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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [May 21, 2015]
"Beginning in summer 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2015-05-21
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court [April 27, 2016]
"This report provides an overview of Judge Garland's jurisprudence and discusses what the impact on the Court might be if he, or a judge of a similar judicial approach, were to be confirmed to succeed Justice Scalia. In particular, the report focuses upon those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to certain issues, or served as a fifth and deciding vote on the Court, with a view toward how Judge Garland might approach those same issues if he were to be confirmed. The report begins with his views on two overarching issues-the role of the judiciary and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in alphabetical order from 'administrative law' to 'takings.'The report includes one table which notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Garland. Another table, in the appendix to the report, identifies Judge Garland's colleagues on the D.C. Circuit and lists notable cases involving Judge Garland and that colleague. A separate report is forthcoming that will list all opinions authored by Judge Garland during his tenure on the D.C. Circuit."
Library of Congress. Congressional Research Service
Nolan, Andrew; Manuel, Kate; Murrill, Brandon J.
2016-04-27
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Justice Antonin Scalia: His Jurisprudence and His Impact on the Court [March 18, 2016]
"On February 13, 2016, Justice Antonin Scalia passed away unexpectedly at the age of 79, vacating a seat on the Supreme Court which he had held for nearly 30 years. Justice Scalia's lengthy tenure on the Court, coupled with his strongly held views on how constitutional and statutory texts are to be interpreted, led him to have significant influence on the development of the jurisprudence of various areas of law. He was also an active speaker and author outside the Court, having, among other things, recently coauthored a book which sought to articulate interpretative canons that would, in its authors' view, 'curb--even reverse--the tendency of judges to imbue authoritative texts with their own policy preferences' and 'provide greater certainty in the law, and hence greater predictability and greater respect for the rule of law.' Like his approaches to many legal issues in his opinions on the Court, Justice Scalia's approach to statutory interpretation in this book has prompted debate both over its desirability, as a normative matter, and over the consistency with which Justice Scalia applied that approach. This report discusses Justice Scalia's jurisprudence on key areas of law, as well as how that jurisprudence could be seen to have influenced the Court's approach to these subject matters. It begins with his views on two cross-cutting issues--the role of the judiciary and statutory interpretation--which highlight his well-known views about originalism, textualism, the importance of bright-line rules for judges to apply, and the proper role of the courts within the system of government established by the U.S. Constitution."
Library of Congress. Congressional Research Service
Manuel, Kate; Murrill, Brandon J.; Nolan, Andrew
2016-03-18
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Death of Justice Scalia: Procedural Issues Arising on an Eight-Member Supreme Court [February 25, 2016]
"On February 13, 2016, Justice Antonin Scalia unexpectedly passed away at the age of 79, vacating a seat on the Supreme Court that he had held for nearly 30 years. Supreme Court vacancies that arise in presidential election years rarely occur, and have in the past led to a seat on the Court staying open for extended periods of time. With suggestions that Justice Scalia's successor may not be confirmed for several months, let alone before the fall election, a possibility exists that Justice Scalia's seat on the High Court may remain open for an extended period of time, including throughout the remainder of the 2015 Supreme Court term. While the Supreme Court consists of nine Justices, it does not need nine Justices to decide a case. Instead, Congress has established quorum requirements for the Court, providing that any six Justices 'shall constitute a quorum.' By tradition, the agreement of a majority of the quorum is necessary to act for the Court. As a consequence, with an eight-member Court, there is the possibility of split votes, where a majority cannot agree on the outcome in a given case. With several high-profile cases pending on the Court's docket, including cases on public employee unions, abortion, and immigration, it appears that the Court could become equally divided on a number of matters in the near future."
