Support the historical practice and you have this substantial historical practice. The hyster practice accelerated over time and you can see examples going back to george appointments that would not qualify under the court of appeals ruling. As time has gone on, there has been more and more. How much weight do you give history . How can you allocate authority between the residents and the senate . It will be an interesting case to follow. Let me make one tiny little point. What is old is new again. Most of the work done on the question of intercession and when the recess has to occur was done by democrats, including me. I wrote to senator canty challenging recess appointments by president bush. The republican judges rejected our argument. Now the shoes have been completely reversed. Do you have an opinion or if theur brief address court agrees with the dc circuit , then what is the effect on going backwards . I think one of the appointments challenged i senator kennedy was a judge sitting on the 11th circuit. Would the majority decisions be questioned . [laughter] not what thetually case presents britt i dont think its an issue we will get to if the court rules that way. It will have to be confronted but i dont think it will be wrestled through directly. Constitutional power is the treaty power. The next case asks what the limits are on the power of congress to implement treaties. Some treaties are selfexecuting and others require the congress after the senate has approved a treaty to pass a statute to implement its provisions. Most courts have read a case from 1920 that holds if a statute is implementing a valid treaty, the statute is necessarily valid. One case concerns the statute that implements the 1993 convention on the prohibition of the development of and stockpiling of chemical weapons. It is a treaty concerned with the terrorists and rogue states. Case also concerns the meaning of this 1920 case, missouri versus holland. Depending on the courts reading, that maybe another instance where this Court Overrules a prior decision. With these complex constitutional legal issues, they arose from a domestic discipli dispute. One woman found that she was pregnant and her husband was the father. She flipped out. Decided to make her friends life a living hell. And she was a microbiologist and naturally she decided to do this using some chemicals. She took some from her place of work and ordered some on amazon. She put the chemicals on the friends car and door knobs and mailbox. She also took some mail from her friends mailbox. At this point, she was not really a friend. [laughter] more of an acquaintance. Her friend suffered a minor rash. The chemicals were easy to see and wipe up of her friend got a rash on her thumb. The evidence is that she intended to cause irritation and discomfort but that she did not intend serious harm. Listed locald police but did not know what to do. Taken so shebeing asked the post office to set up surveillance and found out that carol bond was behind this. You might expect the local police to take over but instead, federal prosecutors got involved. I assume thats because the post office. She did not engage in activities in violation of the chemical weapons treaty. Her actions did not involve Chemical Warfare or stockpiling of chemical weapons but the prosecutors charged her with using unconventional weapons in violation of the statute that Congress Passed to implement the treaty. She argued to dismiss. She said the statute exceeds congresss constitutional powers in article one, section eight, and invaded the powers reserved to the state in the 10th amendment. She called the statute a massive and unjustified expansion of federal Law Enforcement in a state regulated domain. The court of appeals rejected her argument and said missouri versus holland, the 1920 case, if congress enacted a statute to enact a valid treaty, it was acting within its authority. Before the Supreme Court, she reiterates this argument that the statute is unconstitutional if it is applied to such a local crime. Theargues that the power of statue to implement a treaty cannot bring with it the power to enact a law in disregard of other constitutional limitations. Government says the have a federal law that criminalized her conduct in the absence of the treaty, they conductriminalize her under a statute implementing a treaty. Also argued the statute could be read not to cover her crime at all and that the Supreme Court read it that way, it would have to reach the constitutional each issue. The plainly falls under scope of the statute and that it is constitutional because the the two that implements treaty is constitutional even if it covers some local subject matters that it would not otherwise address. Sayswise, the government the u. S. Would be hamstrung in negotiating treaties and the confidence of other countries in the United States as a Global Partner would be undermined. A red line, if you will. [laughter] no comments. The government also makes an argument now that it did not make out the trial level. It made in the court of appeals. The argument is that the provision of the statute is valid under congresss Commerce Clause power which is the power to enact laws that regulate the flow of goods among the states and chemicals are sold in interstate commerce like these which are not illegal weapons. This argument was not addressed in the opening brief because bonds position is that it was waived so it is a ear bones description but the government portrays the case differently. The government explains the two chemicals used have the rare ability to cause toxic harm to individuals with minimal topical contact and one half a teaspoon of one of them could be lethal. Shegovernment says that attempted to poison the friend with these chemicals at least one to four times over the course of 24 months. Substance on the mailbox and the door to her home and car in sufficient quantities to be