We got a decision on February 25th in the 4th Amendment case we covered last fall-Fernandez v. California. Yes, it’s March. We were a little busy. Get our two-cents on the decision in the case here. We end with a brief takeaway on what this case tells us about search warrants, police, and the 4th Amendment. Don’t worry. We’re still watching the Court websites for an update on the “Boobies” case (soon).
“This has been a truly miserable winter,” said America. If you’re like us – you’re already looking towards the summer months, not only to find a reason to get up each arctic morning, but also to start planning how you’ll spend your break. This post is dedicated to the educators out there who have the luxury of squeezing in a week or two at a professional development, seminar, or summer institute to prove you’re actually a “lifelong learner.” If you’re looking to dazzle your administrators while simultaneously having a great experience where you learn from sterling experts in the field of government, law, and civics – we have some recommendations for you.
Street Law Supreme Court Summer Institute
Spend 5 days in Washington, D.C. – two of which are in the SCOTUS – with the awesome Street Law team, headed up by Lee Arbetman. Over the course of the five days you’ll learn from experts in the legal world, like founder of SCOTUSblog Tom Goldstein, writer Lyle Denniston, professors from Georgetown, Harvard, and George Washington University, SCOTUS reporters like NY Times writer Adam Liptak, former attorneys general, former SCOTUS clerks, and Supreme Court advocates. The sessions usually take place at Georgetown Law, which is across the street from the institute hotel (very convenient), and a Starbucks (necessity). This is a short walk to the SCOTUS, which is nice when you’re melting in steamy D.C. whilst trying to look professional. One of the days in the SCOTUS was for a tour and the other was spent listening to decisions. This tends to be an ideal time to be inside the Court as big decisions typically come down in late June. That evening, teachers are hosted by a Supreme Court Justice and the Historical Society inside the Supreme Court for an intimate cocktail party. No, you can’t hug them or Instagram the experience. Don’t even ask. Towards the end of the institute, four brave souls will get to play SCOTUS advocates in a moot court simulation that takes place in a courtroom built to look just like the real SCOTUS. If asked – do it. It’s awesome, in a jumping-out-of-a-plane-terrified kind of way, and experts will prepare you.
We are effusive about Lee and the Street Law team because they deserve gushing praise. You’re hard-pressed to find a summer PD as experiential and jaw-droppingly awesome as this summer institute.
Dates: Two sessions; June 19-24 & June 26-July 1; Application due: March 17th, Cost to teachers: $150-600, depending on accommodation preferences.
Gilder Lehrman, The Role of the Supreme Court
We wrote a post recently about our experience at this seminar. It was a game-changer in that it led to the union of all the teachers who created this website. We came out of the experience smarter, sharper, and very close. I think this could be said of many PDs, depending on the group you end up with, but this was a very special and unique experience. Gilder Lehrman is the Rolls Royce of summer PD experiences. The topics are attractive, the instructors are trailblazers in their fields of history (Eric Foner, Larry Kramer, Jeffrey Rosen, Akhil Amar, to name a few), and the accommodations are top-notch. This seminar was held at Stanford Law School in Palo Alto, California. We stayed in the law school dorms (nicer than most apartments), ate in the dorms (deal with it), and were taken to watch a federal trial and listen to a judge talk about the federal appellate system. The guest speakers were fantastic, our T.A. superb, and the GL staff great. It was probably the most challenging institute in that the expectations of the teachers were just as high as they are for first year law students. But, the experience will make you a smarter, better teacher. Cara reports using her notes from that institute in her curriculum more than any other institute.
Dates: July 20-26; Application deadline: February 14, 2014; Cost to teachers: Almost nothing. Boarding, meals, and a $400 stipend towards travel are all provided to teachers who attend.