Library of Congress. Congressional Research Service
Nolan, Andrew
2016-02-25
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Cybersecurity: Selected Legal Issues [April 17, 2013]
"For many, the Internet has become inextricably intertwined with daily life. Many rely on it to perform their jobs, pay their bills, send messages to loved ones, track their medical care, and voice political opinions, among a host of other activities. Likewise, government and business use the Internet to maintain defense systems, protect power plants and water supplies, and keep other types of critical infrastructure running. Consequently, the federal government's role in protecting U.S. citizens and critical infrastructure from cyber attacks has been the subject of recent congressional interest. This report discusses selected legal issues that frequently arise in the context of legislation to address vulnerabilities of private critical infrastructure to cyber threats, efforts to protect government networks from cyber threats, and proposals to facilitate and encourage sharing of cyber threat information amongst private sector and government entities. This report also provides an overview of the ways in which federal laws of these types may preempt or affect the applicability of state law."
Library of Congress. Congressional Research Service
Liu, Edward C.; Stevens, Gina Marie; Ruane, Kathleen Ann . . .
2013-04-17
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Justice Kennedy Retires: Initial Considerations for Congress [June 28, 2018]
"On June 27, 2018, hours after the Supreme Court released its final opinions for the term, Justice Anthony M. Kennedy, announced that, effective July 31, 2018, he would retire from active service as an Associate Justice of the Supreme Court. Nominated to replace Justice Lewis Powell in 1987, Justice Kennedy has served on the Court for more than three decades. Like his predecessor, Justice Kennedy has often been referred to as the Court's 'swing' vote. Justice Kennedy has pushed back against such a moniker, declaring in a 2015 speech that '[t]he cases swing, I don't.' But his central role on the Court in recent decades, and in particular in the Roberts Court era, cannot be overstated. Since the Roberts Court began in 2005, Justice Kennedy has been the justice who cast his votes most often with the majority of the Court in all but three terms. (Chief Justice Roberts edged out Justice Kennedy in the most recent term and the October 2007 term, while Justice Breyer was the most frequent justice in the majority during the October 2014 term). This Sidebar highlights various areas of law in which Justice Kennedy--either by authoring or joining a Supreme Court opinion--proved consequential to the trajectory of Supreme Court jurisprudence. In so doing, this post provides a broad overview of key legal issues Congress (and, more specifically the Senate, through its advice and consent role) may wish to consider as it reflects on Justice Kennedy's jurisprudence and how his eventual successor might shape the future of the Court, Congress, and the nation as a whole."
Library of Congress. Congressional Research Service
Nolan, Andrew; Garcia, Michael John
2018-06-28
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Supreme Court Nomination: CRS Products [July 2, 2018]
"On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court."
Library of Congress. Congressional Research Service
Nolan, Andrew
2018-07-02
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Supreme Court Nomination: CRS Products [August 24, 2018]
"On June 27, 2018, Justice Anthony M. Kennedy announced his retirement from the Supreme Court, effective July 31, 2018, ending a thirty-year tenure on the Court. On July 9, 2017, President Trump nominated Judge Brett Kavanaugh of the federal Court of Appeals for the District of Columbia Circuit to fill the vacancy on the Supreme Court created by Justice Kennedy's retirement."
Library of Congress. Congressional Research Service
Nolan, Andrew
2018-08-24
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Supreme Court October Term 2017: A Review of Selected Major Rulings [September 19, 2018]
"On October 2, 2017, the Supreme Court began one of the most notable terms in recent memory. The latest term of the Court was the first full term for Justice Neil Gorsuch,who succeeded Justice Antonin Scalia following his death in February 2016. The October Term 2017 was also the last term for Justice Anthony Kennedy, who retired in July 2018. With nine Justices on the Court for the first time at the beginning of a term since October 2015, this past term witnessed the High Court issuing fewer unanimous opinions and more rulings that were closely divided relative to previous terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Cole, Jared P. . . .
