The long stand-off between Karl Rove and House Judiciary Committee Chair John Conyers Jr. (D-Mich.) may be coming to a close.

Attorneys for the Obama administration, including White House counsel Gregory Craig, played a key role in brokering a deal between Conyers (below) and former Bush aides Rove and Harriet Miers. “But in the end, it would appear, it was Bush’s lawyers, represented mainly by former associate White House counsel Emmett Flood and his former boss, Fred Fielding, who made the most concessions,” wrote Newsweek’s Michael Isikoff.

Under the agreement, lawyers for the House Judiciary Committee will receive immediate access to the bulk of those documents which they sought, and both Miers and Rove will be privately questioned by Committee attorneys as to their alleged roles in the firings of U.S. attorneys. Initially, that testimony will not be public or under oath, but the Committee may subsequently subpoena them for public, sworn testimony. House lawyers say that, whether under oath or not, the witnesses may still be criminally charged with making false statements to a congressional committee, should they lie.

Rove’s lawyer, Robert Luskin, called the agreement “good news,” saying that Rove had merely followed directives from President Bush on executive privilege.

“I have long said that I would see this matter through to the end and am encouraged that we have finally broken through the Bush administration’s claims of absolute immunity,” Conyers said. “This is a victory for the separation of powers and congressional oversight.”

by Frederick Clarkson, co-founder of Talk to Action, a group blog devoted to reporting on and providing analysis of the Religious Right. Clarkson is also author of numerous books and articles on the intersection of politics and religion and editor most recently of Dispatches from the Religious Left: The Future of Faith and Politics in America.

The Supreme Court recently unanimously denied that a religious group had a free speech right to place a monument to its “Seven Aphorisms” in a town public park near where a monument to the Ten Commandments has stood for decades. 

Justice Samuel Alito, writing for the Court in Pleasant Grove City v. Summum was at pains to say that the decision was limited to saying that Summum had no free speech right to place their presumptuous Seven Rock in the park near the dear old traditional Ten Rock. But Justice Antonin Scalia insisted, in a concurring opinion, that although Pleasant Grove City was “litigated in the shadow the First Amendment's Establishment Clause,” there were no establishment clause implications to worry about. He was joined in his concurrence by Justice Clarence Thomas. Me thinks they doth protest too much, so let’s stick a red flag on that point. We will return to it shortly.

While it makes sense, as the Court suggested, that public parks not be cluttered with monuments lest they start to look more like cemeteries than nice open spaces for baseball, frisbee, picnics, and public rallies, the justices sidestepped the obvious question of why should local governments be memorializing one religious doctrine over another in public places at all. (I know that they might take issue with that assertion, but that is how I see it.) From this distance, it seemed to take Alito a lot of fancy two-stepping to get to his claim that this is a case of “government speech” and that monuments of are a way that a community seeks to “identify itself.” It is the latter part of this formulation that is interesting and concerning.

While that in itself might not be anything to get excited about, what troubles me is not so much the decision but Alito’s main precedents, or at least his antecedents. Alito et al do not invoke the history of American religious freedom, the ongoing struggle for equality, why the establishment and free exercise clauses of the first amendment were necessary in the first place, or much about the role of the court as a guarantor of our rights under the Constitution. We hear nothing from Locke, Madison or Jefferson. And while such ancient philosophical statements may not be de rigueur in cases like this, they would be far more reassuring than the court’s invocation of the way that kings and emperors “used statues of themselves to remind their subjects of their authority and power.”

Developments continue rippling from the release of nine Bush-era Justice Department memos taking an expansive view of executive authority. In the memos, Bush administration lawyers advocated ignoring venerated cornerstone's of American civil liberties, including the Posse Comitatus Act forbidding domestic military operations, as well as the First and the Fourth Amendments to the U.S. Constitution.

Sources tell The Washington Post that, in the wake of yesterday's revelations, "Justice Department officials intend to release more secret legal memos that underpinned the Bush administration's approach to national security issues." So far, those memos have stemmed from the Justice Department's Office of Legal Counsel (OLC) -- an office which former ACS Board Member Dawn Johnsen has been nominated to head under President Obama.

Yesterday's declassification of OLC memos was due in part to a civil suit against John C. Yoo. Yoo wrote or co-wrote seven of those memos in addition to the so-called "torture memo." Yoo, who is also the subject of an ethics investigation for his OLC work, spoke to a reporter in Orange, California yesterday where he is currently a visiting professor at Chapman University.

"These memos I wrote were not for public consumption," Yoo told the Orange County Register. "They lack a certain polish. I think [it] would have been better to explain government policy rather than try to give unvarnished straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently."