The Constitution 3.0 America’s Unfinished Constitution
We hope to tell you what this seminar is like by the end of the summer. This is a seminar some of us at SB applied for. It’s held at the National Constitution Center in Philadelphia, PA. Originally it was entitled The Constitution 3.0 and was to be taught by founder Jeffrey Rosen. We got an email recently that Mr. Rosen’s schedule prohibits him from hosting but GL is replacing Rosen with Akhil Reed Amar. Upgrade? It is for us. We’re taking Amar’s Yale MOOC right now so we’re psyched to get the real rather than virtual student experience.
Dates: July 13-19; Application deadline: February 14, 2014; Cost to teachers: Almost nothing. Boarding, meals, and a $400 stipend towards travel are all provided to teachers who attend.
C-SPAN Summer Educator’s Conference
If you like short and sweet, this conference is for you. It’s a 2-day seminar at C-SPAN’s headquarters in Washington, D.C., across the street from the Capital building. The C-SPAN Education Team will walk you through how to integrate technology into your curriculum using C-SPAN videos, Deliberations, lesson plans, bellringers, and civics materials. The deluge of info given in such a short amount of time will make your brain hurt after this conference. In no time, you’ll be clipping videos of Supreme Court Justices, Presidents, and Congress every day to show your students real-world examples of what you’re teaching and how tech-savvy you are.
The conference is held in C-SPAN’s offices so you’re bound to spot Congressional movers-and-shakers in the hallways after filming, or almost bump into a FOXNews guest bursting out of an elevator. We’re looking at you, Michelle Bachmann. You’ll definitely get to bend the ear of founder and political media icon Brian Lamb who pops in the conference to host his own Q&A with the teachers. Mr. Lamb attends the conference dinner the first night and brings in amazing special guests in the field of history, civics, or law to speak. This conference is also special in that it’s one of the few that offers a two-day institute solely to middle school teachers.
The C-SPAN Ed Team are amazing! They’re incredibly engaging, curious, and eager to help Teachers. You will not want to go home. In case you don’t, they have summer Fellowship opportunities for teachers to work at C-SPAN HQ for four weeks. Consider applying if you want to spend four weeks getting a true hands-on political media experience.
Dates: Middle School Teachers July 7th-8th, High School Teachers July 10th-11th; Application deadline: April 4, 2014. Cost to Teachers: Airfare to and from Washington, two nights’ hotel stay, and meals during the conference are all provided by C-SPAN.
American Bar Association’s Summer Institute for Teachers: Federal Trials and Great Debates in U.S. History
None of us have technically attended this institute but can speak for several fellow educators who rave about its awesomeness. Their seminar also gives an up-close-and-personal experience taking teachers inside the Supreme Court but primarily focuses on unpacking three significant cases. This year’s case studies include the Pentagon Papers, Olmstead v. U.S., and the Sedition Act Trials with materials prepared by the Federal Judicial Center.
Dates: June 22-27, 2014; Application deadline: March 1, 2014; Cost to teachers: Costs for travel, lodging, and meal expenses will be reimbursed to Institute participants according to U.S. government per diem rates.
Got any others you liked/loved that you wish to recommend? Email us at firstname.lastname@example.org.
What happened when a public school teacher went to Stanford Law School for an immersion course on Constitutional Law? For starters, 1) she paid too much for merch, 2) she pined for Palo Altoian weather every day, and 3)…
…She got to be the beneficiary of tag-team instruction from powerhouse legal scholars Larry Kramer, former Dean of Stanford’s law school, and law professor Pamela Karlan. Karlan also gets a ‘former’ added to her title. News broke in December of 2013 that she is headed to the Department of Justice to take a position as Deputy Assistant Attorney General for Voting Rights in the Civil Rights Division. Karlan will investigate states that have changed their voting laws in the wake of Shelby County v. Holder. Shelby was a case from the October 2012 term in which the SCOTUS overturned section 5 of the Voting Rights Act of 1965 which said specific localities needed preapproval from a federal court or the Department of Justice before modifying any of their election laws. States like Texas and North Carolina immediately made changes to their election laws days after the Shelby decision. We wrote a post about it and even podcasted the case here [give it a listen; it's a good and heated debate between SB writers Cara & Jim].