2018-09-19
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Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme Court [August 21, 2018]
"On July 9, 2018, President Donald J. Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill retiring Justice Anthony M. Kennedy's seat on the Supreme Court of the United States. Nominated to the D.C. Circuit by President George W. Bush, Judge Kavanaugh has served on that court for more than twelve years. In his role as a Circuit Judge, the nominee has authored roughly three hundred opinions (including majority opinions, concurrences, and dissents) and adjudicated numerous high-profile cases concerning, among other things, the status of wartime detainees held by the United States at Guantanamo Bay, Cuba; the constitutionality of the current structure of the Consumer Financial Protection Bureau; the validity of rules issued by the Environmental Protection Agency under the Clean Air Act; and the legality of the Federal Communications Commission's net neutrality rule. Since joining the D.C. Circuit, Judge Kavanaugh has also taught courses on the separation of powers, national security law, and constitutional interpretation at Harvard Law School, Yale Law School, and the Georgetown University Law Center."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Caitlain Devereaux
2018-08-21
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National Popular Vote (NPV ) Initiative: Direct Election of the President by Interstate Compact [October 25, 2018]
"The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. It relies on the Constitution's grant of authority to the states in Article II, Section 1 to appoint presidential electors 'in such Manner as the Legislature thereof may direct....' Any state that joins the NPV compact pledges to award all its electoral votes to the presidential ticket that wins the most popular votes nationwide, regardless of who wins in that particular state. The number of electoral votes won by the national popular vote winners would depend on the number of electoral votes controlled by NPV member states. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. Recent action by the Connecticut legislature to join the compact has generated renewed interest in the NPV initiative. At the time of this writing, 11 states and the District of Columbia, which jointly control 172 electoral votes, have joined the compact."
Library of Congress. Congressional Research Service
Neale, Thomas H.; Nolan, Andrew
2018-10-25
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Federalism-Based Limitations on Congressional Power: An Overview [September 27, 2018]
"The U.S. Constitution establishes a system of dual sovereignty between the states and the federal government, with each state having its own government, endowed with all the functions essential to separate and independent existence. Although the Supremacy Clause of the Constitution designates 'the Laws of the United States' as 'the supreme Law of the Land,' other provisions of the Constitution--as well as legal principles undergirding those provisions--nonetheless prohibit the national government from enacting certain types of laws that impinge upon state sovereignty.The various principles that delineate the proper boundaries between the powers of the federal and state governments are collectively known as 'federalism.' Federalism-based restrictions that the Constitution imposes on the national government's ability to enact legislation may inform Congress's work in any number of areas of law in which the states and the federal government dually operate."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Sykes, Jay B. . . .
2018-09-27
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President Trump Nominates Judge Brett Kavanaugh: Initial Observations [July 10, 2018]
"On July 9, 2019, President Trump announced the nomination of Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the impending vacancy on the Supreme Court caused by Justice Kennedy's scheduled retirement on July 31, 2018. As noted in this earlier Sidebar, Justice Kennedy's retirement is likely to have significant implications for the Court, Congress, and the nation as a whole. Justice Kennedy, as the Roberts Court's median vote, was often at the epicenter of legal debates on the High Court, casting decisive votes on issues ranging from the powers of the federal government vis-à-vis the states, to separation-of-powers disputes, to key civil liberties issues. A critical question now before the Senate as it considers providing its advice and consent to the President's nomination to the High Court is how Judge Kavanaugh may view the many legal issues in which Justice Kennedy's vote was often determinative. This Sidebar provides some initial observations on Judge Kavanaugh's nomination to the Supreme Court, noting his background and some initial clues as to how the nominee may impact the future of the Court. CRS is preparing products that discuss Judge Kavanaugh's views on the law in greater detail. Existing CRS products discuss Justice Kennedy's jurisprudence and other aspects of the Court vacancy."
Library of Congress. Congressional Research Service
Nolan, Andrew
2018-07-10
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Justice Anthony Kennedy: His Jurisprudence and the Future of the Court [July 11, 2018]
"On June 27, 2018, Justice Anthony M. Kennedy announced that, effective July 31, 2018, he would retire from active service as an Associate Justice on the Supreme Court of the United States. His decisive role on the Court, particularly since the Roberts Court era began in 2005, cannot be overstated. The Roberts Court era has witnessed the Court issue a number of landmark rulings, many of which have involved matters where the sitting Justices were closely divided. Justice Kennedy typically voted with the majority of the Court in such cases. Since the October 2005 term that marked the beginning of the Roberts Court, Justice Kennedy voted for the winning side in a case more often than any of his colleagues in 9 out of 12 terms."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Kevin M.; Brannon, Valerie C.
