Colleges. They can ask the board of trustees. They can ask the admissions office. They can go to the legislature or seek a constitutional amendment. But minority groups, the only way they can get a preference enacted is to teamed states constitution and that violates this by depriving them of the same way to influence state policy that other groups have. When that case so the case is not one that i it deals with affirmative action and whether a state can abolish affirmative action on a statewide basis. Its interesting in a number of ways because it says that a measure that on its face is completely race neutral. It says no one should receive any preference or detriment based on race is unconstitutional because it prohibits some people from seeking a preference based on race. And again, as allison said, we cant ever be sure what the Supreme Court is going to do but it seems that the opponents of proposal two, in other words the coalition of affirmative action has an uphill climb to persuade this court to enact a state constitutional amendment that says nobody can be treated different based on race. And that we argued on october 15 at 1 00 if you are free. One thing that is noteworthy about this is the way in which the Supreme Court did tackle a similar issue in earlier generations. And we think of there being a lot of stability in the american law and Supreme Court decisions because of the value of press sent dent. But on these really hard questions like affirmative action, race, each new successful Supreme Court majority feels some flexibility to correct the errors of its predecessors. And so too with the majority view of the grapt case, the decisions up holding the ability to have some form of preference. And so too on these questions of whether local bans on affirmative action type programs are unconstitutional. So lets continue with our forward march through the upcoming cases. That being the first one we talked about. In the next 45 minutes we are going to go through nine cases. So we are going to stick to five minutes a case. Which i think will be no problem at all. Given that we only took 20 minutes a case for the first five. So this very simple and easy to understand recess appoint. This say case called National Labor relations, its a case about how they allocate power between the president and the senate. And article two of the constitution gives the president the power to appoint federal officers subject to the advice and consent of the senate. There is another provision im going to read you and listen carefully because the language going to matter. The President Shall have power to fill up all vacancy that is may happen during the recess of the senate by granting the commissions which shall expire at the end of the next session. So if the senate is in recess, the constitution gives the president the authority to make appointments that he would otherwise need the senates advice and consent to make. And what this case is about is the meaning of that clause. Now here is what happened to give rise to the case. The National LaborRelations Board enforces federal labor law. Its a five member board and you need at least three members to have a quorum so the board can operate. There have been vacancies on the board for some time. Been two of them but they had three but the term of one of the three was getting ready to expire and then they would have only had two and couldnt operate. President nominated two people to fill the vacancies in the board, the two vacancies. The senate did not confirm their nominations so the board was in this position where it was about to go out of business. In december of 2011 the senate decided that it was going to take a break from mid december until january 23rd. But they didnt just declare they were going to go out an a recess, instead they provided that they would have a pro forma session every three days during that period in which one member of the senate would be there and would call the senate into session and in 30 seconds or less bring down the gavel and call the senate out of session. And the resolution that set this up provided that members of the senate didnt need to be there for these sessions and that no business would be transacted. Why did the senate do this . They did it because by accepted practice a break of that short of time of three days doesnt count as a recess that triggers the president s power to make recess appointments. So this happens at the end of 2011. The president decides that actually the senate is in recess despite these pro forma sessions because those sessions dont make the senate available to provide advice and consent which is what it has the obligation to do and if they are not around then the president says they are in recess. Since this recess is long enough and there wont be a quorum unless i get people on there. So he appoints two people. So the board with these two recess appoint tees on it renders a bunch of decision. In one decision its enforcing labor laws against the Company Brings a challenge in court and says this was an action that was without authority because the board actually lacked a quorum because the people who were sitting on the board who voted to enforce the law against me were unconstitutionally appointed. And thats how the case shaped up. And it was in the court of appeals here in the district of columbia. And there was a big fight between the board and the United States government representing the board arguing these were valid recess appointments because the senate really was in recess despite the pro