I recently started a new job as Supreme Court correspondent for Reuters. As a result, I probably won’t be posting much here. If you’re interested, check out my Twitter feed for updates on action at the court.
The Newtown-Conn.-based National Shooting Sports Foundation is challenging the federal government’s authority to seek data on semi-automatic rifle sales.
The U.S. Court of Appeals for the District of Columbia Circuit is scheduled to hear oral arguments in the case January 9.
The Bureau of Alcohol, Tobacco, Firearms & Explosives — ATF — had asked dealers near the Mexican border to provide information on sales of “two or more semi-automatic rifles at one time or during five consecutive business days,” according to court documents. A district court judge upheld the agency’s decision to make the demand.
The foundation, the firearms industry’s trade association, appealed the ruling, as did some gun dealers. The group has generated considerable attention in recent days because it is based in the same town where the Sandy Hook Elementary School shooting took place.
Lawyers for the foundation say ATF exceeded its authority under the Gun Control Act in making the request of 8,707 gun dealers in Arizona, New Mexico, California and Texas.
“There is no rational law enforcement connection between the problem ATF sought to address – illegal firearms trafficking from the United States to Mexico – and merely conducting a lawful retail firearms business from premises located in one of the border states,” the foundation’s brief says.
The foundation’s lawyers also note that much-criticized ATF’s “Fast and Furious” program involved the agency allowing gun sales to suspected smugglers in an attempt to trace the purchased weapons back to Mexican drug cartels.
Government lawyers say the statute’s aim is to enable the “tracing of firearms recovered during a law enforcement investigation in order to identify potential violations of federal firearms laws.”
The letters were sent after the government determined “ATF’s efforts to investigate and combat arms trafficking across and along the southwest border were hindered by the lack of data on multiple sales of the semiautomatic rifles increasingly used by Mexican drug cartels,” the government maintains.
The case is National Shooting Sports Foundation v. Jones, 12-5009.
Chief Justice John G. Roberts Jr. put the spotlight on the federal government’s rulemaking process this week during the argument in a Clean Water Act case. It prompted a debate of epic proportions — if you work inside the Beltway. The focus was on the unexpected speed in which the Obama administration drafted and finalized an EPA rule that could have a major impact on how the case — about whether runoff from logging roads requires Clean Water Act permitting — comes out. Roberts, and presumably his colleagues, hadn’t anticipated that the rule would be finalized before the argument and he, in particular, was annoyed that the administration did not alert the court to that fact.
Here’s a summary of Roberts’ exchange with government lawyer Malcolm Stewart from a story Greenwire colleague John McArdle and I wrote:
Roberts said the government should have told the court that the final rule was “imminent,” a key piece of information he said was missing in the 875 pages of briefing in the case.
But most pertinently to those who track rulemaking procedures, Roberts seemed to have assumed the length of time it would take to finalize the rule would be much longer.
EPA submitted the rule to the White House’s Office of Information and Regulatory Affairs on Nov. 8. It was finalized 22 days later.
“Is it your experience that proposed EPA rules become final within a couple of months particularly?” Roberts asked Stewart yesterday.
The government lawyer conceded that the stormwater runoff rule “happened more quickly than it usually does” but insisted it was intended to make it easier for the court to decide the case.
“Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument,” Stewart said. “But it would have been even worse, I think, from the standpoint of the parties’ and the court’s decisionmaking processes if the rule had been issued a week or two after the court heard oral argument.”
Read the full story here.
The new Supreme Court terms kicks off next Monday, so here’s a little summary of the upcoming cases I have written about recently:
- A round-up of the environment-related cases that are scheduled for argument (Greenwire).
- A report from Arkansas on Arkansas Game & Fish Commission v. U.S., the takings/property rights case to be argued Oct. 3 (Greenwire).
- A preview of Kiobel v. Royal Dutch Petroleum, the human rights case that will be argued Monday (California Lawyer).
- Another preview of Kiobel, this time focusing on the link between international human rights law and environmental law (Greenwire).
Justice Antonin Scalia has had so much publicity for his new book (co-written with Bryan Garner) that I was curious how well it’s been selling. It turns out that Reading Law: The Interpretation of Legal Texts is somewhat less popular that Jeffrey Toobin’s Supreme Court potboiler The Oath, which purports to lift the lid on all that exciting behind the scenes action at One First Street (Disclosure: I have read neither at this point). According to Amazon, The Oath, which only came out this week, is ranked at number 38 in the hardcover bestseller list. Scalia’s tome — published in June, but still getting oodles of publicity — is languishing back in 1,890th place. At this point, he may well be regretting his decision to submit himself to an interview with Piers Morgan.
Last night, my wife and I watched a recent documentary, The Pruitt-Igoe Myth, about the notorious Pruitt-Igoe public housing complex in St. Louis. We had an interesting discussion afterward, prompted largely by our professional perspectives on the issue. She writes about architecture. I write about the law. I found the film to be fascinating, largely due to the precipitous decline and fall of the project, which was completed in 1956 and demolished as soon as the mid-1970s. But I also found it to be oddly lacking when it came to the major issue of race.
The aim of the filmmakers appeared to be to show that Pruitt-Igoe was not a failure due to design flaws or some kind of inherent problem with public housing in general, but rather that it was a victim of poor policy-making, the economic decline of the city, and — the elephant in the room — racial discrimination (a large number of tenants being African-Americans who were moved from slum areas that were redeveloped). Nothing much to complain about there, apart from the way the movie really did not tackle the race issue head-on. In particular, while focusing on the economic problems in St. Louis and the rise of the suburbs, it shied away from analyzing how much those changes were related to”white flight” and how court decisions played a major role in that phenomenon (in the aftermath of Brown v. Board of Education, the Supreme Court’s 1954 school desegregation ruling). For example, a court ordered desegregation of public housing in St. Louis in 1956, apparently, but no mention was made of that in the movie. There was also no reference to the fact that, originally, Pruitt-Igoe was intended for African-Americans and whites (albeit segregated, according to a Wikipedia entry that, I hasten to add, does have footnotes), while by the end it seemed to be almost exclusively African-American. Surely that is a relevant issue to examine when looking at why the project failed so spectacularly? The film did include some clips of white suburbanites exhibiting racial bias in explaining why they didn’t want African-Americans moving in, but that doesn’t directly touch upon the reasoning behind why African-Americans were concentrated (and, it would appear, neglected) at Pruitt-Igoe.
About a decade ago, I covered a lengthy trial in Baltimore about allegations of racial discrimination in the way housing projects were planned in the city. In that case, Thompson v. HUD, it seemed like everyone who had ever been in a position of authority with any influence over housing in Baltimore was on trial (by coincidence, the parties agreed to a settlement just last week). There was little doubt that the motivation behind building large-scale high-rise public housing developments in the early days was not to end segregation but to perpetuate it. That experience in a Baltimore courtroom obviously informed my response to The Pruitt-Igoe Myth. So, while I think it was a moving and worthy effort, I feel the filmmakers downplayed the race factor and really needed a civil rights lawyer or law professor on camera to explain the legal background. I find it odd that they didn’t, as it would not have conflicted at all with the story they were trying to tell.
In this month’s California Lawyer magazine, I have a story on President Obama’s judicial appointments in the state. In short, the administration has focused on diversity of race, gender and sexuality while largely avoiding potential confirmation clashes over ideology (with the obvious exception of UC Berkeley Law professor Goodwin Liu, who ended up withdrawing from the running for a seat on the 9th U.S. Circuit Court of Appeals). You can read the story here