Minimum Competence - Daily Legal News Podcast
Minimum Competence
Fri 9/29 - Suffolk Law is Awesome, IRS May Furlough Staff, NLRB Nationwide Ruling Against Starbucks, USPTO Stays Open if Gov Shuts Down and SCOTUS Case on 2A

Fri 9/29 - Suffolk Law is Awesome, IRS May Furlough Staff, NLRB Nationwide Ruling Against Starbucks, USPTO Stays Open if Gov Shuts Down and SCOTUS Case on 2A

MA law school has an outsize (positive) influence, IRS may furlough staff, NLRB slaps Starbucks on the wrist, USPTO can stay open for a bit if the government shuts down and a 2nd amendment case.

A Starbucks Cup crossing a picket line, pencil sketch

On this day in legal history, September 29, 1983, the War Powers Act was invoked for the first time – by President Ronald Reagan in order to keep a U.S. Marine presence in Lebanon.

On September 29, 1983, the U.S. House of Representatives voted 270 to 161 to invoke the War Powers Act concerning the deployment of American Marines in Lebanon for an additional 18 months. The resolution had bipartisan support, including from President Reagan. This marked the first time the House invoked the War Powers Act, a law designed to limit the President's war-making powers, which was enacted a decade earlier. The Senate would go on to approve the resolution.

President Reagan thanked the House for its bipartisan vote, emphasizing the importance of cooperation between the legislative and executive branches. However, the vote also revealed concerns among lawmakers about the U.S.'s role in the Middle East and the potential for the Marines to be drawn into a larger conflict. Some representatives warned that the resolution was tantamount to a declaration of war and could result in American casualties.

The debate in the House was marked by a sense of urgency but also caution. Lawmakers were torn between the risks of pulling out and staying in Lebanon, with some describing it as a "very unhappy choice." Despite reservations, the prevailing sentiment was that Congress had to back the resolution to support the President during a crisis.

The War Powers Act mandates that the President must notify Congress when American troops face combat and withdraw them within 60 to 90 days unless Congress authorizes their continued deployment. Interestingly, President Reagan had not made such a notification, but the compromise resolution asserted the Act's applicability, making Reagan the first President to acknowledge its validity. This failure to abide by the initial notification requirement, coupled with the later request for an extension, in full light of history, was a major step forward in placing the power to declare war in the office of the presidency.

At the time, the Senate was also debating an amendment requiring more detailed reporting from the President on the Marines' mission in Lebanon. The House had rejected a similar amendment, which would have postponed a decision on the Marines' future for 60 more days. The debate touched on the balance of power between Congress and the President, the definition of success in Lebanon, and the long-term implications of U.S. involvement in the Middle East. 

In the ensuing 40 years, every president has either explicitly or tacitly leaned on the War Powers Act to substantiate action abroad. By way of brief background, the War Powers Resolution mandates that the U.S. President can only deploy armed forces abroad through a formal declaration of war by Congress, "statutory authorization," or in the event of a national emergency caused by an attack on the U.S. or its armed forces. The President must notify Congress within 48 hours of committing troops to military action and cannot keep them deployed for more than 60 days without an additional 30-day withdrawal period, unless Congress authorizes the use of military force or declares war. The resolution was enacted by a two-thirds majority in both the House and Senate, overriding President Richard Nixon's veto. Despite its provisions, allegations have been made that the resolution has been violated in the past, such as George W. Bush's invasion of Iraq in 2003 and Bill Clinton's involvement in the NATO bombing of Yugoslavia in 1999. While Congress has disapproved of these incidents, no successful legal actions have been taken against any President for such alleged violations.

Suffolk University Law School in Boston has a significant impact on the Massachusetts legal landscape despite its lower ranking in national lists. As of 2021, the school is the leading source of judges in the state, contributing 118 out of 440 judges on the Massachusetts bench. Additionally, three of the seven justices on the state's highest court and Judge Gustavo Gelpí of the US Court of Appeals for the First Circuit are Suffolk alumni. High-profile roles in the state, such as the Secretary of State and Chief Public Defender, are also filled by Suffolk graduates.

However, Suffolk Law ranks fifth in the Boston area and falls in the bottom third nationwide, according to U.S. News & World Report. Despite this, the school has a high retention rate for local graduates, which is crucial for Boston's legal market that faces competition from larger cities like New York and Washington, D.C. In 2022, 73% of Suffolk Law graduates took their first-year job in Massachusetts, a higher percentage than graduates from Boston University, Northeastern, and Boston College law schools.

The school's strong presence in the state judiciary and public service sectors has created a cycle that attracts students interested in these fields. For example, state Sen. John Cronin chose Suffolk for its reputation in producing practice-oriented lawyers with distinguished careers in public service. The school's curriculum focuses on experiential programs, allowing students to gain real-world experience.

Suffolk Law School also addresses a growing need in Boston's legal market by training scientists to become lawyers for biotech clients. The school offers a nighttime program in intellectual property law, attracting individuals with doctorates in science. Firms like Foley Hoag LLP and Foley & Lardner LLP have hired these specialists and sponsored their education at Suffolk's evening program.

In summary, Suffolk University Law School plays a pivotal role in Massachusetts' legal ecosystem, particularly in the judiciary and public service sectors, despite its lower national ranking. Its strategic programs and high local graduate retention rate make it a cornerstone in the state's legal community. It stands as a clear example of the shortcomings and difficulties in trying to reduce a school’s educational worth to a hierarchical ranking scale. 

