For Thursday

Monday audio (with transcript).

On Thursday, we will hit some final points on the removal power. Be ready to discuss Free Enterprise and Seila and the new analysis of the removal power. Despite prevailing on the constitutional claim, why did the law firm in Seila not get out from under the subpoenas? Finally, recall the reasons behind Senate involvement in some appointments and behind Congress wanting to limiting removal for certain officers--given both of these, what can Congress do to limit presidential (and political) influence on those officers and offices that Congress wants to be independent.

We then turn to State Power to Regulate and Panel # 8. Read the entire section. In addition, take a look at the 21st Amendment. Consider:

    • What is the "Dormant Commerce Clause," why does it exist, and what is the argument that there is no such thing?

    • Know the laws at issues in the various case, why those cases came out as they did, and what distinctions are at work?

    • What is the difference between discriminatory intent and discriminatory effect? Why is one subject to less exacting review than the other?

By the way, note the political conversation as of last night: Fifty Senators have announced intention to vote on any SCOTUS nominee, enough to confirm (the VP breaks any tie), which makes an expanded Court (if Biden wins and the Democrats have a majority in the Senate) more possible. But court-packing is not the only reform on the table. Here is a proposal for functional 18-year term limits with regular appointments. Here is a proposal (made in 2016) for a partisan-split eight-person Court. Here is a proposal for a "Supreme Court lottery," in which the Supreme Court consists of a rotating group of court of appeals judges. And here is a straight term-limits amendment.

All of this is for your information and beyond the scope of the course. We get into the structure of the judiciary in Federal Courts.