general cognitive abilities similar to or beyond human capabilities-are beyond the scope of this Memorandum." Guidance at 1-2.
   As part of its efforts to promote AI in government and beyond the White House has created a specific website on the initiative.
   Although the administration has been actively promoting AI work with government, including this week's op-ed by Mr. Kratsios, reporting by Brandi Vincent in NextGov brought wider attention to the initiative and the new OMB guidance document.
   Read the OIRA Draft Guidance.
   Read Executive Order 13859.
   Read P.L. 115-232 the McCain Nat. Def. Authorization Act 2019.
   Read the Kratsios op-ed in Bloomberg.
   Access the White House "Artificial Intelligence for the American People" website.
   Read the Vincent article in Nextgov.

Fifth Circuit Panel Declares ACA Individual Mandate Unconstitutional
December 19, 2019. Writing for a panel of the U.S. Court of Appeals for the Fifth Circuit, Judge Jennifer Walker Elrod declared: "[T]he individual mandate is unconstitutional because it can no longer be read as a tax, and there is no other constitutional provision that justified this exercise of congressional power." Texas v. United States, at 3. However, in so doing, the panel refused to find that this ruling would mean the end of the ACA because the individual mandate is not severable from the rest of the statute. On that issue, she wrote: "[O]n the severability question, we remand to the district court to provide additional analysis of the provisions of the ACA as they currently exist." Id. That said, the district court previous concluded that the individual mandate is "entirely inseverable." Texas v. United States, Northern District of Texas, December 30, 2018, Order Granting Stay and Partial Final Judgment at 24. For more information and key documents, see the Health Care, Disability, and Development page of this website

States and Advocacy Groups Renew Litigation Against EPA Refusal to Ban the Pesticide Chlorpyrifos
December 18, 2019. The New York Attorney General, joined by California, Washington, Maryland, Vermont, Hawaii, Oregon, Massachusetts, and the District of Columbia has renewed the attack on the EPA refusal to ban chlorpyrifos along with a similar petition filed by Earthjustice on behalf of the League of United Latin American Citizens, the Pesticide Action Network of North American, and nine other advocacy groups. For the relevant documents for this and previous efforts to ban to chemical see the Sustainable Development page of this website.

House Judiciary Committee Issues Report on Articles of Impeachment
December 16, 2019. The House Judiciary Committee has issued its report on the articles of impeachment as amended and adopted by the committee in preparation for the floor vote scheduled for later this week. The 658 page report, H. Rept. 116-346, explains the basis for and committee action on R.Res. 755 "Impeaching Donald John Trump, President of the United States, for high crimes and misdemeanors."
Read the House Judiciary Committee Report on Articles of Impeachment.
Read the H.Res. 755, Articles of Impeachment.

House Judiciary Committee Schedules Markup for Articles of Impeachment
December 11, 2019. The House Judiciary Committee has schedule a markup hearing for the draft articles of impeachment against President Donald Trump this evening.
Read the House Judiciary Committee Draft Articles of Impeachment.

District Court in Texas is the Latest to Issue Injunction Against Use of DOD Funds for Border Wall
December 11, 2019. Judge David Briones of the U.S. District Court for the Western District of Texas is the latest judge to issue an injunction against the attempt by President Trump to use Department of Defense Funds to build portions of the border wall, this time a declaratory order and permanent injunction. For more information and key documents, see the Refugees and Immigrants page of this website.

House Judiciary Committee Releases Documents Relative to the Impeachment Hearings
December 9, 2019. The House Judiciary Committee today opens impeachment hearings on the findings of the House Permanent Select Committee on Intelligence. It has before it the report of the Intelligence Committee as well as its own staff report on grounds for impeachment of a president. Chairman Nadler has announced that the president refused to participate in the hearings through his counsel.
   Read the House Judiciary Committee Staff Report on Grounds for Impeachment.
   Read the Letter from Chairman Nadler of the Judiciary Committee on Transmission of the Intelligence Committee Report to the Judiciary Committee.
   Read the Intelligence Committee Report.

Second Circuit Affirms that Deutsche Bank and Captial One Must Turn Over Trump Financials Records
December 5, 2019. In another of the several cases involving subpoenas for President Trump's financial records from the House Committee on Financial Services and the House Permanent Select Committee on Intelligence directed to Deutsche Bank and Capital One Financial Corporation, a panel of the Second Circuit has rejected the president's efforts to block disclosure.
Read the Opinion.

House Intelligence Committee Issues Report on Impeachment Inquiry
November 25, 2019. The House Intelligence Committee has issued its 300 page report entitled The Trump Ukraine Impeachment Inquiry Report.
Read the Report.

District Court Rules that Former White House Counsel Must Honor Judiciary Committee Subpoena
November 25, 2019. In a 120 page opinion, Judge Ketanji Brown Jackson of the U.S. District Court for the District of Columbia has rejected the claim of absolute immunity from subpoena and ordered former White House Counsel Donald McGahn to appear for testimony in response to a House Judiciary Committee subpoena. The Justice Department has already filed a motion for a stay with the D.C. Circuit pending appeal.
Read the Opinion

President's Counsel Filed for Supreme Court Review of Second Circuit Ruling Against Mr. Trump on Subpoenas for Financial Records
November 15, 2019. Following the ruling against the president by the Second Circuit with respect to a New York prosecutor's subpoena for financial records, Mr. Trump's counsel have filed a petition for certiorari seeking a Supreme Court review of that ruling. Complete information on the case in the lower courts in provided in the post for November 4 on this webpage.
Read the Petition for Certiorari.

D.C. Circuit Rejects Trump Motion for En Banc Ruling in Congressional Subpoena Case Clearing the Way for Appeal to the Supreme Court
November 14, 2019. The U.S. Court of Appeals for the D.C. Circuit has rejected a request by President Trump for a rehearing en banc (by the full court) of an October ruling by a three judge panel that refused the president's attempt to block congressional subpoenas for his financial records. That clears the way for an appeal to the U.S. Supreme Court. The president's attorneys have already announced their intention to take a case from the Second Circuit in New York to the high court.
   As noted in an October 11 post below, a panel of the D.C. Circuit, in an opinion by Judge Tatel, upheld a May 20 decision by the district court to reject President Trump's challenges to congressional subpoenas issued to his accounting firm. Tatel conclude: "Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee to Mazars is valid and enforceable. We affirm the district court's judgment in favor of the Oversight Committee and against the Trump Plaintiffs." Judge Rao dissented.
   Read the D.C. Circuit Order Denying Reheading En Banc.
   Read the October 11 D.C. Circuit Opinion.
   Read the May 20 District Court Memorandum Opinion.

Another Effort by President Trump to Block Congressional Acquisition of Tax Records Dismissed by District Court
November 12, 2019. Judge Carl J. Nichols of the U.S. District Court for the District of Columbia issued an opinion yesterday rejecting another suit by President Trump seeking to block congressional efforts to obtain his tax returns in a case challenging a New York State statute that would require state tax authorities to hand over the tax records if requested by the House Committee on Ways and Means. The state law would also mandate that records be provided if requests were to be filed by the Committee on Finance of the U.S. Senate or the Joint Committee on Taxation. Judge Nichols found that there was no jurisdiction in the case by the District Court for the District of Columbia under the present circumstances.
Read the Opinion and Order.

Federal District Court Strikes Down Trump Administration Rule Allowing Organizations and Providers to Refuse to Participate in Medical Programs and Services Because of Religious or Moral Objection
November 6, 2019. Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York has issued an Opinion and Order striking down the Trump administration's so-call consience ruled issued by the Department of Health & Human Services in in May allowing organizations and individuals "to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection." New York v. Health & Human Services, Opinion and Order, at 3. The rule was challenged by 19 states and a number of family planning organizations. The court "vacate[d] the rule in full." In a 147 page opinion, the judge found: "The APA [Administrative Procedure Act] violations that the Court has found, however, are numerous, fundamental, and far-reaching. The Court's finding that HHS lacked substantive rule-making authority as to three of the five principal Conscience Provisions nullifies the heart of the Rule as to these statutes. The Court's finding that the agency acted contrary to two major existing laws (Title VII and EMTALA [Emergency Medical Treatment and Labor Act]) vitiates substantive definitions in the Rule affecting the health care employment and emergency contexts. The Court's finding that HHS failed to give proper notice of the definition it adopted of 'discriminate or discrimination' voids that central dimension of the Rule. And the Court's finding that the Rule was promulgated arbitrarily and capriciously calls into question the validity and integrity of the rulemaking venture itself. Indeed, the Court has found that HHS's stated justification for undertaking rulemaking in the first place--a purported 'significant increase' in civilian complaints relating to the Conscience Provisions--was factually untrue." Id., at 142.
Read the Opinion and Order.
Read the HHS Rule of May 21, 2019.

Second Circuit Affirms District Court that Rejected President's Claim of Immunity from All Criminal Justice Process for Himself and Advisors
November 4, 2019. A panel of the Second Circuit has issued an opinion that reversed in part a district court ruling on the abstention doctrine, but affirmed its rejection of the President's assertion of an absolute immunity from enforcement of a subpoena to the President' accounting firm for delivery of financial records in a grand jury proceeding. The Second Circuit panel concludes: "Presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President." Trump v. Vance, at 17. After reviewing relevant case law, the court focused particularly on the Supreme Court's unanimous rejection of President Nixon's effort to block the subpoena in the Watergate tapes case. United States v. Nixon, 418 U.S. 683 (1974). "The President [Trump] has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President's performance of his official functions.... Here, none of the materials sought by the Mazars subpoena implicates executive privilege.... Nor does the subpoena seek information regarding the President's 'action[s] taken in an official capacity.' Clinton [v. Jones, 520 U.S. 681 (1997)], at 694. The subpoena seeks only the President's private tax returns and financial information relating to the businesses he owns in his capacity as a private citizen. These documents do not implicate, in any way, the performance of his official duties. We find no support in the Nixon Court's conclusion--that even documents exposing the President's confidential, official conversations may properly be obtained by subpoena--for the proposition that a President's private and non-privileged documents may be absolutely shielded from judicial scrutiny." Id., at 20-21. Rejecting the President's demand for a privilege far broader than anything recognized to date, the panel wrote: "Although the subpoena is directed to the President's custodian, no court has ordered the President to do or produce anything. Nor has the President explained why any burden or distraction the third-party subpoena causes would rise to the level of interfering with his duty to 'faithfully execute[]' the laws, U.S. CONST. art. II, §3, or otherwise subordinate federal law in favor of a state process." Id., at 24.
   At the time of the oral argument, it was stipulated that if the Second Ciruit ruled against the President, Mr. Vance would delay action to enforce the subpoena pending an immediate expedited petition to the Supreme Court to hear the case. Chief Judge Katzmann concluded the oral argument session by indicated that he assumed that the attorneys for the parties would see each other again soon in Washington, assuming that the case would immediately move to the Supreme Court whatever the outcome in the appeals court.
   The following post information about the district court ruling was originally posted on October 11. Judge Victor Merrero has issued a decision and order rejecting President Trump's attempt to block a subpoena for financial records from one of his accounting firms. However, the decision contends that what the president claimed was an immunity far wider than the specific facts of the case would indicate. The judge wrote that his claim would involve an "absolute immunity from criminal process of any kind." ... "As presented in this proceeding, the constititional dimensions of the presidential shield from judicial process are virtually limitless." Decision and Order, at 2. The judge adds that the claim is so broad that it would "extend derivatively so as to potentially immunize the misconduct of any person, business affiliate, associate, or relative who may have collaborated with the President inpurportedly committing unlawful acts and whose offenses orindarily would warrant criminal investigation and prosecution of all involved." Id. at 3. He concludes, "This court cannot endorse such a categorical and limitless of presidential immunity from judicial process as being countenanced by the nation's constitutional plan. . . ." Id. at 4. He dismissed the president's complaint.
   Press reports indicate that attorneys for the president immediately appealed and that the Second Circuit issued a stay pending consideration of the case. That stay order has not yet been posted.
   Read the Second Circuit Opinion.
   Read the District Court "Decision and Order."

Chief Judge of Federal District Court for the District of Columbia Orders Release of Redacted Portions of Special Counsel Report with Grand Jury Materials to the House Judiciary Committee
October 25, 2019. Chief Judge Beryl A. Howell of the U.S. District Court for the District of Columbia has issued a memorandum opinion in In re Application of the Committee on the Judiciary, U.S. House of Representatives, for an Order Authorizing the Release of Certain Grand Jury Materials, concluding that: "The Department of Justice ('DOJ') claims that existing law bars disclosure to the Congress of grand jury information.... DOJ is wrong. In carrying out the weighty constitutional duty of determining whether impeachment of the President is warranted, Congress need not redo the nearly two years of effort spent on the Special Counsel's investigation, nor risk being misled by witnesses, who may have provided information to the grand jury and the Special Counsel that varies from what they tell HJC. As explained in more detail below, HJC’s application for an order authorizing the release to HJC of certain grand jury materials related to the Special Counsel investigation is granted. Id., at 2-3. He ordered that: "Consequently, DOJ is ordered to provide promptly, by October 30, 2019, to HJC all portions of the Mueller Report that were redacted pursuant to Rule 6(e) and any underlying transcripts or exhibits referenced in the portions of the Mueller Report that were redacted pursuant to Rule 6(e). HJC is permitted to file further requests articulating its particularized need for additional grand jury information requested in the initial application." Id., at 75.
Read the Memorandum Opinion

U.S. Federal Magistrate Judge Sanctions Education Secretary for Contempt
October 25, 2019. U.S. Magistrate Judge Sallie Kim of the U.S. District Court for the Northern District of California has issued an order in Manriquez v. DeVos, imposing sanctions on Secretary of Education Betsy DeVos and the Department of Education for contempt of court, requiring the Education Department to pay a $100,000 fine in a case challenging the Education Secretary's lack of action in response to an earlier June 2018 ruling that ordered an end to actions against students and recompense to former students of Corinthian College who had faced collection actions by the department that included withholding of tax refunds and garnishment of wages. In issuing the order, Judge Kim wrote: "Here, there is no question that Defendants violated the preliminary injunction. There is also no question that Defendants violations harmed individual borrowers who were forced to repay loans either through voluntary actions or involuntary methods (offset from tax refunds and wage garnishment) and who suffered from the adverse credit reporting. Defendants have not provided evidence that they were unable to comply with the preliminary injunction, and the evidence shows only minimal efforts to comply with the preliminary injunction. The Court therefore finds Defendants in civil contempt. The only question is the type of relief that is appropriate in this situation. The Court finds that a monetary sanction of $100,000, paid by Defendants, to a fund held by Plaintiffs' counsel, is the best method to remedy Defendants' wrongful acts. Given that there are over 16,000 borrowers who have suffered damages from Defendants' violation of the preliminary injunction and given that there may be some administrative expenses to remedy the harm, the Court finds the amount reasonable. The Court ORDERS the parties to meet and confer regarding the method by which Plaintiffs will set up the fund and administer the fund. As noted above, the Court contemplates that some portion of the fund will be used for administrative expenses. The parties must submit their proposed plan for administering the fund no later than November 15, 2019." Order at 6.
   She concluded her order: "The Court does not foreclose the possibility that, if Defendants fail to comply with preliminary injunction in a timely manner, the Court will impose additional sanctions, including the appointment of a Special Master to ensure compliance with the preliminary injunction." Id. at 8.
   Read the October 24, 2019 Sanctions Order
   Read the June 19, 2018 Order

New York State Case Against Exxon Alleging Fraud on Climate Change Risk Exposure Begins Begins
October 22, 2019. A case filed by then New York Attorney General Barbara Underwood in October 2018 against Exxon alleging fraudulent behavior by the company in the way it represented its risks as a business from climate change issues goes to trial today. Earlier this month, Massachusetts Attorney General Maura Healy notified Exxon of her intent to file suit against he company. For more information and key documents see the Sustainable Development page of this website.

D.C. Circuit Affirms District Court Ruling Supporting Congressional Subpoenas for Trump Finacial Records
October 11, 2019. A panel of the D.C. Circuit, in an opinion by Judge Tatel, has upheld a May 20 decision by the district court to reject President Trump's challenges to congressional subpoenas issued to his accounting firm. Tatel conclude: "Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee to Mazars is valid and enforceable. We affirm the district court's judgment in favor of the Oversight Committee and against the Trump Plaintiffs." Judge Rao dissented.
Read the D.C. Circuit Opinion
Read the May 20 District Court Memorandum Opinion.

District Court Rejects President's Claim of Immunity from All Criminal Justice Process for Himself and Advisors
October 7, 2019. Judge Victor Merrero has issued a decision and order rejecting President Trump's attempt to block a subpoena for financial records from one of his accounting firms. However, the decision contends that what the president claimed was an immunity far wider than the specific facts of the case would indicate. The judge wrote that his claim would involve an "absolute immunity from criminal process of any kind." ... "As presented in this proceeding, the constititional dimensions of the presidential shield from judicial process are virtually limitless." Decision and Order, at 2. The judge adds that the claim is so broad that it would "extend derivatively so as to potentially immunize the misconduct of any person, business affiliate, associate, or relative who may have collaborated with the President inpurportedly committing unlawful acts and whose offenses orindarily would warrant criminal investigation and prosecution of all involved." Id. at 3. He concludes, "This court cannot endorse such a categorical and limitless of presidential immunity from judicial process as being countenanced by the nation's constitutional plan. . . ." Id. at 4. He dismissed the president's complaint.
Press reports indicate that attorneys for the president immediately appealed and that the Second Circuit issued a stay pending consideration of the case. That stay order has not yet been posted.
Read the "Decision and Order."

D.C. Circuit Allows Trump Executive Orders on Federal Workforce Changes to Go Into Effect
October 7, 2019. The D.C. Circuit has issued a "Mandate" based upon its July 16 opinion which vacated a district court ruling for lack of jurisdiction against a set of President Trump's executive orders concerning federal employees. As the July noted, "In May 2018, the President issued three executive orders regarding federal labor-management relations. Among other requirements, the 'Collective Bargaining Order' provides agencies with certain procedures that they should seek to institute during negotiations with unions. See Exec. Order No. 13,836, Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining, 83 Fed. Reg. 25,329, 25,331-32 (May 25, 2018). This order also tells agencies not to negotiate over 'permissive' subjects, id. at 25,332, defined as those that are negotiable 'at the election of the agency' under 5 U.S.C. § 7106(b)(1). The 'Official Time Order' instructs agencies to aim to limit the extent to which collective bargaining agreements authorize 'official time,' meaning time spent by employees on union business during working hours. See Exec. Order No. 13,837, Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use, 83 Fed. Reg. 25,335, 25,336 (May 25, 2018. The 'Removal Procedures Order' tells agencies to seek to exclude from grievance proceedings any dispute over a decision to remove an employee “for misconduct or unacceptable performance.” Exec. Order No. 13,839, Promoting Accountability and Streamlining Removal Procedures Consistent With Merit System Principles, 83 Fed. Reg. 25,343, 25,344 (May 25, 2018). Subject to various exceptions, this order also prohibits agencies from resolving disputes over employee ratings and incentive pay through grievance or arbitration proceedings, and it mandates that some subpar employees may have no more than thirty days to improve their performance before being reassigned, demoted, or fired. Id. at 25,344-45." A federal district judge ruled against the orders in 2018, AFGE v. Trump, 318 F. Supp. 3d 370, 391 (D.D.C. 2018).
   Read the October 7 Mandate
   Read the July 16 Opinion
   Read the District Court Memorandum Opinion.

D.C. Circuit Rules on FCC Rules Rejecting Net Neutrality
October 1, 2019. A panel of the D.C. Circuit has issued an opinion in Mozilla v. F.C.C., challenging the FCC's elimination of the previous new neutrality requirements. In so doing, the Court said: "We uphold the 2018 Order, with two exceptions. First, the Court concludes that the Commission has not shown legal authority to issue its Preemption Directive, which would have barred states from imposing any rule or requirement that the Commission 'repealed or decided to refrain from imposing' in the Order or that is 'more stringent' than the Order. . . The Court accordingly vacates that portion of the Order. Second, we remand the Order to the agency on three discrete issues: (1) The Order failed to examine the implications of its decisions for public safety; (2) the Order does not sufficiently explain what reclassification will mean for regulation of pole attachments; and (3) the agency did not adequately address Petitioners' concerns about the effects of broadband reclassification on the Lifeline Program." Id. at 13.
The ruling came in a per curiam opinion. Two members of the panel issued concurring opinions. The third issued an opinion concurring and dissenting.
Read the Opinion.

The Supreme Court Begins Work on Its October Term 2019
October 1, 2019. The U.S. Supreme Court begins its October 2019 term next Monday. As usual, the Court will issue a lengthy order list on the first day of its new term and on that first day it issued an additional list from its conference before the term began. The current granted and noted lists and other information on the docket as well as the briefs and oral arguments follow.
Order List for the Beginning of the October 2019 Term and the Court's Opining Granted and Noted List.
   Start of October term Order List October 7, 2019.
   October Term 2018 Granted and Noted List as of October 4, 2019.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. The Court is also makes available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page (The 2019 term arguments transcripts page will be posted once arguments have begun.)
   U.S. Supreme Court Oral Arguments Audio (The 2019 term arguments audio page will be posted once arguments have begun.)
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
Supreme Court Briefs via the Supreme Court website. To find briefs, it is necessary to go the Supreme Court "Docket Search" and place the docket number in the search window. The docket sheet comes up with links to posted documents on the sheet.
   Supreme Court Briefs via the Supreme Court Docket Search Page.
SCOTUS Blog provides Briefs and Links to Lower Court Opinions for Cases Pending on the Current Docket.
   Review the Case Documents through SCOTUS Blog.
   Access the Docket Search page.
FindLaw.com provides briefs and other documents.
   U.S. Supreme Briefs via FindLaw.com.
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "SCOTUS Blog."
   Access SCOTUS Blog

Federal District Judge Rules Against Trump Administration Expedited Removal Policy
September 29, 2019. Judge Ketanji Broan Jackson of the U.S. District Court for the District of Columbia has issued a preliminary injunction against the Trump administration's expedited removal policy announced in July that had marked a dramatic change from the policy that had existed before that. For more information and key documents, see the Refugees and Immigrants page of this website.

Federal District Judge Blocks Trump Administration Effort to End Flores Settlement Protections for Children
September 27, 2019. Judge Dolly Gee of the U.S. District Court for the Central District of California yesterday issued rulings blocking the Trump administration's efforts to terminate the the Flores settlement agreement that imposed constraints on the manner in which federal authorities could detain and supervise minors in immigration cases. She issued a permanent injunction rejecting the administration's efforts to end the Flores settlement. For more information and the key documents, see the Refugees and Immigrants page of this website.

U.K. Supreme Court Rules British Prime Minister's Actions Leading to the Prorogation of Parliamentary Illegal
September 24, 2019. The Supreme Court of the United Kingdom has ruled unanimously against the actions of the British Minister that brought about a prorogation (in effect a suspension) of Parliament, concluding that: "The Court is bound to conclude, therefore, that the decision to advise Her Majesty to prorogue Parliament was unlawful because it had the effect of frustrating or preventing the ability of Parliament to carry out its constitutional functions without reasonable justification." Cherry v. Advocate General for Scotland, Court's Summary of the Opinion, at 3. The Court went on to state: "This Court has already concluded that the Prime Minister's advice to Her Majesty was unlawful, void and of no effect. This means that the Order in Council to which it led was also unlawful, void and of no effect and should be quashed. This means that when the Royal Commissioners walked into the House of Lords it was as if they walked in with a blank sheet of paper. The prorogation was also void and of no effect. Parliament has not been prorogued. This is the unanimous judgment of all 11 Justices." Id. The ruling came in two consolidated cases. The other was R. v. Prime Minister from the High Court of England and Wales. The Cherry case came from Scotland's Court of Inner Sessions.
   Read the Court's summary of the opinion in Cherry v. Advocate General for Scotland and R. v. Prime Minister.
   Read the Full Judgment of the Court in Cherry v. Advocate General for Scotland and R. v. Prime Minister.
   Access the Supreme Court of the U.K. website.

Intelligence Community Inspector General Reports to Congress
September 20, 2019. The House Intelligence Committee has demanded testimony and documents from the Director of National Intelligence concerning a whistleblower's report to the Intelligence Community Inspector General reportedly alleging improper actions by the president. The IG has written Congress explaining the problem and his disagreement with the DNI and the Department of Justice as to their conclusion that the whistleblower's complaint constituted a credible and "urgent concern" under 50 U.S.C. § 3033(k)(5)(A). That statute sets forth the process to be followed when a whistleblower seeks to informa Congress of a serious problem. The House committee has issued subpoenas for relevant documents and both the ICIG and the DNI are to testify before the committee.
   Read the Intelligence Community Inspector General Letter to Congress Concerning the Director of National Intelligence's Decision Not to Report to Congress on the Whistleblower Complaint.
   Read House Intelligence Committee Chair's Letter of September 13 to the Director of National Intelligence Accompanying the Committee Subpoena.
   Read House Intelligence Committee Press Release of September 13 regarding the Subpoena for Information on the Whistleblower Complaint.
   Read House Intelligence Committee Chair's Letter of September 10 to the Director of National Intelligence.
   Read the Inspector General of the Intelligence Community statute, 50 U.S.C. § 3033.
   Read the Inspector General Act as Amended.

Supreme Court Stays District Court Injunction Against Trump Administration Asylum Policy Change
September 12, 2019. The Supreme Court has stayed, pending appeal, an injunction issued by Judge Jon S. Tigar of the U.S. District Court for the Northern District of California that he issued against the Trump administration's latest change to asylum policy. The case was launched following publication on July 16 by the Departments of Justice and Homeland Security of an Interim Final Rule entitled "Asylum Eligibility and Procedural Modifications." 84 Fed. Reg. 33,829 (July 16, 2019) "The effect of the Rule," according to Judge Tigar, "is to categorically deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country." Justice Sotomayor issued a dissent to the Court's order joined by Justice Ginsburg. For more information and key documents see the Refugees and Immigrants page of this website.

U.S. District Court Calls for Special Master to Lead Remedy in Mississippi Mental Health Case
September 10, 2019. Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi has concluded that the state has failed to address serious issues in its mental health system and is in violation of the Americans with Disabilities Act (ADA). This case stems from a findings letter issued by the Civil Rights Division of the Department of Justice in 2011. In 2016 DOJ filed suit against the state. For more information and key documents, see the Health Care, Disability, and Development page of this website.

EPA Proposes Rules to Roll Back Methane Limits in New Source Performance Standards for the Oil and Gas Industry
August 29, 2019. The U.S. Environmental Protection Administration today released proposed rules on New Source Performance Standards (NSPS) for the Oil and Natural Gas Industry. In its fact sheet on the proposal, EPA indicates that: "The proposed amendments would remove all sources in the transmission and storage segment of the oil and natural gas industry from regulation under the NSPS, both for ozone-forming volatile organic compounds (VOCs), and for greenhouse gases (GHGs). The existing NSPS regulates GHGs through limitations on emissions of methane." For more information and key documents, see the Sustainable Development page of this website.

Oklahoma Court Rules Against Pharmaceutical Firms in Opioid Case
August 27, 2019. Judge Thad Balkman issued his decision in a case brought by the state against Opioid manufacurers and sellers, finding for the state and ordering payment of more than $572 million for costs incurred by the state and those needed to address opioid addiction. The state had settled with many other companies, but Johnson & Johnson refused to settle.
This ruling comes just two months before the trial in the "National Prescription Opiate Litigation" case which is scheduled to begin in October in Ohio. See the July 24 posting on this webpage.
Read Judge Balkman's Judgment After Nonjury Trial

Multiple States Seek Injunctions Against Latest Trump Asylum Policy Changes
August 27, 2019. California Attorney General Xavier Becerra yesterday announced an effort by attorneys general to obtain a preliminary injunction, as he put it, "to block the Trump Administration's Inadmissibility on Public Charge Grounds Final Rule, known as the "Department of Homeland Security (DHS) Public Charge Rule,' from taking effect while litigation continues." This suit was brought by California, D.C., Oregon, Maine, and Pennsylvania.
State attorneys general from 19 states (Massachusetts, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia), led by the California attorney general also filed yesterday in the U.S. District Court for the Central District of California against the rule published on August 23 entitled "Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children" seeking to abandon the Flores settlement and impose new rules for incarceration of asylum seekers and specifically including children. For more information and documents on both cases, see the Refugees and Immigrants page of this website.

Federal Court Issues Injunction Against Latest Trump Administration Asylum Policy Change
August 9, 2019. Judge Jon S. Tigar of the U.S. District Court for the Northern District of California has issued a preliminary injunction against the Trump administration's latest change to asylum policy. For more information and documents, see the Refugees and Immigrants page of this website.

Historical Resource on Ten Year Federal Assault Weapons Ban
August 8, 2019. Because there is currently widespread discussion of the assault weapons ban that was in place for ten years, it is useful here as a historical resource to provide a link to that legislation, which was entitled the Public Safety and Recreational Firearms Use Protection Act and was Title XI of the Violent Crime Control and Law Enforcement Act of 1994, P.L. 103-322, 108 Stat. 1796 (September 13, 1994). That ban was in effect from 1994 until 2004 when it expired under the terms of a sunset clause in that legisation (Sec. 110105).
Access the Public Safety and Recreational Firearmes Use Protection Act (Title XI of P.L. 103-322).

UN Climate Change Panel Issues New Report on Climate Change and Land Use
August 8, 2019. The UN Intergovernmental Panel on Climate Change (IPCC) is today releasing a new special report entitled Climate Change and Land, an IPCC Special Report on Climate Change, Desertification, Land Degradation, Sustainable Land Management, Food Security, and Greenhouse Gas Fluxes in Terrestrial Ecosystems. For more information and key documents, see the Sustainable Development page of this website.

Fifth Circuit Rejects An Obama Era EEOC "Guidance" on Use of Criminal Records in Hiring
August 6, 2019. A panel of the U.S. Court of Appeals for the Fifth Circuit has issued an opinion in Texas v. E.E.O.C. affirming a lower court ruling against an Equal Employment Opportunity Commission "guidance" document issued during the Obama years entitled “Enforcement Guidance on the Considera-tion of Arrest and Conviction Records in Employment Decisions Under Title VII.” For more information and documents see the Civil Rights page of this website.

GAO Issues New Report on Rulemaking and Commenter Identity Information
July 29, 2019. The Government Accountability Office (GAO) has issued a new report entitled Federal Rulemaking: Selected Agencies Should Clearly Communicate Practices Associated with Identity Information in the Public Comment Process which not only addresses the specific topic identified by the subtitle of the report, but provides a variety of interesting data about rulemaking in the current context. For example, the report explains that: "In recent years, some high-profile rulemakings have received extremely large numbers of comments. For example, during the public comment period for an Environmental Protection Agency (EPA) 2014 rulemaking on greenhouse gas emissions, the agency reported that it received more than 4 million total comments. Similarly, during the public comment period for the Federal Communications Commission's (FCC) 2017 Restoring Internet Freedom NPRM, FCC received more than 22 million comments through its public comment website. Subsequently, media and others reported that some of the comments submitted to FCC were suspected to have been submitted using false identity information." (Footnotes removed.) Id. at 2.
Read the GAO Report.

Bill to Resurrect Something Like Advisory Commission on Intergovernmental Relations Follows Hearings of the Speaker's Task Force on Intergovernment Affairs
July 29, 2019. Writing in the Government Executive, Courtney Buble has explained new legislation introduced by Gerry Connolly, D-Va., and Rob Bishop, R-Utah entitled the "Restoring the Partnership Act" H.R. 3883 that would create a new Commission on Intergovernmental Relations that looks very much like the Advisory Commission on Intergovernmental Relations that was defunded in the 1990s. For more information and the key documents, see the Local Government page of this website.

Federal Trade Commission Announces Penalties for Facebook
July 24, 2019. The Federal Trade Commission (FTC) announced today a 5$ billion penalty against Facebook, an action that had been expected for some time, that resulted from a finding that Facebook had violated a 2012 Consent Agreement with respect to data privacy and security. At the same time, the FTC announced a separate case against Cambridge Analytica, an app developer, and its former CEO that relates to the Cambridge Analytica scandal. As part of the resolution of the Facebook matter, the companey agreed to a 20 year consent agreement
   Read the FTC Press Release on the $5 Billion penalty against Facebook.
   Read the FTC Factsheet on the action against Facebook.
   Read the Complaint Against Cambridge Analytica and its former CEO to be Filed in the U.S. District Court for the District of Columbia.
   Read the FTC Press Release on the Cambridge Analytica case and proposed settlement.
   Read the 20 year Facebook settlement agreement.

Case Against Opioid Manufacturers Nears Trial in Cleveland
July 24, 2019. Trial is scheduled to begin in October before Judge Dan Polster in the U.S. District Court for the Northern District of Ohio in a case styled "National Prescription Opiate Litigation" brought by cities, counties, and states against pharmaceutical companies involved in the manufacture and distribution of opioid medications. By the time the Judicial Panel on Multidistrict Litigation issued its Transfer Order consolidating the cases for trial in the Northern District of Ohio, there were some 115 legal actions pending in various courts around the nation and the number has increased dramatically since then. As the panel characterized the litigation: "Plaintiffs in the actions before us are cities, counties and states that allege that: (1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates. All actions involve common factual questions about, inter alia, the manufacturing and distributor defendants' knowledge of and conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers' alleged improper marketing of such drugs. Both manufacturers and distributors are under an obligation under the Controlled Substances Act and similar state laws to prevent diversion of opiates and other controlled substances into illicit channels. Plaintiffs assert that defendants have failed to adhere to those standards, which caused the diversion of opiates into their communities. Plaintiffs variously bring claims for violation of RICO statutes, consumer protection laws, state analogues to the Controlled Substances Act, as well as common law claims such as public nuisance, negligence, negligent misrepresentation, fraud and unjust enrichment." Transfer Order at 3. Due to the complex nature of the case, Judge Polster quickly appointed three special masters to assist the court in a variety of aspects of the management of the case. Early efforts to encourage a settlement failed which led to the scheduling of a trial.
   Access the U.S. District Court for the Northern District of Ohio webpage on the case MDL .
   Read the Panel on Multidistrict Litigation Transfer Order of December 12, 2017.
   Read the January 11, 2018 Order Appointing the Special Masters and Explaining their Duties.
   Access the website of the U.S. Judicial Panel on Multidistrict Litigation.

EPA Rejects Requests to Ban the Pesticide Chlorpyrifos
Juy 22, 2019. Ending an regulatory process that began with a petiton by environmental groups in 2007, the Environmental Protection Agency on July 18 issued a final order rejecting efforts to ban the pesticide Chlorpyrifos. For more information and relevant documents, see the Sustainable Development page of this website.

Public Law, Policy, and Public Administration Archive Entries Available
July 14, 2019. It is that time of the year when it is necessary to remove older information from the site. The "What's New" section has been edited to remove information before July 1, 2017. However, since some users of the site find the older entries of continuing interest, those entries have been placed in the "What's New -- Archives" page that can be accessed from this page and contains material dating back to 2006. See the menu at the top of the page.

Trump Administration Effort to Change Course and Move Forward with Citizenship Census Question Produces Judicial Response Sarting with Effort to Change the Legal Team
July 10, 2019. After conceding its defeat in the Supreme Court on its effort to include a citizenship question on the 2020 census in the Department of Commerce v. New York case, the Justice Department has made an abrupt about face under orders from the president. In the process, the Justice Department announced that its enture legal team would be changed. However, the district court yesterday denied the Justice Department lawyers' request except for two previous members of the team who have left the department. For more information and the relevant documents, see the Refugees and Immigrants page of this website.

Ninth Circuit Upholds District Court on Injunctions Against Trump Efforts to Reprogram Funds for Border Wall
July 3, 2019. A panel of the Ninth Circuit Court of Appeals has refused an emergency petition for a stay of a district court injunction against the Trump administration's efforts to reprogram funds from the Department of Defense budget to be used for the president's project to build a wall on the U.S. southern border. For more information and key documents, see the Refugees and Immigrants page of this website.

Responses to Trump Administration Asylum and Border Control Actions by Inspector General and in Court
July 3, 2019. Marsha J. Pechman of the U.S. District Court has issued a preliminary injunction against the Trump Administration's recent policy to keep asylum seekers in detention pending the resolution of their cases. The case, Padilla v. ICE, was brought by the American Civil Liberties Union, Northwest Immigrant Rights Project, and American Immigration Council.
   Also yesterday the Inspector General of the Department of Homeland Security issued a report entitled "Management Alert – DHS Needs to Address Dangerous Overcrowding and Prolonged Detention of Children and Adults in the Rio Grande Valley" that explain its purpose as to notify you of urgent issues that require immediate attention and action. Specifically, we encourage the Department of Homeland Security (DHS) to take immediate steps to alleviate dangerous overcrowding and prolonged detention of children and adults in the Rio Grande Valley."
   Read the Order on the Preliminary Injunction.
   Read Attorney General's Order on Detention of Asylum Seekers.
   Read the DHS Inspector General Report.

Supreme Court Holds Last Opinion Day for the Term
June 27, 2019. The Supreme Court has issued a number of rulings in the cases remaining for this term of Court. The Carpenter v. Murphy case concerning "Whether Congress disestablished the reservation of the Muscogee (Creek) Nation" was held over for reargument next term. The Chief Justice has announced that the Court will issue additional orders tomorrow.
   Read the Opinions in the Census Case Department of Commerce v. New York.
   Read the Opinions in the Political Gerrymandering Cases Rucho v. Common Cause.
   Read the Opinion in the Unconscious Driver Blood/Alcohol Test Case Mitchell v. Wisconsin.

Supreme Court Refuses to Overturn Auer Deference Rule
June 27, 2019. The Supreme Court has issued a ruling long-awaited by administrative law scholars and practitioners, retaining what is known as the Auer deference rule that calls upon courts to show deference to the interpretations of an administrative rule by the agency that issued that rule. There had been an effort in the Kisor v. Wilkie case to get the Court to overrule Auer v. Robbins, 519 U. S. 452 (1997). Particularly given the strong opposition to Justice Gorsuch to deference to administrative agencies while on the 10th Circuit, there was speculation as to whether the Court would rule against the long-standing Auer decision.
Read the Opinion.

Trump Administration Issues New AI Strategic Plan
June 24, 2019. The Trump administration has issued a new National Artificial Intelligence Research and Development Strategic Plan: 2019 Update, produced by the Select Committee on Artifical Intelligence of the Science and Technology Council. This is one of a series of actions taken in reponse to Executive Order 13859 issued in February entitled "Maintaining American Leadership in Artificial Intelligence."
Read the Strategic Plan 2019 Update.
Read Executive Order 13859.

Missouri Circuit Judge Issues TRO to Keep Planned Parenthood Clinic Open
May 31, 2019. Judge Michael F. Stelzer of the Missouri Circuit Court for the Twenty-Second Judicial Circuit (St. Louis) has issued a temporary restraining order maintaining the Planned Parenthood Clinic license pending a hearing on a preliminary injunction which is scheduled for Tuesday, June 4. The current license would have expired as of today. If that had happened, Missouri would have been the first state in the nation without a licensed clinical facility at which abortions are performed.
Read the Order Granting the Temporary Restraining Order.

District Court Issues Injunction Against Trump Administration Border Wall Actions
May 25, 2019. Judge Haywood S. Gilliam Jr., of the U.S. District Court for the Northern District of California, has issued his opinion on the motion for a preliminary injunction against President Trump's border wall emergency declaration in Sierra Clib v. Trump. For more information and key documents, see the Refugees and Immigrants page of this website.

District Court in Mississippi Enjoins Implementation of New Abortion Restrictions
May 24, 2019. Judge Carolton W. Reeves of the U.S. District Court for the Southern District of Mississippi today enjoined implementation of the state's recently enacted SB 2116 banning abortion starting at 6 weeks of pregnancy. Reeves was frustrated by the fact that the state passed the new statute while their previous ban at 15 weeks was under a preliminary injunction and pending before his court. The judge wrote: "Finally, the Legislature's passage of S.B. 2116 during the pendency of this litigation compels the Court to make the following observation. If there is no medical evidence to prove that a fetus is viable at 15 weeks lmp or at 6 weeks lmp, then a fetus is not viable between 0 and 5 weeks lmp.... The plaintiffs' request for a preliminary injunction is GRANTED. The defendants; their officers, agents, employees, and attorneys; and all other persons who are in active concert or participation with them; shall not enforce S.B. 2116." Jackson Women's Health Organization v. Dobbs, Order Granting Preliminary Injunction at 7 (emphasis in original).
Read the Order Granting Preliminary Injunction.

District Court Rejects President Trump's Challenge to House Committee Subpoena
May 21, 2019. Judge Amit P. Mehta of the U.S. District Court for the District of Columbia has issued his Memorandum Opinion in Trump v. Committee on Oversight and Reform, denying the president's effort to have the court block the House Committee's subpoena for his financial records from the Mazars firm. In rejecting the President's challenge, Judge Mehta explains: "Courts have grappled for more than a century with the question of the scope of Congress's investigative power. The binding principle that emerges from these judicial decisions is that courts must presume Congress is acting in furtherance of its constitutional responsibility to legislate and must defer to congressional judgments about what Congress needs to carry out that purpose. To be sure, there are limits on Congress's investigative authority. But those limits do not substantially constrain Congress. So long as Congress investigates on a subject matter on which 'legislation could be had,' Congress acts as contemplated by Article I of the Constitution." Id. at 3.
   Read the Memorandum Opinion.
   Read the Complaint in Trump v. Committee on Oversight and Reform.
   Read House Committee Chair Cummings Letter to Committee and Copy of the Subpoena.

President Issues Executive Order on Information and Communications Technology Controls
May 20, 2019. President Trump has signed executive order 13873 entitled "Securing the Information and Communications Technology and Services Supply Chain, granting broad authority for the Secretary of commerce to block transactions that the secretary in consultation with other officials, including the "Secretary of the Treasury, the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the United States Trade Representative, the Director of National Intelligence, the Administrator of General Services, the Chairman of the Federal Communications Commission, and, as appropriate, the heads of other executive departments and agencies (agencies)." The order goes on to provide in Section 2 that: "The Secretary, in consultation with, or upon referral of a particular transaction from, the heads of other agencies as appropriate, is hereby authorized to take such actions, including directing the timing and manner of the cessation of transactions prohibited pursuant to section 1 of this order, adopting appropriate rules and regulations, and employing all other powers granted to the President by IEEPA, as may be necessary to implement this order.... The Secretary may, consistent with applicable law, redelegate any of the authorities conferred on the Secretary pursuant to this section within the Department of Commerce."
Read the Executive Order.
Read Department of Commerce Press Release on the Order.

Connecticut Attorney General Leads Suit by 44 States Against Generic Drug Companies Alleging Price Fixing
May 13, 2019. Forty-four state attorneys general, led by the Connecticut AG, are suing a number of generic drug manufacturers for price fixing. The case was filed in the U.S. District Court for the District of Connecticut. For more information and documents, see the Health Care, Disability, and Development page of this website.

President Claims Executive Privilege in Response to Attorney General Requests
May 9, 2019. President Trump yesterday claimed executive privilege with respect to documents and other matters associated with the Mueller investigation in response to the request from Attorney General Barr to do so. The formal claim of privilege was made in a letter from Assistant Attorney General Stephen E. Boyd to House Judiciary Committee Chairman Jerrold Nadler. It is a claim for "protective privilege" which Boyd says "ensures the President's ability to make a final decision whether to assert privilege following a full review of these materials" and citing an Office of Legal Counsel (OLC) opinion entitled "Protective Assertion of Executive Privilege Regarding White House Counsel's Office Documents," 20 Op. O.L.C. 1 (1996).
   Read Attorney General Barr's Request for Executive Privilege.
   Read Boyd's Letter to Nadler Invoking Executive Privilege.
   Read the May 1996 OLC opinion on "Protective Assertion of Executive Privilege. . . ."

The Office of Legal Counsel Memoranda on Prosecuting Presidents, the Mueller Report, and More Recent Documents in the Ongoing Controversy Over the Report and Congressional Reactions
May 8, 2019. Since the release by the Attorney General of a redacted version of the Mueller Special Counsel investigation report, there have been any number of references to the Justice Department's Office of Legal Counsel memoranda concerning whether the president could be indicted or prosecuted for criminal wrongdoing. Indeed, the Mueller report indicated that this policy within the Justice Department was central to the way the report was written and its conclusions. The Attorney General has also referred to the policy. The original documents are two memoranda: "Amenability of the President, Vice President and other Civil Officers to Federal Criminal Prosecution while in Office," September 24, 1973, and "A Sitting President's Amenability to Indictment and Criminal Prosecution," October 16, 2000. Because of their importance to the current discussion of the report and the actions of the Attorney General and other people in the Trump Administration, those documents are posted below.
   Also, on March 27, the Special Counsel sent a letter to the Attorney General expressing concerns about the AG's brief summary of the report and the way materials were being released. That discussion is part of an ongoing congressional discussion about future testimony in pending congressional hearings. That letter is provided below.
   Finally, the public interest group Protect Democracy published a May 6 "Statement by Former Federal Prosecutors" who served during administrations of both political parties in a wide range of offices from Special Counsel staff (from earlier times) to line prosecutors to U.S. Attorneys and more, which stated that: "Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller's report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice." At the time of that posting, the letter has been signed by 735 such attorneys. This statement attracted national attention when the Washington Post published an article about it. Link to the statement and the are posted below.
   To round out the set of documents, the redacted version of the Mueller report and the Attorney General's summary of it are reposted below.
   Read the Special Counsel Mueller's letter to Attorney General Barr of March 27, 2019.
   Read the 1973 Office of Legal Counsel Memorandum .
   Read the 2000 Office of Legal Counsel Memorandum.
   Read the Statement by Former Prosecutors.
   Read the Washington Post Article about the Statement by Former Prosecutors.
   Read the Redacted Version of Special Counsel Robert Mueller's Report as Released by Attorney General Barr.
   Read Attorney General William Barr's Summary for Congress of the Mueller Report Conclusions, March 24, 2019.
   Read Attorney General William Barr's Remarks on the Release of the Report of the Special Counsel.

Trump Administration Relaxes Safety Rules Put in Place After the Deep Water Horizon Oil Rig Disaster
May 3, 2019. The Trump administration has just announced the publication of a new final rule governing safety and blowout protections on oil and gas rigs ["Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Blowout Preventer Systems and Well Control Revisions" (WCR)], as part of its effort to reduce regulatory requirements in general and to facilitate increased exploration and production of ocean-based petroleum operations, which replaces rules put in place in 2016 after investigations of the BP Deepwater Horizon Disaster. For more information and key documents, see the Sustainable Development page of this website.

Trump Administration Issues Sweeping New 'Conscience' Exemptions from Mandatory Services and Coverage
May 2, 2019. The Department of Health and Human Services Office of Civil Rights has issued a sweeping new final rule entitled "Protecting Statutory Conscience Rights in Health Care; Delegations of Authority," which is designed to dramatically expand the ability of various providers, insurers, and other organizations to refuse to provide health care services or coverage based on their claim that they object on the basis of conscience. For more information and documents, see the Health Care, Disability, and Development page of this website.

DOJ Moves to Strike Down Full Affordable Care Act
May 2, 2019. The Trump administration has changed position in a critically important case challenging the Affordable Care Act. In the U.S. district court, the administration argued in favor of the ability to sever any parts of the ACA that the court would strike in the Texas v. United States case. However, yesterday it filed a brief in the Fifth Circuit calling on that court to reject severability and strike sown the entire Affordable Care Act. For more information and documents, see the Health Care, Disability, and Development page of this website.

D.C. Federal District Allows a Third Emoluments Clause Case to Move Forward
May 1, 2019. Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia has denied a motion to dismiss an Emoluments Clause suit against President Trump. This is the latest in a number of cases launched by individuals and states against President Trump alleging violations of the Constitution's emoluments clause.
Read Judge Sullivan's Memorandum Opinion in Blumenthal v. Trump.

Trump Issues Presidential Memorandum Attempting to Force Policy Changes to Restrict Asylum
April 30, 2019. President Trump late yesterday issued a presidential memorandum that makes a number of demands on the Department of Homeland Security to make the asylum process more difficult and to require fees of those seeking asylum among other matters.
Read the Presidential Memorandum.

U.S. District Court Issues Nationwide Injunction Again Trump Administration Rules on Funding for Family Planning
April 30, 2019. Judge Stanley A. Bastian of the U.S. District Court for the Eastern District of Washington has issued a nationwide injunction blocking the Trump administration's rules placing denying funding to organizations that provide any information or services related to abortion. The case Washington v. Azar was brought by the state attorney general as well as family planning advocacy groups. As Judge Bastian explained in his order, "Plaintiffs contend the Final Rule is in excess of the agency’s statutory authority, is arbitrary and capricious, violates the Administrative Procedures Act, violates Title X requirements, violates congressional Non-directive Mandates, violates Section 1554 of the Patient Protection and Affordable Care Act (“ACA”), and is otherwise unconstitutional."
Read the Order Granting the Preliminary Inunction.
Read the Washington Attorney General's press release on the case.

Attorney General Releases Special Counsel Report
April 8, 2019. Attorney General William Barr has released a redacted version of the report issued by Special Counsel Robert Mueller.
Read the Redacted Version of Special Counsel Robert Mueller's Report as Released by Attorney General Barr.
Read Attorney General William Barr's Remarks on the Release of the Report of the Special Counsel.

Federal Reserve Announces Relaxation of Banking Rules
April 8, 2019. The Federal Reserve announced today that, in cooperation with the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency, the Fed was announcing proposed rules that would relax some of the requirements put in place after the 2008 economic crash. The authority to take these kinds of actions to relax requirements imposed by the Dodd/Frank legislation and other measures adopted after the 2008 crach came from the Economic Growth, Regulatory Relief, and Consumer Protection Act, P.L. 115-174, enacted in 2018. That legislation, as the Congressional Budget Office (CBO) explained in its analysis of the bill, modified "provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd Frank Act) and other laws governing regulation of the financial industry. The bill would change the regulatory framework for small depository institutions with assets under $10 billion (community banks) and for large banks with assets over $50 billion. The bill also would make changes to consumer mortgage and credit-reporting regulations and to the authorities of the agencies that regulate the financial industry." Congressional Budget Office Cost Estimate, p. 1. The CBO estimate, however, did caution that the relaxation of regulation increases risk, even if at this point it was unclear just how much of a risk and could result in challenges should there be another serious economic downturn. Of course, the amount of risk depends in part on the rules implementing the regulation and just how much they relax the current regulatory regime.
   Read the Federal Reserve Press Release on the New Rules.
   Read notice of proposed rulemaking.
   Read the second notice of proposed rulemaking.
   Read the Economic Growth, Regulatory Relief, and Consumer Protection Act.
   Read CBO Cost Estimate for S. 2155 which became the P.L. 115-174.

D.C. Circuit Joins District Court in Rejecting Challenge to ATF Rule Banning "Bump Stocks" on Weapons
April 8, 2019. A panel of the D.C. Circuit Court of Appeals has affirmed a ruling by the district court rejecting a collection of challenges brought against the Bureau of Alcohol, Tobacco, and Firearms (ATF) bump-stock ban rule issued in December 2018, following calls for actions to ban so-called bump-stocks that transform a firearm into an automatic weapon, which is what happened in the dramatic assault on concert-goers in Las Vegas where 58 died and many more were seriously injured. The various challengers originally sought a preliminary injunction against the bad, but the district court rejected their suit in February and the D.C. Circuit, acting on an expedited scheduled, has now affirmed. Judge Henderson filed an opinion concurring in part and dissenting in part.
   Read the D.C. Circuit Opinion.
   Read the District Court Opinion.
   Access the ATF Bump Stock Final Rule.

Justice Department Finds Serious Conditions of Confinement Violations in Alabama Prisons
April 8, 2019. Assistant Attorney General for Civil Rights Eric Dreiband has sent a notice letter to Alabama's Governor notifying him that a recent investigations of men's correctional facilities indicates a number of serious violations of the Eighth Amendment prohibition on cruel and unusual punishment and calling for negotiations leading to correction of these violations and warning that the DOJ will file suit if no action is taken in 49 days. For more information and key documents, see the Civil Rights page of this website.

A Third District Court Rules Against Commerce Secretary Decision to Place Citizenship Question in Census
April 6, 2019. Judge George J. Hazel of the U.S. District Court for the District of Maryland is now the third federal district judge to rule against Commerce Secretary Wilbur Ross's decision to include a question on citizenship in the 2020 census. For more information on this and the previous two rulings on the census question, see the Refugees and Immigrants page of this website.

Federal Court in Alaska Finds Trump Executive Order to Offshore Allow Drilling Violates Statute
April 1, 2019. Judge Sharon L. Gleason of the U.S. District Court for the District of Alaska has rejected President Trump's order aimed at allowing drilling on areas of the outer continental shelf, finding that: "Section of Executive Order 13795, which purported to revoke prior presidential withdrawals of OCS lands for leasing, is unlargul, as it exceeded the President's authority under Section 12(a) of OCSLA [Outer Continental Shelf Lands Act]." League of Conservation Voters v. Trump, Order re Motions for Summary Judgment, at 30. For the documents, see the Sustainable Development page of this website.

U.S. District Court Rejects Trump Administration Labor Department Rule the Judge Finds is an Attempt to "End Run" the Affordable Care Act
March 30, 2019. Judge John R. Bates of the U.S. District Court for the District of Columbia has issued an opinion rejecting a Trump administration Labor Department rule that Bates found was nothing less than a deliberate "end run" around the requirements of the Affordable Care Act. For more information and key documents, see the Healthcare, Disability, and Development page of this website.

Federal District Court Issues Rulings Against Trump Administration Work Rules for Medicaid Benefits
March 28, 2019. Judge James E. Boasberg of the U.S. District Court for the District of Columbia has issued opinions in cases ruling against mandatory work rules that apply to those receiving Medicaid benefits under programs in Arkansas and Kentucky approved by the Trump administration. These programs resulted from a letter to state governors from the Secretary of Health and Human Services and the head of the Centers for Medicare and Medicaid Services (CMS) indicating that the administration would use its demonstration authority under the Affordable Care Axt to approve state restrictions on Medicaid that included work requirements. Arkansas and Kentucky were two of the states that responded to the administrations invitation and had work rules approved for recipients in their states. In Arkansas those rules required online reporting of compliance with the work rules which resulted in 16,900 people losing their benefits. Judge Boasberg had ruled against the changes in the Kentucky case in June 2018, but provided an opportunity for a demonstration that the changes actually served the congressionally stated purposes of Medicaid. The state and HHS again approved the work restrictions and the plaintiffs brought the case back to cout.
   In ruling against the solicitation letter from the HHS secretary and later approvals of state plans, Judge Boasberg wrote in the Arkansas case that: "The Court has said this before and will say it again: if, as Arkansas and HHS admit (and this Court has found), ensuring Medicaid coverage for the needy is a key objective of the Act, the Secretary’s failure to consider the effects of the project on coverage alone renders his decision arbitrary and capricious; it does not matter that HHS deemed the project to advance other objectives of the Act." Gresham v. Azar, opinion at 23. He also issued a separate ruling on the same day against the Kentucky program in Stewart v. Azar (Stewart II). Kentucky had argued that because it could choose not to participate in the Medicaid extension under the ACA, according to the Supreme Court in the Sebelius case, it could choose to continue contingent on the rules it set. The judge rejected that claim, finding: "The Court cannot concur that the Medicaid Act leaves the Secretary so unconstrained, nor that the states are so armed to refashion the program Congress designed in any way they choose. As a consequence, once again finding the reapproval was both contrary to the Act and arbitrary and capricious, the Court will vacate it and remand to HHS for further review." Id., at 3.
   Read the Opinion in the Arkansas case.
   Read the opinion in the Kentucky case.
   Read the June 29, 2018 ruling in the Kentucky case..
   Read the March 14, 2017 "Dear Governor" letter from HHS.

Purdue Pharma Settles Oklahoma Opioid Suit
March 27, 2019. Judge Thad Balkman of the District Court for Cleveland County, Oklahoma has entered a Consent Judgment approving the $270 million settlement of an opioid case brought by the Attorney General of Oklahoma in connection with serious opioid addiction and death associated with the drugs. Purdue released a statement on the agreement and the first of a number of companies that have been charged in various case to reach a major settlement.
   Read the Consent Judgment.
   Read the Oklahoma Attorney General's Press Release on the Case.
   Read Purdue Pharma's Press Release on the Settlement.

President Issues Executive Order on Campus Speech
March 22, 2019. President Trump yesterday issued an executive order entitled Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. Most of the order concerns reporting and disclosure policies related to student loans. However, Section 3 of the order, entitled "Improving Free Inquiry on Campus," states in pertinent part: "To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies." The order does not say anything more about implementation. It merely indicates the agencies to which the order is direct. "[T]he Departments of Defense, the Interior, Agriculture, Commerce, Labor, Health and Human Services, Transportation, Energy, and Education; the Environmental Protection Agency; the National Science Foundation; and the National Aeronautics and Space Administration." It adds that the order does not include "funding associated with Federal student aid programs that cover tuition, fees, or stipends.
Read the Executive Order.

New Zealand Prime Minister Announces Post-Attack Gun Policy Changes
March 21, 2019. New Zealand Prime Minister Jacinda Ardern has announced major change in firearms regulation using an Order in Council pending full consideration of legislation in Parliament. The policy bans military style assault weapons or any kind of parts that will allow conversion of other weapons into that kind of weapon. For more information and the key documents, see the Sustainable Development page of this website.

White House Updates FY2020 Budget Proposal Materials
March 21, 2019. The White House released the President's budget request for FY 2020 on March 11. At that time, the Office of Management and Budget released the the budget proposal and the "fact sheets," but not some of the other key documents, including the "Major Savings and Reforms for FY 2020" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds. Those materials have now been released and all of the key budget documents are posted below.
   A group of 14 generals and admirals who are former combatant commanders quickly issued a statement in response to the proposed increases in defense spending and decreases in foreign policy and international development funding which was posted on this page on March 11 and is repeated here.
   Download the FY 2020 Budget proposal as a single .pdf document, including the President's Message to Accompany the FY 2019 Budget.
   Download the FY 2020 Budget Facts Sheets by Topic.
   Access the Major Savings and Reforms for FY 2020 document.
   Access the FY2020 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY 2020 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the FY 2020 Federal Credit Supplement (information on direct loans and loan guarantees by the Federal Government.
   Access the FY 2020 Supplemental Materials website, including Federal Credit Supplement and other items.
   Access the U.S. Department of Education, Fiscal Year 2020 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2020 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2020 Budget-in-Brief.
   Read the Statement by Former U.S. Combatant Commanders.

Connecticut Supreme Court Allows Sandy Hook Suit to Move Forward
March 15, 2019. The Connecticut Supreme Court has issued an opinion in Soto v. Bushmaster Firearms International allowing the parents of children killed in the Sandy Hook Elementary School mass shooting to move forward with one of the claims made in a suit they filed against the manufacturer of the weapon used in the attach, Bushmaster Firearms International. Bushmaster is a Remington Arms company. The company had challenged the suit on a variety of grounds, including the claim that federal statute protected them from liability for actions committed by others using their weapons. Justice Richard N. Palmer, wrote for the 5-3 majority: "The defendants counter that all of the plaintiffs' legal theories are not only barred under Connecticut law, but also precluded by a federal statute, the Protection of Lawful Commerce in Arms Act (PLCAA), Pub. L. No. 109-92, 119 Stat. 2095 (2005) . . . which, with limited exceptions, immunizes firearms manufacturers, distributors, and dealers from civil liability for crimes committed by third parties using their weapons. . . . [W]e agree with the defendants that most of the plaintiffs' claims and legal theories are precluded by established Connecticut law and/or PLCAA. . . . The plaintiffs have offered one narrow legal theory, however, that is recognized under established Connecticut law. Specifically, they allege that the defendants knowingly marketed, advertised, and promoted the XM15-E2S for civilians to use to carry out offensive, military style combat missions against their perceived enemies. Such use of the XM15-E2S, or any weapon for that matter, would be illegal, and Connecticut law does not permit advertisements that promote or encourage violent, criminal behavior. Following a scrupulous review of the text and legislative history of PLCAA, we also conclude that Congress has not clearly manifested an intent to extinguish the traditional authority of our legislature and our courts to protect the people of Connecticut from the pernicious practices alleged in the present case. The regulation of advertising that threatens the public's health, safety, and morals has long been considered a core exercise of the states' police powers. Accordingly, on the basis of that limited theory, we conclude that the plaintiffs have pleaded allegations sufficient to survive a motion to strike and are entitled to have the opportunity to prove their wrongful marketing allegations." The court released the preliminary opinion online, but the formal release date is March 19 and the preliminary opinion is subject to change until then.
   Justice Robinson issued a dissent joined by Justice Vertegeuille and Elgo.
   Read the Connecticut Supreme Court Majority Opinion.
   Read the Read the Connecticut Supreme Court Dissenting Opinion.
   Read the Protection of Lawful Commerce in Arms Act.

President Issues Executive Order Deleting Obama Administration Directive Requiring Casualty Information Reporting
March 14, 2019. President Trump has issued Executive Order 13862 which revokes Section 3 of Executive Order 13732 issued by President Obama in 2016. The deleted section reads as follows. "Sec. 3. Report on Strikes Undertaken by the U.S. Government Against Terrorist Targets Outside Areas of Active Hostilities. (a) The Director of National Intelligence (DNI), or such other official as the President may designate, shall obtain from relevant agencies information about the number of strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities from January 1, 2016, through December 31, 2016, as well as assessments of combatant and non-combatant deaths resulting from those strikes, and publicly release an unclassified summary of such information no later than May 1, 2017. By May 1 of each subsequent year, as consistent with the need to protect sources and methods, the DNI shall publicly release a report with the same information for the preceding calendar year.(b) The annual report shall also include information obtained from relevant agencies regarding the general sources of information and methodology used to conduct these assessments and, as feasible and appropriate, shall address the general reasons for discrepancies between post-strike assessments from the U.S. Government and credible reporting from nongovernmental organizations regarding non-combatant deaths resulting from strikes undertaken by the U.S. Government against terrorist targets outside areas of active hostilities.(c) In preparing a report under this section, the DNI shall review relevant and credible post-strike all-source reporting, including such information from nongovernmental sources, for the purpose of ensuring that this reporting is available to and considered by relevant agencies in their assessment of deaths.(d) The Assistant to the President for National Security Affairs may, as appropriate, request that the head of any relevant agency conduct additional reviews related to the intelligence assessments of deaths from strikes against terrorist targets outside areas of active hostilities."
Read Executive Order 13862.
Read President Obama's Executive Order 13732.

Judge Sabraw Issues Order Expanding Plaintiff Class in Family Unification Case
March 9, 2019. Judge Dana M. Sabraw of the U.S. District Court for the Southern District of California has issued a new order in a case that has been pending before him concerning family reunification following on Trump administration's zero tolerance policy that separated parents and children entering the U.S. He has expanded those who qualify for particpation in the class action lawsuit. For more information and key documents, see the Refugees and Immigrants page of this website.

Another Federal District Court Rules Against Commerce Department Decision to Include a Citizenship Question in the 2020 Census
March 7, 2019. U.S. District Judge Richard Seeborg of the Northern District of California yesterday issued Findings of Fact and Conclusions of Law in California v. Ross, concluding that Secretary Wilbur Ross decision to include a question about citizenship in the 2020 census violated both the Administrative Procedure Act and the Enumeration Clause of the United States Constitution. For more information and documents, see the Refugees and Immigrants page of this website.

D.C. Circuit Rejects Challenge to Special Counsel's Appointment
February 26, 2019. A three judge panel of the D.C. Circuit rejected a challenge to the validity of the appointment of Special Counsel Robert Mueller. The Court wrote: "Andrew Miller appeals an order holding him in contempt for failing to comply with grand jury subpoenas served on him by Special Counsel Robert S. Mueller, III. He contends the Special Counsel’s appointment is unlawful under the Appointments Clause of the Constitution, and therefore the contempt order should be reversed. We affirm." In re: Grand Jury Investigation," at 2.
Read the Opinion.

House Debates Resolution to Terminate the Emergency Declared by President Trump
February 26, 2019. The House today is debating and will vote on H.J. Res. 46, a resolution to terminate the declaration of an emergency and directives with respect to the U.S. border. For more information and key documents, see the Refugees and Immigrants page of this website.

California and Multiple States File Suit Challenging the Emergency
February 18, 2019. The Attorney General of California joined by fifteen other states has filed suit in the U.S. Ditrict Court for the Northern District of California challenging President Trump's emergency declaration and diversion of funds to construct a border barrier. The states are seeking declaratory and injunctive relief.
Read the Complaint.

Still More Litigation Filed Against Emergency Declaration by County of El Paso and Others
February 22, 2019. El Paso County, Texas and the Border Network for Human Rights are the latest plaintiffs to bring suit challenging President Trumps emergency declaration and directive to reprogram funds for a border wall. For more information and documents, see the Refugees and Immigrants page of this website.

More Litigation Filed Against Emergency Declaration by the Sierra Club and the Southern Border Communities Coalition
February 22, 2019. The American Civil Liberties Union, Sierra Club, ACLU of Texas, and the ACLU of Northern California along with the Sierra Club have filed suit on behalf of the Souther Border Communities Coaliton and the Sierra Club in another challenge to President Trump’s emergency powers declaration and directive on funding a wall. For more information and documents see the Refugees and Immigrants page of this website.

