Pressure Grows for Natural Gas Exports

“U.S. companies hoping to export natural gas are frustrated by lengthy delays and rule changes as they await U.S. Department of Energy approval of their applications and may turn to the courts to speed up the process,” Reuters reports.

“Over a dozen projects are awaiting Energy Department permission to export gas to all countries. Four have been in limbo for between 18 and 25 months… One likely focus for legal challenges is the order in which the Energy Department rules on applications, a policy made in midstream that put some major players at a disadvantage.”

“Law experts say making a case for speeding up the DOE’s decision-making process will be difficult. But with multi-billion dollar projects on the line, some firms may try…. courts are typically reluctant to interfere in the regulatory process unless a statutory deadline has been missed.”

Corporate Personhood Isn’t Such a Bad Thing

Much of the discussion around corporate personhood has centered around campaign finance reform and the Supreme Court’s ruling in Citizens United v. FEC, but Wendy Kaminer broadens the lens and cautions against denying certain rights to corporations.

“If progressives had their way, the ACLU’s latest challenge to the NSA’s domestic surveillance would easily be dismissed… Of course, ACLU is not merely seeking to protect its interests in this lawsuit: It seeks to protect the interests of clients and prospective clients whose identities are revealed by the metadata… But, again, the ACLU is the plaintiff in this case, representing itself, defending its own corporate constitutional rights.”

“I’m not denying the corrosive, anti-democratic effects of big money. I’m asking progressives to stop denying the liberty interests served by corporate constitutional rights. If ACLU v Clapper doesn’t make those interests clear, then I suspect nothing will.”

Why Affirmative Action Is So Important

The highly anticipated Supreme Court ruling on affirmative action in admissions to public universities, Fisher v. University of Texas, will likely come out on a Monday or Thursday in June. John Cassidy explains why the US still needs affirmative action.

“Set aside, for a moment, the explosive issue of black or brown versus white, which underpins much of the discussion about affirmative action… Having lived in the United States for almost thirty years, I am always amazed that Americans persist in believing that this is a land of unparalleled opportunity and social mobility… for all too many working-class Americans—and a lot of them aren’t members of minority groups—U.S. society is less of a launchpad than a glue trap.”

“The motivating force wouldn’t be righting the wrongs of slavery… It would be a desire to make real the vision of a society in which rewards are based on effort and talent, rather than family connections. And that, surely, should be something that even some conservatives could sign onto.”

Arizona Voting Case Raises More Questions

The Supreme Court held in Arizona v. Inter Tribal Council of Arizona that an Arizona law requiring voters to provide proof of citizenship when registering to vote violated the National Voter Registration Act, but left the door open for states to raise such a requirement by other means. Lyle Denniston explains.

“For those who would look to Congress to keep open, and expand, the right to vote for the presidency and for members of Congress, Justice Antonin Scalia’s opinion for a majority (seven to two on several points, six to three on one other very key point) promised that Congress could pass its own laws on the voter registration process, and states would have to yield to those.”

“On the particular point at issue in this case…the Scalia opinion said that a state was free to ask the federal government for permission to add that requirement.   And, Scalia said, if that doesn’t work — either because the federal agency that would deal with such a request is either not functioning or says no — then a state would be free to go to court… The opinion seemed to leave little doubt that, if Arizona or another state went to court to try to establish such a constitutional power, it might well get a very sympathetic hearing.”

The Legal Limits of NSA Surveillance

Marc Ambinder sketches the legal contours of the National Security Agency’s surveillance powers.

“While it is true that an American communication can be accidentally intercepted after an analyst makes a decision to intercept a foreign communication, it would be just plain illegal for an analyst who believes that his or her target is an American to begin the interception process, the content interception process, without a FISA warrant.”

“The NSA has a bit of a safe harbor period — details classified — if certain conditions — details classified — are met, when it comes to an emergency interception of a domestic end of a telephone call or e-mail. Think: an actual ticking time bomb scenario. But…if the FISA court refuses to issue a warrant, the interception would stop… If there’s emergency situation involving an American, NSA sends a bulletin to the FBI through the National Counterterrorism Center in Virginia and lets them deal with it.”

“If you’re an agent of a foreign power, or there’s a reason to believe you’re associated with a group of bad guys and you’re not a U.S. person, the NSA can indeed begin to intercept your communications without a FISA order in certain, classified circumstances.”

Court Ruling Leaves Open Questions on Gene Patenting

In the wake of the Supreme Court’s ruling on patenting of genetic sequences, Francie Diep looks at what to expect in the world of genetic testing and patenting.

