Author: Gerard Magliocca


Quorum vs. Unanimous Consent

Here’s an obscure question that I’m wondering about.  The Constitution requires each House of Congress to have a majority for a quorum.  Now picture the following scene:

Senator X stands up in an empty chamber immediately after the Senate is gaveled into session.  She says to the Chair “I request unanimous consent that” something be done.  The Chair responds, “Without objection, so ordered.”  Action taken.

In that circumstance, isn’t the quorum rule being ignored?  Only two senators are there.  Is a quorum presumed unless someone objects and asks for a quorum call?  If so, that’s stretching the Constitution pretty far.  I suppose each chamber gets to decide what counts toward a quorum, as the House famously decided under Speaker “Czar” Reed that present members who refused to answer a quorum call should be counted, but should that extend to absent members?  Put another way, is the quorum rule an affirmative defense that some Senator must raise lest it be waived?

UPDATE:  A sharp-eyed reader points out that Tom Goldstein talked about this on Friday and said that a quorum is presumed.  (Thanks for telling me.)  The next question, then, is why is that constitutional?


Thoughts on Noel Canning

I was pleased with the Court’s decision last week, though that just means that it came out the way that I would have decided it.  Here are a couple of observations going forward:

1.  All Noel Canning does is clarify the bargaining terms between the parties.  The Senate can now block all recess appointments by holding pro forma sessions.  A motion to hold that sort of session, though, can be filibustered.  Moreover, any Senator can turn a pro forma session into a real one by just showing up and insisting on being recognized by the chair.  Thus, a normal majority in the Senate cannot block recess appointments without cutting deals with the other party and with the President.

2.  The House can prevent the Senate from taking a recess by objecting.  This will only happen, though, if Congress is divided in its party loyalties.  While this is true now, that alignment is pretty rare.  It did not happen at all between 1933-1980, for example, though it did happen from 1981-1986 & 2001-2002 before recurring in 2011.  Still, that’s 12 years out of the last eighty or so.

3.  Somebody should write that Article about the President’s adjournment power in cases where the two Houses cannot agree on a recess.  Since the President has never exercised this authority, originalism reigns supreme!

We’ll see what Hobby Lobby has to offer in the morning.


Judge Posner and Anti-Abortion Protestors

Based on Judge Posner’s recent piece on, I think that the next time he is on a panel in a case involving a free speech claim by anti-abortion protestors their counsel should file a motion seeking his recusal.  Consider this passage discussing yesterday’s Supreme Court decision on buffer zones around abortion clinics:

Who wants to be buttonholed on the sidewalk by “uncomfortable message[s],” usually delivered by nuts? Lecturing strangers on a sidewalk is not a means by which information and opinion are disseminated in our society. Strangers don’t meet on the sidewalk to discuss “the issues of the day.” (Has Chief Justice John Roberts, the author of the opinion, ever done such a thing?) The assertion that abortion protesters “wish to converse” with women outside an abortion clinic is naive. They wish to prevent the women from entering the clinic, whether by showing them gruesome photos of aborted fetuses or calling down the wrath of God on them. This is harassment of people who are in a very uncomfortable position; the last thing a woman about to have an abortion needs is to be screamed at by the godly.

The issue is not mainly, as the court stated in the last sentence that I quoted, the maintenance of public safety. Most abortion protesters are not violent, and police will be present to protect the visitors to the clinic. The issue is the privacy, anxiety, and embarrassment of the abortion clinic’s patients—interests that outweigh, in my judgment anyway, the negligible contribution that abortion protesters make to the marketplace of ideas and opinions.

I submit that this calls into question whether Judge Posner could fairly adjudicate the First Amendment rights of these “nuts” who make a “negligible contribution.”



The Non-Delegation Doctrine

Today the Court granted certiorari in a case (U.S. Department of Transportation v. Association of American Railroads) that presents the question of whether a federal statute that delegates regulatory authority to Amtrak is constitutional.  The issue is whether Congress can so delegate to a private party (assuming that Amtrak is one), and the decision striking down the National Industrial Recovery Act on similar grounds in Schechter Poultry promises to get a lot of attention in the briefs.

