Corralling National Federation of Independent Business v. Sebelius
In the U.S. Supreme Court’s Affordable Care Act case, National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2012) (“NFIB”), five justices of the Court expressed their concurrence in the view, stated most broadly, that the liberty of persons limits the scope of Congressional power under the Commerce Clause of the United States Constitution. Chief Justice Roberts articulated this view in a portion of his opinion for the Court, stating that, “Congress has never attempted to rely on that power to compel individuals not engaged in commerce to purchase an unwanted product,” id. at 2586, and that, “Allowing Congress to justify federal regulation by pointing to the effect of inaction on commerce would bring countless decisions an individual could potentially make within the scope of federal regulation and – under the Government’s theory – empower Congress to make those decisions for him,” id. at 2587. The justices dissenting from the opinion’s decision upholding a federal individual mandate for health insurance as a valid exercise of Congress’s power to tax, Justices Scalia, Kennedy, Thomas and Alito, expressed a broader view, stating that, “Whatever may be the conceptual limits upon the Commerce Clause and upon the power to tax and spend, they cannot be such as will enable the Federal Government to regulate all private conduct …,” id. at 2643 (emphasis added). According to the dissenting justices, “If Congress can reach out and command even those further removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, ‘the hideous monster whose devouring jaws … spare neither sex nor age, nor high nor low, nor sacred nor profane.’” Id. at 2646 (quoting The Federalist No. 33, p. 202 (C. Rossiter ed. 1961)).
Some Good News for the Blog
By Steve Klepper (Twitter: @MDAppeal)
Just a few weeks shy of the Maryland Appellate Blog’s first anniversary, we have two pieces of good news to share.
First, one of our sillier posts caught the attention of Marcia Coyle, who covers the Supreme Court for PBS NewsHour and the National Law Journal. Marcia interviewed me for a piece in today’s NLJ, which also features a new piece I wrote matching today’s justices with Marvel and DC superheroes.
Big thanks are due: to Marcia Coyle, who couldn’t have been nicer; to Mike Moline, who edited my piece for the better; to Texas Supreme Court Justice Don Willett, who encourages and retweets my malarkey; to my wife for putting up with me writing a post while on vacation; and, as always, to the whole Maryland Appellate Blog board for their contributions and support.
Second, we now have a blog manager, Chris Mincher. Like me, Chris graduated from the University of Virginia School of Law and worked on the Libel Show, Virginia Law Weekly, and the Journal of Law and Politics. Unlike me, Chris held leadership positions with those groups, was a law clerk (with Court of Appeals Judge Robert N. McDonald), and is a real journalist (with a résumé that includes The Washington Post and The Onion’s AV Club).
As blog manager, Chris will be responsible for keeping everyone on schedule and for continuing to work out the kinks in our editorial processes. You can look forward to fewer typos. He has already begun contributing to the blog. Chris will of course be keeping his day job as an associate at Silverman | Thompson | Slutkin | White LLC.
July 2014 Maryland Certiorari Grants
Ta-da! A new batch of cert grants to get you through the dog days of summer. Check out this sundry lineup of cases — including one on warrantless cell phone searches incident to arrest, a topic that’s all the rage these days in criminal procedure — after the jump.
Nominations Are Open for the ABA Journal’s Blawg 100
The ABA Journal is taking nominations for its annual Blawg 100 list of must-read legal blogs. Given that the Maryland Appellate Blog is less than a year old, it would certainly be a coup to make the list. If you think we deserve consideration, and if you’re not a contributor or a person affiliated with a contributor, please consider taking a few minutes to nominate us. The ABA Journal’s post, with a nomination form at the end, is here.
Maryland Court of Appeals Ends Unusual Certiorari Procedure
By Steve Klepper (Twitter: @MDAppeal)
With no fanfare, the Court of Appeals of Maryland has ended an internal practice that was unusual among state high courts. At the May meeting of the MSBA Litigation Section Council, Court of Appeals Judge (and Section Chair) Glenn Harrell informed the council that the Court of Appeals has, effective immediately, disbanded its Bypass Committee.
