Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Miller v. United States

Docket: 19-15122

Opinion Date: March 26, 2021

Judge: Daniel P. Collins

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff appealed the district court's dismissal of his complaint, alleging various causes of action arising from his termination as a police officer with the Reno-Sparks Indian Colony, a federally recognized Indian Tribe. The Ninth Circuit agreed with the district court that, to the extent that plaintiff's claims alleged that the Tribe's decision to fire him was retaliatory, those claims are barred by the discretionary function exception of the Federal Tort Claims Act. The panel applied the two-part Gaubert-Berkovitz test and concluded that the discretionary function test bars plaintiff's two retaliation-based wrongful termination claims. In regard to plaintiff's third cause of action alleging that his termination was wrongful, the panel concluded that the first element of the Gaubert-Berkovitz test was not met and the discretionary function exception did not apply. Therefore, the district court erred in concluding that plaintiff's third cause of action was barred. Finally, the panel concluded that the district court erred in determining that the discretionary exception function barred the two additional claims plaintiff sought to raise in the Third Amended Complaint. Accordingly, the panel affirmed in part and reversed in part.