President Obama’s Executive Orders are Constitutional

452px-Barack_Obama_basketball_at_Martha's_VineyardA “head fake” is a basketball move where the player holding the ball feints as if starting a jump shot, but never leaves his feet.  Done correctly, it causes the defender to jump off of their feet in anticipation of the shot, arms flailing helplessly.  Meanwhile, the shooter calmly resets and scores a basket while the defender is harmlessly suspended in the air.

Just over two weeks ago, the mid-term elections supposedly signaled the end of President Obama’s ability to drive the policy agenda in Washington.  Last Thursday night, the nation’s “Basketball Player in Chief” executed a brilliant head fake on immigration policy, disproving this conventional wisdom.  Hints that the President intended to “go big” and use his executive authority to conduct an overhaul of the Immigration and Nationality Act had generated anticipatory paroxysms of outrage by Republicans, who hit the airwaves with charges of constitutional violations and threats of impeachment.  However, the executive actions that the President actually announced last Thursday were more modest in scope than what Latino groups and reform advocates wanted, and far less provocative than congressional Republicans feared.

The executive actions on immigration fall well within the Executive Branch’s established authority to set priorities in the enforcement of Immigration Law and clearly within the constitutional power of the President.  Meanwhile, the President’s Republican critics have already committed themselves to a campaign of outrage and indignation, even though it is increasingly evident that they lack a legal basis to attack the President’s actions or a political strategy to undo them.  The President’s head fake is evident when the details of the Executive Orders are examined.

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Five Oral Argument Tips

This past summer I had the amazing opportunity to intern with the United States Court of Appeals for the Seventh Circuit (thank you, Professor Hammer, for organizing such a rewarding internship program). I would highly recommend this internship to anyone. For me, the internship was truly a once in a lifetime experience since, as many of you may know, I am a major moot court nerd. While interning at the Seventh Circuit, I observed upwards of seventy oral arguments, including a rehearing en banc, a Foreign Intelligence Surveillance Act case, and a death penalty case. During these arguments, I would take notes on attorney conduct, questions from the judges, and the overall atmosphere of the courtroom. I would like to share with you the top five oral arguments tips I learned while at the Seventh Circuit.

(1) Answer the Judge’s Question Directly

Questions are a gift because they allow you to know exactly what is bothering the judge. Too often, people see questions as an interruption or a nuisance and, thus, fail to take full advantage of the opportunity the question presents. I cannot tell you how many times I heard the phrase, “You’re not answering my question,” and the follow-up phrase, “It’s a simple yes or no answer.” The best way to handle questions is to answer directly—preferably with a yes or no when appropriate—and then say, “Let me explain.” This answers the judge’s question and also signals that further explanation is necessary. When you dodge a judge’s question, you lose credibility and frustrate the judge. 

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Supreme Court Roundup Part Two: Burwell v. Hobby Lobby Stores, Inc.

the bosses of senateOn October 30, I participated in a presentation entitled “Supreme Court Roundup” with Ilya Shapiro of the Cato Institute.  The event was sponsored by the Law School chapters of the Federalist Society and the American Constitution Society.  We discussed three significant cases from the 2013-2014 Supreme Court term: McCutcheon v. FEC, Burwell v. Hobby Lobby and Harris v. Quinn.  It was a spirited discussion, in which Mr. Shapiro and I presented opposing views, but I want to thank Mr. Shapiro for taking the time to visit the Law School and sharing his perspective with the students.

This is the second of three blog posts on the presentation.  Readers can find the first post here.  What follows are my prepared remarks on Burwell v. Hobby Lobby.  Readers interested in Mr. Shapiro’s position on the case can refer to the amicus brief that he filed on behalf of the Cato Institute.

The legal issue in Burwell v. Hobby Lobby Stores can be described simply.  Under the provisions of the Affordable Care Act, the Department of Health and Human Services requires employers to provide health insurance plans making contraception available to their female employees at no cost.  In the NFIB v. Sebelius decision in 2012, the Supreme Court upheld Congress’ power to pass the Affordable Care Act as an exercise of its taxing power.  But even if Congress has the power to pass the law, can a for profit corporation nonetheless avoid following the law by arguing that the contraception provisions burden the corporation’s free exercise of religion in violation of the Religious Freedom Restoration Act (RFRA)?

The rights of the individual shareholders that own the corporation were not at issue.  The law does not act on the individuals, and does not require these human beings to do anything.  The only legal requirement imposed by the law is imposed on the corporate entity.

So what did Congress intend to do when it passed RFRA in 1993?  As I will explain, the Hobby Lobby case presents two opposing views as to what Congress attempted to accomplish by passing that law.  The dissent by Justice Ginsburg argues that the intent of RFRA was to create a statutory remedy for burdens on religious expression that adopted the standard for evaluating First Amendment violations prior to the 1990 Employment Division v. Smith case. The majority opinion by Justice Alito argues that by passing RFRA Congress created a statutory remedy that protected more “persons” than the pre-Smith caselaw protected and that granted them greater protections than the pre-Smith caselaw granted.

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