Underdog Boston School Churns Out Judges, Big Law Partners (1)

The IRS has released a plan outlining its operations in the event of a government shutdown, which appears increasingly likely if Congress fails to reach a funding agreement by October 1. The plan involves furloughing approximately 60,000 IRS employees, a change from last year's contingency plan. About one-third of the workforce will continue to work, funded by the Inflation Reduction Act, special compliance funding, and user fees. Essential functions like mail processing, criminal law enforcement, disaster relief transcript processing, and income verification for mortgage lenders will continue.

However, the IRS will halt all audit functions, return examinations, non-automated collections, and will not answer taxpayer phone calls. Doreen Greenwald, President of the National Treasury Employees Union, expressed concern over the stress and financial insecurity that furloughed IRS workers would face. She also warned that a shutdown could exacerbate the agency's existing backlog by preventing new hires.

Initial discussions had suggested that the IRS would remain fully operational by using funds from the Democrats' Inflation Reduction Act, which are not subject to annual appropriations and are available until September 2031. During the last government shutdown in 2018-2019, many IRS operations were halted, but tax refund checks would have been issued if the shutdown extended into tax-filing season. Eileen Sherr of the American Institute of CPAs advised taxpayers to use e-filing for error-free and direct-deposit refunds, as these will be the only ones processed during a shutdown.

IRS to Partially Close, Furlough Staff in Federal Shutdown (2)

A National Labor Relations Board (NLRB) judge has ruled that Starbucks violated federal labor law by increasing wages and benefits only for employees in non-unionized stores across the U.S. This marks the first nationwide ruling against Starbucks, which has been resisting a wave of unionization for the past two years. The judge, Mara-Louise Anzalone, stated that Starbucks engaged in a "corporate-wide effort to manipulate its employees' free choice" by tying their pay and benefits to their willingness to avoid organizing. The ruling orders Starbucks to compensate thousands of unionized workers who were unlawfully denied increased wages and benefits.

This decision is significant as it is the first to find Starbucks in violation of labor laws on a nationwide scale, as opposed to previous rulings that were limited to individual stores. The unionization campaign against Starbucks has led to nearly 350 organized cafes in 37 states, and the NLRB has filed almost 100 complaints against the company. Of these, at least 75 are still pending.

Starbucks has publicly denied any legal wrongdoing and argued that increasing pay for unionized workers would itself be illegal, as federal law prohibits unilateral changes to union workers' conditions. However, Judge Anzalone dismissed this argument, stating it wasn't made in good faith. She also ruled that Starbucks' actions illegally discouraged other workers from joining the union. While the judge did not order additional training for Starbucks managers on labor laws, she did mandate that the CEO read a notice of employee rights to U.S. workers and post it in every store.

Starbucks Illegally Kept Wages, Benefits From Union Workers (1)

The U.S. Patent and Trademark Office (PTO) has enough funds to continue operations for about three months in the event of a government shutdown. The agency plans to use its $1.04 billion operating reserves to cover patent and trademark expenses. The PTO is primarily self-funded through patent and trademark filing fees but still requires annual appropriations from Congress. In the past, the PTO has remained open during government shutdowns, including the 35-day shutdown from December 2018 to January 2019.

However, some patent attorneys have expressed concerns about the PTO's long-term ability to function if appropriations are not made. The agency's financial stability during short-term shutdowns is a change from the past when Congress would divert part of the PTO's revenue to fund other government activities. Although a provision to prevent such diversion was removed from the America Invents Act of 2011, Congress has since committed not to divert PTO fees.

Legal practitioners seem largely unconcerned about a potential shutdown affecting the PTO, as the agency has successfully weathered past shutdowns. The Patent Public Advisory Committee and PTO officials have planned for such contingencies by increasing the reserve fund. If a shutdown were to last beyond the reserve's capacity, most PTO employees would be furloughed, and the agency's regional offices would close.

A prolonged shutdown could also affect the rulemaking process, including proposed changes to the Patent Trial and Appeal Board and requests for comment on artificial intelligence issues. Other agencies involved in the rulemaking process, like the Office of Information and Regulatory Affairs, could be impacted by furloughs. Finally, while the PTO would continue to collect fees, it would not be able to use those funds without congressional authority.

Patent Office Has Funds to Stay Open Three Months Amid Shutdown

The U.S. Supreme Court is set to hear a case involving Zackey Rahimi, who argues that his Second Amendment rights were violated by a law preventing individuals under a domestic violence restraining order from owning firearms. This case could have broader implications for where guns can be carried, including in malls and parks. The court's decision will be its first opportunity to clarify its 2022 ruling in New York State Rifle & Pistol Ass'n v. Bruen, which has led to varying interpretations in lower courts.

In Bruen, the Supreme Court established that the government must prove a law restricting gun access aligns with the nation's historical tradition of firearm regulation. However, this has led to inconsistent rulings, as judges lack clear guidance on how closely a modern law must resemble historical laws to pass constitutional muster. The ambiguity has particularly affected laws prohibiting gun possession in "sensitive places" like parks and libraries.

Judges have been divided on what counts as a "sensitive place," leading to contrasting rulings. For example, a New Jersey judge ordered the state to stop enforcing provisions that prohibit gun possession in parks and libraries, while a similar challenge in New York received the opposite treatment. Legal experts anticipate that the Rahimi case could provide much-needed clarity on how to apply the Bruen test.

If the court sides with Rahimi, it could have far-reaching implications for existing gun legislation, including laws about carrying firearms in "sensitive places." The case also raises questions about linking modern rights to historical contexts that did not contemplate contemporary issues, such as domestic violence, which was not prosecuted as a crime until the late 20th century.

New Supreme Court Case a Test for Carrying Guns in Malls, Parks

Minimum Competence - Daily Legal News Podcast
Minimum Competence
The idea is that this podcast can accompany you on your commute home and will render you minimally competent on the major legal news stories of the day. The transcript is available in the form of a newsletter at