I hope, though, that the parties will focus on the precedent of the Second Bank of the United States.  One of Andrew Jackson’s arguments against the constitutionality of the Bank was that it involved an unconstitutional delegation to a private entity (and the Bank, of course, was much more powerful than Amtrak).  Indeed, this was the best argument against the Bank (totally ignored by M’Culloch, by the way)) and the only one that stands up today.  To the extent that we think that the Bank was unconstitutional (a conclusion that is by no means obvious), the principle behind that must be that some delegations of regulatory power to a private entity are invalid.  My book on Jacksonian Democracy gets into the weeds on some of these issues, for those who are interested.

UPDATE:  I now see that I was somewhat unclear.  Clearly you can argue that because M’Culloch upheld the constitutionality of the Bank, then that means that a delegation to a private party can be valid.  My point is that those who are against the Amtrak delegation must deal with the Bank issue (perhaps by appealing to the court of history as rejecting the delegation to the Bank).


Alice Corp. v. CLS Bank

The cries and lamentations you hear are coming from patent attorneys and the Federal Circuit as they try to figure out what to with the Supreme Court’s latest pronouncement on the definition of an “abstract idea” in patent law.  Today the Court ruled unanimously that the patent claim at issue was too abstract to be patented, but the opinion offers little help on figuring out when that is the case.  Take a look at page 10:

In any event, we need not labor to delimit the precise contours of the “abstract ideas” category in this case.  It is enough to recognize that there is no meaningful distinction between the concept of risk hedging in Bilski and the concept of intermediated settlement at issue here.  Both are squarely within the realm of “abstract ideas” as we have used that term.

While it is true that the Court did not need to do more to decide this case, they did need to  “labor” to clarify the law, which is the actual problem.  “Totality-of-the-circumstances” is not a great test for this area, and sadly there are now only three votes to say that business method patents are ineligible (down from four in Bilski).  Expect a lot more litigation on software patents, more divided opinions from the Federal Circuit, and another grant of certiorari in four or five years.


A Recent Supreme Court Tradition

Potter_Stewart_(1915_-_1985)In my draft article, I talk about the anti-partisan customs followed by the Justices.  One that I’ve posted about before is the practice that justices do not retire in a presidential election year.  This is a recent development, as they did retire in those years until Earl Warren’s ill-fated attempt to do so in 1968.

This led me to wonder when people started saying (or thinking) that Justices should not retire in a quadrennial year.  The answer is that this custom began with Potter Stewart.  Justice Stewart retired in 1981, and in an interview with Linda Greenhouse that summer he said he had thought of quitting in 1980 but decided that to do so would hurt the Court.  As far as I can tell, this was the first time that a Justice decided that this was a necessary norm and said so publicly.  Nobody was thinking about retiring in 1972 or 1976, so the absence of action in those years does not tell us much.  Since then, the Justices have followed Stewart’s example and rejected Warren’s.

One other thing–the convention of “no retirement in an election year” effectively precludes a Justice from being nominated for president or vice-president (as Charles Evans Hughes was and William O. Douglas wanted to be).  Nobody would tolerate a sitting Justice campaigning on the national–he or she would have to resign.  But then that would create an election year vacancy.



Is Presidential Succession a Duty?

Here’s an oddball question.  Is someone who is in the line of executive succession required to say yes or resign if the office falls to them?  Can one decline, stay in office, and give the presidency to the next person?

The Vice-President has a duty to become President if the Presidency is vacant.  Section One of the 25th Amendment says that “the Vice-President shall become President” if the president dies, resigns, or is removed by impeachment.  The VP can resign the presidency, of course, but he or she may not decline and remain vice-president.  What about the folks behind the VP in the queue?  The Executive Succession Act of 1947 also uses mandatory language for everyone else named in case the leadership is blown away by a bomb.

