On October 7, 2008 Federal District Judge Ricardo M. Urbina, a Clinton appointee, ordered the transfer of 17 detainees held at the Guantanamo Bay detention center to the United States mainland for their immediate release. The decision marked the first time since 2001 that the judicial branch explicitly and aggressively challenged the President’s authority to detain individuals at Guantanamo bay by directly ordering the release of specific prisoners. The 17 men were Uighurs, a Chinese Muslim minority, captured in Afghanistan in 2001 following the US invasion. This assertion of judicial power was short lived however, as within 24 hours the D.C. Circuit Court instituted a temporary stay on Judge Urbina’s order. On October 20th the Circuit Court officially postponed the transfer of the detainees until at least November.
The U.S. government no longer classifies the 17 Uighurs as enemy combatants, nonetheless the DOJ still considers the detainees to be “dangerous” and argues the court lacks the authority to order the release of any detainees into the United States. This dispute gets to the heart of the next big issue the Supreme Court is going to have to face in the detention area. Up to this point, court precedent has focused solely on the federal court’s jurisdiction to hear habeas petitions brought by Guantanamo Bay detainees, and the protective procedures due to those detainees via the Combatant Status Review Tribunal and Military Commissions process. (See Rasul, Hamdi, Boumediene). The Uighurs case sets up a clash in which the court may have to weigh the President’s authority to hold terrorist suspects, including those not designated as enemy combatants, with the court’s authority to order an actual release.
Posted by Todd Garvey
Tuesday, October 28, 2008
Tuesday, September 30, 2008
Crash Course 3: 2nd and 4th Amendments
This post submitted by an IBRL:SD member.
Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.
We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)
Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.
Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.
The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.
Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.
Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.
Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).
(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.
Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.
Audio
Last Wednesday we heard from Josh Steward about the Supreme Court’s recent interpretation of the Second Amendment and where gun rights stand today. Josh first explained the text of the Second Amendment:
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
Then Josh explained that in Heller the majority essentially severed the prefatory phrase regarding the militia, leaving question about what it meant to keep arms, bear arms, and the degree of infringement. Instead of situating the limit on the kinds of weapons people may keep and bear (and presumably shoot) in the text, or in the history of the Amendment, the Court said that firearms in common lawful use were protected.
We then discussed the Fourth Amendment’s protection against unreasonable searches and seizures:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The result, if these rules are violated, is that the evidence obtained is not available in court. First, however, some definitions. A “search” is the invasion of a subjective expectation of privacy that society is willing to recognize as reasonable. For instance, you have a reasonable expectation of privacy in your house, but an unreasonable (if genuine) expectation of privacy in the smell of drugs emanating from the trunk of your car. A seizure, with regard to a person (which is usually the most important) is the creation of the reasonable belief in an average person that they are not free to leave. For example, tackling a suspect, and turning on the police siren-lights are both seizures of the suspect. Finally, an “unreasonable search[ or] seizure[]” is a search without a warrant. The case I meant to read from to support this proposition is Katz:
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," (Agnello v. United States) for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." (Wong Sun v. United States). "Over and again this Court has emphasized that HN9the mandate of the [Fourth] Amendment requires adherence to judicial processes," (United States v. Jeffers) and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well-delineated exceptions. - Katz v. United States, 389 U.S. 347, 357 (U.S. 1967)
Naturally, we next discussed the “specifically established and well-delineated exceptions” to the warrant requirement. Before talking about the seven exceptions under discussion we talked about how Terry v. Ohio permitted certain citizen-police interaction based on reasonable, objectively articulable, suspicion, and how that case demonstrated the Court’s real concern for limiting the absolute discretion of the police to pursue wild hunches or target people for investigation without justification. There is very little to say about the difference between unreasonable suspicion, reasonable suspicion, and probable cause, except that the facts of cases are frequently very similar to others so rules can be applied, but we talked about two examples very close to the line.
Neither mere flight from the police (without more) nor apparently lawful conduct in a high crime area, at night, justify a stop by the police. But all three combined, do. That is one example of the line between a mere hunch, and reasonable suspicion. As for probable cause, the question is always whether the information the officer has would arguably be enough to justify skipping straight to the part where the suspect is put in handcuffs. For example -- would a spark plug feel enough like a crack pipe through the cloth of a pocket to justify an arrest?
