Re: Justices Take Case on Pledge of Allegiance's 'God' Reference
Title: Message All right, I'll take a whack. Rehnquist, O'Connor, and Thomas for reversal. Kennedy joins them, because he's a political animal and may want to "make it up" with the right after Lawrence, sort of the way he did in Stenberg and Colorado v. Hill after Casey (though I'm sure he's sincere in Hill, b/c his dissent there fits his 1st Am views generally). Stevens and Souter are certain for affirmance. Ginsburg and Breyer probably are too, but one or both may switch (probably via a separate concurrence) to avoid an even split. Of the two, Breyer is the more likely to do so: son of a public school teacher (if I remember correctly), and solicitous for public schools, he may reluctant to hold that they have been violating the Const for fifty years in a way that eluded the vigilance of the Warren Ct. Still, most likely result: affirmance by 4-4. Also, Cubs win, Red Soxlose, Yanks win the Series. Can't say I'm happy about any of this. David M. Wagner Regent University School of Law -Original Message-From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Zietlow, Rebecca E.Sent: Wednesday, October 15, 2003 10:03 AMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I have been asked to speak about this case on the local media (as I am sure many of you also have been), and I am curious what you experts expect the outcome of the case to be, especially given that Scalia has recused himself. Rebecca E. ZietlowProfessor of Law University of Toledo College of Law (419) 530-2872 [EMAIL PROTECTED] -Original Message-From: Eastman, John [mailto:[EMAIL PROTECTED]Sent: Tuesday, October 14, 2003 5:56 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference My point exactly. The Denial of the U.S. petition means the focus is on the state (or school district), not on the Act of Congress. So it is Establishment Clause as incorporated, not as originally written. I made the point in response to Bill Funk's post, which claimed in part: "First, while this case arises in a state context, the addition of the words "under God" were made by a statute passed by Congress, the core concern of the First Amendment. Second, while adding such words may not directly "establish" religion, the law is "respecting an establishment of religion." The law declares that the official pledge of allegiance to the United States requires a recognition that the nation is "under God," which logically requires an affirmance that God exists and that the nation is subject to God's will and law." John C. Eastman Professor of Law, Chapman University School of Law Director, The Claremont Institute Center for Constitutional Jurisprudence -Original Message-From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 2:49 PMTo: [EMAIL PROTECTED]Subject: Re: Justices Take Case on Pledge of Allegiance's 'God' Reference I don't quite see the significance of the denial of the SG's peititon -- a petition that was, in truth,not much more than a press release. The United States was not injured by the Ninth Circuit's decision. The court of appeals expressly declined to enjoin any federal official, 328 F.3d at 484, and expressly declined Newdow's plea to declare the federal law unconstitutional, id. at 490 Indeed, it is difficult to see how any court could enjoin, or decare unconstitutional, the federal statute, because that law (4 USC 4) is merely hortatory; it neither requires nor authorizes anyone to do anything: "The Pledge of Allegiance to the Flag: 'I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.', should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove any non-religious headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute." In other words, the U.S. prevailed in the court below. The real locus of dispute, as reflected intoday's denials and singlegrant,is the school board's policy, not the federal statute. - Original Message - From: "Eastman, John" [EMAIL PROTECTED] To: [EMAIL PROTECTED] Sent: Tuesday, October 14, 2003 5:35 PM
Re: Do Not Call
Title: Message Query: If a federal agency, without express enabling legislation from Congress,adopts a practice that falls within an area in which Congress has the power to regulate (instrumentalities of interstate commerce, phone lines), and Congress appears to afterwards validate the practice, impliedly, by funding it, is that a sufficient grant of legal authorityto validate the practice? Another way of putting it might be to ask whether ratification by Congress is sufficient to validate the assumption of a practice. It certainly distinguishes thepresent case fromFDA v. Brown Williamson, on which the court relied in part. There, Congress had manifesteda positivedisinclination to give the agency the power that it claimed. David M. Wagner
Re: Bowers Overruled
Title: Message This language does, however, appear to me to wipe out the U.S. military's sodomy prohibition. So indeed it may. OTOH, Grutter stands, inter alia, for the proposition that a state actor can have a compelling state interest if it declares that it has one. This, on the shoulders of the existing tradition of deference to military judgment (Rostker), could salvage the prohibition. Still, the dictum of Capt. Queeg seem singularly apt: "You can't assume a goddam thing in this Navy." David M. Wagner
Re: More on recess appointments
Recess appointees look anomalous from a constitution-maker's perspective, but the Constitution we actually have provides for them (Art. II. Sec. 2, paragraph 3). The reference here to vacancies presumably refers to the wide range of officers listed in paragraph 2. Is there a textual argument that paragraph 3 is inapplicable to Art. III judges? Isn't this one of those anomalies that would be unconstitutional if only the Constitution didn't explicitly provide for it? (Another would be the VP acting as president of the Senate.) David Wagner -Original Message- From: Discussion list for con law professors [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, June 10, 2003 1:37 AM To: [EMAIL PROTECTED] Subject: Re: More on recess appointments Sandy refers to appeals from decisions of appellate panels that include a recess appointee. That point is well-taken. However, such appeals will be difficult, since they will have to involve either request for en banc review or a petition for cert. I don't know whether there have been recess appointments to the federal district courts -- this obviously would have a lower political profile. But if such an appointment is made then appellate review will be not be discretionary, and we could expect to see decisions on whether recess appointees may exercise the judicial power of the United States. Mark S. Scarberry Pepperdine Univ. School of Law -Original Message- From: Levinson To: [EMAIL PROTECTED] Sent: 6/9/2003 8:46 PM Subject: Re: More on recess appointments Note should be taken of a very interesting case that the Court decided today, Nguyen v. US. A majority consisting of Stevens (who wrote the opinion), Souter, Kennedy, Thomas, and O'Connor held that a ninth circuit panel was impropery composed because it included an Article IV judge, the district judge for the District of the North Marianas Islands. The majority says several times that the key to being a proper Article III judge, and thus eligible to serve by designation on a Circuit Court panel is tenure of office during good behavior. The decision is statutorily based, but, obviously, the majority had to construe what it means to be a real federal judge who has the prerequisites to do things like sit by designation on Circuit Court panels. The four dissenters, Rehnquist (who wrote the opinion), Scalia, Ginsburg, and Breyer, agree that the panel was improperly constituted, but basically held that it was harmless error. So, let's return to a prior discussion of recess appointments. If it's true, as the majority suggests, that every judge of a circuit court panel must be an article III judge, then how in the world can a recess appointee be a legitimate part of such a panel, since, obviously, he/she is subject to what might be termed non-confirmation by a Senate upset with a decision that he/she might make. It is Article II that allows recess appointments; there's not a word in Article III that mentions them. So why not say this is just another example of bad constitutional drafting and that the proper understanding of Article III and its mandate of independent judges is that recess appontments are unconstitutional. This seems to be, if not entailed, then at least strongly implied by today's decision. Otherwise, it's just another example of statutory nit-picking (which, of course, it may be). At the very least, wouldn't it be malpractice, after today's decision, for a practicing lawyer (att'n Marty: I'm eager to hear your opinion) to fail to appeal any decision adverse to his/her client emanating from a panel that included a recess appointee? Isn't this at least a live issue that the Court now has a duty to clarify? sandy