Third Circuit Upholds District Court Ruling Against Attorney General Sessions Effort to Pull Back Funds from So-Called Sanctuary Cities
February 18, 2019. The Third Circuit has issued an opinion affirming a June 2018 district court ruling that included an injunction against the Attorney General's effort to pull funding from so-called sanctuary cities. For more information the documents, see the Refugees and Immigrants page of this website.

Legal Challenges to Presidential Border Wall Proclamation Begin
February 16, 2019. A number of states, local governments, and nongovernmental organizations have promised suits challenging President Trump's proclamation of an emergency on the southern border with some filed the same day the president took action. Citizens for Reponsibility and Ethics in Washington (CREW)filed suit in the U.S. District Court for the District of Columbia and the County of El Paso brought suit in the District Court for the Southern District of Texas. Governors and attorneys general in a number of states have also promised to challenge the proclamation and decision to take funds from appropriations previously approved for other purposes for the construction of a border wall. The CREW case is specifically a suit against the U.S. Department of Justice for allegedly violating the Freedom of Information Act requests of CREW for information related to the president's emergency declaration decision.
Read the CREW Complaint.

President Declares National Emergency in Proclamation Issued as He Signed Spening Bill
February 15, 2019. The president has sign H.J.Res. 31 the Consolidated Appropriations Act for 2019 and at the same time issued a proclamation declaring an emergency on the southern border.
Read the Proclamation.
Read the spending bill H.J.Res 31.

GAO Announces "Science, Technology Assessment and Analytics (STAA) Team"
January 15, 2019. The U.S. Government Accountability Office today announced: "Today we launched a new Science, Technology Assessment and Analytics (STAA) team, expanding our work on cutting-edge science and technology issues. STAA will focus on: Technology assessments and technical services for the Congress, Auditing federal science and technology programs,Compiling and utilizing best practices in the engineering sciences, including cost, schedule, and technology readiness assessment,and Establishing an audit innovation lab to explore, pilot, and deploy new advanced analytic capabilities, information assurance auditing, and emerging technologies that are expected to greatly impact auditing practices." GAO "WatchBlog" post.
Read the GAO WatchBlog Post Announcing STAA.
Access the New STAA Website.

Supreme Court Stays Lower Court Injunctions Against Trump Policy on Transgender Persons in the Military
January 22, 2019. The Supreme Court has issued a stay of the lower court injunctions that prohibited the Trump administrations directive on transgender persons in the military from taking effect pending a decision from the 9th Circuit in the case or the Court's decision on whether to grant certiorari and hear the case if the government seeks that review. For more information and documents, see the Civil Rights page of this website.

General Services Administrator Inspector General Criticizes GSA Failure to Address Emoluments Clauses Problems with Trump Lease of the Old Post Office Building
January 16, 2019. The Inspector General of the General Services Administration (GSA) has issued a report strongly critical of the failure of the GSA to carefully consider the apparent constitutional and other issues with the lease for the new Trump Washington hotel after Mr. Trump was elected president. The report explains that by mid-December 2016, the GSA's attorneys had "agreed there was a possible violation of the Foreign Emoluments Clause but decided not to address the issue." The IG explains: "We conclude that decision was improper for several reasons:(1) as a federal agency, GSA is subject to the Constitution, which also is incorporated into the OPO lease;(2) GSA already had determined that the Foreign Emoluments Clause bars a federal employee from doing business with a foreign government in his private capacity, a conclusion reinforced by instruction OGC received from OGE;(3) OGC ignored OLC's binding legal opinions on the Emoluments Clauses, even though OGC OPO attorneys knew that OLC issued opinions involving both President Reagan and President Obama; and (4) OGC failed to seek OLC's guidance, even though the GSA OPO attorneys knew that OLC issued opinions on the Foreign and Presidential Emoluments Clauses." Evaluation of GSA's Management and Administration of the Old Post Office Building Lease, p. 16.
There is currently litigation pending based upon emoluments clauses issues. See earlier postings on this webpage.
Read the Report.

Federal District Court Rules Against Commerce Department Decision to Include a Citizenship Question in the 2020 Census
January 15, 2019. Judge Jesse Furman of the U.S. District Court for the Southern District of New York has issued a ruling in New York v. U.S. Department of Commerce against Commerce Secretary Wilbur Ross's decision to add a citizenship question to the 2020 census. For the documents and more information, see the Refugees and Immigrants page of this website.

Two Federal District Courts Block Trump Administration's Employer Waivers for Women's Health Care Mandate Under the ACA
January 15, 2019. Federal district courts in California and Pennsylvania have blocked two Trump administration rules, scheduled to take effect on January 14, 2019, that would allow waivers for employers who have moral or religious objections to providing contraceptives to women employees as required by the Affordable Care Act. The California injunction, issued by Judge Haywood Gilliam, was limited to a number of states, but the ruling issued by Judge Wendy Beetlestone of the U.S. District Court for the Eastern District of Pennsylvania is a nationwide injunction. For the key documents and more information, see the Civil Rights page of this website.

President Signs Foundations for Evidence-Based Policymaking Act of 2018
January 15, 2019. President Trump has signed into law H.R. 4174, the Foundations for Evidence-Based Policymaking Act of 2018. See more about the act in the posting below.
White House Release About the Signing.

Foundations for Evidence-Based Policymaking Act of 2018 Goes to President for Signature
December 31, 2018. (Updated January 8, 2019) The House by a vote of 356-17 has agreed to Senate amendments and has sent to the president for signature H.R. 4174, Foundations for Evidence-Based Policymaking Act of 2018. In addition to Title I, on Federal Evidence Building Activities, the legislation also contains Title II which is the Open, Public, Electronic, and Necessary Government Data Act or the OPEN Government Data Act and Title III, the Confidential Information Protection and Statistical Efficiency Act of 2017. As the Congressional Research Service summary explains, Title I "[R]equires departments and agencies identified in the Chief Financial Officers Act to submit annually to the Office of Management and Budget (OMB) and Congress a plan for identifying and addressing policy questions relevant to the programs, policies, and regulations of such departments and agencies. The plan must include: (1) a list of policy-relevant questions for developing evidence to support policymaking, and (2) a list of data for facilitating the use of evidence in policymaking. The OMB shall consolidate such plans into a unified evidence building plan. The bill establishes an Interagency Council on Evaluation Policy to assist the OMB in supporting government-wide evaluation activities and policies. The bill defines 'evaluation' to mean an assessment using systematic data collection and analysis of one or more programs, policies, and organizations intended to assess their effectiveness and efficiency. Each department or agency shall designate a Chief Evaluation Officer to coordinate evidence-building activities and an official with statistical expertise to advise on statistical policy, techniques, and procedures. The OMB shall establish an Advisory Committee on Data for Evidence Building to advise on expanding access to and use of federal data for evidence building." CRS Summary.
   Then House Speaker Paul Ryan sponsored legislation in 2015 which became law in March 2016 to create a commission to study evidence-based policymaking and make recommendations. The Commission reported in September 2017. The new bill, H.R. 4174 came as a result of that. The links to the commission act, the commission report, and the House Committee Report on H.R. 4174 are provided below.
   Access the Enrolled Bill version of Foundations for Evidence-Based Policymaking Act of 2018.
   Access the Evidence-Based Policymaking Commission Act of 2016.
   Final report of the Commission on Evidence-Based Policymaking.
   House Committee Report for H.R. 4174.

U.S. District Court Rejects Trump Administration's Narrowing of Asylum Credible Fear Determination
December 20, 2018. U.S. District Judge Emmet G. Sullivan has issued an injunction against a set of actions taken by then Attorney General Sessions determined to issue his own ruling in an asylum case known as In the Matter of A-B- in which he narrowed the criteria that an asylum seeker could use in a bid for refugee status and asylum in the U.S. For more information and key documents in the case, see the Refugees and Immigrants page of this website.

Speech Pathologist Sues Challenging Texas Contract Requirement that the Contractor Will Not Boycott Israel
December 18, 2018. A speech pathologist who was a longtime contractor with a Texas school district has brouht suit in the U.S. District Court for the Western District of Texas challenging a 2017 state statute that required contractors to promise that they do not and will not boycott Israel claimin a violation of the First Amendment. For more information and the complaint in the case, see the Public Contract Manaement page of this website.

GovInfo.ov Replaces Federal Digital System
December 17, 2018. The transition is now complete and the GovInfo.ov website has replaced the Federal Digital System (FDsys.gov as the basic reference source for federal documents.Because of that change, this website will be undergoing updates to ensure accurate links.
Access Govinfo.gov.

District Court Judge in Texas Declare the Affordable Care Act Illegal
December 15, 2018. Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas has ruled that in light of the 2017 tax revisions, the Affordable Care Act is illegal. For more information and the opinion, see the Health Care, Disability, and Development page of this website

EU Court of Justce Rules that Britain Can Unilaterally Withdraw Its Notice of Intent to Leave the European Union
December 10, 2018. The Court of Justice for the European Union announced today that Britain can unilaterally withdraw its statement of intent to leave the EU notwithstanding the steps taken to this point to separate from it. "In today's judgment, the Full Court has ruled that, when a Member State has notified the European Council of its intention to withdraw from the European Union, as the UK has done, that Member State is free to revoke unilaterally that notification. That possibility exists for as long as a withdrawal agreement concluded between the EU and that Member State has not entered into force or, if no such agreement has been concluded, for as long as the two-year period from the date of the notification of the intention to withdraw from the EU, and any possible extension, has not expired. The revocation must be decided following a democratic process in accordance with national constitutional requirements. This unequivocal and unconditional decision must be communicated in writing to the European Council. Such a revocation confirms the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State and brings the withdrawal procedure to an end." Court of Justice Press Release at 1-2.
   Read Judgment and Order of the Court.
   Read the Opinion of the Advocate General.
   Read EU Court of Justice Press Release on the opinion.
   Access the Website for the Court of Justice of the European Union.

Third Circuit Upholds New Jersey Limit on High Capacity Gun Magazines
December 7, 2018. A panel of the U.S. Circuit Court of Appeals for the Third Circuit has upheld a New Jersey law limiting gun magazines. Writing for the majority, Judge Shwartz said: "Today we address whether one of New Jersey's responses to the rise in active and mass shooting incidents in the United States-a law that limits the amount of ammunition that may be held in a single firearm magazine to no more than ten rounds-violates the Second Amendment, the Fifth Amendment's Takings Clause, and the Fourteenth Amendment's Equal Protection Clause. We conclude that it does not. New Jersey's law reasonably fits the State's interest in public safety and does not unconstitutionally burden the Second Amendment’s right to self-defense in the home. The law also does not violate the Fifth Amendment's Takings Clause because it does not require gun owners to surrender their magazines but instead allows them to retain modified magazines or register firearms that have magazines that cannot be modified. Finally, because retired law enforcement officers have training and experience that makes them different from ordinary citizens, the law’s exemption that permits them to possess magazines that can hold more than ten rounds does not violate the Fourteenth Amendment's Equal Protection Clause. We will therefore affirm the District Court’s order denying Plaintiffs' motion to preliminarily enjoin enforcement of the law." Assoc. of New Jersey Rifle and Pistol Clubs v. Attorney General of New Jersey, Opinion, at 4-5. There was one dissenting judge.
Read the opinion.

New York Judge Rejects President's Effort to Dismiss State Attorney General Suit Against Trump Foundation and Its Officers As Barred by U.S. Constitution
November 23, 2018. New York Supreme Court Justice Saliann Scarpulla, citing the 1997 Clinton v. Jones ruling by the U.S. Supreme Court, rejected a motion by President Trump to dismiss a suit against him brought by the New York Attorney General, alleging illegal operation of the Trump foundation. The president's attorneys had argued that the Supremacy Clause, Article 6, § 2, barred the suit.
Read the Decison and Order.
Read the NY Attorney General Press Release on the Ruling.

District Court Judge Rules Federal Criminal Law Against Female Genital Mutilation Unconstitutional
November 23, 2018. Judge Bernard A. Friedman of the U.S. District Court for the Eastern District of Michigan has dismissed charges in a criminal case alleging female genital mutilation concluding the federal statute was unconstitutional both because he asserts that it violates principles of federalism and is not supported by the commerce clause of Article I. The Justice Department had argued, in addition to their position that Congress had power under the commerce and the necessary and proper clauses of Article I to act, the legislation was also justified by the U.S. treaty obligations under the International Covenant on Civil and Political Rights. For detailed information and the Opinion and Order as well as the statute, see the Civil Rights page of this website.

Judge Issues Temporary Restraining Order on Trump Limits on Asylum Process
November 20, 2018. U.S. District Judge Jon S. Tigar has granted a temporary restraining order against President Trump's Proclamation 9822 which limited asylum seekers to designated ports of entry from Mexico into the United States. For full information about the East Bay Sanctuary Covenant v. Trump case and relevant documents, see the Refugees and Immigrants page of this website.

Federal District Judge Rules in Favor of CNN and Acosta and Against the President's Decision to Remove Reporter's Press Pass
November 16, 2018. Judge Timothy J. Kelly of the U.S. District Court for the Disctrict of Columbia has issued a temporary restraining order against the Trump administration's decision to remover the press pass of CNN White House reported James Acosta, citing Fifth Amendment due process protections. The Cable News Network (CNN) and its Chief White House correspondent, James Acosta, had filed suit in connection with the administration decision to remove Acosta's so-called "hard pass" credential that allowed him quick access to the White House like other regular correspondents.
Read the Transcript and Order.
Read the complaint.

Presidential Actions Place Limits on Asylum Process Sparking Legal Challenges
November 15, 2018. President Trump, in a widely publicized action on November 9, issued Proclamation 9822 entitled "Addressing Mass Migration Through the Southern Border of the United States" which limited asylum seekers to designated ports of entry from Mexico into the United States." On that same day, U.S. Citizenship and Immigration Services, the Department of Homeland Security; the Executive Office for Immigration Review, and the Department of Justice issued an interim final rule entitled "Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for Protection Claims." The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights immediately filed suit East Bay Sanctuary Covenant v. Trump challenging the new policy. For more information and relevant documents, see the Refugees and Immigrants page of this website.

CNN Sues Trump and Others for Removing Reporter's Press Pass
November 13, 2018. The Cable News Network (CNN) and its Chief White House correspondent, James Acosta, have filed suit in the District Court for the District of Columbia again President Trump and other administration officials alleging violations of the First and Fifth Amendments to the U.S. Constitution and the Administrative Procedure Act in connection with the administration decision to remove Acosta's so-called "hard pass" credential that allowed him quick access to the White House like other regular correspondents.
Read the complaint.

Federal District Court Issues Injunction Against Keystone XL Pipeline
November 9, 2018. Federal Disrict Judge of the Dictrict of Montana has issued an injunction against the Keystone pipeline, finding that the decisions to proceed did not meet the "hard look" requirements of the National Environmental Policy Act and the Adminisrative Procedure Act. For more information and the order, see the Sustainable Development page of this website.

9th Circuit Upholds Ruling Against Trump Administration Attempt to Stop DACA Program
November 8, 2018. A panel of the U.S. Circuit Court of Appeals for the 9th Circuit has upheld a district court ruling that blocked the Trump administration's attempt to eliminate the DACA (Deferred Action for Childhood Arrivals) program. Given its previous attempt to have the Supreme Court hear the case, it is highly likely that the administration will appeal promptly. For more information and the opinion, see the Refugees and Immigrants page of this website.

Supreme Court Stays Further Action in Oregon Climate Change Case
October 22, 2018. Chief Justice Roberts issued a stay on Friday in the case that began as Juliana v. United States, a suit originally brought by 21 children at the time, as well as an environmental advocacy group and a former NASA scientist seeking to mandate action by the courts against the federal government to ensure that took serious steps to deal with climate change that will particularly affect future generations. They asserted that the failure to do so violates the Fifth Amendment to the Constitution. For more information and the relevant documents, see the Sustainable Development page of this website.

District Court Clears Path for Student Borrower Protection Rules
October 17, 2018. Judge Randolph D. Moss of the U.S. District Court for the District of Columbia yesterday issued an opinion California Association of Private Postsecondary Schools v. DeVos which followed a September 12 ruling in Bauer v. DeVos, both dealing with efforts to block implementation of rules issues by the Obama administration in November of 2016 on the subject of protections for student borrowers. The current Department of Education had sought to delay implementation of the rules, but multiple plaintiffs challenged that action. In September, Moss ruled that: [T]he Section 705 Stay was arbitrary and capricious and thus unlawful under the Administrative Procedure Act ('APA'); that the Interim Final Rule [by the current administration] was, for the most part, moot; and that the Final Delay Rule was issued in violation of the Higher Education Act’s negotiated rulemaking requirement." However, the judge stayed his order pending a decision in a case filed by the California Association of Private Postsecondary Schools. In the October 16 opinion, Moss rejected the petition for a preliminary injunction which clears the way for the Obama era rules to go into effect.
   Read the October 16 Memorandum Opinion.
   Read the September 12 Opinion.
   Access the 2016 Rules.

Centers for Medicare and Medicaid Services Announced Proposed Rule on Drug Price Tranparency
October 16, 2018. The Centers for Medicare and Medicaid Services (CMS) has issued a proposed rule that would mandate disclosure of drug prices in television advertising. For more information and the documents, see the Health Care, Disability, and Development page of this website.

Senate Commerce Committee Holds Hearings on Data Privacy Driven by New California law and EU Policy
September 21, 2018. Senate Commerce Committee holds hearing entitled "Consumer Data Privacy: Examining Lessons From the European Union's General Data Protection Regulation and the California Consumer Privacy Act." This hearing and negotiations over a possible federal statute follow on industry reaction to the new California Consumer Privacty Act of 2018 (AB-375)The discussion is also driven in part by the EU experience under the Directive 95/46/EC(General Data Protection Regulation (GDPR).
   This hearing follows a September 26 hearing in which Internet and Communications company executives testified.
   Access Read California's AB-375 as Signed by the Governor and Chaptered.
   Access the Senate Commerce Committee page on today's hearing.
   Access the Senate Commerce Committee page on the September 26, 2018 hearing. (Previous heading video is archived on the site.)
   Read the EU's Directive 95/46/EC(General Data Protection Regulation.
   Access the EU webpage on Personal Data Protection.

Intergovernmental Panel on Climate Change Issues Latest Report With Dire Warnings
October 8, 2018. The International Panel on Climate Change (IPCC) has issued the latest in its series of reports. In releasing the "Special Report" today, the IPCC said in its press release that: "Limiting global warming to 1.5°C would require rapid, far-reaching and unprecedented changes in all aspects of society, the IPCC said in a new assessment. With clear benefits to people and natural ecosystems, limiting global warming to 1.5°C compared to 2°C could go hand in hand with ensuring a more sustainable and equitable society." For the key documents, see the Sustainable Develoment page of this website.

The Supreme Court Begins Work on Its October Term 2018
October 2, 2018. The U.S. Supreme Court begins its October 2018 term. As usual, the Court issued a lengthy order list on the first day of its new term. The current granted and noted lists and other information on the docket as well as the briefs and oral arguments follow.
Start of October term Order List and Cases Granted and Noted List.
   Order List for October 1.
   October Term 2018 Granted and Noted List as of Septmber 27, 2018.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page NOTE: The page for the 2018-2019 term has not yet been posted. The posted page at present is the 2017-2018 set of briefs. This link will be updated when the new page is available.
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "SCOTUS Blog."
   Access SCOTUS Blog

U.S. Department of Transportation Issues Final Rule Rolling Back Oil Train Brake Safety Requirements
September 26, 2018. The Pipeline and Hazardous Materials Safety Administration (PHMSA) in the U.S. Department of Transportation (DOT) issued a final rule entitled: "Hazardous Materials: Removal of Electronically Controlled Pneumatic Brake System Requirements for High Hazard Flammable Unit Trains." It rolls back rules issued in 2015 by the same agency during the Obama administration. For more information and related documents, see the Sustainable Development page of this website.

Federal District Judge Overturns Delisting of Grizzly Bears
September 25, 2018. Chief Judge Dana L. Christensen of the U.S. District Court for the District of Montana has issued an order in a case that consolidated several suits that had challenged the delisting of grizzly bears from the Endangered Species Act. He began his order by stating clearly that: "In this Order, the Court vacates the June 30, 2017 Final Rule of the United States Fish and Wildlife Service delisting the Greater Yellowstone Ecosystem population of grizzly bears, and restores Endangered Species Act status to the Greater Yellowstone grizzly." Crow Indian Tribe v. United States, Order, at 1. For more information and the court's order, see the Sustainable Development page of this website.

Library of Congress Launches Publicly Available CRS Reports Website
Septembner 21, 2018. The Library of Congress has launched the new and now publicly available Congressional Research Service Reports website which was mandated by Section 154 of the Consolidated Appropriations Act 2018. Until the passage of that legislation, the LOC took the position that the CRS reports were prepared for the use of Congress and did not make them available to the public, though other websites (see CRS reports information on this webpage) did make many of them available online.
Access the CRS Reports Library of Congress Page.
Read P.L. 115-141 Consolidated Appropriations Act 2018.

Settlement Reached in Case Challening Trump Administration Asylum Actions
September 13, 2018. The Legal Aid Justice Center and the Muslim Advocates have announced a settlement with the Justice Department in three consolidated cases, Dora v. Sessions, Ms. L. v. ICE, and M.M.M. v. Sessions, that challenged the Trump administration's asylum procedures under their zero-tolerance and family-separation policies. For more information and the key documents, see the Refugees and Immigrants page of this website.

Supreme Court of India Strikes that Criminalized Gay Sex
September 6, 2018. The Supreme Court of India, in an opinion by Dipak Misra in Jophar v. Union of India, No. 76 of 2016, September 6, 2018, has struck down Section 377 of India’s penal code that outlaws sexual conduct between adults of the same sex and overturned previous precedent upholding that prohibition. For more information and the opinion, see the Civil Rights page of this website.

Confirmation Hearings for Brett M. Kavanaugh as Associate Justice of the Supreme Court Begin Tomorrow
September 3, 2018. The Senate Judiciary Committee begins hearing tomorrow on the confirmation of Judge Brett M. Kavanaugh as Associate Justice of the U.S. Supreme Court. In addition to the lengthy questionnaire, the webpage created by the committee also provides a large volume of material, submitted in the form of appendices to the questionnaire, to accompany the nominee's responses to the specific questions posed. These contain his speeches, writings, and citations to his judicial opinions. They also provide a range of letters submitted to the committee by others concerning the nomination.
   The committee has provided an online portal to watch the hearings live along with a schedule and list of witnesses. Tomorrow will be largely consumed with the opening statements of the members of the committee and the nominee. The hearing is scheduled to begin at 9:30 am Eastern.
   Read Kavanaugh's Responses to Judicial Committee Questions.
   Access the confirmation materials, including the questionnaire and the relevant appendices.
   View the Live Video and Access the Schedule and List of Witnesses from the Committee.

GAO Report on 2020 Census Finding Challenges and Risks with Developing, Testing, and Securing IT Systems
September 3, 2018. The Government Accountability Office has issued a new report on the status of preparations for the 2020 census which found continuing "challenges and risks with developing, testing, and securing IT systems." Summarizing its findings, the GAO found four general areas of significant difficulty, including "schedling management," "contractor oversight," "IT cost growth," and "cybersecurity." For more information and the report, see the Public Contract Management page of this website.

Federal District Court Issue Bars Release of Computer Aid Design Files for Plastic Guns
August 27, 2018. U.S. District Court Judge Robert S. Lasnik who issued a temporary restraining order prohibiting a company and its leader from publishing computer aided design files for guns that can be created with a standard 3-D printer at the end of July has not issued a preliminary injunction in that case. This began as a lawsuit filed by the Washington Attorney General and joined by seven other states and the District of Columbia. (See August 1 pposting below.) The federal government had previously barred distribution of the materials and those actions had prevailed at the district court and court of appeals level, but the Trump administration entered into a settlement with the group involved and in July changed the rules to allow distribution of the information.
Read the Preliminary Injunction.
Read the Washington AG press release on the Prelimnary Injunction.

Judge Strikes Trump Executive Orders on Civil Service Changes
August 25, 2018. Judge Ketanji Brown Jackson, of the U.S. District Court for the District of Columbia has found three executive orders issued earlier this year by President Trump intended to change the management and ability to terminate public employees to have exceeded his authority and violated the employees rights under the Federal Service Labor-Management Relations Act (FSLMRS) "[T]his Court will enjoin the President's subordinates within the Executive Branch to disregard: sections 5(a), 5(e), and 6 of Executive Order 13,836; sections 3(a), 4(a), and 4(b) of Executive Order 13,837; and sections 3, 4(a), and 4(c) of Executive Order 13,839. In this Court's view, these directives undermine federal employees' right to bargain collectively as protected by the FSLMRS, and as a result, the President must be deemed to have exceeded his authority in issuing them."American Federation of Government Employees v. Trump, Memorandum Opinion, at 7.
   Read The Memorandum Opinion.
   Read Executive Order 13,836 ("The Collective Bargaining Procedures Order").
   Read Executive Order 13,837 ("The Official Time Order").
   Read Executive Order 13,839 ("The Removal Procedures Order".

EPA Issues Replacement for Obama Era Clean Power Plan
August 21, 2018. The U.S. Environmental Protection Agency has released what it calls the Affordable Clean Energy (ACE) Rule which the administration indicates is the replacement for the Obama administration's Clean Power Plan. For more information and documents, see the Sustainable Development page of this website.

Ninth Circuit Upholds Ruling Against Trump Administration on Sanctuary Cities
August 2, 2018. A panel of the Ninth Circuit rejected a Trump administration appeal against a ruling that its sanctuary cities policies violated the separation of powers among other factors, but vacated the nationwide injunction and remanded the case. For more information and the opinion, see the Refugees and Immigrants page of this website.

Federal District Court Issue Bars Release of Computer Aid Design Files for Plastic Guns
August 1, 2018. U.S. District Court Judge Robert S. Lasnik has issued a temporary restraining order prohibiting a group and its leader from publishing computer aided design files for guns that can be created with a standard 3-D printer in a lawsuit filed by the Washington Attorney General. The other plaintiffs in the case included Connecticut, Maryland, New Jersey, New York, Oregon, Massachusetts, Pennsylvania, and the District of Columbia. The federal government had previously barred distribution of the materials and those actions had prevailed at the district court and court of appeals level, but the Trump administration entered into a settlement with the group involved and in July changed the rules to allow distribution of the information.
   Read the Temporary Restraining Order.
   Read the Complaint in the Suit Filed by the Washington Attorney General.
   Read the Washington AG press release on the Suit.

Federal District Court Rejects Trump Effort to Dismiss Emoluments Clause Suit
July 25, 2018. Judge Peter J. Messittee of the U.S. District Court for the District of Maryland has issued an opinion allowing the suit by the District of Columbia and the state of Maryland against President Trump for violations of the emoluments clause of the Constituion to move forward, refusing the administration's motion to dismiss for failure to state a valid cause of action. Judge Messittee had ruled against the administration back in March when it had sought dismissal of the case on standing grounds. Today's opinion is posted below as is the ruling on standing and the original complaint filed by the District of Columbia and the state of Maryland. For more information, see the posting below for March 29.
   Read the Most Recent Opinion.
   Read the March Opinion on Standing.
   Read the DC and MD Complaint.

Confirmation Process for Nomination of Bret Kavanaugh as Associate Justice of the Supreme Court is Now Underway
July 22, 2018. As is the committee's practice in nominations, the Senate Judiciary Committee has published the questionnaire completed by Judge Bret Kavanaugh as part of the process of confirmation of his nomination to be an Associate Justice of the United States Supreme Court. In addition to the lengthy questionnaire, the webpage created by the committee also provides a large volume of material, submitted in the form of appendices to the questionnaire, to accompany the nominee's responses to the specific questions posed. These contain his speeches, writings, and citations to his judicial opinions.
Read Part II Roberts' Responses to Judicial Committee Questions.
Access the confirmation materials, including the questionnaire and the relevant appendices.

States Challenge Congressional Limit on State and Local Tax Deductions
July 19, 2018. The New York Attorney General has announced the filing of a lawsuit by New York, Connecticut, Maryland, and New Jersey in the U.S. District Court for the Southern District of New York naming the secretary of the treasury and challenging the limits placed on the state and local tax deductions (SALT) by the major tax overhaul enacted as P.L. 115-97. In announcing the suit, the Attorney General Barbara D. Underwood said:"An analysis by the New York State Department of Taxation and Finance shows that the cap will increase New Yorkers’ federal taxes by $14.3 billion in 2018 alone, and an additional $121 billion between 2019 and 2025. As set forth in the complaint, the law flies in the face of centuries of precedent, which establishes constitutional limits on the federal government’s ability to use its tax power to interfere with the sovereign authority of the states." The complaint asserts that in enacting the SALT changes, "Congress has violated the Tenth Amendment and exceeded the federal government’s tax power under Article I, Section 8 and the Sixteenth Amendment to the United States Constitution. It has also violated the constitutional guarantee of equal state sovereignty." New York v. Mnuchin, Civil Action No. 18-cv-6427, U.S. District for the Southern District of New York, Complaint for Declaratory and Injunctive Relief, July 17, 2018, at 34.
   Read the Complaint.
   Read the New York Attorney General's Press Release on the Suit.
   Access P.L. 115-97.

Federal Judge Issues Injunction Against DHS Treatment of Asylum Seekers
July 3, 2018. Judge James E. Boasberg of the U.S. District Court for the District of Columbia has issued a prelimnary injunction against the Secretary of Homeland Security finding that DHS is in violation of its own policies about the treatment of asylum seekers. For more information and the opinion, see the Refugees and Immigrants page of this website.

Federal Court Mandates Deadline for Reunifying Families Separated from the their Families at the Border
June 27, 2018. Judge Dana M. Sabaraw of the U.S. District Court for the Southern District of California has issued a preliminary injunction mandating that the Trump administration reunify families that were separated at the border within specified deadlines and in no case later than 30 dates.
Read opinion.

Sharply Divided Supreme Court Upholds Trump Travel Ban
June 26, 2018. Chief Justice Roberts has authored an opinion for a 5-4 majority upholding the Trump travel ban.
Read the opinion.

Federal Court Rules Against Attorney General and in Favor of Philadelphia in Sanctuary Cities Case
June 7, 2018. Agreeing in many respects with a previous ruling in a case in Chicago, a federal district court in Philadelphia has ruled against Attorney General Sessions' effort to impose immigration cooperation conditions on federal Justice Assistance Grants and to "claw back" funds already provided to the city, on grounds that the AG's actions exceeded his statutory authority, violated the Administrative Procedure Act, violated the separation of powers as an intrusion on the taxing and spending powers of Congress under Article I of the Constitution, and commandeering state and local officials to enforce federal policy in light of the Tenth Amendment.
Read opinion.

U.S. District Court Rules Against President on Twitter Case
May 23, 2018. Judge Naomi Reice Buchwald of the U.S. District Court for the Southern District of New York has rejected President Trump's claim that he has the complete ability to block a person from his Twitter account. She wrote: "This case requires us to consider whether a public official may, consistent with the First Amendment, “block” a person from his Twitter account in response to the political views that person has expressed, and whether the analysis differs because that public official is the President of the United States. The answer to both questions is no." Knight First Amendment Institute v. Trump, 17 Civ. 5205 (NRB), Memorandum and Order, at 1. She indicated that although she could issue injunctive relief against the president, she would for now simply make a declaratory judgment. "Because no government official is above the law and because all government officials are presumed to follow the law once the judiciary has said what the law is, we must assume that the President and Scavino will remedy the blocking we have held to be unconstitutional." Id. at 74.
Read the Memorandum and Order.

Commerce Department Issues Severe Sanctions Against Chinese Company ZTE for Violating 2017 Settlement Agreement
May 23, 2018. The Acting Assistant Secretary of Commerce, RIchard R. Majauskas, has issued an "Order Activating Suspended Denial Order Relationg to Zhongxing TeleCommunications Equipment Corporation and ZTE Kangxun Telecommunications" [ZTE] on grounds that the company committed serious violations of a settlement agreement it signed in March 2017. At that time in 2017, the company pled guilty to a number of criminal charges and settled civil charges. Attorney General Sessions said in part on that occasion: "ZTE Corporation not only violated export controls that keep sensitive American technology out of the hands of hostile regimes like Iran’s – they lied to federal investigators and even deceived their own counsel and internal investigators about their illegal acts. . . . This plea agreement holds them accountable, and makes clear that our government will use every tool we have to punish companies who would violate our laws, obstruct justice and jeopardize our national security." Justice Department Press Release. The Commerce Department finding that hey violated the terms of their settlement agreement resulted in placing the denial order blocking trade until 2025, which was a key sanction that was suspended at the time of the settlement.
   In a press release announcing the imposition of the denial order against ZTE, Commerce Secretary Wilbur Ross said: "In March 2017, ZTE agreed to a combined civil and criminal penalty and forfeiture of $1.19 billion after illegally shipping telecommunications equipment to Iran and North Korea, making false statements, and obstructing justice including through preventing disclosure to and affirmatively misleading the U.S. Government. In addition to these monetary penalties, ZTE also agreed a seven-year suspended denial of export privileges, which could be activated if any aspect of the agreement was not met and/or if the company committed additional violations of the Export Administration Regulations (EAR). The Department of Commerce has now determined ZTE made false statements to BIS in 2016, during settlement negotiations, and 2017, during the probationary period, related to senior employee disciplinary actions the company said it was taking or had already taken. ZTE’s false statements only were reported to the U.S. Government after BIS requested information and documentation showing that employee discipline had occurred. ZTE made false statements to the U.S. Government when they were originally caught and put on the Entity List, made false statements during the reprieve it was given, and made false statements again during its probation.” said Secretary of Commerce Ross. These false statements covered up the fact that ZTE paid full bonuses to employees that had engaged in illegal conduct, and failed to issue letters of reprimand. ZTE misled the Department of Commerce. Instead of reprimanding ZTE staff and senior management, ZTE rewarded them. This egregious behavior cannot be ignored." Press Release
   President Trump has indicated a desire to be helpful to ZTE and indicated a desire to find away to do that, but it extremely unclear just how that would happen.
   Read the Commerce Department Order Activating Suspended Denial Order Relationg to Zhongxing TeleCommunications Equipment Corporation and ZTE Kangxun Telecommunications" ZTE.
   Read Commerce Secretary's Press Release on the Ruling Imposing the Denial Order.
   Read the March 2017 Settlement Agreement.
   Read the Department of Justice Press Release Explaining the Guilty Pleas and Settlements by ZTE with the Department of Commerce and Department of the Treasury .

House to Vote on Amendment to Dodd/Frank Regulatory Legislation
May 22, 2018. The House this afternoon passed S. 2155, entitled the "Economic Growth, Regulatory Relief, and Consumer Protection Act" which amends the Dodd/Frank legislation and relaxes a number of aspects of regulation of financial institutions. The bill was previous passed by the Senate and now goes to the president for signature.
Read the bill.

President Cancels Iran Nuclear Agreement and Orders Sanctions Reimposed
May 8, 2018. President Trump today signed a presidential memorandum ending U.S. participation in the Joint Comprehensive Plan of Action (JCPOA) on Iran’s nuclear program. In so doing, he made remarks explaining his decision. In addition to directing the Secretary of State and others to take the steps necessary to end U.S. participation, the memorandum also states that: "The Secretary of State and the Secretary of the Treasury shall immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA, including those under the National Defense Authorization Act for Fiscal Year 2012, the Iran Sanctions Act of 1996, the Iran Threat Reduction and Syria Human Rights Act of 2012, and the Iran Freedom and Counter-proliferation Act of 2012. These steps shall be accomplished as expeditiously as possible, and in no case later than 180 days from the date of this memorandum. The Secretary of State and the Secretary of the Treasury shall coordinate, as appropriate, on steps needed to achieve this aim. They shall, for example, coordinate with respect to preparing any recommended executive actions, including appropriate documents to re-impose sanctions lifted by Executive Order 13716 of January 16, 2016; preparing to re-list persons removed, in connection with the JCPOA, from any relevant sanctions lists, as appropriate; revising relevant sanctions regulations; issuing limited waivers during the wind-down period, as appropriate; and preparing guidance necessary to educate United States and non-United States business communities on the scope of prohibited and sanctionable activity and the need to unwind any such dealings with Iranian persons. Those steps should be accomplished in a manner that, to the extent reasonably practicable, shifts the financial burden of unwinding any transaction or course of dealing primarily onto Iran or the Iranian counterparty."
Read the Presidential Memorandum.
Read the President's Remarks on Issuing the Memorandum Ending U.S. Participation in the Iran Agreement.

Supreme Court Releases Oral Argument Audio and Transcript in Trump Travel Ban Case
April 25, 2018. The Supreme Court today heard oral argument in the Trump v. Hawaii case concerning the president's travel ban. In an unusual move, the Court released the audio of the oral argument almost immediately following the argument. For the transcript and the audio, see the Refugees and Immigrants page of this website.

Supreme Court Strikes Key Language that Allows Deportations in Immigration Act
April 17, 2018. Justice Kagan wrote for a five to four majority in Sessions v. Dimaya, finding a key provision of the Immigration and Nationality Act (INA) unconstitutionally vague. For more information and the opinion, see the Refugees and Immigrants page of this website.

President Pardons I. Lewis (Scooter) Libby.
April 15, 2018. President Trump has issued a full pardon to I. Lewis (Scooter) who had been convicted accirding to the justice department of obstruction of justice; false statements; and two counts of perjury and sentenced originally to 30 months' imprisonment, two years' supervised release, and a $250,000 fine. In July 2007, President George W. Bush commuted "the prison terms imposed by the sentence upon the said Lewis Libby to expire immediately, leaving intact and in effect the two-year term of supervised release, with all its conditions, and all other components of the sentence." 72 Fed. Reg. 37095 (July 2, 2007). President Bush issued a statement on issuing the communtation, but President Trump chose instead to have the press secretary make a brief statement on the action.
   Read the Trump Full Pardon of Libby.
   Read the Press Secretary's Statement on Trump Full Pardon of Libby.
   Read President Bush's Commutation of Libby's Sentence.
   Read President Bush's Statement Accompanying the Commutation of Libby's Sentence.

Treasury Signs Memo of Agreement on OMB Involvement in Rulemaking on Tax Matters
April 13, 2018. The Secretary of the Treasury and the Director of the Office of Management and Budget Office of Information and Regulatory Affairs director have signed a memorandum of agreement on the manner in which OMB will work with Treasury as that department issues new or changed tax rules and specifically the manner in which OMB will review proposed rules.
Read the MOA.

U.S. District Court Judge Issues Nationwide Injunction Against Attorney General Immigration Cooperation Mandate on Local Jurisdictions Seeking Federal Law Enforcement Grant Funds
April 12, 2018. U.S. District Judge Manuel Real issued a nationwide permanent injunction in a case brought by the City of Los Angeles against Attorney General Sessions regarding federal government denial of funding to the city under the COPS Hiring Program (CHP grant) for failure to guarantee cooperation with federal immigration enforcement policy. For more information and the opinion, see the Regugees and Immigrants page of this website.

President Trump Issues Executive Order Calling for Agencies to Enhance Work Requirements and Enforce Immigration Policy on Assistance Programs
April 11, 2018. The president yesterday issued a new executive order entitled “Reducing Poverty in America by Promoting Opportunity and Economic Mobility.” The operative section of the order is Section 3 which mandates that several cabinet departments seek to impose work requirements on public support programs and also include attention to immigration matters. It presents the following mandates to the named cabinet departments. "Sec. 3. Review of Regulations and Guidance Documents. (a) The Secretaries of the Treasury, Agriculture, Commerce, Labor, Health and Human Services, Housing and Urban Development, Transportation, and Education (Secretaries) shall: (i) review all regulations and guidance documents of their respective agencies relating to waivers, exemptions, or exceptions for public assistance program eligibility requirements to determine whether such documents are, to the extent permitted by law, consistent with the principles outlined in this order; (ii) review any public assistance programs of their respective agencies that do not currently require work for receipt of benefits or services, and determine whether enforcement of a work requirement would be consistent with Federal law and the principles outlined in this order; (iii) review any public assistance programs of their respective agencies that do currently require work for receipt of benefits or services, and determine whether the enforcement of such work requirements is consistent with Federal law and the principles outlined in this order; (iv) within 90 days of the date of this order, and based on the reviews required by this section, submit to the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy a list of recommended regulatory and policy changes and other actions to accomplish the principles outlined in this order; and (v) not later than 90 days after submission of the recommendations required by section 3(a)(iv) of this order, and in consultation with the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, take steps to implement the recommended administrative actions. (b) Within 90 days of the date of this order, the Secretaries shall each submit a report to the President, through the Director of the Office of Management and Budget and the Assistant to the President for Domestic Policy, that: (i) states how their respective agencies are complying with 8 U.S.C. 1611(a), which provides that an alien who is not a “qualified alien” as defined by 8 U.S.C. 1641 is, subject to certain statutorily defined exceptions, not eligible for any Federal public benefit as defined by 8 U.S.C. 1611(c); (ii) provides a list of Federal benefit programs that their respective agencies administer that are restricted pursuant to 8 U.S.C. 1611; and (iii) provides a list of Federal benefit programs that their respective agencies administer that are not restricted pursuant to 8 U.S.C. 1611."
Read the Executive Order.

Justice Department Files Motion as Amicus Curiae in Massive Suit Attacking Prescription Opiate Issue
April 8, 2018. The United States Department of Justice has a filed a motion asking to participate in settlement negotiations now pending a massive miltidistrict case against prescription opiate producers and distributors that consolidates some 46 separate cases filed by state and local governments across the nation which is now pending before Judge Dan A. Polster in the U.S. District Court for the Northern District of Ohio. Judge Polster has organized the case with negotiating teams of counsel in the case whose work is being facilitated by three special masters appointed by the court in January.
   Read the DOJ Motion to Participate in Settlement Discussions and as Friend of the Court in In re National Prescription Opiate Litigation.
   Read the March 5, 2018 Status Report.
   Read the December Transfer Order of the Panel on MiltiDistrict Litigation Consolidating the 46 cases into the one In re National Prescription Opiate Litigation case in the U.S. District Court for the Northern District of Ohio.
   Read the January 11, 2018 Order Appointing Special Masters to Facilitate Negotiations and Case Processing.
   Read the Minutes of the First Settlement Conference in the Opiates Case January 31, 2018.
   Read the February 7, 2018 Order Establishing Negotiating Teams to Work with the Special Masters.
   Read the March 7 Order Mandating a Case Management Order for the Case to Move Forward.
   Access the U.S. District Court for the Northern District of Ohio Webpage on the case.

U.S. District Court Allows Emoluments Case Against President Trump to Move Forward
March 29, 2018. Judge Peter J. Messittee of the U.S. District Court for the District of Maryland has issued an opinion allowing the suit by the District of Columbia and the state of Maryland against President Trump, alleging violations of the Emoluments Clause of the Constitution to move forward at least insofar as the federal government had challenged the standing of the plaintiffs to bring the suit. The judge had indicated that he would deliver a separate opinion on the subject of standing, which means that the other motions to dismiss are still pending. The opinion explains that: "[T]he Court DENIES-IN-PART the Motion to Dismiss and finds that Plaintiffs do have standing to challenge the actions of the President with respect to the Trump International Hotel and its appurtenances in Washington, D.C., as well as the operations in the Trump Organization with respect to them. It GRANTS-IN-PART WITHOUT PREJUDICE the Motion to Dismiss as to Plaintiffs’ standing with respect to the operations of the Trump Organization and the President’s involvement in the same outside the District of Columbia. The Court DEFERS ruling on other arguments in the Motion to Dismiss pending further oral argument." District of Columbia v. Trump, Slip op., at 2.
   Read the Opinion.
   Read the DC and MD Complaint.
   Read the DOJ Motion to Dismiss.

Commerce Secretary Announces Census Will Ask About Citizenship and California AG Sues
March 27, 2018. Commerce Secretary Wilbur Ross has issued a memorandum directing that the Census include a question on citizenship and the California quickly filed suit, seeking a preliminary injunction against the policy in the U.S. District Court for the Northern District of California. In February, the attorneys general of 19 states and the District of Columbia sent a letter to the secretary of commerce asking that the question not be included and warning that in their view it would be illegal. For more information and documents, see the Regugees and Immigrants page of the website.

President Trump Issues Memorandum Changing Policy on Transgender Persons in the Military
March 24, 2018. President Trump issued a memorandum yesterday rescinding his previous directive on transgender persons in the military issued in August and putting in place a new memorandum on the subject which includes more restrictions and authorizes the Secretary of Defense to implement his proposed new policy restrictions on those in the military. This follows on a February 22 memorandum from Secretary Mattis to President Trump and cites the report of a study Mattis instituted on the subject. For more information and relevant documents about this and the previous policies, see the Civil Rights page of this website.

Congress Makes Public Proposed Consolidated Appropriations Act for the Rest of Fiscal Year
March 22, 2018. The leaders of both houses have released the text of the Consolidated Appropriations Act, 2018 which is designed to complete funding for the fiscal year.
Access the Draft Bill.

Fifth Circuit Court of Appeals Strikes the Fiduciary Rule
March 21, 2018. A panel of the United States Circuit Court of Appeals for the Fifth circuit ruled 2 to 1 in Chamber of Commerce v. Department of Labor to strike down the so-called Fiduciary Rule issued by the Department of Labor which was intended to prevent conflicts of interest by the managers of retirement accounts. (See the posting for February 3, 2017 below). In the process, the majority reversed the district court ruling, Chamber of Commerce v. Hugler, 231 F. Supp. 3d 152 (NDTX 2017). Judge Edith H. Jones wrote for the majority, explaining that: “The business groups’ challenge proceeds on multiple grounds, including (a) the Rule’s inconsistency with the governing statutes, (b) DOL’s overreaching to regulate services and providers beyond its authority, (c) DOL’s imposition of legally unauthorized contract terms to enforce the new regulations, (d) First Amendment violations, and (e) the Rule’s arbitrary and capricious treatment of variable and fixed indexed annuities.” Slip op., at 3. She went on to focus the discussion. “The principal question is whether the new definition of an investment advice fiduciary comports with ERISA Titles I and II. Alternatively, is the new definition “reasonable” under Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984) and not violative of the Administrative Procedures Act (APA), 5 U.S.C. § 706(2)(A) (2016)? p. 12 She went on to challenge the DOL interpretation of ERISA and rejected the idea that deference was due the agency. She concluded: The APA states that a “reviewing court shall…hold unlawful and set aside agency action…found to be…arbitrary, capricious,…not in accordance with law” or “in excess of statutory …authority[] or limitations.” 5 U.S.C. § 706(2)(A), (C). . . . [T]he Fiduciary Rule and BICE exemption apart from the illegal arbitration waiver. In any event, this comprehensive regulatory package is plainly not amenable to severance. Based on the foregoing discussion, we REVERSE the judgment of the district court and VACATE the Fiduciary Rule in toto." (emphasis in original) Id., at 46.
    Chief Judge Carl E. Stewart dissented, arguing that the DOL interpretation of its statutory authority was reasonable under the Chevron standard and its decision to issue the rule was not arbitrary and capricious in violation of the APA.
   Read the Fifth Circuit Opinion and Dissent.
   Read the District Court Opinion.

Trump Administrative Issues President's Management Agenda
March 20, 2018. The Trump administration today announced the President's Management Agenda (PNA). In announcing the PMA, the administration indicated that it "lays out a long-term vision for modernizing the Federal Government in key areas that will improve the ability of agencies to work on behalf of the American people to: Deliver mission outcomes, Provide excellent service, and Effectively steward taxpayer dollars. To move from vision to action, the Administration will focus on modernizing three key drivers of transformation: Modern information technology (IT) will function as the backbone of how Government serves the public in ways that meet their expectations and keep sensitive data and systems secure.Data, accountability, and transparency will provide the tools to deliver visibly better results to the public and hold agencies accountable to taxpayers. A modern workforce that builds on the Administration’s proposed civil service reforms to empower senior leaders and front-line managers to align staff skills with evolving mission needs. In order to advance change across the Federal enterprise, the President’s Management Agenda is establishing Cross-Agency Priority—or CAP—goals for each of the three key areas. These CAP Goal will be led by an interagency team of senior Federal leaders and staff. Because accountability is important part of the PMA, CAP goal results will be tracked publicly each quarter online at www.performance.gov/PMA ." OMB, PMA website.
   Read the President's Management Agenda.
   Access the President's Management Agenda Materials at OMB website.
   Access the President's Management Agenda Materials at Performance.gov.

Attorney General Gives Speech to California Law Enforcement Officers on Suit Against the State's Santuary Policies
March 7, 2018. Attorney General Sessions today delivered an address to the California Peace Officers' Association conference, sharply attacking the state's officials and their support for sanctuary policies and explaining his decision to bring suit against the state, its governor, and attorney general (see post below). For more information on the speech and the United States v. California suit, see the Refugees and Immigrants page of this website.

U.S. Department of Justice Files Suit Against California as a Sanctuary Jurisdiction
March 7, 2018. The Department of Justice has filed suit against the state of California, its governor Edmund G. Brown, Jr., and its attorney general, Xavier Becerra, seeking declaratory and injunctive relief against these officials and asking the court to declare several state statutes implementing the states sanctuary policies void as violative of Supremacy Clause (Article VI) of the Constitution and preempted by federal law. For more information and relevant documents, see the Refugees and Immigrants page of this website.

Federal Court to Hear Suit Against President Trump's Restrictions on Comments on His Twitter Account
March 6, 2018. The U.S. District Court for the Southern District of New York will hear arguments on Thursday, March 8, in a case brought by the Knight First Amendment Institute at Columbia University challenging President Trumps practice of blocking critics on his Twitter account. The case, Knight First Amendment Institute v. Trump, Case 1:17-cv-05205, is particularly important because of the arguments about whether the account is a public forum, given the way it has been used and characterized by the President and his administration, and the discussion about the status of a Tweet as a policy document or public document when used as the president has employed them.
   Read the Complaint filed in July 2017.
   Read the Government's Motion for Summary Judgment.
   Access the Knight Institute's Webpage with all Legal Documents in the Case.

Second Circuit Finds Discrimination in Employment on the Basis of Sexual Orientation a Violation of Title VII
February 26, 2018. The U.S. Circuit Court of Appeals for the Second Circuit, sitting en banc, reversed existing precedents in the circuit and ruled today that discrimination on the basis of sexual orientation is sex discrimination in violation of Title VII of the Civil Rights Act of 1964. For more information and the opinion, see the Civil Rights page of this website.

Supreme Court Refuses to Take the DACA Case before Judgment in the Ninth Circuit
February 26, 2018. The U.S. Supreme Court has denied the Trump administration's request for the Court to take up the DACA case, DHS v. Regents of the University of California, 17-1003, before the Ninth Circuit Court of Appeals has completed its review. The grant of certiorari before judgment is rare, but does happen in some cases. For more information and the relevant documents, see the Refugees and Immigrants page of this website.

District Court Issues Injunction Against Trump Administration Effort to Repeal Obama Era Rule on Gas and Oil Leaks and Waste
February 21, 2018. Judge William H. Orrick of the U.S. District Court for the Northern District of California has issued an injunction against the Bureau of Land Management (BLM) which has announced its repeal of parts and revisions of other portions of the Waste Prevention, Production Subject to Royalties, and Resource Conservation Rule aimed at stopping flaring of natural gas and dealing with oil leaks, along with other practices that resulted in waste of resources and pollution. While that matter was pending, BLM announced a suspension of portions of the Waste Prevention rule. Judge Orrick issued his injunction against that suspension rule. For more information and relevant documents, see the Sustainable Development page of this website.

White House Announces FY2019 Budget Proposal
February 23, 2018. The White House has released the President's budget request for FY 2019. After the base budget was prepared, Congress passed legislation changing the budget limits and that is addressed by the White House in an Addendum to the FY 2019 Budget. Along with the full budget request and the budget overview document, the White House has issued the "Major Savings and Reforms for FY 2019" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, fact sheets by subject, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   Also posted below are the budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency.
   Download the FY 2019 Addendum to the Budget from the Bipartisan Budget Act of 2018.
   Download the FY 2019 Budget proposal as a single .pdf document, including the President's Message to Accompany the FY 2019 Budget.
   Download the FY 2019 Budget Facts Sheets by Topic.
   Access the Major Savings and Reforms for FY 2019 document.
   Access the FY2019 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY 2019 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the FY 2019 Supplemental Documents website, including Federal Credit Program Information and Budget Date Spreadsheets among other items.
   Access the FY 2019 Supplemental Documents website, including Federal Credit Supplement.
   Access the U.S. Department of Education, Fiscal Year 2019 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2019 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2019 Budget-in-Brief.
   Access USASpending.gov

President Issues Memorandum to Address "Bump Stocks"
February 21, 2018. President Trump has issued a memorandum to the Attorney General to complete the review of federal rules defining a "machine gun" to determine whether it includes devices like so-called "bump stocks" that can convert a weapon into the equivalent of a fully automatic weapon. The Justice Department had already launched a rulemaking process on that subject with an "Advanced Notice of Proposed Rulemaking published in December 2017. The DOJ indicated that it issued an ANPRN rather than going directly to a notice of proposed rulemaking because "the Department and ATF need to gather information and comments from the public and industry regarding the nature and scope of the market for these devices." That comment period ended on January 25, 2018.
Read the Memorandum.
Read the DOJ Advanced Notice of Proposed Rulemaking.

Fourth Circuit Joins Ninth in Ruling Against Most Recent Trump Administration Travel Ban
February 18, 2018. The U.S. Circuit Court of Appeals for the Fourth Circuit has now joined the Ninth Circuit in ruling against the most recent version of the Trump administration's travel ban issued in Proclamation 9645 issued in September. In an en banc ruling with a variety of concurring and dissenting opinions taking the full document over 285 pages, the court affirmed the district court's ruling issuing an injunction on grounds that they plaintiffs will likely prevail on their establishment of religion claim under the First Amendment. For more information and key documents, see the Refugees and Immigrants page of this website.

Supreme Court to Hear Travel Ban Version 3
January 20, 2018. The Supreme Court has agreed to hear the Trump administration's appeal of the ruling against the third version of President Trump's travel ban published as Proclamation 9645. For more information, see the Refugees and Immigrants page of this website.

Attorney General Announces Intent to Take District Court Ruling Direct to the Supreme Court
January 16, 2018. (Updated January 20, 2018) The Department of Justice announced that it is filing a notice of appeal of Federal District Court Judge William Alsup's injunction against the decision to terminate the DACA program in the 9th Circuit, but the news release also indicated that: "The Department also intends later this week to take the rare step of filing a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court. See the posting for January 11 below for more information on Judge Alsup's ruling. For more information, see the Refugees and Immigrants page of this website.

Attorney General Announces Intent to Take District Court Ruling Direct to the Supreme Court
January 16, 2018. The Department of Justice announced today that it is filing a notice of appeal of Judge William Alsup's injunction against the decision to terminate the DACA program in the 9th Circuit, but the news release also indicated that: "The Department also intends later this week to take the rare step of filing a petition for a writ of certiorari before judgment, seeking direct review in the Supreme Court.
Read the Justice Department Announcement.

Attorney General Sessions Rescinds Obama Administration Marijuana Enforcement Policy
January 4, 2018. Attorney General Jefferson Sessions today issued a memorandum for U.S. Attorneys rescinding Obama era policy that downplayed enforcement of federal drug laws in cases involving marijuana unless there was some other serious crime related to it. The origins of that policy go back early into the administration, but the most recent version was a 2013 memorandum that followed decisions by some states to legalize marijuana. The new policy leaves to the U.S. attorneys to exercise prosecutorial discretion consistent with Justice Department guidance.
   Read the Attorney General's Memorandum.
   Read the Justice Department Press Release.
   Read the 2013 Obama administration memorandum.

President Trump Disbands Voting Fraud Investigation Commission
January 4, 2018. President Trump yesterday issued a new executive order which revokes Executive Order 13799 of May 11, 2017 that created the Presidential Advisory Commission on Election Integrity. The new executive order provides no statement or explanation as to why the commission was being terminated, however it comes after Maine Secretary of State Michael Dunlap obtained a judicial ruling against the commission, of which he was a member, requiring disclosure about the work of the commission. That ruling was issued by D.C. District Judge Colleen Kollar-Kotelly issued a preliminary injunction in the case of Dunlap v. Presidential Advisory Committee on Election Integrity, Case 1:17-cv-02361-CKK, requiring disclosure of information and finding the likelihood of success on the merits in Dunlop's claim that the refusal to provide key information was a violation of the Federal Advisory Committee Act.
   Read the Executive Order Terminating the Commission.
   Read Executive Order 13799 of May 11 Establishing the Commission.
   Read the District Court Memorandum Opinion.
   Read Secretary of State Dunlap's Press Release on the ruling.

Chief Justice Roberts Issues State of the Judiciary Address
January 1, 2018. Chief Justice John Roberts, in his role as Chief Justice of the United States, has issued the annual state of the judiciary report for 2017. In addition to identifying particular themes for the present and future, in this case courts in periods of response to emergencies such as the hurricanes of the past year and a call for the Administrative Office of U.S. Courts to move forward on to study issues of sexual harassment in courts, the Chief Justice provides data on case loads for the year. He explains that: "The total number of cases filed in the Supreme Court decreased by 2.63 percent from 6,475 filings in the 2015 Term to 6,305 filings in the 2016 Term. . . . During the 2016 Term, 71 cases were argued and 68 were disposed of in 61 signed opinions, compared to 82 cases argued and 70 disposed of in 62 signed opinions in the 2015 Term. The Court also issued one per curiam decision during the 2016 Term in a case that was not argued." State of the Judiciary, 2017, at 13. In the lower federal courts, he reported that the Circuit Courts of Appeals "filings fell 16 percent to 50,506. . . . Total civil appeals increased one percent. Criminal appeals fell 14 percent, appeals of administrative agency decisions decreased five percent, and bankruptcy appeals declined four percent." Id., at 14. Federal district courts saw filings down "eight percent to 267,769. . . . Filings for criminal defendants . . . changed little, decreasing less than one percent to 77,018. . . . Bankruptcy petition filings decreased two percent to 790,830." Id., 14-15.
Read the State of the Judiciary 2017 report.

FCC Rejects Net Neutrality Requirement
December 14, 2017. The Federal Communications Commission has acted on what it terms "Restoring Internet Freedom" and eliminated what has been known as net neutrality.
Read the FCC Fact Sheet "Restoring Internet Freedom."
Read the FCC Press Release .

Supreme Court Allows Travel Ban 3 to Take Effect Pending Appellate Court Action
December 5, 2017. The U.S. Supreme Court issued orders yesterday in the cases challenging the Trump administration's third edition of its travel ban, allowing implementation of the order pending the completion of proceedings in the Ninth and Fourth Circuits concerning the policy. The stay applies to orders issued by district courts in Hawaii and Maryland and will stay in place until that appeal ends, but it will continue if the Supreme Court then agrees to hear the case and will remain in place until that court rules in the matter. Justices Sotomayor and Ginsburg would have denied the stay. For the documents, see the Refugees and Immigrants page of this website.

Supreme Court Hears Case that Tests First Amendment Claim to a Right Not to Serve A Client on Grounds that Violates Existing Civil Rights Statutes
December 5, 2017. The Supreme Court today hears oral argument in No. 16-111 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission in which the business owner refused to make a cake for Charlie Craig and David Mullins, a gay couple. The state Civil Rights Commission and then the state Court of Appeals found that he had violated Colorado's Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014 and that there was no First Amendment right to discriminate in violation of the statute. Craig v. Masterpiece Cakeshop, 370 P.3d 272 (Colo. App. 2015). The state Supreme Court denied certiorari. 2016 Colo. LEXIS 429 (Colo. 2016). For more information and the relevant documents in the case, see the Civil Rights page of this website.

Suit Filed Seeking Release of 10 Year Old Girl with a Disability Detained by ICE
October 19, 2017. The ACLU has filed suit in the case of R.M.H. v. Lloyd in the U.S. District Court for the Western District of Texas seeking the release of a 10 year old girl with Cerebral Palsy who was taken into custody by ICE officers on the way to the hospital in Corpus Cristy for emergency surgery. The officials escorted her to the hospital and took here into custody after the surgery, placing her in a HHS contracted jurvenile facility. For more information and relevant documents, see the Refugees and Immigrants page of this website.

Federal Court Issues Injunction in Trump Policy Against Transgender Persons in the Military
October 30, 2017, 2017. Federal District Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia has issued a preliminary injunction against key parts of the Trump administration policy against transgender troops in the military. For more information and key documents, see the Civil Rights page of this website.

Congress Passes Resolution of Disapproval to Block Consumer Protection Rule on Mandatory Arbitrary Agreements and Bars to Lawsuits
October 25, 2017. The Senate has voted to approve H.J. Res. 111, joining the House which has already approved the action taken under the Congressional Review Act to block a rule on mandatory arbitrary agreements issued by the Bureau of Consumer Financial Protection. The rule would have blocked the use of mandatory arbitrartion clauses in various consumer transactions and allowed class actions suits by aggrieved consumers.
Read the Resolution of Disapproval.
Read the Bureau of Consumer Financial Protection Final Rule as Published in July 2017.

Immigration Detainee's Effort to Obtain Abortion in Court
October 21, 2017. In a rapid process, the D.C. Circuit has heard an appeal from a district court ruling that a young woman in immigration detention has a right to obtain an abortion and that the federal government Office of Refugee Resettlement policy against that option could not stand. The D.C. Circuit panel has issued an order that vacates part of the district court decision, but simultaneously calling for the parties to identify a sponsor for her by October 31 and then to allow her to obtain the procedure. For more information and relevant documents, see the Refugees and Immigrants page of this website.

Federal Judge Refuses to Expunge the Record After Arpaio Pardon
October 19, 2017, 2017. Federal District Judge Susan R. Bolton has refused former Maricopa County, Arizona Sheriff Joe Arpaio's request to vacate the record of his conviction for criminal contempt of court following his pardon by President Trump. For more information and related documents see the Civil Rights page of this website.

Federal District Judges in Hawaii and Maryland Rule Against the President's Travel Ban
October 18, 2017. Federal district judges in Hawaii and Maryland have ruled against the most recent version of the Trump administration's travel ban and have issued injunctions against its implementation. For more information and the documents, See the Refugees and Immigrants page of this website.

President Announces Executive Order on Healthcare
October 13, 2017. President Trump has issued an executive order entitled "Promoting Healthcare Choice and Competition Across the United States," which is designed to expand the use of what are known as Association Health Plans (AHPs), "Expanded Availability of Short-Term, Limited Duration Insurance" and "Expanded Availability and Permitted Use of Health Reimbursement Arrangements." For more information and the document itself, see the Healthcare, Disability, and Development page of this website.

State Attorneys General Challenge Trump Administration Action on Contraceptive Coverage
October 11, 2017. The Washington attorney general has filed suit against the Trump administration's interim final rules entitled "Moral Exemptions and Accommodations for Coverage of Certain Preventive Services Under the Affordable Care Act" that significantly change the existing requirements for ensuring coverage for contraceptives for women. The Washinton v. Trump complaint was filed in the U.S. District Court for the Western District of Washington and alleges discrimination on the basis of gender in violation of the due process clause of the Fifth Amendment, establishment of religion in violation of the First Amendment, and violations of the Administrative Procedure Act for failure to meet rulemaking requirements and as an arbitrary and capricious action. For relevant documents and more information, see the Health Care, Disability, and Development page of this website.

EPA Administrator Announces Action to Repeal the Obama Administration Clean Power Plan
October 9, 2017. Scott Pruitt, Administrator of the Environmental Protection Agency, announced in a speech in Kentucky today that the agency would publish in the Federal Register a proposed rule designed to repeal the Obama administration's Clean Power Plan.
Read the Proposed Rule by the EPA to Repeal the Clean Power Plan.

Administrative Conference of the United States (ACUS) UpDates Web Resources Including Past Reports
October 2, 2017. For those not familiar with it, "ACUS is an independent federal agency charged with convening expert representatives from the public and private sectors to recommend improvements to administrative process and procedure. ACUS initiatives promote efficiency, participation, and fairness in the promulgation of federal regulations and in the administration of federal programs." From the ACUS website. The site provides a variety of resources, including ACUS reports on specific topics in administrative law. The ACUS has recently expanded those resources, including more of its reports.
ACUS Homepage

The Supreme Court Begins Work on Its October Term 2017
October 2, 2017. The U.S. Supreme Court begins its October 2017 term today. As usual, the Court issued a lengthy order list on the first day of its new term and on that first day it issued an additional list from its conference before the term began. The current granted and noted lists and other information on the docket as well as the briefs and oral arguments follow.
Start of October term Order List and Cases Granted and Noted List.
   Order List for October 2.
   October Term 2017 Granted and Noted List as of Septmber 28, 2017.
   October Term 2017 Granted and Noted List released on October 2, 2017.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "SCOTUS Blog."
   Access SCOTUS Blog

Federal District Court Issues Injunction in Chicago Sanctuary Cities Case
September 15, 2017. Judge Harry Leinenweber of the U.S. District Court for the Northern District of Illinois has issued an injunction against two of the three contested provisions added by the Justice Department to local governments applying for the Byrne JAG grant for their law enforcement officers (see August 7 posting on this webpage), but refusing to enjoin the requirements that cities certify their compliance with a federal statute prohibiting interference with information release to federal authorities on immigration. (For more information and the documents, see the Refugees and Immigrants page of this website)

California Leads Another Set of States in Challenges to Trump DACA Rescission
September 11, 2017. California has filed suit to challenge the Trump administration's decision to rescind the DACA program and that suit has been joined by Maine, Maryland, and Minnesota. The complaint alleges violations of equal protection and due process of law as well as counts relating to the Administrative Procedure Act.
Read the Complaint in California v. DHS..
Read the California Attorney General's Press Release on the Case.