Karlan’s legal specialty, among many, is enforcement of voting rights laws. This is likely the reason she got the call from the Obama administration. Karlan went to law school at Yale, clerked for Justice Blackmun the same year Kramer clerked for Justice Brennan, and has argued before the Supreme Court seven times. When we saw her at Stanford, she discussed contemporary challenges of segregation in public education and an end to at-large elections in states, which may be unfair to minority candidates and voters.
We had strong reactions to this appointment at SB, as did several other legal news sources (Toobin wrote piece for The New Yorker, Politico did too). We, meaning Jim and I, met at the Stanford seminar the summer of 2011. We had the same fervor and love of constitutional law, but with polar opposite political ideologies. The seminar covered numerous topics that naturally incite discourse and debate, and Professor Kramer welcomed both. Unless you disagreed with him, in which case you were wrong. Very, very wrong. Especially if the argument was about Marbury v. Madison. We had a couple of guest lecturers who were faculty at Stanford Law come in that week. Pam Karlan was one of them and it was clear she and Kramer had fiery, passionate beliefs that at times put them at odds with one another. Regularly on opposite sides of the argument (abortion, death penalty, 4th Amendment searches and seizures, New York vs. Chicago-style pizza), Jim and I connected with the oppositional synergy of Kramer and Karlan. Here’s what I remember about the experiences with Karlan and Kramer that summer:
Professor Karlan came in to speak with us on the day we were covering the 4th Amendment. Coincidentally she opened her discussion with us about a case she was working with the Stanford Supreme Court Clinic that I’d been researching. It was a case involving a strip and body cavity search of a man in New Jersey after a minor traffic stop (Florence v. The Board of Chosen Freeholders). Three weeks prior, SCOTUSblog creator Tom Goldstein taught me and a small group of teachers about this case in D.C. Goldstein was preparing to give oral arguments for this criminal procedural case that fall in the SCOTUS and had really piqued my interest. He and Karlan started the Stanford Supreme Court Clinic together and defended the petitioner in the case, the man who’d been strip searched, in such a way that appealed to my natural concern for the rights of the accused. Karlan was a firecracker. She was passionate, whip smart (obviously), outspoken, and brought a house full of teachers nearly to its feet with her thoughts on inequalities in public education. Karlan’s strengths lie in her infectious energy, candid demeanor, and unwavering drive to enforce civil rights policies.
I’d emailed her after the seminar to say ‘thanks’ for taking the time to give such a great presentation-especially on the Florence case-and asked for additional sources and her thoughts on public school equity issues like ‘pay-to-play’ programs, school funding via referenda, and student speech rights. She wrote me back soon after with an article and a personal contact of hers in case I needed additional resources. I ran out and got my Team Pam tattoo that night.
Now, this does not imply I wasn’t on Team Kramer. As an educator, I use Professor Kramer’s lecture in my curriculum design more than any other SCOTUS expert and we dedicate almost every podcast to him. Kramer recently left Stanford Law for a position with the Hewlett Foundation. Stanford described him best in a departing tribute as “a personality that his fans describe as melding a bull in a china shop with a cuddly teddy bear.” I concur. The experience in Kramer and Karlan’s classes were educational game-changers that eventually led to the hatching of this website’s writing team, so we remain fans of both. Good luck to Pam Karlan in her new post and, if you’re an educator, take Kramer’s class at Stanford offered through Gilder Lehrman. You’ll get so much more than an awesome sweatshirt.
~Cara L. Gallagher
We hate that we’re covering this case, as the matter is a highly disturbing topic – restitution for the victims of child pornography. Full disclosure: We work for kids. They’re our “clients,” if you will, as we are educators. No teacher treads lightly or indiscriminately through a case involving sexual abuse of children. We’re guessing no human does, either. In the SCOTUS tomorrow (January 22, 2014) is a case involving such abuse, Paroline v. U.S. Despite its unsettling nature, we see this case as having potential for “teachable moments” to young adults in law classes.