There is one curious point though.  Next in line after the Speaker of the House is the President Pro Tempore of the Senate.  (Currently Patrick Leahy).  He could resign as the President Pro Tempore without resigning from the Senate.  Since President Pro Tempore is a meaningless office (aside from succession), that person, in effect, can decline the job and keep his real office (being a Senator).  (There is no reason why the President Pro Tem should be in the line of succession.  The Senate Majority Leader is a far better choice.)


An Unfair Partisan Advantage

I want to throw out a tentative idea that I’m developing in the article that I’m writing about constitutional norms.  In the draft, I say that constitutional customs or ethics are directed toward three goals:  (1) promoting democracy; (2) promoting the rule of law; and (3) ensuring that one party does not gain an unfair advantage over the other.  I’ve posted about various examples before, so I won’t repeat those since the draft is nearly done.

What I want to point out is that only the first two of these interests are reflected in judicial opinions. In other words, you see cases that say the result is partly supported by the idea that we should defer to the democratic process (in Congress, in the states, or in localities).  You also see opinions that tout the rule of law as an overarching principle (say the cases on Guantanamo).  But you don’t see the same for what I’m calling free party competition.

I think that a more conscious approach toward that concern is warranted.  Consider the various statutes that states are implementing that change voting practices (photo ID, less early voting, etc.)  The way people assess that issue is by asking whether that violates the right to vote in some fashion.  The real problem, though, is that these statutes usually are an effort by one party to achieve an advantage over the other by adopting voting practices that are as favorable as possible.  To some extent this is fine, but at some point that goes too far.  The same can be said for gerrymandering.  This doesn’t solve the problem of how you make that assessment (though the conventions described in the paper provide some guidance), but it does shift the analysis to a more logical place.


The Hand of God

78px-FIFA_World_Cup.svgWith the World Cup underway, I thought I would reprint a post I did at the start of the Cup four years ago that holds up pretty well.


As the World Cup begins (and a groove on my couch awaits), the thought occurred to me that the Justices are more comparable to those officials than (as Chief Justice Roberts famously said) to baseball umpires. Consider the following:

1. Umpires rarely change the outcomes of a game. Soccer referees do all the time.

2. Baseball is a rule-bound game. Soccer gives the referee lots of discretion (whether to award a penalty kick or not, whether to red card somebody or not, etc.)

3. Soccer fans often accuse the ref of being biased. You rarely hear that about umpires.

4. An umpire can have his call corrected by his colleagues. There is no appeal from a soccer referee’s decision.

Which of these sounds more like a Supreme Court Justice?


Frank McCloskey and Constitutional Norms

101px-Frank_McCloskeyMy relative lack of blogging recently is the result of concentrated drafting on my article, but one new issue has come up that I’d like to discuss.  Each House of Congress has the power under Article I to “be the Judge of the Elections, Returns, and Qualifications of its own Members.” For much of our history, Congress performed this function when there was a disputed election.  (John Bingham served on the relevant Committee in the House and worked on several cases, as I discuss in my book.)  Over the past thirty years, though, Congress has abandoned this power and deferred to state courts interpreting state law.  I’ve talked about this in a prior post, but there remains the question of why this change occurred.

I think the answer is that an anti-precedent was set by the contentious dispute over the result in Indiana’s 8th Congressional District in 1984.  Congressman Frank McCloskey, a Democrat, was declared the loser (by 37 votes) in his race by state election officials.  The House of Representatives (controlled by Democrats) declared McCloskey the winner (by 7 votes) and seated him in a party-line vote.  The debate was particularly nasty, and House Republicans marched out of the chamber in protest after the vote was held.

The result of this episode is that Congress’s power to judge elections was relinquished.  One can understand this as a custom that supports federalism (states get to decide who won disputed elections), the rule of law (courts should decide these matters), and an anti-partisan principle (partisan majorities cannot be trusted to resolve these issues).  It’s a good example of how constitutional conventions (in the British sense) develop.