Commission on Evidence-Based Policymaking Issues Report
September 11, 2017. The Commission on Evidence-Based Policymaking has issued its report entitled The Promise of Evidence-Based Policymaking.
Read the Report.

University of California and Its President Janet Napolitano File Suit Againt DACA Recission
September 8, 2017. The University of California system and it president, former Homeland Security Secretary Janet Napolitano filed suit today against the Department of Homeland Security and Acting Secretary Elaine Duke in the U.S. District Court for the Northern District of California, challenging the action to rescind the DACA program. The suit alleges violations of the Administrative Procedure Act and also procedural due process under the Fifth Amendment to the U.S. Constitution.
Read the DHS Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA).
Read the UC Press Release on the Suit.

Ninth Circuit Affirms District Court on Limits on the Trump Administration's Travel Ban
September 8, 2017. The latest opinion in the ongoing litigation concerning the Trump administration travel ban is an opinion issued by the Ninth Circuit affirming the ruling of the Federal District Court on limits to the Trump administration travel ban. For more information and documents, see the Refugees page of this website.

States Launch Legal Challenge to the Elimination of the DACA Program
September 7, 2017. Attorneys general for New York, Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhose Island, Vermont, and Virginia have filed suit in the U.S. District Court for the Eastern District of New York challenging the Trump administration actions in terminating the Deferred Action for Childhood Arrivals program (DACA). The case, styled New York v. Trump, alleges discrimination on the basis of national origin and due process violations under the Fifth Amendment to the U.S. Constitution as well as violations of the Administrative Procedure Act and the Regulatory Flexibility Act and seeks declaratory relief as well as an injunction blocking efforts to terminate the program. The plaintiffs are also asking the court to: "Enjoin Defendants from using information obtained in any DACA application or renewal request to identify, apprehend, detain, or deport any DACA applicant or member of any DACA applicant’s family, or take any action against a DACA applicant ’s current or former employer." Complaint at 55.
    The suit follows the issuance of a Department of Homeland Security "Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA)" and statement on the termiantion of the program by President Trump and Attorney General Sessions. The DHS memorandum is posted below and the statements by the president and attorney general were provided in the September 5 posting below.
    Read the DHS Memorandum on Rescission Of Deferred Action For Childhood Arrivals (DACA).
    Read the Complaint in New York v. Trump.
    Read the Washington Attorney General's Press Release on the Suit.
    Read the New York Attorney General's Press Release on the Suit.
    Read the Oregon Attorney General's Press Release on the Suit.

EU Court of Justice Rejects Challenges by Hungary and Slovenia to Refugee Rules
September 6, 2017. The European Court of Justice has rejected a challenge by Hungary and Slovenia to an emergency decision to require EU countries to assist Greece and Italy overwhelmed by the refugee crisis. For more information and relevant documents, see the Refugees page of this website.

Trump Administration Announces an End to DACA Program
September 5, 2017. The Trump Administration by a press release from the White House and a press release from the Attorney General has accounced the intention to eliminate the Deferred Action for Child Arrivals (DACA) program that has been in place since it was formally created by Secretary of Homeland Security Janet Napolitano on June 15, 2012. Contrary to press reports, this program was not created by a presidential executive order, but by a memorandum from the DHS secretary indicating enforcement priorities for immigration enforcement.
   Read President Trump's Press Release on Rescinding the DACA Program.
   Read Attorney General Sessions' Press Release on rescinding the DACA program.
   Read the Secretary Nepolitano's Memorandum that Put in Place the DACA Program.
   Read President Obama's Statement on the Need for a Dreamers' Program.

Federal Judge Issues Injunction Against Texas Immigration Statute
September 1, 2017. Federal District Judge Orlando L. Garcia has issued a preliminary injunction blocking implementation, scheduled to begin today, of key provisions of Texas SB4, legislation mandating immigration enforcement by local officials and taking action against sanctuary jurisdictions and officials that support those policies. For more information and relevant documents, see the Civil Rights page of this website.

Group Begins Legal Responses to Arpaio Pardon
August 30, 2017. One group has initated legal steps with a letter to the Judge Susan Bolton in response to the President's pardon of Joseph Arpaio from his conviction for criminal contempt of court in the U.S. District Court for the District of Arizona that grew out of a referral for contempt by Judge Snow who presided in the case of Melendres v. Arpaio. For more information and documents, see the Civil Rights page of this website.

District Court Decides Key Case on EEOC Rules Concerning Employer Wellness Programs
August 23. 2017. Judge John D. Bates of the U.S. District Court for the District of Columbia has issued a decision against the EEOC's rules governing employer wellness programs in a case brought by the American Associatioin of Retired Persons (AARP) against the rules alleging violations of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act as well as the Administrative Procedure Act. For more information and the key documents, see the Civil Rights page of this website.

FTC Settles with Uber on Complaints Concerning Control of Private Information
August 15, 2017. The Federal Trade Commission announced today a settlement with Uber in a case concerning the company's handling of and security for customer data. In its press release, the Commission explained: "Uber failed consumers in two key ways: First by misrepresenting the extent to which it monitored its employees’ access to personal information about users and drivers, and second by misrepresenting that it took reasonable steps to secure that data,” said FTC Acting Chairman Maureen K. Ohlhausen. . . . In the wake of news reports alleging Uber employees were improperly accessing consumer data, the company issued a statement in November 2014 that it had a 'strict policy prohibiting' employees from accessing rider and driver data – except for a limited set of legitimate business purposes – and that employee access would be closely monitored on an ongoing basis. In December 2014, Uber developed an automated system for monitoring employee access to consumer personal information, but the company stopped using it less than a year after it was put in place. The FTC’s complaint alleges that Uber, for more than nine months afterwards, rarely monitored internal access to personal information about users and drivers. The FTC’s complaint also alleges that despite Uber’s claim that data was 'securely stored within our databases, Uber’s security practices failed to provide reasonable security to prevent unauthorized access to consumers’ personal information in databases Uber stored with a third-party cloud provider. As a result, an intruder accessed personal information about Uber drivers in May 2014, including more than 100,000 names and driver’s license numbers that Uber stored in a datastore operated by Amazon Web Services." Online press release.
   The settlement requires that "Uber is: prohibited from misrepresenting how it monitors internal access to consumers’ personal information; prohibited from misrepresenting how it protects and secures that data; required to implement a comprehensive privacy program that addresses privacy risks related to new and existing products and services and protects the privacy and confidentiality of personal information collected by the company; and required to obtain within 180 days, and every two years after that for the next 20 years, independent, third-party audits certifying that it has a privacy program in place that meets or exceeds the requirements of the FTC order." Id.
   Read the FTC Decision and Order.
   Read the FTC Complaint Against Uber.
   Read the FTC Press Release on the Settlement.

Chicago Mayor Announces Intent to Sue Challening DOJ Rules on Grants and So-call Sanctuary Cities
August 7, 2017. The mayor of Chicago has announced: "Mayor Rahm Emanuel, Chicago Corporation Counsel Ed Siskel and Chicago Police Department (CPD) Superintendent Eddie Johnson announced that on Monday the City of Chicago will file a federal lawsuit to prevent President Donald Trump's Justice Department from making a federal crime prevention grant that is critical to public safety efforts conditional on unrelated and unlawful immigration enforcement actions.." For more information, see the Refugees page of this website.

President Trump Issues Signing Statement on Sanctions Bill Warning About Conflicts with Congress
August 2, 2017. President Trump has issued a statement on signing the Countering America’s Adversaries Through Sanctions Act, H.R. 3364 in which he asserts boundaries to congressional constraints on executive actions in foreign policy. The statement alleges that the legislation contains constitutional violations and others in which he asserts that there are limits to congressional action and warns that the administration will implement the legislation with that in mind.
Read the Presidential Signing Statement.
Read the "Countering America’s Adversaries Through Sanctions Act."

Sixteen States Seek to Overturn EPA Decision to Delay Implementation of Ozone Rules
August 2, 2017. Sixteen state attorneys general have filed a petition for review of EPA Administrator Scott Pruitt's decision to delay for a year implementation of the Ozone rules previously issued by the agency. The petition contains a copy of a letter to the governor of New York explaining concerning the delay, one of many sent to governors on June 6. (See the posted copy of the letter to Arizona Governor Doug Ducey below.)
   Read the Petition for Review in the D.C. Circuit.
   Read the EPA Extension of Deadline for Promulgating Designations for the 2015 Ozone National Ambient Air Quality Standards .
   Read the Pruitt Letter to Arizona Governor Doug Ducey.

Court of Appeals Permits State Attorneys General to Defense Affordable Care Act Subsidy Payments
August 2, 2017. A panel of the D.C. Circuit has issued an order granting the request of 18 state attorneys general to intervene in the case of U.S. House of Representatives v. Price, No. 16-5202, a case that concerns payments to subsidy payments under the Affordable Care Act to defend those payments. For more information including the motion and the order allowing intervention, see the Health Care, Disability, and Development page of this website.

Fourth Circuit Avoids Merits and Sends Gloucester School Transgender Case Back to District Court
August 2, 2017. A panel of the Fourth Circuit has issued an order that avoids a ruling on the merits in Gavin Grimm v. Gloucester School Board, a highly publicized case involving a Virginia transgender boy who challenged the school district's restroom policy under Title IX of the Education Amendments of 1972. For more information and the order, see the Civil Rights page of this website.

Former Sheriff Joseph Arpaio Convicted of Criminal Contempt of Court in Arizona Federal District Court
August 1, 2017. Judge Susan R. Bolton of the U.S. District Court for Arizona has found former Maricopa County Sheriff Joseph Arpaio guilty of criminal contemport of court for willfully violating an order issued in 2011 by Judge G. Murray Snow in the case of Melendres v. Arpaio. For more information, including the Findings of Fact and Conclusions of Law, see the Civil Rights page of this website.

Department of Justice Argues that Title VII Does Not Apply to Sexual Orientation
July 28, 2017. The Department of Justice filed an amicus curiae brief in Zarda v. Altitude Express, Case No. 15-3775, a case pending in the Second Circuit Court of Appeals, in which the U.S. argued "that Title VII does not reach discrimination based on sexual orientation." Brief, at 1. For more information and the brief see the Civil Rights page of this website.

DC District Court Refuses Attempt to Block Trump Election Commission
July 24, 2017. Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia has denied an attempt by the Electronic Privacy Information Center to obtain an injunction against the effort by the Presidential Advisory Commission on Election Integrity created by President Trump in Executive Order 13,779. This is one of several legal challenges that have been filed seeking to stop the commission from obtaining a great deal of readily identifiable individual level data from state governments.
Read the opinion.

Justice Department Takes Emergency Appeal to Supreme Court on Latest Travel Ban Ruling in Hawaii
July 17, 2017. One day after Judge Watson issued his ruling against the policy applied by the federal government after the Supreme Court accepted the travel ban case for review and issued a partial stay in the injunction in the case, the Justice Department has filed an emergency appeal seeking to have the Supreme Court overturn Watson's July 13 ruling. For more information and the Justice Department filing, see the Refugee page of this website.

Federal District Court Rules Travel Ban Injunction Covers More People than Administration Claimed
July 14, 2017. Federal District Judge Derrick Watson has ruled that the Trump administration's response to the Supreme Court partial stay of the injunction against the Trump travel ban is too narrow and not consistent with the Supreme Court ruling. For more information and the order itself, see the Refugees page of this website.

D.C. Circuit Rules Against EPA Effort to Block Implementation of Methane and Greenhouse Gas Emissions Rule
July 3, 2017. A panel of the D.C. Circuit has issued a per curiam opinion that vacates a stay placed by the Environmental Protection Ageny on the implementation of rules on methane and other greenhouse gases under the Clearn Air Act. For more information and the opinion, see the Sustainable Development page of this website.

Hawaii Attorney General Seeks Clarification on the Scope of the Travel Ban Under Supreme Court Partial Stay
June 30, 2017. The Attorney General of Hawaii has filed an emergency motion that seeks a clarification of the scope of those protected by the injunction against the Trump travel ban following the partial stay issued earlier in the week by the U.S. Supreme Court. The Attorney General has posted a press release together with his emergency motion and a memorandum of law in support of that motion. For more information and related documents, see the refugees page of this website.

Congressional Budget Office Issues Cost Estimate of the New Senate Version of a Health Care Bill
June 27, 2017. The Congressional Budget Office has issued its cost estimate for the Health Care Bill advocated by the Senate majority which is the current effort to replace the Affordable Care Act.. For more information and the CBO scoring, see the Health Care Disability and Development page of this website.

Supreme Court Agrees to Hear Trump Travel Ban and Allows Some of it to Go Into Effect
June 26, 2017. The Supreme Court has agreed to hear the administration's appeal of injunctions issued by the Fourth Circuit and the Ninth Circuit appeals courts and pending that appeal has allowed the revised travel ban to go into effect with the exceptions until that review has been completed.

Supreme Court Majority Rules in Favor of Church School Playground Grant Claim in Missouri Case
June 26, 2017. The Supreme Court has issued its opinion in Trinity Lutheran Church v. Comer, striking down the Missouri Department of Natural Resources prohibition on funding for religious institutions to cover playground resurfacing on grounds that it violated the free exercise of religion clause of the First Amendment. "The State has pursued its preferred policy to the point of expressly denying a qualified religious entity a public benefit solely because of its religious character. Under our precedents, that goes too far. violates the Free Exercise Clause The Department’s policy." Slip op. at 14-15. Justice Sotomayor wrote a dissent joined by Ginsburg.
Read the opinion.

Supreme Court Declares Void Arkansas Birth Certificate Restrictions in Cases Brought by Same Sex Couples
June 26, 2017. In its opinion in Pavan v. Smith, issued today, the Supreme Court summarily reversed an Arkansas Supreme Court ruling that sustained a state law requiring a male spouse name on a birth certificate in a case brought by two same sex couples. For more information and the opinions, see the Civil Rights page of this website.

Federal Judge Finds NEPA Violation on Dakota Access Pipeline
June 15, 2017. Judge James Boasberg of the U.S. District Court for the District of Columbia has issued a memorandum opinion in Standing Rock Sioux v. U.S. Army Corps of Engineers, a case challenging the Dakota Access Pipeline project approval on grounds that the Corps of Engineers violated the National Environmental Policy Act. For more information and the opinion, see the Sustainable Development page of this website.

Nearly 200 Legislators File Emoluments Clause Suit Against the President
June 14, 2017. Some 30 Senators and 166 members of the House of Representatives have brought suit in the U.S. District Court for the District of Columbia against President Trump alleging violations of the Emoluments Clause of the Constitution.
Read the Complaint.

District of Columbia and Maryland Attorneys General File Emoluments Clause Suit Against President Trump
June 12, 2017. (Updated June 13, 2017.) The Attorneys General of the District of Columbia and Maryland have filed suit in a case styled District of Columbia v. Trump in the U.S. District Court for the District of Maryland alleging violations of the foreign and domestic emoluments clauses. "The lawsuit alleges violations by the President of two distinct yet related provisions of the U.S. Constitution that seek to make certain that he faithfully serves the American people, free from compromising financial entanglements with foreign and domestic governments and officials. The first provision, the Foreign Emoluments Clause, prohibits any 'Person holding any Office of Profit or Trust' from accepting 'any present, Emolument, Olfice, or Title, of any kind whatever, from any King, Prince, or forcign State,' absent 'the Consent of the Congress.' U.S. Const. art. I, S 9, cl. 8. The sccond, the Domestic Emoluments Clause, entitles the President to receive a salary while in office and forbids him from 'receiv[ing] within that Period any other Emolument from the United States, or any of them.' U.S. Const. art. II, S I, d. 7." Complaint, at 1.
   There was an emoluments complaint brought earlier this year by Citizens for Responsibility and Ethics in Washington (CREW) in the U.S. District Court for the Southern District of New York. The Department of Justice, on June 9, filed a motion to dismiss the CREW case.
   Read the DC and MD Complaint.
   Read the CREW Second Amended Complaint.
   Read theDOJ Motion to Dismiss the CREW suit.

Ninth Circuit Also Rules Against the Trump Revised Travel Ban
June 12, 2017. Less than a month after the 4th Circuit issued its ruling against it, a panel of the 9th Circuit has ruled against President Trump's revised travel ban executive order. For more information and the opinion, see the Refugees page of this website.

Justice Department Seeks Supreme Court Review of Travel Ban Ruling
June 2, 2017. The Trump Administration's Department of Justice has asked the Supreme Court to review the Fourth Circuit ruling affirming the injunction agains the president's travel ban. It has also asked the Court to stay the injunction pending review.
Read the Petition for Certiorari and Appendix.

Fourth Circuit Affirms Injunction Against Trump Administration's Revised Travel Ban Excecutive Order
May 25, 2017. The Fourth Circuit sitting en banc has issued an opinion upholding the Maryland district court junction against the revised Trump Administration travel ban on grounds that the plaintiffs were likely to prevail on the claim of a violation of the establishment of religion clause of the First Amendment. For mnore information and the opinion, see the Refugees page of this website.

Congressional Budget Office Issues Cost Estimate of American Health Care Act
May 25, 2017. The nonpartisan Congressional Budget Office has issued its cost estimate for the revised American Health Care Act which passed the House of Representatives in an effort to replace the Affordable Care Act. For the documents and other information, see the Health Care, Disability, and Development page of this website.

White House Announces FY2018 Budget Proposal
May 23, 2017. The White House has released the President's budget request for FY 2018. Along with the full budget request and the budget overview document, the White House has issued the "Major Savings and Reforms for FY 2018" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   Also posted below are the budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency.
   Download the FY 2018 Budget proposal as a single .pdf document, including the President's Message to Accompany the FY 2018 Budget.
   Download the FY 2018 Budget Overview.
   FY 2018 Budget Fact Sheets.
   Access the Major Savings and Reforms for FY 2018 document.
   Access the Web Site for the FY2018 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY2018 Budget Appendix as a single .pdf.
   Access the FY 2018 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2018 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2018 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2018 Budget-in-Brief.
   Access USASpending.gov

State Attorneys General Seek to Intervene in Key Affordable Care Act Case
May 19, 2017. The attorneys general from California, New York, Connecticut, Delaware, Hawaii, Illinois, Iowa, Kentucky, Maryland, Massachusetts, Minnesota, New Mexico, Pennsylvania, Vermont, and Washington as well as the District of Columbia have filed a motion seeking to intervene in an important Affordable Care Act case concerning the funds that are to be paid to insurers that serve to reduce rates for health insurance for those who must purchase that insurance through an exchange. The states took action partly out of concern that although the Department of Justice vigorously defended the ACA provisions and administration actions during the Obama administration, it is not clear that the current justice department will do so since the administration knows that, if upheld, the injunction would dramatically undermine the ACA. For more information and the relevant documents, see the Health Care, Disability, and Develop page of this website.

Former FBI Director Appointed Special Counsel in Pending Elections Investigation
May 17, 2017. Acting Attorney General Rod J. Rosenstein has appointed former FBI Director Robert Mueller as "Special Counsel to investigate Russian Interference with the 2016 Election and Related Matters." The appointment came in the form of an order No. 3915-2017.
Read the appointment order.

Groups Seek Injunction to Block Trump Executive Order on Regulation and Rulemaking
May 16, 2017. Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America have brought suit seeking an injunction against President Trump's Executive Order 13771 on "Reducing Regulation and Controlling Regulatory Costs." The plaintffs argue that: "The Order exceeds the President’s constitutional authority, violates his duty under the Take Care Clause of the Constitution, U.S. Const. art. II, § 3, and directs federal agencies to engage in unlawful actions that will harm many Americans, including plaintiffs and their members." Public Citizen v. Trump, Case 1:17-cv-00253-RDM, U.S. District Court for the District of Columbia, Motion for Summary Judgment at 1.
Read the Motion for Summary Judgment.
Read Executive Order 13771 of January 30, 2017 "Reducing Regulation and Controlling Regulatory Costs"

EU Court Advocate General Opinion Rules Against Uber
May 11, 2017. The Advocate General of Court of Justice of the European Union has issued an opinion against Uber in a case concerning taxi licensing and regulation that originated in Barcelona, finding that it is like other taxi services and are subject to licensing and other requirements. Asociación Profesional Elite Taxi v Uber Systems Spain, Case C-434/15. The court headed its press release on the case: "According to Advocate General Szpunar, the Uber electronic platform, whilst innovative, falls within the field of transport: Uber can thus be required to obtain the necessary licences and authorisations under national law." "In today’s Opinion, Advocate General Maciej Szpunar starts by explaining that it must essentially be determined whether the services offered by the Uber platform benefit, as ‘information society services’, from the principle of the freedom to provide services or whether its services fall within the field of transport, which is regulated by the law of the Member States. . . . Consequently, the service offered by Uber cannot be classified as an ‘information society service’. Instead, the service amounts to the organisation and management of a comprehensive system for on-demand urban transport. . . . It follows from that interpretation that Uber’s activity is not governed by the principle of the freedom to provide services in the context of ‘information society services’ and that it is thus subject to the conditions under which non-resident carriers may operate transport services within the Member States3 (in this case, possession of the licences and authorisations required by the city of Barcelona’s regulations)." CJEU Press Release, pp. 1-3.
   The Advocate General's opinion is not binding on the Court itself. The Court explains: "NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date." Press release, p. 3.
   Read the the Opinion.
   Read the Court's press release on the case.

Trump Makes Use of Presidential Signing Statement
May 8, 2017. On May 8, the White House issued a "Statement by President Donald J. Trump on Signing H.R. 244 into Law." That bill is the Consolidated Appropriations Act of 2017. The president has issued a 5 page signing statement identifying a range of provisions of the statute that he intends to implement according to his interpretation of his executive powers and his view of the limits on the powers of Congress.
Read the Presidential Signing Statement.

House Passes Bill Intended to Repeal the Affordable Care Act
May 4, 2017. The House of Representatives today voted 217-213 to pass H.R. 1628, the American Health Care Act of 2017 intended to repeal the Patient Protection and Affordable Care Act of 2010. The bill now goes to the Senate. The bill passed after an amendment offered by Representative Upton which went to the House late Wednesday and an earlier amendment by Representative .
   Read the bill before two key amendments.
   Read the MacArthur Amendment.
   Read the Upton Amendment.

U.S. District Court Allows Gardendale, Alabama to Separate from Jefferson County Schools
April 27, 2017. Federal District Judge Madeline Haikala of the U.S. District Court for the Northern District of Alabama, while deploring what was happening in the case, has issued a nearly 200 page opinion that allows the beginning of a process for a new city school district to separate from the Jefferson County School district. Her opinion in Stout v. United States recognized and documented the fact that: "During Gardendale’s separation effort, both words and deeds have communicated messages of inferiority and exclusion. The message cannot be lost on children who live in North Smithfield." p. 175. However, she went on to write: "Given these findings, the Court would be within its discretion if it were simply to deny Gardendale’s motion to separate. Were it not for a number of practical considerations, the Court would do just that. As was the case in Stout II, though some of the circumstances surrounding Gardendale’s attempt to separate are deplorable, a number of practical considerations counsel against wholesale denial of Gardendale’s motion." Id., at 181. She then explained these "practical consideration" and in the end granted in part and denied in part the Glendale motion to separate. For the opinion and more information on the case, see the Civil Rights page of this website.

Santa Clara County and San Francisco Win Preliminary Injunction in Sanctuary Cities Case
April 26, 2017. Judge William H. Orrick of the U.S. District Court for the Northern District of California has issued a preliinary injunction against part of President Trump's Executive Order 13768 entitled “Enhancing Public Safety in the Interior of the United States,” 82 Fed. Reg. 8799 (Jan. 25, 2017) which, among other things, seeks to block federal funding to what the order termed "sanctuary jurisdictions." For the injunction and other relevant materials, see the Refugees page of this website.

District Court Enters the Baltimore Police Case Settlement as an Order of the Court
April 10, 2017. Judge James K. Bredar of the U.S. District Court for the District of Maryland has rejected the Justice Department efforts to delay the ruling and has entered the settlement agreement reached earlier with the City of Baltimore and its police department with the DOJ as an order of the court. The court took that action following a hearing on April 6 and its decision to reject the DOJ motion for a a delay in the proceedings. For the more information and the key documents in the case, see the Civil Rights page of this website.

Twitters Goes to Court to Block DHS Attempt to Obtain Identity Information on Account Holder
April 6, 2017. Twitter has filed a complaint in the U.S. District Court for the Northern District of California seeking to block the Department of Homeland Security's efforts to compell the company to disclose the identity of an account holder who has an account that is critical of current practices. The company argues that DHS is exceeding its statutory athority, violates the First Amendment, and seeks relief under section 706 of the Administrative Procedure Act.
Read the Complaint in the Twitter case

OMB Issues Memorandum on Implementation of Trump Executive Order Aimed at Regulation
April 6, 2017. The Acting Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget, Dominic J. Mancini, has issued a memorandum entitled "Guidance Implementing Executive Order 13771, Titled "Reducing Regulation and Controlling Regulatory Costs." This is the executive order that directed agencies to eliminate two rules for every one new rule issues, set out requirements for costs calculations and limitation, and required studies to eliminate other rules. (Posting updated April 10, 2017).
Read the OMB Memorandum
Read Executive Order 13771 of January 30, 2017 "Reducing Regulation and Controlling Regulatory Costs"

District Court Rejects Motion by DOJ to Delay Action in the Baltimore Police Case
April 6, 2017. Judge James K. Bredar of the U.S. District Court for the District of Maryland has denied the request by the U.S. Department of Justice to delay the proceedings to consider whether the court should enter the agreement for reform of the Baltimore Police Department. For more information and relevant documents, see the Civil Rights page of this website.

President Issues New National Security Directive Reorganizing NSC
April 5, 2017. President Trump has issued a new national security directive, National Security Presidential Memorandum 4 entitled Organization of the National Security Council, the Homeland Security Council, and Subcommittees. This directive restores to the Principals Committee participants such as the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff and makes other changes.
Read NSPM4.

U.S. Attorney General Announces Review of Police Reform Agreements
April , 2017. U.S. Attorney General Jeff Sessions has issued a memorandum calling for a review of existing agreements reached with police departments for reform of practices to comply with civil rights laws with a view to addressing what the actions that are not supportive of law enforcement. The Civil Rights Division of the Department of Justice has regularly investigated charges of improper and particularly discriminatory practices by police departments, announced those findings, and entered into negotiations with those departments to reform practices resulting in consent decrees entered by a federal court. Once entered, they are orders of the court and enforceable through the contemp power of the court. The item listed as a press release by the Department of Justice provided no announcement by the Attorney General beyond the memorandum itself.
The Attorney General has also filed a request with the U.S. District Court for the District of Maryland to delay a hearing scheduled for April 6 on whether to enter the agreement as an order on consent. The Court has announced on its website :UPDATE: On Monday, April 3, 2017, the United States of America filed a motion to postpone the Public Fairness Hearing. The Court has not ruled on the motion. Any ruling on the motion to postpone will be posted here immdiately." For documents and more information on the memorandum and the pending Baltimore case, see the Civil Rights page of this website.

President Issues Executive Orders on Trade Issues
April 1, 2017. President Trump has issued two executive orders dealing with international trade. One deals specifically with enforcement of import laws relating to dumping, intellectual property, or other violations. The other order calls for a report by relevant executive branch agencies on trade deficits.
Read the Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs Laws.
Read the Presidential Executive Order Regarding the Omnibus Report on Significant Trade Deficits.

City of Seattle Sues President Trump to Block Threats to Sanctuary Cities
March 31, 2017. The mayor of Seattle has announced that the city has filed suit challenging President Trump's Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” 82 Fed. Reg. 8799 (Jan. 25, 2017), and specifically the so-called sanctuary cities provision that seeks to remove federal funding from jurisdictions the administration decides do not actively support the administration's immigration enforcement policies. The City and County of San Francisco had filed a similar suit against the order in February. For more information on the Seattle case and related documents, see the Refugees page of this website.

District Judge in Hawaii Refuses Administration Request to Remove Order Against the Revised Policy Travel Ban and Entry for Immigrants and Refugees
March 30, 2017. U.S. District Judge Derrick K. Watson of the District of Hawaii has granted the motion by the plaintiffs in Hawaii v. Trump to convert the temporary restraining order to a preliminary injunction and rejected administration arguments to remove the court barrier to implementarion of the revised executive order on immigrants and refugees. In his ruling, Justice Watson concluded: "Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs’ Motion is Granted." State of Hawaii v. Trump, Civ. No. 17-00050 DKW-KSC; Order, 1-2.
   The attorney general of Hawaii, joined by the former solicitor general of the U.S., filed a challenge to the revised executive order and the TRO was granted on March 15.
   Read the March 29, 2017 Order.
   Read the Order Granting Motion for TRO on March 15, 2017.
   Read the Amended Complaint.
   Read the Presidential Executive Order of March 6, 2017 on Protecting the Nation from Foreign Terrorist Entry into the United States.
   Read the Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits.

President Issues Executive Order Repealing Obama "Clean Power Plan" Order
March 29, 2017. President Trump has signed an executive order entitled "Promoting Energy Independence and Economic Growth" intended to repeal what the Obama administration called its Clean Power Plan. In the process, the Trump rescinded Executive Order 13652 and a number of presidential memoranda issued in conjunction with it. It also called for executive agencies to rescind any and all guidance issued as part of the Clean Power Plan. For more information and documents, see the Sustainable Development page of this website.

President Revokes Obama Administration Excutive Orders on Government Contracting
March 29, 2017. President Trump has issued an executive order 13782 revoking order issued by President Obama, including "Executive Order 13673 of July 31, 2014, section 3 of Executive Order 13683 of December 11, 2014, and Executive Order 13738 of August 23, 2016."
   Read President Trump's Executive Order 13782 on Government Contracting.
   Read Executive Order 13673 of July 31, 2014.
   Read Executive Order 13683 of December 11, 2014.
   Read Executive Order 13738 of August 23, 2016.

President Trump Issues Executive Order Creating New White House Office
March 29, 2017. The president has issued an executive order creating the White House Office of Innovsation which is to be the point agency for the administrations efforts to reorganize and change executive branch operations with a particular orientation toward a private sector approach.
Read the Order.

Congress Passes Resolution of Disapproval of FCC Rule on "Private of Customers of Broadband and Telcommunications Services"
March 29, 2017. The House voted yesterday to approve S.j. Res. 45 "Providing for congressional disapproval under chapter 8 of title 5, United States Code, of the rule submitted by the Federal Communications Commission relating to 'Protecting the Privacy of Customers of Broadband and Other Telecommunications Services.'" That resolution of disapproval passed under the Congressional Review Act when signed by the president will block a Federal Communications Commission that protected consumers from the use and sale by internet service providers of personal, financial, and online use data. The resolution has already passed the Senate and now moves to the president for signature.
Read S.J. Res. 34.

Maryland Federal District Court Judge Adds Another Ruling Against Trump Travel, Refugee, and Immigrants Order
March 16, 2017. Judge Theodore D. Chuang of the U.S. District Court for Maryland has now become the second federal judge to rule against the revised Trump travel, refugee, and immigrantion executive order. Judge Chuang focused principally on the likelihood that the plaintiffs would prevail on the merits of their establishment of religion claim and that the second executive order as well as the first was intended as a Muslim ban as the basis for his ruling.
Read the Memorandum Opinion.

Ninth Circuit Rejects En Banc Review of the Washington v. Trump Ruling
March 16, 2017. After the district court ruling in the Washington v. Trump case that produced an injunction against the executive order imposing the travel ban and other refugee and immigrations restrictions, a panel of the Ninth Circuit rejected an appeal of the order. One of the judges of the Ninth Circuit raised the possibility of an en banc review of that decision by the full Ninth Circuit. The judges refused to grant en banc review. One judge issued a concurring opinion and one dissented.
Read the Order Denying En Banc Review and the Concurring and Dissenting Opinions.

White House Sends Budget Request to Congress for Remaining Funds in FY 2017 and New FY 18 Proposal
March 16, 2017. The Trump administration has sent to the Congress both its request for appropriations for the 2017 fiscal year and the new budget proposal for FY 2018.
   In his letter for the FY 2018 appropriations, the president indicates that core of the budget blueprint is a $54 Billion increase in defense spending which, he asserts, is balanced by cuts in nondefense programs. The Office of Management and Budget director indicates in the FY 2018 Blueprint that: "The Budget also proposes to eliminate funding for other independent agencies, including: the African Development Foundation; the Appalachian Regional Commission; the Chemical Safety Board; the Corporation for National and Community Service; the Corporation for Public Broadcasting; the Delta Regional Authority; the Denali Commission; the Institute of Museum and Library Services; the Inter-American Foundation; the U.S. Trade and Development Agency; the Legal Services Corporation; the National Endowment for the Arts; the National Endowment for the Humanities; the Neighborhood Reinvestment Corporation; the Northern Border Regional Commission; the Overseas Private Investment Corporation; the United States Institute of Peace; the United States Interagency Council on Homelessness; and the Woodrow Wilson International Center for Scholars." America First: A Budget Blueprint to Make America Great Again, at 6.
   In his letter for the FY 2017 appropriations, the president calls for $30 billion in defense and $3 billion in DHS increases and seeks $18 billion in cuts to nondefense programs.
   The budget request has not been issued in the normal manner. In recent administrations, the budget materials are published on the OMB website and include in addition to the budget request, the following items are also published at the same time, Budget Overview, Budget Fact Sheets Agency Fact Sheets, Cuts, Consolidations, and Savings for FY ****, FY**** Budget Appendix--All detailed information about agencies and funds, FY**** Budget Analytic Perspectives (economic and budget assumptions)." They not only to provide the basic budget proprosals, but also to make available the assumptions and more specific program information. At this point the budget request is not available through the OMB website but through Govinfo.gov. None of the other materials are available at this time. If an when they are made available, they will be posted on this webpage. Similarly, each cabinet agency usually publishes it Budget in Brief document on the same day as the president's budget request and provides much more detailed information on a program by program basis. These documents are also not available at this time and will be posted if and when they become available.
   Read the FY 2017 Appropriations Request from the White House.
   Read the FY 2018 Budget Request from the White House.

Federal District Court Blocks NewTrump Immigrants and Refugees Order
March 15, 2017. The U.S. District Court for Hawaii has issed a temporary restraining order blocking the new Trump executive order imposing a travel ban and immigration and refugee restrictions that had been scheduled to go into effect tomorrow.
   Read the Order Granting Motion for TRO.
   Read the Amended Complaint.
   Read the Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States.

Washington Attorney General Files Revised Complaint Against NewTrump Immigrants and Refugees Order
March 14, 2017. The Washington Attorney general has filed an amended complaint in the case against President Trump's new executive order on immigrants and refugees along with a motion for enforcement of the existing injunction issued against the first travel ban order.
   Read the Amended Complaint.
   Read the Motion to Enforce the Preliminary Injunction.
   Read the Attorney General's Press Release..

Washington Attorney General Calls for Injunction Against Trump Immigrants and Refugees Order
March 10, 2017. Washington State's Attorney General Robert Ferguson has filed a response to the notice that the Trump administration had withdrawn its previous executive order on immigrants and refugees and replaced it with new directives issued this week by maintaining that the action is still unconstitutional and the case should move forward despite the changes. The response begins: "When a court enjoins a defendant from implementing policies, the defendant cannot evade that injunction simply by reissuing the same basic policies in a new form. Courts do not issue injunctive relief in a game of whack-a-mole, forced to start anew at a defendant’s whim."
   Minnesota is also a party in that challenge to the executive order. Additionally, the state of Oregon has just had its February 23 motion to intervene in the case granted.
   Read the state reponse to the new executive orders.
   Read Oregon Attorney General Ellen Rosenblum's statement on joined the case.

Hawaii Launches Legal Challenge to New Trump Policy on Immigrants and Refugees
March 8, 2017. The attorney general of Hawaii, joined by the former solicitor general of the U.S., has filed a challenge to the new executive order announced this week by President Trump. The case alleges constitutional, statutory, and procedural violations of law.
   Read the Amended Complaint.
   Read the Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States.
   Read the Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits.

Trump Administration Issues New Orders on Immigrants and Refugees
February 28, 2017. The new orders that replace and expand on the previous immigrants and refugees order have been issued along with additional presidential memoranda.
Read the Presidential Memorandum on Implementing Immediate Heightened Screening and Vetting of Applications for Visas and Other Immigration Benefits.
Read the Presidential Executive Order on Protecting the Nation from Foreign Terrorist Entry into the United States.

Next Steps in the Gloucester County Board of Ed Case Concerning Transgender Students
March 2, 2017. When the Departments of Justice and Education rescinded the policy document issued by those agencies concerning transgender students in 2016, the DOJ also sent a letter to the clerk of the U.S. Supreme Court for the justices concerning the Gloucester County Board of Education v. G.G case from Virginia which is scheduled for oral argument later this month, saying that the policy no longer existed. The clerk then asked the parties to the case to provide letters to the Court indicating how they thought the case should proceed in light of the Trump administration's action. Both the petitioner and the respondent have argued in their letters that the Court should move forward to hear and decide the case as planned. For additional information, see the Civil Rights page of this website.

President Trump Issues Two More Executive Orders
February 28, 2017. President Trump today issued one executive order entitled "Presidential Executive Order on The White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities" and another entitled "Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."
Read the Executive Order on The White House Initiative to Promote Excellence and Innovation at Historically Black Colleges and Universities.
Read the Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule.

Justice Department Reverses Position in Texas Voter ID Law Case
February 28, 2017. The United States Department of Justice has now reversed course in a major case challenging a controversial Texas voter ID law just a day before that case was scheduled for oral argument in the U.S. District Court for the Southern District of Texas. The DOJ wrote in part: "In light of this significant development and the Fifth Circuit’s controlling instructions, the United States and Texas jointly moved for a continuance of the oral argument scheduled for February 28, 2017. The Court has denied that motion. Accordingly, the United States has determined that, rather than continuing to litigate the purpose claim on an evolving record, it should give full effect to the Fifth Circuit’s directives by withdrawing that claim and allowing the Texas Legislature the opportunity to rectify any alleged infirmities with its voter identification law. Thus, out of due respect for the controlling opinion of the Fifth Circuit and for the comity necessary in our system of federalism, the United States has determined that it will not pursue its purpose claim at this time and respectfully moves for voluntary dismissal of that claim without prejudice." Veasey v. Abbott, Civil Action No. 2:13-cv-193 (NGR), United States Motion for Voluntary Dismissal of Discriminatory Purpose Claim without Prejudice, 1-2. For more information and the relevant documents, see the Civil Rights Page of this website.

President Issues New Executive Order on "Enforcing the Regulatory Reform Agenda"
February 24, 2017. President Trump has signed another new executive order entitled "Enforcing the Regulatory Reform Agenda," tasking executive branch agencies to take a number of steps to implement his previous orders aimed at reducing regulation;
Read the Executive Order

Trump Administration Rescinds DOJ/DOE Policy Guidance on Transgender Students
February 23, 2017. The Departments of Justice and Education have issued a letter which rescinds the policy guidance promulgated by the Obama administration in the spring of 2016 concerning transgender students. In addition, the Department of Justice, through the Deputy Solicitor General has sent a letter to the Clerk of the Supreme Court for the justices, concerning the Gloucester County School Bd. v. GG case that is scheduled for oral argument in late March which indicates that the guidance documents that existed before have been withdrawn. For more information and relevant documents, see the Civil Rights page of this website.

Senate Judiciary Committee Scheduled Hearings on Gorsuch Supreme Court Nomination
February 22, 2017. The Senate Judiciary Committee has announced hearings on the Nomination of Judge Neil Gorsuch to the U.S. Supreme Court that will begin on March 20. Also, the Senate Judiciary Committee has established a webpage on the nomination which now contains Judge Gorsuch's responses to the questionnaire required by the committee along with published materials and other items.
   Access the Library of Congress Gorsuch Resources Web Page.
   Access the Completed Gorsuch Questionnaire and related materials submitted for Judiciary Committee review.
   Access the Senate Judiciary Committee Gorsuch Web Page.

Trump Administration DHS Issues Implementation Directives on Executive Order on Border Security and Interior Enforcement EOs
February 21, 2017. Secretary of Homeland Security John Kelly has released two memoranda that provide instructions for DHS officials to implement the Trump executive orders of January 25, 2017 entitled "Border Security and Immigration Enforcement Improvements" and "Enhancing Public Safety in the Interior of the United States." The first DHS memorandum is entitled "Implementing the President's Border Security and Immigration Enforcement Improvements Policies" and the second is "Enforcement of the Immigration Laws to Serve the National Interest."
   Read Implementing the President's Border Security and Immigration Enforcement Improvements Policies.
   Read Enforcemen of the Immigration Laws to Serve the National Interest.
   Read the DHS Press Release.
   Read E.O. Executive Order 13767 Border Security and Immigration Enforcement Improvements.
   Read Executive Order 13768 Enhancing Public Safety in the Interior of the United States.

Office of Management and Budget Internet Site Now Online But Limited and Not Easy to Access
February 18, 2017. On Inauguration Day, the Trump administration removed the material from the White House website and replaced it with a very limited amount of information. Part of what it eliminated and did not replace was access to the units of the Executive Office of the President, including most noticeably the Office of Management and Budget. It is now possible to access a very limited OMB website, but not through the menu on the White House website (see below). At this point, the OMB page only contains a limited number of documents that OMB has distributed as analyses of administration actions and guidance on others. There is currently no access to the kinds of materials that were available on previous administration websites, such as access to the OMB offices, such as the Office of Federal Procurement Policy, or the bulletins, circulars, or memoranda used by executive branch agencies, state and local governments, and nonprofit organizations to assist in such matters as contracting or grants processes.
    There is a way to access OMB policy documents and budget materials up to the FY 2017 budget submissions that are not presently available through the Trump White House site using the archived Obama White House website. That archived site and key elements of OMB documents as well as other Executive Office of the President webpages that still have the documents and policies that remain in effect unless and until they are changed by the new administrationare are posted below. These include OMB bulletins, circulars, memoranda, information policies, OMB reports (see below).
   With respect to the Trump administration OMB page, it is possible to access other units of the Executive Office of the President, but again not through the menu on the regular White House web page. Unfortunately, none of those web pages have been populated as yet. Even so, to facilitate access and monitoring of those pages as they will presumably be developed, the URLs for those units, starting with OMB are provided below.
   Access the OMB Trump Administration Website
   Access the Obama White House Archived Website.
   Access Obama Executive Office of the President Website
   Access the Obama Archived OMB Website.
   Access OMB Bulletings up to 2017.
   Access OMB Circulars up to 2017.
   Access OMB Memoranda up to 2017.
   Access OMB Information Policy including Privacy Policy up to 2017.
   Access OMB Reports and Other Documents up to 2017.
   Access the Council of Economic Advisers Trump Administration Website
   Access the Council on Environmental Quality Trump Administration Website
   Access the Domestic Policy Council Trump Administration Website
   Access the National Security Council Trump Administration Website
   Access the Office of Administration Trump Administration Website
   Access the Office of Intergovernmental Affairs Trump Administration Website
   Access the Office of National AIDS Policy Trump Administration Website
   Access the Office of National Drug Control Policy Trump Administration Website
   Access Office of Science and Technology Policy Trump Administration Website
   Access the The President's Intelligence Advisory Board Trump Administration Website
   Access the White House Military Office Trump Administration Website

Trump Administration Issues Additional Executive Orders
February 13, 2017. President Trump has issued three executive orders on A Task Force on Crime Reduction and Public Safety, Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers, and Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking.
   Read the Executive Order on a Task Force on Crime Reduction and Public Safety.
   Read the Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.
   Read the Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking.

Justice Department Changes Position on Texas Transgender Bathrooms Case
February 11, 2017. The U.S. Justice Department has filed papers withdrawing its requent that the Fifth Circuit Court of Appeals issue a stay of the injunction issued by a federal district judge against the Department of Education and Civil Rights Division letter to schools on transgender students issued last year and to cancel the oral argument which DOJ had requested that is currently scheduled for Feburary 14. For more details and related documents, see the Civil Rights page of this website.

Ninth Circuit Rejects Trump Administration Appeal in Immigrants and Refugees Executive Order Case
February 9, 2017. The 9th Circuit has issued its ruling rejecting the Trump administration's appeal of the district court temporary restraining order against the travel ban imposed by Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” Recognizing the early stage of the litigation, the three judge panel wrote: "Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay." Washington v. Trump, D.C. No. 2:17-cv-00141 (2017), Order, at 3.
   After rejecting the administration's contention that Washington lacked standing to sue, the judges reached the argument that the order is unreviewable. "The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has 'unreviewable authority to suspend the admission of any class of aliens.' The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence. . . . Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one. There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. . . . Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the '[r]esolution of litigation challenging the constitutional authority of one of the three branches.'” [citations]. . . We are called upon to perform that duty in this case. . . . Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context." Id., at 13-14.
    The court explained the standard for review of the district court order. "Our decision is guided by four questions: '(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.'” The court concluded: "The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims. We express no view as to any of the States’ other claims." Id., at 18-19.
   The court acknowledged the allegation regarding religious discrimination and supported the use by the states of evidence of intent from the statements of the president, but in the end decided that it would not make a final determination on this issue at this point in the litigation. "The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a 'Muslim ban' as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. . . . [citations] The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed." Id., at 25-26.
   Read the opinion.

Litigation Launched to Challenge Trump Executive Order on Regulation
February 8, 2017. Public Citizen, the Natural Resources Defense Council, and the Communications Workers of America have filed suit against President Trump, leading officials of 14 agencies that deal with health, safety, or the environment challenging Executive Order 13771 issued by the president and entitled Reducing Regulation and Controlling Regulatory Costs, 82 Fed. Reg. 9339 (2017), which requires, inter alia, that agencies eliminate 2 administrative rules for each new rule they promulgate and also that they achieve a zero net cost balance between new rules and rules eliminated. The complaint alleges that the president is attempting through the order to amend the statutes administered by these agencies by executive order in a manner that violates the separation of powers under the Constitution, the order violates the duty to take care that the laws are faithfully executed under Article II of the Constitution, requires action ultra vires by the various administrators involved who lack authority to alter their rules in violation of their respective statutes, involves action that is ultra vires by OMB dirrector, and violates the Administrative Procedure Act .
   Read the Complaint .
   Access the Public Citizen Press Release on the Case.
   Read the E.O. on Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs.

The 9th Circuit Will Live-Stream Oral Argument in Immigrant and Refugee Executive Order Case
February 7, 2017. The 9th Circuit announced last evening that it will live-stream the audio of the oral argument in Washington v. Trump, as the Trump administration seeks to overturn the temporary restraining order issued by the U.S. District Court for the Western District of Washington. The court made clear that there will not be video for the argument, but only the audio. That argument is scheduled to begin at 3:00 PST.
Access the Oral Argument in Live-Stream.
Read the Court's modified order on the live-stream.

States and Other Parties Files Amicus Curiae Briefs in Washington v. Trump case.
February 7, 2017. A variety of parties and states have filed amicus curiae briefs in the Washington v. Trump case on the immigrant and refugee executive order now pending in the 9th Circuit. Among these is a brief filed by 14 states and the District of Columbia in support of Washington state's challenge to the order.
Read the Amicus Curiae Brief of the States and District of Columbia.
Access the 9th Circuit Washington v. Trump webpage.

Key Materials in 9th Circuit Consideration of Trump Executive Order Case Available
February 6, 2017. The 9th Circuit Court of Appeals has created a webpage with the case materials for Washington v. Trump, the appeal of Judge Robart's Temporary Restraining Order agains the Trump executive order on immigrants and refugees. In addition to key documents from the parties and material from the lower court, the page also provides amicus curiae briefs submitted by Americans United for Separation of Church and State, ACLU, Law Professors, Korematsu Center, and Technology Companies. The State of Minnesota had previously been joined. In addition, the State of Hawaii filed an emergency motion to intervene in the case.
   The video of the hearing on the TRO in the U.S. District Court for the Western District of Washington.
   Access the U.S. Emergency Motion for Stay of the TRO.
   Access the Washington State Reponse to the Emergency.
   Read Hawaii's Emergency Motion to Intervene Opposing the Order and the TRO.
   Access the Joint Declaration of Madeleine K. Albright, Avril D. Haines, Michael V. Hayden, John F. Kerry, John E. McLaughlin, Lisa O. Monaco, Michael J. Morell, Janet A. Napolitano, Leon E. Panetta, and Susan E. Rice Supporting the TRO and against the Order.
   Access the Order Denying an Immediate Stay Pending Full Consideration of the Emergency Motion.
   Access the Scheduling Order for the next steps in the case.
   Access the video of the district court hearing.
   Access the 9th Circuit Washington v. Trump webpage.

Judge Issues TRO in Washington State Suit Against Trump Executive Order
February 4, 2017. Judge James L. Robart of the U.S. District Court for the Western District of Oregon has issued a temporary restraining order in a suit brought by the Attorney General of Washington against the executive order issued by President Trump on immigrants and refugees. (For more information on the initiation of the suit, see the post for January 30 below.)
   Read the TRO.
   Read the Attorney General's Press Release on the Order.
   Read the Complaint.

Resources on New Supreme Court Nominee
February 3, 2017. The Library of Congress Law Library has launched a webpage that provides resources on the work of Judge Neil M. Gorsuch who has been nominated by President Trump to take the seat left vacant by the death of Justice Antonin Scalia. The page contains publications, noteworthy opinions, and other items. Also, the Senate Judiciary Committee has established a webpage on the nomination which promises to post
Access the Library of Congress Gorsuch Resources Web Page.
Access the Senate Judiciary Committee Gorsuch Web Page.

President Trump Issues Executive Order and Memorandum to Roll Back Dodd-Frank Regulation
February 3, 2017. President Trump had announced his intention to relax, as much as possible without legislation, requirements under the Dodd-Frank legislation enacted to address issues in the banking and financial services industry in the wake of the 2008 economic emergency. He has issued one executive order and one memorandum today intended to address his commitments. Since Dodd-Frank is a statute, the president cannot violate that statute and amending or repealing legislation would be required to take major policy action. To the degree that the concern is with the implementing regulations, changes would require that the relevant agencies institute a rulemaking proceeding in accordance with the Administrative Procedure Act.
   After stating the administration's policy goals in section 1 of the order, the president called for the following action. "Sec. 2. Directive to the Secretary of the Treasury. The Secretary of the Treasury shall consult with the heads of the member agencies of the Financial Stability Oversight Council and shall report to the President within 120 days of the date of this order (and periodically thereafter) on the extent to which existing laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies promote the Core Principles and what actions have been taken, and are currently being taken, to promote and support the Core Principles. That report, and all subsequent reports, shall identify any laws, treaties, regulations, guidance, reporting and recordkeeping requirements, and other Government policies that inhibit Federal regulation of the United States financial system in a manner consistent with the Core Principles."
   The memorandum is aimed at the so-called fiduciary rule which is intended to prevent conflicts of interest by the managers of retirement accounts. A change in that rule would require a full rulemaking proceeding by the Department of Labor. The memorandum states: "Section 1. Department of Labor Review of Fiduciary Duty Rule. (a) You are directed to examine the Fiduciary Duty Rule to determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice. As part of this examination, you shall prepare an updated economic and legal analysis concerning the likely impact of the Fiduciary Duty Rule, which shall consider, among other things, the following: (i) Whether the anticipated applicability of the Fiduciary Duty Rule has harmed or is likely to harm investors due to a reduction of Americans' access to certain retirement savings offerings, retirement product structures, retirement savings information, or related financial advice; (ii) Whether the anticipated applicability of the Fiduciary Duty Rule has resulted in dislocations or disruptions within the retirement services industry that may adversely affect investors or retirees; and (iii) Whether the Fiduciary Duty Rule is likely to cause an increase in litigation, and an increase in the prices that investors and retirees must pay to gain access to retirement services. (b) If you make an affirmative determination as to any of the considerations identified in subsection (a) or if you conclude for any other reason after appropriate review that the Fiduciary Duty Rule is inconsistent with the priority identified earlier in this memorandum then you shall publish for notice and comment a proposed rule rescinding or revising the Rule, as appropriate and as consistent with law."
   The post for February 3 below discusses the attempt by Congress to nullify the fiduciary rule using the Congressional Review Act which was vetoed by President Obama in June of 2016.
   Read the Executive Order entitled "Presidential Executive Order on Core Principles for Regulating the United States Financial System."
   Read the Presidential Memorandum entitled "Presidential Memorandum on Fiduciary Duty Rule."

Congress Invokes the Congressional Review Act to Block Administrative Rules
February 3, 2017. Prior to this term, the Congress has adopted and the president has signed only one joint resolution rejecting an administrative rule under the provisions of the Congressional Review Act 5 U.S.C. §801 et seq.; and that action that took place in 2001. The current majority leadership in Congress and the Trump administration have called for the use of the CRA to block pending rules. Congress has begun to take action toward that end, passing H.J. Res. 38 and H.J. Res 41. Since the CRA requires a joint resolution, those measures now go to the president for signature.
    The Congressional Reserch Service summary for H.J. Res 38 indicates that: "This joint resolution nullifies the Stream Protection Rule finalized by the Department of the Interior's Office of Surface Mining Reclamation and Enforcement on December 20, 2016. The rule addresses the impacts of surface coal mining operations on surface water, groundwater, and the productivity of mining operation sites."
   The Congressional Research Service summary of H.J. Res. 41 explains that: "This joint resolution nullifies the "Disclosure of Payments by Resource Extraction Issuers" rule finalized by the Securities and Exchange Commission on July 27, 2016. (The rule, mandated under the Dodd-Frank Wall Street Reform and Consumer Protection Act, requires resource extraction issuers to disclose payments made to governments for the commercial development of oil, natural gas, or minerals.)"
   Congress passed a resolution of disapproval in the previous session, H.J. Res. 88, but it was vetoed by the president. As the CRS summary for that measured indicated: "This joint resolution disapproves and nullifies a Department of Labor rule published on April 8, 2016, relating to the definition of the term "fiduciary" and the conflict of interest rule with respect to retirement investment advice." In his memorandum of disapproval explaining his veto of the resolution, President Obama said: "The outdated regulations in place before this rulemaking did not ensure that financialadvisers act in their clients' best interests when giving retirement investment advice. Instead, some firms have incentivized advisers to steer clients into products that have higher fees and lower returns—costing America's families an estimated $17 billion a year." (See full document below.)
   The Congressional Research Service (CRS) has indicated to Congress its opinion that any rule "submitted after June 13, 2016, May Be Subject to Disapproval by the 115th Congress." CRS INSIGHT, "Agency Final Rules Submitted on or After June 13, 2016, May Be Subject to Disapproval by the 115th Congress," December 15, 2016 (IN10437).
   Read H.J. Res. 38.
   Read the H.J. Res. 41.
   Read the H.J. Res. 88.
   Read President Obama's Memorandum of Disapproval which explains his veto of H.J. Res. 88.
   Read the Congressional Research Service Document.
   Read the Congressional Review Act.

District Court in Massachusetts ACLU Executive Order Case on Immigrants and Refugees Denies Request to Extend TRO
February 2, 2017. A federal district court in Massachusetts has denied an ACLU request to extend the temporary restraining order against the executive order on immigrants and refugees. The decision was issued by Judge Nathaniel M. Gorton, who is a different judge from the judge and the federal magistrate who issued the TRO earlier. Judge Gorton concluded that the permanent residents were no longer in danger since the White House said it would not enforce the order against them, although no formal modification of the executive order to that effect was issued. He then examined the allegations and concluded: "[B]ecause plaintiffs have not demonstrated that they are likely to succeed on the merits of any of their claims, an extension of the restraining order at the present time is not warranted." Louhghalam v. Trump, Civil Action No. 17-10154-NMG (2017, Memorandum and Order, at 20-21.
Read the Memorandum and Order.

City and County of San Francisco Files Suit Against Trump Administration
February 1, 2017. The city attorney for the City and County of San Franscisco has filed suit against the Trump executive order that addresses sanctuary cities, seeking a declaratory judgment and injunction to block the administration from seeking to cut federal funds to the city and county
Read the Complaint.

ACLU of Massachusetts Files Expanded Challenge to Trump Immigrant and Refugee Order Joined by the State
February 1, 2017. The ACLU of Massachusetts has filed an amended complaint with a wider range of challenges to the Trump executive order on immigrants and refugees. The Massachusetts Attorney General announced today that her office would be joining that suit in support of the ACLU position.
   Read the Amended Complaint.
   Access the Mass. ACLU Web Page on the Case with Relevant Documents.
   Read the Mass. Attorney General Press Release on the Case.

PEW/MacArthur Report on Evidence-Based Policy in the States
February 1, 2017. The PEW Trusts and MacArthur Foundation's Pew-MacArthur Results First Initiative has issued a report entitled "How States Engage in Evidence-Based Policymaking: A National Assessment." The Results First Initiative has a number of issue briefs and other materials available through its web pages posted below.
   Read the Report
   Access the Project's Website on the Study
   Read the Issue Brief on Implementation Oversight for Evidence-Based Programs
   Access the "Results First Initiative" website.

Washington State Attorney General Files Suit Against Trump Executive Order
January 30, 2017. The Attorney General of Washington has filed suit challenging the executive order on immigrants and refugees. The suit names as defendants President Trump, Secretary of the Department of Homeland Security John F. Kelly, the Department of Homeland Security which is the home department of U.S. Customs and Border Protection, Acting Secretary of State Tom Shannon, and the United States. It alleges discrimination in violation of the Fifth Amendment, establishment of religion in violation of the First Amendment, violations of due process under the Fifth Amendment, discriminatory visa procedures in violation of Immigration and Nationality Act, 8 U.S.C. § 1152(a)(1)(A), denial of Asylum and Withholding of Removal under the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1231(b)(3), returning asylum seekers to countries where they are in danger in violation of the Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231 16 note, implements the United Nations Convention Against Torture, which the United States ratified in 1994. Pub. L. 105-277, div. G, subdiv. B, title XXII, § 2242, violating protected religious freedom under The Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a), and procedural and substantive violations of the Administrative Procedure Act. The Washington Attorney General asked the court for an expedited hearing within two weeks and seeks a declaratory judgment and an injunction against implementation of the executive order.
   Read the Complaint.
   Read the Motion for a Temporary Restraining Order
   Read the Attorney General's Press Release on the Suit

President Issues Executive Order Aimed at Administrative Rulemaking
January 29, 2017. President Trumpt today issued an executive order entitled "Reducing Regulation and Controlling Regulatory Costs," that places constraints on rulemaking by administrative agencies through a number of means. Among other things, it requires that: "it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process." Sec. 1 Section 2 adds that: "(b) For fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director). (c) In furtherance of the requirement of subsection (a) of this section, any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. Any agency eliminating existing costs associated with prior regulations under this subsection shall do so in accordance with the Administrative Procedure Act and other applicable law."
Read the Executive Order

District Court in Boston Enjoins Trump Order
January 29, 2017. Judge Allison D. Burroughs along with Magistrate Judge Judith Deinhas joined the three other courts that have issued temporary restraining orders against the Trump immigration and refugee executive order. In addition to visa-holders and refugees, the order specifically refers to citizens and permanent residents as well. The order also adds: "Customs and Border Protections shall notify airlines that have flights arriving at Logan Airport of the Order and the fact that individuals on these flights will not be detained or returned solely on the basis of the Executive Order." Pourabdollah v. Trump, Temporary Restraining Order, at 2.
Read the Order

Federal District Court in Alexandria Virgina Also Enjoins Executive Order
January 29, 2017. Judge Leonie M. Brinkema has joined other judges who have issued temporary restraining orders against the Trump immigrant and refugee executive order. In this case, the judge's order legal permanent residents arriving at Dulles airport.
Read the Order

Federal District Judge in Seattle Issues Emergency Stay Against Removal of Individuals under Trump Order
January 29, 2017. Judge Thomas S. Zilly of the U.S. District Court for the Western District of Washington has joined other judges in issuing an emergency stay of removal involving two individuals, and setting a hearing for February 3.
Read the Stay.

Federal Court Issues Injunction Against Trump Immigration Executive Order
January 29, 2017. Judge Ann M. Donnelly of the U.S. District Court for the Eastern District of New York has issued a temporary injunction against removal of any of those who hold valid visas or immigration documents who are from the seven countries identified in the executive order on immigration issued by President Trump (See posting below). The injunction was granted in the case of Darweesh v. Trump brought by the American Civil Liberties Union. It is a class action. The named plaintiffs are as the ACLU described them: "Hameed Darweesh, an Iraqi husband and father of three, worked for the U.S. military and his life was in danger in Iraq due to that relationship. The other plaintiff’s wife and son were threatened because of their perceived ties to the United States. U.S. Customs and Border Protection detained both men in JFK Airport in New York as they entered the country."
    The complaint alleges constitutional, treaty, and statutory violations with respect to both substantive and procedural aspects of the order. In her temporary injunction, Judge Donnelly specifically found that: The petitioners have a high likelihood of success in establishing that removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guranteed by the United States Constitution." Decision and Order, at 1. She specifically ordered that U.S. officials are "Enjoined and restrained from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States." Id., at 2.
    Similar orders have been issued in other cases by Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia and Judge Thomas S. Zilly of the U.S. District Court of the Western District of Washington.
    Earlier on Saturday, the U.S. State Department issued the following statement on it "Urgent Notice: Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals, January 27, 2017. Urgent Notice Per the Executive Order on Protecting the Nation from Terrorist Attacks by Foreign Nationals signed on January 27, 2017, visa issuance to nationals of the countries of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen has been suspended effective immediately until further notification. If you are a citizen of one of these countries, please do not schedule a visa appointment or pay any visa fees at this time. If you already have an appointment scheduled, please DO NOT ATTEND. You will not be permitted entry to the Embassy/Consulate. We will announce any other changes affecting travelers to the United States as soon as that information is available."
   Read the Decision and Order
   Read the Complaint
   Read the ACLU blog press statement on the case.
   Read the ACLU statement and materials page on the case.
   Access the State Department News Statement.

President Issues Executive Order on Immigration and Refugee Controls
January 28, 2017. President Trump has issued an executive order directing what he has previously termed a system of extreme vetting and other immigration controls and refugess limits.
Read the Executive Order

Trump Issues Memorandum on Organization of the National Security Council
January 28, 2017. President Trump has issued a presidential memorandum entitled "Organization of the National Security Council and the Homeland Security Council." It is common for new administrations to address these questions, but normally they are issued as National Security Directives. Among other elements, the memorandum describes who will be members of what is commonly known as the "Principals Committee."
Read the Memorandum.

President Issues Ethics Order
January 28, 2017. President Trump has issued an executive order on ethics for members of the executive branch.
Read the order.

Trump Issues National Security Directive on Iraq and Syria
January 28, 2017. President Trump has issued what he termed a National Security Presidential Memorandum (NSPM) entitled "Presidential Memorandum Plan to Defeat the Islamic State of Iraq and Syria." This type of executive action is more commonly known as a National Security Directive (NSD). These are often classified except when the president wishes to publicize a policy position.
Read the NSPM.

OMB Issues Statement on Budget Impacts of Major Executive Orders
January 26, 2017. The director of the Office of Management and Budget has issued statements on the White House estimates of the budgetary impacts of a number of the most significant executive orders issued by President Trump thus far in his administration.
   Read the Statement on Budget Impacts of EO on "Expediting Environmental Reviews and Approvals for High Priority Infrastructure Projects."
   Read the Statement on Budget Impacts of EO on "Border Security and Immigration Enforcement Improvements."
   Read the Statement on Budget Impacts of EO on "Enhancing Public Safety in the Interior of the United States."
   Read the Statement on Budget Impacts of EO on Affordable Care Act

OMB Provides Initial Guidance on Hiring Freeze
January 26, 2017. The Office of Management and Budget has issued a memorandum laying out initial guidance on implementation of the president's January 23 memorandum calling for a freeze on federal government civilian hiring. The OMB memorandum indicates also that further guidance will be forthcoming from that agency as well as the Office of Personnel Management.
Read the OMB Memorandum

President Issues Executive Orders on Border Security and Enforcement and Sanctuary Cities and States
January 25, 2017. President Trump has issued an executive order on border security and enforcement and another on sanctuary jurisdictions entitled Public Safety in the Interior of the United States. U.S. media, and particularly the Washington Post, have published a draft EO on immigration and refugees, though that one has not yet been formally issued by the White House. It will be posted here as soon as it becomes official.
Read the EO on Enhancing Public Safety in the Interior of the United States (Sanctuary Jurisdictions)
Read the EO on Border Security and Enforcement.

President Issues Memorandum on Expedited Permitting for Manufacturing
January 25, 2017. President Trump yesterday issued a presidential memorandum entited "Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing" calling on "executive departments and agencies (agencies) to support the expansion of manufacturing in the United States through expedited reviews of and approvals for proposals to construct or expand manufacturing facilities and through reductions in regulatory burdens affecting domestic manufacturing." The directive calls for a streamlining action plan following consultation with stakeholders in the manufacturing sector.
Read the Memorandum.