“Would-be competitors have some catching up to do… Myriad should have tons of data it’s collected from two decades of providing the testing almost exclusively… Opening up testing to more companies was one of the major reasons Myriad Genetics’ opponents had sued the company in the first place.”

“The human body doesn’t naturally make cDNA like the synthetic BRCA1 and BRCA2 that Myriad makes—but viruses are able to make cDNA. The Supreme Court ruling addressed this by saying that it’s a rare phenomenon. But how rare is rare enough? This issue may make its way to courts in the future… In addition, cDNA may not hold up to patent challenges in the future because the methods for making cDNA are well known and commonly used.”

Abstract of the Week

Government leaks and whistleblowers have driven a significant amount of policy and political news lately, with revelations about the National Security Agency’s spying programs, the scandal at the Internal Revenue Service, and the government’s efforts to crack down on reporters in contact with leakers. David Pozen has a new paper forthcoming in the Harvard Law Review digging into when and why the government approves or disapproves of leaks.

“The United States government leaks like a sieve. Presidents denounce the constant flow of classified information to the media from unauthorized, anonymous sources. National security professionals decry the consequences. And yet the laws against leaking are almost never enforced. Throughout U.S. history, fewer than a dozen criminal cases have been brought against suspected leakers. There is a dramatic disconnect between the way our laws and our leaders condemn leaking in the abstract and the way they condone it in practice.”

“This article challenges the standard account of this disconnect, which emphasizes the difficulties of apprehending and prosecuting offenders, and advances an alternative theory of leaking. The executive branch’s ‘leakiness’ is often taken to be a sign of institutional failure. The article argues it is better understood as an adaptive response to external liabilities (such as the mistrust generated by presidential secret-keeping and media manipulation) and internal pathologies (such as overclassification and bureaucratic fragmentation) of the modern administrative state.”

“The leak laws are so rarely enforced not only because it is hard to punish violators, but also because key institutional actors share overlapping interests in maintaining a permissive culture of classified information disclosures. Permissiveness does not entail anarchy, however, as a nuanced system of informal social controls has come to supplement, and all but supplant, the formal disciplinary scheme. In detailing these claims, the article maps the rich sociology of governmental leak regulation and explores a range of implications for executive power, national security, democracy, and the rule of law.”

Court Threads the Needle on Gene Patenting

The Supreme Court ruled unanimously in the case of Association for Molecular Pathology v. Myriad Genetics, Inc. that patents may not be issued for the isolation of naturally occurring genes, but left the door open to patenting synthetic or “complementary” DNA sequences. Lyle Denniston explains.

“The exclusion of natural substances from eligibility for patents was the theory on which the Court relied… The case involved a Utah company’s patent for having isolated, outside the human body, two basic genes that contain natural phenomena which suggest that a woman who has them is at significantly higher risk of developing either breast cancer or ovarian cancer.”

“The company had claimed that the act of locating these genes in blood, and then extracting them for study, was a true invention, something that did not exist before. The Court said the company actually did not create anything at all, but simply extracted the genetic material from its location in human blood, and setting it apart for study.”

Noah Feldman argues that the ruling “doesn’t reflect scientific logic.”

“To simplify a modestly complex scientific process…the complementary DNA (or cDNA for short) is created by taking a naturally occurring messenger RNA molecule and, using ordinary nucleotide binding, turning it into cDNA. The now patentable cDNA is different from the original DNA in that it omits those elements of the original sequence that do not code for protein formation… The sequence that codes the proteins is just as naturally occurring as the original DNA itself.”

Housing Giants’ Shareholders Sue Over Bailout

“Three shareholders of Fannie Mae and Freddie Mac sued the federal government…alleging that the U.S. had improperly taken over the mortgage-finance companies in 2008 and that the government’s latest revision of certain bailout terms constituted an illegal taking of the firms’ assets,” the Wall Street Journal reports.

Matt Levine: “if you were in Congress or Treasury and pondering whether or not to re-privatize Fannie and Freddie, wouldn’t this suit be a reminder of what a bad idea that would be? Fannie and Freddie were designed to carry out a public purpose while also making money for private shareholders. When those goals conflicted, the public purpose won and the private shareholders were thrown into the abyss.”

“If you’re the government: that’s perfect. Except now those shareholders are suing, as shareholders tend to do. If you’re the government: why would you set yourself up for more of that?”