Reverberations from the revealed OLC memos were also felt today on Capitol Hill. House Judiciary Committe Chair Rep. John Conyers Jr. (D-Mich.) said that the revelations, in addition to the 92 interrogation tapes discovered to have been destroyed by the CIA, make a compelling case for investigating the Bush administration's tactics in the so-called "War on Terror."

Courts are eroding students' right of free speech -- a potential harbinger of further infringements -- according to an Issue Brief just released by ACS in conjunction with the 40th anniversary of Tinker v. Des Moines.

"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," wrote the U.S. Supreme Court in Tinker. This long-standing principle is being tested in the digital age.

In Reaching Through the Schoolhouse Gate: Students' Eroding First Amendment Rights in a Cyber-Space World, author Frank LoMonte maintains, "Students do not enjoy -- anywhere, anytime -- the same right to comment on school events as ordinary citizens."

According to LoMonte, executive director of the Student Press Law Center, digital means are increasingly delivering extracurricular student speech onto campuses and inviting regulation by school authorities. LoMonte concludes that recent precedents upholding such regulations endanger broader applications of the First Amendment.

"Once First Amendment rights are lost, they seldom are recovered because people who cannot speak cannot arouse support," LoMonte writes. "The loss is incremental, with each descending stair step becoming 'the new normal,' and so this latest incursion on young people's rights must be viewed in the larger context of decades of dangerous retrenchment."

Oklahoma lawmakers are considering a ban on certain apparel in driver’s license photos that is stirring up First Amendment objections. The state’s House Judiciary Committee approved a bill earlier this week that would prohibit people from wearing anything on their heads in driver’s license photos. The bill contains no exception for items worn for religious reasons, such as a hijab, worn by Muslim women, a Sikh turban, or a nun’s habit.

In an editorial, “Forced habit,” the Tulsa World slammed the measure as constitutionally suspect, and one that if enacted could “get the state engaged in a long, embarrassing and costly legal battle.”

“How’s this for an unintended consequence: We’re sorry, Sister Mary, but if you want a driver’s license, you’ll have to take off your habit,” the editorial states. The newspaper notes that the bill was spurred after a lawmaker became incensed that a Muslim woman in Norman objected to state officials’ efforts to get her to remove her hijab for her license photo. State officials eventually accommodated the woman’s religious needs, allowing her to be photographed with the hijab.

The Sikh American Legal Defense and Education Fund (SALDEF) is also objecting to the measure. The group raised its concerns about religious expression in a letter to Okla. Rep. Rex Duncan, who is pushing the bill. “We also call upon all religious communities, civil rights organizations, and concerned citizens throughout the nation to demand that the government of Oklahoma clarifies its commitment to protecting civil rights in the 21st century,” the group’s legal director, Rajdeep Singh Jolly, said in a press release.

Duncan told the Tulsa World that his measure would ban eyeglasses and scarves or other headwear worn for religious purposes.

When District of Columbia police arrested Antoine Jones in 2005, they were following a pair of articles that Jones had been transporting. One was the 213 pound load of cocaine in his possession – the largest such seizure ever in the DC area. The other was the GPS tracking system that police attached to Jones’s car outside of the scope of an applicable warrant.

Now, Jones’s conviction and sentencing to life in prison are in limbo.

The D.C. Circuit Court of Appeals is considering arguments over whether the government must obtain a search warrant before tracking criminal suspects by GPS. In the case of Jones, the FBI obtained a warrant to attach such a device to his car, but only in D.C. Instead, police placed the device on his car in Maryland and did so after the warrant expired. They then recorded the device’s position every ten seconds for a month, producing 3,000 pages of records.

“It’s an important issue because this ever-improving technology, if not subject to careful court supervision, will allow the government to turn into Big Brother in [a] way that is not far removed from what George Orwell foresaw in 1984,” said Art Spitzer, ACLU National Capital Area legal director.

Prosecutors in Jones’s jury trial disagreed in their 2006 brief: “Because Jones lacked a reasonable expectation of privacy in the whereabouts of his vehicle, the placement of the GPS device was proper, even in the complete absence of a court order.”

According to Jonathan Turley, constitutional law professor at George Washington University, Supreme Court precedent on such an issue is muddled. “These cases are very interesting because they raise a classic tension between technology and privacy,” he said. “The Supreme Court has often had to alter its privacy doctrine to adjust for technological advances.”

The Supreme Court entertained oral argument yesterday in a high profile case regarding rules for recusals and contributions in judicial elections. In Caperton v. Massey, “several moderate justices implied that an appearance of unfairness resulted when West Virginia Supreme Court Justice Brent Benjamin helped void a $50 million verdict against Massey Energy after being elected with the help of $3 million from Massey CEO Don Blankenship,” according to The Charleston Gazette.