5-cent explanation: Doyle Paroline was found guilty of accessing two pictures of a victim of child pornography known as “Amy Unknown.” Amy was eight years old when her uncle took sexually explicit pictures of her. In 1994, Congress passed a law mandating the victims of child pornography be paid the full amount of their losses from anyone found guilty of possessing their images. A lower court ordered Paroline pay Amy $3.4 million dollars in restitution, or money for a loss or injury. The question before the Court is how enforcement of the law should allocate money to the victims.
10-cent explanation: Amy Unknown, with her attorneys, alleges she suffers “death by a thousand cuts” every time pornographic images of her as a child are accessed online. Amy is in her 20s and has spent years in therapy, is unable to maintain employment due to her heightened anxieties, and knows these images are still on the internet for people to view at any time. The pictures are some of the most widely viewed images of child pornography in the world. “They have figured in some 3,200 criminal cases since 1998.” (Source: NYTimes)
Under the 1994 law, a victim of such a crime is owed restitution by anyone convicted of making, possessing, or distributing pornographic images. Not only does it protect the most vulnerable population of people – children – from experiencing heinous crimes like sexual exploitation, it also attaches a financial penalty severe enough to potentially deter adults from committing such crimes, one that no judge can overrule for reasons like financial hardship. Amy sued in a Texas district court demanding Paroline pay her $3.4 million in restitution. Paroline’s defense said it was “grossly disproportionate” to expect him to pay $3.4 million dollars for possessing two images of Amy when it was Amy’s uncle, not Paroline, who took and distributed the pictures. Amy’s uncle was found guilty in court, sentenced to 12 years in prison, and ordered to pay roughly $6,000 in damages. The district court agreed with Paroline and ordered him to pay nothing.
Amy’s defense appealed and the U.S. Court of Appeals for the 5th Circuit in New Orleans agreed with her ruling ordering Paroline to pay the full amount due to a piece of legal doctrine called “joint and several liability.” This doctrine says if Paroline can’t pay the full amount then he and his attorneys can go find the other thousands of criminals who viewed Amy’s pictures to shoulder the debt for the misery each viewing costs her. This shifts the burden from the victims to the criminals to do the legal legwork and recover the damages.
But it’s a controversial legal idea, one that the Department of Justice will address during oral arguments in the SCOTUS. While the DoJ agrees victims like Amy deserve damages, allocation of that payment should be reasonable and established at the district court level in an amount that is somewhere between “all or nothing.” In their opinion, joint and several liability for all victims of sexual abuse “has no statutory support, is practically unworkable, and may be fundamentally unfair.” Ultimately, locating and convicting thousands of online sex criminals, then determining how much each should have to pay to the victims might be a procedural nightmare.
The Court is asked to weigh in on the enforcement of Congress’ 1994 law and decide if and where a sweet spot is between “all or nothing” in damage awards for the victims of sexual child abuse. While it’s not a matter of deciding what’s fair to Paroline, this case has more to do with making sure crime victims attain restitution by testing the language articulated in the law. It’s pretty clear that the “mandatory restitution” clause repeatedly states the “full amount” be paid by the defendant:
So far, eight appeals courts have heard challenges akin to Paroline’s, and only the 5th Circuit agreed with Amy’s “theory of recovery.”
This case is emotional, raw, and hits home as it involves kids not much younger than our students. It sets up teachable moments when students who debate or moot this case must do the same thing adults do – put the emotional component aside, as hard as it is to do – look to the law to test the scope and question in this case. Second, it’s a worthwhile skill and endeavor that serves opportunities to recall connections to Federalism, checks and balances, and philosophical versus practical applications of law.
Navarette v. California
Oral Argument: January 21, 2014
The question raised in this case is whether the police can stop a vehicle based upon information provided by an anonymous caller alleging reckless driving that the officers did not personally observe.
