Don’t the New Yorker’s readers deserve a better law analyst than Jeffrey Toobin? In his rant against the Canning decision, notes Ed Whelan, “Toobin asserts that there has never before been a ‘legal challenge’ to the scope of a president’s authority to make recess appointments. Somehow he missed the Eleventh Circuit’s ruling in 2004 — highlighted prominently in the D.C. Circuit opinion — in which liberal law professor Laurence Tribe and others challenged one of President Bush’s recess appointments.” ["Bench Memos"]
P.S. Mike Rappaport on another datum omitted by Toobin amid his fevered charges of judicial partisanship: “Prior to Judge Sentelle’s decision, the only judicial opinion to adopt the same position was written by liberal 11th Circuit Judge Rosemary Barkett, following a brief filed for Ted Kennedy by liberal Marty Lederman.”
A. “Buried in the middle of the penultimate paragraph.”
Q. “Where, amid a long rant against the D.C. Circuit’s decision striking down most recess appointments by the President (“A Court Upholds Republican Chicanery”), would you expect the Times to concede that the practice of holding pro forma sessions to stymie such appointments was pioneered under Democratic Senate rule as a way of restraining President George W. Bush?
No prizes, as distinct from amusement value, in demonstrating what the New York Times thought of the practice back then.
More on the Canning v. NLRB decision: Trevor Burrus/Cato, massive link roundup at How Appealing, John Elwood, Point of Law roundtable, Michael Fox/Employer’s Lawyer (implications for NLRB), @markcalabria (implications for Richard Cordray CFPB appointment), Michael Greve, Mike Rappaport.
My colleague John Samples argues for the venerable instrument of Senate obstruction [Philadelphia Inquirer] And some sort of prize should go to Sen. Carl Levin (D-Mich.) who chided “one of the major newspapers in our country” — he probably meant the New York Times — for siding with anti-filibuster Democratic ultras this time around, though it had taken exactly the opposite position when Republicans controlled the Senate. “We’ve got to be consistent.” [Dave Weigel]
Check out whether they change their position on the filibuster depending on which party controls the Senate. [Barton Hinkle, Richmond Times-Dispatch]
President Obama, along with a number of Senators and longtime ADA advocates, have urged rapid Senate ratification of the United Nations Convention on the Rights of Persons with Disabilities, hailed in some quarters as an “international ADA”. Sen. Jim DeMint and other senators have objected to the super-fast-track proposed ratification schedule, arguing that the measure might affect the rights of homeschooling families caring for disabled children and that, in general, opponents deserve a right to be heard. If Senators take a closer look at the ambitious views of the treaty held by various disabled-rights and international-law advocates — one advocate says it could revolutionize the legal rights of the mentally ill, for example — they might find further reasons for caution. [hearing]
… can we have a heart-to-heart talk about some of what’s wrong with your new guidelines restricting employers from asking about job applicants’ criminal records? [Robin Shea] More: Diane Katz/Heritage, Ted Frank, Federalist Society podcast with Maurice Emsellem, Dominique Ludvikson and Dean Reuter, Brian Wolfman/Public Citizen (favorable to rules). Amy Alkon rounds up several more links, regarding which it should be noted that the EEOC has traditionally conceded an employer’s right to consider an embezzler’s rap sheet when filling a bookkeeping job — but not necessarily an axe-murderer’s rap sheet, since that’s not demonstrably “job-relevant.” Don’t you feel reassured now?
In related news, Roger Clegg reports that the House has passed a provision blocking EEOC enforcement of the guidance, which is encouraging as a preliminary matter; the Senate, however, is very likely to take a different position, and the rider will have no effect if the Senate view prevails. [NRO]
DealBreaker and Prof. Bainbridge try to clarify what the proposed ban would do, and address fears that it would criminalize stock trading by persons not employed by Congress who learn of impending legislative developments. Related: Jim Copland.
They’re coming up within the next few days, but Prof. Bainbridge warns that the draft legislation circulating from the office of Sen. Kirsten Gillibrand (D-N.Y.) is “bizarre” and “toothless.” Earlier here, here, etc.
More: Gillibrand’s office says the weakness of the proposal was due to an inadvertent drafting error and that it will be given teeth. C-SPAN covers the hearing, the SEC and Sen. Scott Brown make their views known, Todd Henderson and Larry Ribstein take a contrarian position, and Prof. Bainbridge covers the scholarly testimony.
Thanks to the sensational revelations from Hoover’s Peter Schweizer on 60 Minutes and elsewhere, the public is now aware of the uncanny investment success that members of the U.S. Congress enjoy when they personally bet on the stocks of companies with business in the capital. But is it lawful for them to be trading on inside information? I take up that question in my new Cato at Liberty post. More: Bainbridge, Stoll, @AndrewBreitbart.
Hans Von Spakovsky’s write-up (complete with Schools for Misrule mention, for which thanks) sums up the event: “Leahy stacks hearing, still loses.” More: Adler, Kendrick, Bader, Pincus, Richer/Kendrick, Stoll.
Even using the powers it has on the books now, according to one expert, the Food and Drug Administration could largely shut down the making of artisanal farmhouse cheese if it chose. This week the Senate will consider the Food Safety Modernization Act, which will put much more power in the agency’s hands and greatly ramp up regulatory and paperwork requirements for producers, though (in a welcome improvement) the new Senate version of the legislation does at least nod more toward the principle of “tiering” burdens for smaller local producers. Meanwhile, some press outlets continue to pretend that the only real debate is between do-nothing lawmakers who don’t care whether Americans die of food poisoning, and more interventionist lawmakers who are trying to keep that from happening. I’ve got a fuller report on the politics of the food bill — and of the lame duck Congress more generally — at Cato at Liberty.
More: Bill advances toward expected Senate floor vote Tuesday [WaPo]. The Daily Caller reports on continuing small-farmer concerns, and recalls a raw-milk raid; David Frum wonders about elitism and its taint; Michelle Malkin questions the lame-duck railroad (& thanks to both of the last two for kind links).
Carter at Point of Law compiles a list of mostly-bad bills Congress left town without passing [parts one and two] One very worrisome law of this sort, the we-sue-the-world Foreign Manufacturers Legal Accountability Act (FMLAA), is the subject of a new policy analysis by my Cato Institute colleagues Daniel Griswold and Sallie James (it’s the sort of aggressive trade restriction that could touch off major retaliation, not to mention its possible CPSIA-like effects on vintage dirtbike collectors; more background here, here, and here).
Unfortunately, two troublesome enactments — the food safety bill and the misnamed Paycheck Fairness Act — were teed up by Majority Leader Harry Reid for possible expedited passage in the lame duck session.