However, Justice Antonin Scalia sounded a different tone, challenging the notion that elected judges are susceptible to influence. When someone donates millions of dollars to a judicial campaign, they do so because “they want me to be a good judge … and I’m showing my gratitude by being a good judge,” said Scalia yesterday at the high court. ACS participant Dahlia Lithwick writes for Slate that, “Scalia says the recusal rules apply only to judges who have either a financial stake in the case or personal antipathy toward a party. That’s because there is no limiting principle to a rule that requires recusal for any appearance or likelihood of bias.”

“In search of a limiting principle,” SCOTUSBlog’s Lyle Denniston says, the court was “[t]ugged between a sense that a constitutional ruling on judge’s duty to take themselves out of cases if bias is suspected should provide very clear guidance, and a sense that it might be written only to apply in the most extreme factual scenarios.”

As with many cases after the retirement of Justice Sandra Day O’Connor, The Wall Street Journal reported that, “Justice Anthony Kennedy appeared to hold the casting vote in a likely 5-4 decision, and he showed some sympathy for the plaintiff’s argument that the judge should have been forced off the case.”

 “Our whole system is designed to ensure confidence in our judgments,” Kennedy noted during oral argument. “It seems to me that litigants have an entitlement to that under the Due Process Clause.”

Experts discussed the implications of Caperton at ACS national headquarters earlier this week. Interviews with moderator Charles Gardner Geyh, professor of law at Indiana University, and panelist Richard Neely, former West Virginia Supreme Court justice, are available here.

The Supreme Court today sustained a $6.7 million jury verdict award to a musician who lost her arm because of improper use of an anti-nausea medication. In a 6-3 ruling the high court turned away arguments from Wyeth Pharmaceuticals that it was shielded from personal injury claims because drug labeling for its medicine, Phenegran, had been approved by the Federal Drug Administration (FDA).

The high court in Wyeth v. Levine, noted that directly injecting the drug into a patient’s vein significantly increases the risk of “catastrophic consequences.” Diana Levine, a musician from Vermont, lost her arm after physicians directly injected the drug into her arm, and a Vermont jury awarded her $6.7 million in a personal injury lawsuit.

Levine argued that even though Phenegran’s labeling warned of the danger of gangrene and amputation following injection, it failed to instruct physicians to use an IV-drip method, and that the drug is not reasonably safe for intravenous administration because of the foreseeable risks of gangrene. In August 2004, a trial court found in favor of Levine, rejecting the drug company’s federal preemption argument.

Writing for the Wyeth majority, Justice John Paul Stevens noted that the trial court “determined that there was no direct conflict between FDA regulations and Levine’s state-law claims because those regulations permit strengthened warnings without FDA approval on an interim basis and the record contained evidence of the at least 20 reports of amputations similar to Levine’s since the 1960s.” The Vermont Supreme Court subsequently upheld the trial court’s finding. Stevens concluded that, “In short, Wyeth has not persuaded us that failure-to-warn claims like Levine’s obstruct the federal regulation of drug labeling. Congress has repeatedly declined to pre-empt state law, and the FDA’s recently adopted position that state tort suits interfere with its statutory mandate is entitled to no weight. Although we recognize that some state-law claims might well frustrate the achievement of congressional objectives, this is not such a case.”

SCOTUSblog’s Lyle Denniston noted that the majority opinion did not rule “on the preemptive effect on any official rule that FDA might impose that had the force of law.”

In a guest ACSblog post, Allison Zieve, staff attorney at Public Citizen and cert-stage co-counsel in Wyeth, examined the high court’s recent preemption cases. Her post is available here.

Wyeth was the only decision issued by the high court today.

On the campaign trail, then-Sen. Barack Obama said that states should be allowed to make their own rules on medical marijuana. Now, his Attorney General is having to answer questions about that promise.

During his historic campaign for the White House, Obama recalled his mother’s death by cancer and compared medicinal marijuana to doctor-prescribed morphine. He stated that it was “entirely appropriate” for states to legalize medical marijuana “with the same controls as other drugs prescribed by doctors.”

“What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing here in law enforcement,” Eric Holder recently told reporters. “What he said during the campaign is now American policy.”

The reassurances are being warmly welcomed by medical marijuana advocates. Under the Bush administration, the Drug Enforcement Agency carried out several raids against medical marijuana dispensaries in California, which legalized the drug for medicinal purposes in 1996.

However, California’s permissive approach to medicinal marijuana remains controversial in some localities. The San Diego Union-Tribune reports that the county of San Diego is challenging the state law in federal court.