Unpaid Internships Under Legal Fire

A federal district court found that “Fox Searchlight Pictures had violated federal and New York minimum wage laws by not paying production interns, a case that could upend the long-held practice of the film industry and other businesses that rely heavily on unpaid internships,” according to the New York Times.

“The judge noted that these internships did not foster an educational environment and that the studio received the benefits of the work… Employment experts estimate that undergraduates work in more than one million internships a year, an estimated half of which are unpaid.”

Duncan Black applauds the ruling, noting that “unpaid internships shut out people from less wealthy backgrounds from important, desirable, lucrative, and influential career paths.”

Matthew Yglesias worries that, with stricter standards on unpaid internships, “we’ll replace zero-salary work/training positions with what amount to negative-salary training in the form of graduate school.”

Obama Drops “Plan B” Court Fight

The Obama administration has dropped its appeal in the case that eliminated age restrictions for purchases of the “Plan B” emergency contraceptive, opening up sales of the morning after pill to women and girls of any age without a prescription, the Washington Post reports.

“President Obama has not changed his position and still opposes over-the-counter access to emergency contraceptives for young girls… But the Justice Department decided to drop the case after multiple setbacks in federal courts in recent months.”

Emily Bazelon: “Science for once wins over politics.”

What Remains to Be Decided at the Supreme Court

SCOTUSblog provides an easy guide to the 22 cases left for the Supreme Court to decide before the end of its current term, organized by the month in which they were argued. Decisions days are generally on Monday, though the Court may add additional dates towards the end of June. Decisions are released once the majority opinion, as well as any concurrences and dissents are completed.

Among the remaining cases, listed from oldest to newest: Fisher v. University of Texas at Austin (affirmative action), Shelby County v. Holder (Voting Rights Act, Section 5), Hollingsworth v. Perry (California’s Proposition 8), US v. Windsor (Defense of Marriage Act), Association for Molecular Pathology v. Myriad Genetics, Inc. (gene patenting).

NSA Can’t Unilaterally Access Tech Company Servers

A Washington Post report that the National Security Agency can tap directly into the servers of Microsoft, Google, Facebook, and other Internet and technology companies at will is erroneous, according to Declan McCullagh, who provides details of a congressionally-enacted process “akin to how law enforcement requests information in criminal investigations.”

“That Section 702 procedure works like this: The Justice Department must demonstrate that its surveillance will not intentionally target anyone present in the United States or any American who’s overseas. And the surveillance process must comply with the Fourth Amendment. Section 702 also requires that the government obtain the secret Foreign Intelligence Surveillance Court’s approval of ‘targeting’ and ‘minimization’ procedures.”

Marc Ambinder provides fascinating insights into the mechanics of the PRISM tool: “What makes PRISM interesting to us is that it seems to be the ONLY system that the NSA uses to collect/analyze non-telephonic non-analog data stored on American servers but updated and controlled and ‘owned’ by users overseas.”

“Everything the NSA analyst leaves an audit trail. And the NSA has a staff of auditors who do nothing but sample the target folders for over-collects.”

NSA Collecting More Than Phone Data En Masse

On the heels of reports that the National Security Agency is collecting all phone call data from Verizon, the Washington Post publishes top secret slides detailing another NSA program approved by the Foreign Intelligence Surveillance Court allowing intelligence officials to tap “directly into the central servers of nine leading U.S. Internet companies, extracting audio and video chats, photographs, e-mails, documents, and connection logs that enable analysts to track foreign targets.”

“The program, code-named PRISM, has not been made public until now. It may be the first of its kind… The technology companies, whose cooperation is essential to PRISM operations, include most of the dominant global players of Silicon Valley, according to the document. They are listed on a roster that bears their logos in order of entry into the program: ‘Microsoft, Yahoo, Google, Facebook, PalTalk, AOL, Skype, YouTube, Apple.’”

“From inside a company’s data stream the NSA is capable of pulling out anything it likes, but under current rules the agency does not try to collect it all… Even when the system works just as advertised, with no American singled out for targeting, the NSA routinely collects a great deal of American content. That is described as ‘incidental,’ and it is inherent in contact chaining, one of the basic tools of the trade.”

Do You Trust the NSA to Collect Phone Records?

Glenn Greenwald obtained a copy of a top secret order from the Foreign Intelligence Surveillance Court requiring telecommunications provider Verizon to provide the National Security Agency with information on ”all telephone calls in its systems, both within the US and between the US and other countries.”

“Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.”