2018-07-11
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Judge Neil M. Gorsuch: His Jurisprudence and Potential Impact on the Supreme Court [March 8, 2017]
"On January 31, 2017, President Donald J. Trump announced the nomination of Judge Neil M. Gorsuch of the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court of the United States created by the death of Justice Antonin Scalia in 2016. Judge Gorsuch was appointed to the Tenth Circuit by President George W. Bush in 2006. The Tenth Circuit's territorial jurisdiction covers Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming, and parts of Yellowstone National Park that extend into Idaho and Montana. […] This report provides an overview of Judge Gorsuch's jurisprudence and discusses how the Supreme Court might be affected if he were to succeed Justice Scalia. In particular, the report focuses on those areas of law where Justice Scalia can be seen to have influenced the High Court's approach to particular issues or provided a fifth and deciding vote on the Court, with a view toward how the nominee might approach those same issues. The report begins by discussing the nominee's views on two cross-cutting issues-the role of the judiciary and statutory interpretation. It then addresses fourteen separate areas of law, arranged in alphabetical order, from 'administrative law' to 'takings.' The report includes a table that notes the cases where the Supreme Court has reviewed majority opinions written or joined by Judge Gorsuch. Another set of tables in this report analyzes the nominee's concurrences and dissents and those of his colleagues on the Tenth Circuit."
Library of Congress. Congressional Research Service
Nolan, Andrew; Lewis, Caitlain Devereaux; Manuel, Kate . . .
2017-03-08
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Supreme Court October Term 2017: A Preview of Select Cases [September 19, 2017]
"On October 2, 2017, the Supreme Court is to begin its new term. While the Court issued a number of notable decisions during its last full term, Court watchers have largely agreed that, at least compared to recent terms, the Court's October 2016 term was diminished both with regard to volume and content. With the Court already accepting over 30 cases for its next term, many of which raise deep and difficult questions in various areas of law, the October 2017 Supreme Court term could be considerably different. The next Court term has the potential to be one of the most consequential in years."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brannon, Valerie C.; Garcia, Michael John . . .
2017-09-19
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Supreme Court October Term 2016: A Review of Select Major Rulings [September 15, 2017]
"The Supreme Court term that began on October 3, 2016, was notably different from recent terms at the High Court. It was the first term (1) in thirty years to begin without Justice Antonin Scalia on the Court; (2) since 1987 to commence with a Court made up of fewer than nine active Justices; and (3) since 2010 in which a new member (Justice Neil Gorsuch) joined the High Court. Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk of the last term likely had an impact on the Court's work both with regard to the volume of cases that the Court heard and the nature of those cases. The Court issued seventy written opinions during the October 2016 term and heard oral arguments in sixty-four cases, numbers that constitute the lightest docket for the Court since at least the Civil War era. Moreover, unlike in recent terms where the Court issued opinions on matters related to abortion and affirmative action, the Court's docket for the October 2016 term had comparatively very few high-profile issues."
Library of Congress. Congressional Research Service
Nolan, Andrew; Brown, Cynthia; Garcia, Michael John . . .