President Issues and Executive Order and a Series of Memoranda on Pipeline Projects
January 24, 2017. President Trump has issued an executive order and a number of memoranda on pipeline projects with particular attention to two major pipeline projects that changed positions from the Obama administration. In one memorandum to the Secretary of the Army, the President calls for expditious and favorable review of the Dakota-Access pipeline construction. In another which is also addressed to the Secretaries of State and Interior, he directed similar action for the Keystone XL pipeline. He also issued a memorandum to the Secretary of Commerce calling for a plan to ensure that henceforth construction of pipelines in the U.S. would be built using U.S. manufactured materials. Finally, he issued an executive order directing the Council on Environmental Quality to work with relevant agencies to expedite environmental reviews and approvals for infrastructure projects.
   Read the Memorandum on the Dakota-Access Pipeline.
   Read the Memorandum on the Keystone XL Pipeline.
   Read the Memorandum on the Construction of American Pipelines.
   Read the Executive Order on Executive Order Expediting Environmental Reviews and Approvals For High Priority Infrastructure Projects.

President Trump Reinstates and Expands "Mexico City" Policy Regarding Funding of Family Planning Services
January 24, 2017. President Trump has issued a presidential memorandum which reinstated and expanded the so-called Mexico City policy which bars U.S. foreign assistance funds to any organization which provides information on abortion as part of family planning services. For more information and the document, see the Healthcare, Disability, and Development page of this website.

Trump Issues Memorandum Pulling Out of TransPacific Partnership
January 24, 2017. President Trump has issued a memorandum withdrawing the U.S. agreement to the TransPacific Partnership (TPP). For more information and the document, see the Sustainable Development page of this website.

President Imposes Federal Hiring Freeze
January 24, 2017. President Trump has issued a memorandum imposing a freeze on federal hiring. He wrote in part: "I hereby order a freeze on the hiring of Federal civilian employees to be applied across the board in the executive branch. As part of this freeze, no vacant positions existing at noon on January 22, 2017, may be filled and no new positions may be created, except in limited circumstances. This order does not include or apply to military personnel."
Read the Memorandum.

Suit Filed Against President Claiming Violations of Constitutional Emoluments Clause
January 24, 2017. The group Citizens for Responsibility and Ethics in Government (CREW) in the Federal District Court for the Southern District of New York a case styled Citizens for Responsibility and Ethics in Government v. Trump alleging that the president is in violation of the emoluments clause of the U.S. Constitution, Article I, Section 9, Clause 8. The complaint alleges that: "Defendant has committed and will commit Foreign Emoluments Clause violations involving at least: (a) leases held by foreign-government-owned entities in New York’s Trump Tower; (b) room reservations and the use of venues and other services and goods by foreign governments and diplomats at Defendant’s Washington, D.C. hotel; (c) hotel stays, property leases, and other business transactions tied to foreign governments at other domestic and international establishments owned, operated, or licensed by Defendant; (d) payments from foreign-government-owned broadcasters related to rebroadcasts and foreign versions of the television program “The Apprentice” and its spinoffs; and (e) property interests or other business dealings tied to foreign governments in numerous other countries." Complaint, at 3. The plaintiffs seek a declaratory judgment and an injunction against President Trump. Two of the attorneys involved in the case, Norman L. Eisen, Richard Painter, were the White House ethics lawyers for Presidents Obama and George W. Bush respectively.
    The same group filed a complaint with the General Services Administration on January 20, alleging that the Mr. Trump is in violation of the lease for the Old Post Office building in Washington, D.C. that is now a Trump hotel.
   Read the complaint.
   Read the news release about the suit from CREW.
   Read the GSA Complaint.

President Trump Issues Executive Order Calling for Executive Action to Blunt Requirements of the Affordable Care Act
January 21, 2017. As one of his first actions after taking the oath of office, President Trump signed an executive order entitled "Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal." That order is posted on the Healthcare, Disability, and Development page of this website.

Chief of Staff Issues Memorandum to Executive Agencies to Freeze any Pending Regulatory Policy Actions
January 21, 2017. One of the first actions of the new administration was a memorandum issued Chief of Staff Reince Priebus to heads of executive departments and agencies entitled "Regulatory Freeze Pending Review." Among other provisions, it instructs as follows: "1. Subject to any exceptions the Director or Acting Director of the Office of Management and Budget (the "OMB Director") allows for emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise, send no regulation to the Office of the Federal Register (the "OFR") until a department or agency head appointed or designated by the President after noon on January 20, 2017, reviews and approves the regulation. The department or agency head may delegate this power of review and approval to any other person so appointed or designated by the President, consistent with applicable law. 2. With respect to regulations that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval as described in paragraph 1, subject to the exceptions described in paragraph 1. This withdrawal must be conducted consistent with OFR procedures." The full memorandum is posted below.
Read the Memorandum.

New Administration Quickly Changes Website
January 21, 2017. As the last two administrations have, the Trump administration changed the White House website minutes after the new president took the oath of office. Although the current site retains a number of the elements of the Obama administration site, the content from that administration has been removed. Also, other elements of that website have been removed. At this point, the new orders have not yet been posted. The inaugural address has been posted.The new administration is likely to be developing its web presence in the near future.
Executive branch agency websites have been changed to reflect information about the acting heads of those agencies, pending the confirmation processes for incoming appointees which is customary during transitions.
Access the White House website.

Congressional Budget Office Publishes Estimates of Impacts from Repeal of Affordable Care Act
January 17, 2017. The Congressional Budget Office has issued a report on the impacts of a repeal of the Affordable Care Act which estimated major increases in uninsured and insurance costs. For more information and the documents, see the Healthcare, Disability, and Development page of this website.

House Joins Senate in Passing Concurrent Resolution to Start the Process of Repeal of the Affordable Care Act
January 13, 2017. The House of Representatives today considered S. Con. Res. 3 which is a spending measure that also contains rules changes, but the overriding issue is that it is intended to begin the process for repeal of the Affordable Care Act. The concurrent resolution passed the Senate on January 12 by a vote of 51 to 48. It passed the House today by a vote of 227 to 198.
Read the S. Con. Res. 3.
Read the Congressional Research Service Bill Summary.

DOJ Inspector General Announces Investigation of FBI and DOJ during the Election
January 12, 2017. The Department of Justice Inspector General has announced an investigation into the FBI and Justice Department actions with respect to aspects of the Clinton email actions during the elections. The IG explained his intention in the statement posted below.
Read the IG Statement.

Office of Government Ethics Head Concerned About Vetting of Nominees Before Hearings
January 9, 2017. The Director of Office of Government Ethics, Walter M. Shaub, Jr., wrote Senators Charles Shumer (D-NY) and Elizabeth Warren (D-MA) on January 6 in response to inquiries from the senators and indicated concern that confirmation hearings were being scheduled for nominees chosen for the incoming administration before there had been an opportunity for timely filing and review of conflict of interest documents. Shaub wrote, in part, "As OGE's Director, the announced hearing schedule for several nominees who have not completed the ethics review process is of great concern to me. This schedule has created undue pressure on OGE's staff and agency ethics officials to rush through these important reviews. More significantly, it has left some of the nominees with potentially unknown or unresolved ethics issues shortly before their scheduled hearings. I am not aware of any occasion in the four decades since OGE was established when the Senate held a confirmation hearing before the nominee had completed the ethics review process." Shaub letter, at 1.
Read the Letter from OGE Director Shaub to Senators Shumer and Warren.

DNI Releases IC Assessment of Russian Involvement in U.S. Elections
January 6, 2017. The Director of National Intelligence has released the unclassified Intelligence Community assessment of Russian activities and intentions in recent U.S. elections which the report commissioned by President Obama. It is entitled
   Read the Unclassified Version of the Report.
   Read the Intelligence Community Statement on Release of the Report.
   Access the DNI Website.
   Access Information About the Agencies of the Intelligence Community.

House Passes Changed Version of H. Res. 5 on House Rules with Holman Rule Revived
January 5, 2017. The House of Representatives passed H. Res. 5 on House Rules on a vote of 234 - 193 with a revived version of the Holman Rule [Section 3(a) of the resolution], not in force since the 1980s, that permits members to amend bills to target the pay of specific employees of the federal government. The resolution had been modified to remove the controversial ethics office proposal discussed in the January 3 post below.
Read H. Res. 5 as passed.

New House Majority Proposes Major Changes in the Office of Congressional Ethics
January 3, 2017. The new House of Representatives majority caucus has voted to change the nature and independence of Office of Congressional Ethics and to make it subject for most important actions to direct and ongoing control of the House Ethics Committee. If passed as part of a series of rules changes, the unit would be renamed the Office of Congressional Complaint Review. The measure was proposed to the House Republican caucus by Rep. Robert Goodlatte (R-VA) and is scheduled to be part of the rules change resolution to be voted on today. It is part of H.Res. 5 "Adopting rules for the One Hundred Fifteenth Congress."
    (3:11 pm PST update) Following reactions from within both parties, the president elect, and the public, the majority caucus withdrew language in H. Res. 5 that would have made the changes approved by the caucus last night noted above. The Draft rules changes document have been taken down and are no longer available at the URL below.
   Read the draft rules changes.
   Read H. Res. 5.

Federal Agencies Issue White Paper on Russian Grizzly Steppe Cyber Threat
December 31, 2016. The National Cybersecurity and Communications Integration Center (NCCIC) and the FBI issued a joint white paper on December 29 entitled "GRIZZLY STEPPE – Russian Malicious Cyber Activity." The summary of the paper explains: "This Joint Analysis Report (JAR) is the result of analytic efforts between the Department of Homeland Security (DHS) and the Federal Bureau of Investigation (FBI). This document provides technical details regarding the tools and infrastructure used by the Russian civilian and military intelligence Services (RIS) to compromise and exploit networks and endpoints associated with the U.S. election, as well as a range of U.S. Government, political, and private sector entities. The U.S. Government is referring to this malicious cyber activity by RIS as GRIZZLY STEPPE."
Read the Report.

President's Commission on Cybersecurity Reports
December 8, 2016. The Commission on Enhancing National Cybersecurity appointed by President Obama in Executive Order 13718 issued on February 9, 2016 has issued its report entitled Report on Securing and Growing the Digital Economy. The Commission addressed federal governance, critical infrastructure, cybersecurity research and development, cybersecurity workforce, identity management and authentication, Internet of Things, public awareness and education, state and local government cybersecurity, insurance, and international issues.
Read the Report.

GAO Recommends FAA Regulate Commercial Space Support Vehicles
November 28, 2016. The Government Accountability Officer has issued a new report entitled "Commercial Space: FAA Should Examine How to Appropriately Regulate Space Support Vehicles. The report explains: "The U.S. commercial space industry has seen significant development in the past decade, generating hundreds of millions of dollars in revenue by launching satellites and other payloads into space while working toward developing space tourism. More recently, a related industry has emerged that is planning to complement the commercial space industry primarily by using a variety of aircraft, from high-performance jets to balloons and hybrid launch vehicles, to conduct space-related activities but not launch into space. For example, these companies plan to use aircraft to test equipment bound for the international space station, conduct microgravity research, and train future space flight participants (or tourists) hoping to ride in future commercial launch vehicles. Due to an interest in identifying the best way to regulate and at the same time develop a space support industry, the U.S. Commercial Space Launch Competitiveness Act includes a provision for us to look at the use of space support services and vehicles and any barriers to their use. There is, however, neither a regulatory nor a statutory definition nor an agreed-upon industry definition of space support services or space support vehicles." GAO goes on to recommend that: "the Secretary of the Department of Transportation (DOT) should direct the FAA Administrator to fully examine and document whether the FAA’s current regulatory framework is appropriate for space support vehicles and, if not, suggest legislative or regulatory changes, or both, as applicable."
Read the GAO Report.
Access the U.S. Commercial Space Launch Competitiveness Act of 2015, P.L. 114-90, 129 Stat. 704 (November 25, 2015).

Transition Resources Available from Special GSA Website
November 14, 2016. The General Services Administration has provided a website entitled the Presidential Transition Directory with a variety of key documents and other information on such matters as appointments, ethics rules, and, of course, the Plum book (“United States Government Policy and Supporting Positions”) which is "published, alternately, by the Senate Committee on Homeland Security and Governmental Affairs and the House Committee on Oversight and Government Reform." which lists the "8,000 Federal civil service leadership and support positions in the legislative and executive branches of the Federal Government that may be subject to noncompetitive appointment." Other key documents available there include the Office of Personnel Management Presidential Transition Guide and the Office of Government Ethics Standards of Ethical Conduct for Federal Employees.
   Access the Federal Government's Presidential Transition Directory.
   Access the Transition Overview in .pdf.
   Access the Plum Book.
   Access the Office of Personnel Management Presidential Transition Guide.
   Access the Office of Government Ethics Standards of Ethical Conduct for Federal Employees.

Fourth Circuit Reinstates Abu Ghraib Suit Against CACI
October 21, 2016. The United States Court of Appeals for the Fourth Circuit has reinstated a case originally brought against CACI, a Virginia corporation and U.S. government contractor, alleging a range of torture and other illegal actions directed at detainees at the Abu Ghraib prison in Iraq following the U.S. invasion of the country. The decision issued today in Al Shimari v. CACI Premier Technology ruled that illegal actions by a contractor were actionable and rejected a ruling that the suit was barred. The suit was brought by the Center for Constitutional Rights. For full information see the Public Contract Management page of this website.

D.C. Circuit Panel Remakes the Consumer Financial Protection Bureau as an Executive Branch Agency
October 11, 2016. A three judge panel of the U.S. Circuit Court of Appeals for the D.C. Circuit has removed the independent status provided by Congress for the Consumer Financial Protection Bureau in the Dodd/Frank legislation, leaving the CFPB as an executive agency with the director serving at the pleasure of the president rather than removable only for cause as specified in the statute. Writing for the panel in PHH Corp. v. Consumer Financial Protection Bureau, Judge Kavanaugh said: "In light of the consistent historical practice under which independent agencies have been headed by multiple commissioners or board members, and in light of the threat to individual liberty posed by a single-Director independent agency, we conclude that Humphrey’s Executor cannot be stretched to cover this novel agency structure. We therefore hold that the CFPB is unconstitutionally structured. What is the remedy for that constitutional flaw? PHH contends that the constitutional flaw means that we must shut down the entire CFPB (if not invalidate the entire Dodd-Frank Act) until Congress, if it chooses, passes new legislation fixing the constitutional flaw. But Supreme Court precedent dictates a narrower remedy. To remedy the constitutional flaw, we follow the Supreme Court’s precedents, including Free Enterprise Fund, and simply sever the statute’s unconstitutional for-cause provision from the remainder of the statute. Here, that targeted remedy will not affect the ongoing operations of the CFPB. With the for-cause provision severed, the President now will have the power to remove the Director at will, and to supervise and direct the Director. The CFPB therefore will continue to operate and to perform its many duties, but will do so as an executive agency akin to other executive agencies headed by a single person, such as the Department of Justice and the Department of the Treasury Those executive agencies have traditionally been headed by a single person precisely because the agency head operates within the Executive Branch chain of command under the supervision and direction of the President. The President is a check on and accountable for the actions of those executive agencies, and the President now will be a check on and accountable for the actions of the CFPB as well." Slip op., at 9-10.
Read the opinion.

President Signs Continuing Resolution that Avoids a Federal Government Shutdown
September 30, 2016. The president yesterday signed H.R. 5325, the "Continuing Appropriations and Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2017, and Zika Response and Preparedness Act." This continuing resolution avoids a government shutdown that might have taken place on October 1, the beginning of the new fiscal year for the federal government.
Access HR 5325.

HHS Issues Rule to Limits Mandated Arbitration and Ensures Right to Sue for Long Term Care Residents
September 29, 2016. The Center for Medicare and Medicaid Services in the Department of Health and Human Services has issued a final rule on long term care facilties and the 1.5 million residents who reside in the more than 15,000 long-term care facilities regulated by CMMS. The CMMS explained that the one of the key provisions of the new rule included: (1) Strengthening the rights of long-term care facility residents, including prohibiting the use of pre-dispute binding arbitration agreements. The center explained that this is the first significant revisiion of the rules in this field since 1991. The proposal for the new rule was announced, along with a number of other initiatives in other agencies, at the White House Conference on Aging in July 2015. In releasing the new rule CMMS explained on its blog that: "Historically, many facilities require residents to agree to binding arbitration clauses when they are admitted to these facilities. These clauses require the resident to settle any dispute that may arise using arbitration rather than the court system. Effective November 28, 2016, our final rule will prohibit the use of pre-dispute binding arbitration agreements. This means that facilities may not require residents to sign pre-dispute arbitration agreements as a condition of admission to that long-term care facility."
   The CMMS added that the other important elements of the new rule aimed at: (2) Ensuring that long-term care facility staff members are properly trained on caring for residents with dementia and in preventing elder abuse. (3) Ensuring that long-term care facilities take into consideration the health of residents when making decisions on the kinds and levels of staffing a facility needs to properly take care of its residents. (4) Ensuring that staff members have the right skill sets and competencies to provide person-centered care to residents. The care plans developed for residents will take into consideration their goals of care and preferences. (5) Improving care planning, including discharge planning for all residents with involvement of the facility’s interdisciplinary team and consideration of the caregiver’s capacity, giving residents information they need for follow-up after discharge, and ensuring that instructions are transmitted to any receiving facilities or services. (5) Allowing dietitians and therapy providers the authority to write orders in their areas of expertise when a physician delegates the responsibility and state licensing laws allow. (6) Updating the long-term care facility’s infection prevention and control program, including requiring an infection prevention and control officer and an antibiotic stewardship program that includes antibiotic use protocols and a system to monitor antibiotic use.
   Read the Center for Medicare and Medicaid Services Press Release.
   Read the Final Rule as Submitted to Federal Register.
   Read the CMMS Blog post on "Commitment to Person-Centered Care for Long-Term Care Facility Residents."
   Read the Final Report of the 2015 While House Conference on Aging.
   Access the Proposed Rule Published on July 16, 2015.

NHTSA Issues a Automated Vehicles Policy
September 22, 2016. The National Highway Transportation Safety Administration has issued a proposed policy for automated vehicles along with a series of related proposals and supporting documents. This is a process that will be ongoing, but the essential documents are as follows.
   Read DOT Press Release.
   Read the Proposed Automated Vehicles Policy document.
   Read the Federal Register posting on the Enforcement Guidance Bulletin on Automated Vehicle Technologies.
   Read the Federal Register posting for Comment on the Federal Automated Vehicle Policy.
   Read the Federal Automated Vehicles Policy Webpage.

OMB Issues New Privacy Requirements
September 16, 2016. The Office of Management and Budget has issued a new memorandum for federal agencies on The Role and Designation of Senior Agency Officials for Privacy. This memorandum follows Executive Order 13719 issued by President Obama in February Establishment of the Federal Privacy Council.
Read the OMB Memorandum.
Read E.O. 12719.

DOJ Announces Plans to Step Away from Federal Use of Private Prisons
August 18, 2016. Deputy Attorney General Sally Q. Yates has announced: “Today, I sent a memo to the Acting Director of the Bureau of Prisons directing that, as each private prison contract reaches the end of its term, the bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the bureau’s inmate population. This is the first step in the process of reducing—and ultimately ending—our use of privately operated prisons. While an unexpected need may arise in the future, the goal of the Justice Department is to ensure consistency in safety, security and rehabilitation services by operating its own prison facilities.” More specifically she has indicated that: “as each contract with private prison companies reaches the end of its term, ‘the Bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the Bureau's inmate population.’ The Bureau's population has declined by nearly12,500 inmates in FY2016, and we expect an additional decrease of 1,975 in 2017.” Yates Press Release In here memorandum, Yates concluded: "Private prisons served an important role during a difficult period, but time has shown that they compare poorly to our own Bureau facilities. They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department' s Office oflnspector General, they do not maintain the same level of safety and security." Yates Memorandum, at p. 1.
   This decision by the deputy attorney general follows a report issued on August 11 by the Department of Justice Office of the Inspector General. That report indicated that: “We found that in a majority of the categories we examined, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions. We analyzed data from the 14 contract prisons that were operational during the period of our review and from a select group of 14 BOP institutions with comparable inmate populations to evaluate how the contract prisons performed relative to the selected BOP institutions. Our analysis included data from FYs 2011 through 2014 in eight key categories: (1) contraband, (2) reports of incidents, (3) lockdowns, (4) inmate discipline, (5) telephone monitoring, (6) selected grievances, (7) urinalysis drug testing, and (8) sexual misconduct.3 With the exception of fewer incidents of positive drug tests and sexual misconduct, the contract prisons had more incidents per capita than the BOP institutions in all of the other categories of data we examined. For example, the contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.” Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, Executive Summary, at ii.
   Read the Press Release by Deputy Attorney General Yates on the Action.
   Read the Memorandum from Deputy Attorney General Sally Yates to the Acting Director of Federal Bureau of Prisons .
   Read DOJ IG Report.
   Read the Executive Summary of the DOJ IG Report.

NIH Moves to Allow Chimera Research
August 7, 2016. The National Institutes of Health (NIH) has published a highly controversial document moving toward allowing Chimera research that allows the use of human stem cells in human-animal research. The document is the "Request for Public Comment on the Proposed Changes to the NIH Guidelines for Human Stem Cell Research and the Proposed Scope of an NIH Steering Committee’s Consideration of Certain Human-Animal Chimera Research and was published on August 5.
Read the NIH Request for Comment.

International Arbitration Panel Rules Against China on Sea Claims
July 13, 2016. The international Permanent Court of Arbitration in the Hague has issued its decision against the People's Republic of China in a case brought by the Philippines under the Internationl Law of the Sea Convention, contesting PRC claims to control and various rights in ocean areas long claimed by other countries or asserted to be international waters. The panel said in part: "the Tribunal concludes that China’s claim to historic rights to the living and non-living resources within the ‘nine-dash line’ is incompatible with the Convention."
Read the Opinion.
Read the Press Release

Thomas.gov Website Retired and Replaced Fully by Congress.gov
July 11, 2016. The longstanding congressional website Thomas.gov was retired on July 5 and has been replaced fully by Congress.gov. Both website remained in operation for an extended period, first while Congress.gov was in beta and then as data sets and site elements were transferred. The Library of Congress has provided a webpage that explains the changes and the process as well as cross-references to URLs for elements of the sites.
Access the Library of Congress Website Explaining the Retirement of the Thomas.gov website and its replacement with the Congress.gov site.
Access Congress.gov.

District Court Blocks Mississippi HB 1543 Law
July 1, 2016.Judge Carlton W. Reeves of the U.S. District Court for the Southern District of Mississippi has issued an injunction blocking the implementation of Mississippi's HB 1543 the day before the Mississippi law was to take effect on equal protection and establishment of religion. For more information and the opinion, see the Civil Rights page of this website.

Supreme Court Strikes Texas Abortion Restrictions
June 27, 2016. In a 5-3 ruling with the opinion by Justice Breyer in Whole Woman's Health v. Hellerstadt, the Supreme Court today struck down both key features of the Texas HB 2 statute that required doctors performing abortions to be have admitting privileges at a nearby hospital and that required facilities where abortions are performed to meet demanding standards "equivalent to the minimum standards adopted under [the Texas Health and Safety Code section] for ambulatory surgical centers.” Breyer wrote, "We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, Casey, supra, at 878 (plurality opinion), and each violates the Federal Constitution. Amdt. 14, §1." Slip op. at 1. Justice Alito filed a dissent joined by the Chief Justice and Justice Thomas. Justice Thomas filed a separate dissent as well.
For the key documents and Supreme Court argument materials, see the posting for March 2, 2016 on this webpage.
Read the Opinion.

Supreme Court Uphold University of Texas Admissions Program
June 24, 2016. Justice Kennedy has written the opinion for a 4-3 Court upholding the University of Texas Austin diversity admissions program, ruling for the second time on that process. Chief Justice Roberts and Justices Thomas and Alito dissented. Justice Kagan recused herself since she was Solicitor General when the earlier part of the case was on appeal.
Read the Opinion.
Read the Court's Previous Fisher Opinion from 2013.

Wyoming District Court Rejects Bureau of Land Management Fracking Rule
June 24, 2016. Federal District Judge Scott W. Skavdahl has issued an order in Wyoming v. Department of the Interior, Case No. 2:I5-CV-043-SWS, against the Bureau of Land Management Fracking Rule issued in 2015. In so doing he wrote: "Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing. The BLM's effort to do so through the Tracking Rule is in excess of its statutory authority and contrary to law. As this finding is dispositive as to each of the Petitions for Review, the Court need not address the other points raised in support of setting aside the Fracking Rule. THEREFORE, the Court holds the Fracking Rule is unlawful, and it is ORDERED that the BLM's final rule related to hydraulic fracturing on federal and Indian lands, 80 Fed. Reg. 16,128 (Mar. 26, 2015), is hereby SET ASIDE." Slip Op. at 27.
Read the Order.
Access the Rule.

Texas Leads Other States in Suit Again DOE and DOJ Actions on Transgender Issues
May 26, 2016. The state of Texas led a group of other plaintiffs including Alabama, Wisconsin, West Virginia, Tennessee, Main, Louisiana, Utah, and Georgia and a number of school districts in launching a suit against the Department of Education and the Department of Justice to the actions of those agencies with respect to transgender students in schools and colleges. (See the post for May 13 below.) For details and a copy of the complaint, see the Civil Rights page of the website.

Department of Labor Issues New Overtime Pay Policy
May 20, 2016. The White House and Department of Labor Secretary announced new overtime pay policy this week. Although it appeared that this was a new mandate, what actually happened was that the Wage and Hour Division of the U.S. Department of Labor announced the promulgation of a final rule on overtime pay that had been in process since 2014. On March 13, 2014 President Obama issued a presidential memorandum to the Wage and Hour Division of the Department of Labor "to propose revisions to modernize and streamline the existing overtime regulations." 79 Fed. Reg. 18737 (April 3, 2014).
    Read the Final Rule.
    Read the Presidential Memorandum.
    Read the White House Fact Sheet on the Overtime Policy.
    Access the Wage and Hour Division Webpage on the Rule.
    Access the Department of Labor Overtime Pay Rule Webpage.

Supreme Court Sends Affordable Care Act Women's Health Issue Back to Lower Courts
May 16, 2016. The Supreme Court has issued a per curiam opinion in Zubik v. Burwell, sending the case back to the lower courts after concluding that the parties can resolve the conflict between the ACA requirements to provide women employees with contraceptive health care and the claims of religious employers for exemption from any filing requirements which they asserted are protected by the Religious Freedom Restoration Act. The brief per curiam provides in part: "Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”. . . Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,”even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.” Supplemental Brief for Respondents 14–15. In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.”. . . . We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them." Slip op. at 3-4.
    The opinion and the two supplemental briefs filed after the oral argument are posted below.
    Read the per curiam opinion.
    Read the Supplemental Brief of Petittioners.
    Read the U.S. Supplemental Brief.

Departments of Justice and Education Issue Guidance to Schools and Universities to Protect Transgender Students
May 13, 2016. The Civil Rights Division of the U.S. Department of Justice and the Department of Education Office for Civil Rights have released guidance to schools and colleges in the form of a letter today explaining their obligations to support transgender students. They have also released Examples of Policies and Emerging Practices for Supporting Transgender Students as further explanation of that guidance. For more information and the key documents, see the Civil Rights page of this website.

Federal District Court Strikes Key Financing Provision of the Affordable Care Act
May 13, 2016. Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia has ruled that the Obama administration practice of funding subsidies to insurers under the Affordable Care Act violated constitutional spending requirements. Judge Collyer explained: “This case involves two sections of the Affordable Care Act: 1401 and 1402. Section 1401 provides tax credits to make insurance premiums more affordable, while Section 1402 reduces deductibles, co-pays, and other means of “cost sharing” by insurers. Section 1401 was funded by adding it to a preexisting list of permanently-appropriated tax credits and refunds. Section 1402 was not added to that list. The question is whether Section 1402 can nonetheless be funded through the same, permanent appropriation. It cannot.” U.S. House of Representatives v. Burwell, Slip op. at 1. In so doing, she rejected both the administration's argument that the plaintiffs lacked standing to sue and also its reading of its spending authority. For more information, the opinion and other relevant documents, see the Healthcare, Disability, and Development page of this website.

Virginia Governor Restores Voting and Other Rights to Those Convicted of Felonies Who Have Served Their Time
May 12, 2016. Virginia Governor Terry McAuliffe today announced: "Governor Terry McAuliffe today restored the voting and civil rights of more than 200,000 Virginians who were convicted of felonies, served their time and completed any supervised release, parole or probation requirements." Press Release. The order cites the clemency provision of the Virginia Constitution, Article 5, Section 12, as authority for the governor's action.
    Read the Order.
    Read the Governors' Press Release.
    Read Art. 5, section 12 of the Virginia Constitution Cited by the Governor as Authority for his Order.

Supreme Court Hears Arguments in the Obama Administration's Immigration Policy Case
April 22, 2016 November 22, 2015. The Supreme Court heard oral arguments this week in the United States v. Texas case concerning the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). See the November 22 and November 10, 2015 postings on this webpage for the lower court opinions and other key documents.
Read the Oral Argument Transcript.
Read the Oral Argument Audio.

Kentucky Attorney Sues Governor Over Budget Cuts Imposed by Executive Action
April 12, 2016. The Kentucky Attorney General had filed suit against the governor alleging that he has ursurped the budget powers of the legislature through an end of fiscal year executive directive that imposed a 4.5 percent budget cut on state universities and colleges. After the legislature refused the governor's proposed budget cuts, on March 31, 2016, he issued a letter to the Secretary of Finance and Administration and the State Budget Director to make the cuts administratively (See Exhibit 2 appended to the complaint, .
Read the Complaint.
Read the Attorney General's Press Release on the Suit.

Obama Administration Announces New Policies Aimed at Discouraging Corporate Inversions
April 8, 2016. The White House and the Department of the Treasury announced new policies aimed at discouraging corporate inversions. The next day, Pfizer and Allergan called off a planned merger that was a classic example of the problem of U.S. firms engaged in corporate inversions to avoid U.S. taxes. In announcing these actions, Treasury Secretary Lew said: "Today, we are taking further action to make it more difficult to invert. Some companies are serial inverters. They acquire multiple U.S. firms in stock-based transactions over a short period of time. This increases their size and reduces the negative tax consequences of a subsequent inversion. Today’s action takes away a significant amount of the tax benefits of these serial inversions. We are also taking action to curb the use of earnings-stripping by focusing on transactions that generate large interest deductions by simply transferring debt between subsidiaries without financing new investment in the United States. Finally, we are issuing formal regulations implementing our previous two inversion actions – these simply carry out the original intent of the notices." Remarks by Treasury Secretary Jacob J. Lew on a Press Conference Call Regarding Announcement on Corporate Tax Inversions.
    The Treasury took a number of specific steps to implement these statements. The department finalized rules originally presented in 2014 and 2015. It also put forward notices of proposed rulemaking to address the two particular concerns noted in Secretary Lew's comments concerning eranings-stripping and tax advantages from multiple acquisition strategies. These steps appeared in the Federal Register today and are posted below.
    Read the Statement by Secretary Lew on the Inversion Policy Change.
    Read the Treasury "Fact Sheet" on "Inversion Regulations and Proposed Earnings Stripping Regulations."
    Read the department press release "Treasury Announces Additional Action to Curb Inversions, Address Earnings Stripping."
    Read the IRS Final and temporary regulations on "Inversions and Related Transactions."
    Read Partial Withdrawal of Notice of Proposed Rulemaking and New Notice of Proposed Rulemaking related to corporate inversions.
    Read the Notice of Proposed Rulemaking on Treatment of Certain Interests in Corporations as Stock or Indebtednes issued as part of the set of actions to address corporative inversion problems noted in Secretary lew's statement.

Labor Department Finalizes Rules to Require Fiduciary Obligations on Financial Planners
April 8, 2016. The Department of Labor and the White House announced on Wednesday that final rules were being issued as of that date to require financial advisors to operate on a fiduciary obligation basis with those they advise which particularly emphasizes the importance of disclosure of possible conflicts of interest and also seeks to disrupt tacit incentives for advisers to run up charges against retirement accounts from changing or selling new investment products in a manner that adversely affects the client's account.
    Read the Final Rule on "Definition of the Term ‘‘Fiduciary’’; Conflict of Interest Rule—Retirement Investment Advice" published today in the Federal Register.
    Read the Department of Labor "Rule to Address Conflicts of Interest in Retirement Advice."
    Read the White House "Fact Sheet" on the actions.

Mississippi Enacts Ordinance Allowing Refusal to Serve LGBT Community
April 6, 2016. Mississippi Governor Phil Bryant has signed into law HB 1523, a bill entitled "Protecting Freedom of Conscience from Government Discrimination 13 Act." This is the latest in a series of bills passed by state legislatures (see earlier postings below) in reaction to the Supreme Court's ruling announcing equal protection and due process protections for same-sex couples. The language of the Mississippi statute is sweeping and addresses not just religious organizations, but also also other kinds of organizations and individuals. It allows them to assert what it terms "sincerely held religious or moral convictions" to refuse to serve as well as to take other actions with respect to sexual orientation or identity and protects them from legal action under state law. For the bill itself and more information, see the Civil Rights page of this website.

Supreme Court Unanimously Rejects Challenge to Texas Apportionment Law
March 8, 2016. In a unanimous opinion by Justice Ginsburg in No. 14-940, Evenwel v. Abbott, the Supreme Court upheld the Texas legislative apportionment policy based on total population under the one person, one vote principal. Challenges asserted that the state should be required to count only the "voter-eligible" population.
Read the opinion.

Supreme Court Uses Summary Ruling to Support Same-Sex Partner Parent's Claims
March 8, 2016. Without briefling or oral argument, the Supreme Court reversed a ruling of the Alabama Supreme Court denying Full Faith and Credit to a Georgia judicial decree granting visition and parental rights to a woman who had been in a same-sex relationship. For more information and the opinion, see the Civil Rights page of this website.

Federal Judge Issues Injunction Against Indiana Governor's Ban on Support for Syrian Refugees
March 6, 2016. Citing a clear case of discrimination on the basis of national origin, Judge Tanya Walton Pratt of the U.S. District Court for the Southern District of Indiana has issued a preliminary injunction against Governor Mark Pence's 2015 order to state agencies to withhold from aid agencies any refugee resettlement funds or programs for Syrian refugees. For more information and key documents, see the Refugees page of this website.

Supreme Court Hears Argument in Texas Abortion Case
March 2, 2016. The Supreme Court has heard oral argument tomorrow in No. 15-224, Whole Woman’s Health v. Hellerstedt, a case challenging a Texas statute and implementing rules that the petitioners contend will force the closure of most facilities in that state where women can obtain an abortion. "This case will determine whether Texas can force more than 75 percent of the State’s abortion clinics to 2 close by enforcing a pair of statutory requirements that serve no valid state interest. The Act’s provisions include an “admitting-privileges requirement.” . . . The admitting-privileges requirement provides that “[a] physician performing or inducing an abortion must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that is located not further than 30 miles from the location at which the abortion is performed or induced.” . . . The ASC requirement amends the existing framework for licensing abortion providers under Texas law to provide that, “the minimum standards for an abortion facility . . . must be equivalent to the minimum standards . . . for ambulatory surgical centers.” . . . ." Petitioner for Certiorari, at 1-2. The state responds that these are health and safety measures.
   The case has attracted a great deal of attention both because of the subject matter but also because of the fact that the Court now has eight members since the death of Justice Scalia. Dozens of groups and individuals have filed amicus curiae briefs in the case.
   The argument audio will be posted when that becomes available as well (which normally happens on the Friday following the argument).
    Access the Oral Argument Transcript.
    Access the Oral Argument Audio.
    Read the Petition for Certiorari.
    Read the Brief of the Petitioner, Whole Woman's Health, et al..
    Read the Brief of Respondent, John Hellerstedt, M.D., Commissioner of the Texas Department of State Health Services.
    Read the Amicus Curiae Brief of the United States Supporting Reversal.
    Read the Opinion of the Fifth Circuit below.
    Read the Texas Statute, House Bill 2, 83rd Leg., 2nd Called Sess. (Tex. 2013).
    Access the ABA Preview page for the many amicus curiae briefs in the case.

White House Issues Fact Sheets on New Initiatives to Address Gun Violence
January 5, 2016. The President has issued a presidential memorandum and Fact Sheets entitled "New Executive Actions to Reduce Gun Violence and Make Our Communities Safer" which describe the steps being taken by executive branch agencies, largely through rulemaking and enforcement, based on existing legislation, with only two items noted as coming directly from the president in the form of a presidential memorandum. That memorandum, first, directs "the Department of Defense, Department of Justice, and Department of Homeland Security to take two important steps to promote smart gun technologyconduct or sponsor research into gun safety technology that would reduce the frequency of accidental discharge or unauthorized use of firearms, and improve the tracing of lost or stolen guns. Within 90 days, these agencies must prepare a report outlining a research-and-development strategy designed to expedite the real-world deployment of such technology for use in practice.” Second, the memorandum “directs the departments to review the availability of smart gun technology on a regular basis, and to explore potential ways to further its use and development to more broadly improve gun safety. In connection with these efforts, the departments will consult with other agencies that acquire firearms and take appropriate steps to consider whether including such technology in specifications for acquisition of firearms would be consistent with operational needs.” The January 5 Fact Sheet is a newer version of a Fact Sheet published on January 4.
    Read the Presidential Memorandum.
    Read the January 5 Fact Sheet.
    Read January 4 Fact Sheet.

The House and Senate Have Approved the Budget and Tax Compromises
December 17, 2015. The appropriations and tax compromise has cleared the House and Senate with signature by the president expected by the president later today. The Consolidated Appropriations Act, 2016 and the Protecting Americans from Tax Hikes Act of 2015 make up the package.
Read the Consolidated Appropriations Act, 2016.
Read the rotecting Americans from Tax Hikes Act of 2015..

FAA Issues New Rules on Drones
December 14, 2015. The Federal Aviation Adminimstration has announced new rules for the registration of drones as the leading edge of efforts to regulate the thousands of drones and their operators, from children to fully trained commercial pilots, to ensure air safety and a variety of other concerns. The new rule requires an online registration for drones from "0.55 pounds (250 grams) and less than 55 pounds (approx. 25 kilograms) including payloads such as on-board cameras." Press Release. In an effort to encourage prompt compliance, the FAA is offering free registration for the first 30 days.
Read the FAA press release.
Read the rule as submitted to the Federal Register for publication.

Supreme Court Hears Oral Argument in a Another Review of the University of Texas Diversity Admissions Program
December 11, 2015. The Supreme Court heard argument this week in No. 14-981, Fisher v. University of Texas at Austin, a next round following the Court's 2013 on the university's diversity admissions program and a lower court renewed ruling in favor of the university. The Fifth Circuit concluded that even under the more stringent standard announced in the Supreme Court's 2013 ruling, the University of Texas at Austin's admissions program is valid. For key documents and oral argument audio, see the Civil Rights page of this website.

Defense Secretary Announces that All Roles in Military are Open to Women
December 4, 2015. Defense Secretary Ash Carter has issued a memorandum to the secretaries of the military departments opening all military positions to women. The implementation process will be conducted under Deputy Defense Secretary Bob Work and Vice Chairman of the Joint Chiefs of Staff Air Force Gen. Paul Selva. For more information and the implementation guidelines, see the Civil Rights page of this website.

ACLU Sues to Counter Indiana Governor's Refusal to Accept Syrian Refugees
November 23, 2015. The ACLU of Indiana has filed suit against Indiana Governor Mark Pence, asserting that his order to Indiana state agencies to suspend any refugee resettlement of Syrian refugees in the state violated Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment and is preempted by federal immigration statutes. The case, Exodus Refugee Immigration, Inc. v. Mike Pence, Case 1:15-cv- 1:15-cv-01858-TWP-DKL, was filed in the U.S. District Court for the Southern District of Indiana. For more details and documents, see the Refugees page of this website.

U.S. Files for Supreme Court Review of Immigration Policy Case
November 22, 2015. The U.S. Justice Department has filed a petition for certiorari in the U.S. Supreme Court, seeking review of a ruling by a Fifth Circuit panel that, in turn, upheld a district court preliminary injunction against implementation of the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The issues presented by the Justice Department are administrative law questions under the Administrative Procedure Act (APA). The three questions are: "Whether a State that voluntarily provides a sub-sidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) , 5 U.S.C. 500 et seq., to challenge the Guidance because it will lead to more aliens having deferred action. 2. Whether the Guidance is arbitrary and capricious or otherwise not in accordance with law. 3. Whether the Guidance was subject to the APA’s notice-and-comment procedures." United States v. Texas, Petitioner for Certiorari, at I.
    The district court issued the injunction last February. The Fifth Circuit, which issued its ruling earlier this month, found that:"the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction." Texas v. United States, No. 5-40238, Slip op. at 2.
   See the posting for November 10 below for more documents.
    Read the Petition for Certiorari.
    Read the Fifth Circuit opinion in Texas v. United States upholding the Preliminary Injunction.
    Read the District Court's February 16 Memorandum Opinion and Order.

FDA Asserts GE Salmon Do Not Impact Endangered Salmon Species
November 20, 2015. Although the two citizen petitions that the Food and Drug Administration rejected at the time it approved of the genetically engineered Salmon did not assert any violations of the Endangered Species Act, the FDA did address the ESA in its Environmental Assessment, concluding that there is no danger to endangered Salmon species from the GE salmon. There have been questions raised, however, because a 2003 NOAA Fisheries biological opinion did raise questions about GE fish in net pens in Maine on Atlantic salmon. It concluded, among other things that, "The prohibition on the use of transgenic salmonids at existing marine sites off the coast of Maine (Special Condition No. 2) will eliminate the potentially adverse disease andecological risks posed by the use of transgenic salmonids in aquaculture." National Marine Fisheries Service, National Oceanic and Atmospheric Administration, "Endangered Species Act Section 7 Consultation Biological Opinion: Proposed modification of existing ACOE permits authorizing the installation and maintenance of aquaculture fish pens within the State of Maine," November 19, 2003, at 75. The FDA Environmental Assessment and the NOAA Biological Opinion are provided below.
Read the FDA EnvironmentalAssessment.
Read the NOAA Fisheries 2003 Biological Opinion.

Food and Drug Administration Approves Genetically modified Salmon
November 19, 2015. The Food and Drug Administration announced today "the first approval for a genetically engineered animal intended for food, AquAdvantage Salmon." In doing so, the FDA did not require labeling that indicates its GE origin, but did issue two guidance documents "for manufacturers who wish to voluntarily label their products as containing ingredients from GE or non-GE sources: a draft guidance on labeling foods derived from Atlantic salmon, and a final guidance on foods derived from GE plants." FDA Press Release.
    In announcing its approval, FDA also issued a Finding of No Significant Impact (FONSI) which means that the agency determined that there would be no significant impact on the environment and therefore no full environmental impact statement required under the National Environmental Policy Act (NEPA). The agency also published its "Analysis of Potential Impacts on the Environments of the Global Commons and of Foreign Nations not Participating in the Action" in which it "determined that there would be no significant impacts. Therefore, Executive Order 12114 does not apply to this action." The reference is to Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions,” 44 Fed.Reg. 1957 (January 9, 1979).
   Finally, in issuing its approval of the salmon, the FDA rejected petitions from Earth Justice and Food and Water Watch opposing approval of the GE salmon. The Earth Justice petition “requests that the Commissioner of Food and Drugs ("the Commissioner") refrain from taking final action on AquaBounty Technologies' ("ABT's") pending application for the Frst-ever approval of a genetically engineered ("GE") animal intended for human consumption until FDA has completed a comprehensive environmental impact statement ("EIS") on that application. This EIS must reach far beyond the scope ofthe narrow environmental assessment ("EA") submitted by ABT in August 2010 and evaluate the full range ofthreats that stand to confront wild fish populations if ABT's GE AquA..dvantage Salmon are released into the natural marine environment. Petitioners also request that FDA amend its existing regulatory framework to create specific provisions that (1) account for the unique environmental risks inherent in the production and distribution ofGE food animals, and (2) provide for increased transparency and public involvement as required by the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. “ Earth Justice Petitioner, at 2. The Food and Water Watch petition asked the FDA to: “Review ABT’s New Animal Drug Application (“NADA”) for AquAdvantage salmon under the Act’s food additive provisions and deem the AquAdvantage salmon a food additive. . . ; Review the AquAdvantage salmon’s components, including its gene expression product (the “GEP”) of the recombinant DNA (“rDNA”) construct, and deem them food additives under the Food, Drug and Cosmetic Act, § 201(s) (21 U.S.C. § 321); Render the GEP of the AquAdvantage salmon an added substance under the Act’s adulteration provisions; and Make a finding that neither the AquAdvantage salmon, nor the GEP used to create it, is generally recognized as safe (“GRAS”) for human consumption.” Food and Water Watch petition, at 1-2.
    Read the FDA press release.
    Read AquAdvantage Salmon Approval Letter and Appendix.
    Read AquAdvantage Salmon Environmental Assessment.
    Read AquAdvantage Salmon FONSI (Finding of No Significant Impact) which eliminates the need for a full environmental impact statement.
    Read the FDA AquAdvantage Salmon - FDA Analysis of Potential Impacts on the Environments of the Global Commons and of Foreign Nations not Participating in the Action for NADA # 141-454.
    Read the FDA Draft Guidance for Industry: Voluntary Labeling Indicating Whether Food Has or Has Not Been Derived From Genetically Engineered Atlantic Salmon.
    Read FDA Guidance for Industry: Voluntary Labeling Indicating Whether Foods Have or Have Not Been Derived from Genetically Engineered Plants.
    Access the FDA webpage for "AquAdvantage Salmon."
    Access Earth Justice Petition Regarding Pending Application of AquaBounty Technologies for Approval of Genetically-Engineered Salmon
    Read the FDA Denial of the Earth Justice Petition
    Access Food and Water Watch Petition that the FDA deem AquaBounty Technologies' genetically engineered AquAdvantage Salmon an unsafe food additive
    Access the FDA Denial of the Food and Water Watch Petition.

Fifth Circuit Upholds District Court Ruling Against Obama Administration DAPA Program for Immigrant Families
November 10, 2015. A panel of the U.S. Court of Appeals for the Fifth Circuit has issued an opinion upholding the district court preliminary injunction against implementation of the Obama administration's Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The district court issued the preliminary injunction in February and refused a federal government request for a stay pending appeal and charged the Justice Department with misconduct and providing the court with misleading information. The Fifth Circuit found that:"Reviewing the district court’s order for abuse of discretion, we affirm the preliminary injunction because the states have standing; they have established a substantial likelihood of success on the merits of their procedural and substantive APA claims; and they have satisfied the other elements required for an injunction." Texas v. United States, No. 5-40238, Slip op. at 2.
    Read the Fifth Circuit opinion in Texas v. United States upholding the Preliminary Injunction.
    Read the Fifth Circuit opinion on Intervention by "three Jane Does."
    Read the April 7 Memorandum Opinion.
    Read the February 16 Memorandum Opinion and Order.

White House Releases Text of the Trans-Pacific Partnership
November 5, 2015. The White House has now released the text of the Trans-Pacific Partnership (TPP). The agreement includes the United States, Canada, Australia, Mexico, Malasia, Singapore, Chile, Peru, New Zealand, Vietnam, and Brunei. Congress extended so-called fast track trade promotion authority in June in Title I. of Public Law 114-26 entitled the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015." It requires that the president provide notice of executive agreements like this to the Congress followed by required action by the Congress within 90 days. The White House released a "Fact-Sheet" on the TPP in October. [NOTE: The short title of P.L. 114-26 is "Defending Public Safety Employees’ Retirement Act." The trade bill used this legislation as a vehicle to move the trade promotion authority. The trade priorities act is Title I of that legislation.]
   Access the Text of the TPP.
   Read the Fact Sheet Released by the White House on October 5.
   Read the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015."
   Access the U.S. Office of the Trade Representative Website on the TPP.

Former State and Federal Prosecutors Urge Supreme Court to End Discrimination in Jury Selection
November 2, 2015. Eight former state and federal prosecutors have filed an amicus curiae brief in Foster v. Chapman, No. 14-8349, a case now before the U.S. Supreme Court testing whether the Georgia Supreme Court's refusal to review and the county court's application of the Supreme Court's Batson v. Kentucky, 476 U.S. 79 (1986), ruling setting out the standard for determining whether a prosecutor has discriminated on the basis of race in the use of juror challenges, should be reversed. For more information and the briefs, see the Civil Rights page of this website.

White House Announces Agreement on the Trans-Pacific Partnership
October 6, 2015. The White House has announced that negotiators have reached an agreement on the long debated Tran-Pacific Partnership (TPP), an agreement that includes the United States, Canada, Australia, Mexico, Malasia, Singapore, Chile, Peru, New Zealand, Vietnam, and Brunei. Congress extended so-called fast track trade promotion authority in June in Title I. of Public Law 114-26 entitled the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015." It requires that the president provide notice of executive agreements like this to the Congress followed by required action by the Congress within 90 days. The TPP has not yet been formally conveyed to Congress and is not required to be made public for 30 days after that. However, the White House released a "Fact-Sheet" on the TPP on October 5. [NOTE: The short title of P.L. 114-26 is "Defending Public Safety Employees’ Retirement Act." The trade bill used this legislation as a vehicle to move the trade promotion authority. The trade priorities act is Title I of that legislation.]
   Read the Fact Sheet Released by the White House on October 5.
   Read the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015."
   Access the U.S. Office of the Trade Representative Website on the TPP.

European Court of Justice Invalidates "Safe Harbor" Decision on Data Transfers
October 6, 2015. The European Court of Justice has announced its ruling in Schrems v. Data Protection Commissioner, Case C-362/14, overturning the European Commission's decision concerning the so-called Safe Harbor agreement allowing transfer of personal data across international lines. The focus of the case was particularly on the lack of protections under U.S. law to ensure protection of data at the level required by the EU.
   Read European Court of Justice Press Release on the decision.
   Read the judgment.
   Read the opinion.
   Read the application document.

The Supreme Court Begins Work on Its October Term 2015
October 5, 2015. The U.S. Supreme Court begins its October 2015 term today. As usual, the Court issued a lengthy order list on the first day of its new term which will be next Monday. This follows a list of cases granted certiorari or in which probable jurisdiction has been noted and therefore on the docket for this term as of October 1. The current granted and noted list and other information on the docket as well as the briefs and oral arguments follow.
Start of October term Order List and Cases Granted and Noted List.
   Order List for October 5.
   October Term 2015 Granted and Noted List as of October 1, 2015.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ" or SCOTUS Blog.
   Access "OYEZ"
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access SCOTUS Blog

Federal District Court Allows Congressional Suit Against Administration of ACA to Move Forward
September 9, 2015. U.S. District Judge Rosemary M. Collyer issued her ruling in U.S. House of Representatives v. Burwell today, finding that House members had standing to challenge the administration's use of funds under the Affordable Care Act. As the judge explained, "The House sues, as an institutional plaintiff, to preserve its power of the purse and to maintain constitutional equilibrium between the Executive and the Legislature. If its non-appropriation claims have merit, which the Secretaries deny, the House has been injured in a concrete and particular way that is traceable to the Secretaries and remediable in court. The Court concludes that the House has standing to pursue those constitutional claims." Slip op. at 2. The Congress alleged that the administration improperly used money to fund the cost-sharing offsets under the act from other funds supporting a different part of the legislation rather than obtaining the temporary appropriations required to fund the offsets.
   For more information on the case, see the posting for July 1 on this webpage.
   Read the Opinion.
   Read the Brief Filed by House Members.
   Read the Government's Reply Brief.

California Reaches Settlement on Solitary Confinement
September 1, 2015. The Center for Constitutional Rights which is representing California prisons in the case of Ashker v. Governor of California has announced a settlement with the state regarding the state's policies and practices on solitary confinement.
Read the Settlement Agreement.
Read a Summary of the Settlement.

Contempt Motions Filed In District Court Following Refusal by Rowan County Clerk to Obey Injunction on Marriage Licenses for Same-Sex Couples.
September 1, 2015. Contempt motions have been filed by same-sex couples refused marriage licenses by Rowan County, Kentucky Clerk Kim Davis today after she refused to comply with the preliminary injunction issued by U.S. District Court Judge Bunning and after the Sixth Circuit and the U.S. Supreme Court refused to stay that injunction pending appeal. A show cause hearing has reportedly been set for Thursday, September 3. See the Civil Rights page of this website for more.

Supreme Court Refuses to Stay Order to Kentucky County Clerk to Issue Marriage Licenses
September 1, 2015. The U.S. Supreme Court refused to stay the injunction issued by the federal district court to Rowan County, Kentucky Clerk Kim Davis to issue marriage licenses to same-sex couples in compliance with the previous Supreme Court ruling. For more information, see the Civil Rights page of this website.

D.C. Circuit Overturns District Court Injunction Against NSA Metadata Collection
August 29, 2015. In a quite unusual presentation, a panel of the Circuit Court of Appeals for the D.C. Circuit has reversed and remanded the district court preliminary injunection against the NSA bulk collection of telephone metadata. The panel announced its ruling in a per curiam opinion that relies of the reasoning provided by each of two of the three judges. "The court reverses the judgment of the district court, and for the reasons st ated in the opinions of Judge Brown and Judge Williams orders the case remanded to the district court. (Judge Sentelle dissents from the order of remand and would order the case dismissed.) The opinions of the judges appear below after a brief explanation of why the case is not moot." Obama v. Klayman, No. 14-5004, Slip op. at 4.
The reason for the discussion about whether the case was moot came because Congress did not reauthorize section 215 authority under the Patriot Act before the required deadline. However, the court explains why that did not mean an immediate end to the program. "One day after the deadline, however, Congress enacted the USA Freedom Act, which revived the language added by Section 215 with some substantial changes. See Pub. L. No. 114-23, Tit. I, 129 Stat. 268, 269-77 (2015), codified at 50 U.S.C. § 1861. The Act’s changes do not take effect until 180 days after the date of enactment (June 2, 2015). Id. § 109(a) , 129 Stat. at 276. And the legislation provides for continuation of pre-existing authority until the effective date of the new legislation. . . ." Id., at 4. Therefore, the authority is still in place until that 180 days runs out at the end of this year.
Read the opinion.

Arizona Governor Terminates Prison Contract Following Kingman Riots
August 28, 2015. Arizona Governor Soug Ducey held a news conference this week to announce that he had ordered the contract with Utah-based Management & Training Corp., for prison operations following the issuance of an Arizona Department of Corrections (ADC) report on the Kingman riots that took place in July. For full details and relevant documents, see the Public Contract Management page of this website.

Sixth Circuit Refuses to Stay District Judge's Order to Issue Marriage Licenses
August 27, 2015. A panel of the U.S. Court of Appeals for the Sixth Circuit has refused to stay the preliminary injunection issued by Judge David.Bunning requiring Rowan County, Kentucky Clerk Kim Davis to issue marriage licenses to same-sex couples in compliance with the Supreme Court's ruling in Obergefell v. Hodges. For more information and the court's order, see the Civil Rights page of this website.

Compton California Students Sue District for Failure to Address the Consequences of Trauma in Their Educational Policies and Practices.
August 20, 2015. "Public Counsel," a Calfornia-based pro-bono lawfirm, has filed a class action suit in the U.S. District Court for the Central District of California on behalf of students in Compton, California alleging that the school district's programs and policies have not addressed the fact that so many students have experienced trauma in the community. For more details and the complaint in the case, see the Healthcare, Disability, and Development page of this website.

District Judge Orders County Clerk to Issue Marriage Licenses
August 13, 2015. Federal District Judge Advid L. Bunning has issued a preliminary injunction along with his memorandum and order requiring Rowan County, Kentucky Clerk Kim Davis to end her refusal to issue marriage licenses and to issue a license to the same-sex couple who launched the suit. For more information, the opinion, and other documents, see the Civil Rights page of this website.

White House Issues New Climate Plan
August 3, 2015. President Obama today releases the new White House "Clean Power Plan" aimed at making a sinificant impact on U.S. policy on global climate change. In releasing the plan, the administration says: " The Clean Power Plan establishes the first-ever national standards to limit carbon pollution from power plants. We already set limits that protect public health by reducing soot and other toxic emissions, but until now, existing power plants, the largest source of carbon emissions in the United States, could release as much carbon pollution as they wanted. The final Clean Power Plan sets flexible and achievable standards to reduce carbon dioxide emissions by 32 percent from 2005 levels by 2030. . . ." Fact Sheet. The White House also indicated that this plan is intended to build on the administration's Climate Action Plan released in June.
   U.S. EPA has created a webpage on the new policy and its implementation. Since the plan relies heavily on the creation of state plans, the EPA has provided what it terms a "Clean Power Plan Toolbox for States."
   The new announcement comes just over a month after EPA suffered a defeat in a 5-4 ruling by the U.S. Supreme Court with respect to the last round of rules on the subject. That case was brought by some 23 states.
   Read the "Fact Sheet" Released by the White House.
   Access the Environmental Protection Agency on the Plan.
   Access the EPA Clean Power Plan Toolbox for the States.
   Read Obama Administration Climate Action Plan of June 2015.
   Read the Supreme Court's opinion in Michigan v. EPA.

House Republicans Seek to Use Recent Supreme Court Ruling to Help Their ACA Challenge to Obama Administration
July 1, 2015. Jonathan Turley, representing House Republicans in their challenge to Obama Administration implementation decisions on the Affordable Care Act, has filed a new argument asserting that the Supreme Court's recent ruling in the Arizona redistricting case (see post for June 29 below) supports the claim that the congressional plaintiffs have standing to maintain their suit.
   Read the Notice of New Authority filed June 30.
   Read the DOJ Memorandum in Support of the Motion to Dismiss filed in January 2015.
   Read the complaint filed in November 2014.
   Read the IRS Regulations issued February 12, 2014 that are the focus of part of the case concerning delayed application of ACA requirements and coverage.

Supreme Court Rejects Challenge to Arizona's Nonpartisan Redistricting Process
June 29, 2015. In another 5-4 opinion this term, the Supreme Court has upheld Arizona's voter-created redistricting commission. Justice Ginsburg explained, for the Court, that in 2000, Arizona voters adopted Proposition 106 as an amendment to the Arizona’s Constitution. It created an independent commission known as the Arizona Independent Redistricting Commission and removed the traditional authority of the legislature to make those decisions in an effort to eliminate partisan gerrymandering and to attract more candidates to run for public office. Arizona State Legislature v. Arizona Independent Redistricting Commission, Slip op., at 2. The Court rejected the claim by the state legislature that the amendment violated the Elections Clause of the U.S. Constitution, Art. I, §4, cl. 1, which provides that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations . . . .” The Court concluded: "We hold, first, that the Arizona Legislature, having lost authority to draw congressional districts, has standing to contest the constitutionality of Proposition 106. Next, we hold that lawmaking power in Arizona includes the initiative process, and that both §2a(c) and the Elections Clause permit use of the AIRC in congressional districting in the same way the Commission is used in districting for Arizona’s own Legislature." Id., at 2. The federal statute to which this holding applies concerns elections and districting and, as the Court presented it, "Until a State is redistricted in the manner provided by the law thereof after any apportionment, the Representatives to which such State is entitled under such apportionment shall be elected in the following manner: [setting out five federally prescribed redistricting procedures].” Id.
Chief Justice Roberts and Justices Scalia, Thomas, and Alito dissented.
Read the opinion.

Supreme Court Rejects EPA Power Plant Emissions Rules
June 29, 2015. Justice Scalia wrote the opinion for the Supreme Court rejecting the Environmental Protection Agency's rules governing mercury and other emissions from power plants, finding that the EPA was unreasonable in failing to adequately account for costs imposed by the rules. Four members of the Court dissented in an opinion by Justice Kagan.
Read the opinion.

Supreme Court Strikes Ban on Same-Sex Marriage
June 26, 2015. The Supreme Court today has reversed the Sixth Circuit in Obergefell v. Hodges in an opinion written by Justice Kennedy, finding state bans on same-sex marriage in violation of the Due Process and Equal Protection clauses of the Fourteenth Amendment to the Constitution. Unlike his previous opinions that were criticized for not stating specifically whether there is a right to marry for same-sex couples or which rights protect persons from differential treatment on grounds of sexual orientation, Kennedy asserted directly that these two provisions of the Constitution protect the rights of these petitioners. Kennedy begins: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allows persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Slip op. at 1-2.
   His analysis of the basis for the protection of same-sex marriage asserts that four principles provide the foundation. “A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. (Id. at 12) . . . . A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut. . . . (Id. at 13) A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. . . . (Id. at 15 Fourth and finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of our social order.” Id. at 16. He hastened to add that the right is not limited to those who have children and that childbearing is only one aspect of the right to marriage. Id. at 15-16. For each of the cases, he presents the pattern of case law supporting each element, again addressing previous concerns about the specificity of his arguements in this field.
   Having established the right, he explains that governments that deny that right can also be in violation of the equal protection clause. “There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.” Id. at 17.
   Kennedy emphasizes the dual protection of the Fourteenth Amendment. “The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. . . . This interrelation of the two principles furthers our understanding of what freedom is and must become.” Id. at 18-19. He concludes: “It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. . . . These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry.” Id. at. 22.
   In response to the core argument by the states that it is up to the states to decide through their legislative process or by voter approved measures and that more time is needed to resolve the social dynamics associated with such an important change, Kennedy asserts that precisely the same argument was made in Brown v. Board of Education. He also adds that the debate has been in progress for decades and added an appendix to his opinion listing lower court opinions, state court actions, and legislative actions in the states. At the end of the day, however, he reaches back to the Justice Jackson’s powerful assertion in the Barnette case and states that fundamental constitutional rights are not dependent upon current political debates. “The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 638 (1943). This is why ‘fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.’” Id. at 24.
   The second issue in these cases concerned the assertion that states are required to acknowledge the validity of marriages lawfully conducted in other states. The Court concluded: “The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold—and it now does hold—that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” Id. at 28.
   Justice Kennedy finished his opinion with the following statement. “As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Id. at 28.
   The four dissenters each authored an opinion as well as joining other dissents by their colleagues. Three of them, starting with the dissent of Chief Justice Roberts contend that the matter should be left to the states and to the legislative process. Justice Thomas, joined by Justice Scalia, argues that the liberty protected by the Fourteenth Amendment does not confer the kind of positive right asserted in the majority opinion.
   Read opinion.

Supreme Court Allows Tax Subsidies for Purchases on Federal Exchanges under the Affordable Care Act
June 25, 2015. In a 6-3 opinion by Chief Justice Roberts, the Court today in King v. Burwell accepted the administration's interpretation of the Affordable Care Act that allows tax subsidies for insurance purchased on federal as well as state established exchanges. The battled flowed from language in the statute that referred to exchanges “established by the state.”
   The Chief Justice wrote: “If the statutory language is plain, we must enforce it according to its terms. . . . But oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”. . . So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.” Our duty, after all, is “to construe statutes, not isolated provisions.” Slip op. at 8-9. The Court then examined key elements of the statute and found that: “These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context. Id. at 11. He continued: “The upshot of all this is that the phrase “an Exchange established by the State under [42 U. S. C. §18031]” is properly viewed as ambiguous. The phrase may be limited in its reach to State Exchanges. But it is also possible that the phrase refers to all Exchanges—both State and Federal—at least for purposes of the tax credits.” Id. at 12-13.
   However, the Chief Justice chastised the Congress and the President for the way the legislation was put together, leading to a host of problems in the final product. “The Affordable Care Act contains more than a few examples of inartful drafting. . . . Several features of the Act’s passage contributed to that unfortunate reality. Congress wrote key parts of the Act behind closed doors, rather than through “the traditional legislative process.”. . . And Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster requirement. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation. Anyway, we “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”. . . After reading Section 36B along with other related provisions in the Act, we cannot conclude that the phrase “an Exchange established by the State under” is unambiguous. Id. at14-15. The Court also considered the effects of a ruling against a literal interpretation. “The combination of no tax credits and an ineffective coverage requirement could well push a State’s individual insurance market into a death spiral.” Id. at 17.
   In the end, he wrote: “Reliance on context and structure in statutory interpretation is a “subtle business, calling for great wariness lest what professes to be mere rendering becomes creation and attempted interpretation of legislation becomes legislation itself.”. . . For the reasons we have given, however, such reliance is appropriate in this case, and leads us to conclude that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid. Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt.” Id. at 21.
   Justice Scalia wrote for the dissenters joined by Justices Thomas and Alito, charging that the majority’s interpretation of the ACA statute was “quite absurd, and the Court’s 21 pages of explanation make it no less so.” Slip op. at 1. He went to declare that “Words no longer have meaning. . . .” if the plain language in the statute that addresses exchanges established by the state is read as the majority reads it. Id. at 2.
   Read the opinion.

Pope Francis Issues Encyclical on Global Warming and Calls for Action
June 18, 2015. Pope Francis has issued an encyclical letter entitled "On Care for Our Common Home" (Laudato Si') addressing the challenge of global warming. For more information and the document, see the Sustainable Development page of this website.