The Justice Department has released nine memos written by officials in the Office of Legal Council (OLC) under President George W. Bush, which according to The Washington Post, contain a “number of major legal errors committed by Bush administration lawyers during the formulation of its early counterterrorism policies.”

A central figure in the newly released memos is John C. Yoo, a tenured professor at the University of California, Berkeley Law who served in the OLC as deputy assistant attorney general. Seven of the nine memos were written during Yoo’s tenure at the OLC from 2001 to 2003, and most of those bear his signature as an author. The remaining two memos were written during the final months of President Bush’s time in office and repudiate many, but not all, of the controversial positions taken in the previous memos.

One of the memos drafted by Yoo is an opinion authorizing domestic military operations beyond mere stationing of troops in streets and at airports. The Oct. 23, 2001 memo reasoned that the Posse Comitatus Act, forbidding the military from engaging in domestic law enforcement, was an obstacle overcome by the military’s national security function. 

The memo also discloses the administration’s position that Fourth Amendment protections against unreasonable searches and seizures did not apply to the search for terrorists on American soil. “The law has recognized that force (including deadly force) may be legitimately used in self-defense,” wrote Yoo and Special Counsel Robert J. Delahunty. That same memo also included the opinion that, “First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully.” In case these expansions of authority were deemed insufficient, the opinion adds that “the current campaign against terrorism may require even broader exercises of federal power domestically.”

In a speech coinciding with the release of these memos, former ACS Board Member and now Attorney General Eric Holder said that he understands the need to protect the United States from terrorism, “but we must do so in a manner that preserves, protects and defends the rights that are enshrined in our Constitution, and the rule of law itself.”

Among a package of policy proposals urged of the new administration by ACS contributors is one entitled “All the President’s Lawyers: How to Avoid Another ‘Torture Memo’ Debacle.” The author of that ACS Issue Brief is President Obama’s nominee to head the OLC, Dawn Johnsen.

A group of same-sex couples and surviving spouses of gay marriages has lodged a lawsuit against the federal government’s denial of marriage-related protections and benefits. The group, as The New York Times reported, successfully fought for same-sex marriage rights in Massachusetts. The Gay and Lesbian Advocates and Defenders (GLAD) argues in its lawsuit that the Defense of Marriage Act (DOMA) deprives legally wed couples in Massachusetts and Connecticut of the federal benefits that are available to married straight couples.

DOMA “deprives families of federally-created economic safety nets, to the detriment of those couples and their children,” the group states on its Web site. “It creates a system of first and second class marriages, where the former receive all federal legal protections, and the latter are denied them, even while taking on the responsibilities of legal marriage.” According to GLAD there are more than one thousand federal laws “in which marital status is a factor.” For example, the group says that DOMA prevents Social Security survivors’ payments to spouses in gay marriages. Mary L. Bonauto, GLAD’s project director, told The New York Times that the case us a “straight-forward equal-protection issue.”

The U.S. Supreme Court left open the possibility that an Eritrean prison guard who was forced to work for the military may still gain asylum in the United States. In an 8-1 ruling, the high court remanded the guard’s case to the appeals court to weigh whether the guard’s coercion to work for the Eritrean military prevents him from falling under a federal law that says that an “alien who fears persecution in his homeland and seeks refugee status in this country is barred from obtaining that relief if he has persecuted others.”

Daniel Girmai Negusie, a dual citizen of Eritrea and Ethiopia, was conscripted into the Eritrea military, but refused to fight against Ethiopia. He was subsequently imprisoned and beaten by Eritrean guards. Two years later, he was released, but forced to work as a prison guard. The prisoners he guarded, court documents show, were persecuted because of their “race, religion, nationality, membership in a particular group social group, or political opinion.” Neguise eventually escaped the prison and made his way to the United States, where he applied for asylum.

An immigration judge and the Board of Immigration Appeals (BIA) both denied Neguise’s request for asylum citing the “persecutor bar” of the Refugee Act of 1980. Neguise’s attorneys, however, argued before the appeals court and the Supreme Court that he was coerced into working for the Eritrean military and therefore should not be barred from asylum. Writing for the high court majority in Negusie v. Holder, Justice Anthony Kennedy concluded that the BIA must determine whether the intent of Neguise should be taken into account. “If the BIA decides to adopt a standard that considers voluntariness to some degree, it may be prudent and necessary for the Immigration Judge to conduct additional factfinding based on the new standard,” wrote Justice Kennedy. Justice Clarence Thomas in a dissent, wrote that immigration law “unambiguously precludes any inquiry into whether the persecutor acted voluntarily, i.e., free from coercion or duress, I would affirm the judgment of the Court of Appeals.”