“The unlimited nature of the records being handed over to the NSA is extremely unusual. Fisa court orders typically direct the production of records pertaining to a specific named target who is suspected of being an agent of a terrorist group or foreign state, or a finite set of individually named targets.”

Marc Ambinder explains what the NSA can do with this data.

“The telephone metadata is stored in a database called MARINA, which keeps these records for at least five years… the NSA can collect the data so long as there is a good chance that it might need it for some future investigation. They can’t use the data unless there is a specific reason, a specific tip, a tip that has been — in theory, according to the rules as I understand them — certified by the attorney general.”

“If they only compile these transactional records and don’t do anything with them, and they faithfully honor this distinction, then the scale of the actual surveillance is not necessarily harmful, although it feels heavy. That’s a big if. It depends on whether you believe the NSA follows the rules.”

Supreme Court Okays DNA Testing During Arrests

Lyle Denniston looks at the Supreme Court’s recent ruling in Maryland v. King, in which a 5-4 majority “upheld the power of government at all levels to take DNA samples from every person legally arrested for a ‘serious’ new crime.”

“Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling…involved little more than what happens when police take a suspect’s fingerprints or mug shot. But Justice Antonin Scalia, writing for the dissenters… argued that the Court was casting aside a long-standing rule that police may not take scientific samples involuntarily from an individual, if their only purpose is to solve a prior crime.”

“While the Kennedy opinion said this extension was being allowed only when the person had been arrested for a ‘serious’ new crime (it did not define that category), the Scalia opinion argued that the ruling would not be kept within that limit, and would allow DNA sampling for anyone arrested of even the most minor crime.”

Obama Goes After Patent Trolls

President Obama has followed up on recent congressional action to reform the US patent system with a spate of executive actions and recommendations to curb the practice of “patent trolling,” in which firms “amass portfolios of patents more to pursue licensing fees than to build new products,” reports the Wall Street Journal.

“To help deter questionable lawsuits, the Obama administration is, among other things, directing the Patent and Trademark Office to start a rule-making process aimed at requiring patent holders to disclose the owner of a patent… In addition, the president is asking Congress to pass legislation that would allow sanctions on litigants who file lawsuits deemed abusive by courts”

“Mr. Obama is directing the patent office to train examiners to scrutinize applications for overly broad patent claims. He also is looking to rein in the growing use of the International Trade Commission to settle patent disputes… The president is also ordering a review of existing procedures at the ITC.”

Tim Wu explains how the government could go further.

“There are good laws in place that could fight trolls, but they sit largely unused. First are the consumer-protection laws, which bar ‘unfair or deceptive acts and practices’… Second, there are plenty of remedies available under the unfair-competition laws… under Section 5 of the F.T.C. Act… Finally, it is possible that the criminal laws barring larceny and schemes to defraud may cover the conduct of some trolls.”

Obama Announces 3 Nominations for DC Circuit

President Obama has named three nominees to the DC Circuit Court of Appeals, widely considered the nation’s second most powerful court because of its jurisdiction over federal agencies, in an attempt “to restore what his allies consider to be ideological balance on a crucial court that has overturned some important parts of his first-term agenda,” the New York Times reports.

“The president named Cornelia T.L. Pillard, a law professor; Patricia Ann Millett, an appellate lawyer; and Robert L. Wilkins, a federal district judge, as his choices to fill the three open spots on the 11-member court.”

Linda Feldmann: “The D.C. Circuit has been working at less-than-full strength for years, and now…the court has four Democratic nominees and four Republican nominees, plus the three vacancies. But there are also six ‘senior’ (semiretired) judges who hear cases, five of whom are Republican picks, leading Democrats to say the court has a conservative cast.”

Federal Agencies Win the Power to Expand Reach

The Supreme Court’s recent decision in Arlington v. Federal Communications Commission, which empowers federal agencies to interpret ambiguities in the law even where it expands its own jurisdiction, “is an important win for all future presidents,” writes Cass Sunstein.

“For almost three decades, the court has ruled that when Congress gives a federal agency the power to issue regulations, that agency is usually authorized to interpret ambiguities in the original legislation… For more than a decade, judges and scholars have differed over what happens when an agency is deciding on its own ‘jurisdiction,’ that is, on the scope of its own authority.”

“Scalia’s opinion reflects his longstanding commitment to clarity in the law, a commitment that Thomas shares. It also reflects the majority’s belief, cutting across ideological divisions, that ambiguities in the law should be resolved by officials who are ultimately accountable to the people and likely to be experts on the issues at hand.