forma sessions. And the company said the pro forma sessions count. And everyone anticipated there would be a decision by the d. C. Circuit on the question of whether this pro formas are enough of a session to present the conclusion that there is a recess that allow it is president to make these appointments. The decision comes out and the court goes way beyond the question. In fact, doesnt even address that question. It addresses two much more fundamental questions about the scope of this power that has been around since the beginning of the republic. And the first is what does the recess mean. Remember i said vacancies that may happen during the recess. The court said the recess thats phrased in the singular so must apply to only one recess and if there is only one it can apply to, it must be the recess between the sessions of congress. The recess between the first session and second session. You know congress is broken into oneyear sessions. So it must be the intersession recesses. You know when Congress Takes august off and goes on recess that is not middle of the year. It has to be a intersession recess and these appointments came in january after congress reconvened on january 3. It was within the new session and therefore wasnt an intersession recess and therefore it wasnt the recess and therefore it was invalid for that reason. But thats not the only problem the court said. The other problem the court said was the constitution says the president can fill up all vacancy that is may happen during the recess. So that means that the vacancy has to arise during the recess. The vacancy cannot exist before the recess. If it did it didnt happen during the recess. And therefore there are two fundamental problems with these appointments. So by virtue of that decision the d. C. Circuit took what was already a quite important question of the separation of powers and the proper allocation of authority between the senate of the United States and turned it to a huge question about the separation of powers between the senate and the United States. And part of the reason for that is that if one goes back through American History as one will see in the brief we file tomorrow in this case, there are hundreds and hundreds and hundreds of recess appointments that were either intrasession, in other words not during the break at the end of a session or to fill vacancy that is arose before the senate went into recess. And including just to highlight one example the appointment of Dwight Eisenhower as commander of the European Forces in the summer of 1943. Of course, the language i think is capable of being read to support the historical practice with respect to inter and intrasession and when the vacancies arise. And then you have this quite historical practice and there is Something Interesting about that which is it accelerated over time. You can see examples going back to George Washington of appointments that wouldnt qualify under the court of appeals ruling. But as time has gone on there have been more of them. How do you get the history, how do you interpret the language. So i think its going to be an interesting case to follow. One tiny little point. Let me make one point. A lot or most of the work done on the question of intrasession and when the recess has to occur was actually done by democrats including me, i represented senator kennedy challenging recess judicial appointments of president bush. And we hp to get a lot of republican judges all of which rejecting our arguments and all the arguments have been reversed and the same arguments are being used against president obama. I wonder if you have an opinion or if your brief addresses if the court agrees with the d. C. Circuit then what is the effect ongoing backwards . I think one of the appointments challenged by senator kennedy was a judge sitting on the 11th circuit so would the 21 decision where he was in the majority now be questioned . Obviously the answer the answer is thats actually not an issue that the case presents so its not an issue well get to. If the court rules that way, then it will have to be confronted but i dont think it will be wrestled with in this case. The treaty power. The next case asks what the limits are on congresss power to implement treaties. Some are selfexecuting and others require the congress after the senate has approved a treaty requires congress to pass a statute to implement its provision. Most courts have read a case from 1920 to hold that in a statute is implementing a valid treaty then this statute is necessarily valid. Bomb versus United States concerns a statute that implements the 1993 convention on the prohibition of the Development Production stock piling and use of chemical weapons and on their destruction. Its a treaty concerned with terrorists and rogue states. The case also concerns the meaning of this 1920 case missouri versus holland and depending on the courts reading may be another one of the instances where this Court Overrules a prior decision. These completion constitutional legal issues arose from a domestic dispute. Carroll found out that her best friend was pregnant and her husband it was father. She slipped youre not supposed to do that, right . She decided to make her friends life a living hell and she was a micro biologist and so naturally she decided to do this using some chemicals. She took some from her place of work and she ordered some on amazon that is used in a dark room. And she put the chemicals on the friends car and doorknob and mailbox and took mail from her friends mailbox. And