In a 5-4 ruling, the high court found that environmental groups lack the ability to challenge in court federal regulations that shield the U.S. Forest Service from public comment. In 2002 a large part of the Sequoia National Forest was destroyed by fire. The Forest Service then approved a salvage sale of timber without notice or seeking public comment. Environmental groups, such as the Earth Island Institute, challenged the Forest Service’s action, arguing that they should have had the opportunity to comment on Forest Service actions. Writing for the majority in Summers v. Earth Island Institute, Justice Antonin Scalia concluded that the environmental groups “have suffered a procedural injury, namely that they have been denied the ability to file comments on some Forest Service actions and will continue to be so denied. But deprivation of a procedural right without some concrete interest that is affected by the deprivation” does not provide the groups the “standing” to challenge the Forest Service in court.

The justices yesterday declined to review a federal appeals court decision that barred a high school football coach from participating in prayer with his players. Without comment the Supreme Court declined review of the 3rd U.S. Circuit Court of Appeals ruling that supported a New Jersey public school district's ban on employees participating in religous activites with students. In 1962, the Supreme Cour ruled that volutary prayer in the public schools is permissible, but that prayer organized by public school officials violated the First Amendment principle of the separtion of church and state.

Government lawyers have disclosed that the CIA destroyed scores of videotapes depicting harsh interrogations and confinement of “high value” al Qaeda suspects. The tapes were ordered destroyed in November, 2005.

ACLU attorney Amrit Singh said, “The large number of videotapes destroyed confirms that the agency engaged in a systematic attempt to hide evidence of its illegal interrogations.”

Agency officials rejected these allegations. “If anyone thinks it’s agency policy to impede the enforcement of American law, they simply don’t know the facts, said agency spokesman George E. Little. Michael V. Hayden, CIA director at the time that the tapes were destroyed, argued that the tapes posed “a serious security risk,” as they could be used to identify CIA participants in the filmed interrogations.

A long-running federal investigation into destruction of the tapes is said to be unlikely to result in criminal charges against any CIA employees. Both the House and the Senate intelligence committees are also investigating the issue, according to CQ Politics.

The U.S. Supreme Court will hear argument today in Caperton v. A.T. Massey Coal Company, on whether an elected West Virginia Supreme Court justice, who did not disqualify himself from a case in which a campaign contributor was involved, violated the constitutional due process rights of the other litigants. The case was examined at a recent ACS event, which included Professor Charles Gardner Geyh of the Indiana University Maurer School of Law-Bloomington, and former West Virginia Supreme Court Justice Richard Neely. Video of that panel event is available here.

Following the event, Geyh and Neely talked with ACSBlog about the case. Geyh noted that since the 1990s there has been an escalation of of money being funneled into judicial campaigns (more than 30 states have judicial elections). Geyh's interview with ACSBlog is below:

Former West Virginia Supreme Court Justice Neely suggested that the large sums of money from the Massey coal company official that helped Brent Benjamin secure a seat on the West Virginia Supreme Court likely spurred the high court's interest in the case. Neely's interview with ACSBlog follows:

Also, a guest blog post from American University law professor Amanda Frost on the Caperton case is available here.

By Amanda Frost, associate professor of law, American University Washington College of Law. Frost recently participated in an ACS press briefing on Caperton v. A.T. Massey. Video of that event is available here.

On March 3, the Supreme Court will hear oral argument in Caperton v. A.T. Massey Coal Co. to determine whether the Due Process Clause demands that an elected state court judge recuse himself from hearing a case involving a significant contributor to his campaign. The case has cast a spotlight on judicial elections, which have recently been transformed from quiet, low key affairs into high profile, big money political events. Although judicial elections themselves are not under review, the Court should use Caperton as a vehicle to rein in out-of-control judicial campaigns and prevent litigants from literally buying themselves judges who will cast the winning votes in their favor.   

The case originated in the state courts in West Virginia. Petitioner Caperton won a $50 million verdict against Massey Coal Company in a West Virginia trial court. While the case was on appeal, the CEO of Massey Coal, Don Blankenship, spent $3 million in a successful effort to elect Brent Benjamin to the Supreme Court of Appeals of West Virginia.  (Blankenship boasted that he spent “one dollar for every West Virginian,” though in fact it’s closer to $1.66). Justice Benjamin refused to recuse himself from the case, and went on to cast the deciding vote in the 3-2 decision to overturn the verdict against Massey. The U.S. Supreme Court will now decide whether Justice Benjamin’s refusal to step aside violated due process.