The seven exceptions to the warrant requirement that we talked about were:
Search Incident to Lawful Arrest: Police may arrest a suspect on probable cause, and before putting the suspect in the back of their cruiser, may search them both to disarm and to find evidence. The way I have always understood this is that once a person has been arrested, the government has put its cards on the table and there is no problem of intangible escalalation of the imposition on the liberty of the arrestee. If the arrest was unlawful, the search will be too, so let him challenge the arrest.
The Automobile Exception: Unlike your house, you drive your car through public places, and (most) don’t have blinds on the windows (incidentally, there are laws against that sort of thing). Also, the drivers side window is the place of the most frequent interaction with the police. For these reasons, under federal law, the police can search a car once there is probable cause. Notice – there is no such exception for the person.
Inventory Searches: When cars are impounded they may be searched without a warrant so long as there are guidelines limiting the discretion of the police, and the search is conducted in a manner that indicates it was part of normal procedure. Again, it’s a matter of limiting police discretion, and state law has a lot to say about this.
Plain View: Not really an exception, but so long as the police were lawfully allowed to be in the vantage point that they were, we can’t expect them to turn a blind eye to obvious evidence of wrongdoing. Maybe it’s a carry-over from the abandoned trespass concept of a search (Olmstead), but that’s where it stands, and the rule is not going anywhere.
Consent: If you consent to a search, you waive your rights. The only remarkable thing about this exception is the frequency with which _very_ guilty people consent. Crime School 101: If you have drugs, and you tell the officer he can search, he IS going to search AND he is going to find them (they kind of know what they are doing).
(K-12) School: We expect certain things from our teachers, and holding them to the same standards as the police would (a) make their jobs impossible, and (b) sorely mistake what their job is.
Exigent Circumstances: In the ticking time bomb scenario we allow the police to act like normal human beings, and worry about the justifications later. Police don’t have to abandon a hot pursuit when the suspect enters private property and go get a warrant. Recently, this has become a hot topic in investigation of methamphetamine labs, which police and many courts have deemed equally dangerous as the ticking time bomb – they do in fact explode without warning and with some frequency.
Audio
Feeding the Hungry
This post submitted by an IBRL member.
Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.
In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”
Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.
Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”
On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :
"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
***
Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
***
[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
***
This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."
When I read this speech, I still get chills.
For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)
Two weeks ago we talked about the doctrine of incorporation. One snippet of the complex history leading up to the Fourteenth Amendment, which includes one of my most favorite quotes, is tangentially relevant to current events.
In 1854 full scale political war broke out over the admission of Kansas and Nebraska to the Union pursuant to the Kansas-Nebraska Act, which admitted the two states “with or without slavery as their constitutions may provide.” Opponents of the Act formed the new Republican Party, which would later go on to control Congress during reconstruction and pass, among other things, the Fourteenth Amendemnt, on the platform and the slogan of “Free Kansas.” The new party’s platform declared it “both the right and the duty of Congress to prohibit in the Territories those twin relics of barbarism, polygamy and slavery.” In a demonstration of a natural rights concept of “privileges and immunities,” the Republican party further resolved “that Kansas should be immediately admitted as a State of the Union with her present free constitution, as at once the most effectual way of securing to her citizens the enjoyment of the right and privileges to which they are entitled.”
Outright violence commenced. Massive contingents of pro and anti slavery forces immigrated to Kansas in an attempt to overwhelm the other side in the vote on the state’s constitutional disposition toward slavery. When the pro-slavery forces won the election, dispelled anti-slavery forces, and entrenched their position in the laws of the new state, the anti-slavery faction set up an opposition government led by “Free-Soil” forces, another radical political party dedicated to the slavery issue. The shots fired in this exchange were the first of what we now call the Civil War.
Among others, the new Kansas legislature passed laws restricting the freedoms of speech and the press, and which were “identical to [those] passed by a number of [other] states,” and which made it a felony “to assert that persons have not the right to hold slaves in said Territories” or to “circulate any writing containing any sentiments calculated to induce slaves to escape from the service of their masters.”
On March 7th, 1856, John Bingham, widely considered the most important figure in the formation of the Fourteenth Amendment, attacked the constitutionality of these laws. His speech was extraordinarly compelling, and by no means uncharacteristic for its time. Remember, John Bingham gave this speech TEN YEARS BEFORE the Fourteenth Amendment was proposed :
"[I]t is as plain as any fact in nature that this legislation is void by whomsoever enacted. And why? Simply because it contravenes the Constitution of the United States, and by which Constitution, by the express terms of the organic act, restricts the legislative power of the Legislative Assembly of Kansas to such rightful subjects of legislation as are consistent with the Constitution.