U.S. Court of Federal Claims Rules AIG Takeover Illegal But Refuses Claims for Damages
June 16, 2015. Judge Thomas C. Wheeler of the U.S. Court of Federal Claims has ruled that the federal government lacked the authority to take over AIG as part of the financial bailout in 2008, but concluded that stockholders suffered no damages because the company would have bankrupt had the government not acted. He wrote: "“The inescapable conclusion is that AIG would have filed for bankruptcy, most likely during the week of September 15-19, 2008. In that event, the value of the shareholders common stock would have been zero. By loaning AIG $85 billion under the September 22, 2008 Credit Agreement, the Government significantly enhanced the value of the AIG shareholders’ stock. While the taking of 79.9 percent equity ownership and the running of AIG’s business were not permitted under the Federal Reserve Act, the Government did not cause any economic loss to AIG’s shareholders, because as Mr. Studzinski said, “[twenty] percent of something [is] better than [100] percent of nothing.” Studzinski, Tr. 6937. Under the economic loss analysis, the Credit Agreement Class is entitled to zero damages.” Starr International v. United States, Slip op., at 66.
The plaintiffs had argued both that the federal government did not have authority to take over the company. It also argued that the federal action was a taking of property without just compensation. However, the court ruled, if the federal government did have authority to take the action in the first place, then it could not have taken property without just compensation. “The Government’s unduly harsh treatment of AIG in comparison to other institutions seemingly was misguided and had no legitimate purpose, even considering concerns about “moral hazard.” The question is not whether this treatment was inequitable or unfair, but whether the Government’s actions created a legal right of recovery for AIG’s shareholders. Having considered the entire record, the Court finds in Starr’s favor on the illegal exaction claim. With the approval of the Board of Governors, the Federal Reserve Bank of New York had the authority to serve as a lender of last resort under Section 13(3) of the Federal Reserve Act in a time of “unusual and exigent circumstances,” . . . and to establish an interest rate “fixed with a view of accommodating commerce and business,”. . . However, Section 13(3) did not authorize the Federal Reserve Bank to acquire a borrower’s equity as consideration for the loan. A ruling in Starr’s favor on the illegal exaction claim, finding that the Government’s takeover of AIG was unauthorized, means that Starr’s Fifth Amendment taking claim necessarily must fail. If the Government’s actions were not authorized, there can be no Fifth Amendment taking claim.” Id., at 6-7.
Read the opinion.

Supreme Court Issues Ruling Providing Broad Presidential Authority in Foreign Affairs and Striking Legislation
June 8, 2015. A divided Supreme Court in an opinion presented by Justice Kennedy announced today that: "The power to recognize or decline to recognize a foreign state and its territorial bounds resides in the President alone." Sivotovsky v. Kerry, No. 13–628, Slip Op. at 25. The Court framed the issues at follows. "First, it must determine whether the President has the exclusive power to grant formal recognition to a foreign sovereign. Second, if he has that power, the Court must determine whether Congress can command the President and his Secretary of State to issue a formal statement that contradicts the earlier recognition. The statement in question here is a congressional mandate that allows a United States citizen born in Jerusalem to direct the President and Secretary of State, when issuing his passport, to state that his place of birth is 'Israel.'"
    Specifically, the concern was the language of a statute that mandated the content of passports for some specific individual situaitons. The Court explained "Section 214(d) requires that, in a passport or consular report of birth abroad, “the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel” for a “United States citizen born in the city of Jerusalem.” 116 Stat. 1366. That is, §214(d) requires the President, through the Secretary, to identify citizens born in Jerusalem who so request as being born in Israel. But according to the President, those citizens were not born in Israel. As a matter of United States policy, neither Israel nor any other country is acknowledged as having sovereignty over Jerusalem." Id., at 26. The Court concluded that: "The problem with §214(d), however, lies in how Congress exercised its authority over passports. It was an improper act for Congress to “aggrandiz[e] its power at the expense of another branch” by requiring the President to contradict an earlier recognition determination in an official document issued by the Executive Branch. Freytag v. Commissioner, 501 U. S. 868, 878 (1991). To allow Congress to control the President’s communication in the context of a formal recognition determination is to allow Congress to exercise that exclusive power itself. As a result, the statute is unconstitutional." Id., at 29.
   Chief Justice Roberts joined a dissent issued by Justice Scalia, but he also added his own dissent which announced that the Court's ruling was both dramatically different from the way the Court has assessed presidential actions in the past. "Today’s decision is a first: Never before has this Court accepted a President’s direct defiance of an Act of Congress in the field of foreign affairs. We have instead stressed that the President’s power reaches “its lowest ebb” when he contravenes the express will of Congress, Chief Justice Roberts, dissenting, at p. 1. Justice Scalia went even further. "In the end, the Court’s decision does not rest on text or history or precedent. It instead comes down to “functional considerations”—principally the Court’s perception that the Nation “must speak with one voice” about the status of Jerusalem. Ante, at 11 (ellipsis and internal quotation marks omitted). The vices of this mode of analysis go beyond mere lack of footing in the Constitution. Functionalism of the sort the Court practices today will systematically favor the unitary President over the plural Congress gress in disputes involving foreign affairs. It is possible that this approach will make for more effective foreign policy, perhaps as effective as that of a monarchy. It is certain that, in the long run, it will erode the structure of separated powers that the People established for the protection of their liberty." Scalia, J., dissenting, at 14-15."
   Read the opinions.

House USA Freedom Act of 2015 Passes Senate
June 2, 2015. After having failed to act to address issues related to the USA Patriot Act before the Sunday deadline, the U.S. Senate adopted a house passed H.R. 2048 USA Freedom Act, intended to trim back executive branch authority with respect to certain intelligence gathering activities that implicate domestic U.S. communications. President Obama has signed the H.R. 2048 into law.
Read H.R. 2048.
White House Press Statement Supporting Passage of the Bill.

WTO Rules U.S. Country of Origin Labeling Requirements for Meat a Violation of GATT
May 19, 2015. In a case brought by Canada, the Appellate Body of the World Trade Organization has ruled that the U.S. legislation and administrative rules requiring that meat offered for sale in the United States have a label that shows the country of origin is "inconsistent with the GATT 1994 and the TBT [Technical Barriers to Trade] Agreement." "United States -- Certain Country of Origin Labelling (COOL) Requirements Recourse to Article 21.5 of the DSU by Canada and Mexico," AB-2014-10, Reports of the Appellate Body. Other countries that joined Canada in the complaint against the U.S. include Argentina, Australia, Brazil, China, Colombia, European Union, Guatemala, India, Japan, Korea, Mexico, New Zealand, Peru, and Chinese Taipei. Canada and Mexico have indicated that they are now considering retaliatory trade measures against U.S. products.
    This dispute reaches back to the Agricultural Marketing Act of 1946 as amended by the Farm Bill Farm Security and Rural Investment Act of 2002 and the Food, Conservation, and Energy Act of 2008. The Agricultural Marketing Service issued an Interim Final Rule to implement the requirements in July 2008, with Final Rules published in 2009 and again in 2013. In late 2008, Canada began the process that led to the case brought by in the WTO, complaining that the U.S. country of origin labeling requirement violated bother the General Agreement on Tariffs and Trade and the agreement on Technical Barriers to trade. All of the relevant documents are provided below.
   Access the opinion.
   Access the WTO Secretariat Summary of the Ruling.
   Access the One Page Summary of Key Findings.
   Access the Farm Bill Farm Security and Rural Investment Act of 2002.
   Access the Food, Conservation, and Energy Act of 2008.
   Access the Agricultural Marketing Service (AMS) Interim Final Rule of July 28, 2008.
   Access the Final Rule on Mandatory Country of Origin Labeling Final Rule of January 2009.
   Access the Access the Final Rule on Mandatory Country of Origin Labeling Final Rule of May 2013.
   Access the WTO Legal Texts, including the GATT and TBT.

Second Circuit Rules that the Patriot Act Section 215 Does Not Support NSA Bulk Metadata Program
May 8, 2015. A three judge panel of the U.S. Circuit Court of Appeals for the Second Circuit has ruled that the National Security Agency's "bulk telephone metadata program is not authorized by §215" of the USA Patriot Act, ACLU v. Clapper, Civil No. 14-42-cv, Slip op., at 2. The ruling reversed a district court ruling that the NSA action was not reviewable and in any case that the program was authorized by that section of the statute. The appellate opinion reversed and remanded that decision.
Access the opinion.

Supreme Court Hears Oral Argument Same-Sex Marriage Cases
April 21, 2015. The Supreme Court is rapidly releasing the audio of the oral argument. They have now posted the streaming audio from both parts of the argument. In addition to the audio, the transcripts are now available for both parts of the argument and are provided below.
   Access the audio of the Oral argument Part I.
   Access the Transcript for Part I.
   Access the audio of the Oral argument Part II.
   Access the Transcript for Part II.

Senate Committee Moves Fast Track Trade Promotion Authority
April 17, 2015. Senator Orrin Hatch (R-Utah), Chair of the Senate Finance Committee, Senator Ron Wyden (D-Ore.), Ranking Member of the Finance Committee and Paul Ryan (R-Wis.), Chair of the House Ways and Means Chairman have just introduced a bill entitled the "Bipartisan Congressional Trade Priorities and Accountability Act of 2015" which would restore fast trade trade promotion authority, long sought by the White House. In particular, the negotiations on this bill relate to the administration's efforts to conclude the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (T-TIP).
Read the bill.
Read Senate Finance Committee Press Release on the Hatch, Wyden and Ryan bill.

D.C. Circuit Hears Arguments in EPA Carbon Emissions Rulemaking
April 16, 2015. The United States Circuit Court of Appeals for the D.C. Circuit today hears oral arguments in State of West Virginia v. EPA and In re Murray Energy that seek to stop efforts by the Environmental Protection Agency to move forward with its rulemaking efforts announced as a proposed rule on June 18, 2014 by the Obama administration as a key effort to address global warming. The proposed rule, entitled "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating" was announced as part of EPA's Clean Power Plan on June 2, 2014. For more information and key documents, see the Sustainable Development page of this website.

Senate Foreign Relations Committee Creates Bipartisan Bill to Demand Participation in Iran Nuclear Agreement
April 16, 2015. The Senate Foreign Relations Committee voted unanimously in its markup session to support S. 615, the Iran Nuclear Agreement Review Act which would provide a process for congressional response to the Obama administration's proposed framework agreement with Iran. That framework agreement is, in turn, part of the larger process of negotiation with Iran. It provides for an expedited consideration of the framework agreement proposal. The final bill was an amendment in the nature of a substitute.
Read the bill as it was reported out of committee to the full Senate.
Read the bill as it went into markup. (Originally posted 4/14/15.)

Supreme Court to Hear Gay Marriage Cases on April 28
April 13, 2015. The Supreme Court is scheduled to hear two and half hours of oral argument in the four same-sex marriage cases from the Kentucky, Michigan, Ohio, and Tennessee on Tuesday, April 28. The cases are No. 14-556 Obergefell v. Hodges; 14-562 Tanco v. Haslam; 14-571 DeBoer v. Snyder; and 14-574 Bourke v. Beshear Full information on the cases, the argument, and the briefs is available on the Civil Rights page of this website.

Federal District Judge in Texas Takes Further Steps After Blocking Obama Administration Immigration Policy
April 8, 2015. Federal District Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas who issued an injunction to block implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) in February has refused a federal government request for a stay pending appeal and charged the Justice Department with misconduct and providing the court with misleading information. The case and is scheduled to be heard soon in the Fifth Circuit.
    Read the April 7 Memorandum Opinion.
    Read the April 7 Order.
    Read the February 16 Memorandum Opinion and Order.

U.S. District Judge in Washington Holds Compentency Examination Delays for Incarcerated Persons Violate Due Process
April 3, 2015. U.S Federal District Judge Marsha Pechman has issued an opinion and permanent injunction in A.B. by and through Trueblood v. Washington Department of Social and Health Services finding that waiting times for competency examinations criminal cases in excess of seven days violates due process of law. She issued a permanent injunction requiring that the examinations be provided within seven days and indicated that she would appoint a court monitor to follow the implementation of the requirements. For full details on the ruling and the opinion, see the Civil Rights page of this website.

Indiana Governor Signs State Law Seen as Allowing Religious Basis for Avoiding Same-Sex Marriage Aspects
March 27, 2015. Indiana Governor Mark Pence has signed into law SB 101, the Religious Freedom Restoration Act. The new legislation was immediately seen by the business community in Indiana and elsewhere as well as by civil rights groups as a vehicle for allowing individuals to avoid charges of discrimination for refusing to provide services to same-sex couples in response to the ruling of the U.S. Circuit Court of Appeals for the Seventh Circuit in 2014 striking down Indiana's ban on same-sex marriage and the refusal of the U.S. Supreme Court to review that ruling. Governor Pence denied that there was any intention to discriminate in this legislation. For more information and the key documents, see the Civil Rights page of this website.

Interior Department Issues Fracking Rule
March 20, 2015. The Bureau of Land Management of the U.S. Department of Interior has issued its final rule on hydraulic fracking on federal and tribal lands. The final rule is schedule for publication in the Federal Register next week, but is available as of today in .pdf form. For more information and the new rule, see the Sustainable Development page of this website.

Supreme Court Rejects DC Circuit Requirement for Notice and Comment for Some Interpretative Rules
March 9, 2015. The Supreme Court in Perez v. Mortgage Bankers Association issued today rejected a D.C. Circuit requirement that administrative agencies use the notice and comment procedures of the Administrative Procedure Act for interpretative rules that differ significantly from previous interpretations. Writing for the majority, Justice Sotomayor rejected the argument that,based on Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579 (D.C. Cir. 1997), agencies must use the APA process in settings where the interpretations they issue of existing rules move substantially away from their previous interpretations. The Court found that approach was not consistent with the APA. No justices dissented, but concurring opinions were filed by Justices Scalia, Thomas, and Alito.
Read the Opinion.

Supreme Court Hears Oral Argument Today in Another Affordable Care Act Case
March 4, 2015. The U.S. Supreme Court today hears oral argument in King v. Burwell, No. 14-114, another challenge to the Affordable Care Act that focuses on the tax credits available to those purchasing insurance through exchanges. This case comes from the Fourth Circuit, King v. Burwell,759 F.3d 358 (4th Cir. 2014), and was taken to the Supreme Court in part on the argument that there is a conflict between that ruling and a decision issued by a panel of the U.S. Circuit Court of Appeals for the D.C. Circuit, Halbig v. Burwell, 758 F.3d 390 (D.C. Cir. 2014). The issue goes to whether the tax credits are available under the Affordable Care Act to those purchasing insurance on the federal government exchanges as compared to the state exchanges. For futher information and key documents, see the Health Care, Disability, and Development page of this website.

DOJ Issues Findings in Ferguson, Missouri Investigation
March 4, 2015. The United States Justice Department Civil Rights Division has issued its reports into the shooting of Mr. Michael Brown by Officer Darren Wilson of the Ferguson, Missouri Police Department as well as the report of its investigation of the practices of the Ferguson Police Department and Municipal Courts. For full information and relevant reports, see the Civil Rights page of this website.

Alabama Supreme Court Orders County Officials to Stop Issuing Marriage Licenses to Same-Sex Couples
March 4, 2015. The Alabama Supreme Court decided in Ex parte State of Alabama ex rel. Alabama Policy Institute that it could decide for itself whether the state bans on same-sex marriage violated the U.S. Constitution, concluded that the state laws were valid, and ordered county officials to stop issuing marriage licenses to same-sex couples, notwithstanding the order of the U.S. District Court for the Southern District of Alabama which ruled that the Alabama bans were violated both the equal protection and due processes clauses of the Fourteenth Amendment and order county officials to issue those licenses. For more information and key documents, see the Civil Rights page of this website.

Farm to School Act of 2015 Introduced in House and Senate
Senators Patrick Leahy (D, VT) and Senator Thad Cochran (R, Miss.) and Representatives Marcia Fudge (D, OH) and Jeff Fortenberry (R, Neb.) have introduced the Farm to School Act of 2015 in their respective houses. The bill, designed to be part of the reauthorization of the Child Nutrition Act (CNA) will reauthorize and expand the Farm to School Programs adopted in the last version of the CNA. For more information and the bill itself, see the Health Care, Disability, and Development page of this website

Federal District Judge in Texas Blocks Obama Administration Immigration Policy Moves
February 17, 2015. Judge Andrew S. Hanen of the U.S. District Court for the Southern District of Texas has issued an injunction to block implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). He did not take any action against the previous Deferred Action for Childhood Arrivals (DACA) program. There were several grounds on which the state challenged the DAPA program, including constitutional challenges. However, the judge rested his decision to issue a temporary injunction on the ground that the program consituted a substantive or legislative rule which under the provisions of the Administrative Procedure Act must be made in accordance with required rulemaking procedures which had not be followed in the creation of the DAPA program.
   President Obama has issued a statement disagreeing with the judge's ruling and vowing to appeal that decision.
   Secretary of Homeland Security Jeh Johnson has indicated that the agency will further steps in light of the injunction, but will appeal the ruling..
    Read the Memorandum Opinion and Order.
    Read President Obama's Statement in Response to the Texas Ruling.
    Read Secretary Johnson's Statement.

President Request New Authorization for the Use of Force Against ISIS/ISL
January 8, 2015. President Obama has sent a letter to Congress formally requesting a new authorization for the Use of United States Armed Forces in connection with the Islamic State of Iraq and the Levant (ISL). Along with that letter, the President provided a draft resolution for consideration by the Congress. This comes the same week that the White House has issued the 2015 National Security Strategy document.
    Read the President's Letter to Congress Requesting for a new Authorization for the Use of Force.
    Read the Draft Resolution Offered by the President to Congress.
    Read the full 2015 National Security Strategy.
    Read the "Fact Sheet: The 2015 National Security Strategy."

Federal Judge Sets Hearing on Request for Injunction to Force Alabama Officials to Comply with Her Order on Same Sex Marriage
February 11, 2015. Attorneys for Same Sex couples who were denied marriage licenses in Mobile County, Alabama on Monday despite a federal court order from U.S. District Court Judge Callie V. S. Granade have requested an injunction and sanctions against officials who did not comply. Judge Granada has scheduled a hearing for Thursday February 12 on that request. For full information see the Civil Rights page of this website.

Alabama Supreme Court Chief Justice Issues Order to Block Gay Marriage Contradicting Federal Court Order
February 9, 2015. Chief Justice Roy S. Moore of the Alabama Supreme Court issued an Administrative Order to the State of Alabama Judicial System on Sunday meant to block the issuance today of marriage licenses to same sex couples, an order that directly conflicts with an order of the U.S. District Court for the District of Alabama to begin issuing such orders today. U.S. District Court Judge Callie V. S. Granade had issued her opinion and order in the Searcy v. Strange case striking down the state's ban on same sex marriage and ordering issuance or marriage licenses. She had delayed the order under today to allow time for the state to seek a stay on apeal. The U.S. Supreme Court has denied a stay pending appeal. For more information and the key documents, go to the Civil Rights page of this website.

One Year After the President's PPD-28 Signals Intelligence Directives -- Reports and Recommendations
February 4, 2015. A year ago, following his reactions to his own task force's recommendations, President Obama issued Presidential Policy Directive 28 which included a requirement for an Intelligence Community study under the Director of National Intelligence at the end of one year to determine next steps. A Privacy and Civil Liberties Oversight Board was also created as an independent body to observe, analyze, and comment on the work of the DNI and to inquire beyond that as needed. The DNI sought the assistance of the National Academy of Sciences to produce a one year report and then responded with the creation of a report put forward by means of a website as the 2015 Anniversary Report. The Board has reviewed the reports and DNI releases and has in turn issued its own Recommendations Assessment Report. All of those materials are provided below.
    Read the Privacy and Civil Liberties Oversight Board Recommendations Assessment Report.
    Read Read the Privacy and Civil Liberties Oversight Board Recommendations Assessment Report Fact Sheet.
    Read Director National Intelligence "Signals Intelligence Reform: 2015 Anniversay Report."
    Read Presidential Policy Directive PPD-28 Signals Intelligence.
    Read Director of National Intelligence Press Release on the National Academy Report.
    Download the National Academy of Sciences Report (Requires Login on free account).
    Read the National Academy of Sciences Report Online.
    Access the Privacy and Civil Liberties Oversight Board Website.

White House Announces FY2016 Budget Proposal
February 2, 2015. The White House has released the President's budget request for FY 2016. Along with the full budget request and the budget overview document, the White House has issued the "Cuts, Consolidations, and Savings for FY 2016" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   Also posted below are the budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency.
   Access the President's message to accompany the FY2016 Budget.
   Download the FY 2016 Budget proposal as a single .pdf document.
   Download the FY 2016 Budget Overview.
   Download the FY 2016 Budget Website with Individual Agency Budget proposals.
   Access the Cuts, Consolidations, and Savings for FY 2016
   Access the Web Site for the FY2016 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY 2016 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2016 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2016 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2016 Budget-in-Brief. Not Yet Available
   Access USASpending.gov

VA Reaches Settlement on Los Angeles VA Hospital Property Uses and Veterans Housing
January 29, 2015. The Veterans Administration has reached a settlement in a case involving the use of VA hospital grounds in Los Angeles and issues of homeless veterans. The VA announced that: "Secretary Robert A. McDonald and attorneys representing homeless veterans in Los Angeles announced an agreement that dedicates the West Los Angeles VA campus to serving veterans in need, and commits the department to design a plan to help end homelessness among veterans in Los Angeles County. Under the agreement, Secretary McDonald and plaintiffs’ representatives will develop by February 13, 2015 a written plan to help end veteran homeless in Greater Los Angeles. The plan will focus on serving veterans, particularly homeless veterans, women veterans, aging veterans and veterans that are severely disabled. Secretary McDonald will appoint a Special Assistant, who will report directly to him, to oversee the plan’s implementation with the necessary resources and support. 'This historic agreement, forged through the leadership of Secretary McDonald, creates a partnership that will be invaluable to help end veteran homelessness in Los Angeles, provide needed medical care and services, and make concrete our commitment to those who served our nation’s highest calling,' said Ron Olson, one of the counsels for the organizations bringing the lawsuit. Under the agreement, Secretary McDonald will also launch an accelerated process to develop a new long-term Master Plan for the future use of the West Los Angeles campus. This Master Plan, which is targeted to be completed by October 16, 2015, will prioritize the provision of bridge housing and permanent supportive housing. It will also describe an exit strategy for third-party land use agreements that do not comply with applicable laws, and do not fit within the Master Plan. Representatives from the veterans’ community will be actively involved in providing input to the Master Plan, along with other stakeholders, including the local community."
    This settlement in the case of Valentini v. McDonald follows an August 2013 ruling by the U.S. District Court for the Central District of California finding that agreements by the VA with public and for profit organizations to operate on the grounds were "unauthorized by law and therefore void." Judgment. at 1. The case grew out of frustration by homeless veterans and advocates that portions of the valuable VA hospital property in the fashonable Brentwood section of Los Angeles was being leased to for-profit and governmental organizations while veterans were facing homelessness and having great difficulty finding ways of getting to the hospital for services.
    Read the principles document (base settlement accouncement).
    Read the August 2013 Judgment of the U.S. District Court for the Central District of California in Valentini v. Shinseki.
    Read the Department of Veterans Affairs Release on the Settlement.
    Read the ACLU of Southern California Release on the Agreement.

OMB Issues Rules for Implementation of Uniform Administration Requirements for Federal Grants
January 26, 2015.The Office of Management and Budget issued Interim Final Rules on December 19, 2014 to implement the new "Guidance on 'Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance)'" which was published by the Office of Management and Budget (OMB) on December 26, 2013. These materials were developed through the work of the Council on Financial Assistance Reform (COFAR). Comments on the Interim Final Rule are due no later than February 17, 2015. However, OMB made the Interim Final Rules operative as of December 24, 2014, so they are already in effect.
   The Uniform Guidance and implementation rules will "supersede and streamline" a number of OMB circulars that have for years covered federal grants. The OMB explains "Final Guidance has been issued that, upon implementation, will supersede requirements from OMB Circulars A-21 [Cost Principle -- Educational Institutions], A-87 [Cost- Principles State and Local Governments], A-110 [Administrative Requirements -- Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations], and A-122 [Cost Principles -- Non-Profit Organizations](which have been placed in 2 C.F.R. Parts 220, 225, 215, and 230); Circulars A-89 [Administrative Requirements -- Catalog of Federal Domestic Assistance], A-102 [Administrative Requirements -- State and Local Governments] , and A-133 [ Audits of States, Local Governments and Non-Profit Organizations] and the guidance in Circular A-50 on Single Audit Act follow-up."
   These are broad and complex changes. They govern grant accounting and administration. They are also very much aimed at performance assessment, data collection, and dissemination. They are supposed to provide one uniform set of policy and to simplify and provide greater flexibility in administration. They trace back to a presidential executive order, a memorandum, and OMB memorandum. The OMB and the COFAR have established a number of pieces of information on them, including webinar material which is available below as well as FAQs. It is helpful to view at least the first of the webinar postings for a general sense from the Director of the OMB Office of Federal Financial Management (OFFM) of what this is about and what the changes are expected to accomplish. See the posting on my web page for that link.
   Read the Interim Final Rules December 19, 2014.
   Read the Final Guidance Document December 26, 2013.
   Access the Council on Financial Assistance Reform with COFAR Training Webinar Information.
   Read the OMB Frequently Asked Questions.
   Executive Order on Reducing Improper Payments.
   Read the Presidential Memorandum on Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments.
   Read the OMB Memorandum of July 2013 Next Steps in the Evidence and Innovation Agenda.
   Read the Metrics for Uniform Guidance evaluation.

Federal District Court Strikes Arizona Governor's Order Blocking Dreamers from Drivers' Licenses
January 23, 2015. U.S. District Court Judge David G. Campbell has issued a permanent injunction against an executive order issued by former Arizona Governor Jan Brewer that prevented the state agency from issuing drivers' licenses to young people in the federal Deferred Action for Childhood Arrivals (DACA) program, better known as the Dreamers program dealing with undocumented youth brought to the U.S. years ago. For more information and the opinion, see the Civil Rights page of this website.

Supreme Court to Hear Gay Marriage Cases
January 16, 2015. The Supreme Court today agreed to consolidate and hear four cases on the subject of gay marriage this term, including No. 14-556 Obergefell v. Hodges; 14-562 Tanco v. Haslam; 14-571 DeBoer v. Snyder; and 14-574 Bourke v. Beshear. In so doing, the Court indicated that: “The petitions for writs of certiorari are granted limited to the following questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?” For more information and key documents see the Civil Rights page of this website.

Members of New Congress Move Bill to Dramatically Constrain Administrative Rulemaking
January 8, 2015. Six House members have cosponsored H.R. 185, the Regulatory Accountability Act of 2015 which would make dramatic changes in the Administrative Procedures Act and, in particular, make it extremely difficult for administrative agencies to issue rules required by statute or a need to address serious issues extremely cubmbersome and difficult. An almost identical bill was introduced in the previous congress as H.R. 3010. That bill elicited opposition from 42 administrative law professors came together to send a letter to Congress in 2011 criticizing that proposed legislation. It did not move in that session. The current bill has been quickly scheduled for floor action in the House.
Read H.R. 185 as introduced.

NHTSA Fines Honda $70 Million
January 8, 2015. The National Highway Traffic Safety Administration today announced that as a result of its investigations: "Honda will pay two $35 million civil penalties, for a total of $70 million, for failing to report deaths, injuries, and certain warranty claims to the federal government in violation of the TREAD Act. In the Consent Order, finalized just before the new year, Honda also agreed to increased NHTSA oversight and third party audits to ensure that all required reporting is completed now and into the future." The investigation found that Honda had not reported some 1,729 death and injury claims to NHTSA between 2003 and 2014. The matter was resolved in a consent decree issued just at the end of 2014.
Read NHTSA Press Release on the Honda case.
Read the Consent Order in the Honda case.

President Obama Announces Normalization of Relations with Cuba
December 18, 2014. President Obama announced yesterday a major policy change that would mean normalization of relations with Cuba. The White House has released a Fact Sheet explaining the elements of the new policy.
Read the President's Statement on the Change of Policy Toward Cuba.
Read the Fact Sheet Released by the White House on the Specific Elements of the Policy Change.

South Carolina Corrects A 70 Old Year Manifest Injustice
December 18, 2014. South Carolina Circuit Judge Carmen Tevis Mullen overturned a conviction based on a petition for a writ of Coram Nobis (issued to correct a manifest injustice usually based on key errors of fact in a case) in the case of South Carolina v. Sinney in which 14 year old George Stinney who was African American was tried, convicted, and sentenced to death by electrocution in 1944 by an all white jury that deliberated only ten minutes. For more information and the opinion, see the Civil Rights page of this website.

Congress Adopts and President Signs Compromise Spending Bill
December 18, 2014. A compromise spending bill passed the House on a 219-206 and the Senate passed it 56-40. Although the bill is a bipartisan compromise, several of the provisions of this 1603 page bill are highly controversial. The legislation was signed by President Obama on December 16.
Read the text of the Consolodated and Further Continuing Appropriations Act, 2015.

Senate Intelligence Committee Releases Report on CIA Interrogation Tactics After 9/11 and CIA Responds
December 9, 2014. The Senate Intelligence Committee has released its long awaited report on the conduct of CIA interrogations in the years following the 9/11 attacks. There is also a minority report as well as a CIA response. What has been released to this point is a declassified Findings, Conclusions, and Executive Summary. Other members of the committee have filed addition views. There is a minority report.
   The CIA Director, John O. Brennan, has issued a "Statement on the SSCI Study on the Former Detention" and Interrogation Program. Along with this statement, the CIA has issued what it terms the "CIA Fact Sheet on the SSCI Report" as well as a document produced in June 2013 entitled "CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition,Detention,and Interrogation Program" not disclosed until now.
   The SSCI report and Senator Feinstein's presentation of the findings on the Senate floor referred to the CIA Inspector General report on the program issued in 2004. The Bush administration issued a redacted version of the report, but the Obama administration reissued it in 2009 with more material. That report entitled "Counterterrorism Detention and Interrogation Activities (September 2001 - October 2003)" is posted below as well.
    Read the Report Findings, Conclusions and Executive Summary.
    Read Additional Views Offered by Members of the Committee.
    Read the Minority Report.
    Read the President's Statement on Release of the Senate Report.
    Read CIA Direct Brennan's Statement in Response to the Report.
    Read the CIA Fact Sheet on the SSCI Report.
    Read the June 27, 2013 CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition,Detention,and Interrogation Program.
    Read the CIO Office of Inspector General's May 2004 report.

Justice Department Announces New Anti-Profiling Guidance
December 8, 2014. The U.S. Department of Justice has issued its "Guidance for Federal Law Enforcement Agencies Regarding the Use of Race, Ethnicity, Gender, National Origin, Religion, Sexual Orientation, or Gender Identity." For more information and the document, see the Civil Rights page of this website.

Seventeen States Sue Obama Administration Over Immigration Policy Actions
December 4, 2014. The state of Texas and sixteen other states have filed suit in the U.S. District Court for the Southern District of Texas alleging that the Obama administration's recently announced policy moves with respect to enforcement actions against undocumented aliens violated the Duty to Take Clause clause of the Constitution and the Administrative Procedure Act. The other states on the suit are Alabama, Georgia, Idaho, Indiana, Kansas, Louisiana, Montana, Nebraska, South Carolina, South Dakota, Utah, West Virginia, Wisconsin, Mississippi, Maine, North Carolina, and Idaho. (The states were named as plaintiffs in most cases, but the plaintifs for Mississippi, Maine, North Carolina, and Idaho are the governors of those states.)
The response of the United States through the U.S. Department of Justice will be posted when it becomes available.
Read the complaint.

Obama Administration Takes Additional Steps on Immigration
December 2, 2014. Following on the actions that were taken by the Secretary of Homeland Security on immigration implementing policies explained by President Obama in his November 20 speech, the White House has issued two presidential memoranda that are different from the steps taken by the DHS secretary. It is important to note that on the steps that are being debated at present by the Congress the president has not issued an executive order or a presidential memorandum. Instead, the actions taken were in the form of memoranda issued by the Secretary of Homeland Security, primarily using administrative enforcement authority (see the post of November 20 below). However, President Obama did issue two memoranda on immigration with a different focus. On November 21, he issued a memorandum to heads of executive agencies entitled "Creating Welcoming Communities and Fully Integrating Immigrants and Refugees" and another entitled "Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century." The first of these creates a new "White House Task Force on New Americans" and the second directs the Secretary of Homeland Security to consult with a range of agencies of interested private organizations and to make recommendations for revisions on immigration policy and border security.
Read Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century.
Read Creating Welcoming Communities and Fully Integrating Immigrants and Refugees.

EPA Proposes New Ozone Rules to Fight Smog
November 27, 2014. Followed its review of ground level ozone (smog) levels, required by the Clear Air Act to be carried out every five years, the U.S. Environmental Protection Agency has proposed new Ambient Air Quality Standards for Ozone. For full details and documents, including the proposed rules, see the Sustainable Development page of this website.

Congressional Republicans Sue Obama Administration Over Affordable Care Act Executive Actions
November 21, 2014. The House of Representatives has filed House of Representatives v. Burwell, Case 1:14-cv-01967, in the U.S. District Court for the District of Columbia, alleging that executive actions taken in implementation of the Affordable Care Act were illegal. For more information and the complaint, go to the Health Care Disability and Development page of this website.

Obama Administration Implements Immigration Policies
November 20, 2014. The Obama administration has issued a number of policies in the form of memoranda issued by the Secretary of Homeland Security implementing steps announced in the President's speech on November 20. Contrary to news media reports, the President did not issue an executive order on immigration. Instead the Secretary of Homeland Security issued several memoranda to officials within that agency to put the policies in place and direct their implementation. These memoranda deal with the several pieces of action described in the president's address to the nation.
   The administration relied heavily on enforcement discretion as a vehicle to implement its actions with regard to undocumented persons, in part because enforcement discretion is presumptively unreviewable under the Supreme Court's ruling in Heckler v. Chaney, 470 U.S. 821 (1985. Other actions build on or change existing policies in operation within DHS. It also calls on units within DHS to start administrative rulemaking processes to make changes. However, it will take time to analyze each of the memoranda to determine the authority claimed as a basis for each of the particular actions directed by the DHS secretary.
   Secretary of Homeland Security Jeh Johnson, former Department of Defense General Counsel, reportedly worked with Attorney General Eric Holder on preparing the legal foundations for these policies actions. In connection with that effort the Office of Legal Counsel in the Department of Justice issued an opinion on November 19 on the legal authority of the administration to issue the prioritizing of removal and the deferred removal of other undocumented persons. That LOC opinion and the individual memoranda issued by the DHS secretary are provided below.
    Read the DHS Secretary's Memorandum on Stengthening Boder Security.
    Read the DHS Secretary's Memoranda on Revising Removal Priorities.
    Read the DHS Secretary's Memorandum ending the "Security Communities" program and replacing it with a New Priority Enforcement Program.
    Read the DHS Secretary's Memorandum on Realocation of ICE Personnel Resources.
    Read the DHS Secretary's Memorandum on Expansion of Deferred Action for Childhood Arrivals Program.
    Read the DHS Secretary's Memorandum on Provisional Waivers to Spouses and Children of Lawful Permanent Residents.
    Read the DHS Secretary's Memorandum on Revised Parole Rules for Entrepreneurs.
    Read the DHS Secretary's Memorandum on Advance Parole Rules.
    Read the DHS Secretary's Memorandum on Promoting Naturalization.
    Read the DHS Secretary's Memorandum on Supporting High-Skilled Business and Workers.
    Read the DHS Secretary's Memorandum on Parole in Place and Deferred Action for Spouses, Children, and Parents of Persons Seeking to Enlist the U.S. Armed Forces.
    Access the DHS Website "Fixing Our Broken Immigration System Through Executive Action."
    Read the Office of Legal Counsel(DOJ)opinion "The Department of Homeland Security’s Authority to Prioritize Removal of Certain Aliens Unlawfully Present in the United States and to Defer Removal of Others."
    Read the President's Speech on Immigration.

Supreme Court Will Hear Another Affordable Care Act Case
November 13, 2014. The U.S. Supreme Court has agreed to hear King v. Burwell, No. 14-114, another challenge to the Affordable Care Act that focuses on the tax credits available to those purchasing insurance through exchanges. This case comes from the Fourth Circuit, 759 F.3d 358 (4th Cir. 2014), and was taken to the Supreme Court in part on the argument that there is a conflict between that ruling and a decision issued by a panel of the U.S. Circuit Court of Appeals for the D.C. Circuit, Halbig v. Burwell, 758 F.3d 390 (D.C. Cir. 2014). However, that D.C. Circuit ruling is still pending the completion of an en banc review in that circuit. The U.S. government asserts that until that matter is resolved, it is not clear that there will be a conflict and the Supreme Court should not hear the case. Even so, the Supreme Court has agreed to take the case. The issue goes to whether the tax credits are available under the Affordable Care Act to those purchasing insurance on the federal government exchanges as compared to the exchanges.
   As an earlier posting on this page noted, just after a panel of the U.S. Circuit Court of Appeals for the D.C. Circuit rejected IRS rules about tax credits for those purchasing healthcare coverage from federal exchanges under the Affordable Care Act, a panel of the Fourth Circuit issued a ruling upholding those same rules. The Fourth Circuit ruling came in King v. Burwell. In its decision he D.C. Circuit explained, "Specifically, the regulation provided that a taxpayer may receive a tax credit if he 'is enrolled in one or more qualified health plans through an Exchange,' 26 C.F.R.§1.36B-2(a)(1), which the IRS defined as 'an Exchange serving the individual market for qualified individuals. . . , regardless of whether the Exchange is established and operated by a State (including a regional Exchange or subsidiary Exchange) or by HHS.' 45 C.F.R. §155.20" Halbig v. Burwell, No. 1:13-cv-00623, Slip op. at 7. The challengers argue that the statute only allows the premium tax credits for state-operated exchanges. The federal government argues that that the federal exchanges used in the state are state specific markets and they fit within the language and intent of the ACA. This is particularly important since federal exchanges now operate in some 34 states as compared to state exchanges.
   Read the Petition for Certiorari.
   Read the U.S. Government Brief Opposing Certiorari.
   Read the D.C. Circuit opinion.
   Read the Fourth Circuit opinion.
   Read the Health Insurance Premium Tax Credit Rules of May 23, 2012.

Sixth Circuit Ruling Upholding Gay Marriage Bans Sets Up Supreme Court Review
November 7, 2014. An opinion by Judge Sutton for a divided three judge panel of the Circuit Court of Appeals for the Sixth Circuit upholding bans against gay marriage in four states conflicts with rulings in four other circuits and creates a strongly probability that the U.S. Supreme Court will take a case soon on this question. Judge Cook joined Sutton's opinion, but Judge Daughtrey dissented.
Read the opinion.

The Supreme Court Begins Work on Its October Term 2014
October 6, 2014. The U.S. Supreme Court begins its October 2013 term today. As usual, the Court issued a lengthy order list on the first day of its new term which will be next Monday. This follows a list of cases granted certiorari or in which probable jurisdiction has been noted and therefore on the docket for this term as of September 20. The current granted and noted list and other information on the docket as well as the briefs and oral arguments follow.
   Order List for October 6.
   October Term 2014 Granted and Noted List as of July 2014.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ" or SCOTUS Blog.
   Access "OYEZ"
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access SCOTUS Blog

Federal Court Blocks Texas Anti-Abortion Statute
August 30, 2014. Federal District Court Judge Lee Yeakel of the Western District of Texas has issued a ruling in Whole Woman's Health, Austin v. Lakey, against two provisions of Texas statute and the implementing regulations for what is generally known as the "admitting-privileges requirement" for clinicians performing abortion services and the "ambulatory-surgical-center-requirement" for clinics. Judge Yeakel concluded that the "overall effect of the provisions is to create an impermissible burden" on the right of women to obtain those services and enjoining implementation.
Read the opinion.

GAO Counsel Asserts that Obama Administration Violated Statutory Notice Requirements in Prisoner Trade
August 22, 2014. The Counsel for the Government Accountability Office has issued an opinion finding that the Obama administration violated the National Defense Authorization Act for 2014 in the way that it notified Congress about the trade of Taliban prisoners for the release of Army Sergeant Beau Bergdahl. The opinion concludes: “This opinion does not address the Secretary’s decision to transfer the five individuals in this case as part of DOD’s efforts to secure the release of an American soldier. However, when DOD failed to notify specified congressional committees at least 30 days in advance of its transfer of Guantanamo Bay detainees to Qatar, DOD used appropriated funds in violation of section 8111. As a consequence of using its appropriations in a manner specifically prohibited by law, DOD violated the Antideficiency Act. See 31 U.S.C. §1341(a). DOD should report its Antideficiency Act violation as required by law.” Susan A. Poling, General Counsel, “Department of Defense – Compliance with Statutory Notification Requirement,” August 21, 2014, at 7.
   President Obama has consistently indicated in signing statements in recent National Defense Authorization Acts that legislative restrictions on decisions about detainees or with respect to the movement of detainees would violate the president’s foreign affairs and commander in chief powers under Article II of the Constitution as well as the separation of powers. In fact, in 2012, he issued Presidential Policy Directive/PPD-14 addresing the broad subject of control over detainees.
   Indeed, the GAO counsel opinion recognizes that President Obama interposed those objects to the provisions of the 2014 NDAA at issue in this prisoner trade. She notes: “The President had previously expressed concerns about the constitutionality of section 1035 of the FY 2014 NDAA. In a statement issued in connection with his signature of the FY 2014 NDAA, the President stated that ‘in certain circumstances,’ section 1035 ‘would violate constitutional separation of powers principles.’ Statement on Signing the National Defense Authorization Act for Fiscal Year 2014, Daily Comp. Pres. Doc., 2013 DCPD No. 201300876 (Dec. 26, 2013), at 1. The President added that ‘[t]he executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.’ Id.” Counsel Opinion, at 5, n. 5.
   The GAO counsel specifically withheld any opinion on the constitutionality of section 1035, but went on to find that the notification requirement was violated and that violation also constituted a violation of the Anti-Deficiency Act, 31 U.S.C. §1341(a).
   Read the GAO counsel memorandum.
   Access P.L. 113-66, the National Defense Authorization Act for Fiscal Year 2014.
   Read the Statement on Signing the National Defense Authorization Act for Fiscal Year 2014.
   Read the Statement on Signing the National Defense Authorization Act for Fiscal Year 2013.
   Read the Statement on Signing the National Defense Authorization Act for Fiscal Year 2012.
   Read Presidential Policy Directive/PPD-14.

Two U.S. Circuit Courts of Appeals Issue Conflicting Opinions on Affordable Care Act Tax Credits and Federal Exchanges
July 22, 2014. Just after a panel of the U.S. Circuit Court of Appeals for the D.C. Circuit rejected IRS rules about tax credits for those purchasing healthcare coverage from federal exchanges under the Affordable Care Act, a panel of the Fourth Circuit issued a ruling upholding those same rules. The Fourth Circuit ruling came in King v. Burwell, No. 14-1158. The D.C. Circuit explained, "Specifically, the regulation provided that a taxpayer may receive a tax credit if he 'is enrolled in one or more qualified health plans through an Exchange,' 26 C.F.R.§1.36B-2(a)(1), which the IRS defined as 'an Exchange serving the individual market for qualified individuals. . . , regardless of whether the Exchange is established and operated by a State (including a regional Exchange or subsidiary Exchange) or byHHS.' 45 C.F.R. §155.20" Halbig v. Burwell, No. 1:13-cv-00623, Slip op. at 7. This is particularly important since federal exchanges now operate in some 36 states as compared to state exchanges.
   Read the D.C. Circuit opinion.
   Read the Fourth Circuit opinion.
   Read the Health Insurance Premium Tax Credit Rules of May 23, 2012.

Federal Court Strikes California Death Penalty
July 16, 2014. Federal District Court Judge Cormac J. Carney has found that the California death penalty is cruel and unusual punishment in violation of the Eighth Amendment in a Jones v. Chappell, a case involving an inmate on death row since 1995. He began the opinion by explaining that the "dysfunctional administration" of the penalty has resulted in a sentence of "life in prison, with the remote possibility of death." Slip op. at 1-2. Judge Cormac, appointed by President George W. Bush, provided a detailed spreadsheet with the opinion, showing what has or has not happened to some 900 death row inmates since California imposed its current death penalty statute.
Read the opinion.

Overwhelmed FCC Extends Deadline for Comments on Net Neutrality Rules
July 16, 2014. The Federal Communications Commission has extended until July 18 the deadline for filing comments on its proposed net neutrality rules following the crash of its website this week due to efforts by many to submit comments before the July 15 deadline. "By this Public Notice, the Commission’s Wireline Competition Bureau (Bureau) announces that it will treat comments filed in response to the Protecting and Promoting the Open Internet Notice of Proposed Rulemaking and the Framework for Broadband Internet Access Service Refreshing the Record Public Notice as timely if filed by midnight, July 18, 2014. On May 15, 2014, the Commission released the Notice of Proposed Rulemaking.1 The Notice of Proposed Rulemaking set dates for comments and reply comments as July 15 and September 10, 2014, respectively." Public Notice, July 15, 2004, at 1.
Read the explanation for the extension.
Read the announcement of an extension.

Fifth Circuit Upholds U. Texas Affirmative Action Admissions Program
July 15, 2014. A panel of the U.S. Circuit Court of Appeals for the Fifth Circuit has issued its decision upholding the University of Texas affirmative action admissions program, responding to a ruling from the U.S. Supreme Court calling upon the lower court to use a more stringent standard of review that had been employed in the case previously. For more information and the opinion, go to the Civil Rights page of this website.

Supreme Court Activity

The Supreme Court Begins Work on Its October Term 2015
October 5, 2015. The U.S. Supreme Court begins its October 2015 term today. As usual, the Court issued a lengthy order list on the first day of its new term which will be next Monday. This follows a list of cases granted certiorari or in which probable jurisdiction has been noted and therefore on the docket for this term as of October 1. The current granted and noted list and other information on the docket as well as the briefs and oral arguments follow.
   Order List for October 5.
   October Term 2015 Granted and Noted List as of October 1, 2015.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ" or SCOTUS Blog.
   Access "OYEZ"
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access SCOTUS Blog

Supreme Court Rules Against Affordable Care Act Contraceptive Coverage Requirement
June 30, 2014. The U.S. Supreme Court in a 5-4 opinion by Justice Alito, the Court said in its opinion in Burwell v. Hobby Lobby Stores that: "We must decide in these cases whether the Religious Freedom Restoration Act of 1993 (RFRA) . . . permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest. Slip op. at 1-2.
Read the opinion.

Court Rules Again Home Health Worker Union Fair Share Requirement
June 30, 2014. Justice Alito also wrote for the Court in Harris v. Quinn a case concerning whether home health care workers can be made to pay fair share payments like nonmembers of unionized organized must. Alito rejected the requirement for what are in other unionized organizations known as fair share payments. This opinion is more complex that the language of the question discussed might appear and its ruling is not a full ban on any such requirements and the last portion of the majority opinion discusses the differences between this situation and cases in which fees can be required. It leaves open the possibility that there may be others as well.
Read the opinion.

Supreme Court Requires Warrant for Cell Phone Search
June 26, 2014. Chief Justice Roberts delivered the Supreme Court's opinion in No. 13-132, Riley v. Californi, requiring a warrant for searches of cell phones in all but a few limited exceptional situations. Justice Alito concurred in part and in the judgement, but the Court was otherwise unanimous.
Read the opinion.

Supreme Court Rejects President's Claim to Authority to Use Recess Appointments for NLRB
June 26, 2014. Justice Breyer wrote for the Court in No. 12-1281,NLRB v. Noel Canning, rejecting President Obama's appointments to the NLRB which the administration asserted were authorized as recess appointments. Three justices joined and opinion written by Justice Scalia concurring in the judgment. See the posting for January 14, 2014 on this page for more details as well as for the briefs and oral arguments in the case.
Read the Opinion.

TV Over Internet Firm Looses Copyright Ruling in the Supreme Court
June 26, 2014. Justice Breyer also wrote for the Court in a case involving copyright of an approach to broadcasting attacked by cable providers as copyright infringement. As Breyer explained it: "We must decide whether respondent Aereo, Inc., infringes this exclusive right by selling its subscribers a technologically complex service that allows them to watch television programs over the Internet at about the same time as the programs are broadcast over the air. We conclude that it does." Slip op. at 1. While this was a private suit, the decision in the case potentially raises a variety of policy issues as well as regulatory concerns foing forward.
Read the Opinion.

Federal District Court Judge Rules in No-Fly List Case
June 25, 2014. Federal District Judge Anna J. Brown of the U.S. District Court for Oregon has ruled in Latif v. Holder that: "[O]n this record the Court concludes the absence of any meaningful procedures to afford Plaintiffs the opportunity to contest their placement on the No-Fly List violates Plaintiffs' rights to procedural due process." Id. at 60. She also found the administration's actions in creating the policy arbitrary and capricious in violation of the Administrative Procedure Act. She has ordered the parties to discuss a possible remedy and report back to her by July 14, 2014.
Read the Latif opinion.

Justice Department Memorandum Supporting Drone Strike on Anwar al-Awlaki Release
June 24, 2014. A panel of the U.S. Court of Appeals for the Second Circuit has released the Justice Department memorandum issued July 20, 2010 entitled "Applicability of Federal Criminal Laws and Constitution to Contemplated Lethal Operations Against Shaykh Anwar al-Aulaki" that provided legal support for the administration's drone strike against al-Awlaki in Yemen. This was not an opinion about the lawfulness of the strike, but an appeal in which the New York Times, reporters, and the American Civil Liberties Union contested a lower court decision denying their Freedom of Information Act request for release of the memorandum. The Second Circuit published a redacted version of the memorandum as an appendix to its opinion.
Read the opinion with the Justice Department Memorandum in Appendix.

Supreme Court Scolds the EPA but Upholds Most of It Rules Aimed at Global Warming
June 24, 2014. Justice Scalia wrote for a 7-2 majority upholding most of a set of findings and rules issued by the U.S. Environmental Protection Agency under the Clearn Ait Act to deal with greenhouse gases that contribute to global warming in No. 12-1146 Utility Air Regulatory Group v. EPA. However, Scalia rejected portions of the EPA action and scolded the agency for overreaching in attempting to ignore requirements in the statute in a portion of the opinion in which the justice split 5-4. Scalia asserted that overall the opinion gave EPA 83% of what it wanted.
Read the opinion.

Supreme Court Rejects Effort to Stay Oregon Federal District Court Gay Marriage Ruling
June 5, 2014. The Supreme Court refused to stay the action of a federal district court in Oregon, striking down the state's ban on gay marriage. For full information, see the Civil Rights page of this website.

Federal Judge Strikes Oregon Gay Marriage Ban
May 19, 2014. U.S. District Judge Michael McShane of the U.S. District Court for the district of Oregon is the latest federal judge to strike down a state ban on gay marriage and like other rulings of the past year in federal district courts, this one rests on the equal protection clause of the Fourteenth Amendment. For more information and the opinion, see the Civil Rights page of this website.

Climate Change Impacts in the United States
May 6, 2014, 2014. The National Science and Technology Council and the U.S. Global Change Research Program have produced the U.S. National Climate Assessment released a report entitled Climate Change Impacts in the United States which finds that the effects of human caused global warming are already upon us and threatening to increase rapidly in intensity and scope. For more information and the report, see the Sustainable Development Page of this website.

Supreme Court Allows Prayer at Council Meetings
May 5, 2014. The Supreme Court has issued its opinion in the Town of Greece v. Galloway case, upholding the city council's practice of using an opening prayer (see the materials on the case below). The Court did not find an establishment of religion even though the prayers were overwhelming Christian in nature. For more information and the ruling, see the Local Government page of this website.

FDA Announces New Regulation of Electonic Cigarettes
April 23, 2014. The U.S. Food and Drug Administration announced today its intention to issue new rules extending regulation to tobacco products other than cigarettes. The new rules would include in the definition of regulated tobacco products items that have not been included in that definition to date, “including currently unregulated marketed products, such as electronic cigarettes (e-cigarettes), cigars, pipe tobacco, nicotine gels, waterpipe (or hookah) tobacco, and dissolvables not already under the FDA’s authority. The FDA currently regulates cigarettes, cigarette tobacco, roll-your-own tobacco, and smokeless tobacco.” The FDA announcement states that: “Consistent with currently regulated tobacco products, under the proposed rule, makers of newly deemed tobacco products would, among other requirements: Register with the FDA and report product and ingredient listings; Only market new tobacco products after FDA review; Only make direct and implied claims of reduced risk if the FDA confirms that scientific evidence supports the claim and that marketing the product will benefit public health as a whole; and Not distribute free samples. In addition, under the proposed rule, the following provisions would apply to newly “deemed” tobacco products: Minimum age and identification restrictions to prevent sales to underage youth; Requirements to include health warnings; and Prohibition of vending machine sales, unless in a facility that never admits youth.”
    In launching this process, the FDA announced that the rule "proposes different compliance dates for various provisions so that all regulated entities, including small businesses, will have adequate time to comply with the requirements of the proposed rule. Products that are marketed for therapeutic purposes will continue to be regulated as medical products under the FDA’s existing drug and device authorities in the Food, Drug and Cosmetic Act."
    The FDA provided a pre-publication copy of the proposed role today, but plans to formally publish the prosal on April 25.
   Read the FDA Press Release on the New Rules.
   Read the "pre-publication" Proposed Rule.
   Access the FDA Tobacco Products Website.

Supreme Court Upholds State Ballot Measure Banning Affirmative Act
April 22, 2014. In a ruling issued today in No. 12-682, Schuette v. Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality By Any Means Necessary (BAMN), the Supreme Court has reversed the court of appeals and upheld a Michigan voter approved ban on affirmative action in university admissions. For more information and the opinions in the case, go to the Civil Rights page of this website.

Second Circuit Panel Requires Release of Anwar al-Awlaki Memo
April 21, 2014. A panel of the U.S. Circuit Court of Appeals for the Second Circuit, in a suit brought by the New York Times, has required the Justice Department to release the administration's memorandum related to the killing of Anwar al-Awlaki.
Read the opinion.

D.C. Circuit Rejects Challenges to EPA 2012 Power Plant Air Pollution Rules
April 17, 2014. A panel of the U.S. Circuit Court of Appeals for the D.C. Circuit, in its opinion in White Stallion Energy Center v. EPA, rejected challenges to the air pollution rules issued by the Environmental Protection Again for coal- and oi-fired electric utility plants in 2012. Judge Kavanaugh issued a lengthy separate opinion, concurring in part and dissenting in part.
Read the opinion.
Read the Final Rules Challenged in the Case.

Federal District Court Strikes Down Michigan Ban on Gay Marriage
March 22, 2014. Joining a growing number of federal district courts striking state bans on gay marriage, U.S. District Court Judge Bernard A. Friedman, writing in DeBoer v. Snyder, has concluded struck down Michigans constitutional and statutory barriers. For more information and the opinion, see the Civil Rights page of this website.

U.S. Justice Department Reaches Settlement with Toyota and Defers Criminal Prosecution
March 19, 2014. In announcing a settlement that results in a deferral of criminal charges against Toyota, Attorney General Holder said: "The U.S. Department of Justice has officially concluded its criminal investigation into Toyota Motor Company regarding the widespread incidents of unintended vehicle acceleration that caused panic for Toyota owners between 2009 and 2010. Those incidents produced one of the largest consumer recalls in the history of the automotive industry. Today, we can say for certain that Toyota intentionally concealed information and misled the public about the safety issues behind these recalls." He went to explain that Toyota agreed to pay a penalty of $1.2 billion to settle the case.
   Read the Attorney General's Announcement of the Settlement.
   Read the Deferred Prosecution Agreement.
   Read U.S. DOJ Charging Document.
   Read DOJ Toyota case Fact Summary.

White House Announces FY2015 Budget Proposal
March 4, 2014. The White House has released the President's budget request for FY 2015. Along with the full budget request and the budget overview document, the White House has issued the "Cuts, Consolidations, and Savings for FY 2015" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   The so-called budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency will be provided below as soon as they are posted.
   Access the President's message to accompany the FY2015 Budget.
   Download the FY 2015 Budget proposal as a single .pdf document.
   Download the FY 2015 Budget Overview.
   Download the FY 2015 Budget Website with Individual Agency Budget proposals.
   Access the Cuts, Consolidations, and Savings for FY 2015
   Access the Web Site for the FY2015 Budget Appendix -- All detailed information about agencies and funds.
   Access the FY 2015 Budget Analytic Perspectives document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2015 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2015 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2015 Budget-in-Brief. Not Yet Available
   Access USASpending.gov

U.S. District Court Overturns Virginia Ban on Gay Marriage
February 14, 2014. U.S. District Court Judge Arenda L. Wright Allen in an opinion in Bostic v. Rainey, struck down a provision of the Virginia Constitution and any other provision of Viginia law that bars same-sex marriage as violative of the due process and equal protection clauses of the Fourteenth Amendment. For full details on the case and the Virginia Attorney General's decision to switch positions during the litigation, see the Civil Rights page of this website.

President Obama Issues Executive Order Increasing Minimum Wage for Federal Contractors
February 12, 2014. The White House has released a Fact Sheet ahead of the signing by President Obama of an executive order later today mandating an increased minimum wage for employees on federal contract work. That increase will not, however, take effect under the terms of the order until January 1, 2015. The situation for "tipped workers" is more complex. The fact sheet provides: "The Executive Order requires that employers pay a minimum base wage of $4.90 for new contracts and replacements for expiring contracts put out for bid after January 1, 2015. That amount increases by 95 cents per year until it reaches 70 percent of the regular minimum wage, and if a worker’s tips do not add up to at least $10.10, the employer will be required to pay the difference."
Read the Executive Order.
Read the Fact Sheet Released by the White House on the Executive Order.

Attorney General Announces that Justice Department Will Support Gay Marriage
February 12, 2014. In a speech to the Human Rights Campaign Great New York Gala on February 10, Attorney General Eric Holder declared: "On Monday, I will issue a new policy memorandum that will – for the first time in history – formally instruct all Justice Department employees to give lawful same-sex marriages full and equal recognition, to the greatest extent possible under the law." For more information including the text of the speech, see the Civil Rights page of this website.

President Issues Policy Directive on Signals Intelligence
January 21, 2014. A month after the White House released the Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies, President Obama on January 17 delivered an address on signals intelligence followed by the release of Presidential Policy Directive 28 on Signals Intelligence. This PPD directs implementation of some of the nearly four dozen recommendations from the Review Group but not others and seeks, according to the president, a balance in competing needsr.
   Read the Transcript of the President's Speech.
   Watch the President's Speech.
   Access PPD 28.
   Read the Administration Fact Sheet on PPD 28.
   Read the Report and Recommendations.

Supreme Court Hears Oral Argument on Obama Recess Appointments
January 14, 2014. The United States Supreme Court heard extended oral arguments yesterday in No. 12-1281, National Labor Relations Board v. Noel Canning which arose from a challenge to recess appointments by President Obama to the NLRB. The administration had argued that the Senate had engaged in tricks to avoid a recess and thus make it impossible for the president to fill vacancies on the board that had left it short of a quorum and therefore unable to do its work. The U.S. Circuit Court of Appeals for the D.C. Circuit rejected that argument in January 2013 and found the appointments invalid.
   Read the transcript of the oral argument.
   Access the Oral Argument Audio.
   Read the Petitioner Brief filed by the NLRB.
   Read the Respondent Noel Canning's Brief.
   Read the D.C. Circuit opinion from 2013.

D.C. Circuit Rules Again on Net Neutrality
January 14, 2014. The U.S. Circuit Court of Appeals for the D.C. Circuit has issued its second ruling on what is known as "Net Neutrality" that bars internet service providers from giving prefernce to certain customers or types of material. In an order that first recognizes the Commission's authority, the D.C. Circuit then promptly holds that it cannot be used in the manner that the Commission has used it. Judge Tatel wrote in part: "As we explain in this opinion, the Commission has established that section 706 of the Telecommunications Act of 1996 vests it with affirmative authority to enact measures encouraging the deployment of broadband infrastructure. The Commission, we further hold, has reasonably interpreted section 706 to empower it to promulgate rules governing broadband providers’ treatment of Internet traffic, and its justification for the specific rules at issue here — that they will preserve and facilitate the “virtuous circle” of innovation that has driven the explosive growth of the Internet — is reasonable and supported by substantial evidence. That said, even though the Commission has general authority to regulate in this arena, it may not impose requirements that contravene express statutory mandates. Given that the Commission has chosen to classify broadband providers in a manner that exempts them from treatment as common carriers, the Communications Act expressly prohibits the Commission from nonetheless regulating them as such. Because the Commission has failed to establish that the anti-discrimination and anti-blocking rules do not impose per se common carrier obligations, we vacate those portions of the Open Internet Order." Verizon v. Federal Communications Commission, No. 11-1355, Slip op. at 4.
   As the Court today noted the earlier ruling, Comcast Corp. v.FCC, 600 F.3d 642 (D.C. Cir. 2010), had found that the FCC had not shown its statutory authority to require "open network management practices."
   Read Verizon opinion issued today.
   Read the 2010 Comcast opinion.

Conflict Among Federal District Judges on the Validity of the NSA Program as New York Judge Rules in Favor of NSA
December 27, 2013. Less than two weeks after Federal Judge Judge Richard J. Leon of the U.S. District Court for the District of Columbia issued an injunction against the NSA metadata program, Judge William H. Pauley III of the U.S. District Court for the Southern District of New York has ruled dismissed a suit brought by the ACLU against the program, finding it a policy well-justified by the need to protect the nation from terrorist and other international threats. As he began his opinion, Judge Pauley went to far as to suggest that 9/11 attacks might have been prevented if such a program had been in place prior to those attacks. Depending upon what happens in the respective Courts of Appeals, this difference sets up the possibility of a Supreme Court review.
Read Judge Pauley's opinion.
Read Judge Leon's opinion.

Obama Administration Offers Options for People With Cancelled Health Policies
December 19, 2013. The Obama administration has issued a new policy through the Centers for Medicare and Medicaid Services for those who have had their health insurance policies cancelled as a result of changes resulting from the Affordable Care Act that allows those whose carriers will not renew or extend their policies two options apart from enrolling in a health care insurance program through the ACA. For more information and the policy, see the Health Care, Disability, and Development page of this website.

Federal District Judge in Utah Strikes Portions of Utah Bigamy Statute on Constitutional Grounds
December 18, 2013. A federal district court judge in Utah has in an opinion in Brown v. Buhman struck down a portion of Utah's bigamy law that prohibits cohabitation. It did not address the other portion of the statute which deals with actual marriage by someone currently married or of someone currently married.
Read the opinion.

White House Releases Report of Intelligence Review Group
December 16, 2013. The White House has released the Report and Recommendations of the President’s Review Group on Intelligence and Communications Technologies which was originally scheduled to be made public next month once the administration has had time to consider the findings and recommendations in the document. However, in a statement released today the administration indicated that it would release the report now and then speak to it in terms of what the administration will do with its recommendations in January.
Read the Report and Recommendations.
Read the White House press release that accompanies the release of the report.

Federal District Judge Rules Against NSA Program
December 16, 2013. U.S. Federal District Court Judge Richard J. Leon has issued an opinion and injunction in Klayman v. Obama finding the NSA Bulk Metadata Telephony appears clearly to be a violation of the Fourth Amendment. Because of the likelihood of success on the merits of the claim, he issued the injunction, but stayed his order pending an appeal by the government. Concluding that he "could not imagine a more 'indiscriminate' and 'arbitrary invasion'" of the privacy rights of Americans, he said, he had little doubt that this action would leave James Madison "aghast." Memorandum Opinion, at 64.
Read the opinion.

President and Secretary of State Announce First Step Agreement with Iran
November 25, 2013. The President and Secretary of State have announced a first step agreement as part of the P%+1 negotiations to limit Iran's nuclear program in return for some partial relief from sanctions imposed by the international community. This agreement is intended to provide a six month period for a next step in the negotiations.
   Read the "Fact Sheet" on the ageement issued by the administration.
   Read the text of the Secretary of State's press briefing from Geneva.
   Read the President's statement on the agreement.

Director of National Intelligence Releases Large Cache of Documents on NSA Surveillance Program
November 19, 2013. Director of National Intelligence James R. Clapper has order the release of a large amount of documents related to the NSA surveillance program. In so doing, he described the scope and nature of the materials: "Today I authorized the declassification and public release of additional documents relating to collection under Section 501, bringing the total to nearly 2000 pages of documents released to the public so far, including 20 orders and opinions of the Foreign Surveillance Court, 11 pleadings and other documents submitted to the Court, 24 documents provided to Congress, and 20 reports, training slides, and other internal documents describing the legal basis for the programs and how they operate. The information released today includes a number of internal NSA documents, training slides and internal guidance, which demonstrate the care with which NSA’s foreign intelligence collection pursuant to Section 501 is run, managed, and overseen. Also included is the United States Signals Intelligence Directive 18 which details policies and procedures to ensure NSA’s missions and functions are conducted in a manner that safeguards the constitutional rights of U.S persons, and two opinions from the Foreign Intelligence Surveillance Court concerning a now-discontinued NSA bulk electronic communications metadata program." Press Release.
   Clapper explained that included along with numerous reports to Congress and other documents, the released materials include the original FISA Court ruling allowing the NSA surveillance and the opinion allowing the reinstatement of the program following a suspension because of issues with its implementation as well as a report by the Inspector General and General Counsel on management controls on the program. The releases also incluse US Signals Intelligence Directive 18 issued in 2011 as well as NSA training materials on the operation of the surveillance programs. These documents are provided below, but the Director's press release and description of the materials contains links to many more documents.
   For previous releases related to the NSA program see the post on this page for September 18, 2013.
   Read Director National Security Press Release Explaining the Released Documents.
   Read FISA Court opinion granting the government's request to implement the surveillance program.
   Read Fisa Court opinion allowing reinstatement of the program after a temporary suspension to address problems.
   Read the Court Ordered Inspector General and General Counsel Report on Management Controls on the Program.
   Read the United States Signals Intelligence Directive 18 of January 2011 .
   Read NSA Core Intelligence Oversight Training materials relating to NSA signals intelligence collection activities.

