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Friday round-up

Happy Halloween!  Next week the Court resumes oral arguments, starting with Zivotofsky v. Kerry, in which the Court will consider the constitutionality of a federal statute that directs the Secretary of State, upon request, to record the birthplace of a U.S. citizen born in Jerusalem as “Israel.”  The impending argument has drawn a flurry of commentary.  In a post at Lawfare, Jack Goldsmith argues that the Court should rule “that Congress lacked power to enact this bald foreign policy legislation under Article I” of the Constitution, thereby avoiding “the super-hard problem of defining the contours of exclusive presidential power based on the vague and uncertain textual materials in Article II.”  At The Volokh Conspiracy, Eugene Kontorovich responds to Goldsmith’s post, agreeing with his assessment that the Court should avoid the executive power question but contending instead that “the facts established in the case preclude the Art. I holding.”  At Just Security, Marty Lederman reacts to both posts, concluding that the federal government and Goldsmith “probably have the better of the argument here.”  Finally, in another post at Lawfare, Julian Davis Mortenson makes a different point:  “Regardless of how the Supreme Court decides Zivotofsky, it should not invoke the Vesting Clause” – which provides that “[t]he executive power shall be vested in a President of the United States of America” – “to support its decision.”

Bill Mears of CNN previews next week’s oral arguments in Department of Homeland Security v. MacLean, in which the Court will consider whether a federal employee who discloses Sensitive Security Information is entitled to protection from employer retaliation.  Jeremy P. Jacobs has his own preview at Greenwire, noting that the case “could have broad ramifications for federal employees.”


  • Also at CNN, Mears reports on the recent John Oliver video re-enacting a Supreme Court argument with dogs, observing that the “playfully mocking tone of the skit raises a more serious concern” – the issue of cameras in the courtroom.
  • At the blog of the National Conference of State Legislatures, Lisa Soronen previews Direct Marketing Association v. Brohl, in which the Court is scheduled to hear oral arguments next month. At issue in the case is whether “a federal court is barred from deciding a constitutional challenge to a Colorado law that requires remote sellers who don’t collect state sales tax to comply with notice and reporting requirements.”
  • Chantal Valery of Agence France-Press (via Z News) has an overview of last-minute death penalty procedures at the Court.

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Recommended Citation: Amy Howe, Friday round-up, SCOTUSblog (Oct. 31, 2014, 7:31 AM),