lethal. To these additional details, expect the answer to the constitutional question. Shebrief for bond explained was under incredible stress. Her hair was falling out. It had a devastating effect on her mental health. Her conduct was completely out of character for her. Affect the answer to the constitutional question . Probably not but like all good breeze, they portray the most sympathetic light of their client even if it does not have the legalnswer to question and the courts decision. They would probably portray the facts which are most sympathetic to the outcome it is going for. Filed andfiles were the argument is scheduled for november 5. In terms of the implications of the case, i take it that a lot of treaties we enter into, there would be some other power that would allow congress to implement them. There are some like treaties ifut Domestic Violence that congress has the power to implement, it will have to come from the treaty . I will talk about a case involving the Clean Air Act briefly because it will keep us on time and it is impossibly complicated. This is a case called homer. There are two cases and they involve the transport rule. It involves downstream air pollution. We hear the idea that there may be states in the midwest or the northern part of a country where there is heavy industrialization or coalfired power plants and emissions from those plants can travel within that state but to other states as well. The Clean Air Act addresses many things including that. Went about trying to figure out how to regulate the emissions that go from one state to another. This is why you need a federal law. A state is unlikely to regulate itself to protect another state. The epa put a series of restrictions on these up when the states on the amount of pollution that could leave that state and would end up in another state. Challenges to of those regulations issued by the epa. Deals with the question of whether the epa can set the rules or the states themselves are going to set the rules and some technical questions about whether these claims were brought in time in the first instance. Beyond the Clean Air Act, there is one other feature of this case. Aboutll have heard whether we will appoint new judges and additional judges to the dc circuit and the question of whether it needs new judges or not. There is also the notion that the dc circuit is the second most Important Court in the country not because it sits in a hierarchy of the judiciary. It is that these hugely consequential cases involving the federal government are brought in that court. The recess appointment court went there, the epa case. You can see why it is there are such political struggles over the appointment to that court. Lets turn to fair housing. You followed, if an earlier season of the Supreme Court, you know there was an exciting episode that took lace and burlington county, new jersey. Tom here was involved arguing stripase involving the search of a prisoner in burlington county. This is a different type of issue coming from the same location, the county seat of purling 10 county, called mount urbanand it involves an renewal type program. The town of mount holly wants to has begun to bulldoze a neighborhood called the mount Holly Gardens and build new housing there. They fill the area is lighted and there is a lot of crime there. They want it improved. Mount Holly Gardens neighborhood is also the one part of town which is a minority neighborhood. Under a federal fair housing laws, one cannot discriminate against people based on race. When theu determine protections of those fair housing laws go into effect . A number of residents of the mount Holly Gardens neighborhood in that town sued to stop this redevelopment project from going forward. They argued that it violated fair housing laws because the people who were bearing the impact of this development were disproportionately minorities. Under the way the fair housing law and other antidiscrimination laws have developed over the decades is there are different ways you can see whether their protections are triggered. It stopped history, being fashionable to say we just like discrimination. Of segregation and will adopt rules that discriminate against people of color. That stopped being the thing that politicians could announce. For a long time, it was the kind of thing that helped politicians win elections. Since officials who make these decisions no longer are outwardly declaring that is what they want to do, how do you find out if that is what is really going on . The doctrine that has been developed is known as disparate impact for it if the policy that the agency is undertaking has a disparate impact on a protected class of people, often minority groups, then it may be illegal for them to proceed. Practicehis works in is an agency wants to do Something Like a redevelopment of this neighborhood, residents sue and they say it is a violation of fair housing and has a disparate impact on us and we are minorities and we are getting shafted again. If they can demonstrate there is a disparate impact, it does not mean the project cannot go forward. It means the city in this case has to show that it wants to do similar toe goal compelling goals in the affirmative action context and it has to show that there is not way to get to the same result without having a similar kind of impact on this protected group. Narrow similar to the tailoring of them remedies. Once the city raises that defense and says this is why we ise to do it this way, there no disparate impact on the no way to get to the same legitimate all without having it, then the burden shifts back to the other side. The residents would then have to say you are wrong because there are other ways that you can get where you want to go without bulldozing our houses. What the Third Circuit court of appeals said has to happen before mount holly can go ahead and complete this redevelopment project. Type