Supreme Court Rejects Case Seeking Overturn of FISA Court Ruling on Phone Company Delivery of Data in Surveillance Program
November 19, 2013. The Supreme Court has denied a petition for Mandamus and Prohibition filed by the Electronic Privacy Information Center seeking to overturn a ruling by the Foreign Intelligenve Surveillance Court that the "compelled Verizon Business Network Services to produce to the National Security Agency, on an ongoing basis, all of the call detail records of Verizon customers. Petitioner, a non-profit organization engaged in legal work and advocacy, is a Verizon customer." Petition for Writ of Mandamus and Prohibition, or Writ of Certiorari, p. i. The group claims that the FISA Court exceeded is authority under the Foreign Intelligence Surveillance Act in that ruling. The case is In re Eletronic Privacy Information Center, No. 13-58. The Court announced that the mandamus was denied without opinion as part of its order list published yesterday.
Read the Petition for Mandamus and Prohibition filed by EPIC.
Read Brief of the U.S. in Opposition to the Petition.

OMB Publishes Report on the Cost of the Federal Government Shutdown
November 8, 2013. The Office of Management and Budget has released a report detailing estimates of the impacts of the federal government shutdown on the economy, on employee costs, on program shutdowns, and in a variety of other areas.
Read the OMB Report.
Read the OMB press posting about the report.

Supreme Court Hears Prayer at Council Meetings Case
November 7, 2013. The Supreme Court heard oral argument yesterday in the case of Town of Greece v. Galloway, testing whether the kind of prayer process used by the town council for its meeting complies with the Supreme Court's ruling in Marsh v. Chambers, 463 U.S. 783 (1983). For more information on the case as well as the oral argument audio and transcript, see the Local Government page of this website.

Fifth Circuit Stays District Court Ruling in Texas Abortion Law Case, Allowing the Statute to Go Into Effect
November 1, 2013. Following an emergency appeal by Texas, a panel of the U.S. Circuit Court of Appeals for the Fifth Circuit has stayed the ruling issued by Federal District Court Judge Lee Yeakelon October 29 that had blocked implementation of two provisions of the Texas abortion statute adopted in the recent emergency session of the legislature. Information on that district court ruling is posted below in an entry for October 29. The lower court's action has been stayed pending for hearing in the appeals court which has been set for January on an expedited hearing schedule.
Read the Fifth Circuit Opinion.

FAA Eases Restrictions on Use of Electronic Devices in Airlines
October 31, 2013. The Federal Aviation Administration has announced that airlines that complete a safety review can ease restrictions on the use of Personal Electronic Devices (PEDs) during all phases of a flight. The FAA Aviation Rulemaking Committee has produced a report and recommendations which the FAA administrsator has accepted and guidance has been issued to airlines. The agency cautions that these changes will not be effective immediately but should happen as soon as each airline completes the required review and changes its policies for announcement to passengers. The first two items below are intended for general audiences to explain the change while the remaining documents provide the report that supports the change and the notices to the airlines on the implementation of the changes.
   Read the FAA Press Release on the Changes.
   Read the FAA Fact Sheet on the Changes.
   Read the PED ARC Report that was the basis for the change.
   Read FAA InFOR13010 for airlines.
   Read FAA Aid to Operators for the Expanded Use of Passenger PEDS.
   Read FAA Notice Expanded Use of Passenger Portable Electronic Devices (PED).

U.S. District Court in Texas Rules Against Key Provisions of Texas Anti-abortion Statute
October 29, 2013. Federal District Judge Lee Yeakel issued a ruling yesterday in Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, a challenge to the legislation adopted by the Texas legislature in a special session finding two provisions of that statute in violation of the Constitution. The Texas statute is Act of July 12, 2013, 83rd Leg., 2d C.S. Judge Yeakel found in part that: "Having carefully considered the parties' briefing, stipulations, exhibits, trial testimony, arguments of counsel, and the applicable law, court concludes: (1) the act's admitting-privileges provision is without a rational basis and places a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus, and (2) the act's provisions that place restrictions on medication abortions do not place such an obstacle, except when a physician finds such an abortion necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Slip op. at 4-5. He then enjoined the first of these provisions and the second insofar as it is applied in the circumstances of the life or health of the mother.1, §1-12, 2013 Tex. Sess. Law Serv. 4795-4802. The law had been scheduled to go into effect today.
Read the memorandum opinion.
Read the judgment and order.

Congress Passes and President Signs Bill to End Government Shutdown and Address the Debt Limit
October 17, 2013. On a vote of 285 to 144, the House last night passed H.R. 2775, the "Continuing Appropriations Act, 2014" which had already passed in the Senate 81 to 18, ending the federal government shutdown and raising the debt limit. The president signed the bill immediately thereafter.
Read H.R. 2775 as passed by both houses.

Supreme Court to Hear Challenges to EPA Greenhouse Gas Global Warming Rules
October 15, 2013. The Supreme Court has today granted certiorari to review the EPA Tailoring Rules on greenhouse gases issued under the Clean Air Act. The case consolidates six different petitions under the lead case No. 12-1146, Utility Air Regulatory Group v. EPA. The challengers seek to overturn a 2012 ruling by a panel of the U.S. Court of Appeals for the D.C. Circuit that rejected a number of challenges to the EPA rules. For further information on the full set of EPA greenhouse gas policy actions in play, the lower court ruling, and key documents, see the Sustainable Development page of this website.

The Supreme Court Begins Work on Its October Term 2013
October 7, 2013. The U.S. Supreme Court begins its October 2013 term today. As usual, the Court issued a lengthy order list on the first day of its new term which will be next Monday. This follows a list of cases granted certiorari or in which probable jurisdiction has been noted and therefore on the docket for this term as of September 20. The current granted and noted list and other information on the docket as well as the briefs and oral arguments follow.
   Order List for October 7.
   October Term 2013 Granted and Noted List as of September 20, 2013.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ" or SCOTUS Blog.
   Access "OYEZ"
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access SCOTUS Blog

Federal Government Prepares for Shutdown
September 27, 2013. The Office of Management and Budget has released a memorandum issued on September 17 calling on agencies to plan for the contingency of failure of Congress to pass necessary appropriations legislation before the beginning of the new fiscal year on October 1 and in the ansence of a continuing resolution that would keep agencies funded until the appropriations bills are enacted. The memorandum refers specifically to Section 124.2 of OMB Circular A-11 on Preparation, Submission and Execution of the Budget which was revised most recently on July 26, 2013. That setion explains "Agency Operations in the Absence of Appropriations." The September 17 memorandum also has as an attachment a set of Frequently Asked Questions regarding operations in these conditions based on preparations for this situation in the past two years as well as a second attachment that is a "Supplement to Frequently Asked Questions Concerning Contingency Planning for Lapse in Appropriations." It also refers to the Office of Personnel Management Guidance for Shutdown Furloughs.
   The Washington Post has provided a website with agency by agency summaries of shutdown impacts and responses.
   Read OMB Memorandum M-13-22 September 17, 2013.
   Read Section 124.2 ofOMB Circular A-ll on Agency Operations in the Absence of Appropriations.
   Read OPM Guidance for Shutdown Furloughs.
   Go to the Washington Post Agency by Agency Shutdown Summary.

Fourth Circuit Panel Finds the Liking a Facebook Page is Speech for a Local Government Employee
September 23, 2013. In a case involving suits by employees of a Sheriff's department, a panel of the U.S. Fourth Circuit Court of Appeals found that an employee's action "liking" the campaign Facebook page was speech protected by the First Amendment.
Read the Bland v. Roberts opinion.

Foreign Intelligence Surveillance Court Releases Additional Opinions
September 18, 2013. Following its release in mid-August of some of its opinions, and most notably of its now intensively debated ruling of October 3, 2011, the Foreign Intelligence Surveillance Court has now released a redacted version of its Memorandum and Opinion of August 29 concerning the NSA collection of telephone metadata. The opinion finds that the program violates neither the Fourth Amendment to the Constitution nor Section 215 of the Patriot Act. Its order authorizes collection and analysis of the data, but also imposes oversight and control requirements, particularly from the Office of General Counsel of NSA and the Justice Department.
   As noted in a previous posting, the Director National Intelligence at the request of the president has released in August a number of opinions issued by the Foreign Intelligence Surveillance Court that have been redacted and cleared for public release. The most controversial of these so far is an opinion issued on October 3, 2011 holding one of the programs to be a violation of the Constitution with sharp criticism by the author of the opinion, Judge John D. Bates. The American Civil Liberties Union has a website that lists, describes, and provides links to documents that have been released to date.
   Read the Memorandum and Order.
   Read the order of September 17 authorizing release of the August opinions.
   Read the October 2011 opinion.
   Access the ACLU FISA Court Documents Page for Released Opinions by Topic.
   Access the August 21 DNI Press Release.
   Access the FISA Court Public Filings Website.

UN Releases Syria Chemical Weapons Inspectors' Report
September 17, 2013. United Nations Secretary General Ban Ki-moon has released the report of the chemical weapons inspection team sent to Syria to assess whether such weapons had been used in recent attacks. As the UN press release on the report explained, "The team, led by Swedish scientist Dr. Åke Sellström, also concludes in particular that the environmental, chemical and medical samples collected provide “clear and convincing evidence that surface-to-air rockets containing the nerve agent Sarin were used in Ein Tarma, Moadamiyah, and Zamalka, in the Ghouta area of Damascus.” The report does not attribute responsibility for the attach.
Read the Inspectors' Report.
Read the UN press release.

D.C. Circuit Hears Argument on FCC Authority to Regulate Broadband Internet
September 9, 2013. The U.S. Circuit Court of Appeals for the D.C. Circuit is today hearing oral argument in Verizon v. FCC, No. 11-1355, which presents a challenge to the FCC authority to regulate broadband Internet providers and particularly challenges the commission's efforts to ensure what is called net neutrality. The net neutrality policy aims to prevent Internet Service Providers from providing different download speeds and processing for different types of materials or content providers. In re Preserving the Open Internet; Broadband Industry Practices, Report and Order, Docket Nos. 09-191, 07-52, 25 F.C.C.R. 17905 (rel. Dec. 23, 2010), 76 Fed. Reg. 59192 (Sept. 23, 2011). Verizon states its primary challenge to the Commission as follows: "This appeal challenges the FCC’s second attempt to conjure a role for itself with respect to regulation of the Internet—in particular, broadband Internet access service." Verizon Brief, at 32. They rely particularly on the 2010 opinion of the D.C. Circuit in Comcast Corp. v. FCC, 600 F.3d 642 (2010).
   Access The Verizon/MetroPCS Brief.
   Access the Metro PCS Brief.
   Access the FCC Brief.
   Access the FCC Surreply Brief.
   The the D.C. Circuit ruling in Comcast v. F.C.C. 600 F.3d 642 (2010).
   Access FCC's Open Internet final rule published September 23, 2011.
   Access the FCC's webpage on the case with amicus and other briefs.

Senate Foreign Affairs Committee Approves Resolution Authorizing Military Force in Syria
September 5, 2013. The Senate Foreign Affairs Committee has approved a joint resolution on the "Authorization for the Use of Military Force Against the Government of Syria to Respond to Use of Chemical Weapons." That resolution now moves forward for debate in the full Senate.
Read the Joint Resolution.
Access the Senate Foreign Relations Committee Website.

U.S. Presents Assessment of Syria Chemical Weapons Attack
August 30, 2013. Secretary of State John Kerry has presented a speech in which he laid out the case for taking action against the government of Syria in response to the chemical weapons attacks on Damascus suburbs.
   Read the White Released the "Government Assessment of the Syrian Government’s Use of Chemical Weapons on August 21, 2013."
   Read the document released by the administration "Syria: Damascus Areas of Influence and Areas Reportedly Affected by 21 August Chemical Attack."
   Read the full text of Secretary Kerry's speech on Syria.

U.S. District Court Allows Due Process Challenge to No Fly List Action
August 30, 2013. A U.S. district court has issued a partial summary judgment in a case brought by the ACLU against the no fly list. In that opinion and order Judge Anna J. Brown found that: "Accordingly, the Court concludes on this record that Plaintiffs have a constitutionally-protected liberty interest in traveling internationally by air, which is affected by being placed on the No Fly List." Latiff v. Holder, No. 3:10–CV-00750-BR, Slip opinion. at pp. 25-26. At this stage, Judge Brown ruled that the record was not sufficiently developed for her to reach the second and third parts of the due process test laid in Mathews v. Eldridge, 424 U.S. 319, 333 (1979), and denied summary action at this point on the merits.
   Read the Opinion and Order.
   Read the Motion for Partial Summary Relief as to the No Fly List.
   Read the ACLU press release.

U.S. Department of Justice Issues Policy on Enforcement of Federal Marijuana Laws
August 29, 2013. The U.S. Department of Justice has issued a memorandum on marijuana enforcement that came about as result of a reconsideration of federal priorities in light of actions in two states to legalize some marijuana sales, including the state of Washington. The DOJ has announced that it has identified 8 priority areas for federal enforcement. For more information and the DOJ memorandum on federal enforcement, see the Washington page of this website.

Federal Government Releases Foreign Intelligence Surveillance Court Opinions
August 22, 2013. The Director National Intelligence at the request of the president has released a number of opinions issued by the Foreign Intelligence Surveillance Court that have been redacted and cleared for public release. The most controversial of these so far is an opinion issued on October 3, 2011 holding one of the programs to be a violation of the Constitution with sharp criticism by the author of the opinion, Judge John D. Bates.
   Read the October 2011 opinion.
   Access the ACLU FISA Court Documents Page for Released Opinions by Topic.
   Access the DNI Press Release and .
   Read the FISA Court Public Filings.

Justice Department Sues Texas in Voting Rights Act Challenge to State Voter ID Law and Redistricting
August 22, 2013. (Updated August 23, 2013) The U.S. Justice Department has announced that" "The Department of Justice . . . will file a new lawsuit against the State of Texas, the Texas Secretary of State, and the Director of the Texas Department of Public Safety over the State’s strict voter photo identification law (SB 14). The United States’ complaint seeks a declaration that SB 14 violates Section 2 of the Voting Rights Act, as well as the voting guarantees of the Fourteenth and Fifteenth Amendments to the United States Constitution. Separately, the Department is filing a motion to intervene as a party and a complaint in intervention against the State of Texas and the Texas Secretary of State in the ongoing case of Perez v. Perry (W.D. Tex.), which concerns the state’s redistricting laws." For more information and the complaint and motion in intervention, go to the Civil Rights page of this website.

Justice Department and State Attorneys General File Suit to Block US Airways and American Airlines Merger
August 13, 2013. The Department of Justice has announced that the U.S. government along with Attorneys General of several states have filed suit in the US. District Court for the District of Columbia to block the proposed merger of American Airlines with US Airways Group.
Read the complaint in U.S. v. US Airways Group.
Read the DOJ Press Statement on the suit.

Attorney General Releases "Smart on Crime" Report and Policy Agenda
August 12, 2013. Attorney General Eric Holder, speaking to the convention of the American Bar Association in San Francisco today, announced the results of the study phase of his "Smart on Crime" initiative with an agenda aimed at refocusing enforcement and punishments efforts at the most severe crime areas and calling for U.S. Attorneys around the nation to generate local policies on how they will charge and prosecute nonviolent lower level criminal offenses in an attempt to avoid excessive incarcertation and reduce costs that will allow redeployment of resources to more serious and violent crime problems. This activity follows on the Smart on Crime initiative that Holder first announced in his 2009 speech to the ABA convention.
   Read the Smart on Crime report.
   Read the Attorney General's ABA speech
   Read the Attorney General's 2009 ABA speech.

Federal District Court Finds NYC Stop & Frisk Policy in Violation of Fourth and Fourteenth Amendments
August 12, 2013. Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York has found New York City's stop and frisk policy in violation of both the Fourth and Fourteenth Amendments and has issued orders to ensure that the policy is not administered in an unconstitutional manner. For more information and the liability and remedy opinions, see the Civil Rights page of this website.

FDA Issues Long Awaited Gluten Free Rule
August 6,2013. The Food and Drug Administration has issued a rule defining gluten free products. This rulemaking began in 2004 with the passage of P.L. 108-282, the Food Allergen Labeling and Consumer Protection Act of 2004.
   Read the final rule.
   Access the FDA Q&A site on the new rule.
   Read FDA Press Release.

Supreme Court Finds Wetlands Mitigation Expenses a Taking Without Just Compensation
June 28, 2013. In a 5-4 opinion by Justice Alito, the U.S. Supreme Court reversed a Florida Supreme Court ruling in No. 11-1447, Koontz v. St. Johns River Water Management District, finding a taking of Koontz property because of wetlands mitigation costs. The U.S. Supreme Court concluded that the fact that he was being asked to pay money to deal with the impacts on wetlands in the area did not change the fact that this was a taking. The four dissenters found this a dramatic extension of regulatory takings concept and one that "turns a broad array of local land-use regulations into federal constitutional questions." For more information, including the opinions, see the Local Government page of this website.

Supreme Court Strikes Defense of Marriage Act Provision
June 26, 2013. In a 5-4 opinion by Justice Kennedy in U.S. v. Windsor, the U.S. Supreme Court has ruled that the Defense of Marriage Act provision refusing federal benefits to couples married in states that recognize gay marriage violates equal protection of the law under the Fifth Amendment.
Read the opinion.

Chief Justice writes for Supreme Court Finding No Standing to Proceed with Prop 8 Assessment
June 26, 2013. Chief Justice Roberts wrote for the majority in Hollingsworth v. Perry, concluding that the parties that brought the case to the Supreme Court lacked standing to do so and thus the Court would not decide the merits of the case and that the Ninth Circuit should not have done so. It vacated and remanded the case. That leaves the district court ruling, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (NDCA 2010), which struck down the California Proposition 8 ban on gay marriage controlling.
Read the Supreme Court opinion.
Read the 2010 Opinion of the District Court for the Northern District of California in Perry v. Schwarzenegger (Exhibit A in the Court of Appeals Docket).

Supreme Court Strikes Coverage Provision of the Voting Rights Act
June 25, 2013. In a 5-4 ruling by Chief Justice Roberts the Supreme Court has declared unconstitutional Section 4(b) of the Voting Rights Act of 1965 which sets out the coverage of the requirements for preclearance of changes in voting procedures in covered states. While the Court did not strike down Section 5 which lays out the preclearance requirements, it recognized that: "The provisions of §5 apply only to those jurisdictions singled out by §4." Shelby County, Alabama v. Holder, No. 12-96, Slip op. at Justice Ginsburg, writing for the 4 dissenters underscored that point. "The Court stops any application of §5 by holding that §4(b)'s coverage formula is unconstitutional." Dissent, Slip op. at 30.
Read the opinion.

Supreme Court Rejects Effort to Overturn the Grutter Affirmative Action Ruling But Calls for an Extremely Demanding Interpretation of the Standard
June 24, 2013. Writing for the Court in Fisher v. University of Texas, Justice Kennedy wrote: "The Court concludes that the Court of Appeals did not hold the Universityto the demanding burden of strict scrutiny articulatedin Grutter and Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 305 (1978) (opinion of Powell, J.). Because the Court of Appeals did not apply the correct standard of strict scrutiny, its decision affirming the District Court's grant of summary judgment to the University was incorrect.That decision is vacated, and the case is remanded for further proceedings." Slip op. at 2. The Grutter case required a compelling state interest and narrowly tailored means to sustain a program. In this case Justice Kennedy added the following interpretation to the meaning of narrowly tailored means: "The reviewing court must be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. . . . If "'a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,'" Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578-579 (1975)), then the university may not consider race. . . . [S]trict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice." Id. at 11. The language from the Court's opinion in Grutter written by Justice O'Connor was different in language, tone, and direction from that used by Kennedy. The Grutter opinion said: "Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups. . . . Narrow tailoring does, however, require serious, good faith consideration of workable race-neutral alternatives that will achieve the diversity the university seeks." Grutter v. Bollinger, 539 U.S. 306, 339 (2003).
Only Justice Ginsburg dissented and Justice Kagan did not take part in the decision of the case.
Read the opinion.

Supreme Court Defines "Supervisor" Under Title VII in Harrassment Case
June 24, 2013. Justice Alito has written for a 5-4 majority dealing with the question of just who is a supervisor for harassment claims. As he explained the issue: "In this case, we decide a question left open in Burlington Industries, Inc. v. Ellerth, 524 U. S. 742 (1998), and Faragher v. Boca Raton, 524 U. S. 775 (1998), namely, whoqualifies as a 'supervisor' in a case in which an employee asserts a Title VII claim for workplace harassment?" Vance v. Ball State, No. 11-556, Slip op. at 1. The majority answered that question as follows: "We hold that an employee is a 'supervisor' for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim." Id. at 30.
Justice Ginsburg, writing for the four dissenters,challenged Alito's definition on several grounds, including failure to grant the appropriate deference to the Equal Employment Opportunity Commission's definition. She wrote: "The Court today strikes from the supervisory categoryemployees who control the day-to-day schedules and assignments of others, confining the category to those formally empowered to take tangible employment actions. The limitation the Court decrees diminishes the force of Faragher and Ellerth, ignores the conditions under whichmembers of the work force labor, and disserves the objective of Title VII to prevent discrimination from infectingthe Nation's workplaces. I would follow the EEOC's Guidance and hold that the authority to direct an employee's daily activities establishes supervisory status under Title VII." Ginsburg Dissent, slip op. at 1-2.
Read the opinions.

Supreme Court Strikes Down Federal Funding Requirement
June 20, 2013. Chief Justice Roberts has issued an opinion for the Supreme Court in Agency for International Development v. Alliance for Open Society International striking down a denial of federal funds to an organization that would not agree to funding terms on grounds that the requirement violates the First Amendment.
Read the opinion.

Supreme Court Rejects Patent Claim for Human Genes as Naturally Occurring Segment of DNA
June 13, 2013. The Supreme Court has rendered its decision in Association for Molecular Pathology v. Myriad Genetics. Justice Thomas, writing for the Court, explains that: This case involves claims from three of them and requires us to resolve whether a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible under 35 U. S. C. §101 by virtue of its isolation from the rest of the human genome. We also address the patent eligibility of synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found ina segment of natural DNA but omits portions within the DNA segment that do not code for proteins. For the reasons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligiblemerely because it has been isolated, but that cDNA ispatent eligible because it is not naturally occurring." Id. at 1.
Read the opinion.

ACLU Goes Back to Court in a New Challenge to the Now Public NSA Metadata Gathering Program
June 11, 2013. After having litigation dismissed in February by the U.S. Supreme Court because they could not provide that they had been the subject of government surveillance, the American Civil Liberties Union has once more filed suit seeking an injunction against the recently disclosd NSA metadata gathering program revealed in press reports and through disclosure of a FISA Court order. The suit claims that the National Security Director and other officials exceeded their authority under the Patriot Act as amended and that the program violates both the First and Fourth Amendments to the Constitution. Since they are customers of one of the companies identified in the recently released documents, they contend that their suit cannot be dismissed on standing grounds this time.
Read the complaint in ACLU v. Clapper.
Read the ACLU press release on the suit.

Supreme Court Reaffirms Broad Application of Chevron Deference
May 20, 2013. Writing for a five member majority, Justice Scalia rejected the idea that courts should apply something less than the broad deference afforded to an agency's interpretation of the statutes it administers under the Chevron doctrine when there is a question about the agency's jurisdiction at issue. There is he said no difference between jurisdictional questions and any other questions when it comes to the deference that courts should show to agency interpretations of the statutes that cover their work. Justice Breyer concurred in part and concurred in the judgement. Chief Justice Roberts wrote for the three dissenters arguing that the Court should not use the Chevron deference standard unless and until it is clearly established that the agency had jurisdiction in the matter it was addressing.
Read the opinions.

Inspector General Releases Report on IRS Targeting of Political Groups
May 15, 2013. The Treasury Department Inspector General for Tax Administration has release the report entitled "Inappropriate Criteria Were Used to Identify Tax-Exempt Applications for Review" which is the basis for investigations now being conducted by the Justice Department and a number of congressional committees based on the findings that some political groups seeking 501(c)(4) statust were inappropriately targeted for in depth investigation by the IRS.
Access the IG Report.
Access the Treasury Department Inspector General for Tax Administration website.

California Files Court Ordered Prison Population Reduction Plan But Vows to Fight The Court Order
May 4, 2013. The State of California on May 2 filed the required prison population reduction plan mandated by an April 11, 2013 opinion and order of a three judge panel for the U.S. District Court for the Eastern District of California, but in so doing Governor Brown complained that it was a bad plan with pernicious consequences, that the state had already brought about a constitutional condition in its prisons, and that the state would appeal in order to terminate the remedial order and jurisdiction of the court. This latest round of argument comes after the state had taken steps following a 2012 ruling by the U.S. Supreme Court that upheld the lower court finding that the overcrowding of the state's prison resulted in unconstitutional conditions of confinement and particularly resulted in a lack of adequate medical attention. The state argued to the three judge panel before the April ruling that its actions had reduced the prison population and there were no longer unconstitutional conditions. The court rejected that claim and warned the governor that: "If defendants do not take all steps necessary to comply with this Court's June 30, 2011 Order, as amended by the Court's January 29, 2013 Order, including complying with the order filed in conjunction with this opinion, they will without further delay be subject to findings of contempt, individually and collectively. We make this observation reluctantly, but with determination that defendants will not be allowed to continue to vilate the requirements of the Constitution of the United States." April 11 Opinion and Order, at 70-71.
   Read the April 11 Opinion and Order of the Three Judge Federal District Court in Coleman v. Broan.
   Read the State's Plan in Response to the April 11 order.
   Read the 2012 Supreme Court ruling upholding the Lower Court Remedial Order.
   Access the California Department of Corrections & Rehabilitation Remedy Website.

White House Announces FY2014 Budget Proposal
April 10, 2013. The White House has released the President's budget request for FY 2014. Along with the full budget request and the budget overview document, the White House has issued the "Cuts, Consolidations, and Savings for FY 2014" document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   The so-called budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency will be provided below as soon as they are posted.
   This year's budget annoucement and numbers must be read against the backdrop of the deficit reduction and budget control agreements announced over a year ago, the January 2013 actions on the fiscal cliff, and the ongoing debates over the sequester and various negotiations on taxes and spending proposals. Postings on all of those developments have been provided over the course of the past several months on this page.
   Access the President's message to accompany the FY2014 Budget.
   Download the FY 2014 Budget proposal as a single .pdf document.
   Download the FY 2014 Budget Website with Individual Agency Budget proposals.
   Access the Cuts, Consolidations, and Savings for FY 2014
   Access the Web Site for the FY2014 Budget Appendix -- All detailed information about agencies and funds.
   Access the Analytic Perspectives Document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2014 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2014 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2014 Budget-in-Brief. Not Yet Available
   Access USASpending.gov

Day Two of Supreme Court Gay Marriage Oral Argument of Defense of Marriage Act
March 27, 2013. The second day of oral arguments on gay marriage issues took place today in No. 12-307 United States v. Windsor, this time with respect to whether the Defense of Marriage Act discriminates in violation of the Fifth Amendment and jurisdictional questions. For more information, the briefs, and the oral argument audio and transcript, go to the Civil Rights page of this website.

Supreme Court Hears Argument in Gay Marriage Cases
March 26, 2013. The Supreme Court today heard oral argument in No. 12-144 Hollingsworth v. Perry, the California Proposition 8 case on equal protection grounds. For more information, the briefs, and the oral argument audio and transcript, go to the Civil Rights page of this website.

Senate Passes Budget Resolution
March 24, 2013. In a marathon session, the U.S. Senate has passed a budget resolution S.Con.Res.8 by a vote of 50-49. The budget resolution provides for reconciliation of the FY 13 spending, targets for FY 14 appropriations, and projected spending levels for 2015 through 2023. Negotiations now begin with the House.
Read S. Con. Res. 8.

White House Releases Administration Strategy on Mitigating the Theft of U.S. Trade Secrets
February 21, 2013. In a week that has seen the President issue an executive order on cybersecurity and release of a major report alleging massive hacking of government and private sector organizations, the White House yesterday released its "Administration Strategy on Mitigating the Theft of U.S. Trade Secrets." The strategy document emphasizes several "strtegic action items," including: (1) Focua Diplomatic Efforts to Protect Trade Secrets Overseas; (2) Promote Voluntary Best Practices by Private Industry to Protect Trade Secrets; (3) Enhance Domestic Law Enforcement Operations; (4) Improve Domestic Legislation; and (5) Public Awareness and Stakeholder Outreach" (Id. at i).
Read the Strategy Document.
White House release of the Strategy .

President Moves to Enhance Cybersecurity Defenses in the Face of Increasing Evidence of Attacks
February 19, 2013. President Obama has issued Executive Order 13636 entitled "Improving Critical Infrastructure Cybersecurity" in response to increasing evidence that the U.S. government and private firms, including those operating critical infrastructure such as utilities, are facing ongoing and lengthy cyberattacks not only from individuals and criminal organizations but also from foreign governments. The order directs the Secretary of the Department of Homeland Security to: "(c) . . . provide classified cyber threat and technical information from the Government to eligible critical infrastructure companies or commercial service providers that offer security services to critical infrastructure. (d) . . . expedite the processing of security clearances to appropriate personnel employed by critical infrastructure owners and operators, prioritizing the critical infrastructure identified in section 9 of this order [and] (e) . . . expand the use of programs that bring private sector subject-matter experts into Federal service on a temporary basis . . . [to] provide advice regarding the content, structure, and types of information most useful to critical infrastructure owners and operators in reducing and mitigating cyber risks" (Id. at at Section 4).
   The president also issued a Presidential Decision Directive PPD 21 entitled Critical Infrastructure Security and Resilience. "Three strategic imperatives shall drive the Federal approach to strengthen critical infrastructure security and resilience: 1) Refine and clarify functional relationships across the Federal Government to advance the national unity of effort to strengthen critical infrastructure security and resilience; 2) Enable effective information exchange by identifying baseline data and systems requirements for the Federal Government; and 3) Implement an integration and analysis function to inform planning and operations decisions regarding critical infrastructure" (Id. at 2).
   The order was issued a week before the release of a report entitled APT1:Exposing One of China's Cyber Espionage Units issued today by the security firm Mandiant Corporation that suggests that China's army is heavily implicated in attacks on government, critical infrastructure organizations, and private firms. (APT stands for Advanced Persistent Threat) and APT1 is the name given to the particular that was tracked in the report.) (Executive Summary at 2) The report goes further to say that: "APT1 is believed to be the 2nd Bureau of the People's Liberation Army (PLA) General Staff Department's (APT1 is believed to be the 2nd Bureau of the People's Liberation Army (PLA) General Staff Department's (GSD) 3rd Department, which is most commonly known by its Military Unit Cover Designator (MUCD) as Unit 61398" (Mandiant at 3). The Mandiant report quotes the response of the government of China which calls the allegations against the army of China "unprofessional and groundless" (China Defense Ministry, January 2013, quoted in Mandiant, at 1). In response to the likely criticisms of the company's report, Mandiant also published an Appendix to the report containing a Digital Appendix and Indicators with more than 3,000 IP addresses, encryption certificates, and malware hashes to support its claims. Both the report and the appendix documents are posted below. (NOTE: The appendix is actually a set of files that comes as a .zip file which provides the digital tracking information and is large and extensive.)
   The New York Times published a report By David E. Danger, David Barboza, and Nicole Perlroth entitled "Chinese Army Unit Is Seen as Tied to Hacking Against U.S." which reports Mandiant's and others' allegations against the army unit identified by Mandiant and other U.S. officials.
   Read the Executive Order.
   Access PPD 21. (Note: If the file does not open clearly, one can save the file first and then open it with no difficulty.
   Read the Mandiant Report.
   Access the Digital Appendix and Indicators.

GAO Adds Climate Change Impacts to the High Risk Series Report and Testimony
February 14, 2013. Comptroller General Gene L. Dodaro who heads the Government Accountability Office appeared today with his senior staff befor the House Committee on Oversight and Government Reform to provide the GAO's current assessment of the High Risk list of programs and issues. The GAO launched the High Risk Series in 1990 and has reported at the beginning of each new congressional session. This year's list adds "Limiting the Federal Government's Fiscal Exposure by Better Managing Climate Change Risks" and "Mitigating Gaps in Weather Satellite Data" to the list. In adding climate change, GAO said: "Climate change poses significant financial risks to the federal government, which owns extensive infrastructure, such as defense installations; insures property through the National Flood Insurance Program; and provides emergency aid in response to natural disasters. GAO added this area because the federal government is not well positioned to address the fiscal exposure presented by climate change and needs a government-wide strategic approach with strong leadership to manage related risks." Press release. The GAO has removed from this list this year the Management of Interagency Contracting and Internal Revenue Service Business Systems Modernization.
   Read the GAO High Risk Series 2013 Update Testimony.
   Access the GAO Testimony "Highlights" page.
   Access the GAO Press Release on the report.
   Access the full High Risk Series.

Federal Trade Commission Calls for Privacy Protections in Mobile Applications
February 2, 2013. The FTC has settled a case with Path Social Networking App and used the occasion to announce the results of its investigations into security problems and information sharing related to the use of Mobile apps, starting with its staff study entited Mobile Privacy Disclosures: Building Trust Through Transparency. The commission has also released a series of publications for consumers on security in Apps and a number of publications for businesses including App developers on privacy and security.
    In announcing the Path settlement, the FTC said: "The operator of the Path social networking app has agreed to settle Federal Trade Commission charges that it deceived users by collecting personal information from their mobile device address books without their knowledge and consent. The settlement requires Path, Inc. to establish a comprehensive privacy program and to obtain independent privacy assessments every other year for the next 20 years. The company also will pay $800,000 to settle charges that it illegally collected personal information from children without their parents' consent."
   Read the FTC Report.
   Read the Press Release.
   Read Remarks of the FTC Chair.
   Read FTC "Understanding Mobile Apps."
   Read FTC "How to Keep Your Personal Information Secure."
   Access FTC Video "Sharing Information: A Day in Your Life."
   Read FTC for Business "Mobile App Developers: Start With Security."
   Read FTC for Businesses "Privacy and Security."
   Read the FTC Press Release on the Path Settlement.
   Read the FTC Path Complaint as Filed in the U.S. District Court for the Northern District of California.
   Read Consent Decree and Order in the Path case.

GAO Issues Report Finding Problems with Agency Rulemaking Participation Opportunities and Action
January 29, 2013. The Government Accountability Office has issued a report finding that significant numbers of rules have been issues by various agencies without effective notice and participation processes and in many cases by the use of devices to avoid participative processes. In beginning the summary of its report, the GAO wrote: "Agencies did not publish a notice of proposed rulemaking (NPRM), enabling the public to comment on a proposed rule, for about 35 percent of major rules and about 44 percent of nonmajor rules published during 2003 through 2010. Agencies frequently cited the "good cause" exception and other statutory exceptions for publishing final rules without an NPRM. Agencies in GAO's sample used the "good cause" exception for 77 percent of major rules and 61 percent of nonmajor rules published without an NPRM."
Read the report summary.
Read the full report.

Fourth Circuit Rejects Call to Unseal Orders Calling for Twitter Account Information
January 26, 2013. A panel of the U.S. Circuit Court of Appeals has upheld a magistrate's refusal to unseal orders issued to obtain twitter account records of persons whose account data was sought in the government's Wili-leaks investigation. The Fourth Circuit rejected arguments raised under the First Amendment and the Electronic Communications Privacy Act of 1986 which is more commonly called the Stored Communications Act.
Read the opinion.

D.C. Circuit Strikes Obama "Recess" Appointments to the NLRB
January 25, 2013. A panel of the U.S. Circuit Court of Appeals has ruled that commissioners appointed in recess appointments by President Obama were not valid appointments and therefore reversed a ruling by the National Labor Relations Board again the Noel Canning company.
Read the opinion.

Senate Changes Fillibuster Rules
January 25, 2013. The Senate passed rules changed following negotiations between the majority and minority leaders that modify the fillibuster and consideration of at least a minimum number of amendments during floor debate. These steps were far more limited than the proposals that had been initially offered. Senate Resolution 15 A resolution to improve procedures for the consideration of legislation and nominations in the Senate passed by a vote of 78-16 while Senate Resolution 16 A resolution amending the Standing Rules of the Senate. passed by a vote of 86-9 (The text of these two resolutions had not yet been published by the Government Printing Office but will be posted here as soon as it is available.)

Obama Administration Announces Biden Report and List of Planned Actions on Gun Crime
January 16, 2013. President Obama and Vice President Biden have presented the report of their consideration of actions needed to address gun-related violence in the U.S. The president also began signing executive actions for a number of those steps. The actions published this morning are provided here along with a list of direct actions planned. Other proposed policy steps will require congressional action and those are addressed in the "Now is the Time" report.
   Read the Remarks by the President and the Vice President on Gun Violence.
   Video of the Remarks by the President and the Vice President on Gun Violence.
   Read the Administration's Report "Now Is the Time."
   Read Presidential Memorandum -- Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System.
   Read Presidential Memorandum -- Engaging in Public Health Research on the Causes and Prevention of Gun Violence.
   Read Presidential Memorandum -- Tracing of Firearms in Connection with Criminal Investigations.
   Read White House list of Planned Presidential Direct Actions.
   Access the White House "Now is the Time" website.

Consumer Financial Protection Bureau Issues New Mortgage Rules
January 10, 2013. The Consumer Financial Protection Bureau today issues its "Ability-to-Pay" rule which sets a variety of constraints on lenders to ensure against mortgages are issued to those with the ability-to-pay off the mortgages. It also seeks to prevent mortgages that "have risky loan features, such as terms that exceed 30 years, interest-only payments, or negative-amortization payments where the principal amount increases." In general, the rule requires that "Qualified Mortgages generally will be provided to people who have debt-to-income ratios less than or equal to 43 percent." CFPB Press Release.
   The CFPB also announced that it is issuing proposed amendments to the Ability-to-Pay rule to begin a notice and comment period today. As the CFPB explained: "These amendments would, among other things, exempt certain nonprofit creditors that work with low- and moderate-income consumers. The proposed amendments would also make exceptions for certain homeownership stabilization programs - such as those that offer loans made in connection with the Making Home Affordable program - which help consumers avoid foreclosure. The proposed amendments would also provide Qualified Mortgage status for certain loans made and held in portfolio by small creditors, such as community banks and credit unions." Id.
    The Bureau announced that intends to finalize the proposed amendments this spring and that both the Ability-to-Pay rule and the amendments are scheduled to take effect January 2014.
   Read the CFPB Press Release on the New Rules.
   Read the CFPB Fact Sheet on the New Rules.
   Read CFPB Summary of the Ability-to-Repay and Qualified Mortgage Rule.
   The Full Rule is Scheduled to Be Published Here on January 10 along with the Proposed Amendments to its Ability-to-Repay rule. It was not yet online at the time of this posting.

FDA Proposes New Food Safety Rules
January 5, 2013. The Food and Drug Administration has announced two sets of proposed rules on food safety for which both food producers and consumers have been waiting since the enactment in 2011 of P.L. 111-353 the FDA Food Safety Modernization Act. One focuses on Growing, Harvesting, Packing, and Holding of Produce while the other addresses Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls. The FDA announcement indicates that the proposed rules will be available for public comment for 120 days.
   Read the FDA Press Release on the Proposed Rules.
   Read the Proposed "Current Good Manufacturing Practice and Hazard Analysis and Risk-Based Preventive Controls for Human Food" Rule as it is to appear in the Federal Register.
   Read Read the Proposed "Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption" Rule as it is to appear in the Federal Register.
   Access the FDA website on the Food Safety Modernization Act (FSMA) enacted in 2011.
   Read P.L. 111-353 the FDA Food Safety Modernization Act.

113th Congress Begins as House Considers Sandy Relief Funding
January 3, 2013. While legislation adopted at the end of the last Congress had some provisions dealing with the impact of Hurricane Sandy, the House delayed further action on funding to address major proposals for Sandy relief by not voting legislation that had come from the Senate. The unfinished business of providing appropriations became a first order of business in the House as the 113th Congress got underway. H.R. 41 would increase the borrowing authority of FEMA for the National Flood Control Program by $9.7 billion which is needed to keep flood insurance payments coming to those affected by Sandy. Additional funding legislation is scheduled to be considered in mid-January with a total of some $60 billion anticipated. In a bi-partisan vote, the House agreed to suspend the rules and pass the bill 354-67. The majority consisted of 161 Republicans and 193 Democrats with 67 Republicans voting against it. The Senate approved the measure unanimously with no roll call vote and the matter now goes to the president.
Read H.R. 41.

Congress Passes Legislation to Address Fiscal Cliff Deadline
January 3, 2013. Congress passed and sent to the president H.R. 8, the American Tax Relief Act of 2012, also known as the "Fiscal Cliff bill" which President Obama signed on January today.
Read H.R. 8 as passed by the House and Senate.

End of 112th Congress Actions
January 3, 2013. While the Fiscal Cliff bill has dominated news reports, other important legislation moved through the Congress in the closing days of the 112th Congress including the FISA FISA Amendments Act Reauthorization Act of 2012 and the National Defense Authorization Act for Fiscal Year 2013. Of course, the Defense Authorization Acts are large bills that often contain a wide variety of policy actions apart from those related to authorization of spending. Also, the Full-Year Continuing Appropriations Act, 2011, H.R. 1 bill passed and, as the Congressional Research Service explained, "is the Senate legislative vehicle for Superstorm Sandy supplemental appropriations."
   Read H.R. 5949, the FISA FISA Amendments Act Reauthorization Act of 2012, as passed by the House and Senate.
   Read H.R. 4310, National Defense Authorization Act for Fiscal Year 2013, as passed by the House and Senate.
   Read H.R. 1, the Full-Year Continuing Appropriations Act, 2011.

California Joins States Adopting Protections for Social Networking Privacy
January 3, 2013. New California legislation designed to protect the privacy of employees and students with respect to social networking went into effect January 1. The two bills were AB1844 Employer Use of Social Media and SB1349 Social Media Privacy: Secondary Education.
   Maryland was the first state to adopt such legislation as SB433 enacted in May 2012. Shortly thereafter, Deleware passed HB309 known as the Higher Education Privacy Act prohibiting universities for seeking social networking information from applicants or student. Illinois also passed legislation on this subject last year as HB3782.
   Access California's AB1844.
   Access California's SB 1349.
   Access Maryland's SB 433.
   Access Deleware's HB 309.
   Access Illinois's HB 3782.

U.S. Supreme Court Agrees to Hear Two Gay Marriage Cases
December 7, 2012. At its December 7 conference, the U.S. Supreme Court agreed to review cases presenting gay marriage issues. One of these is No. 12-307, United States v. Windsor which is a Defense of Marriage Act case from the Second Circuit. The other case is No.12-144, Hollingsworth v. Perry, which is a California case dealing with proposition 8. For more information on these cases and lower court opinions, see the Civil Rights page of this website.

Supreme Court Allows Possibility of Recovery for Limited Time Intentional Flooding of Timber Lands by U.S. Government
December 7, 2012. A unanimous U.S. Supreme Court, in an opinion by Justice Ginsburg, has indicated that intentional temporary flooding of lands by the federal government is not immune under all circumstances from claims for taking of property without just compensation brought pursuant to the Fifth Amendment. The Arkansas Game and Fish Commission v. United States case arose from exceptions to its regular water management policies granted by the U.S. Army Corps of Engineers at the request of farmers in the 1990s. These deviations from the standard policy led to flooding of some timber lands along the Black River in Arkansas managed by the Commission. As Justice Ginsburg explained it: "Periodically from 1993 until 2000, the U. S. Army Corps of Engineers authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner. . . . Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission's property. . . . We . . . conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability.'" Slip op. at 1.
The Court did not decide whether there had been a taking in the Arkansas case. It remanded the case for consideration of the specifics in light of its opinion. "We rule today, simply and only, that government induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property . . . time is indeed a factor in determining the existence vel non of a compensable taking. . . . Also relevant . . . is the degree to which the invasion is intended or is the foreseeable result of authorized government action. . . . So, too, are the character of the land at issue and the owner's 'reasonable investment-backed expectations' regarding the land's use. . . . For example, the Management Area lies in a floodplain below a dam, and had experienced flooding in the past. But the trial court found the Area had not been exposed to flooding comparable to the 1990's accumulations in any other timespan either prior to or after the construction of the Dam. . . . The Government, however, challenged several of the trial court's factfindings, including those relating to causation, foreseeability, substantiality, and the amount of damages. . . . The judgment of the Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion." Id. at 14-15.
Read the opinion.

Federal Trade Commission Announces December 6 Workshop on Comprehensive Collection of Web Data as New Facebook Privacy Policy Prompts Regulatory Concern
November 24, 2012. The Federal Trade Commission has announced an upcoming December 6 workshop that will also be available as a webcast, just as Facebook has announced proposed changes to some of its policies for voting on policies and information sharing policies with company affiliates which has prompted concern in media reports and as European Union regulators are examining online privacy practices by Facebook. These actions come after a year in which the FTC took action in cases concerning online privacy with respect to both Google and Facebook. Both firms reached consent agreements with the Commission, Google in 2011 and the Facebook agreement that was formerly entered as a FTC decision and order in August of 2012. The information on both FTC cases is provided below as is information on December 6 Workshop.
   A Washington Post report yesterday indicated that the Data Protection Commissioner for Ireland, which is the home country for Facebook in Europe, has notified the company of problems related to the privacy policy announced by Facebook earlier this week concerning expanded data sharing.
   Access Facebooks "Proposed Updates to our Governing Documents" published by Facebook on November 21, 2012.
   Read the FTC Announcement of the Agenda for December 6, 2012 Workshop Exploring Practices, Privacy Implications of Comprehensive Collection of Web Data.
   Access the FRC website on the Facebook Case "In the Matter of Facebook, Inc., a corporation,"FTC File No. 092 3184.
   Read the August 2012 FTC Consent Agreement with Facebook.
   Read the Dissenting Statement of Commissioner Rosch.
   Read the FTC Press Release on the Facebook Settlement.
   Access the FTC website on the Google case "In the Matter of Google Inc., a corporation," FTC File No. 102 3136.
   Read the October 2011 Consent Agreement in the Google Case.
   Read the FYC Complaint in the Google case.
   Read the FTC announcement on the Google Settlement.
   Access the website of the Ireland's Data Protection Commission.

Sixth Circuit En Banc Ruling Strikes Michigan Ban on University Affirmative Action as U.S. Supreme Court Considers University of Texas Case
November 16, 2012. The U. S. Court of Appeals for the Sixth Circuit sitting en banc has decided to strike down Michigan's Proposition 2 banning affirmative action admissions as a violation of the Equal Protection clause of the Fourteenth Amendment. This ruling comes as the U.S. Supreme Court considers the Fisher v. University of Texas at Austin case now before in which the Court has been asked to narrow or overturn the Grutter v. Bollinger, 539 U.S. 306 (2003), decision that upheld affirmative action admissions at the University of Michigan School of Law and that was central to the campaign to enact the Proposition 2 ban on affirmative action in Michigan. For more information and the en banc ruling issued November 15 as well as the July 1, 2011 panel decision that was affirmed, see the Civil Rights page of this website.

New England Compounding Center Now in Tainted Drug Investigation Had Received Previous FDA Warnings
October 27, 2012. The Food and Drug Administration conducted inspections of the New England Compounding Center currently at the center of a major health problem with fungal meningitis allegedly linked to contaminationed drugs from the firm from September 2004 to January 2005 and issued a warning letter to the firm on a number of problems. These included producing Copies of Commercially Available Drug Products; Developing, Producing and Marking Anesthetic Drug Products; and Repackaging and Selling of Drugs. For more information, the FDA warning letter, and other information, go to the Healthcare, Disability, and Development page of this website.

FDA Releases Inspection Documents on New England Compounding Center in Tainted Drug Investigation
October 27, 2012. The Food and Drug Administration has issued the FDA 483 form on its inspection of the New England Compounding Center whose methylprednisolone acetate was found to be contaminated which has allegedly been responsible for deaths and illnesses in many people injected with the drug. The Massachusetts Board of Pharmacy Registration has also issued a preliminary report of its investigation into the firm and health crisis. For more information, the reports themselves and the FDA and Massachusetts announcements, go to the Healthcare, Disability, and Development page of this website.

Second Circuit Joins Other Courts in Ruling Against the Defense of Marriage Act (DOMA)
October 21, 2012. A panel of the U.S. Circuit Court of Appeals for the Second Circuit has joined other circuits in ruling against the Defense of Marriage Act. The court issued its opinion in Windsor v. United States, 12-2335-cv(L) finding that the DOMA restriction on tax benefits to a surviving spouse because the couple was gay meant that Section 3 of the Defense of Marriage Act violated equal protection. For the opinion and more information on the DOMA cases, see the Civil Rights page of this website.

D.C. Circuit Reverses Conviction of Salim Hamdan
October 16, 2012. In an opinion by Judge Kavanaugh, a panel of the U.S. Court of Appeals for the D.C. circuit has overturned the conviction of Salim Hamdan, the admitted driver of Osama bin Laden, who was convicted of "'material support for terrorism' a war crime specified in the Military Commission Act of 2006." The Court found that Hamdan was prosecuted for a crime, providing material support for terrorism, that had not been a crime before the enactment of the Military Commission Act of 2006. Therefore Hamdan could not be tried or convicted for a crime that, at the time of its alleged commission, was not a crime. If the Congress had attempted to do that, it would have violated the constitutional prohibitions against ex post facto laws. Material support for terrorism was not a crime under U.S. law nor was it a violation of the international laws of war.
Read the opinion in Hamdan v. United States.

The Court Prepares to Begin Work on Its October Term 2012
October 1, 2012. It is the first Monday in October and the Supreme Court begins its October 2012 term today. The Court issued a list of cases granted certiorari or in which probable jurisdiction has been noted and therefore on the docket for this term as of September 25. The Court has also issued its Order List for October 1, 2012. Those orders and other information on the docket as well as the briefs and oral arguments follow.
   Order List for October 1, 2012.
   October Term 2012 Granted and Noted List as of September 25, 2012.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
SCOTUS Blog provides a wide range of information on the Court, its recent rulings, oral arguments, and docket.
   Review the Docket through SCOTUS Blog.
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Argument Transcripts Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ" or SCOTUS Blog.
   Access "OYEZ"
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access SCOTUS Blog

Latest Exoneration of Death Row Inmate Draws Attention to Increased Data on False Convictions
September 29, 2012. A judge in Jefferson Parish, Louisiana, on motions from defense lawyers and the district attorney, has ordered that the conviction and death sentence of Damon Thibodeaux be vacated and that he be freed from death row where he has been since his conviction 15 years ago in 1997. The action came following an intensive investigation of the case by the New York-based Innocense Project, the Capital Post-Conviction Project of Louisiana, the Jefferson Parish district attorney's office, and lawyers from the firm of Fredrikson & Byron. According to the Innocense Project, this marks the 300th person who was later exonerated on the basis of DNA evidence.
   The exoneration of Mr. Thibodeaux follows the release in June of a report by the National Registry of Exonerations based at the University of Michigan and the Center on Wrongful Convictions at Northwestern University School of Law which showed 873 individual exonerations between 1989 and 2012. These were documented cases with official resolution. There were in addition to that another 13 group exonerations involving 1,170 defendants that came about in the wake of several police scandals that reviewed a range of false convictions. The report did not include statistics for those cases.
   Read the Innocence Project Profile and Explanation of the case.
   Visit the Innocense Project website.
   Read the Executive Summary of the Report of the National Registry of Exonerations.
   Read the full Report of the National Registry of Exonerations.
   View the National Registry List of Exonerations by State and County.
   Access the National Registry of Exonerations Website.

Congress.gov Launched in Beta -- First Phase of Project to Replace Thomas
September 23, 2012. The Library of Congress has launched a beta test and development version of Congress.gov which is intended as an upgrade from the current Thomas site. It is slated to be in beta status for some time and therefore the Thomas site remains as the primary source. The announcement on September 19 explained that the current stage is only the first of a series of phases in which material will migrate from the Thomas site onto Congress.gov as the upgrade moves forward with an eventual plane to retire the Thomas site. See the current sites for congressional materials, including Thomas, in the Congressional and General Research Section of this page.
Visit Congress.gov.
Read the Announcement on the Congress.gov project and the pan for ultimately replacing Thomas

German High Court Rules on European Stabilization Fund
September 12, 2012. The German Constitutional Court has announced its ruling, refusing to issue a request for an injunction blocking German participation in the European Stabilization Mechanism (ESM) which is the basis for the various economic rescue plans for troubled European economies. The Court provided a press release summarizing the ruling in English as well as an English language statement of the judgment with key elements of its opinion. In it's release, the Court said: "Today, the Federal Constitutional Court pronounced its judgment regarding several applications for the issue of temporary injunctions. The main objective of the applications is to prohibit the Federal President from signing the statutes passed by the Bundestag and the Bundesrat on 29 June 2012 until the decision in the principal proceedings; by signing the statutes, the Federal President would create the precondition for the ratification of the international agreements -- the Treaty establishing the European Stability Mechanism (ESM Treaty)and the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (known as the Fiscal Compact)-- which are approved therein. The Second Senate of the Federal Constitutional Court refused the applications for the issue of temporary injunctions with the proviso that the ESM Treaty may only ratified if at the same time it is ensured under international law that 1. the limitation of liability set out under Article 8 (5) sentence 1 of the ESM Treaty (TESM)limits the amount of all payment obligations arising to the Federal Republic of Germany from this Treaty to its share in the authorised capital stock of the ESM (EUR 190 024 800 000)and that no provision of this Treaty may be interpreted in a way that establishes higher payment obligations for the Federal Republic of Germany without the agreement of the German representative, 2. the provisions of the ESM Treaty concerning the inviolability of the documents of the ESM (Article 32 (5), Article 34 and Article 35 (1) TESM) and the professional secrecy of all persons working for the ESM (Article 34 TESM) do not stand in the way of the comprehensive information of the Bundestag and of the Bundesrat. The Federal Republic of Germany must express that it does not wish to be bound by the ESM Treaty in its entirety if the reservations made by it should prove to be ineffective."
Read the Federal Constitutional Court's English Extracts of the Ruling.
Read the Court's English language press release on the ESM decision.

GAO Declares HHS Information Memorandum on TANF a Rule for Purposes of the Congressional Review Act
September 5, 2012. On July 12, 2012, the Department of Health and Human Services issued Transmittal No. TANF-ACF-IM-2012-03, and "Information Memorandum" on waivers under the Temporary Assistance to Needy Families program (TANF). Congressional Republicans led by the Senator Orrin Hatch (R, UT) and Dave Camp (R, MI) asked the Governmental Accountability Office to determine whether this information letter constituted a rule and therefore was subject to the Congressional Review Act (CRA). The GAO Chief Counsel has issued an opinion finding that it is a rule for purposes of the CRA whether or it not qualifies as a rule under Section 553 of the Administrative Procedure Act. This is a hotly contested matter since this waiver concept has become an issue in the presidential campaign. It remains to be seen what action Congress may take under CRA or whether others will challenge the HHS information memorandum in court on grounds that it is a rule and therefore is subject to rulemaking procedural requirements.
Read the GAO Chief Counsel opinion B-323772.
Access the HHS TANF Information Memorandum July 12, 2012.

Federal District Court Rejects Airline Efforts to Block 9/11 Litigation
September 5, 2012. Federal District Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York has rejected efforts by the parent companies of American and United Airlines to block litigation. In this piece of a larger set of litigation that continues to flow from the attacks on September 11, 2001, known as In re Sept 11 Litigation, the airlines asked the court to find that World Trade Center Properties, LLC, should not be able to proceed with negligence claims against the airlines because they had already been compensated over $4 billion by insurance companies for the attack just over a year after the company had purchased the lease on the World Trade Center for $2.8 billion. The judge found that whether they had been fully compensated is a matter of fact that must be determined at trial and have moved the case forward for trial.
   The Southern District of New York has a site with information on continuing cases from the 9/11 attacks.
   Read Judge Hellerstein's opinion.
   Access the 9/11 Litigation Site of the U.S. District Court for the Southern District of New York.

CBO Warns of Economic Challenges but Highlights Alternative Scenario
August 23, 2012. The Congressional Budget Office has issued a report warning that if policymakers allow the actions set to take place automatically in January 2013, the economy is likely to turn significantly downward, but the report also indicates an alternative scenario if policymakers act before January. For full information and the report, see the Local Government page of this website.

Court of Appeals Strikes EPA Cross-State Air Pollution Rules
August 21, 2012. A panel of the U.S. Circuit Court of Appeals for the D.C. Circuit has struck down the EPA Cross-State Air Pollution Rules issued in 2011. Judge Kavanaugh wrote for the two to one majority. For details on the case and access to the opinion, see the Sustainable Development page of this website.

Supreme Court Decides Patient Protection and Affordable Care Act Cases
June 28, 2012. The Supreme Court today issued its opinion upholding the challenged provisions of the Patient Protection and Affordable Care Act in National Federation of Independent Business v. Sebelius. Chief Justice Roberts wrote for the Court finding that the taxing power is enough to uphold the minimum coverage provisions but that the commerce clause does not authorize it. The Court upheld the Medicaid provisions as a valid use of the taxing and spending power, but limited the federal government's ability to take back Medicaid funds from existing levels as a penalty for noncompliance with the terms of the expansion. He concluded that the amendments to Medicaid in the Patient Protection and Affordable Care Act amounted to a new program and not just changes to the existing program. Justice Ginsburg wrote for four justices concurring in part, concurring in the judgment, and dissenting in part would up hold the individual mandate on commerce clause grounds and would not place restrictions on the Medicaid extension. She also criticized the Chief Justice because, having explained a basis in congressional taxing power for upholding the statute, he should not have reached further to address the commerce power. Four dissenters, Justices Scalia, Kennedy, Thomas, and Alito issued a joint opinion. They would have have ruled against the government on all issues.
Although the Patient Protection Act survives, if the interpretations provided by Lyle Denniston are correct, this decision is likely to provide the basis for challenges to other federal programs on both commerce clause and taxing and spending powers, particularly those with significant conditions on receipt of federal funds with potential enforcement through removal of federal dollars. While attention is clearly on the specifics of the healthcare law for many observers, these other elements of the case are, in the long run, even more significant.
Access the opinion

Supreme Court Rules in the Arizona v. U.S. Immigration Policy Case.
June 25, 2012. Justice Kennedy wrote the opinion for five members of the Court, finding that three of the four challenged sections of the Arizona SB 1070 immigration statute are preempted by federal law and sent the remaining section, concerning immigration checks, back down to await the interpretation of that part of the statute by the Arizona supreme court if and when that provision is implemented. For more information and the opinion, see the Civil Rights page of this website.

CDC Announces Plan to Expand Coverage of Some Cancers for 9/11 World Trade Center Cleanup Workers
June 12, 2012. Dr. John Howard, Administrator of the World Trade Center Health Program Scientific and Technical Advisory Committee (WTC-STAC) has announced a proposal that will call for coverage of come cancers in workers at the World Trade Center 9/11 site in New York City as related health conditions under Title I of the James Zadroga 9/11 Health and Compensation Act of 2010, P.L. 111-347. The notice of proposed rulemaking is published in the Federal Register for June 13.
Read the Statement Issued by Administrator John Howard.
Access the pre-publication .pdf version of the notice of proposed rulemaking which is scheduled to appear in the Federal Register June 13 to begin a comment period.

Circuit Court Rejects Defense of Marriage Act Ban on Benefits for Married Gay Couples
June 1, 2012. A panel of the U.S. Circuit Court of Appeals, in an opinion by Judge Boudin in Massachusetts v. U.S. Department of Health and Human Services, Nos. 10-2204, has affirmed a lower court ruling that struck down a section 3 of the Defense of Marriage Act ("DOMA"), 1 U.S.C. §7, "which denies federal economic and other benefits to same-sex couples lawfully married in Massachusetts and to surviving spouses from couples thus married." For more information and for the opinon, see the Civil Rights page of this website.

Supreme Court Rejects Social Security Claim for Children Born by In Vitro Fertilization After Father's Death
May 22, 2012. The U.S. Supreme Court has issued its decision in Astrue v. Capato, No. 11-159, which concerned a social security claim filed by the mother of twins born 18 months after the death of the father. The couple was married just over two years when the husband died of cancer. Ms. Capato then chose to use in vitro fertilization to become pregnant, based on steps the couple had taken when he was first diagnosed. After she gave birth to the twins, she filed for social security survivors' benefits on their behalf, but the claim was denied. Justice Ginsburg, writing for the Court, explained the situation. "Karen Capato married Robert Capato in May 1999. Shortly thereafter, Robert was diagnosed with esophageal cancer and was told that the chemotherapy he required might render him sterile. Because the couple wanted children, Robert, before undergoing chemotherapy, deposited his semen in a sperm bank, where it was frozen and stored. Despite Robert's aggressive treatment regime, Karen conceived naturally and gave birth to a son in August 2001. The Capatos, however, wanted their son to have a sibling. Robert's health deteriorated in late 2001, and he died in Florida, where he and Karen then resided, in March 2002." Slip opinion, at 2.
The Supreme Court upheld the Social Security Administration's decision based on the agency's interpretation of the definition of the word 'child' in the statute. There was a disagreement among the circuits on the definition. The Supreme Court agreed that the SSA interpreted the statute correctly. The definition turned in part on who a state defined as a child in its laws governing inheritance and that reference was built into the federal statute.
Read the opinion.

White House Announces Signing of the "Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America"
May 15, 2012. The Enduring Strategic Partnership Agreement between the Islamic Republic of Afghanistan and the United States of America has been announced in the lead up to the NATO conference in Chicago which takes place May 20-21, 2012. The White House has announced that this is a "legally binding executive agreement, undertaken between two sovereign nations." (See Fact Sheet below) That is, it is not a treaty that requires Senate advice and consent. It is a complex agreement with multiple commitments. The NATO conference will address the impending U.S. draw down of forces in Afghanistan as one of its key issues.
   Read the Enduring Strategic Partnership Agreement.
   Access the White House "Fact Sheet" on the agreement.
   Access the NATO Chicago conference website.

British House of Commons Committee Releases Report on News International and Phone-Hacking
May , 2012. The House of Commons Culture, Media and Sport Committee has released a report on "News International and Phone-Hacking." This report focuses on findings of attempts to mislead the committee by a number of executives of the corporation during the inquiry that resulted in the previous report on "Press Standards, Privacy and Libel." Both reports are provided below.
Read the the 2012 Report "News International and Phone-Hacking."
Read the Committee's 2010 Report entitle Press Standards, Privacy and Libel.

U.S. District Judge Strikes Down Florida Governor's Executive Order Mandating Employee Drug Testing
April 26, 2012. Federal District Judge Ursula Ungaro of the U.S. District Court for the Southern District of Florida has issued an opinion finding the Florida Governor's Rick Scott's executive order No. 11-58 requiring, inter alia, random frug testing of public employees, to be in violation of Fourth Amendment search and seizure prohibitions. Because of the way in which the case was brought the deals only with current employees and does not address the parts of the order that may be applied to new employees. After this order was promulgated, the Florida legislature enacted legislation allowing testing of employees, but that statute is being challenged in separate litigation and has not yet been resolved. The governor has indicated that he intends to appeal the decision.
Read the ACLU v. Scott opinion.

Supreme Court to Hear Oral Argument This Week in Arizona Immigration Statute Case
April 22, 2012. The Surpeme Court will hear oral argument on Wednesday April 25 in the Arizona immigration law case, No. 11-182, Arizona v. United States. The state of Arizona asked the U.S. Supreme Court to review the decision of the District Court for the District of Arizona [reported at 703 F.Supp 2d 980 (DAZ 2010)] and the U.S. Circuit Court of appeals for the Ninth Circuit [reported at 641 F.3d 339 (9th Cir. 2011)] that ruled against the state's immigration legislation S.B. 1070. For oral arguments transcripts and audio, briefs, and other materials see the Civil Rights page of this website.

Supreme Court Rejects Claim Against Palestinian Authority for Alleged Torture and Killing of Critic
April 18, 2012. Justice Sotomayor has written an opinion for the Court rejecting a claim against the Palestinian Authority that was brought under the Torture Victim Protection Act 28 U.S.C. §1350 note alleging that a critic of the PNA was tortured and killed and that the authority should be subject to claims under the act. Sotomayor wrote: "The Torture Victim Protection Act of 1991 (TVPA orAct), 106 Stat. 73, note following 28 U. S. C. §1350, authorizes a cause of action against '[a]n individual' for actsof torture and extrajudicial killing committed under authority or color of law of any foreign nation. We hold that the term 'individual' as used in the Act encompasses only natural persons. Consequently, the Act does not imposeliability against organizations."Mohamad v. Palestinian Authority, Slip opinion at 1.
This case was initially argued along with another case that sought to determine whether claims could be brought against corporate entities. This was No. 10-1491, Kiobel v. Royal Dutch Shell and involves claims for damages on grounds that the company supported actions by the government of Nigeria involving torture and other atrocities against Nigerians who protested pollution and other issues related to Shell Oil's operations in the country. The Court has called for reargument in that case. For more details and relevant documents, go to the Refugees page of this website.
Read the opinion.