***
Any territorial enactment which makes it a felony for a citizen of the United States within the territory of the United States “to know, to argue, and to utter freely according to conscience,” is absolutely void, because it is not consistent with that provision which declares that Congress of the United States shall not pass any law abridging the freedom of speech or of the press. It has conferred the power of legislation on that Territory; but at the same time of conferring that power, it said, in terms plain and clear to the comprehension of any man, that such legislation should only extend to such rightful subjects of legislation as were consistent with the Constitution. Congress has the power to restrain and prevent any such legislation. By permitting it to stand, Congress approves it, and, in fact, enacts it. What Congress does by another, it does itself, in effect
***
[According to these laws from Kansas, it would be] a felony to shelter the houseless, to cloth the naked, to feed the hungry, and help him that is ready to perish; a felony to give to the famishing a cup of water in the name of our Master. Oh, sir, before you hold this enactment binding upon an American Congress, tear down that banner of freedom which floats above us, for stirring reminiscences linger in its folds, and the stars upon its field of azure have gleamed above the fields of “poised battle,” where the earthquake and the fire led the charge, and where American virtue and American valor maintained the unequal conflict against the mighty power of British tyranny and oppression. Before you hold this enactment to be law, burn our immortal Declaration and our free written Constitution, fetter our free press, and finally penetrate the human soul and put out the light of that understanding which the breath of the Almighty hath kindled.
***
This pretended legislation of Kansas violates the Constitution in this – that it abridges the freedom of speech and of the press, and deprives persons of liberty without due process of law, or any process but that of brute force, while the Constitution provides that Congress shall make no law abridging the freedom of speech or of the press; and it expressly prescribes that “no person shall be deprived of life, liberty, or property without due process of law."
When I read this speech, I still get chills.
For more, I recommend Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham: Duke University Press, 1986) and Raoul Berger, The Fourteenth Amendment and the Bill of Rights (Norman: University of Oklahoma Press, 1989)
Friday, September 19, 2008
Crash Course 2 Summary: The First Amendment
The following summary was submitted by an IBRL:SD member.
Today we heard about the First Amendment’s protection for speech, press, association, and religion. Of course, a single hour can’t do justice to the complexities of First Amendment analysis but we covered a lot. I can’t write a treatise here, so I would simply encourage everyone to get the audio of our session which will be posted along with this description
First, the amendment protects not just speech, but expression. That’s simplistic, but when you think about where to draw the line it starts to make sense. Of course speech from your mouth is covered, and the written word, but as soon as you acknowledge that something like a poster or a painting is the equivalent there seems to be no principled place to stop. Here we talked about wearing armbands to represent opposition to the war.
We also talked about categories of speech that were not protected, such as thecategories of incitement, clear and present danger, and obscenity. Each of these represents a hard wrought classification of speech or conduct that would otherwise be protected but ultimately enjoys no protection based, largely, on historical practice.
The “forum analysis” concept and time place and manner restrictions were a big part of our discussion -- in what ways can the government limit the kinds of speech and under what circumstances, without selecting certain viewpoints for favoritism. Also, in some ways the obverse, what kind of speech is the government (particularly through public schools) entitled to engage in.
Then we discussed the religion clauses, and how they sometimes put the government in a dilemma where no matter what it does it runs the risk of violating the constitution. In one example, to provide equal funding to all college programs would require some funding for religious groups, while providing funding only for non-religious groups looks like discrimination on the basis of religion. The two major topics discussed here were the tension between the establishment and the free exercise clauses, and the past and future of the “Lemon“ test.
The first five minutes included a brief introduction to the concept of “incorporation,” whereby the Bill of Rights were transformed from a limit only on federal power to a limit on both federal and state power.
Out next session will be next Wednesday in which we will discuss the Second, Third and Fourth Amendments – guns, searches and seizures . . . and quartering soldiers in time of peace (why not).
Audio Link
Today we heard about the First Amendment’s protection for speech, press, association, and religion. Of course, a single hour can’t do justice to the complexities of First Amendment analysis but we covered a lot. I can’t write a treatise here, so I would simply encourage everyone to get the audio of our session which will be posted along with this description
First, the amendment protects not just speech, but expression. That’s simplistic, but when you think about where to draw the line it starts to make sense. Of course speech from your mouth is covered, and the written word, but as soon as you acknowledge that something like a poster or a painting is the equivalent there seems to be no principled place to stop. Here we talked about wearing armbands to represent opposition to the war.