Efforts to Block Planned Parenthood Funding Fail in Court

“The Supreme Court refused…to allow Indiana to block Medicaid funding of Planned Parenthood clinics because they perform abortions,” according to the Los Angeles Times, as “the high court let stand decisions by a federal judge in Indiana and the U.S. 7th Circuit Court of Appeals in Chicago that prevented the measure from taking effect.”

“The 2011 law would have banned Medicaid funds from going to an organization such as Planned Parenthood whose work includes performing abortions… Medicaid does not pay for abortions because by law, Congress has forbid the spending of federal funds to pay for elective abortions. Indiana has a similar provision in state law.”

Obama Gets Serious About Judicial Nominations

“President Obama will soon accelerate his efforts to put a lasting imprint on the country’s judiciary by simultaneously nominating three judges to… the 11-member United States Court of Appeals for the District of Columbia Circuit… daring Republicans to find specific ground to filibuster all the nominees,” the New York Times reports.

Emily Bazelon explains why this is a big deal.

“The federal appeals court is second only to the Supreme Court in importance, because it referees fights about the power of federal agencies and the rulings they make (and also because it’s a traditional feeder to the high court).”

“It’s worthwhile for Obama to finally push back because of the courts’ power over his legacy. If Obama doesn’t get his judges through and the bench becomes increasingly dominated by conservative justices for years to come, his failure to fill these vacancies could be the poison pill of his presidency. Law isn’t simply made by the Supreme Court. It’s also hammered out in the lower courts.”

State Same-Sex Marriage Bans Could Stall Momentum

Chris Geidner looks at the difficult path ahead for same-sex marriage legalization if the Supreme Court doesn’t find that marriage is a constitutional right for same-sex couples in the Proposition 8 and Defense of Marriage Act cases.

“The roadblocks are the 30 state constitutional amendments like the one in Nevada banning gay couples from marrying — and keeping even more progressive states like California and Oregon from moving forward on the marriage front.”

“Reversing the bans already in place will require a statewide vote, followed by any necessary legislation, administrative action or court ruling — depending on the specifics in each state — to allow gay couples to wed.”

Obama Lays Out National Security Policies

President Obama gave a wide-ranging speech on national security and terrorism issues and released an accompanying fact sheet touching on everything from the use of unmanned aerial vehicles better known as drones to the Guantanamo Bay detention facility. John Bellinger breaks it down into the good, the bad, and the ugly.

“The most significant part of the speech was the President’s description of clearer standards for use of force against terrorists, including by drones… Together, the speech and fact sheet set forth more restrictive standards, including that the same targeting standard applies to Americans and non-Americans; that the targeted individual must pose a ‘continuing and imminent’ threat…that the threat must be to U.S. persons (not simply ‘U.S. interests’); and that there must be a ‘near certainty’ that non-combatants will not be injured or killed.”

“Other parts of the speech were less clear… the actions the President announced with respect to Guantanamo are simply to re-start actions that he had stopped, including appointing a special envoy at the State Department and Defense Department (two envoys?) to handle transfers; lifting the moratorium on transfers to Yemen; transferring detainees who have been cleared for release; and insisting on judicial review for every detainee.”

The Lawyers That Regulate Wall Street

The Financial Times takes a deep look at the US Attorney’s Office for the Southern District of New York, “the New York legal world’s equivalent of the playing fields of Eton, a proving ground for the attorneys who count on Wall Street.”

“Former assistant US attorneys – or A-USAs, as they are known – from the southern district include everyone from Mary Jo White, the new chairman of the Securities and Exchange Commission, and Rudolph Giuliani, the former mayor of New York City, to 21 of the 46 judges in the federal district court in Manhattan.”

“Southern district prosecutors are thorns in the side of Wall Street but that experience makes them attractive to banks and New York’s elite law firms once they have left government. It is typical for southern district prosecutors to ‘graduate’ to the private sector – and then sometimes return to public service at more senior levels. It is a legal circle that keeps turning.”

Another Court Blocks Another Abortion Law

The Hill reports that the Ninth Circuit Court of Appeals “struck down an Arizona law banning most abortions after the 20th week of pregnancy,” following less than a week after a different court temporarily blocked an even more restrictive Arkansas law.

“Arizona’s law banned abortion after 20 weeks except in the case of a ‘medical emergency.’ The government has no right to ban abortion before a fetus is viable, the 9th Circuit said, and 20 weeks falls before that point.”

With so many court battles over abortion restrictions, the only question appears to be which case will make it to the Supreme Court first.