she wasnt really a friend at this point. More an acquaintance. So her friend suffered a minor rash. Apparently these chemicals were bright orange and easy to see and wipe off but her friend got a rash on her thumb. And she intended to cause irritation and discomfort but she did not intend serious harm. The friend enlisted the she asked local police. They didnt know what to do. The mail was being taken so she asked the post office to set up surveillance and found out carroll bond was behind this. At this point you might expect the local police to take over but instead federal prosecutors got involved. I assume thats because the post office thing. So mrs. Bond did not engage in activity in violation of the chemical weapons treaty. Her actions didnt involve Chemical Warfare or stock piling of chemical weapons. But the prosecutors charged her with using unconventional weapons in violation of the statute that Congress Passed to implement the treaty. So she moved to dismiss. She argued as applied to her conduct the statute exceeds congresss constitutional powers in article 1, section 8 and reserved powers to the state in the 10th amendment. She called it a massive and unjustified expansion of law enforce. The court of appeals rejected her argument and said that the missouri versus holland, the 1920 case means that if congress implemented a statute to enact a valid treaty then it was acting within its authority. So before the Supreme Court she reiterates the argument that the statute is unconstitutional fits applied to such a local crime. She argue that is the power to enact a statute to implement a treaty cant bring wit the power to enact a law with disregard to other constitutional limitations. And because she says the government could not have a federal law that criminalized her conduct in the absence of the treaty, the federal government cant criminalize her conduct under a statute implementing the treaty. She argue it is statute can be read not to cover her crime at all and if the Supreme Court read it that way it would have to reach the constitutional issue. The government counters her conduct falls under the scope of the statute. That the statute is constitutional because it is necessarily constitutional even if it covers some local subject matters that it wouldnt otherwise address because otherwise the government says the u. S. Would be hand strung in negotiating treaties and the confidence of other countries in the United States is a Global Partner would be undermined. A red line, if you will. No comment. The government also makes an argument now that it didnt make at the trial level, it did make in the court of appeals which said that it had been waived. The argument is this provision statute is valid under congresss Commerce Clause power, that is the power to enact law that is regulate the flow of goods among the states and chemicals are sold in interstate commerce like these which are not these arent illegal weapons so they are sold legally in states. On bomb side this argument wasnt addressed in its opening brief because i said the position is its been waived. So i gave a bear bone description of the facts but the government portrays the case differently. They claim the two chemicals used have rare ability to cause harm to individuals and that one half of a teaspoon of one of them could be lethal while a few ingested crystals could kill a child. They say she attempted to poison the friend 24 times over the course of several months, spread the substance on the mailbox and car and door of her home in sufficient quantities to be lethal. So do these Additional Details affect the answer to the constitutional question . They were a scene file. It is scheduled for november 5. Click in terms of the of treaties, a lot would have another power that would along congress to implement them. Could. Hority i will talk about a case involving the Clean Air Act. Itll keep us on time and it is impossibly complicated. There are two cases. They involve the trends for rule. It involves downstream air pollution. Particularly in the northern part of the country where there is heavy industrialization. There may be industrial plants. Canssion omissions travel within that state to other states as well. The Clean Air Act addresses many things including that. Trying to figure out how to regulate the emissions that go from one state to another. A state is unlikely to regulate itself to protect another state. They put a series of restrictions on these upwind states on the amount of pollution that could leave it into another state. S of challenges to those regulations issued by the epa. In general, it 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. You will have heard about whether we will appoint new judges and additional judges to the d. C. Circuit and the question of whether it needs new judges or not. There is also the notion that the d. C. 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. Very well, if you followed an earlier season of the Supreme Court, you know there was an exciting episode that took place in burlington county, new jersey. Tom here was involved arguing that case involving the strip search of a prisoner in burlington county. This is a different type of issue coming from the same location, the county seat of burlington county, called mount holly and it involves an urban 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 feel the area is blighted 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. How do you determine when the 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 we