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Wednesday round-up

Yesterday’s focus at this blog was National Labor Relations Board v. Noel Canning, in which the Court will consider a challenge to the constitutionality of the president’s recess appointments to the NLRB.   John Elwood explains why, in his view, yesterday’s deal in the U.S. Senate that avoided the “nuclear option” to fill vacancies on the NLRB will not moot the current case, while Gerard Magliocca calls on the Court to respect “the Senate’s interpretation of its rules and practices governing recesses,” rather than relying the definition of recess offered by the D.C. Circuit in its decision. Edward Hartnett examines the history of the recess appointment power going back to 1823; James Flug recalls the role of the late Senator Edward Kennedy in an earlier legal challenge to the recess appointment power and imagines what role he might play in the current challenge.


  • Adam Liptak of The New York Times revisits the arguments made by Solicitor General Donald Verrilli in last Term’s Clapper v. Amnesty International USA, in which the Court held that a group of lawyers, human rights organizations, and journalists lacked standing to challenge a provision of the Foreign Intelligence Surveillance Act that creates new procedures to authorize electronic surveillance aimed at foreigners overseas.  Liptak observes that, although Verrilli told the Court that if the government wanted to use information gathered under the law in criminal cases, it would have to disclose the source of that information, and the subjects of the surveillance would have standing to challenge the program, federal prosecutors have declined to make such disclosures in two pending criminal cases.
  • Chris Megerian of the Los Angeles Times reports that the four living former governors of California have filed an amicus brief in the Supreme Court in support of the current governor, Jerry Brown, who is seeking a stay of a lower court decision that would force him to reduce the state’s prison population by releasing prisoners. Further coverage comes from Don Thompson of the Associated Press (via Bakersfield Now) and Bob Egelko of the San Francisco Chronicle.

Recommended Citation: Dan Stein, Wednesday round-up, SCOTUSblog (Jul. 17, 2013, 10:10 AM),