Caperton argues that due process demands recusal not only where there is proof of actual bias, but also where “an objective inquiry establishes a probability of bias on a judge’s part.” The “probability of bias” standard is easily met in Justice Benjamin’s case, Caperton contends, because of a number of exceptional circumstances: The large amount of money Blankenship contributed, which constituted over 60% of the total spent on Benjamin’s campaign, coupled with the fact that the contributions were made while the case was on appeal, and followed by Justice Benjamin’s deciding vote in Massey’s favor.      

A $2 million renovation of facilities within a D.C. federal courthouse is complete, permitting a new tenant to move in soon.

The Foreign Intelligence Surveillance Court is moving from within the Justice Department into what may be the most the nation’s most secure court. Though the plans are not public, renovations just completed behind the recently added “Restricted Access” placards are known to include thick doors that seal into the walls and biometric hand scanners.

The Washington Post reports, “Created in 1978 to curtail abusive government spying, the court enjoyed a rather obscure existence until the terrorist attacks of Sept. 11, 2001, when authorities began to frantically intensify their spying efforts.” The court now handles warrant applications related to spying, which have doubled in the wake of 9/11.

Though critics accuse the court of being overly influenced by the government officials it is supposed to oversee, U.S. District Court Judge Royce Lamberth sees the court another way. Lamberth, who served as the secret court’s chief judge from 1995 to 2002, initiated the move from the Justice Department to a traditional courthouse in part to counter that perception.

“I have struggled with the perception for years that we did whatever the government wanted and were rubber stamps,” said Lamberth. “That was not and is not true, and this is a symbolic move that will help counter that.”

With the District of Columbia recovering from its worst winter storm in three years, congressional leaders hope not to see this week’s ambitious agenda impacted by delays on the Hill this morning.

The HOUSE of REPRESENTATIVES

In the House, the Committee on Natural Resources dominates Monday’s schedule, having placed five bills on the agenda. According to RealClearPolitics, those relatively minor bills include the Civil War Battlefield Preservation Act and the Shark Conservation Act.

For the remainder of the week, there are two bills before the House likely to garner attention. With the Senate having already passed the D.C. Voting Rights Act by a margin of 61-37, that bill only needs majority support from the House and the President’s signature to become law. While the Senate vote was widely believed to have been a key obstacle, hurdles remain to D.C. receiving a full-fledged, permanent Representative in the U.S. House. Chief among the remaining obstacles is the Constitution, opponents say.

Sen. John Ensign (R-Nev.) points to Article 1, Section 2 of the Constitution. “It says that the members of the House and Senate shall be from the several states. And it was very specific that the District of Columbia is not to be a state,” Ensign said. However, Jamie Raskin, a constitutional law professor at American University, sees the issue differently, asking, “If the district can be treated as a state for hundreds of statutory and programmatic purposes and many constitutional purposes, why not the most fundamental purpose of all: representation in voting?” If passed, Utah would also receive an additional seat in the House. However, the designation of Utah’s seat would be subject to the 2010 census and 2012 redrawing of congressional districts.

The other key bill before the full House this week is the Helping Families Save Their Homes Act, which would allow bankruptcy judges to order home loans to be restructured and monthly payments to be reduced for struggling families. This practice, known as “cramdowns,” has received the public support of President Obama as a way to stem the tide of foreclosures. Opponents, on the other hand, say that there could be unintended consequences of passing the bill, such as higher mortgage rates and increased bankruptcy filings.

The House Judiciary Committee has one hearing this week, scheduled for Wednesday morning. The Committee is considering the Performance Rights Act, which would require radio broadcasters to pay royalties to copyright owners.

The SENATE

Among the Supreme Court’s orders this morning is one the grant of certiorari in a copyright case bearing on the compensation that freelance writers are due for republication of their works. In Reed Elsevier v. Muchnick, the high court has whittled the question presented into whether federal law restricts “the subject matter jurisdiction of the federal courts over copyright infringement actions.”

The case was born out of an $18 million class action settlement between freelancers and publishers in 2005. The settlement, which took four years of litigation to reach, was intended to resolve the issue of whether contracts between the parties permitted republication of freelancers’ works online. The settlement was approved by a federal judge before being thrown out by the 2^nd U.S. Circuit Court of Appeals on the grounds that federal courts lack jurisdiction over claims of unregistered copyrights being infringed. The publishers are now asking the Supreme Court to recognized the district court’s jurisdiction and reinstate the settlement.

The court had “re-listed” the case seven times for discussion at private conferences, says one observer following the case. Oral argument will be heard this autumn.

