One question that quite fascinates me is whether the original meaning of the Constitution is “the law” — in the sense that it describes the positive law of the United States. Mike Rappaport has a pair of posts exploring this question: here’s the first, here’s the second. Ultimately, he concludes that originalism is not against […]
Author Archive | Will Baude
Same-Sex Marriage (Ex Post) Upheld in Indiana
One interesting issue I encountered in my various research projects on marriage is how transgender individuals interact with the law of same-sex marriage. For example, if a couple is originally married as a man and a woman, and one of the parties later changes their legal sex, does that invalidate the marriage (if the state […]
Hart on Discretion
The Harvard Law Review contains a new essay on discretion by the late, great, H.L.A. Hart. The essay has apparently long been thought lost and never been published before. The essay was discovered by law student Geoffrey Shaw, who has written an article analyzing it. (Not that I deserve any credit, but I’m pleased to […]
Eight People (Including Ezell Gilbert) Pardoned
Today President Obama commuted the sentences of eight people all serving long crack sentences that might well be illegal if given today. Charlie Savage reports: “It was the first time retroactive relief was provided to a group of inmates who most likely would have received significantly shorter terms if they had been sentenced under current […]
Wind Farm Permits to Kill Protected Eagles
By Will Baude on December 7, 2013 10:32 am in Endangered Species, Environment, Religion and the Law, Religious Freedom
Yesterday the Department of Interior finalized a rule that allows wind farms to get 30-year permits allowing them to kill federally-protected eagles. Eagles are frequent accidental victims of power plants and wind turbines, and the government has long taken the position that it is a federal crime to kill an eagle even unintentionally. To get […]
Further Thoughts on the Precedential Status of Decisions Affirmed on Alternate Grounds
Orin asks below about the precedential status of circuit court opinions — like the D.C. Circuit’s opinion in Maynard — that have been affirmed by the Supreme Court, but under different analysis. Like Orin, I think it’s a very interesting question, but I confess my instinct about the answer is different from his. Here are […]
Constitutional Law Scholars’ Noel Canning Amicus, Part III: Pro Forma Sessions
The third issue addressed in our amicus brief is the validity of the Senate’s pro forma sessions under the Recess Appointments Clause. To avoid the force of the historical definitions of “happen” and “recess,” one would need to argue that the more modern practice is what should be controlling. But under modern practice, we argue, […]
Captioned Headings in a Supreme Court Opinion [UPDATED]
Justice Scalia’s opinion today in United States v. Woods is a minor loss for the taxpayer bar, overturning a longstanding Fifth Circuit doctrine that made it harder for the government to impose exorbitant penalties when it successfully invalidated a transaction as a tax shelter. [Full disclosure: In private practice, I worked on Bemont v. United […]
Jim Hannah on “Abandoned Practices” of Dead or Disbarred Lawyers
I spent Thanksgiving weekend in Ohio, where our local paper ran a quite interesting story about the chaos that can ensue for his/her clients when a lawyer dies or is disbarred. If the lawyer is part of a firm, the other lawyers at the firm generally have an obligation to continue the representation; but if […]
Constitutional Law Scholars’ Noel Canning Amicus, Part II: “Recess” and “Session”
The second issue addressed in our amicus brief is what the Recess Appointments Clause means by “recess” and “session.” Our brief discusses the original meanings of these terms, as well as the structure, purpose, and history that clarify the meanings of those terms in context. Most importantly, we argue that the Senate cannot be in […]
Zachary Price on the Constitution and Enforcement Discretion
People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention […]
“During the Recess”
The Recess Appointments Clause, recall, says: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” Several readers have asked about which verbs are modified by the phrase “during the Recess.” It has […]
Thanksgiving Wishes from Washington and Jefferson
Happy (American) Thanksgiving to all readers! And some Thanksgiving thoughts from Presidents Washington and (below the fold) Jefferson: President Washington: Whereas it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor … Now […]
Constitutional Law Scholars’ Noel Canning Amicus, Part I: The Original Meaning of “Happen”
Yesterday I posted the amicus brief that I and a group of constitutional law scholars filed in the Court’s recess appointments case, Noel Canning. Taking a page from Eugene, I thought I’d put break our argument out into three blog posts this week, for those who are curious but don’t want to read through the […]
“No Instrument Could Long Endure Such Experiments.”
One of my favorite historical documents about recess appointments is the Senate Judiciary Committee’s 1863 report on the meaning of the Clause. (The document is here; a discussion by Michael Stern is here.) As we note in our brief, in late 1862, Lincoln’s Attorney General, Bates, issued an opinion justifying an expansive interpretation of the […]