Thursday, June 6, 2013
The National Security Agency is collecting telephone metadata of U.S. customers of Verizon, first reported The Guardian. The NSA sweeping effort appears to have been in place for years, but The Guardian first published a top secret Foreign Intelligence Surveillance Court order just last night. The remarkably short order, issued pursuant to a provision in the PATRIOT Act, 50 U.S.C. Sec. 1861, directs the telecommunications company to turn over "telephony metadata" on communications between its subscribers in the United States and abroad and wholly within the United States. ("Metadata" includes identifying information like the originating and terminating phone numbers, and the time and duration of calls. It does not include the substantive content of the communication or the name, address, or financial information of a subscriber or customer.)
The order also prohibits any person from disclosing that the FBI or NSA sought or obtained any information under the order.
The White House defended the efforts, while reactions on Capitol Hill were mixed. There's a ton of reporting and commentary; here are some links:
- Charlie Savage and Edward Wyatt at the NYT have a nice piece here;
- politico.com has a piece on 5 things you need to know;
- The Guardian has a series of reports, links are here.
Loyola University Chicago School of Law is organizing the FOURTH ANNUAL CONSTITUTIONAL LAW COLLOQUIUM at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, November 1 and end midday on Saturday, November 2, 2013.
This is the fourth annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. Presentations will be grouped by subject matter.
This announcement invites abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. We also welcome attendees who wish to participate in audience discussions without presenting a paper. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.
Eligibility: The Loyola Constitutional Law Colloquium is aimed at Constitutional Law, Legal History, Political Science, and Philosophy scholars teaching full-time and part-time at the university, law school, and graduate levels on all matters of constitutional law.
Application Procedure: The registration and abstract submission deadline is June 15, 2013. Conference organizers will select abstracts on a rolling basis.
Topics, abstracts, papers, questions, and comments should be submitted to:
Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.
. Professor John E. Nowak, Raymond and Mary Simon Chair in Constitutional Law
. Professor Juan Perea
. Professor Alexander Tsesis
. Professor Michael J. Zimmer
Loyola Constitutional Law Faculty:
. Professor John Nowak, Raymond and Mary Simon Chair in Constitutional Law
. Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
. Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
. Professor George Anastaplo
. Professor Juan Perea
. Professor Alan Raphael
. Professor Allen Shoenberger
. Professor Alexander Tsesis
. Professor Michael Zimmer
[Image: Howard Chandler Christy, Scene at the Signing of the Constitution of the United States, Architect of the Capitol]
Wednesday, June 5, 2013
Long controversial, Judge (and former Chief Judge) Edith Jones of the Fifth Circuit Court of Appeals is now the subject of an ethics complaint filed by a constorium of persons under the Judicial Conduct and Disability Act. The complaint asks that the matter be transferred out of the Fifth Circuit.
The main allegations arise from a speech by Judge Jones at a Federalist Society event at University of Pennsylvania in February on the death penalty. Jones is alleged to have made points such as these:
*The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
*Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;
*Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
*Capital defendants who raise claims of “mental retardation” abuse the system;
*The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope”;
*Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
Tuesday, June 4, 2013
President Obama made good today on his earlier plan to simultaneously nominate three people to the D.C. Circuit. The nominations are designed to fill the three vacancies on the court and to force Republicans' hand on judicial nominations. The White House promises an aggressive push to get the three confirmed. The tactic is designed to put a finer public point on Republican foot-dragging on judicial nominations, should the party decide to hold up these three nominees. Roll Call reports here.
The three are: Patricia Ann Millett; Cornelia T.L. Pillard; and Robert Leon Wilkins.
Meanwhile, the Republican line is that the D.C. Circuit is underworked--and that it doesn't need to fill the three vacant seats. Thus Senator Grassley introduced S. 699, which would eliminate the three vacant seats from the D.C. Circuit and reallocate two of them--one to the Second Circuit, and one to the Eleventh Circuit.
Monday, June 3, 2013
The Supreme Court ruled today in Hillman v. Maretta that the Federal Employees' Group Life Insurance Act, or FEGLIA, preempted Virginia's effort to prioritize the widow or widower of a deceased federal employee over the employee's designated beneficiary. The Court ruled that Virginia's law conflicted with congressional purposes and objectives in enacting FEGLIA. The judgment was unanimous, but Justices Thomas and Alito wrote separate concurrences.
The ruling means that a state cannot upset or side-step a deceased federal government employee's designation of beneficiary on his or her life insurance plan, even if the state prioritizes a current spouse over a former spouse.
The case pitted the widow of a federal employee, Hillman, against the employee's former spouse, Maretta, who was also the designated beneficiary on the employee's FEGLIA plan. Maretta, as designated beneficiary, collected $124,558.03 from the plan upon the employee's death. But Hillman sued, arguing that Maretta was liable to her under Secion 20-111.1(D), or just Section D, of the Virginia Code. Section D said that when a former spouse receives a death benefit, that former spouse is liable to "the person who would have been entitled to it were [Section A, another Section within the Viginia Code] not preempted"--in this case, Hillman, the widow.
Maretta argued that FEGLIA preempted Section D. FEGLIA says that life insurance proceeds go first to the employee's designated beneficiary. It allows proceeds to go to another person, if "expressly provided for in the terms of any court decree of divorce, annulment, or legal separation," so long as the decree is received by the government before the employee's death. Finally, FEGLIA has an express preemption provision that says that federal law preempts state law "to the extent that the law or regulation is inconsistent with the contractual provisions."
The Court ruled for Maretta, and struck Section D. Justice Sotomayor, for the Court, wrote:
Section D interferes wtih Congress' scheme, because it directs that the proceeds actually "belong" to someone other than the named beneficiary by creating a cause of action for their recovery by a third party. . . . It makes no difference whether state law requires the transfer of the proceeds . . . or creates a cause of action, like Section D, that enables another person to receive the proceeds upon filing an action in state court. In either case, state law displaces the beneficiary selected by the insured in accordance with FEGLIA and places someone else in her stead.
Op. at 10.
Justice Thomas concurred in the judgment but wrote separately to emphasize his view that the majority's "purposes and objectives" approach is "illegitimate," but that FEGLIA nevertheless preempts Section D, because the ordinary meaning of Section D directly conflicts with the plain language in FEGLIA. Justice Alito also concurred in the judgment but wrote separately to argue that the majority's analysis swept too broadly. Justice Alito said that FEGLIA preempted, because Section D overrides the insured's actual and articulated choice of beneficiary. He said that the majority's approach went too far, because it prioritizes the designated beneficiary "even if the insured's contrary and expressed intent is indisputable."