Wednesday, November 12, 2008
There are more stories to watch in the transition. Here is a recap of the recent stories.
The Executive Branch
My co-bloggers and I have been posting about the so-called "midnight regulations" being passed by the Bush administration. As it turns it out, an obscure law from the Clinton administration may unravel the plan. It is the Congressional Review Act of 1996. According to politico, "The law contains a clause determining that any regulation finalized within 60 legislative days of congressional adjournment is considered to have been legally finalized on the 15th legislative day of the new Congress, likely sometime in February. Congress then has 60 days to review it and reverse it with a joint resolution that can’t be filibustered in the Senate. In other words, any regulation finalized in the last half-year of the Bush administration could be wiped out with a simple party-line vote in the Democrat-controlled Congress."
Blogger Jack Balkin has a great piece in The Guardian about how the Obama administration might use the expanded executive powers that it will inherit from the previous administration. Ilya Somin of the VC also weighs in on this topic. Finally, the Wall Street Journal has a post entitled Executive Orders 101, in case you (or your students) need a refresher on the subject.
The Legislative Agenda
William Araiza - Con Law Professor and Con Law case book author - has a wonderfully informative and insightful piece on what the Obama administration might do with civil rights legislation. Apparently, priorities include passing the Fair Pay Act, the Employment Non-Discrimination Act, and the Matthew Shepard Act. Moreover, Professor Araiza has a great analysis of why the the Commerce Clause is a proper vehicle for this legislation, unless of course the Congress wants use the commerce power to abrogate state immunity, in which case they might run into a roadblock - or eleven. It's well worth reading.
No updates on the speculation game at this time. However, Findlaw's Writ has a great piece on whether empathy is a quality that judges should possess. Your students will likely appreciate the well-presented and nuanced arguments as well.
More to come, as always!