On August 23, 2008, after receiving what the courts are considering an anonymous 911 call about a “reckless driver,” a police dispatcher provided information to California Highway Patrol including the color, make, model, license plate and direction of flight of the allegedly offending vehicle. Soon after, an officer and a sergeant observed a vehicle matching the description approximately 19 miles from the site of the initial encounter that had prompted the 911 call.
Although the officers had not spoken directly with the 911-caller nor had they observed any erratic or reckless driving personally after following him for five minutes, they stopped the vehicle based upon the information provided by the dispatcher.
Approaching the vehicle, the officers asked the driver, Lorenzo Navarette, and the passenger, Jose Navarette, for identification. During this exchange the officers recognized the smell of marijuana emanating from the truck’s rear bed compartment which was not visible due to a camper shell with tinted windows that covered the compartment area. The officers ordered the two men to exit the vehicle to conduct a more thorough search. The subsequent search produced enough marijuana–”four large bags,” according to California’s brief–to change the two men with possession with intent to sell and transportation of the illegal product.
The appeal claim was rejected by the higher courts in California and is now before the U.S. Supreme Court.
The question raised in this case is whether the police can stop a vehicle based upon information provided by an anonymous caller alleging reckless driving that the officers did not personally observe.
The case is an important one relating to how law enforcement officials may gather evidence during an investigation prior to establishing probable cause. According to the exclusionary rule precedent established for state and local authorities in Mapp v Ohio (1961), if the reasoning for the initial stop is deemed unlawful, any evidence secured as a result of that stop cannot be admitted as evidence pointing to guilt in court.
Anonymous tips to law enforcement (and the actions of the police produced by those tips) have a history of skepticism in the Supreme Court. A series of cases have all concluded the general principle that the police must guard individual liberties in a reasonable manner from the possibility of using a tip as a justification for rampant stops of would-be innocent citizens.
Relating to the facts of this case, precedent from the California Supreme Court–People v Wells (2006)–supports the police stopping a vehicle before corroborating the specific charge when the 911 caller is alleging that the driver may be intoxicated. The Supreme Court is left with the challenge to determine if the same leeway is afforded the police when the anonymous caller reports reckless driving.
Lawyers for the two men charged in this case argue that providing the police the power to detain a vehicle–’seize’ the truck and its occupants in Fourth Amendment vernacular–solely based upon an anonymous call alleging reckless driving would be too vague. Leaving this much discretion in the hands of the police, they reason, would inevitably lead to the kind of fishing expeditions of individuals the Court has spent decades trying to prevent.
To justify a stop by police conducted for investigative purposes, Navarette’s brief further argues, the observations of the individual officer must be taken into account, as outlined by the U.S. Supreme Court in 1968 in Terry v Ohio. Allowing the police to conduct the type of stop/seizure outlined in this case would amount to an “automobile exception,” they reason.
California’s brief, in part, details the power granted in Wells and furthers their argument with the reasoning found in Florida v J.L. (2000). In that case the U.S. Supreme Court found that the “innocent details” of a 911 call, including a vehicle’s make, model, color and direction of flight, may be used to provide reasonable suspicion to justify a stop.
The question in this case: Is the state of Massachusetts violating Eleanor McCullen’s 1st Amendment right to free speech by enforcing a law that prevents her and others from protesting inside a 35-foot buffer zone of the entrance, exits, and parking lots of abortion clinics?
5-cent explanation: Eleanor McCullen (pictured above), a Massachusetts resident and pro-life protestor, is challenging a 2007 law that increased a buffer zone from 24 to 35 feet outside of abortion clinics. This buffer zone prevents anyone not receiving treatment at the clinics from protesting less than 35 feet outside the clinic and speaking to patients in the parking lot, sidewalks, or near an entrance or exit. McCullen believes this law is a violation of her free speech and expression rights protected by the 1st Amendment. Massachusetts’ claim is that the law is legitimized by a precedent in a similar case in 2000 (Hill v. Colorado), and ultimately protects patients from potential harassment.