Judge Arthur Publishes His First Opinion
Court of Special Appeals Judge (and former Maryland Appellate Blog editor) Kevin Arthur has published his first opinion: White v. Register of Wills, — Md. App. — (May 1, 2014). It comes less than six weeks after he joined the Court. It’s as concise and well-written as we here at the Maryland Appellate Blog expected.
Welcoming new editor Karen Federman Henry
We were lucky enough to convince Karen Federman Henry, a Division Chief in the Office of the County Attorney for Montgomery County, to join the Maryland Appellate Blog’s editorial board.
If you want an idea of Karen’s impressive appellate credentials, we invite you to type her name into Google Scholar case search. Along with former blog editor Kevin Arthur and current editor Brad McCullough, Karen was among the 18 candidates whom the Judicial Nominating Commission forwarded for the three recently filled vacancies on the Court of Special Appeals. Kevin was one of those three appointees, and Karen fills the resulting vacancy on the blog’s editorial board.
Karen’s first post will appear on Monday morning. We’re thrilled to welcome her aboard!
Maryland Public Defender Decisions: New Developments
Yesterday the Court of Appeals posted an order granting certiorari in Clyburn v. Richmond, limited to the following three questions:
1. Did the circuit court err in entering an injunction directing officials of the District Court to conduct initial appearances in a manner inconsistent with the existing rules promulgated by this Court?
2. Did the circuit court err in granting an application for supplemental relief based on a prior declaratory judgment without first issuing a show cause order, as required by the statute governing such applications?
3. Did the circuit court err in ordering officials of the District Court to appoint counsel for all arrestees at initial appearances and prohibiting those court officials from conducting initial appearances for arrestees who were not provided with counsel?
Argument has been set for March 7, 2014. This blog has provided extensive analysis (see below) of the DeWolfe v. Richmond decisions regarding the right to counsel at bail hearings. We’ll be providing commentary on Clyburn v. Richmond — including the implications for DeWolfe v. Richmond — as details develop.
Related Posts
- Alan Sternstein, DeWolfe v. Richmond: State Law or Just Law?
- Kevin Arthur, Who Is on the Court Of Appeals: The Role of Retired Judges
- Kevin Arthur, The Public Defender Opinion: The Implications of Resting on State-Law Grounds
The 4th Circuit Bids Farewell to the Separate Statement of Facts
The Fourth Circuit recently gave notice of its amendment to Local Rule 28(f) in order to conform to amendments to Federal Rule of Appellate Procedure 28. The amendments to the federal rule eliminate the Statement of Facts as a separate section of a federal appellate brief. Of course, the Fourth Circuit isn’t doing away with a recitation of the facts, it is just following the new federal rule, under which the Statement of the Case and the Statement of Facts are now consolidated into one section of the brief that is to provide a “concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record.” Given these changes to Fed. R. App. P. 28, the Fourth Circuit is amending its Local Rule 28(f) to eliminate the reference to the Statement of Facts and to describe the factual statement to be included by counsel in the statement of the case. Specifically, the local rule now requires that the Statement of the Case “include a narrative statement of all of the facts necessary for the Court to reach the conclusion which the brief desires, with references to the specific pages in the appendix that support each of the facts stated.”
Comments Are Encouraged (and Easier to Make)
Now that we have a good-sized regular readership base, we’d like to encourage our readers to continue the conversation with the “Leave a Reply” feature at the bottom of each post. When we launched, the comment feature was at the default setting, which required a login through a Twitter or WordPress account. We’ve unlocked that feature, so that anyone can comment without a login. Comments will, however, remain subject to approval before they appear on the site. If your comment doesn’t appear reasonably soon, please shoot an email to the Editor-in-Chief, as your comment may have been accidentally picked up by a spam filter. (Tip: If your comment touts anatomical enhancements through non-FDA-approved supplements, it’ll likely get caught in the spam filter.) So let’s get the conversation going!
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