Monday round-up

MARISSA MILLER APR 29, 2013 8:08 AM

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As Lyle reported for this blog, on Saturday morning Justice Stephen Breyer broke his right shoulder after an accident on his bicycle.  The Justice was taken to Georgetown University Hospital, where he underwent a successful shoulder replacement surgery.  At Jost on Justice, Kenneth Jost discusses Justice Breyer’s 1993 bicycle accident and the prospect that it may have contributed to being passed over by President Clinton for the appointment that would eventually go to Justice Ruth Bader Ginsburg.

This weekend’s coverage also highlighted the government’s cert. petition in National Labor Relations Board v. Noel Canning, which asks the Court to determine whether the President’s recess-appointment power is limited to recesses that occur between enumerated sessions of the Senate, as well as whether that power may only be exercised to fill vacancies that first arose during that recess.  Jurist’s Jerry Votava provides an overview of the petition, while at the Volokh Conspiracy, John Elwood observes that the petition sets forth a detailed argument on the merits and “incorporates a fair amount of research into founding-era recess appointments that had not been undertaken” previously. Kent Scheidegger of Crime and Consequences notes that the petition “curiously omits any significant defense of the President’s remarkable assertion at the root of the case,” and opines that, even if all of the petition’s arguments are true, “the judgment below, even if not the opinion in its entirety, would still be obviously correct.”

Briefly:

• At the National Law Journal, Simon Lazarus argues that last month’s decision in Wos v. E.M.A., holding that the anti-lien provision of the federal Medicaid statute preempts a state law presuming that one-third of any tort recovery by a Medicaid beneficiary is attributable to medical expenses, was in fact a “game-changer,” because the Court indicated that the Supremacy Clause authorizes preemption by federal laws based on the Spending Clause, even when the laws themselves do not contain an express right of action.
• Jurist’s Julia Zebley reviews last week’s oral arguments in Metrish v. Lancaster, in which the Court considered when, if ever, an individual accused of committing a crime could make a claim that a “diminished capacity” mentally made him do it, as well as the arguments in University of Texas Southwestern Medical Center v. Nassar, which asks the Court to decide which of three standards of proof apply to retaliation claims under Title VII.
• At the Text & History blog of the Constitutional Accountability Center, Simon Lazarus and David Gans note that at the oral arguments in Nassar, “members of the conservative bloc seemed ready, for the first time in the Court’s history, to treat retaliation as categorically different from, ‘secondary’ to, and deserving of a lower measure of protection than, a substantive on-the-job discriminatory act.”

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