We also talked about categories of speech that were not protected, such as thecategories of incitement, clear and present danger, and obscenity. Each of these represents a hard wrought classification of speech or conduct that would otherwise be protected but ultimately enjoys no protection based, largely, on historical practice.
The “forum analysis” concept and time place and manner restrictions were a big part of our discussion -- in what ways can the government limit the kinds of speech and under what circumstances, without selecting certain viewpoints for favoritism. Also, in some ways the obverse, what kind of speech is the government (particularly through public schools) entitled to engage in.
Then we discussed the religion clauses, and how they sometimes put the government in a dilemma where no matter what it does it runs the risk of violating the constitution. In one example, to provide equal funding to all college programs would require some funding for religious groups, while providing funding only for non-religious groups looks like discrimination on the basis of religion. The two major topics discussed here were the tension between the establishment and the free exercise clauses, and the past and future of the “Lemon“ test.
The first five minutes included a brief introduction to the concept of “incorporation,” whereby the Bill of Rights were transformed from a limit only on federal power to a limit on both federal and state power.
Out next session will be next Wednesday in which we will discuss the Second, Third and Fourth Amendments – guns, searches and seizures . . . and quartering soldiers in time of peace (why not).
Audio Link
Sunday, September 14, 2008
In re DBC: Federal Circuit hears Challenge to Appointment of Patent Judges
Earlier this month the U.S. Court of Appeals for the Federal Circuit heard a challenge to the appointment process for federal administrative patent judges. The appellants, interestingly enough a juice company who had been denied a patent for a new mangosteen fruit drink, claim the judge that rejected their patent application had been appointed in a manner that violated Article II’s appointment clause. Until President Bush singed a new bill into law this past August which vested the Secretary of Commerce with the power to appoint patent judges, the director of the Patent and Trade Office had been appointing administrative patent judges.
Under Article II of the Constitution the President has the authority to appoint principal officers with the advice and consent of the Senate. In the case of inferior officers however- a category in which administrative patent judges fall- Congress may vest the appointment power in the president, in the courts, or in the “heads of departments.” DBC, along with George Washington Law Professor John Duffy who first broke the patent judge appointment flaw in an online article, argue that the director of the PTO does not qualify as a “head of department” and, because two of the three judges who voted to reject their mangosteen juice drink patent were appointed in an unconstitutional manner, the panels decision should be thrown out.
The government does not concede that the director of PTO can not appoint administrative patent judges. But, if the process is indeed unconstitutional, the government is relying on the so called “de facto rule” which simply means a judges decision should still stand even if it is later discovered the judge was not properly in office or had been appointed in a flawed manner.
Were the court to rule that the appointment of patent judges prior to the new law violated the appointment clause of the Constitution- is the Federal Circuit really ready to throw out every single patent rejection or approval made by any judge appointed by the Director of the PTO rather than the Secretary of Commerce? Though the decision of the Federal Circuit is yet to come, this is one controversy that is likely to be solved by the U.S Supreme Court. SCOTUS is currently considering a petition of cert for a similar case.
The text of John Duffy’s initial article is available here.
Posted by Todd Garvey
Under Article II of the Constitution the President has the authority to appoint principal officers with the advice and consent of the Senate. In the case of inferior officers however- a category in which administrative patent judges fall- Congress may vest the appointment power in the president, in the courts, or in the “heads of departments.” DBC, along with George Washington Law Professor John Duffy who first broke the patent judge appointment flaw in an online article, argue that the director of the PTO does not qualify as a “head of department” and, because two of the three judges who voted to reject their mangosteen juice drink patent were appointed in an unconstitutional manner, the panels decision should be thrown out.
The government does not concede that the director of PTO can not appoint administrative patent judges. But, if the process is indeed unconstitutional, the government is relying on the so called “de facto rule” which simply means a judges decision should still stand even if it is later discovered the judge was not properly in office or had been appointed in a flawed manner.
Were the court to rule that the appointment of patent judges prior to the new law violated the appointment clause of the Constitution- is the Federal Circuit really ready to throw out every single patent rejection or approval made by any judge appointed by the Director of the PTO rather than the Secretary of Commerce? Though the decision of the Federal Circuit is yet to come, this is one controversy that is likely to be solved by the U.S Supreme Court. SCOTUS is currently considering a petition of cert for a similar case.
The text of John Duffy’s initial article is available here.
Posted by Todd Garvey
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