2017-09-15
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Constitutional Authority Statements and the Powers of Congress: An Overview [January 6, 2017]
"On January 5, 2011, the House of Representatives adopted an amendment to House Rule XII to require that Members of the House state the constitutional basis for Congress's power to enact the proposed legislation when introducing a bill or joint resolution. This Constitutional Authority Statement (CAS) rule, found at House Rule XII, clause 7(c), was subsequently adopted in the 113th, 114th, and 115th Congresses. [...] A CAS is fundamentally a congressional interpretation of the Constitution, in that House Rule XII requires each Member introducing a piece of legislation to attach a statement which cites the power(s) that allows Congress to enact the legislation. The submitted CAS appears in the Congressional Record and is published on Congress.gov. The House Rules Committee has indicated that Members have significant discretion in determining whether particular CASs comply with the rule [...]. The CAS rule has itself been subject to much debate, with proponents arguing that the rule promotes constitutional dialogue in the House, while critics contend that the rule provides minimal benefits and is administratively costly. This report provides an overview of Congress's powers under the Constitution and Congress's role in interpreting the nation's founding document. The report then examines House Rule XII, clause 7(c), discussing the results of a recent study conducted by CRS of CASs that were submitted during the last six months of the 114th Congress. The report concludes by discussing trends with regard to the House's recent CAS practices and by providing considerations for congressional personnel drafting CASs."
Library of Congress. Congressional Research Service
Nolan, Andrew
2017-01-06
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Neil Gorsuch's Nomination to the Supreme Court: Initial Observations [February 1, 2017]
"On January 31, 2017, President Trump nominated Judge Neil Gorsuch of the federal Court of Appeals for the Tenth Circuit (Tenth Circuit) to fill the vacancy on the Supreme Court created by the death of Justice Antonin Scalia in February 2016. As noted in an earlier Sidebar, this vacancy has significant implications for the Court, Congress, and the nation as a whole. Since Justice Scalia's death, an evenly divided Court had issued a number of summary affirmances, upholding, by a vote of four to four, lower court decisions on immigration law, federalism, freedom of speech, and other matters. (Summary affirmances are non-precedential and usually consist of a terse order that does not indicate the Court's voting alignment.) Moreover, even in cases where the Court did issue a ruling on the merits, its eight Members seemed closely divided on several issues where Justice Scalia had previously provided the decisive vote. Thus, Judge Gorsuch would likely have a significant influence on the development of American law if he were to be confirmed. This Sidebar provides some initial observations on Judge Gorsuch's nomination to the High Court. Future CRS products will discuss Judge Gorsuch's views on various areas of law in greater detail. Existing CRS products discuss Justice Scalia's jurisprudence and other aspects of the Court vacancy."
Library of Congress. Congressional Research Service
Nolan, Andrew
2017-02-01
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Foreign Surveillance and the Future of Standing to Sue Post-'Clapper' [July 10, 2013]
"Recent news accounts (and government responses to those news accounts) have indicated that the government is reportedly engaged in a surveillance program that gathers vast amounts of data, including records regarding the phone calls, emails, and Internet usage of millions of individuals. The disclosures to the media reportedly suggest that specific telecommunication companies have been required to disclose certain data to the government as part of the intelligence community's surveillance efforts. The recent controversy over the reports of government targeting efforts comes months after the Supreme Court ruled in a case called 'Clapper v. Amnesty International'. In 'Clapper', the Court dismissed a facial constitutional challenge to Section 702 of the Foreign Intelligence Surveillance Act on constitutional standing grounds. Specifically, the 'Clapper' court found that the litigants, a group of attorneys and human rights activists who argued that their communications with clients could be the target of foreign intelligence surveillance, could not demonstrate they would suffer a future injury that was 'certainly impending,' the requirement the majority of the Court found to be necessary to establish constitutional standing when asking a court to prevent a future injury."
Library of Congress. Congressional Research Service
Nolan, Andrew
2013-07-10
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Introducing a Public Advocate into the Foreign Intelligence Surveillance Act's Courts: Select Legal Issues [October 25, 2013]
"Recent revelations about the size and scope of government foreign surveillance efforts have prompted some to criticize the level of scrutiny that the courts - established under the Foreign Intelligence Surveillance Act of 1978 (FISA) - currently provide with respect to the government's applications to engage in such surveillance. In response to concerns that the 'ex parte' nature of legal positions, some have proposed establishing an office led by an attorney or 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. The concept of a public advocate is a novel one for the American legal system, and, consequently the proposal raises several difficult questions of constitutional law. […] Other constitutional questions are prompted by FISA public advocate proposals. For example, separation of powers concerns that no branch should aggrandize itself at the expense of a co-equal branch may also prevent a public advocate from being housed within the judicial branch. Likewise, Article III of the Constitution may present an obstacle to efforts that would make appeals of FISA court decisions more frequent. This report will explore all of these difficult constitutional issues prompted by the idea of including a new adversary in FISA court proceedings."
