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The Limited Nature Of The Senate's Advice And Consent Role, John C. Eastman
The Limited Nature Of The Senate's Advice And Consent Role, John C. Eastman
John C. Eastman
This article reprints both the oral and prepared testimony provided to the U.S. House of Representatives, Judiciary Committee, Subcommittee on the Constitution, on October 10, 2002, at a hearing entitled, A Judiciary Diminished is Justice Denied: The Constitution, the Senate, and the Vacancy Crisis in the Federal Judiciary. In it, I contend that the Senate's role in confirming the President's judicial nominees is much more limited than has been claimed in recent years; that the President has the sole power of nomination, and the primary power of appointment, subject to a check by the Senate so that the appointment power …
The Magic Of Vouchers Is No Sleight Of Hand: A Reply To Steven K. Green, John Eastman
The Magic Of Vouchers Is No Sleight Of Hand: A Reply To Steven K. Green, John Eastman
John C. Eastman
In a provacative 2002 article, The Illusory Aspect of 'Private Choice' for Constitutional Analysis,, Professor Steven Green challenged both the constitutionality and the policy benefits of school vouhcers. The Supreme Court put to rest the constitutional objection in Zelman v. Simmons-Harris shortly after the article was published, but I argue here that the issue should not even have been close. As originally understood, the Establishment Clause was a federalism provision, barring the national government from maked a national church, but also barring the national government from intervening with existing state support of religion. I then take issue with Steven Green's …
Resisting The Expansion Of Bankruptcy Court Power Under Section 105 Of The Bankruptcy Code: The All Writs Act And An Admonition From Chief Justice Marshall, Daniel Bogart
Daniel B. Bogart
This article is divided into three main parts. In the first part, the article criticizes the expansive use of section 105 of the Bankruptcy Code by bankruptcy courts, and argues that this is an inappropriate extension of bankruptcy court power. It begins with a history of section 105 and argues that the drafter intended section 105 to be of limited scope. The drafter assumed that bankruptcy courts would rely on the All Writs Act, upon which the language of section 105 is based. This part then examines a number of typical scenarios in which courts have over reached in application …
Altered States: Review Of John T. Noonan, Jr., 'Narrowing The Nation's Power: The Supreme Court Sides With The States', John Eastman
Altered States: Review Of John T. Noonan, Jr., 'Narrowing The Nation's Power: The Supreme Court Sides With The States', John Eastman
John C. Eastman
Conversative Ninth Circuit Judge John Noonan's book, 'Narrowing the Nation's Power: The Supreme Court Sides with the States', lambasts the Supreme Court's federalism decisions, a hallmark of the Rehnquist Court's revival of the limits on national power originally envisioned by those who drafted and ratified the Constitution. This review takes Judge Noonan to task for misconstruing the original meaning of the Constitution's Commerce Clause, for example, but agrees with his assessment that the Court's 11th Amendment jurisprudence is a doctrinal mess.
Re-Evaluating The Privileges Or Immunities Clause, John C. Eastman
Re-Evaluating The Privileges Or Immunities Clause, John C. Eastman
John C. Eastman
In its 1999 case, Saenz v. Roe, the Supreme Court re-invigorated a long-dead clause of the Constitution, the Privileges or Immunities Clause of the 14th Amendment. Oddly, though, the opinion was written by Justice Stevens, one of the staunchest devotees of a living Constitution rather than originalism. As odd: Justice Thomas, the most consistent originalist on the Court, was in dissent. In his view, any reinvigoration of the Privileges or Immunities Clause should displace, rather than augment, the untethered jurisprudence that expansively interpreted other clauses of the 14th Amendment to cover the neutered Privileges or Immunities Clause, and it should …