ofparate impact process of heading the ball from one side to the other depending on what each side can prove has to be examined by the trial court before the city can go ahead with this project. Thecity has appealed to Supreme Court and they argue that no, this Third Circuit court of appeals and other federal Appeals Court have applied similar rules to this type of situation and have gotten it wrong. Theres a not have to be a disparate impact type of analysis before we can go forward. We cannot have intentional discrimination and we are not intending to target people because of their race but this type of burden you are placing on us is not required by the federal housing law or by the constitution and you cannot make us jump through these hoops before we complete the of thispment neighborhood. The court will look at that and has implications not only for housing law but also for other areas of antidiscrimination law, possibly including employment discrimination. The same type of test often arises when you have an employment discrimination lawsuit. It is hard to prove that someone is intentionally discriminating. The jargon that part uses of disparate impact smokes out eror miscible impermissible discriminatory actions. It could have implications even beyond housing into an and other areas of public policy. One little been yet about this question is that one that theynette is have been concerned about cases getting to the court that has rulings they dont favor. In this context, they have worked very hard behind the scenes to get the cases to go away. After the Supreme Court agrees to hear a case, it can be settled or withdrawn up to the day they decide the case. There was a predecessor case to this one that i represented the disparate plaintiffs in with the possible involvement of the federal government. It became controversial and that case was settled after the court agreed to hear it and they have taken this followup case. There is a lot of pressure on the parties to this case to settle it before the justices can decide it as well. The settlement in this case would probably mean a payout to the residence to move. Case is called mccutchen versus federal election commission. My office filed an amicus supporting the government and the case. As in citizens united, the petitioners in mccutchen are overrule acourt to prior Court Decision in the area of campaign finance. The prior case was buckley versus vallejo and which the court upheld congress authority to up hold aggregate limits on individuals contributions to cook to prevent circumvention of the limits on donations to individual candidates. The aggregate limit today is about 125,000 on contributions to individuals during an election cycle. An individual can contribute to parties, pacs, or individuals. To twos a 74,600 limit year contributions and a 48,000 600 limit to candidate organizations. The individual position or the case is sean mccutchen. Man who gave a lot of money to individuals and parties during the last election cycle but he wanted to give more and had he given more, he would have exceeded the limit. Challenged the federal Election Campaign act arguing along with copetitioners, the Republican National committee, that the aggregate limits violate their First Amendment rights and should be eliminated because the resulting contributions will not be large enough to cause any concern. That is the issue before the Court Whether the aggregate limits, not the individual limits, but the aggregate limits violate the First Amendment. The concern is that the elimination of the cap would allow candidates and Party Officials to solicit and accept large donations to be shared , various major parties candidates, and committees. The Supreme Court has held the toits on large donations create a bulwark against certain corruption. Finance,ea of campaign some members of the court disagreed openly with that precedent and the court has shown itself quite willing to overturn precedent in this area. Us prior cases make tell what the outcome should be. They dont tell us what the outcome will be. Part of the dispute in the case is the distinction over Campaign Expenditures and campaign contributions. The 1976 case of buckley held the limits on expenditures were unconstitutional because that was a direct infringement on the First Amendment right of the candidate to speak and therefore subject to the highest level of First Amendment scrutiny and that the expenditure limits could not survive that level of scrutiny. The country editions were more like an association as opposed to a speech activity. It was subject to a lower level of scrutiny and the contributions and the aggregate limits survived the First Amendment challenge because they prevented corruption. In mccutchen, the petitioners are asking the court to narrow if not overturn this aspect of the buckley distinction between expenditures and contributions. Distinctionre is a so that their cases just about aggregate limits and not the individual contribution limits that applies to any specific candidate. The distinction they draw is pretty fuzzy. If they succeed in that aspect of the case, that would likely to thesignificant threat limits on contributions of individual candidates and i expect we would probably we would promptly see some litigation in that area. The petitioners also argue that they can win even under buckley just because the aggregate limits today, and given other research in campaignfinance law, are such that these particular limits are not needed to prevent corruption. The possibilities are that and at will be limited least some contribution limits will be subject to scrutiny meaning there will be no limits and buckley will not be limited but the court will hold that these particular limits do not protect against a government interest in protecting against willption or that buckley not be reaffirmed in the court will holdhe court that the limits protect against corrupti