Library of Congress. Congressional Research Service
Chu, Vivian S.; Thompson, Richard M., II; Nolan, Andrew
2013-10-25
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Doctrine of Constitutional Avoidance: A Legal Overview [September 2, 2014]
"The power of judicial review is both a potent and controversial power, as American history has been replete with examples of outcry at when unelected federal judges invalidate the acts of a democratically elected branch of government. The potential for backlash to judicial review by the political branches has resulted in what late Professor Alexander Bickel termed a 'countermajoritarian difficulty,' as the judiciary is needed to protect the basic principles of the Constitution, but is also necessarily dependent on the political branches to enforce the judiciary's mandates. In other words, judicial review, while necessary to protect the mandates of the Constitution, is inherently antidemocratic, risking an erosion of the judiciary's role in the American constitutional form of government. [...] Professor Bickel's work has been built on by Professor Cass Sunstein, who has argued that when the Supreme Court does reach the merits of a constitutional question (as opposed to avoiding the question entirely), the Court should practice 'judicial minimalism,'--that is, in deciding cases, judges should say no more than necessary to justify an outcome and leave as much as possible undecided. Sunstein justified his theories on the grounds that minimalism reduces burdens on the Supreme Court and promotes democratic dialogue on difficult constitutional law questions. [...] After providing general background on the power of judicial review and the major theories on the constitutional avoidance doctrine, this report explores the various rules that allow a court to avoid a ruling that invalidates a democratically enacted law and the logic behind those rules. The report concludes with an exploration of how the doctrine of constitutional avoidance has influenced some of the recent jurisprudence of the Roberts Court, criticisms of the doctrine, and the implications for Congress."
Library of Congress. Congressional Research Service
Nolan, Andrew
2014-09-02
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Reform of the Foreign Intelligence Surveillance Courts: A Brief Overview [March 31, 2014]
"In the wake of recent disclosures concerning various National Security Agency (NSA) surveillance and data collection programs, several legislative changes to the government's intelligence operations authority have been suggested. Under the Foreign Intelligence Surveillance Act of 1978 (FISA), the Foreign Intelligence Surveillance Court (FISC) reviews government applications to conduct surveillance and engage in data collection for foreign intelligence purposes, and the FISA Court of Review reviews rulings of the FISC. Some have proposed altering the underlying legal authorities relied on by the government when applying to the FISC, while others have suggested changes to the practices and procedures of the FISA Courts. This report provides a brief overview of the legal implications of the latter group of proposals. Some have proposed establishing an office led by a 'public advocate' who would represent the civil liberties interests of the general public and oppose the government's applications for foreign surveillance. This proposal raises several constitutional issues. For example, assuming the advocate is an agent of the government, depending on the scope of the authority provided and the amount of supervision placed over the FISA advocate's office, the lawyer who leads such an office may be a principal or inferior officer of the United States whose appointment must abide by the Appointments Clause's restrictions. Moreover, an advocate might not satisfy Article III of the Constitution's requirements for parties seeking relief."