Supreme Court Finds Qualified Immunity for City Contractor
April 17, 2012. In an opinion by Chief Justice Roberts in Filarsky v. Delia, the U.S. Supreme Court has reversed a Ninth Circuit ruling and found qualified immunity for a city contractor of the same sort available to city employees. Although the justices were at pains to point out that the 1997 ruling in Richardson v. McKnight, 521 U.S. 399 (1997) had left open this question, the fact is that the ruling is very different in terms of providing protections from that earlier ruling. For more information and for the opinion, see the Local Government page of this website.

FDA Seeks to Curb Antibiotic Use in Farm Animals
April 12, 2012. The U.S. Food and Drug Administration has issued new guidance and proposed new regulation aimed at reducing the use of antibiotics in farm animals where they are not really needed for therapeutic purposes. The agency explained that is has issued: "A final guidance for industry, The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals, that recommends phasing out the agricultural production use of medically important drugs and phasing in veterinary oversight of therapeutic uses of these drugs. A draft guidance, open for public comment, which will assist drug companies in voluntarily removing production uses of antibiotics from their FDA-approved product labels; adding, where appropriate, scientifically-supported disease prevention, control, and treatment uses; and changing the marketing status to include veterinary oversight. A draft proposed Veterinary Feed Directive regulation, open for public comment, that outlines ways that veterinarians can authorize the use of certain animal drugs in feed, which is important to make the needed veterinary oversight feasible and efficient." The first two documents are available, while the proposed regulation is scheduled for publication in the Federal Register on April 13.
   Read the FDA press release on use of antibiotics in farm animals.
   Read the Final Guidance on The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals.
   Read draft guidance on voluntary removal of veterinary antibiotics.

Supreme Court Allows Strip Searches
April 5, 2012. Justice Kennedy wrote for five members of the Supreme Court (Justice Thomas joined all but Part IV of the opinion.) allowing jail officials considerable latitude in when to conduct strip searches of those held in their facilities even if they were arrested for minor nonviolent offenses and have not yet been convicted. Justice Breyer wrote for the four dissenting justices.
Read the opinions.

Supreme Court Hears Oral Arguments in Patient Protection Act Cases
March 28, 2012. The Supreme Court is hearing oral argument this week in the cases challenging the Patient Protection and Affordable Care Act for March. The Court not only scheduled extra time, as it sometimes does in very important and complex cases, but has set arguments for three days. The Court has consolidated three cases that challenge the Patient Protection and Affordable Care Act, including No. 11-393 National Federation of Independent Business v. Sebelius; 11-400 Florida v. Department of Health & Human Services; and 11-398 Department of Health & Human Services v. Florida. For information about the three cases, including the lead briefs in the those cases and audio and transcripts for the oral arguments, see the Health Care, Disability, and Development page of this website.
The audio and transcript for the first and second days of argument have been posted on the Health Care, Disability, and Development page of this website.

Congress Passes "JOBS" Act Relaxing Regulatory Requirements
March 28, 2012. Congress has adopted H.R. 3606, the Jumpstart Our Business Startups Act (JOBS). The bill relaxes a number of regulatory constraints put in place following the last two periods of major market and corporate accountability scandals and the calls for increased securities and financial regulation which led to passage of the Sarbanes-Oxley Act (P.L. 107-204) and the Dodd-Frank Wall Street Reform and Consumer Protection Act (P.L. 111-203). The bill now goes to the president, who has been a supporter of the bill, for signature
Read H.R. 3606.

Justice Department Signs Off on New Guidelines for Data Access, Retention, Use, and Dissemination for National Counterterrorism Center and Other Security Agencies
March 23, 2012. The Attorney General of the United States has signed, on March 22, 2012 a new set of Guidelines for Access, Retention, Use, and Dissemination by the National Counterterrorism Center and Other Agencies of Information in Datasets Containing Non-Terrorism Information." This document supercedes the previous guidelines which had been signed by the Attorney General on November 4, 2008 which was entitled "Memorandum of Agreement on Guidelines for Access, Retention, Use, and Dissemination by the National Counterterroism Center of Terrorism Information Contrained within Datasets Identified as Including Non-Terrorism Information and Information Pertaining Exclusively to Domestic Terrorism." The new 2012 document provides expanded authority for acquisition, use, and retention of data by the National Counterterrorism Center.
Read the New 2012 Guidelines.
Read the 2008 Guidelines Replaced by the New Document.

U.S. Supreme Court Calls for Reargument After Hearing Cases Claiming Damages Against Corporations and Other Entities for Alleged Human Rights Violations
March 6, 2012. After hearing oral arguments in two cases in which individuals brought suit against corporations or other kinds of entities for liability in cases alleging injuries suffered as a result of violations of internationally recognized human rights, the U.S. Supreme Court has called for additional briefs and reargument on an even broader issue that was originally presented in one of the cases. The Court's order issued on March 5 directed: "This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." The supplemental brief of petitioners is due on or before Thursday, May 3, 2012. The supplemental brief of respondents is due on or before Monday, June 4, 2012. The reply brief is due on or before Friday, June 29, 2012. The time to file amicus curiae briefs is as provided for by Rule 37.3(a). The word limits and cover colors for the briefs should correspond to the provisions of Rule 33.1(g) pertaining to briefs on the merits rather than to the provision pertaining to supplemental briefs."
There were two cases argued in the previous week. The first is No. 10-1491, Kiobel v. Royal Dutch Shell and involves claims for damages on grounds that the company supported actions by the government of Nigeria involving torture and other atrocities against Nigerians who protested pollution and other issues related to Shell Oil's operations in the country. This case was brought under the Alien Tort Claims Act 28 U.S.C. §1350. It is this case on which the Court has called for reargument. The other case is No. 11-88, Mohamad v. Palestinian Authority and involves alleged torture and killing of a critic of the Palestinian Authority. The suit was brought under the Torture Victim Protection Act 28 U.S.C. §1350 note. Both the companies in the first case and the PLA in the second claim they are not subject to suit under these laws. For more information and the briefs and oral argument see the Refugees page of this website.

Supreme Court Hands Down the Latest in a String of Pre-emption Rulings
February 29, 2012. Justice Thomas, writing for six members of the Supreme Court in Kurns v. Railroad Friction Products Corporation, No. 10-879, found state liability suits pre-empted by the Locomotive Inspection Act, in this case on the basis of field pre-emption, concluding that the federal legislation left no room for state action. Justice Sotomayor wrote an opinion concurring in part and dissenting in part joined by two other justices.
Read the opinion.

Ninth Circuit Upholds DNA Testing on Arrest
February 24, 2012. A panel of the U.S. Circuit Court of Appeals for the Ninth Circuit has issued a ruling in Haskell v. Harris, upholding a California law that permits police to do a DNA test at the time of arrest for a felony. The law had been challenged on grounds that it was an illegal search and seizure to take require a DNA sample for a person not convicted of any crime in the absence of a warrant. Writing for the panel, Judge Smith said, "After weighing these factors, we conclude that the Government's compelling interests far outweigh arrestees' privacy concerns. Thus, we hold that the 2004 Amendment does not violate the Fourth Amendment, and we affirm." Haskell v. Harris, Slip op. at 1954. Smith Argues that: "DNA analysis not only solves past crimes, but it helps police prevent crimes from occurring in the future. By implementing the 2004 Amendment, law enforcement officials will have a catalogue of arrestees' DNA, a tool that will undoubtedly help solve and prevent future crimes." Id. at 1979.
Judge Fletcher dissented, writing: "In Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), we held that the taking of a DNA sample without a warrant, and without suspicion of a crime that the DNA sample would help solve, violated the plaintiff's clearly established Fourth Amendment rights. Proposition 69 requires that DNA samples be taken from all felony arrestees, with or without their consent, upon their arrest. There is no need for a warrant, and there is no need for suspicion of a crime that the DNA sample would help solve. Our decision in Friedman requires us to hold that Proposition 69 violates the Fourth Amendment." He adds that even if it were not for that specific precedent, he would strike the California law. "The taking of DNA samples from arrestees solely for that purpose is invalid under" a string of other precedents, including Hayes v. Florida, 470 U.S. 811, 814 -15 (1985); Davis v. Mississippi, 394 U.S. 721, 727 -28 (1969); United States v. Ortiz-Hernandez, 427 F.3d 567, 576 (9th Cir. 2005); United States v. Garcia- Beltran, 389 F.3d 864, 865 (9th Cir. 2004).
Read the Haskell v. Harris opinions.

Supreme Court to Hear University Diversity Admissions Case
February 22, 2012. The U.S. Supreme Court has agreed to hear a case from Texas, challenging the diversity admissions program of the University of Texas at Austin which was modeled on the elements approved by the Supreme Court in the University of Michigan case, Grutter v Bollinger, 539 U.S. 306 (2003). The Fifth Circuit upheld the program (and denied rehearing en banc). For full information on the case, Fisher v. University of Texas at Austin, No. 11-345, including the lower court opinions and cert. petition, see the Civil Rights page of this website.

Supreme Court Presses Preemption of Federal Arbitration Act Against State Ruling
February 22, 2012. The U.S. Supreme Court has once more ruled in strong terms that state laws that limit the use of arbitration in various types of contractual agreements are pre-empted by the Federal Arbitration Act (FAA), and, the Court said, that includes actions for personal injury or wrongful death. In a case in which the West Virginia Supreme Court had ruled that state law prohibited mandatory arbitration in wrongful death or personal injury cases, the Court, in a per curiam opinion held: "The West Virginia court's interpretation of the FAA was both incorrect and inconsistent with clear instruction in the precedents of this Court. The FAA provides that a 'written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction. . . shall be valid, irrevocable, and enforceable, save uponsuch grounds as exist at law or in equity for the revocation of any contract.' 9 U. S. C. §2. The statute's text includes no exception for personal-injury or wrongful-death claims. It "requires courts to enforce the bargain of the parties toarbitrate. . . As this Court reaffirmed last Term, '[w]hen state law prohibits outright the arbitration of a particular type ofclaim, the analysis is straightforward: The conflicting ruleis displaced by the FAA.' AT&T Mobility LLC v. Concepcion, 563 U. S. ___, ___ (2011) (slip op., at 6-7). That rule resolves these cases." Marmet Health Care Center v. Brown, slip op. At 3-4.
Read the Marmet Health Care Center v. Brown opinion.
Access the AT&T Mobility LLC v. Concepcion opinion from the previous term.

Senate Committee Holds Hearings on Proposed Cybersecurity Act
February 16, 2012. The Senate Homeland Security and Governmental Affairs Committee has held hearings on S. 2105, the proposed Cybersecurity Act of 2012, co-sponsored by Senators Joe Lieberman, ID-Conn., Susan Collins, R-Maine, Jay Rockefeller, D-W.Va., and Dianne Feinstein, D-Ca.
Access S. 2105.
View the 2/16/2012 hearing.

Supreme Court Sets Patient Protection Act Cases for Argument for March
February 16, 2012. The Supreme Court has scheduled oral argument in the cases challenging the Patient Protection and Affordable Care Act for March. The Court not only scheduled extra time, as it sometimes does in very important and complex cases, but has set arguments for three days from March 26-28. The Court has consolidated three cases that challenge the Patient Protection and Affordable Care Act, including No. 11-393 National Federation of Independent Business v. Sebelius; 11-400 Florida v. Department of Health & Human Services; and 11-398 Department of Health & Human Services v. Florida. For the briefs and other information, see the Health Care, Disability, and Development page of this website.

White House Announces FY2013 Budget Proposal
February 13, 2012. The White House has released the President's budget request for FY 2013. Along with the full budget request and the budget overview document, the White House has issued the "Cuts, Consolidations, and Savings for FY 2013" (This replaces what had been called the Terminations, Reductions, and Savings document in previous years.) document, the "Analytic Perspectives" document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the "Appendix" which is the document that contains the very detailed information on agency budgets and funds.
   The so-called budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency will be provided below as soon as they are posted.
   This year's budget annoucement and numbers must be read against the backdrop of the deficit reduction and budget control agreements announced in the second half of last year. Postings on all of those developments have been provided over the course of the past several months on this page. However, the key bills are listed in a separate posting to follow this FY 2013 budget materials presentation.
   Access the FY2013 Budget Overview.
   Download the FY 2013 Budget proposal as a single .pdf document.
   Download the FY 2013 Budget Website with Individual Agency Budget proposals.
   Access Agency by Agency Fact Sheets for the FY2013 Budget.
   Access the Cuts, Consolidations, and Savings for FY 2013 (This replaces what had been called the Terminations, Reductions, and Savings document in previous years.)
   Access the Web Site for the FY2013 Budget Appendix -- All detailed information about agencies and funds.
   Access the Analytic Perspectives Document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2013 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2013 Budget-in-Brief.
   Access the U.S. Environmental Protection Agency, Fiscal Year 2013 Budget-in-Brief.
   Access USASpending.gov

FY 2013 Spending Proposed to be Considered in Light of Budget Control and Deficit Reduction Legislation Adopted in 2011
February 13, 2012. The president's budget and the congressional action to come for the FY 2013 appropriations will develop in light of budget control and deficit reduction legislation passed during the late summer and fall of 2011. Full discussions of each of those actions are provided in postings on this page. The key pieces of legislation are repeated here in one posting for convenient reference. Congress has passed the two key spending bills, HR 2055 Fiscal 2012 spending bill and HR 3672 on Disaster Relief. That legislation was presented to the president for signature on December 21. The legislation concerning the tax withholding issue and continued funding for extended unemployment benefits has now been resolved with the House accepting the Senate proposal to extend these programs for two months pending a negotiation of a solution for the remainder of the year. H.R. 3765 was passed on unanimous consent today.
   This legislation follows the earlier appropriations package H.R. 2112 that was adopted in mid-November and that addressed the Departments of Agriculture, Commerce, Justice, Science, and related Agencies, Transportation, and Housing and Urban Development. This bill was signed into law as P.L. 112-55.
   All of this legislation follows the passage of the Budget Control Act of 2011 passed in August. This bill was signed into law as P.L. 112-25.
   Access the Budget Control Act of 2011S. 365 P.L. 112-25.
   Access HR2055 passed in December which became P.L. 112-74.
   Read HR 3672 which became P.L. 112-77.
   Read HR 2112 passed in November which became P.L. 112-55.

Ninth Circuit Rules Against California Prop 8
February 7, 2012. A panel of the United States Circuit Court of Appeals for the Ninth Circuit has issued its long awaiting ruling in the Perry v. Brown case, finding that California's Proposition 8 banning gay marriage violates the Fourteenth Amendment. For more information and the opinion, see the Civil Rights page of this website.

Government Accountability Office Publishes 2012 edition of Its Program Evaluation Guide
February 2, 2012. The GAO has released the 2012 edition of Designing Evaluations guide to program evaluation. For more information and the document itself, see the Public Contract Management page of this website.

Congressional Budget Office Issues Two Year Economic Report
January 31, 2012. The Congressional Budget Office has issued its most recent "Budget and Economic Outlook: Fiscall Years 2012 to 2022. The report projects that: "the federal budget will show a deficit of nearly $1.1 trillion in fiscal year 2012 (see Summary Table 1). Measured as a share of gross domestic product (GDP), that shortfall will be 7.0 percent, which is nearly 2 percentage points below the deficit recorded last year but still higher than any deficit between 1947 and 2008. Over the next few years, projected deficits in CBO's baseline drop markedly, averaging 1.5 percent of GDP over the 2013-2022 period." p. xi
Access the CBO report.

Supreme Court Finds California Preempted in Meat Scandal
January 24, 2012. Writing for a unanimous Supreme Court, Justice Kagan found that efforts in California to move against against meat packers who slaughter downer pigs and allow the meat to enter the human food chain is pre-empted by the Federal Meat Inspection Act. The case arose when California adopted legislation following a scandal about the treatment of nonambulatory animals at slaughter houses and the use of the meat in the human food chain. The state law required immediate and humane euthanizing of downer animals that arrived at the slaughter house and prohibited the use of any meat from those animals. Federal statute and implementing regulations require euthanizing some animals and keeping the meat away from the human food chain, but in other cases allows slaughter, inspection, and use of the meat. The case, National Meat Association v. Harris, No. 10-224, was brought by an industry association to block enforcement of the California statute. The reversed a ruling of the Ninth Circuit and found that the federal statute expressly preempts the California regulatory effort. The circuit ruling and the leading briefs in the case, including the U.S. Justice Department amicus brief supporting the meat industry, are provided below.
   Read the opinion.
   Read the Ninth Circuit Opinion.
   Read the brief of the petitioner, National Meat Association.
   Read the brief of the state respondents.
   Read the brief for the non-state respondents.
   Read the brief of the United States as Amicus Curiae in support of the petitioner.

Supreme Court Rejects Government Arguments in GPS Tracking Case
January 23, 2012. All members of the U.S. Supreme Court have agreed in their opinions in United States v. Jones that the government's warrantless use of a GPS tracking device on a person's vehicle for an extended time was a search within the meaning of the Fourth Amendment and affirmed a court of appeals ruling in favor of the defendant. Justice Scalia wrote for five members of the Court, basing the ruling on the concept of trespass while Justice Alito wrote for four members of the Court who agreed with the conclusion but argued that the Court's means of reaching that conclusion was troublesome.
Read the United States v. Jones opinion

President Seeks Reorganization Authority for Federal Agencies
January 14, 2012. President Obama has indicated that he will be seek reorganization authority from Congress and begin with efforts to consolidate a number of agencies associated with trade and commerce.
Read the 1/13/12 "Remarks by the President on Government Reform."

Supreme Court Rejects Application of Americans with Disabilities Act to Church School Employee
January 12, 2012. In an opinion for a unanimous Supreme Court, Chief Justice Roberts, citing both the free exercise and establishment clauses of the First Amendment, rejected the efforts by an employee of a church school to bring an action under the Americans with Disabilities Act. Chief Justice Roberts characterized the case as follows: "Certain employment discrimination laws authorize employees who have been wrongfully terminated to suetheir employers for reinstatement and damages. The question presented is whether the Establishment and FreeExercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group's ministers." In this case, the employee was a teacher classified as a called teacher. He concluded: "Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers." Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, Slip opinion, at 6. While the Court had previously ruled that there is a ministerial exception from civil suit, Chief Justice Roberts noted that it had not previously done so in a case involving civil rights statutes.
Read the opinion.

Supreme Court Issues Ruling Upholding Mandatory Arbitration in the Face of Congressional Constraints
January 12, 2012. Justice Scalia, writing for the majority in Compucredit v. Greenwood, rejected the idea that federal statute provides a right to sue in spite of arbitration requirements in a credit agreement. "We consider whether the Credit Repair OrganizationsAct (CROA), 15 U.S.C. §1679 et seq., precludes enforcement of an arbitration agreement in a lawsuit alleging violations of that Act." While the Ninth Circuit had found a statutory basis for suit, Scalia wrote: "The flaw in this argument is its premise: that the disclosure provision provides consumers with a right to bring anaction in a court of law. It does not. Rather, it imposes anobligation on credit repair organizations to supply consumers with a specific statement set forth (in quotation marks) in the statute. The only consumer right it creates is the right to receive the statement, which is meant to describe the consumer protections that the law elsewhere provides." Slip opinion at 4. Justices Sotomayor issued a concurring opinion joined by Justice Kagan, while Justice Ginsburg dissented.
Read the opinion.

President Obama Issues Signing Statements Against Recent Statutory Provisions
January 4, 2012. President Obama issued a statement on signing H.R. 2055, the "Consolidated Appropriations Act, 2012" in which he objected to a variety of provisions of that legislation and also H.R. 1540, the "National Defense Authorization Act for Fiscal Year 2012" and indicated that his administration would interpret them in what he considered the appropriate constitutional manner. He also indicated for each set of provisions with which he took issue that he has informed the Congress of his objections and intentions.
   He has also issued a statement with respect to H.R. 1540, the Defense Authorization Act and again indicated that he would interpret controversial provisions in what he regards as the acceptable manner.
    Early in his administration, President Obama issued a memorandum critical of the previous administration's use of the signing statement, but reserving to himself the ability to use the device in what he regarded as an appropriate manner. When he used it with respect to provisions of the supplemental appropriations bill late in 2009, there was a critical response from members of Congress, including a letter from Representatives Barney Frank, Chairman, House Financial Services Committee, and David Obey, Chairman, House Appropriations Committee, Nita M. Lowey, Chairman, House Appropriations Subcommittee on State, Foreign Operations, and Related Programs, and Gregory Meeks, Chairman, House Financial Services Subcommittee on International Monetary Policy.
   .Read the Statement on Signing H.R. 2055, the Consolidated Appropriations Act, 2012.
   .Read the Statement on Signing H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012.
   Access H.R. 2055, the Consolidated Appropriations Act, 2012.
   .Access H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012.
   Read the March 2009 Presidential Memorandum on Presidential Signing Statements.
   Read the 2009 Letter from Representatives Barney Frank and David Obey to President Obama on his signing statement on the Supplementary Appropriations Act.

Federal Government Releases Its 2011 Financial Report
December 27, 2011. The Department of the Treasury has released the 2011 Financial Report of the United States Government along with the Government Accountability Audit Report. The first part of the document is a "Citizen's Guide" which provides and overview and commentary. The GAO begins its press release on the new report by explaining that: "The U.S. Government Accountability Office (GAO) cannot render an opinion on the 2011 consolidated financial statements of the federal government, because of widespread material internal control weaknesses, significant uncertainties, and other limitations."
   Read the 2011 Financial Report of the United States Government.
   Read the GAO press release on the 2011 report.
   Read GAO Understanding the Primary Components of the Annual Financial Report of the United States Government.

Congress Passes Spending Bill
December 23, 2011. Congress has passed the two key spending bills, HR 2055 Fiscal 2012 spending bill. HR 3672 on Disaster Relief. That legislation was presented to the president for signature on December 21. The legislation concerning the tax withholding issue and continued funding for extended unemployment benefits has now been resolved with the House accepting the Senate proposal to extend these programs for two months pending a negotiation of a solution for the remainder of the year. H.R. 3765 was passed on unanimous consent today.
   This legislation follows the earlier appropriations package H.R. 2112 that was adopted in mid-November and that addressed the Departments of Agriculture, Commerce, Justice, Science, and related Agencies, Transportation, and Housing and Urban Development. This bill was signed into law as P.L. 112-55.
   Access HR2055.
   Read HR 3672.
   Read HR 2112 passed in November.

Supreme Court Finds Immigration Agency Policy Arbitrary and Capricious
December 13, 2011. In a unanimous opinion by Justice Kagan, in the case of Judulang v. Holder, No. 10-694, the U.S. Supreme Court has overturned a Board of Immigration Appeals policy that indicated when resident aliens may apply to the Attorney General for relief from deportation under the provisions of a the immigration law that has now been repealed. The Court found the BIA policy action to be arbitrary and capricious under the now well-established definition established in Motor Vehicle Manufacturers Assn. v. State Farm Mutual Ins. Co, 463 U.S. 29, 43 (1983)..
Read the opinion.

Supreme Court Agrees to Hear Arizona Immigration Statute Case
December 12, 2011. The Surpeme Court has granted certiorari in No. 11-182, Arizona v. United States. The state of Arizona asked the U.S. Supreme Court to review the decisions of the district court and circuit courts that ruled against the state's immigration legislation S.B. 1070. For the Court's order and the related judicial decisions, briefs, and orders see the Civil Rights page of this website.

HHS Secretary Overrules FDA Decisions on Plan B
December 8, 2011. The Secretary of Health and Human Services has overruled an FDA scientific panel and has directed the FDA Commissioner to reverse the agency's announced policy that would have made Plan B contraceptive available over the counter without a prescription to all women of childbearing age. Secretary Kathleen Sebelius issued a statement indicating that in her opinion, there was not sufficient research to support making the drug available to young women without a prescription.
    FDA Commissioner Dr. Margaret A. Hamburg explained in her press release in response to the secretary that: "I reviewed and thoughtfully considered the data, clinical information, and analysis provided by CDER, and I agree with the Center that there is adequate and reasonable, well-supported, and science-based evidence that Plan B One-Step is safe and effective and should be approved for nonprescription use for all females of child-bearing potential. However, this morning I received a memorandum from the Secretary of Health and Human Services invoking her authority under the Federal Food, Drug, and Cosmetic Act to execute its provisions and stating that she does not agree with the Agency's decision to allow the marketing of Plan B One-Step nonprescription for all females of child-bearing potential. Because of her disagreement with FDA's determination, the Secretary has directed me to issue a complete response letter, which means that the supplement for nonprescription use in females under the age of 17 is not approved. Following Secretary Sebelius's direction, FDA sent the complete response letter to Teva today. Plan B One-Step will remain on the market and will remain available for all ages, but a prescription will continue to be required for females under the age of 17."
   Access the secretary's public statement on rejecting the FDA panel recommendation.
   Secretary Sebelius' letter to FDA Commissioner Margaret A. Hamburg.
   Access the public statement of FDA Commissioner Margaret A. Hamburg.

Senate Passes Defense Authorization Act with Controversial Detainee Provisions
December 2, 2011. The Senate has passed by a vote of 93-7 the National Defense Authorization Act for Fiscal Year 2012, S. 1867. The bill contains several controversial sections calling for the military to detain and hold indefinitely a variety of persons not U.S. citizens or legal residents. The provisions, Sections 1031 through 1036 deal with the detentions. Section 1031 "Affirmation of authority of the Armed Forces of the United States to detain covered persons pursuant to the Authorization for Use of Military Force"; Section 1032 "Requirement for military custory"; Section 1033 "Requirement for certifications relating the the transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, to foreign countries and other foreign entities"; Section 1034 "Prohibition on use of funds to construct or modify facilites in the United State to house detainees transferred from Unites States Naval Station, Guantanamo Bay, Cuba"; Section 1035. "Procedures for periodic detention review of individuals detained at United States Naval Station, Guantanamo Bay, Cuba"; and Section 1036 "Procedures for status determination." Administration officials have adamantly opposed these provisions. It remains to be seen whether a bill containing those provisions would face a presidential veto.
Access S. 1867 as passed by the Senate on 12/1/2011.

Supreme Court Agrees to Hear Patient Protection Act Cases
November 14, 2011. The Supreme Court has indicated in its Order List for today that it will hear the cases involving challenges to the Patient Protection and Affordable Care Act, including No. 11-393 National Federation of Independent Business v. Sebelius; 11-400 Florida v. Department of Health & Human Services; and 11-398 Department of Health & Human Services v. Florida. It's directions as to how the cases will be argued are numerous. For the details, the courts order list, and the certiorari petitions, see the Health Care, Disability, and Development page of this website.

Department of Justice Rejects Alabama Attorney General Efforts to Block Federal Discrimination Investigation Involving School Children
November 6, 2011. The Alabama Attorney General has attempted to block the Civil Rights Division of the U.S. Department of Justice's efforts to investigate whether the rights of school children are being violated as a result of actions taken under the recently enacted Alabama immigration statute S.B. 56. . Assistant Attorney General Thomas E. Perez wrote to Alabama school superintendents on November 1, reminding them that the Supreme Court has clearly rejected state actions against school children on the basis of immigration status and requested information from superintendents on student withdrawals and attendance in addition to other information. Alabama Attorney General Luther Strange has insisted that federal authorities lack authority for the investigation and wrote Alabama School Superintendents informing them of his determination. For more information and all the relevant documents, see the Civil Rights page of this website.

House Judiciary Sends Bill That Would Dramatically Change Administrative Law to the Floor
November 4, 2011. The House Judiciary Committee has voted to send H.R. 3010, the Regulatory Accountability Act of 2011, to the floor for a vote. The legislation would significantly amend the Administrative Procedure Act and particularly increase requirements and restrictions on administrative agencies in rulemaking. The American Bar Association Section on Administrative Law and Regulatory Practice has issued a statement on the bill that finds some positive elements, but predominantly indicated "serious concerns about the bill's lengthy list of 'rulemaking considerations' that agencies would be required to take into account at each state of the rulemaking process, use of the long-discredited 'formal rulemaking' for some rules, providing for judicial review of agencies' compliance with OIRA's guidelines, and effectively rewriting the substantive provisions regarding standard-setting in the enabling legislation of numerous agencies through a cost-focused 'supermandate.'" ABA Section on Administrative Law and Regulatory Practice, "Comments on H.R. 3010, the Regulatory Accountability Act of 2011," October 24, 2011, p. i.
Read H.R. 3010 as sent to the House floor by the Judiciary Committee.
Read the ABA Section on Administrative Law and Regulatory Practice Statement.

Florida Federal District Judge Issues an Injunction Against a State Drug Testing Requirement for Those Receiving TANF
October 25, 2011. Federal District Judge Mary S. Scriven has issued a preliminary injunction in blocking enforcement of a Florida statute, Section 414.0652 which mandates drug testing, at the applicant's expense, for anyone applying for Temporary Assistance to Need Families in the state.
Read the October 24 order in Lebron v. Wilkins.

UN Reports Torture of Detainees in Afghanistan
October 10, 2011. The United Nations Assistance Mission in Afghanistan (UNAMA) Office of the High Commissioner for Human Rights has issued a report on "Treatment of Conflict-Related Detainees in Afghan Custody." The report found that: "UNAMA's detention observation found compelling evidence that 125 detainees (46 percent) of the 273 detainees interviewed who had been in NDS [National Directorate of Security] detention experienced interrogation technicques at the hands of NDS officials that constituted torture, and that torture is practiced systematically in a number of NDS detention facilities throughout Afghanistan." Id. at 2.
Read the UNAMA Report.
Read UNAMA press release on the report.

Justice Department Asks Supreme Court to Review Patient Protection Act Case
September 29, 2011. The U.S. Solicitor General has filed a petition for a writ of certiorari, asking the U.S. Supreme Court to take up the Forida v. HHS opinion issued by the Eleventh Circuit which struck down the Patient Protection Act. For more information, the petition, and appendix with critical documents, go to the Health Care, Disabilities, and Development page of this website.

Federal District Judge Issues Injunction for Parts of Alabama Immigration Statute But Allows Other Parts to Stand
September 29, 2011. Chief Judge Sharon Lovelace Blackburn of the U.S. District Court for the Northern District of Alabama has issued her rulings in Parsley v. Bentley, 5:11-cv-2736-SLB; and United States of America v. Bentley, 5:11-cv-2746-SLB respectively, challenging Alabama's SB 56 immigration legislation. She rejected the injunction request in Parsley largely on grounds of standing to bring the suit. In the case brought by the U.S. Department of Justice, the judge granted in part and denied in part the request for an injunction, leaving in place some of the most controversial provisions of the Alabama law. For more information and all opinions and orders, see the Civil Rights page of this website

The Court Prepares to Begin Work on Its October Term 2011
September 27, 2011. The Supreme Court meets this week to conclude work on the docket for the October term 2011 which begins next Monday, October 3. Information on the docket, briefs oral arguments, and opinions is provided below.
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project.
   Review the Docket through "Oyez Cases."
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs. Starting this year, the Court is also making available the audio of its arguments.
   U.S. Supreme Court Oral Arguments Page
   U.S. Supreme Court Oral Arguments Audio
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access "OYEZ"

Obama Administration Puts Forward Jobs and Deficit Reduction Plans
September 19, 2011. The Obama administration has sent the legislative proposal to increase jobes described by the president in his recent speech. That bill has been introduced by Senator Reid as S. 1549.
   Also, the president announced today his administration's deficit reduction proposal, also promised in the recent speech to address both the deficit reduction issue now under consideration by the commission created for that purpose, but also to address additional actions called for in the jobs speech. The White House has release a fact sheet on the elements of the plan.
   Read S. 1549 American Jobs Act of 2011.
   Read Obama Administration Fact Sheet on Deficit Reduction.
   Read the president's speech on the deficit reduction proposals.
   Watch the video of the president's speech on the deficit reduction proposals.

Report on Causes of Deep Water Horizon Oil Platform Blowout Released
September 14, 2011. The Bureau of Ocean Energy Management, Regulation, and Enforcement of the U.S. Department of the Interior has issued the report of the investigation conducted by the Bureau and the Coast Guard Joint Investigation Team into the causes both direct and indirect of the Deep Water Horizon oil platform blowout in the Gulf of Mexico in 2010. The document entitled Report Regarding the Causes of the April 20, 2010 Macondo Well Blowout found that: "The loss of life at the Macondo site on April 20, 2010, and the subsequent pollution of the the Gulf of Mexico through the summer of 2010 were the result of poor risk management, last minute changes to plans, failure to observe and respond to critical indicators, inadequate well control response, and insufficient emergency bridge response training by companies and individuals responsible for drilling at the Macondo well and for the operation of the Deepwater Horizon." Id. at 1-2 Although the report found that BP and Transocean were responsible for the blowout, it did find that: "Although the Panel found no evidence that MMS regulations in effect on April 20, 2010 were a cause of the blowout, the Panel concluded that stronger and more comprehensive federal regulations might have reduced the likelihood of the Macondo blowout." Id. at 7 Volume II is the core report with Volume I specifically directed to Coast Guard concerns. There is also a webpage with all of the associated appendices to the report.
   Read Volume II of the Report (Causes of the April 20, 2010 Macondo Well Blow-out).
   Read Volume I of the Report ("Systems and Responsibilities within U.S. Coast Guard purview under the U.S. Coast Guard-Minerals Management Service Memorandum of Agreement dated March 27, 2009")
   Access the appendices to the report.
   Read the cover memo of submission.
   Read the Bureau Press Release.
   Read the Coast Guard Press Release.

Fourth Circuit Court Rejects Challenges to the Patient Protection Act as Supreme Court Review Nears.
September 9, 2011. Judge Diana Gribbon Motz has written an opinion for a panel of the U.S. Circuit Court of Appeals for the Fourth Circuit rejecting the Virginia Attorney General's claim that the commonwealth had standing to challenge the Patient Protection Act. In a second case issued at the same time, the panel rejected the challenge to tax provisions in the law on grounds that it pre-enforcement review is barred. For more information and the opinions, see the Health Care, Disability, and Development page of this website.

Conflict In Obama Administration Over Proposed Ozone National Ambient Air Quality Standards
September 3, 2011. The White House has announced the action by Case Sunstein, Director of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, in calling on the Environmental Protection Agency (EPA) to pull back its proposed Ozone National Ambient Air Quality Standards and reconsider them in 2013. In an unusual move, the president announced the administration's action. It is likely that this action will be challenged by environmentalists in further legal action.
   Read Statement by the President on the Ozone National Ambient Air Quality Standards.
   Read Sunstein OIRA letter to EPA re Proposed Ozone Standards.
   Read the EPA press release in response to the administration action.

Obama Administration Announces Regulatory Reduction Plans
August 23, 2011. Case Sunstein, Director of the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget, has announced the administration's plans for reducing regulations. The plans page features some agencies at the top, but then provides all of the agency plans. Each executive agency was directed to produce a plan for regulatory changes and independent agencies were asked to do so.
   Read White House Blog Announcement of regulatory reduction plan.
   Access the White House regulatory plan website.
   Read Executive Order 13563.

White House Issues Performance Management Guidance to Agencies
August 23, 2011. The Office of Management and Budget has issued its guidance on the administration's "Efficient, Effective, and Accountable Government" program which follows on both the administration's initiative to implement performance management in the executive branch, set out in Executive Order 13576 of June 16, 2011 and the implementation of the GPRA (Government Performance and Results Act) Modernization Act of 2010. The Guidance directs action by the agency heads, Chief Operating Officers, and agency Performance Improvement Officers on agency responsibilities for meeting performance improvement obligations.
   The guidance refers to a website known as MAX which the guidance indicates provides "a summary of all key upcoming waste reduction, performance improvement, and management deadlines," but it is password protected and can only be accessed by federal government agencies and personnel.
   Read the OMB memorandum.
   Read Guidance from the Controller OMB June 28, 2011.
   Read Executive Order 13576 of June 16, 2011.
   Access the GPRA Modernization Act of 2010 P.L. 111-352.
   Visit the MAX page.

Alabama Church Leaders Sue the State to Block Immigration Law on First Amendment Grounds
August 14, 2011. Bishops of three churches in Alabama have filed suit in the U.S. District Court for the Northern District of Alabama, seeking to block enforcement of Alabama's S.B. 56 immigration legislation, on grounds that the new law interferes with free exercise of religion under the First Amendment and is vague and overbroad.
The U.S. Department of Justice has also filled suit in the U.S. District Court for the Northern District of Alabama challenging on grounds that the state law is preempted by federal immigration law and the law is therefore barred by the Supremacy Clause of the Constitution.
For more information and the complaints in both cases as well as the legislation itself, see the Civil Rights page of this website.

Arizona Petitions for Review in the U.S. Supreme Court on Decisions Against State Immigration Law
August 14, 2011. The state of Arizona has now formally asked the U.S. Supreme Court to review the decisions of the district court and circuit courts that ruled against the state's immigration legislation S.B. 1070. For more information and the certiorari petition in the case see the Civil Rights page of this website.

U.S. Eleventh Circuit Court Rules Against the Patient Protection and Affordable Care Act, Setting Up Supreme Court Review.
August 13, 2011. A panel of the U.S. Circuit Court of Appeals for the Eleventh Circuit has ruled in favor of a challenge by 26 states to the Patient Protection and Affordable Care Act, setting up a conflict with the ruling of the Sixth Circuit and virtually ensuring a review by the U.S. Supreme Court. For more information and the opinion see the Health Care, Disability, and Development page of this website.

Debt Limit Extension Package Signed Into Law
August 2, 2011. The House and Senate have passed, and the president has signed, the Budget Control Act of 2011, which is the result of the negotiations between congressional leaders and the president to break the logjam on the debt limit extension. The bill, S. 365, passed the House by a vote of 269-161 and the Senate has approved the measure 74-26.
Read the bill.

U.S. Circuit Court for the Sixth Circuit Rejects Challenge to the Patient Protection and Affordable Care Act.
June 29, 2011. A panel of the U.S. Circuit Court of Appeals for the Sixth Circuit has rejected a challenge to the Patient Protection and Affordable Care Act brought by the Thomas More Law Center. For more information and the opinion, see the Healthcare, Disability, and Development page of this website.

Supreme Court Strikes California Ban on Sales of Violent Video Games to Minors
June 27, 2011. The Supreme Court has ruled that California's Assembly Bill 1779 intended to block the sale of violent video games to minors violates the First Amendment to the U.S. Constitution. Justice Scalia wrote the majority opinion for five members of the Court. Justice Alito did not join that opinion but wrote a concurring opinion that was joined by Chief Justice Roberts. Only Justices Thomas and Breyer issued dissenting opinions.
Read the opinion.

Supreme Court Rejects Class Action Status for Wal-Mart Women Plaintiffs
June 20, 2011. The Supreme Court has reversed a lower court ruling and concluded that the women who sought to sue Wal-Mart for sex discrimination on behalf of 1.5 million women had not defined a class that satisfied the requirements of Rule 23 of the Federal Rules of Civil Procedure which sets forth the requisites for an acceptable class action lawsuit. The opinion, written by Justice Scalia for the Court, reverses a decision filed in April by the U.S. Circuit Court of Appeals for the Ninth Circuit, sitting en banc, that the massive Title VII suit could proceed as a class action. For more information and the Supreme Court and Ninth Circuit opinions, see the Civil Rights page of this website.

Supreme Court Rejects State Pollution Suit Against Power Plants
June 20, 2011. Writing for a unanimous Supreme Court (Justice Sotomayor not participating), Justice Ginsburg rejected the efforts by several states, the City of New York, and other parties to bring a federal common law nuisance suit to abate carbon dioxide emissions from power plants. For more information and the Supremem Court opinion see the Sustainable Development page of this website.

Supreme Court Requires Consideration of Children's Age in Questioning
June 17, 2011. A sharply divided Court in an opinion by Justice Sotomayor has ruled that police must take a child's age into consideration in determining whether it is necessary to provide Miranda warnings at the time of questioning. The case involved a 13 year old boy known in the opinion as J.D.B. who was questioned by police at his middle school without Miranda warnings. The issue goes to the determination that a child is effectively in custody such that the warnings are required. "We hold that so long as the child's age was known to the officer at the time of police questioing, or would have been objectivedly apparent to a reasonable officer, its inclusion in the custory analysis is consistent with the objective nature of that test. This is not to tay that a child's age will be a determinative, or even a significant, factor in every case. . . . It is, however, a reality that courts cannot simply ignore." J.D.B. v. North Carolina, Slip opinion at 14. Justice Alito wrote a dissent joined by the Chief Justice and Justices Scalia and Thomas.
Read the opinion.

Members of Congress File Suit Against President Over Lybia
June 14, 2011. A number of members of Congress have filed suit in the U.S. District Court for the District of Columbia in a case styled, Kucinich v. Obama, Case 1:11-cv-01096-RBW, challening the president's actions with respect to Lybia, alleging violations of the constitutional war powers and the War Powers Resolution.
Read the Complaint.

Supreme Court Finds that Individuals Can Have Standing to Make a Federalism Argument Against Federal Statutes
June 14, 2011. In an opinion for a unanimous Supreme Court in Bond v. United States, Justice Kennedy reversed a Court of Appeals for the Third Circuit ruling that denied standing to a woman who sought to challenge a federal statute on federalism grounds. In so doing, Kennedy took the opportunity to present an essay on the importance of federalism as a protection for individual freedoms. For more information and the opinion, see the Local Government page of this website.

Obama Administration Issues Executive Order on "Efficient, Effective, and Accountable Government"
June 14, 2011. President Obama has issued an executive order entitled "Delivering an Efficient, Effective, and Accountable Government." The order calls for further action on the presidential memorandum on accountable government issued September 14, 2010 that accompanied a memorandum issued on that date by the Chief Performance Officer to all executive branch agencies. The new executive order also creates a Government Accountability and Transparency Board.
   Read the Executive Order.
   Read the September 14, 2010 Presidential Memorandum Referenced in the Executive Order.
   Read the Chief Performance Officer's Memorandum.

U.S. Supreme Court Reverses State Supreme Court and Upholds Nevada Conflict of Interest Law
June 14, 2011. The U.S. Supreme Court has upheld a Nevada conflict of interest law, reversing a state court decision that had struck down the statute on First Amendment grounds. In a case concerning a Sparks, Nevada councilman who voted for a new casino project despite the fact that his campaign manager was being paid as a consultant on an ongoing basis by the casino's developer, the Court rejected the constitutional challenge to the state law. For more information and the opinion, see the Local Government page of this website.

Obama Administration Joins Its Predecessors in Moving Against Regulations and Congress Demands Even More Regulation Reduction
June 3, 2011. The Obama administration is rolling out a series of measures and activities aimed at reducing regulations. These measures were outlined in a speech today before the American Enterprise Institute. The speech, entitled "Regulatory Look-Back: A First Look," was delivered by Cass Sunstein, Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget.
   The Subcommittee on Oversight and Investigations of the House Energy and Commerce Committee is holding a hearing today on the Obama administration's announcements about regulatory reductions. This follows on the aadministration's executive order in January and the OIRA actions that have followed.
   View the AEI video of the speech.
   Read the Sunstein AEI presentation.
   Read the Sunstein Testimony before the House Energy and Commerce Subcommittee on Oversight and Investigations.
   Access the Committee Web Page on the Hearing with Testimony and other Materials.

Former Senator John Edwards Indicted for Alleged Campaign Finance Violations and Related Charges
June 3, 2011. The U.S. Department of Justice has announced the indictment of former Senator and presidential candidate John Edwards on several counts related to alleged campaign finance violations. The Department of Justice explains that the indictment includes: "one count of conspiracy to violate the federal campaign finance laws and to make false statements to the Federal Election Commission (FEC); four counts of accepting and receiving illegal campaign contributions from two donors in 2007 and 2008; and one count of concealing those illegal donations from the FEC." (DOJ Press Release)
Read the Indictment.
Read the Justice Department Press Release.

Supreme Court Rejects Call for Liability for Ashcroft Use of Material Witness Warrants
May 31, 2011. Justice Scalia wrote for the Court rejecting the claim that former Attorney General John Ashcroft's use of material witness warrants to arrest and detain individuals as a way to incarcerate individuals against whom no criminal charges were pending and who were not actually expected to be called as witnesses in pending cases. The Court was unanimous in concluding that there was no clearly established Fourth Amendment protection against the use of material witness warrants charged in this case and therefore the Ninth Circuit erred in rejecting the claim to immunity. However, three members of the Court did not join the majority opinion and criticized the scope and nature of that ruling. Justice Kagan did not participate. Justices Roberts, Kennedy, Thomas, and Alito joined the majority opinion by Scalia. Justices Ginsburg, Breyer, and Sotomayor filed or joined concurring opinions critical of the majority, but joining the judgment that the appeals court erred in its interpretation as to the minimum liability issue.
Read the opinions.

Supreme Court Upholds Arizona Law on Sanctions Against Businesses Who Employ Undocumented Aliens
May 26, 2011. In a fragmented opinion, the Supreme Court upheld Arizona's law allowing sanctions against businesses found to employ undocumented aliens. Chief Justice Roberts wrote for the Court in Chamber of Commerce v. Whiting, No. 09-115, finding that federal immigration law did not preempt the state because of a savings clause in the statute that permits states to take action with respect to licensing. Justice Breyer issued a dissent joined by Justice Ginsburg and Justice Sotomayor issued her own dissent. Breyer points out that while licensing is covered by the savings clause of the Immigration Reform and Control Act of 1986, it specifically preempts civil or criminal sanctions which the Arizona law imposes and is therefore specifically preempted. Justice Sotomayor rejected Chief Justice Roberts' reading of the federal law and concluded that the comprehensive design of federal regulation did not leave room for this kind of state action and was only meant to allow states to take action with respect to licensing where there had been a federal finding of a violation of federal immigration law.
Read the opinion.

Supreme Court Upholds Remedial Order in California Prisons Case
May 24, 2011. A sharply divided Supreme Court in an opinion by Justice Kennedy upheld an order by a three judge federal court to California authorities to reduce prison populations which is the culmination of a twenty year legal battle in which the conditions of California prisons have been deteriorating. Although the state argued that the district court order was premature, Justice Ginsburg pressed attorneys for the state to explain how cases, some of which had been pending for some twenty years and that had produced approximately 70 orders could be had not been fully considered and the current order to reduce the populations could be considered premature. Justice Scalia issued a dissent joined by Justice Thomas while Justice Alito prepared another dissent which was joined by Chief Justice Roberts.
Read the Brown v. Plata opinion.
Read the Oral Argument Transcript in the Case.

Independent Group Issues Report on Upper Big Branch Coal Disaster
May 20, 2011. An independent investigative group appointed by then West Virginia Governor Joe Manchin has issued a report critical of both the company operating the Upper Big Branch Coal mine and the federal agency responsible for safety regulation. Chaired by former federal mine safety regulatory official Davitt McAteer who was director of the Mine Safety and Health Administration, the report contains a variety of recommendations to avoid similar disasters in the future.
Read the report.
Read Governor Earl Ray Tomblin's Press Statement on the Report.

Senators Levin and Coburn Release Investigation Report Wall Street & the Financial Crisis - Anatomy of a Financial Collapse
April 15, 2011. Senators Carl Levin (D, MI) and Tom Coburn (R, OK), the chair and ranking member respectively of the Senate Permanent Committee on Investigations, have issued released the committee's report, entitled Wall Street & the Financial Crisis - Anatomy of a Financial Collapse, and supporting documents, more than 5,900 pages in all. While the report is some 639 pages in length, the Executive Summary is provided on pp. 1-11, with recommendations on pages 12-14.
   In a display of bipartisanship not often seen in the current environment, the committee and its leadership charged that the current economic downturn was in significant part caused by massive conflicts of interest and abuses within the marketplace and by a failure of regulators to regulate and of the Congress to conduct oversight. In the press release for the report, Levin stated: "Using emails, memos and other internal documents, this report tells the inside story of an economic assault that cost millions of Americans their jobs and homes, while wiping out investors, good businesses, and markets. . . . High risk lending, regulatory failures, inflated credit ratings, and Wall Street firms engaging in massive conflicts of interest, contaminated the U.S. financial system with toxic mortgages and undermined public trust in U.S. markets. . . . [T]he report discloses how financial firms deliberately took advantage of their clients and investors, how credit rating agencies assigned AAA ratings to high risk securities, and how regulators sat on their hands instead of reining in the unsafe and unsound practices all around them. Rampant conflicts of interest are the threads that run through every chapter of this sordid story." Coburn added: "The free market has helped make America great, but it only functions when people deal with each other honestly and transparently. At the heart of the financial crisis were unresolved, and often undisclosed, conflicts of interest. . . . Blame for this mess lies everywhere from federal regulators who cast a blind eye, Wall Street bankers who let greed run wild, and members of Congress who failed to provide oversight."
   The documents below include the press release announcing the report and supporting documents, the report itself, and several sets of files that provide the supporting documents.
   Read the press release issued by Chairman Levin.
   Read the Report.
   Access the Footnote and Exhibit Locator.
   Access FN 107 - 1342 (pgs 1-1037).
   Access FN 1343 - 1459 (pgs 1038-2164).
   Access FN 1462 - 1576 (pgs 2165-3003).
   Access FN 1584 - 1622 (pgs 3004-3448).
   Access FN 1623 - 2406 (pgs 3449-4484).
   Access FN 2409 - 2706 (pgs 4485-5459).
   Access FN 2724 - 2831 (pgs 5460-5901).

President Obama Presents His Spending Plan in Response to House Majority Plan
April 13, 2011. President Obama has given a speech offering his administration's proposal for deficit reduction in response to the plan offered on behalf of congressional Republicans by House Budget Committee Chair Paul Ryan (R.- WI). The White House has published a fact sheet on the administration's plan. Both plans are provided below.
Read White House Fact Sheet on the Administration Plan.
Read Budget Committee Chair Representative Paul Ryan's Republican Proposal.

Documents Showing Specific Cuts in the FY 2011 Appropriations Under the Budget Agreement
April 13, 2011. The new continuing resolution, H.R. 1473 has been introduced along with H. Con. Res. 35 and H. Con. Res. 36. Resolution 35 will allow debate on prohibiting any funds to be used to implement the Affordable Care Act and Health Care and Education Reconciliation Act of 2010 while resolution 36 would states that no funds could be made available to Planned Parenthood or any affiliate. The House Appropriations Committee has released a spreadsheet showing cuts by program and both the majority and minority of that committee have released their own summary of the cuts set out in the continuing resolution as offered.
   Read H.R. 1473 text.
   Read H. Con. Res. 35.
   Read H. Con. Res. 36.
   Access House Appropriations Committee Spreadsheet Showing Program Cuts in FY 2011 Continuing Resolution.
   Access the Republican Summary of the Budget Cuts from the House Appropriations Committee.
   Access the Democratic Minority Summary of the Budget Cuts from the House Appropriations Committee.

Government Shutdown Plans in the Event of Failure of Budget Negotiations
April 8, 2011. The Office of Management and Budget has released its memorandum announcing its plans in the event of a federal government shutdown related to the current budget impasse. The Washington Post has provided links to documents for the major federal agencies' planned responses in the event of a shutdown. The Office of Personnel Management has created a website to address questions about the furlough of federal government employees.
   Read the Office of Management and Budget Memorandum.
   Access Agency-by-Agency Shutdown Materials via the Washington Post website.
   Read OPM Frequently Asked Questions for Shutdown Furloughs.

Supreme Court Justices Clash in Case on Liability for Prosecutor Misconduct
April 6, 2011. In another 5-4 ruling, Justices Thomas and Scalia clashed with Justice Ginsburg and three other dissenters over a case about liability for extreme prosecutorial misconduct that led to a death verdict. Justice Thomas wrote for the majority in a case in which death row inmate was later retried and acquited after evidence of deliberate evidence tampering and refusal to disclose clearly exculpatory evidence in the original trial.
Read the opinions.

Supreme Court Denies Standing to Challenge Arizona Religious School Tax Policy
April 4, 2011. In a 5-4, the Supreme Court denied standing to Arizona taxpayers to challenge a state tax policy that . Justice Kennedy wrote the majority opinion in Arizona Christian School Tuition Organization v. Winn (09-987) joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. Justice Kagan wrote the dissent which was joined by Justices Ginsburg, Breyer, and Sotomayor. The case arose from a challenge to an Arizona law that provides a state tax credit to those to contribute to school tuition organizations which are organizations that provide tuition funds to children attending private schools. The ruling further restricts taxpayer standing to bring establishment of religion cases on taxing and spending grounds by distinguishing between appopriations and tax expenditures, according to the dissenters.
Read the opinion.

Federal Judge Blocks Google Books Settlement
March 23, 2011. United States Circuit Court of Appeals Judge Denny Chin has rejected the proposed settlement in the massive google books case, Authors Guild v. Google, 05 Civ. 8136 (D.C.). Judge Chin wrote: "While the digitalization of books and the creation of a universal digital library would benefit many, the ASA [Amended Settlement Agreement] would simply go too far. It would permit this class action -- which was brought against defendant Google Inc. to challenge its scanning of books and display of 'snippets' for on-lin searching -- to implement a forward-looking business arrangement that would grant Google significant rights to exploit enture books, without permission of the copyright owners. Indeed, the ASA would give Google a significant advantage over competitors, rewarding it for engaging in wholesale copying of copyright works without permission, while releasing claims well beyond those presented in the case." Slip opinion at 1-2. Judge Chin had given preliminary approval to the ASA in 2009.
Access Judge Chin's opinion.
Access the Google Webpage that sets forth the text of the Amended Settlement Agreement.

GAO Issues Report Adding Fuel to the Budget Debate
March 8, 2011. Title II of the Public Debt Limit Increase statute, P.L. 111-139 adopted in February 2010 required the the Government Accountability Office produce a report each year that identifies "programs, agencies, officers, and initiatives with duplicative goals and activities with Departments and governmentwide and report annually to Congress on the findings, including the cost of such duplication. . . ." The GAO has released its first such report.
Access the GAO report.

Supreme Court Rules Throws Out Jury Verdict Against Funeral Protesters in Phelps Case
March 3, 2011. The Supreme Court set aside a jury verdict in which a Maryland jury awarded damages against the Westboro Baptist Church led by Rev. Fred Phelps for intention infliction of emotional distress stemming from their demonstration near the funeral for Marine Lance Corporal Matthew Synder who was killed in Iraq. In an opinion by the Chief Justice, the Court found that the speech was public speech and was protected by the First Amendment even against a tort action for damages by the family of the fallen soldier.
Access the Phelps opinion.

Houses Passes Additional Continuing Resolution with Additional Cuts
March 1, 2011. The House has passed H.J.Res 44 which extends the current continuing resolution P.L. 111-117 to March 18, but cuts an additional $4 billion from that amount. Senate leaders have indicated that there will be a prompt vote on the measure.
Read H.J.Res 44.
Access P.L. 111-117.

Presidential Memorandum on Review of Regulatory Impacts on State, Local, and Tribal Governments
March 1, 2011. The White House yesterday issued a presidential memorandum entitled "Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments." The announced intention is as a part of the implementation of the regulatory review order E.O. 13563.
   Read the Administrative Flexibility Memorandum.
   Read the White House Fact Sheet on the Memorandum.
   Access E.O. 13563.

Wisconsin Budget Bill Draws National Controversy
February 25, 2011. The budget bill offered by Wisconsin Governor Scott Walker has drawn controversy because of its efforts to remove public employee collective bargaining rights, but it also contains a wide variety of other provisions that are now attracting attention from analysts and critics.
Read the AB 11.
Read the SB 11.

White House Announces FY2012 Budget Proposal
February 14, 2011. The White House has released the President's budget request for FY 2012. Along with the budget overview document, the White House has issued the traditional "Terminations, Reductions, and Savings" document, the Analytic Perspectives document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the Appendix which is the document that contains the very detailed information on agency budgets and funds.
   The so-called budget-in-brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency are also provided below.
   Access the Web Page for the FY2012 Budget Overview with Links for Each Federal Agency.
   Download the FY 2012 Budget as a single .pdf document.
   Access Agency by Agency Fact Sheets for the FY2012 Budget.
   Access Terminations, Reductions, and Savings for FY 2012.
   Access the Web Site for the FY2012 Budget Appendix -- All detailed information about agencies and funds.
   Access the Analytic Perspectives Document (economic and budget assumptions).
   Access the U.S. Department of Education, Fiscal Year 2012 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2012 Budget-in-Brief.
   Access the Environmental Protection Agency, Fiscal Year 2012 Budget-in-Brief.
   Access USASpending.gov

U.S. District Court in Florida Rules Against Patient Protection Act
February 1, 2011. Federal District Judge Roger Vinson of the U.S. District Court for the Northern District of Florida has issued his opinion in Florida v. HHS, in which 26 states challenged the Patient Protection Act. He found the entire statute exceeded the authority of Congress under the commerce clause and necessary and proper clause. For more information and for the opinion itself, see the Health Care, Disability, and Development page of this website.

National Congress of American Indians Issues State of the Indian Nations Report
January 29, 2011. Jefferson Keel, President of the National Congress of American Indians (NCAI) has presented this year's State of the Indian Nation's Address entitled "Sovereign Indian Nations at the Dawn of a New Era." For more information and links to the documents go to the CIvil Rights Page of this website.

Illinois Supreme Court Restores Emanuel to Chicago Ballot
January 28, 2011. The Illinois Supreme Court has reversed an appellate court ruling that would have removed Rahm Emanuel from the ballot in the upcoming election for Mayor of Chicago.
Read the Illinois Supreme Court Order.
Read the Supreme Court opinion.

Financial Crisis Inquiry Commission Issues Final Report
January 27, 2011. The National Commission on the Causes of the Financial and Economic Crisis in the United States (Financial Crisis Inquiry Commission) has issued its final report. The commission was created when Congress passed the Fraud Enforcement and Recovery Act (P.L. 111-21) in 2009. Six members of the Commission supported the findings, while four issued a dissent to the report. As the commission indicated in its press release: "The crisis was avoidable and was caused by: "Widespread failures in financial regulation, including the Federal Reserve's fairlure to stem the tide of toxic mortgages; Dramatic breakdowns in the corporate governance including too many financial firms acting recklessly and taking on too much risk; An explosive mix of excessive borrowing and risk by households and Wall Street that put the financial system on a collision course with crisis; Key policy makers ill prepared for the crisis, lacking a full understanding of the financial system they oversaw; And systemic breaches in accountability and ethics at all levels." In addition to this summary, the commission has provided a separate link to its conclusions chapter which provides the findings and brief explanations for each.
   Read full report.
   Read the Commission's conclusions.
   Access the Commission's press release accompanying the report.

Congressional Budget Office Issues Economic Projects for 2011-2021
January 27, 2011. The Congressional Budget Office has issued its Budget and Economic Outlook for 2011-2021.
Access the two parts of the report.

President Obama Launches Regulatory Strategy Aimed to Draw Business Support for White House Economic Development Efforts
January 18, 2010. President Obama has published an op-ed piece entitled "Toward a 21st-Century Regulatory System" in the Wall Street Journal today, writing of regulations that place "unreasonable burdens on business -- burdens that have stifled innovation and have had a chilling effect on growth and jobs." His op-ed was timed to match White House announcements of a new executive order on regulation, a fact sheet on the administrations new regulatory policy, and two presidential memoranda.
   Read the President's Wall Street Journal Op-Ed Toward a 21st-Century Regulatory System.
   Read the President's Regulatory Strategy Fact Sheet.
   Read the Executive Order on Improving Regulation and Regulatory Review.
   Read the Presidential Memorandum on Regulatory Compliance.
   Read the Presidential Memorandum on Regulatory Flexibility, Small Business, and Job Creation.

U.S. Attorney Files Complaint in Tucson Shooting
January 9, 2010. The U.S. Attorney for Arizona had filed a complaint against Jared Lee Loughner alleging five counts of murder or attempted murder of federal officials in the performance of their duties, including the attempted murder of Representative Gabrielle Giffords (D., AZ) and her staff members, but also the murder of Federal District Judge John M. Roll and of Gabriel Zimmerman, a member of Congresswoman Giffords' staff.
Read the complaint.

President Signs GPRA Modernization Act
January 7, 2010. The president has signed into law H.R. 2142, the GPRA Modernization Act. The act requires publication of strategic plans online along with reporting of the degree to which performance plans have been met on a quarterly basis. The act also mandates a Federal Government Performance Plan. It assigns responsibilities for the performance requirements of the Act to Chief Operating Officers in each federal agency and also creates within the agencies Agency Performance Improvement Officers and a government wide Performance Improvement Council.
Access the H.R. 2142.

FDSys Replaces GPO Access for Online Access to Government Documents
.January 7, 2010. The new Federal Digital System (FDSys) is about to replace the GPO Access site which has been the portal for accessing federal government documents since the mid-1990s.
Access FDSys.

EPA Moves Forward on Greenhouse Gas Emissions Regulation
December 31, 2010. The U.S. Environmental Protection Agency has announced that it is moving forward with implementation of its obligations to regulate greenhouse gases that contribute to globale warming under the Clean Air Act from fuel-fired power plants and refineries through steps laid out in two consent agreements signed by the agency to resolve litigation. For more information and documents, see the Sustainable Development page of this website.

Food Safety Modernization Enacted at the Eleventh Hour of 111th Congress
December 23, 2010. In a last ditch effort at passage, the Senate passed the Food Safety Modernization Act providing significant new regulatory authority for the Food and Drug Administration. The bill had been roled into the proposed spending package H.R. 3082, but it appeared likely to fail when Republicans and Democrats were only able to agree on a continuing resolution to remain in effect until March. The Senate then put the bill as an amendment in the nature of a substitute into H.R. 2751 with some 18 changes over the food safety bill that had previously passed the Senate and then passed the bill by a voice vote. The House then agreed in a 215-144 vote just before the Congress adjourned the session. The bill now goes to the president for signature.
    Previously, there was an effort to deal with a problem in the version of the legislation that passed the Senate earlier. The House Rules Committee has moved to address the difficulty in legislation that passed the Senate by 73-25, S. 510 -- the FDA Food Safety Modernization Act. It had contained a revenue provision which the Constitution requires come from the House. The House Rules Committee sent to the floor H.R. 3082 - Military Construction and Veterans Affairs Appropriations Act, 2010 (Full-Year FY11 CR and Food Safety). The amended legislation included a full year continuing resolution which was designed to cut spending below the level recommended by the administration and also included the Food Safety Modernization Act (Division D of the bill). The bill H.R. 3082 passed the House by 212-206 and was sent back to the Senate. The amendments to H.R. 3082 were presented and explained with the new bill in the committee report 111-675. Ultimately, H.R. 3082 was stripped of the larger spending bill and a limited continuing resolution was included that maitains spending until March by which time the new Congress is supposed to produce final spending legislation for the current fiscal year.
   Read H.R. 2751 as it passed.
   Access the Rules Committee Report 111-675.
   Read S. 510 as it passed the Senate originally.

House Joins Senate in Votes to Approve Tax Cut Agreement
December 16, 2010. The House has voted 277-148 to approve the tax cut agreement that had already passed the Senate by a vote of 81-19. The vote was to approve H.R. 4853 as amended, known as the Middle Class Tax Relief Act of 2010, that will continue Bush era tax cuts, increases exemptions and reduce rates for inheritance taxes, and includes other provisions which the administraiton and Republican leaders contend will help with further stimulus to the economy. The legislation now goes to the president for signature.
Access the legislation as it passed the Senate.

Fed Issues Notice of Proposed Rulemaking on Debit Cards
December 16, 2010. The Federal Reserve has issued notive of proposed rulemaking for rules implementing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act dealing with debit card fees.
Access the Notice of Proposed Rulemaking as it went to the Federal Register.
Access the Federal Reserve Press Release on the Proposed Rules.

Federal District Court in Virginia Strikes Down Part of the Patient Protection Act While Two Others Reject Challenges to the Legislation
December 2, 2010. Federal District Judge Henry E. Hudson, of the U.S. District Court for the Eastern District of Virginia, has issued his opinion in Commonwealth of Virginia v. Sebelius, Civ. No. 3:10CV188-HEH, has struck down Section 1501 of the Patient Protection Act which requires Minimum Essential Coverage and issued an injunction against its enforcement. Two other district courts have dismissed challenges to the statute. For more information and for the opinions in these cases, go the Health Care, Disabilities, and Development page of this website.

District Court Rejects Suit to Block Targeted Attack on alleged al Qaeda Operative
December 7, 2010. U.S. District Court Judge John D. Bates has issued an opinion dismissing a suit brought by the father of Anwar Al-Aulaqi, an alleged al Qaeda operative with al Qaeda in the Arabian Peninsula, asserting that the president and U.S. intelligence organizations had targeted the son for assassination and seeking a judicial order to block those plans. For more information and link to the opinion in the case, click on the Post 9/11 Policy Actions link on this web page.

Supreme Court Grants Wal-Mart Request for Review in Class Action Suit
December 6, 2010. The Supreme Court has agreed to hear a case brought by Wal-Mart seeking review of a decision filled in April by the U.S. Circuit Court of Appeals for the Ninth Circuit, sitting en banc, that the massive Title VII suit now styled Dukes v. Wal-Mart Stores could proceed as a class action. The arguments at this stage is not about the merits of the TItle VII claims, but to the certification of the class action. For more information and the Court's order on which issues are to be argued, go to the Civil Rights page of this website.