10-cent explanation: This case involves 70-year old Eleanor McCullen, a pro-life activist who has brought this suit with six other pro-life 1st Amendment advocates. Their complaint is that a Massachusetts’s law barring anyone from crossing the buffer zone around abortion clinics violates their 1st Amendment free speech and expression rights to offer alternatives to patients getting an abortion. When the state first enacted a law in 2000, harassment of women entering and exiting abortion clinics wasn’t uncommon. The history of harassment outside of abortion clinics in Massachusetts is extensive and, in some cases, fatal. Patients endured bouts of shouting and screaming, were grabbed, had their license plates photographed, and in some cases had butyric acid thrown at them while they entered and exited the clinics. In 1994, John Salvi shot and killed two women, and injured 5 others, at two abortion clinics in Brookline, Massachusetts.
The 2000 law banned protestors from standing within six feet from an 18-foot radius to the center of an abortion clinic. The U.S. Court of Appeals for the 1st Circuit upheld the Massachusetts law when it was challenged in 2000 and was further supported in a 6-3 SCOTUS decision on a similar matter in Hill v. Colorado. In the Colorado case, the Court upheld an eight-foot buffer zone around health facilities. They reasoned that a speech restriction law that didn’t discriminate against an expressed viewpoint, was narrowly tailored, left open other means of expression, and was neither overbroad nor too vague passed constitutional muster. To simplify the decision: you have a constitutional right to say something you believe strongly in, but that right does not guarantee your intended audience must hear or listen to your speech. Similar laws that restrict the time, place, and manner of speech have been upheld by the courts and can be enforced by agents of government.
Every Tuesday and Wednesday morning, from 7:00AM-11:00AM, you can find Eleanor McCullen outside of a Massachusetts abortion clinic pushing a stroller and handing out literature, including her personal phone number, to women she can reach going in or out of the clinic. Inside the stroller is a DVD player showing ultrasounds of the unborn and pamphlets on pregnancy medical centers nearby. McCullen considers her work “sidewalk counseling.” Instructed by her priest to activate a message she believes she received from the Holy Spirit eleven years ago, McCullen took up this method of outreach. The priest told McCullen that her “purpose was to ‘stretch herself’ out of her comfort zone in order to build up the kingdom of God.” He recommended she do this by protesting local abortion clinics.
Eleanor McCullen has reached out to many women seeking abortions, offering them counseling, alternatives, even offering to host them baby showers, in which she will give them all the items new mothers and babies need. McCullen admits the showers are opportunities, or incentives, for the women not to have an abortion. She feels strongly in speaking to these women respectfully, kindly, and in a way that isn’t threatening, and has been openly critical of aggressive anti-abortion advocates.
Her problem with the 2007 law is not simply that it exists but that it allows certain people to approach these women – employees, nurses, and doctors – while others are legally barred from doing the same. McCullen argues this practice constitutes “viewpoint discrimination.” Her attorney will argue the employees of the clinics could encourage women to have the abortion while the buffer zone prevents the opposing side from also encouraging the women from receiving the abortive procedure.
McCullen raises a few fundamental questions about 1st Amendment rights one has to deliver speech and to protest to an intended audience. First, is Massachusetts’ 35-foot buffer denying some access to their intended audience (McCullen and the protestors) while simultaneously granting others (employees of the clinics) access? If so, this technically could be viewpoint discrimination and the law may be struck down. Second, is there a distance that provides opportunities for speakers to reach their intended audience while also protecting patients from harassment? If 35-feet is too much and 24-feet is too little, can the Court split the difference between the two to reach a compromise? It’s also worth noting two key points: Only two of the six who supported the 2000 Colorado law are still on the bench (Ginsburg and Breyer) while three who voted against it (Scalia, Thomas, and Kennedy) are not only still around but likely to garner support by justices Roberts and Alito. Finally, if the justices strike down the Massachusetts buffer zone as an unconstitutional violation of the free speech, will the Court reverse the current ban in place for anyone who wants to protest on the steps of the Supreme Court? Doubtful, but we’ll wait to see what happens.