Library of Congress. Congressional Research Service
Cole, Jared P.; Nolan, Andrew
2014-03-31
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Overview of Constitutional Challenges to NSA Collection Activities and Recent Developments [April 1, 2014]
"Beginning in the summer of 2013, media reports of foreign intelligence activities conducted by the National Security Agency (NSA) have been widely published. The reports have focused on two main NSA collection activities approved by the Foreign Intelligence Surveillance Court (FISC) established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The first is the bulk collection of telephony metadata for domestic and international telephone calls. The second involves the interception of Internet-based communications and is targeted at foreigners who are not within the United States, but may also inadvertently acquire the communications of U.S. persons. As public awareness of these programs grew, questions about the constitutionality of these programs were increasingly raised by Members of Congress and others. This report provides a brief overview of these two programs and the various constitutional challenges that have arisen in judicial forums with respect to each. A handful of federal courts have addressed the Fourth Amendment issues raised by the NSA telephony metadata program. FISC opinions declassified in the wake of the public's awareness of the NSA telephony metadata program have found that the program does not violate the Fourth Amendment. Similarly, in 'ACLU v. Clapper', the federal District Court for the Southern District of New York held that a constitutional challenge to the telephony metadata program was not likely to be successful on the merits. However, in 'Klayman v. Obama', the federal District Court for the District of the District of Columbia disagreed and held that there is a significant likelihood that a challenge to the constitutionality of the NSA telephony metadata program would be successful."
Library of Congress. Congressional Research Service
Liu, Edward C.; Nolan, Andrew; Thompson, Richard M., II
2014-04-01
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Reform of the Foreign Intelligence Surveillance Courts: Introducing a Public Advocate [March 21, 2014]
"Recent controversies over the nature of the government's foreign surveillance activity have prompted some to argue that the judiciary's review of government surveillance requests under the Foreign Intelligence Surveillance Act of 1978 (FISA) should be far more exacting. Accordingly, some have proposed transforming proceedings before the Foreign Intelligence Surveillance Court (FISC) and the Foreign Intelligence Surveillance Court of Review, courts created pursuant to Article III of the Constitution, into a far more adversarial process where a designated attorney or 'public advocate' actively argues in opposition of some or all of the government's foreign surveillance requests. The concept of incorporating a public advocate into FISA proceedings is a novel one, as '[p]ublic [a]dvocates do not have any identical comparators in the American legal system.' The few analogues to the FISA public advocate proposals that do exist in American law appear in contexts far removed from the typical FISA proceedings, such as an administrative agency hearing or in a state court. While the novelty of such FISA reforms does not evidence that the law is constitutionally infirm, proposals recommending that a public advocate participate in the FISA court raise several difficult constitutional questions, the resolution of which will ultimately depend on the specific language of a particular law. This report will explore the novel legal concept that is the public advocate and discuss several major constitutional issues surrounding the FISA advocate idea, highlighting relevant issues to consider, including what is the legal role of a public advocate; how a FISA advocate can be constitutionally appointed; and whether employing a public advocate before a federal court adheres to the demands of the United States Constitution."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II; Chu, Vivian S.
2014-03-21
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes [January 16, 2014]
"Recent disclosures concerning the size and scope of the National Security Agency's (NSA's) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise. […] While Congress has significant constitutional power to govern the practice and procedure of the federal courts, including the two foreign intelligence courts, it is unclear whether setting these voting rules falls within that power or, conversely, whether it may intrude upon the core judicial function of these federal tribunals. Some could argue that creating a higher voting threshold could pose a risk of interfering with the independence of these courts. However, changing the voting rules could also be seen as not mandating that a court reach certain conclusions and could appear to leave the ultimate decision-making authority with the FISA judges."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II
2014-01-16
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Congressional Power to Create Federal Courts: A Legal Overview [October 1, 2014]
"The United States Constitution established only one federal court--the United States Supreme Court. Beyond this, Article III of the Constitution left it to the discretion of Congress to 'ordain and establish' lower federal courts to conduct the judicial business of the federal government. From the very first, Congress established a host of different federal tribunals to adjudicate a variety of legal disputes. The two central types of federal 'courts'--courts established under Article III and those tribunals that are not--differ in many respects, including with regard to their personnel, purposes, and powers. Courts established pursuant to Article III are mainly defined by the three central constitutional provisions to which they are subject: resolution of cases that only present live 'cases or controversies,' lifetime tenure, and salary protection. The primary purpose for these safeguards was to insulate the federal judiciary from potential pressures, from either the political branches or the public, which might improperly influence the judicial decision-making process. Notwithstanding Article III's seemingly literal command that the 'judicial power' shall extend to all cases 'arising under' the Constitution or federal law, Congress has assigned a host of cases arising under federal law to non-Article III bodies. Unlike Article III judges, these bodies, generally referred to as 'non-Article III courts,' 'legislative courts,' or 'Article I courts,' enjoy neither lifetime tenure nor salary protection."
