Wednesday round-up

By Amy Howe
on Feb 10, 2016 at 8:46 am

As Lyle Denniston reported for this blog, yesterday a divided Court “ordered the Obama administration not to take any steps to carry out its ‘Clean Power Plan,’ a move that may stall the plan until after the president leaves office next January.”  At The Volokh Conspiracy, Jonathan Adler weighs in on the order; he observes that the Court’s “decision comes as a surprise, as it is unusual for the high court to block federal regulations,” but concludes in the end that a “an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.”

Yesterday this blog continued its online symposium on United States v. Texas, the challenge to the Obama administration’s deferred-action policy.  Other commentary on the case comes from Michael Kagan, who at the Yale Journal on Regulation’s Notice and Comment blog explains that, although he had “long thought that President Obama’s deferred action programs are within the Executive’s statutory and constitutional authority,” he is “becoming persuaded that the states challenging DAPA may have a valid point about one aspect of the program.”  And in his column for The Atlantic, Garrett Epps looks at the history of the Take Care Clause and an 1890 case involving a Supreme Court Justice and observes that the case “does obliquely raise an important question: Given the many duties of the president, the unclear text of the clause, and the tenuous (at best) standing of Texas to sue at all, is this a question the Court should be deciding?”

Briefly:

• In The National Law Journal (subscription or registration required), Tony Mauro reports that on Monday the“American Bar Association, an early opponent of cameras in courtrooms, urged the U.S. Supreme Court on Monday to ‘record and make available’ video of its oral arguments.”
• At his Election Law Blog, Rick Hasen discusses North Carolina’s application for a stay in a congressional redistricting case and predicts that the Court “is very likely to grant the stay even if, as likely, it upholds the judgment in this case on the merits.”
• At the NFIB Blog, the NFIB Legal Center looks ahead to CRST Van Expedited v. EEOC, in which the Justices will consider “whether a defendant company is entitled to attorney’s fees if it has successfully dismissed a claim on account of EEOC’s failure to conciliate prior to suit”; the authors argue that “judges have wide discretion to award attorney’s fees when EEOC has taken unreasonable positions.”

If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.