Author Archive | John Elwood

Interesting Free Exercise Clause Petition

A lot of ink has been spilled over the years about how much the Free Exercise Clause should keep courts from addressing employment disputes between houses of worship and clergy. Because such employment disputes frequently hinge on matters implicating faith, courts are often loathe to become involved. Such concerns arise most obviously when a house […]

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Supreme Court Relist watch

Of last week’s eight relists (discussed here), two were denied today: Stroud v. Blount and Wong v. Smith, the latter over the dissent of Justice Alito (joined by the Chief and Justices Scalia). Those were both cases on their first relist. The rest all appear to have been relisted yet again, so Alderman is on […]

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“Alito may skip State of Union”

Or so reports the Associated Press (available in the Washington Post). The justice said the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.” * * * * * The better course, Alito said, is to follow the example […]

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President Obama’s Second Pocket Veto

In other Executive-Legislative relations news, today the White House announced that President Obama was using the second “pocket veto” of his presidency to disapprove H.R. 3808, the “foreclosure documents” bill.  The official name of the bill is, if I am not mistaken, the Interstate Recognition of Notarizations Act of 2010, which has to set a […]

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President Obama Issues Another Signing Statement

In my efforts to bore readers into submission, I’ve blogged a fair amount here about presidential use of “constitutional signing statements.” As then-Assistant Attorney General Walter Dellinger explained early during the Clinton Administration, such signing statements are frequently used to “express[] the President’s intention to construe or administer a statute in a particular manner (often […]

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RICO Extraterritoriality: The Second Circuit Weighs In

In late June, I posted on the Supreme Court’s recent decision in Morrison v. National Australia Bank, which included a very full-throated reaffirmation of the presumption against extraterritorality.  I noted in my post that “[t]he Court’s opinion has implications for a petition that the Court considered at its private conference yesterday, British American Tobacco Co. […]

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DAAG Marty Lederman to leave OLC

Another member of the Obama Administration’s “beachhead team” is leaving OLC. About one month after Acting Assistant Attorney General David Barron announced that he was returning to Harvard Law School, Deputy Assistant AG Marty Lederman has announced he’s leaving the Office in August and will return to Georgetown University Law Center this fall. I understand […]

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President to Recess Appoint Donald Berwick

So the New York Times is reporting that President Obama will recess appoint Dr. Donald M. Berwick to be administrator of the Centers for Medicare and Medicaid Services. The agency has been without a permanent administrator since October 2006. The Times reports: The recess appointment was somewhat unusual because the Senate is in recess for […]

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Free Enterprise Fund: The Lopez of Separation of Powers Doctrine

I have long thought that if the Court invalidated any provision of Sarbanes-Oxley in Free Enterprise Fund v. PCAOB, 08-861, it would base its decision on the Act’s dual good-cause removal restrictions for Board members. First, because that was the strongest claim as a matter of doctrine. But also because doing so wouldn’t break much […]

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The Supreme Court and Extraterritoriality: Yesterday’s decision in Morrison v. National Australia Bank

The “Honest Services” fraud cases are getting all the attention.  But I think the relatively little-noticed decision in Morrison v. National Australia Bank, 08-1191, may be as significant (although I have my doubts, as set forth below, about its potential long-term impact).  The case involved a claimed securities fraud scheme that mostly occurred in Australia […]

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Two New OLC opinions; OLC Overrules 1993 Emoluments Clause Opinion

Two OLC opinions were published today, both quite recent, and both concerning bread-and-butter issues for that Office (note the capital “O,” from force of habit). 1.  Emoluments Clause.  It is hard to make the Emoluments Clause sound interesting or important, particularly because most people think an “emolument” is something you put on a rash.  But […]

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OLC in the News

Two items of interest today. First, the Post has an op-ed by Dawn Johnsen, who withdrew as nominee to be head of OLC after her nomination languished in front of the Senate, entitled (in the print edition) “Mending the Office of Legal Counsel.” It addresses a number of subjects, but the central thrust is to […]

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