The Obama administration is defending the constitutionality of a law that shields telecommunications companies from legal challenges over their support of the Bush administration’s domestic spying program. Legal Beat reports that the Justice Department’s position in a brief filed in a California federal court “underscores the surprising degree to which the Obama administration – at least in court – is determined to shield President Bush’s controversial counter-terrorism policies from legal challenge or even public scrutiny.” According to Legal Beat, the administration is urging U.S. District Judge Vaughn R. Walker to dismiss “a raft of consolidated lawsuits” from customers of telecommunications companies who argue their privacy rights were violated when the companies helped Bush administration eavesdrop on the calls and e-mail.

The Justice Department lawyers in their brief before Judge Walker argue that a law passed last year shielding the companies from liability is needed to protect national security. The San Francisco Chronicle reports that a “statement Wednesday by Justice Department spokesman Matthew Miller seemed to reflect Obama’s lack of enthusiasm for the law.” Miller said the “department is compelled to defend statutes as long as it can reasonably do so, in this case the department was asked by the court to make a defense of the statute passed Congress.”

An Electronic Frontier Foundation attorney, who is representing AT&T customers in a lawsuit challenging the telecoms immunity law, told the Chronicle that it was “unfortunate the Obama administration has taken the position that it’s OK for the president to decide whether millions of ordinary Americans get their day in court. That’s exactly the kind of presidential power that candidate Obama was critical of the Bush administration for.”

The indictment of a domestically held “enemy combatant” raises new questions regarding ongoing litigation before the Supreme Court.

A federal grand jury has handed up a criminal indictment in Peoria, Ill., against Ali Saleh Kahlah al-Marri, the only so-called “enemy combatant” being held on U.S. soil. Without having ever stood trial, Marri has been detained by the U.S. government for almost six years – five of which have been spent in a U.S. Naval brig in Charleston, S.C. Marri’s challenge to his indefinite detention is the focus of a Supreme Court case in which oral arguments are set for late April.

Whether the high court will proceed with the case is unclear. Marri’s attorneys with the ACLU argue that “it is vital that the Supreme Court go forward because it must be made clear once and for all that indefinite military detention of person arrested in the U.S. is illegal.”

However, observers note that the criminal indictment of Marri may render his case moot. The Washington Post reports that Justice Department officials are expected to make this argument, requesting that the Supreme Court dismiss the case. The case could be dismissed without oral argument with the votes of five justices.

“But the big question is whether that will happen before the Government is required to file its brief on the merits on March 23,” writes SCOTUSblog’s Kevin Russell. “There are only two conference days after [today] before the Government’s brief on the merits is due – March 6, and March 20.“

While the Justice Department presumably wants to avoid filing a brief on the merits, the possibility remains that the justices will not take up the issue in the remaining two conferences before the government’s brief is due.

If the Supreme Court does not take up the case as previously anticipated, the 4^th U.S. Court of Appeals ruling that the government may detain domestic “enemy combatants” indefinitely and without trial would stand.

The Obama administration is planning to rescind an executive order allowing health care providers to deny services that offend their religious beliefs. The Chicago Tribune reports that the Obama administration will make the announcement today. The so-called “conscience rule,” was ordered late in the Bush administration’s term, prodded by religious lobbying groups. That rule, according to the Bush administration Health and Human Services Secretary, is needed to protect scores of health care providers from dispensing services, such as counseling on abortion, which might offend their religious proclivities. The rule greatly expanded federal law that allows health-care workers to refuse, citing religious reasons, to provide abortions.

Earlier this year, seven states, including Connecticut, California and Illinois, sued the Bush administration arguing that the rule elevates religious beliefs of health care professionals over the health of patients. Connecticut Attorney General Richard Blumenthal said the Bush rule is “ideologically driven, contemptuous of women’s rights and the rights of all citizens and completely unconstitutional and unconscionable.” Lawmakers in Congress, such as Sen. Ron Wyden (D-Ore.) and medical association groups, such as the American Medical Association, the American Hospital Association and the American College of Obstetrics and Gynecology have also voiced opposition to the rule.

Reproductive rights groups hailed the administration’s reported move. Nancy Keenan, president of NARAL Pro-Choice America, said the president “has signaled his intent to honor the public’s call for a focus on commonsense, common-ground solutions that make a difference in the lives of women and their families.”

The Tribune says the Obama administration’s change will not take place immediately, allowing for a 30-day comment period.

by Jana Ramsey, an associate at Paul, Weiss, Wharton & Garrison LLP. Ramsey is also representing a Guantánamo Bay detainee.

In a ruling that raises serious questions about the authority of the courts to order relief in habeas cases brought by Guantánamo detainees, last week in Kiyemba v. Obama, the U.S. Court of Appeals for the D.C. Circuit overturned a district court order that had granted release into the United States for seventeen Uighur detainees who the government agreed were not enemy combatants.