Library of Congress. Congressional Research Service
Nolan, Andrew; Thompson, Richard M., II
2014-10-01
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Reform of the Foreign Intelligence Surveillance Courts: Procedural and Operational Changes [August 26, 2014]
"Recent disclosures concerning the size and scope of the National Security Agency's (NSA) surveillance activities both in the United States and abroad have prompted a flurry of congressional activity aimed at reforming the foreign intelligence gathering process. While some measures would overhaul the substantive legal rules of the USA PATRIOT Act or other provisions of the Foreign Intelligence Surveillance Act (FISA), there are a host of bills designed to make procedural and operational changes to the Foreign Intelligence Surveillance Court (FISC), a specialized Article III court that hears applications and grants orders approving of certain foreign intelligence gathering activities, and the Foreign Intelligence Surveillance Court of Review, a court that reviews rulings of the FISC. This report will explore a selection of these proposals and address potential legal questions such proposals may raise. […] This report begins with an overview of both the FISC and the FISA Court of Review, including the jurisdiction of these courts, how the judges are appointed, and the FISC's practices and procedures for reviewing and issuing surveillance orders. The report then discusses the scope and underlying legal principles behind congressional regulation of the procedures of the federal courts, and applies those principles with respect to the various proposals to reform the FISA judicial review process."
Library of Congress. Congressional Research Service
Thompson, Richard M., II; Nolan, Andrew
2014-08-26
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National Popular Vote (NPV) Initiative: Direct Election of the President by Interstate Compact [Updated October 28, 2019]
From the Summary: "The National Popular Vote (NPV) initiative proposes an agreement among the states, an interstate compact that would effectively achieve direct popular election of the President and Vice President without a constitutional amendment. It relies on the Constitution's grant of authority to the states in Article II, Section 1 to appoint presidential electors 'in such Manner as the Legislature thereof may direct.... ' Any state that joins the NPV compact pledges that if the compact comes into effect, its legislature will award all the state's electoral votes to the presidential ticket that wins the most popular votes nationwide, regardless of who wins in that particular state. The compact would, however, come into effect only if its success has been assured; that is, only if states controlling a majority of electoral votes (270 or more) join the compact. At present, 15 states and the District of Columbia, jointly accounting for 196 electoral votes, have joined the compact."
Library of Congress. Congressional Research Service
Nolan, Andrew; Neale, Thomas H.
2019-10-28
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Federal Authority to Regulate the Compounding of Human Drugs [April 12, 2013]
"In light of the 2012 fungal meningitis outbreak, believed to have been caused by a contaminated compounded steroid injection, the regulation of human drug compounding has received significant attention. Drug compounding in its traditional form is the process of combining, mixing, or altering ingredients in order to create a medication for a particular patient. However, as illustrated by the entity that created the steroid medication linked with the meningitis outbreak, concerns have been raised about compounding pharmacies producing drugs on a larger scale. While drug compounding has historically been the focus of state governments through their regulation of pharmacies, questions have arisen regarding the extent the federal government can regulate the practice of compounding through the Food, Drug, and Cosmetic Act (FDCA). […] This report will examine the FDA's regulation of drug compounding and will discuss relevant legal authorities. The report will conclude by discussing potential limits to the FDA's [Food and Drug Administration] authority to regulate human drug compounding."
Library of Congress. Congressional Research Service
Nolan, Andrew
2013-04-12
