Sense and Severability

Tobias A. Dorsey *

When I was asked to speak about severability at the 2011 Allen Chair Symposium, I wasn’t sure I should, or even that I could. But the more I thought about it the more I realized I might be a good person for the task. First of all, I am not a scholar. I am a practitioner. I spent ten years working for Congress in the nonpartisan Office of Legislative Counsel of the House of Representatives. That means I spent a lot of time working with policymakers in Congress, helping them think through their policies and turn them into written proposals. I have advised clients about severability hundreds of times.

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*     Special Counsel of the United States Sentencing Commission and a former Assistant Counsel in the Office of the Legislative Counsel of the U.S. House of Representatives. J.D., 1993, UCLA School of Law; B.A., 1989, Cornell University. These remarks were originally presented as a speech at the 2011 Allen Chair Symposium—“Everything But the Merits” presented by the University of Richmond Law Review

Why Virginia’s Challenges to the Patient Protection and Affordable Care Act Did Not Invoke Nullification

Robert S. Claiborne 

Virginia’s challenges to the Patient Protection and Affordable Care Act (“ACA”), via its minimum essential coverage provision, or individual mandate, have drawn both criticism and praise as modern invocations of nullification. The distinct doctrine of nullification entails a legal process exceeding that of a merely litigious challenge to federal law or a vocal protest from a state legislature. Its exercise by a state purportedly renders a targeted federal law unconstitutional and thus null, void, and of no effect within the respective state’s borders. At nullification’s core are the premises that the Supreme Court does not have final authority to interpret the Constitution in cases and controversies arising between a state and the federal government and that an individual state, as a party to the Constitution, has ultimate authority to interpret the compact as applied to constitutional disputes arising with the federal government.

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Executive Power and the Law of Nations in the Washington Administration

Robert J. Reinstein *

The Washington administration has attracted increased attention in the ongoing debate over the power of the President to determine and conduct the nation’s foreign policy. The actions of the first President are being seen as important precedents on the scope of executive power, much as the statutes of the first Congress are recognized as being important precedents on the scope of legislative power.

This article provides revisionist answers to three key questions concerning the Washington administration’s assumption of authority in foreign policy: What constitutional source of power did the administration actually rely upon? How did its jurisprudential understanding of the law of nations affect the exercise of executive power? And does the experience of the Washington administration demonstrate the limits of originalism as a constitutional methodology?

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* Clifford Scott Green Professor of Law, Temple University Beasley School of Law. J.D., 1968, Harvard University School of Law; B.S., 1965, Cornell University.

Congressional Inquiry and the Federal Criminal Law

Richard Broughton *

Hardly anyone, it seems, really believes that the scope of federal criminal law is just about right. Though academics and commentators across the spectrum of law and politics rarely find general agreement when it comes to federal power, there actually appears to be relatively broad agreement these days that some things about federal criminal law are not quite right. In particular, the issue has brought together minds from both the political left and the political right, making criticism of federal criminal law one of the issues du jour among commentators struck by the marriage of these strange bedfellows. Indeed, although it is the conventional wisdom that conservatives have generally favored the government in criminal justice adjudication, it is the most conservative members of the Supreme Court who have emerged as prominent champions of structural (and even some rights-based) limits on federal criminal justice powers, often siding with criminal defendants. Whether the concern is “overfederalization” and the exercise of congressional power beyond constitutional limits, or the duplication of resources that occurs when state and federal crimes too often overlap, or the danger that people of dubious culpability will be ensnared in a vast web of obscure federal laws about which they had no reason to know, or the increasing severity of federal sentencing for crimes that cause comparatively little harm or that involve offenders who pose comparatively low risk to the community, thoughtful minds across the political spectrum are bothered by the sheer scope of the federal government’s power to prosecute and punish crimes, and the relative ease with which federal assertions of criminal law enforcement power occur.

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*  Assistant Professor of Law, University of Detroit Mercy School of Law. LL.M., 2000, Georgetown University Law Center; J.D., 1999, Widener University Law School; B.A., 1995, Hampden-Sydney College

Tax Court Appointments and Reappointments: Improving the Process

Danshera Cords *

The partisanship of the current political dialog coupled with the constant news cycle results in an increasingly rancorous discourse about government, law, and the judicial process. Judicial appointments have become increasingly politicized. This politicization places the judicial appointment process at the mercy of politics more than any other time in recent history. The appearance of an increasingly politicized judicial appointment process is troubling as the judicial branch of government is intended to remain above the political fray.

Court watchers note that increasingly bitter partisan battles make navigating the judicial appointment process ever more difficult. The Republicans and Democrats wage increasingly hostile battles along ideological lines to keep the judiciary free of judges whom the parties find objectionable for political and moral reasons. One can see the concern over ideology throughout the judicial appointment process—presidential nomination, Senate advice and consent, and confirmation. Fierce battles arise particularly when different parties control the Presidency and the Senate. The partisanship is not isolated to either branch. While Presidents seek to appoint judges who will support their philosophical approaches to governance, the party controlling the Senate seeks to limit the influence of the other party’s ideology in the judiciary. The tension between the parties manifests itself in slower appointments to the bench, regardless of which Senate committee investigates and oversees the advice and consent process.

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* Professor of Law, Albany Law School. LL.M., 2000, New York University School of Law; J.D., 1998, Seattle University School of Law; B.A., 1991, University of Washington.

Reading the Standing Tea Leaves in American Electric Power Co. v. Connecticut

Bradford C. Mank *

In American Electric Power Co. v. Connecticut (“AEP”), eight Justices of the U.S. Supreme Court unanimously concluded that the U.S. Environmental Protection Agency’s (the “EPA”) authority to regulate greenhouse gases (“GHGs”) pursuant to the Clean Air Act, which the Court recognized in its 2007 decision in Massachusetts v. EPA, “displace[s] any federal common law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants.” Thus, the AEP decision endorsed the Massachusetts decision’s interpretation of the Clean Air Act to include regulation of GHGs, stating that it “speaks directly to emissions of carbon dioxide from the defendants’ plants.” Justice Sonia Sotomayor recused herself from hearing the AEP case because she sat on the three-judge panel of the U.S. Court of Appeals for the Second Circuit that heard the case below, although she was appointed to the Supreme Court before the Second Circuit actually decided the case. Her absence was crucial to the Supreme Court’s decision regarding standing and jurisdiction in the case. The Court, by an equally divided vote of four to four, affirmed the Second Circuit’s decision finding standing and jurisdiction in the case.

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*  James Helmer, Jr., Professor of Law, University of Cincinnati College. J.D., 1987, Yale University; A.B., 1983, Harvard University.