We have no videos to share on this case, unfortunately. But, in addition the other links we posted, we also liked these two articles on the case from Adam Liptak of the NYTimes and the Cato Institute.
Next on the docket is a case called NLRB v. Noel Canning that asks the SCOTUS to clarify the powers a president has, via the Constitution, to fill vacancies in his administration like cabinet positions, federal judges, or executive office positions. This particular case deals with the latter. Key to understanding this constitutional interpretation case is knowing that presidential appointments need to be OK’d with the “advice and consent” of the Senate, unless they’re in recess. You’re picturing Harry Reid and Mitch McConnell playing tether ball outside the Capitol, aren’t you? Not that kind of recess, but they are away from the Senate floor…maybe playing kickball instead. The outcome of this case could have quite a significant impact on the interaction between the legislative and executive branches.
The U.S. Supreme Court will hear oral arguments concerning three questions related to the recess-appointments clause of Article II Section 2 of the Constitution:
- Can the Senate be in “recess” during a session or is a “recess” the time period between the end and beginning of two distinct formal Senate sessions?
- Must a vacancy, in the midst of being fulfilled, have to originate during a recess?
- Did informal meetings of the Senate—unanimously agreed to by members of the chamber—conducted every three days during a 20-day break, constitute a recess?
A labor dispute over a collective bargaining agreement allegedly made verbally between Noel Canning, a bottling and distribution company, and the International Brotherhood of Teamsters Local 760 was brought before the federal National Labor Relations Board (NLRB). Empowered by law to enforce the provisions of the National Labor Relations Act, the board in February 2012 ruled against Noel Canning in the labor dispute. The company filed suit in federal court arguing that President Barack Obama filled three vacancies to the board that had ruled against Noel Canning without Senate approval.
Article II Section 2 of the Constitution provides the president with the power to make appointments absent Senate confirmation in a specific situation: A recess of the chamber. “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions that shall expire at the End of their next Session.”
The issues before the Court in this particular case revolve around the timing of the origin of the vacancies on the NLRB and the status of the Senate at the time of the appointments. Does a vacancy have to originate during the Recess, as the clause seems to express? Should “recess” be defined as “a period of cessation from usual work,” as the Obama Administration will argue, or the time period between the formal conclusion of one Senate session and the commencement of another, as the Noel Canning Company lawyers will state? Were the informal “meetings” of the Senate agreed to in a bipartisan vote unanimously by the Senators—where a gavel was struck every three days to symbolize the Senate was not in formal recess—a high enough threshold to conclude that the chamber was not on a “break?” Does the president determine when the Senate is out of session or does the chamber?
The Obama Administration seems to have a high hurdle to overcome in order to be successful in this case. Utilizing the words of the Recess Clause of the Constitution (see above), the written exception for confirmed appointments in Article II specifically references “the” recess of the institution not “a” recess. Under the definition argued by the White House, a break for dinner or to go home for the evening to sleep could be interpreted to be “a period of cessation from usual work.” In addition, Article I Section 5 of the Constitution expressly empowers “a smaller number” of either chamber of Congress to “Adjourn from day to day,” as had been done by the Senate in their once-every-three-day meetings when the appointments were made to the NLRB.
Why teach this case? For teachers, and those among us who find the debates over the “Supreme law of the land” endlessly fascinating, this is another great opportunity to demonstrate to our students that, when it comes to the law, meanings of words genuinely matter—even seemingly innocuous ones like “the.”
Like we said earlier, the outcome of this case could have quite an impact on the interaction between the legislative and executive branches. Keep in mind, this past fall the Senate went “nuclear” changing the confirmation of presidential appointments, except SCOTUS vacancies, so that less senators are needed to confirm appointments like members of the Labor Relations Board. This fact may affect the Justices’ decision in NLRB, but we will have to wait to find out.
For more info on this case we like Carolyn Shapiro’s video (below) and the coverage on SCOTUSblog’s site here.