House Votes Censure of Representative Rangel
December 2, 2010. The House of Representatives has voted 333-79 to censure Representative Charles B. Rangel (D., NY). Representative Zoe Lofgren (D., CA), Chair of the House Committee on Standards of Official Conduct, reported to the House H. Res. 1737, a resolution of censure in the matter. An amendment that was offered to reduce the sanction to a reprimand was defeated.
Read the resolution of censure, H. Res. 1737.
Read the committee report on the Rangel matter.

House Adopts Child Nutrition Legislation
December 2, 2010. The House of Representatives has voted on some key legislation related to child nutrition. First the House adopted H.R. 6469 which requires programs receiving federal school lunch money to ensure background checks for employees. The House then moved on to S. 3307, the Healthy, Hunger-Free Kids Act of 2010 which passed 264-157. This legislation has already passed the Senate and will now go to the president for signature. For more information and the text of the legislation, see the Health Care, Disabilities, and Development page of this website.

Two Federal Courts Reject Challenges to the Patient Protection Act
December 2, 2010. Judge Norman K. Moon of the U.S. District Court for the Western District of Virgina has issued his opinion in Liberty University v. Geithner, rejecting the challenge to the Patient Protection Act. District Judge George Caram Steeh issued an opinion in another case challenging the Patient Protection Act, Thomas More Law Center v. Obama, also rejecting the attack on the new law. A variety of other cases are pending in other district courts around the nation.
Read opinion in Liberty University v. Geithner, Western District of Virgina.
Read the opinion in Thomas More Law Center v. Obama, Eastern District of Michigan.

National Commission on Fiscal Responsibility and Reform Releases Draft Report
November 10, 2010. The National Commission on Fiscal Responsibility and Reform, created by President Obama's Executive Order 13531 last February, has a released what is called the "Co-Chairs' Proposal," containing recommended spending cuts and tax changes intended to attack the deficit. Under the order, 14 of the 18 members need to vote in favor of the report to send it to Congress for a vote.
   Access Chairmen's Joint Proposal.
   Access the Commission's Website.
   Read the Executive Order 13531, Creating the Commission .

Oral Argument in Arizona Immigration Case Before Ninth Circuit Televised
November 2, 2010. The United States Circuit Court of Appeals has posted video of the oral argument in USA v. State of Arizona, No. 10-16645, the case examing the injunction issued by the federal district court against Arizona's SB 1070. For more information on this case and other Ninth Circuit oral argument videos, see the Civil Rights page of this website.

Ninth Circuit Stays Federal District Court "Don't Ask, Don't Tell" Injunction
October 21, 2010. A panel of the U.S. Circuit Court of Appeals for the Ninth Circuit has issued a temporary stay of the Federal District Judge Virginia A. Phillips' injunction against the military "Don't Ask, Don't Tell" policy. For more information and links to the stay and motions, see the Civil Rights page of this website.

Supreme Court Agrees to Hear Ashcroft Case
October 19, 2010. The U.S. Supreme Court has granted certiorari in Ashcroft v. Al-Kidd, No. 10-98. The decision by a panel of the U.S. Cricuit Court of Appeals for the Ninth Circuit in September of 2009, reported at 580 F.3d 949 , cleared the way for a liability action against the former Attorney General alleging that his orders concerning the use of material witness warrants in the months following the 9/11 attacks under which individuals were held without charge and without being called as witnesses for extended periods was a constitutional violation for which he should be held responsible in damages. Writing for the two to one majority of the panel, Judge Milan D. Smith, Jr. said: "We are confident that, in light of the experience of the American colonists with the abuses of the British Crown, the framers of our Constitution would have disapproved of the arrest, detention, and harsh confinement of a United States citizen as a 'material witness' under the circumstances, and for the immediate purpose alleged, in al-Kidd's complaint. Sadly, however, even now, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government has the power to arrest and detain or restruct American citisens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or to prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history." 580 F.3d, at 981.
Read the Petition for Certiorari filed by the Solicitor General.
Read the Ninth Circuit opinion.

U.S. Supreme Court Makes Audio of Oral Arguments Available
October 9, 2010. The U.S. Supreme Court has made good on the promise that this term the Court would post the audio of the Court's oral arguments on its website by the end of the week of argument. The October Term for 2010 has begun and the Court has a new page for the oral argument audio in addition to the transcripts which are also available. For full docket information, briefs, and oral argument transcripts and audio, see the Supreme Court Activity section of this webpage.
Access this week's oral argument audio.

Federal District Court Issues Preliminary Injunction Against NIH Stem Cell Research Guidelines
August 24, 2010. Federal district judge Royce C. Lamberth of the U.S. District Court of Appeals for the District of Columbia has issued a preliminary injunction against guidelines for stem cell research supported by federal funds designed to implement President Obama's Executive Order 13,505 intended to support stem cell research. The court issued its preliminary injunction in Sherley v. Sebalius, Civ. No. 1:09-cv-1575 (RCL). Judge Lamberth found that there is a high likelihood that the guidelines will be found to violate the Dickey-Wicker Amendment adopted by Congress in 1996.
   Access the memorandum opinion.
   Access Executive Order 13,505.
   Access NIH Guidelines of April 23, 2009.

Ninth Circuit Holds Stay on District Court California Proposition 8 Gay Marriage Ruling
August 16, 2010. A panel of the U.S. Circuit Court of Appeals granted the motion for a stay pending the decision of the Court of Appeals of the order issued by the district court in its ruling striking down Proposition 8. For details and for the Ninth's Circuit's order on the stay, see the Civil Rights page of this website.

Congressional Oversight Panel Issues Report on Global Context and Effects of TARP.
August 12, 2010. The Congressional Oversight Panel creaed by the Troubled Assets Relief Program (TARP) legislation has released a report indicating that neither at the time of the original policy development nor since has their been sufficient attention to the global context of financial crises and the effects of policies adopted in response to them. The panel's report indicates that more attention should have been paid to these global factors before and certainly should be more actively addressed going forward.
Access the COP report.

The U.S. Senate has Voted to Confirm the Nomination of Elena Kagan as an Associate Justice of the U.S. Supreme Court.
August 5, 2010. The Senate has voted 63 to 37 to confirm the nomination of Elena Kaga as an Associate Justice of the U.S. Supreme Court.
Access the THOMAS record of the nomination and confirmation process.

District Court Rules on California Proposition 8 Gay Marriage Case
August 4, 2010. Chief Judge Vaughn R. Walker of the U.S. District Court for the Northern District of California has issued his findings of fact and conclusions of law in Perry v. Schwarzenegger, No. 3:09-cv-02292, the case challenging California's Proposition 8 banning gay marriage. The complaint alleged violations of the due process and equal protection clauses of the Fourteenth Amendment and 42 U.S.C. Section 1983. Judge Walker agreed. He concluded: "Plaintiffs have demonstrated by overwhelming evidence that Proposition 8 violates their due process and equal protection rights and that they will continue to suffer these constitutional violations until state officials sease enforcement of Proposition 8. . . . Because Proposition 8 is unconstitutional under both the Due Process and Equal Protection Clauses, the court orders entry of judgment permanently enjoining its enforcement; prohibiting the official defendants from applying or enforcing Proposition 8 and directing the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8." Slip opinion, at 136.
Read Special Website for the case in the Northern District of California.
Read the Findings of Fact and Conclusions of Law.

U.S. District Court for Arizona Rules on SB 1070 Injunction Request
July 28, 2010. The U.S. District Court for the District of Arizona had ruled today on the request for an injunction to block implementation of Arizona's SB 1070 which is scheduled to go into effect tomorrow. Judge Susan R. Bolton issued a preliminary injunction against parts of the legislation and let other portions stand, though this is only a preliminary injunction with further proceedings on the merits to follow. For full details on the portions of the statute enjoined and other information on the case, see the Civil Rights page of this website.

President Obama Signs Financial Reforms Bill
July 21, 2010. President Obama has signed H.R. 4173, the Dodd-Frank Wall Street Reform and Consumer Protection Act, which is now Public Law 111-203. The Senate had originally passed its version of the financial reform legislation championed by Senator Chris Dodd (D, Conn.) as the "Restoring American Financial Stability Act of 2010." The Senate actually adopted its legislation as an amendment in the nature of a substitute to the House bill H.R. 4173. That bill was originally pressed in the House side by Representative Barney Frank (D, Mass.) as the "Wall Street Reform and Consumer Protection Act."
Access H.R. 4173 as it passed the House and Senate.

Center for Strategic and International Security Report Finds Human Capital Crisis in Cybersecurity
July 20, 2010. The Center for Strategic and International Studies (CSIA) has released a white paper entitled Human Capital Crisis in Cybersecurity that: "We not only have a shortage of the highly technically skilled people required to operate and support systems already deployed, but also an even more desperate shortage of people who can design secure systems, write safe computer code, and create the ever more sophisticated tools needed to prevent, detect, mitigate and reconsitute from damage due to system failures and malicious acts." p. 2.
Access the pre-publication version of this white paper (July 16, 2010).

Justice Department Seeks Fifth Circuit Ruling in Deep Water Moratorium Case
July 7, 2010. The federal government has filed in the U.S. Circuit Court of Appeals for the Fifth Circuit a motion for a stay of the order issued by U.S. District Judge Martin L. C. Feldman of the Eastern District of Louisiana against the federally imposed moratorium on deep water drilling in the case of Hornbeck Offshore Services v. Salazar. For more information and all relevant documents see the Sustainable Development page of this website.

Department of Justice Files Suit Against Arizona's SB 1070
July 6, 2010. The United States Department of Justice has filed suit in the U.S. District Court for the District of Arizona, seeking to have Arizona's SB 1070 declared pre-empted by the Constitution and federal statutes as well as in violation of the Commerce Clause of the Constitution. For the complaint and brief in the cases, as well as documents in the other cases already filed against the Arizona law, go to the Civil Rights page of this website.

Supreme Court Extends Second Amendment Ruling to States
June 28, 2010. In an opinion by Justice Alito, the Supreme Court has applied the ruling it announced in 2008 in District of Columbia v. Heller, announcing that the Second Amendment provides an individual right to keep and bear arms, to the state and local governments throughout the nation. The ruling came in McDonald v. City of Chicago, a case challenging Chicago's gun control law. Justice Breyer issued a dissent joined by Justices Ginsburg and Sotomayor.
Access the opinion.

Supreme Court Finds a Portion of Sarbanes-Oxley Law Violates Separation of Powers
June 28, 2010. Chief Justice Roberts wrote the opinion for the Court issued today in Free Enterprise Fund v. Public Company Accounting Oversight Board. As Roberts explained it: "the only issue in this case is whether Congress may deprive the President of adequate control over the Board, which is the regulator of first resort and the primary law enforcement authority for a vital sector of our economy. We hold that it cannot." He went on to write: "By granting the Board executive power without the Executive's oversight, this Act subverts the President's ability to ensure that the laws are faithfully executed -- as well as the public's ability to pass judgment on his efforts. THe Act's restrictions are incompatible with the Constitution's separation of powers." Slip opinion at 17. Justice Breyer issued a dissent joined by Justices Ginsburg and Sotomayor.
Access the opinion.

Senate Judiciary Committee Begins Confirmation Hearings for Solicitor General Elena Kagan's Nomination to the Supreme Court
June 28, 2010. The Senate Judiciary Committee begins hearings today for President Obama's nominee U.S. Solicitor General Elena Kagan to replace Justice Stevens on the U.S. Supreme Court. Since she went through confirmation as Solicitor General only a year ago, the questionnaire she submitted at that time is available as are the published and webcast confirmation hearings. They are posted below. In addition, the Judiciary Committee has established a website with documents under consideration by the committee in connection with the nomination.
   Access the Judiciary Committee on the Kagan Nomination.
   Access the Questionnaire completed for the Supreme Court nomination and supporting documents.
   Read her testimony before the Judiciary Committee During Solicitor General Confirmation Hearings.
   Access Kagan's biographical sketch from Solicitor General website.
   Access the webcast of the Hearing on Ms. Elena Kagan's Confirmation for Solicitor General February 10, 2009.
   Access the Published Hearings on Ms. Elena Kagan's Confirmation for Solicitor General February 10, 2009.
   Read the Kagan Questionnaire submitted at the time of her Solicitor General nomination along with responses to written questions and letters submitted.
   Access the collection of Kagan documents and writings posted by the New York Times.

Supreme Court Rules Rejects Efforts to Block Disclosure of Petition Names
June 22, 2010. Writing for the Court in Doe v. Reed, a case that came from challenges to the application of Washington state's Public Records Act to initiative petitions, Chief Justice Roberts rejected assertions that disclosure of petitions, including the names of those signing the petition, would violate the First Amendment rights of those petition supporters. "The issue at this stage of the case is not whether disclosure of this particular petition would vilate the First Amendment, but whether disclosure of referendum petitions in general would do so. We conclude that such disclosure does not as a general matter violate the First Amendment, and we therefore affirm the judgment of the Court of Appeals. We leave it to the lower courts to consider in the first instance the signers' more focused claim concerning disclosure of the information on this particular petition, which is pending before the district court." Slip opinion at 2.
Access the opinion.

Supreme Court Limits "Honest Services" Charges in Announcing Skillings Decision
June 22, 2010. The Supreme Court in an opinion by Justice Ginsburg, rejected long time Enron executive Jeffrey Skillings claim that his criminal case should be overturned because of an inability to get a fair trial, but vacated and remanded his conviction on other charges based on a narrower reading of the concept of "honest services" wire fraud than had been used by the lower courts. The case goes back to the lower court to see if his conviction on conspiracy and other charges can stand. "We therefore hold that Section 1346 covers only bribery and kickback schemes. Because Skilling's alleged misconduct entailed no bribe or kickback, it does not fall within Section 1346's proscription. Skillings v. United States, Slip Opinion, at 2.
Access the Skillings v. United States.

U.S. District Court Issues and Injunction Against the Moratorium on Deep Water Drilling
June 22, 2010. U.S. District Judge Martin L. C. Feldman of the Eastern District of Louisiana has issued a preliminary injunction against the federally imposed moratorium on deep water drilling in the case of Hornbeck Offshore Services v. Salazar, Civ. No. 10-1663.
Access the Order and Reasons.
Access the Order.

Supreme Court Upholds Material Support to Terrorist Groups Statute as Applied to One Group, but Refuses to Rule a Wider Challenge to the Law
June 21, 2010. Writing for the majority in Holder v. Humanitarian Law Project, Chief Justice Roberts rejected the claim that the "Material Support" provisions of the Antiterrorism and Effective Death Penalty Act of 1996 were vague in violation of the Fifth Amendment or violated the First Amendment speech or association rights of the group that brought the challenge. The case was brought by an organization that has sought to teach nonviolent and lawful advocacy skills to groups that had been using armed conflict in order to bring them back from conflict to orderly and lawful political and legal activity. These activities would, according to all parties, place the organization in jeopardy of prosecution under the statute. The Court agreed that their activities could be subject to prosecution, but rejected their challenge to the law. However, Chief Justice Roberts added: "All this is not to say that any future applications of the material-support statute to speech or advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibitions on material support at issue here to domestic organizations. We simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to foreign terrorist groups, Section 2339B does not violate the freedom of speech. . . . We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments." Slip opinion at 34-36.
   Justice Breyer wrote a dissent joined by Justice Ginsberg and Sotomayor. He concluded: "In sum, these cases require us to consider how to apply the First Amendment where national security interests are at stake. When deciding such cases, courts are aware and must respect the fact that the Constitution entrusts to the Executive and Legislative Branches the power to provide for the national definse, and that it grants particular authority to the President in matters of foreign affairs. Nonetheless, this Court has also made clear that authority and expertise in these matters to not automatically trump the Court's own obligation to secure the protection that the Constitution grants to individuals. . . . Cf. Hamdi v. Rumsfeld . . . ('We have long since made clear that a state of war is not a blank check . . . when it comes to the rights of th[is] Nation's citizens.'). . . I believe the Court has failed to examine the Government's justifications with sufficient care. It has failed to insist upon specific evidence, rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And ultimately it deprives the individuals before us of the protection the First Amendment demands." Breyer dissent slip opinion at 23.
    One interesting side note in the case is that a brief was submitted by a group of victims of the McCarthy era. It is posted below along with the other materials in the case.
   Access the Holder v. Humanitarian Law Project Opinion.
   Read the Brief for the Attorney General.
   Read the Brief for the Humanitarian Law Project.
   Access the Amicus Brief of Victims of the McCarthy Era.
   Access the Amicus Brief of the Constitution Project and the Rutherford Institute.
   Read the Supreme Court Oral Argument Transcript.
   Read the Ninth Circuit ruling in the case.

Supreme Court Rejects Illegal Search and Seizure Claim in Public Employee Text Messaging Case
June 17, 2010. The Supreme Court has issued its long awaited ruling in the City of Ontarion v. Quon, rejecting claims by the police officer and those who sent messages to him that the review of the transcripts of the texts sent and received on city equipment without a warrant and after assurances that the employees could use the devices for personal messages was not an unreasonable search in violation of the Fourth Amendment. For more information, see the Local Government page of this website.
Access the City of Ontario v. Quon Opinon.

Supreme Court Rejects Florida Property Takings Claim
June 17, 2010. Although Justice Scalia, writing for the Court in Stop the Beach Renourishment v. Florida Department of Environmental Protection found that judicial decisions could be considered takings under the Fifth Amendment prohibition against taking of property without just compensation, he concluded that the Florida courts had not taken property from beachfront property owners in ruling against them with respect to challenges to beachfront protection property and development policies.
Access the Stop the Beach Renourishment v. Florida Department of Environmental Protection opinion.

Clinton Library Releases Kagan Documents Ahead of Senate Judiciary Committee Confirmation Hearings.
June 12, 2010. The Clinton Library has released documents related to Elena Kagan from her time with the White House Counsel's Office, with respect to her appointment to the U.S. Court of Appeals for the D.C. Circuit, and concerning her work with the Domestic Policy Council. Those documents via the Clinton Library site are posted below.
   Access Office of White House Counsel documents .
   Access files related to D.C.Circuit appointment.
   Access Kagan White House Staff and Office Files Including Domestic Council.
   Access White House Office of Records Management (WHORM) subject file.
   Access Clinton Library Homepage.

Efforts Continue to Reinvigorate Administrative Conference of the United States
June 5, 2010. The Subcommittee on Commercial and Administrative Law of the House Judiciary Committee held hearings on May 20 on the efforts to reinvigorate the Administrative Conference of the United States. The ACUS was dismantled in 1995, but recreated legislatively in 2008. However, no new leader was appointed until Chairman Paul Verkuil was named in November 2009 and confirmed in March 2010.
   Access May House Judiciary Committee Hearings on ACUS.
   Read testimony of ACUS Chairman Paul Verkuil.
   Access testimony of Jeffrey Lubbers Former Research Diretor of ACUS.
   Access Testimony of Justice Stephen Breyer.
   Access the testimony of Justice Antonin Scalia.
   Access the Webcast of the Heating.

Financial Crisis Inquiry Commission Hearings Continue
June 3, 2010. The Financial Crisis Inquiry Commission is continuing with a series of hearings on the financial crisis of 2008 and after. The commission was created by Section 5 of the Fraud Enforcement and Recovery Act of 2009, P.L. 111-21. The statute explains that: "There is established in the legislative branch the Financial Crisis Inquiry Commission to examine the causes, domestic and global, of the current financial and economic crisis in the United States.
   Access The FCIC Website.
   Access P.L. 111-21.
   Access Staff and Commission Reports.
   Access the Hearings and Testimony before the Commission.

Supreme Court Strikes Life Without Parole for Juvenile Offenders in Other Than Homicide Case
May 17, 2010. The Supreme Court in an opinion by Justice Kennedy answered the question "whether the Constitution permits a juvenile offender to be sentenced to life in prison without parole for nonhomicide crime" in the negative today in Graham v. Florida, No. 08-7412. Justices Thomas, Scalia, and Alito dissented.
Access the Graham v. Florida opinion.

Senate Debating Financial Regulation Bill
May 3, 2010. The Senate is currently debating and taking procedural votes with respect to S. 3217 entitled the Restoring American Financial Stability Act of 2010 introduced by Senator Chris Dodd (D-Conn.). The current version of the bill is provided below, however, there are reports that a recently negotiated set of amendments will be formally addressed soon.
   Read S. 3217 as debate began.
   Read the Amendment in the Nature of a Substitute as of April 29, 2010.
   Access the Work of the Financial Crisis Inquiry Commission.

Legal Challenges Launched Against Arizona's Controversial SB1070
April 30, 2010. The first reported suit to challenge the constitutional validity of Arizona's immigration enforcement bill, SB1070, has been brought by a Tucson police officer, Martin H. Escobar, in the U.S. District Court for Arizona. Officer Escobar alleges that the statute violates the First, Fourth, Fifth, and Fourteenth Amendments and is preempted by federal law. The Mexican American Legal Defense and Education Fund, the American Civil Liberties Unition, the ACLU of Arizona, and the National Immigration Law Center have also announced that they are filing suit to challenge the law. To access the text of the Arizona law as well as the Tucson officer's complaint go to the Civil Rights page of this website.

Supreme Court Issues Latest Church/State Ruling
April 29, 2010. The Supreme Court has issued its ruling in Salazar v. Buono, No. 08-472, which concerned a Latin cross placed on federal land in the Mojave National Preserve by the VFW as a memorial to soldiers killed in World War I. In an attempt to protect the memorial Congress included a provision in a Defense Appropriations Act for 2004 that transferred the land to private hands. The lower courts blocked the transfer, but the Supreme Court reversed and remanded the case to the U.S. Circuit Court of Appeals for the Ninth Circuit. While the opinion has attracted a great deal of attention, it is important to note that while Justice Kennedy wrote and opinion for the Court, it was joined in full by only one other member of the Court. Further, the opinion focuses primarily on the way in which the lower courts used their authority to issue the injunction in the case. Justices Scalia and Thomas joined only in the judgment and not the opinion. Alito concurred in the opinion except for the parts that led the Court to remand the case to the lower courts. Four members of the Court dissented, with Justice Stevens writing for three members of the Court and Justice Breyer presenting a separate dissent.
Read the opinion.

Senate Committee Holds Hearings on Bank, Financial Regulator, and Rating Services Failures
April 27, 2010. The Permanent Subcommittee on Investigations of the Senate Homeland Security and Governmental Affairs has been holding hearings on the failure of Washington Mutual which had significant impacts on the Pacific Northwest as well as nationally. These hearings are part of a series of hearings on "Wall Street and the Financial Crisis." The April 13 hearing was on "The Role of High Risk Home Loans" and focused on WaMu and its operation. The April 16 hearings focused on the regulators and particularly on Office of Thrift Supervision and Federal Deposit Insurance Corporation. The April 23 hearing concerned the "The Role of Rating Agencies." The April 27 is on "Investment Banks" and particularly focuses on Goldman Sachs Group, Inc. The exhibits introduced into the record as well as the testimony of witnesses are provided below.
   Also, the Inspector General for the FDIC has issued a full report on its investigation of the FDIC failures in the WaMu failure.
   Access the prepared testimony by witnesses for April 13 hearing.
   Access the Exhibits introduced into the record.
   Access the prepared testimony by witnesses for April 16 hearing.
   Access the Exhibits for the April 16 hearing on the Regulators.
   Read the FDIC Inspector General Report.
   Access the testimony for the April 23 hearing.
   Access the Exhibits for the April 23 hearing on the Regulators.
   Access the Additional Exhibits for the April 23 hearing on the Regulators.
   Access the testimony for the April 27 hearings.
   Access the Exhibits for the April 27 hearing on the Regulators.

IRS Preparing to Remove Tax Exempt Status From Small Organizations that Assumed they were Exempt From Filing Requirements
April 23, 2010. The New York Times, in an article by Stephanie Strom, has called attention to a provision in federal law that will mean that large numbers of nonprofit organizations with revenue under $25,000 that had been exempt from IRA filing requirements will lose their tax exempt status if they filed for the past three years under a little known provision of a 2006 statute. The Pension Protection Act, P.L. 109-280 included those requirements and this year marks the end of the three year period. As an IRS press release explained, "The Pension Protection Act of 2006 requires that non-profit organizations that do note file a required information form for three consecutive years automatically lose their Federal tax-exempt status. This requirement has been in effect since the beginning of 2007." The IRS has established web pages and issued a press release earlier this year warning about the loss of status, but there are still likely to be significant impacts from the changed policy.
   Access the IRS webpage on small Nonprofit filing requirements.
   Read IRS Press Release Explaining Loss of Tax Exempt Status for Nonprofits Who Had Not Filed.
   Read IRS Explanations of Requirements for Small Nonprofits and Regular Files from P.L. 109-280.
   Read P.L. 109-280.

Supreme Court Finds Statute Aimed at Depictions of Animal Cruelty
April 21, 2010. The Supreme Court has issued an opinion written for an 8-1 majority by Chief Justice Roberts, striking down on a facial challenge a federal statute aimed at materials depicting animal cruelty. In United States v. Stevens, No. 08-769, the Court rejected claims by the government that this speech (not the conduct but the depiction of the conduct) was outside the protections of the First Amendment and found the statute overbroad and therefore in violation of the First Amendment's protections.
Read the opinion.

Supreme Court Hears Argument in Police Officer Text Messaging Case
April 19, 2010. The U.S. Supreme Court heard argument today in City of Ontario v. Quon, No. 08-1332, which examines employer authority with respect to public employee text messaging. The case comes from the U.S. Circuit Court of Appeals for the Ninth Circuit. It concerns the city's actions accessing the private text messages sent by a police sergeant using a city text messaging system and raises Fourth Amendment questions about the limits, if any, on the city's ability to access text messages. The Ninth Circuit denied the city's request for a review en banc, but Judge Wardlaw issued a sharply worded opinion concurring in the denial of en banc review and responding to the dissent by Judge Ikuta to the ruling of the three judge panel. For briefs, oral argument transcript, and other materials, see the Local Government page of this website.

Senate Committee Holds Hearings on WaMu and Financial Regulator Failures
April 13, 2010. The Permanent Subcommittee on Investigations of the Senate Homeland Security and Governmental Affairs is holding hearings on the failure of Washington Mutual which had significant impacts on the Pacific Northwest as well as nationally. These hearings are part of a series of hearings on "Wall Street and the Financial Crisis." For more details, testimony, and related documents, see the Washington page of this website.

Justice John Paul Stevens Announces His Retirement
April 9, 2010. Justice John Paul Stevens has announced his retirement from the United States Supreme Court. He indicated in his letter that in order to allow time for appointment of his replacement, he will continue to serve through the remainder of the current term of the Court and will leave once it concludes its work this coming summer. The Court has released brief statements by the other justices, including retired Justices O'Connor and Souter, on Stevens' retirement.
Read Justice Stevens' Retirement Letter.
Access the Statements of the Other Justices on Stevens' Retirement.

EPA AND DOTProduce Greenhouse Gas Emissions Standards
April 1, 2010. The Environmental Protection Agency together with the Department of Transportation has issued a final rule controlling greenhouse gas emissions from vehicles under the Clear Air Act. This issue has been pending since the Supreme Court ruling during the George W. Bush administration mandating action by EPA under the Clear Act provisions. For more information and documents, see the Sustainable Development page of this website.

Federal District Court Rules Against Bush Era NSA Surveillance Program
April 1, 2010. Chief Judge Vaughn Walker of the United States District Court for the Northern District of California has issued a ruling in decision and order in Al-Haramain v. Obama, Case No. C 07-0109 VRW, rendered March 31, 2010. The decision came in a case seeking damages for surveillance of telephone conversation of the Al-Haramain Islamic Foundation and their attorneys, Wendell Belew and Asim Ghafoor, without a warrant in violation of the Federal Intelligence Surveillance Act. The Court rejected any claim by the government that the common law state secrets privilege could preempt the requirements of FISA. It found liability by the government, though the exact nature of the relief to be provided remains to be determined under Judge Walker's order.
Access the Decision and Order.

State Attorneys General File Suit Challenging the Constitutionality of Federal Health Reform Legislation
April 1, 2010. The attorneys general of 13 states, led by the Attorney General of Florida, have filed suit in the United States District Court for the Northern District of Florida challenging the constitutional validity of the recently enacted federal health care legislation, the Patient Protection and Affordable Care Act. For information on the complaint and related documents, go to the Health Care, Disabilities, and Development page of this website.

Health Care Package Completed with Signing of Reconciliation Act
March 30, 2010. The president has now signed the Reconciliation Act of 2010 which contains additions and changes to the Patient Protection and Affordable Care Act, P.L. 111-148 (H.R. 3590) which was signed last week. The Reconciliation Act, H.R. 4872 also contains a number of key provisions on student loans. For all of the relevant documents go to the Health Care, Disabilities, and Development page of this website.

U.S. Government Indicts Malitia Members Allegedly Plotting Violent Attacks
March 29, 2010. The U.S. Attorney for the Eastern District of Michigan has announced an indictment, charging members of a malitia group with members in Michigan, Indiana, and Ohio of planning attacks on law enfocement officers with follow on improvised explosive devices at the funeral they expected would follow.
Access the U..S. Attorney's Press Release.
Read the Indictment.

President Signs Health Care Legislation
March 23, 2010. The president has signed into law H.R. 3590, The Patient Protection and Affordable Care Act, which was passed by Senate on December 24, 2009 and by the House on March 21, 2010. For details and information on the related Reconciliation Act of 2010, see the Health Care, Disabilities, and Development page of this website.

Senate Banking Committee Moves Dodd Financial Regulatory Bill to the Floor
March 23, 2010. The Senate Banking Committee voted yesterday to move the "Restoring American Financial Stability Act of 2010," a bill sponsored by Sentor Christopher Dodd (D., Conn.) to the Senate floor instead of having a prolonged markup session in committee. The bill, which is now in the form of a Chairman's Mark and more than 1,300 pages long, faces a string of amendments that have been promised by the minority party on the Senate floor. The committee has provided a summary of the bill for simple descriptive purposes.
Access the Bill.
Access the Committees Bill Summary.

House Passes Health Care Bills
March 22, 2010. The House voted 219 to 212to pass the Senate health care bill that had passed that body on Christmas Eve. The House also passed additions and changes to the health care plan in the context of the reconciliation act. The Senate bill, H.R. 3590, now goes to the president for signature. The Reconciliation Act of 2010, H.R.4872, which passed by a vote of 220 to 211, now goes to the Senate where it can pass with a majority vote.
The Congressional Budget Office issued a spending and revenue estimate for the health care proposal in the Reconciliation Act on March 18 and a modifed version of the report on March 20. Both are posted below. For all of the relevant documents, go to the Health Care, Disability, and Development page of this website.

FDA Issues New Tobacco Regulations Under Recently Adopted Congressional Authority
March 19, 2010. The Food and Drug Administration has issued it new regulations on advertising and sales of tobacco products aimed at children. The new policy is formally entitled and described by FDA as: "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents, the new rule restricts the sale, distribution, and promotion of these products to make them less accessible and less attractive to kids. Among other things, the rule prohibits the sale of cigarettes or smokeless tobacco to people younger than 18, prohibits the sale of cigarette packages with less than 20 cigarettes, prohibits distribution of free samples of cigarettes, restricts distribution of free samples of smokeless tobacco, and prohibits tobacco brand name sponsorship of any athletic, musical or other social or cultural events." (FDA press release.) This new rule is part of the implementation of the Family Smoking Prevention and Tobacco Control Act, P.L. 111-31, enacted in June of 2009. The act gives "authority to the Food and Drug Administration to regulate tobacco products under the Federal Food, Drug, and Cosmetic Act." Sec. 3. The rule is set to take effect on June 22.
   Access the final FDA rule.
   Access the Family Smking Prevention and Tobacco Control Act P.L. .
   Read the FDA press release on the new rules.
   Read the FDA website explanation of the new regulations.

FCC Issues National Broadband Policy Proposal
March 16, 2010. The Federal Communications Commission has submitted a national broadband plan to the Congress. In its report entitled Connecting America: The National Broadband Plan, the FCC found that: "Nearly 100 million Americans lack broadband at home, and 14 million Americans do not have access to broadband even if they want it. Only 42 percent of people with disabilities use broadband at home, while as few as 5 percent of people living on Tribal lands have access." The plan indicates and intention to address those and other related conditions
   Access the FCC National Broadband Plan.
   Access the Executive Summary of the Broadband Plan.
   Access the FCC News Release on the plan.

Common Core Standards Initiative Issues Draft K-12 Education Standards
March 10, 2010. A group created by the National Governors Association (NGA Center) and the Council of Chief State School Officers (CCSSO) called the Common Core Standards Initiative has released its draft K-12 education standards. Some forty-eight states, the District of Columbia, and three territories have joined in the process to create these standards which the Obama administration has already indicated may be helpful in creating nationwide evaluation standards. The CCSI will be taking public comments on the proposed draft through April 2.
   Access Draft Common Core Standards.
   Access the Common Core Standards Initiative Website.
   Access College and Career Readiness Standards.
   Access the U.S. Department of Education "Race to the Top" Website.

Supreme Court Rejects Challenges to Bankruptcy Abuse Prevention Law
March 10, 2010. The Supreme Court, in an opinion for the Court by Justice Sotomayor, has rejected a challenge against the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. A Court rejected and argument by the law firm that law firm the statute should not be read to include a lawyer or law firm within its regulation of a "debt relief agency." Second, the Court rejected the charge that the language of the statute was a violation of the First Amendment because it prohibits debt relief agencies from giving advice to their clients "to incur more debt in complation of" filing for bankruptcy. The case is Milavetz, Gallop & Milavetz v. United States, No. 08-1119.
Access the opinion.

Obama Administration Announces Loan Guarantees for New Nuclear Plants
February 16, 2010. The president today announced that the federal government would provide $8.33 billion in loan guarantees to support development of two new nuclear power reactors at the Alvin W. Vogtle nuclear plant in Georgia. The loan guarantee program was originally part of the Energy Policy Act of 2005. The Department of Energy issued final rules for implementation of the program in December 2009.
   Read the President's statement on announcing the loan guarantees.
   Read the DOE press release on the loan guarantees.
   Access the final rules for the Loan Guarantees to Projects that Employ Innovative Technologies program.

Obama Administration Moves on Energy Policy by Presidential Directive
February 16, 2010. With the energy bill stalled in the Senate, President Obama is moving through presidential directive on the development of a carbon capture and storage (CCS) policy. He has issued presidential memorandum to the Secretary of State, Secretary of the Treasury, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Transportation, Secretary of Energy, Director of the OMB, Administrator of the EPA, Chair of the Federal Energy Regulatory Commission, Director of the Office of Science and Technology Policy, and the Chair of the Council on Environmental Quality, directing them to "develop within 180 days of the date of this memorandum a proposed plan to overcome the barriers to the widespread, cost-effective deployment of CCS within 10 years, with a goal of bringing 5 to 10 commercial demonstration projects online by 2016. The plan should explore incentives for commercial CCS adoption and address any financial, economic, technological, legal, institutional, social, or other barriers to deployment. The Task Force should consider how best to coordinate existing administrative authorities and programs, including those that build international collaboration on CCS, as well as identify areas where additional administrative authority may be necessary. The Co Chairs shall report progress periodically to the President through the Chair of the Council on Environmental Quality. . . ."
Read the President's Memorandum.

House Joins Senate in Extending Debt Limit
February 4, 2010. The House of Representatives has joined the Senate in approving H.J. Res. 45 which raised the limit on the national debt to $14,294,000,000,000. The resolution also includes the "Statutory Pay-As-You-Go Act of 2010. As a joint resolution, H.J. Res. 45 goes next to the president for his action.
Read H.J. Res. 45.

White House Announces FY2011 Budget Proposal
February 1, 2010. The White House has released the President's budget request for 2011. Along with the budget overview document, the White House has issued the traditional "Terminations, Reductions, and Savings" document, the Analytic Perspectives document which provides the economic and policy assumptions behind the budget, agency by agency fact sheets, and the Appendix which is the document that contains the very detailed information on agency budgets and funds.
   The so-called budget in brief documents which contain detailed program by program information for the Department of Health and Human Services, Department of Education, and the Environmental Protection Agency are also provided below.
   Although the administration has moved away from the PART program, it continues to maintain the PART documents online along with other sites established to announce spending and accountability information. These sites are provided below.
   Access the Web Page for the FY2011 Budget Overview with Links for Each Federal Agency.
   Download the FY 2011 Budget as a single .pdf document (7.4 MB).
   Access Agency by Agency Fact Sheets for the FY2011 Budget.
   Access Terminations, Reductions, and Savings for FY 2011.
   Access the Web Site for the FY2011 Budget Appendix -- All detailed information about agencies and funds.
   Access the Analytic Perspectives Document (economic and budget assumptions 10.3 MB).
   Access the U.S. Department of Education, Fiscal Year 2011 Budget Summary and Background Information.
   Access the U.S. Department of Health and Human Services, Fiscal Year 2011 Budget-in-Brief.
   Access the Environmental Protection Agency, Fiscal Year 2011 Budget-in-Brief.
   Access USASpending.gov
   Access Recovery.gov
   Access OMB PART Summary Ratings by Program.
   Access ExpectMore.gov for Detailed PART Assessments.

DOT Issues Regulatory Guidance on Text Messaging While Driving
January 27, 2010. The Secretary of Transportation announced an effort to stop texting while driving for commercial drivers. The action has been reported as a new policy, but it is presented as a guidance document on existing policy and is being published in the Federal Register as a "Notice of Regulatory Guidance." It remains to be seen whether it will be challenged as a substantive rule requiring full rulemaking procedures under the Administrative Procedure Act.
Read the Guidance.
Read the DOT Press Release.

Supreme Court Overrules Key Precedents Supporting Campaign Finance Regulation
January 21, 2010. The Supreme Court has issued it long awaited ruling in Citizens United v. Federal Election case that flowed out of a controversy over "Hillary: The Movie," a video created for distribution and viewing during the presidential primary campaign and supported by the group known as Citizens United. While the case is complex, involving both prohibitions on campaign messages supported by corporate funds and regulation as to disclosure and disclaimer requirements, perhaps most important in the opinion written by Justice Kennedy was the fact that the Court went well beyond the case as argued below to reach and overrule two key precedents supporting campaign finance regulation, Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990) and McConnell v. Federal Election Commission, 540 U.S. 93 (2003). The Court did not strike all of McConnell, a very large and complex decision, but a portion of it (Id. at 203-209). Justice Stevens wrote an opinion concurring in part and dissenting in part that was joined by Justices Ginsburg, Breyer, and Sotomayor. The first link below is to the final opinion of the Court. The other items are the previous postings on the case which provide the oral and written arguments in the case.
   The Supreme Court sat in special term in September to hear reargument in the very important campaign case entitled Citizens United v. Federal Elections Commission case, No. 08-205. It was also the first case in which Justice Sonia Sotomayor will participate.
   This case arose with respect to arguments about restrictions on the use of a film which the FEC blocked as a campaign activity and the group argued was a documentary protected by free speech. However, the case has taken on particular significance since the justices ordered the counsel in the case to address the question whether the Court should reverse existing precedents on campaign limitations. The order commands: "This case is restored to the calendar for reargument. The parties are directed to file supplemental briefs addressing the following question: For the proper disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990, and the part of McConnell v. Federal Election Comm'n, 540 U.S. 93 (2003), which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002, 2 U.S.C. Section 441b." Miscellaneous Order, 6/29/2009, pp. 2-3. One measure of the expectations of the case is that the docket sheet shows that there have already been 57 briefs amicus curiae filed in the case.
   Read the Supreme Court Opinion.
   Access the first oral argument transcript.
   Access the September 2009 oral argument transcript.
   Access the audio of the reargument via OYEZ.
   Access the supplemental brief for Appellant.
   Access the supplemental brief for Appellee.
   Access the amicus curiae brief by Senator Mitch McConnell.
   Access the supplemental amicus curiae brief for Senators John McCain, Christopher Shays, and Former Representative Martin Meehan.
   Access the original amicus curiae brief for Senators John McCain, Christopher Shays, and Former Representative Martin Meehan.
   Access the docket sheet in the case.
   Access the Court's reargument order.
   Access the brief for Appellant.
   Access the brief for Appellee.

Justice Department Inspector General Issues Critical Report on Access to Phone Records
January 20, 2010. The Inspector General of the Justice Department has issued a critical lengthy report on abuses of the exigent letter process under the Patriot Act and other abuses of informal processes for accessing telephone records of Americans, including reporters.
Read the report.

Supreme Court Rejects District Court Proposal to Broadcast California Proposition 8 Gay Marriage Trial
January 16, 2010. Acting very rapidly, the U.S. Supreme Court rejected a plan by the U.S. District Court for the Northern District of California to provide streaming video of the proceedings from trial in the California Proposition 8 case in other federal courts and later on the Internet. The Court issued a stay on Monday and followed with its per curiam opinion on Wednesday. Although it was an unsigned opinion for the Court, four justices, led by Justice Breyer, issued a sharply worded dissenting opinion. Justices Stevens, Ginsburg, and Sotomayor joined Breyer.
Read the per curiam opinion issued by the Court on 1/13.
Read the stay by the U.S. Supreme Court of the decision to broadcast the proceedings..

President Issues Memorandum to Acquire Illinois Prison for Guantanmo Detainees
January 10, 2010. The president has issed a presidential memorandum, directing the Attorney General to acquire the Thomson Correctional Center, currently an Illinois state prison, for use as a federal facility for Guantanmo detainees. For details and links to the memorandum and transfer evaluation order, do to the Post 9/11 Policy Actions link on this web page.

White House Releases Summary of Findings on Attempted Terrorist Attack
January 7, 2010. The White House has issued a summary of findings with respect to problems associated with anticipating and addressing the attempted terrorist attack on the Northwest Airlines flight on December 25, 2009.
Read the White House Summary of Findings on the 12/25/2009 attempted terrorist attack.

Great Lakes States Battle Over Efforts to Block Invasive Asian Carp
January 3, 2010. The states of Michigan, Minnesota, New York, Ohio, Pennsylvania, and Wisconsin have filed suit against Illinois and the Metropolitan Sanitary District of Greater Chicago, seeking to re a Supreme Court ruling on Great Lakes protection in order to address the apparent threat from the dramatic spread of the invasive species known as the Asian Carp. The existing decree that the complaining states seek to modify was first issued in Wisconsin v. Illinois, 388 U.S. 426 (1967), later modified in Wisconsin v. Illinois, 449 U.S. 48 (1980). The United States has intervened as a defendant in the case. For more information and links to all relevant documents, go to the Sustainable Development page of this website.

Alameda County Superior Court Judge Rules Against California Governor's Imposed State Worker Furloughs
January 1, 2010. Alameda County Superior Court Judge Frank Roesch has ruled against California Governor Arnold Schwarzenegger's imposed furloughs for state workers in a case brought by the Service Employees International Union, Local 1000. These furloughs resulted from two executive orders issued by the governor to address California's burgeoning debt problem. The first, E.O. S-16-08 called upon the Department of Personnel Administration to plan and prepare to implement two days of furloughs for state workers. In July, the governor issue E.O. S-13-09 which called upon DPA to plan and implement an additional day per month of furlough. The court ordered that the governor cease and desist from the mandated furloughs.
   Read the Opinion and Order.
   Read E.O. S-16-08.
   Read E.O. S-13-09.

President Issues Executive Order on Document National Security Classification
December 30, 2009. President Obama has issued a new executive order on national security classification of documents to replace earlier orders issued by the Clinton and George W. Bush administrations. The White House also issued an order that indicates who has authority for classification. It also issued a presidential memorandum on the implementation of the order.
   Access the Executive Order on Classified National Security Information.
   Access the Administrative Order on Original Classification Authority.
   Access the Presidential Memorandum, "Implementation of the Executive Order, 'Classified National Security Information.'"
   Access the Clinton EO 12958.
   Access the George W. Bush EO 13292.'"

Senate Passes Health Care Bill
December 24, 2009. The Senate approved H.R. 3590 by a vote of 60-39. The bill now goes to a long-awaited conference committee with House representatives. For more information and links, see the Health Care, Disabilities, and Development page of this website.

Congress Extends Debt Limit to New High
December 24, 2009. As it wrapped up the 1st Sess. of the 111th Congress, the Senate passed H.R. 4314 which extended the limit on the national debt to $12,394,000,000,000.
Access H.R. 4314.

Department of Justice Releases Another Round of Documents on Interrogation of Detainees in ACLU suit.
December 23, 2009. Once again, the American Civil Liberties Union has posted a variety of documents released as a result of its FOIA suit against the government on interrogations. For the description and links to all of the documents, select the Post 9/11 Policy Actions button from the menu on this page.

White House Moves to Demonstrate Transparency But With Limits
December 16, 2009. In an effort to press its claims to dramatic change in transparency, the OMB has issued an Open Government directive concerning the release of data sets. A website, Data.gov has been launched as a portal to access the information. The Federal Chief Information Officer has followed up with discussion of the implementation of the directive. These actions follow on the January 21, 2009 open government presidential memorandum.
   The Attorney General and Secretary of Homeland Security have also released the report of the Presidential Task Force on Controlled Unclassified Information simply entitled Controlled Unclassified Information. The report recommends "a single, standardized framework for marking, safeguarding and disseminating sensitive but unclassified (SBU) information across the federal government." Press release. These actions followed from a May 2009 presidential memorandum.
   Read the Open Government Directive.
   Read the January 21, 2009 Presidential Memorandum on Transparency and Open Government.
   Read the Federal Chief Information Officers' December 16, 2009 White House statement on data disclosure .
   Access Data.gov.
   Read the White House Announcement of the Open Government Directive.
   Read the Press Release for the Presidential Task Force on Controlled Unclassified Information Releases Report, December 16, 2009.
   Read the Controlled Unclassified Information.
   Read the Presidential Memorandum on the Presidential Task Force on Controlled Unclassified Information Releases.

FTC Moves Against Intel for Alleged Anti-Trust Violations
December 16, 2009. The Federal Trade Commission has filed a administrative complaint against Intel corporation.
Read the FTC Administrative Complaint.

Supreme Court to Hear a Case on Police Officer Text Messaging
December 14, 2009. The U.S. Supreme Court has agreed to hear the City of Ontario v. Quon, No. 08-1332. The case comes from the U.S. Circuit Court of Appeals for the Ninth Circuit. It concerns the city's actions accessing the private text messages sent by a police sergeant using a city text messaging system and raises Fourth Amendment questions about the limits, if any, on the city's ability to access text messages. For more information and links to the lower court opinions, see the Local Government page of this website.

House Passes Financial Regulation Bill
December 11, 2009. THe House of representatives has passed H.R. 4173, The Wall Street Reform and Consumer Protection Act of 2009 by a vote of 223 to 202. House Financial Services Committee Chair Barney Frank (D, MA) moved this legislation, consolidating a number of regulatory efforts aimed at financial institutions to the floor for debate.
Read the Bill.

Federal Court Judge Holds the United States in Contempt of Court in Guantanamo Case
December 11, 2009. U.S. Federal District Judge Gladys Kessler has issued a memorandum order, finding that: "On this record there is no question that there is clear and convincing evidence that the Government has violated a clear and unambiguous Court Order. Therefore, this Court now holds the United States Government in civil contempt." Al-Adahi v. Obama, Civil Action No. 05cv-280 (GK), slip opinion at 4. The problem arose in connection with a habeas corpus proceeding involving a Guantanamo Bay detainee. Specifically, Judge Kessler "ORDERED, that the United States Department of Defense hereby adjudged and decreed to be in civil contempt of Court for failing to comply with this Court's Order of June 19, 2009, directing Respondents to videotape Petitioner's testimony at the Merits Hearing in this case, and then to redact and maintain a copy of that recording." Id. at 8. Among other things she ordered that a copy of the transcript of his testimony be posted on the United States District Court Public Information Page for Guantanamo Bay Cases.
Read the Memorandum Order.
Access the United States District Court Public Information Page for Guantanamo Bay Cases .

Supreme Court Hears Argument in Challenging the Constitutional Validity of the Public Company Accounting Oversight Board
December 8, 2009. The Supreme Court has heard oral argument in a case challenging the Public Company Accounting Oversight Board created by the Sarbanes/Oxley legislation of 2002 that followed major corporate accounting scandals. The petitioners in No. 08-861, Free Enterprise Fund v. Public Company Accounting Oversight Board, challenged the provisions of the statute that created the PCAOB as a violation of the separation of powers. However, if successful, the challenge could provide a foundation for challenges to independent regulatory bodies more generally.
   Read the oral argument transcript.
   Access the Petitioner's Brief.
   Access the Respondent PCAOB Brief.
   Access the Respondent U.S. Brief.

Supreme Finds Failure to Address Post-Military PTSD Was Part of Failure of Counsel in Death Penalty Case
December 4, 2009. The Supreme Court issued a per curiam ruling in Porter v. McCollum, No. 08-1053 on November 30, reversing the Elventh Circuit and finding that there had been a failure to provide adequate counsel in the penalty phase of a capital case in part because of the failure of the defense lawyer to present evidence of Post Traumatic Stress Syndrome due to military service. The defendant had seen multiple extreme combat situations in Korea and suffered from PTSD thereafter. There were other factors cited by the Court that demonstrated failure of counsel, but the PTSD was a centerpiece of the opinion.
Read the Opinion.

Senate Foreign Affairs Staff Report on Effort to Find Osama bin Laden
November 29, 2009. A Senate Foreign Affairs majority staff report addresses the failure to find Osama bin Laden in the Tora Bora mountains in following the U.S. attack on the Taliban regime in Afghanistan. See the Post 9/11 Policy Actions link on this page.

Federal District Court Issues Major Opinion on Katrina Canal Breaches and Corps of Engineers Reponsibility
November 19, 2009. Judge Stanwood R. Duvall, Jr., of the U.S. District Court for the Eastern District of Louisiana has issued a major ruling in the complex litigation brought to demonstrate liability on the part of the U.S. Corps of Engineers and seeking damages for the management of canal and levee system that failed during hurricane Katrina. In his findings of fact, Judge Stanwood concluded: "[T]he Court finds that the Corps' negligent failure to maintain and operate the MRGO properly was a substantial cuase for the fatal breaching of the Reach 2 Levee and the subsequent catastrophic flooding of the St. Bernard Polder occurred. This Court is utterly convinced that the Corps' failure to provide timely foreshore protection doomed the channel to grow to two to three times its design width and destroyed the banks which would have helped to protect the Reach 3 Levee from the front-side wave attach as well as loss of height. In addition, the added width of the channel provided an added fetch which created a more forceful frontal wave attack on the levee. Slip opinion at 88. "Clearly, the Corps failed to maintain and operate the MRGO in a manner so as not to be a substantial factor in the destruction of the Reach 2 Levee. In addition, it failed to take action that it could have taken to place foreshore protection using the very operation and maintenance funds which to be sufficient to fund these actions in the 1990s. Instead, it ignored the safety issues for the inhabitants of the region and focused solely on the maritime clients it services so well. Furthermore, the Corps failed to inform Congress of the dangers which it perceived and/or should have perceived in the context of the environmental damage to the wetlands caused by the operation and maintenance of the MRGO; in no manner can that decision be shielded by the discretionary function exception." Id. at 120-121. The Court went on to award damages for the four of the plaintiffs but ruled for four of the plaintiffs but ruled in favor of the government with respect to two others. Id. at 155-156. The question remains whether there wil then be additional claims.
Read the opinion in In re Katrina Canal Breaches.
Access Eastern District of Louisiana Website on Katrina Canal Breaches Consolidated Litigation.

New York Attorney General Files Major Antitrust Action Against Intel
November 4, 2009. New York Attorney General Andrew Cuomo has filed a major antitrust suit against Intel Corporation in U.S. District Court for Delaware alleging that the computer chip maker "used threats and coercion, brining and bullying to preserve its market dominance." New York v. Cuomo, Complaint, at 3.
Read the complaint.
Access the New York Attorney General's press release on the case.

House Financial Services Committee Takes Up Another Part of Its Response to Market Failures
October 28, 2009. The House Financial Services Committee will take up another piece in the package of legislation that it has developed in response to the market collapse of 2008 with hearings tomorrow on "Systemic Regulation, Prudential Matters, Resolution Authority and Securitization." The Secretary of the Treasury and Chairman of the Financial Services Committee yesterday released a preliminary draft of the legislation to address this topic.
   The hearings on the Systemic Regulation proposal comes as the committee has completed markup and has voted to send a set of consumer protection bills to the floor with the support of the committee. The bills include the H.R. 3126 the Consumer Financial Protection Agency Act of 2009, H.R. 3763 which is the CARD Reform for Consumers Act of 2009, H.R. 3639, the Expedited CARD Reform for Consumers Act of 2009, and H.R. 3795, Over-the-Counter Derivatives Markets Act of 2009. The committee has also sent forward H.R. 3818, the Private Fund Investment Advisers Registration Act, introduced by Congressman Paul E. Kanjorski (D-PA). The committee is scheduled to vote today on H.R. 3817, the Investor Protection Act and H.R. 3890, the Accountability and Transparency in Rating Agencies Act which are expected to pass and go on for a vote of the House. These bills follow in the wake of abuses brought to light over the past year. These bills also follow hearings held in July.
   Access House Financial Services Committee Hearing Page for Systemic Regulation, Prudential Matters, Resolution Authority and Securitization.
   Access House Financial Services Committee Press Release on the Systemic Regulation, Prudential Matters, Resolution Authority and Securitization with preliminary parts of the legislation proposal.
   Read H.R. 3818.
   Read H.R. 3817.
   Read H.R. 3890.
   Access H.R. 3763.
   Access H.R. 3639.
   Access H.R. 3795.
   Access H.R. 3126.
   Access House Financial Services Committee Markup Page.
   Access House Financial Services Committee Hearings Page.

Senate Environment and Public Works Committee Holds Hearings on Kerry-Boxer Energy Bill
October 27, 2009. The Senate Environment and Public Works Committee is holding hearings on the S. 1733 Clean Energy Jobs and American Power Act, also known as the Kerry-Boxer Bill. This follows the passage in the House of the Waxman-Markey bill H.R. 2454. For more information and documents see the Sustainable Development page of this website.

TARP Special Inspector General Issues Report to Congress
October 21, 2009. The Special Inspector General for the Trouble Assets Relief Program has issued its October 2009 report to Congress. The report begins by noting success and then addresses three types of costs that are worthy of Attention. "More than a year has now passed since the Emergency Economic Stabilization Act of 2008 ("EESA") authorized creation of the Troubled Asset Relief Program ("TARP"), and preliminary assessments of TARP -- both its effectiveness and its costs -- can begin to be made. As to effectiveness, there are significant signs of improvement in the stability of the financial system. . . . On the cost side of the ledger, although it will take many years to assess all of the costs associated with TARP, financial and otherwise, this report begins to categorize them. It is useful to analyze any Government intervention in the market like TARP against three distinct types of cost: the financial cost to the taxpayerss; the "moral hazard" damage to market incentives created by Government intervention; and a cost that has received scant attention thus far -- the impact on Government credibility due to the failure to explain what isbeing done with billions of taxpayer dollars transparently and forthrightly. The part year has demonstrated that TARP's costs, in each category, could prove to be substantial.
   Read the SIGTARP October 2009 Report to Congress.
   Read the SIGTARP April 2009 Report to Congress.
   Read S. 383.
   Access the TARP Special Inspector General Website.

With Approval by Ireland, the Lisbon Treaty Moves Forward
October 7, 2009. Ireland is the latest to approve the Lisbon Treaty (formally the "Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007") which is the latest round of amendments to the EU governing institutions. The EU has also published a "Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union." For these and other EU documents see the following postings.
   Access the Consolidated version.
   Access the Treaty of Lisbon.
   Access European Union Law "Eur-Lex"

U.S. EPA Announces Greenhoue Gas Reporting Rule and Proposes Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rules
October 3, 2009. The U.S. EPA has issued a final rule creating a greenhouse gas reporting system and also just announced a proposed rule aimed a limiting greenhouse gas emissions. For details and links to the documents see the Sustainable Development page of this website.

Executive Order Bans Text Messing While Driving for Federal Employees
October 3, 2009. President Obama has issued an executive order that prohibits federal employees from text messaging while driving federal vehicles or driving private vehicles on official business. The order also encourages, though it does not require, federal contractors to bar texting by their employees as well. Section 4 of the order provides: "Each Federal agency, in procurement contracts, grants, and cooperative agreements, and other grants to the extent authorized by applicable statutory authority, entered into after the date of this order, shall encourage contractors, subcontractors, and recipients and subrecipients to adopt and enforce policies that ban text messaging while driving company-owned or -rented vehicles or GOV, or while driving POV when on official Government business or when performing any work for or on behalf of the Government."
Read the Order.

Baucus Bill Moves to Markup
September 29, 2009. The debate in markup of the health care proposal offered by the Chair of the Senate Finance Committee Max Baucus (D-MT) entitled the America's Healthy Future Act of 2009 is still in process. For the relevant documents and links to the video of the markup, please see the Health Care, Disability, and Development page of this website.

Congress Passes Continuing Resolution to Maintain Government Operations in an Unusual Manner
September 26, 2009. Congress yesterday adopted the conference committee report to accompany H.R. 2918 which was the appropriations bill for the legislative branch. However, the Congress dealt with the need for a continuing resolution to cover the rest of government spending as the new fiscal year begins on October 1 by adding Division B to the conference report of the bill (Rpt. 111-265). It provides for continuing expenditures at the current rate. Section 106 provides that "Unless otherwise provided for in this joint resolution or in the applicable appropriations Act for fiscal year 2010, appropriations and funds made available and authority granted pursuant to this joint resolution shall be available until whichever of the following first occurs: (1) the enactment into law of an appropriation for any project or activity provided for in this joint resolution; (2) the enactment into law of the applicable appropriations Act for fiscal year 2010 without any provisions for such project or activity; or (3) October 31, 2009.
Read the Conference Report.

D.C. Circuit Rules in EMILY's List Campaign Finance Case
September 10, 2009. A panel of the U.S. Circuit Court of Appeals for the D.C. Circuit has struck down Federal Election Commission rules covering certain aspects of the operation of non-profit advocacy organizations known as "527s". The case was brought by EMILY's List, charging that the rules developed after the 2004 elections violate the First Amendment. The D.C. Circuit concluded that: "the First Amendment, as the [Supreme] Court has construed it, safeguards the right of citizens to band together and pool their resources as an unincorporated group or non-profit organization in order to express their views about policy issues and candidates for public office. We agree with EMILY's List that the new FEC regulations contravene those principles and violate the First Amendment.
Read the Opinion.

Public Law, Policy, and Public Administration Archive Entries Available
September 8, 2009. It is that time of the year when it is necessary to remove older information from the site. The "What's New" section has been edited to remove information before August 2008. However, since some users of the site find the older entries of continuing interest, those entries have been placed in a "What's New -- Archives" page that can be accessed from this page. See the menu at the top of the page.

Court of Appeals Rejects Ashcroft Claim of Immunity in Material Witness Abuse Case
September 5, 2009. A Ninth Circuit panel has rejected claims to absolute or qualified immunity by former Attorney General Ashcroft in a suit brought by an American citizen arrested and detained under a material witness warrant. Al-Kidd v. Ashcroft, CV-05099983-EJL. Circuit Judge Milan D. Smith, Jr. wrote for the panel: "Sadly, however, even nor, more than 217 years after the ratification of the Fourth Amendment to the Constitution, some confidently assert that the government the power to arrest and detain or restrict American citizens for months on end, in sometimes primitive conditions, not because there is evidence that they have committed a crime, but merely because the government wishes to investigate them for possible wrongdoing, or prevent them from having contact with others in the outside world. We find this to be repugnant to the Constitution, and a painful reminder of some of the more ignominious chapters of our national history. Slip opinion at 12325.
Read the Opinion.

S.E.C. Inspector General Issues Critical Report in the Madoff Matter
September 3, 2009. The Inspector General for the Securities and Exchange Commission has issued a report entitled Investigation of Failure of the SEC to Uncover Bernard Madoff's Ponzi Scheme. The executive summary is available now with the full report to follow. The Chair of the S.E.C. has issued a statement in response to the report and has released a set of corrective actions that she indicates were in development prior to the report.
   Read the Report Executive Summary.
   Read the S.E.C. Chair statement.
   Read the S.E.C. Corrective Actions Document.

CIA Inspector General Releases Report on Detainee Interrogations
August 25, 2009. The CIA Inspector general report on detainee interroga3tions has been released. The report entitled "Counterterrorism Detention and Interrrogation Activities," was prepared in May 2004, but was required to be released with less material redacted due to a FOIA suit by the American Civil Liberties Union. There are also several related documents that were also released.
   Read the CIA Inspector General Report via NY Times.
   Read the CIA Inspector General Report via ACLU.
   Read the March 7, 2003 CIA business plan discussing RDI program.
   Read the January 31, 2003 Draft psychological assessment of Abu Zubaydah.
   Read the November 20, 2002 Spot report discussing interrogation of al-Nashiri.
   Read the July 24, 2002 Draft psychological assessment of Abu Zubaydah.
   Read the Undated certification sheet used in interrogation training.
   Read the Undated blank "Enhanced Pressures" sheet used for waterboard training.
   Read the July 17, 2003 Interview with a senior CIA officer regarding CIA RDI program.
   Read the January 22, 2003 Email with attachment spot report regarding interrogation of al-Nashiri.
   Read the CIA Director's Message to Employees on Release of the Report.

Attorney General and Task Force React to Interrogation Abuses
August 25, 2009. Attorney General Eric Holder has announced a report by the Special Task Force on Terrogations and Transfer Policies. In response to that report, the CIA IG report, and the report of the Office of Professional Responsibility, he has also announced the appointment of Assistant United States Attorney John Durham to investigate. Holder said: "Durham was appointed in 2008 by then-Attorney General Michael Mukasey to investigate the destruction of CIA videotapes of detainee interrogations. During the course of that investigation, Mr. Durham has gained great familiarity with much of the information that is relevant to the matter at hand. Accordingly, I have decided to expand his mandate to encompass this related review."
   The Justice Department also released additional memoranda prepared by the Department of Justice on interrogations. For the full set of such memoranda released to date, go to the Post 9/11 Policy Actions part of this webpage.
   Read the DOJ Announcement of the report of the Special Task Force on Interrogations and Transfer Policies.
   Read Attorney General's Announcement of Investigation Into Detainee Treatment.

U.S. District Court Rules Against Treasury Department Seizure Action
August 19, 2009. Chief Judge James G. Carr of the U.S. District Court for the Northern District Ohion has issued a ruling in Kindhearts for Charitable Humanitarian Development v. Geithner, Case No. 3:08CV2400, which challenged the Treasury Departments blocking actions against the charity Kindhearts under Executive Order 13224. The judge found that the actions violated the Fourth Amendment, due process, and that they were arbitrary and capricious.
Read Judge Carr's Opinion and Order.

U.S. Attorney Files Criminal Charges in Massive Hacker Attack Case
August 18, 2009. The U.S. Attorney for the District of New Jersey has released an indictment against a Mr. Albert Gonzalez and two unnamed hackers allegedly located "in or near Russia." The indictment alleges that the defendants conspited to hack into and take credit and debit card information to be sold from massive data sources.
Access the indictment.

Congressional Oversight Panel Reports that Banks Still Face Significant Dangers
August 11, 2009. The Congressional Oversight Panel established by the Troubled Assets Relief Program (ARP) has issued its latest report which indicates that many banks still face significant risks from potentially risky loans and continued and perhaps growing inability to repay by those who are now and or are likely to be unemployed in the months ahead. The report is entitled The Continued Risk of Troubled Assets. (NOTE: This site has had some difficulty with the file this morning and the file may be unavailable while the problem is being fixed.)
Access the report.
Access the Congressional Oversight Panel website.

Sonia Sotomayor Takes Oath as Associate Justice of the U.S. Supreme Court
August 8, 2009. Chief Justice Roberts administered the judicial oath to Justice Sonia Sotomayor today. The U.S. Senate voted 68-31 to confirm 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. .
   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.

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

The Court Begins Its October Term 2008 Term
October 5, 2008. Following its tradition, the U.S. Supreme Court will begin its October 2008 term on the first Monday in October. The Court has published the schedule of cases for oral arguments from this first week through the first week of December. To review the docket, locate briefs in pending cases, or access the oral argument schedules. Go to the "Supreme Court Activity" section of this web page below (or click on the link in the menu at the top of this page).

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. (OMB Watch later became the Center for Effective Government.)
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 "Report in Brief".
    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.

The Court Begins Work on Its October Term 2008
The "On the Docket" site that was formerly done through the Medill School of Journalism of Northwestern University is now part of OYEZ project. The link is to the October 2008 docket. Past dockets are also available through the "On the Docket" site.
   Review the Docket through "On the Docket."
The U.S. Supreme Court's Oral Arguments page is a good one stop site to find transcripts of oral arguments, schedules, and briefs.
   U.S. Supreme Court Oral Arguments Page
The U.S. Supreme Court's Opinions page provides recently issued opinions and previous years as well.
   U.S. Supreme Court Opinions Page.
View the Docket via Findlaw.com.
   Review the Docket by Month and Case
The American Bar Association operates a "Preview" page with the the supreme court briefs that are available.
   U.S. Supreme Briefs on Line Page
The U.S. Solicitor General posts briefs filed for the United States in the U.S. Supreme Court.
   Solicitor General U.S. Briefs
Oral Argument Audio, Opinions, and other Supreme Court Information via "OYEZ."
   Access "OYEZ"

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."

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

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

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

For Post 9/11 Policy Actions Click Here

Public Law Resources -- See Main Page

General Legal Research Sites -- See Main Page