Arizona, Due Process, Executive Power, Faculty Blog, Federal Courts, Federalism, Haynes, Judicial Review, National Security, Policy, President Obama, Separation of Powers, Statehood, U.S. Supreme Court

Faculty Blog: United States v. Texas

On April 18, the Supreme Court heard oral arguments in the case of United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS to exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.

Civil Rights Act, Due Process, Editor Blog, Equal Pay, Gender Discrimination, New England Law Review, Policy, Student Writing, transitional justice, U.S. Supreme Court

Article Preview: Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports

Contributing Author: John Kulevich
Sports arose in the primitive era as activities used to train warriors for battle. They continue to this day, though for different purposes: as a form of recreation, as a profession, and as a form of relaxation for spectators watching them. While women who play sports have gradually gained some acceptance in society, they experience gender discrimination and inequality compared to their male counterparts, in the form of lower wages, fewer endorsements, and less media coverage. This is especially true in professional sports. Tanya Dennis, the author of Why Is Your Grass Greener than Mine?: The Need for Legal Reform to Combat Gender Discrimination in Professional Sports, proposes a new statute (the “Professional Sports Act of 2015”), which provides women protection against gender discrimination in professional sports, and explains why the current state of the law is not adequate. For example, Title IX prevents gender discrimination in federally funded educational institutions, and this protection includes prohibition of gender discrimination in school athletics within those educational institutions. As a result of this protection from gender discrimination in school sports, women’s sports have become more popular and received more media attention. Nevertheless, Title IX does not apply to professional sports and therefore cannot protect women from gender discrimination in professional sports.

Article II, Competency, Congress, Constitution, Executive Power, Faculty Blog, Federal Courts, Friedman, Judges, Judicial Elections, Judicial Performance Evaluation, Judicial Review, New England Law Review, Nominations, Policy, President Obama, U.S. Supreme Court

Faculty Blog: The Ninth Justice

At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama's nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate's constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments. In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”

Equal Protection, Faculty Blog, Federal Courts, Fourteenth Amendment, Friedman, Judicial Review, U.S. Supreme Court, Uncategorized

Faculty Blog: Obergefell and the Future of Plural Marriage

In an opinion piece for the New York Times, Professor William Baude suggested that, following the Supreme Court’s decision in Obergefell v. Hodges striking down prohibitions on same-sex marriage, the door may well be open to the argument that bans on plural marriage should fall as well. Baude takes as his cue the suggestion in the dissent of Chief Justice John Roberts that “[o]ne immediate question invited by the [Obergefell] majority’s position is whether States may retain the definition of marriage as a union of two people.” The answer is, of course, “yes.” Explaining why, though, may take some doing. As my colleague, Jordan Singer, has noted, the decision in Obergefell was, at a minimum, “befuddling.” One reason is because its author, Justice Anthony Kennedy, eschewed a traditional equal protection analysis for the kind of soaring rhetoric that has become a hallmark of his opinions in the area of individual rights. Though the respect he accords the subject matter is notable, at the end of the day, lower courts, state government officials and lawyers need a good deal more to be able to understand the limits of our constitutional commitment to equality.

Federal Courts, Judges, Judicial Elections, Singer, U.S. Supreme Court

Faculty Blog: Recent Supreme Court Term: The Supreme Court Openly Challenges Its Own Legacy

One of the more politically opportune reactions to the final week of the Supreme Court Term came from Senator Ted Cruz. His proposal: a Constitutional amendment that would replace life tenure for the Supreme Court with periodic retention elections. Under the Cruz plan, each Justice would face the voters in the second national election after initial confirmation, and every eight years thereafter. Justices would need a simple majority of “retain” votes to stay on the bench. Justices who are not retained would be replaced and would not be eligible for reappointment. The Senator couched his proposal as a response to “a long line of judicial assaults on our Constitution and the common-sense values that have made America great.” Offering some red meat for his conservative base, he added that retention elections would provide a remedy for “the decisions that have deformed our constitutional order and have debased our culture” by “giving the people the regular, periodic power to pass judgment on the judgments of their judges.”

Affordable Care Act, Federal Courts, Hyman, U.S. Supreme Court

Faculty Blog: Recent Supreme Court Term: King v. Burwell

“The issue in this case is whether the Act’s [the Affordable Care Act] tax credits are available in States that have a Federal Exchange rather than a State Exchange.” King v. Burwell, 576 U.S. __ (2015) (p. 5). The Affordable Care Act (ACA) requires each state to create its own health insurance Exchange, however, if a state refuses to do so, then the Secretary of Health and Human Services (HHS) is authorized to “establish and operate such Exchange within the State.” Sec. 18041(c)(1).” (p. 5). Only sixteen States and the District of Columbia created their own Exchanges, while thirty-four States utilize the federal Exchange administered by the Department of Health and Human Services. (p. 6). The tax credits, which are authorized by IRC sec. 36B, are allowed to “applicable taxpayers” who obtain health insurance through “an Exchange established by the State under section 1311 of the Patient Protection and Affordable Care act….” (p. 5). The IRS addressed the availability of tax credits to individuals acquiring health insurance through an HHS Exchange by adopting the definition of “Exchange” as used in an HHS regulation, 45 CFR sec. 155.20, which provided that taxpayers are eligible for a tax credit if they are enrolled in an Exchange which serves the individual market, “regardless of whether the Exchange is established and operated by a State… or by HHS....” (p. 6).