The Uighurs are members of a Turkic Muslim minority group who fled their native China for Afghanistan. After coalition bombing forced them to leave Afghanistan, the Uighurs were captured in Pakistan and turned over to U.S. military forces for a bounty of $5,000 a head. By May 2008, all seventeen men were cleared for release or transfer. The government itself conceded in the fall of 2008 that it considered the Uighurs to be “no longer enemy combatants.” But months later, each of these men remain at Guantánamo in a diplomatic limbo, unable to return to China where they would likely face torture and not yet welcome to resettle in a third country despite U.S. diplomatic efforts to find them a new home. Thus, facing the real prospect of indefinite detention at Guantánamo, the Uighur petitioners sought permission to enter into the United States.

District Judge Ricardo M. Urbina granted petitioners’ request in October 2008 and ordered their immediate transfer to the United States. Judge Urbina acknowledged, as the government argued, that the authority to determine whether an alien may be admitted to the United States has historically been vested in the executive branch, but went on to hold that due deference to the executive branch’s authority over immigration matters simply did not permit “indefinite detention without just cause.”

The Court of Appeals immediately granted the government’s request for a stay of his order, and in its ruling of last week, unanimously reversed.

Sen. Patrick Leahy (D-Vt.) named three witnesses to testify at a March 4 hearing about the “truth commissions” that Congress may create to investigate alleged abuses of power by the Bush administration. Leahy, chair of the Senate Judiciary Committee, is moving forward with the idea despite the White House having yet to take sides on the issue.

According to The BLT, “The three witnesses will be:

• “John Farmer, former senior counsel to the 9/11 Commission and attorney general of New Jersey ...
• “Lee Gunn, retired vice admiral and former inspector general of the Navy …
•  “Thomas Pickering, former under secretary of state for political affairs and ambassador to the United Nations … .”

Republicans on the Judiciary Committee have not announced any witnesses of their own for Wednesday’s hearing.

Strange bedfellows Sen. John McCain (R-Ariz.) and Sen. Russ Feingold (D-Wis.) are in league again. This time, the agenda is to give President Obama additional authority over Congress.

You read that correctly. McCain is teaming up with Feingold to enhance the executive’s authority to delete earmarks from spending bills by way of a line-item veto. A line-item veto would give the president authority to strike lines from legislation passed by Congress, rather than having to veto the whole bill.

The line-item veto was last exercised by President Clinton under Congress’s Line Item Veto Act. That culminated in Clinton v. The City of New York, a 1998 Supreme Court decision written by Justice John Paul Stevens. Speaking for a six-justice majority, Justice Stevens wrote, “If there is to be a new procedure in which the president will play a different role in determining the text of what may become a law, such change must come not by legislation but through the amendment procedures.”

Feingold and McCain are working on legislation that they hope would avoid the constitutional pitfalls of Congress’s previous effort. While falling short of constituting an amendment, as urged by Justice Stevens in 1998, Feingold’s office said that the legislation would bear a sunset provision giving “Congress the ability to review this legislation and decide whether to renew it” in 2014.

When recently asked about the possibility of Obama exercising a line-item veto, White House Press Secretary Robert Gibbs answered, “Well, I can assure you he’d love to take that for a test drive.” Gibbs demurred when asked whether Obama might veto the entire pork-laden omnibus spending bill. However, McCain says that he will call for a veto if Congress passes the legislation in its current form.

Obama would be only the second president in U.S. history to exercise the line-item veto after Clinton. President Bush pushed for the authority in 2006, but was rebuffed.

During oral argument, the Supreme Court appeared sympathetic to an undocumented worker’s claim that he was using another person’s social security number “unknowingly.”

Ignacio Carlos Flores-Figueroa, an immigrant from Mexico working in an Illinois steel plant, used a false identification and social security number to obtain work there. He was arrested last year and pleaded guilty to using false documents and entering the country illegally. However, he disputed charges of aggravated identity theft, which requires “knowingly” using the identity of another person.

The Bush administration’s use of the law against undocumented immigrants came to light after an immigration raid at an Iowa meat-packing plant last year. There, of the 389 workers arrested, about two-thirds were charged under the 2004 law. The charge carries a mandatory two-year minimum sentence.

Questioning a government attorney yesterday, Chief Justice John Roberts asked whether someone should receive another two years in prison “if it just so happens that the [social security] number you picked out of the air belongs to someone else?”

Toby Heytens, an assistant to the solicitor general, responded that victims of the theft only care that another person is using their private information. “There are no victimless violations,” he said.

Transcripts from the argument are available here. A decision is expected from the high court by late June.