Friday, May 22, 2009
President Obama this week issued a memorandum for agency heads that restores the federalism and preemption principles in Executive Order 13132 (August 10, 1999, "Federalism," Sec. 4, "Special Requirements for Preemption") and directs agencies to include statements of preemption in regulations "only when such statements have a suffiicent legal basis" and to review existing regs to ensure they meet these standards.
The memorandum marks a significant shift from the Bush administration attempts to preempt through the back door--adding preemption provisions into regulatory preambles and attempting to preempt without clear congressional intent or direct conflicts with federal law. These attempts were most recently highlighted in Wyeth v. Levine, in which the Court ruled that FDA regulations did not preempt a state tort verdict. (Recall that the Bush administration slipped a preemption clause into the preamble of the FDA regs, but this clause ultimately did not play a role in the case at the Supreme Court. Instead, the Bush administration claimed that the state tort verdict conflicted with FDA regs and that FDA regulatory preemption reflected congressional intent.)
Preemption claims--but somewhat more modest claims--will be highlighted again, when the Court rules on Cuomo v. Clearing House Ass'n, the case argued on April 28, dealing with whether regulations of the Office of the Comptroller of the Currency, which interpret the National Bank Act to preempt state enforcement of state law against national banks, preempted New York's then AG Elliot Spitzer's investigation into lending practices of certain banks. (The National Bank Act provides that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law, vested in the courts of justice of such as shall be, or have been exercised or directed by Congress or by either House thereof." OCC regs interpreted this to preempt state enforcement of state laws regulating national banks.)
Taking on some of the Bush administration backdoor preemption practices and broad preemption claims (as in Wyeth v. Levine), the memo lists two restrictions and an instruction for agencies:
1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law through the regulation except where preemption provisions are also included in the codified regulation.
2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under legal principles governing preemption, including the principles outlined in Executive Order 13132.
3. Heads of departments and agencies should review regulations issued within the past 10 years that contain statements in regulatory preambles or codified provisions intended by the department or agency to preempt State law, in order to decide whether such statements or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision cannot be so justified, the head of that department or agency should initiate appropriate action, which may include amendment of the relevant regulation.
How has the Obama administration done on this?
The administration defended the pro-preemption position in Cuomo based upon Chevron deference to OCC's interpretation of the "text, structure, and purposes" of the National Bank Act. Its argument is much closer to the principles in EO 13132 than the Bush administration's practices and its arguments in Wyeth v. Levine. EO 13132 states, in relevant part (Sec. 4):
(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.
(b) Where a Federal statute does not preempt State law . . . agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law.
The dispute in Cuomo turns in part on what Congress meant by "visitorial powers"--whether this phrase and other sections show "clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law"--and not whether an agency can preempt by slipping a preemption clause into a regulatory preamble. Still, while the "clear evidence" standard in (b) is closer in Cuomo v. Clearing House Ass'n than in Wyeth v. Levine, the evidence of congressional intent in Cuomo certainly isn't clear to everyone.
President Obama in his national security speech yesterday identified five categories of detainees in the conflict against terrorists: those who can be tried in Article III courts for violations of U.S. law; those who can be tried in military commissions for violations of the law of war; those who have been ordered released by the courts; those who can be transferred to other countries; and those who pose a continuing threat to the United States, but cannot be tried in Article III courts or military tribunals (presumably because the government couldn't get a conviction).
According to President Obama, this fifth category--those "who pose a clear danger to the American people"--"is the toughest single issue that we will face."
The administration is clearly, er, struggling with this. On March 13, it filed in the habeas cases in the District Court for D.C. a proposed definition of detainable individuals at Guantanamo Bay--which presumably also reflects the administration's position for detention of these individuals outside Guantanamo Bay--that purported to respect the authority and bounds set by the AUMF, international law, and U.S. courts. Here's that proposed definition:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Three district court judges have now ruled on this definition. (Judge Royce Lamberth ruled just yesterday.) Two of them--Bates and Lamberth--ruled that the administration's proposal to detain those who "substantially supported" terrorist organizations and those who "directly supported hostilities" fell outside the bounds of the AUMF and the laws of war. The third, Walton, read the "substantial support" portion of the definition most narrowly to avoid this problem.
On the same day that Lamberth wrote--and just two days after Bates wrote--President Obama claimed in his national security speech, teeming with references to "the rule of law" and respect for the coordinate branches of government, that his administration could detain this fifth class of individuals, those who pose a threat to the United States, but can't be convicted in court. Here's what he said:
[T]here may be a number of people who cannot be prosecuted for past crimes, in some cases because evidence may be tainted, but who nonetheless pose a threat to the security of the United States. Examples of that threat include people who've received extensive explosives training at al Qaeda training camps, or commanded Taliban troops in battle, or expressed their allegiance to Osama bin Laden, or otherwise made it clear that they want to kill Americans.
This last example doesn't even fit within the administration's proposed definition to the D.C. District Court, much less within the judges' rulings on the proposed definition. And while expressing allegiance to Osama bin Laden may have fit within the adminsitration's proposed definition, it doesn't square with the rulings of at least two judges, both of whom ruled the same week as the speech.
The speech, to be sure, was just a speech; it wasn't a court filing or the final report from the administration's Special Task Force on Detention Policy. But it seems to reflect, once again, an administration claiming respect for the courts and the law, but acting as though it has much broader authority.
Thursday, May 21, 2009
I spoke this afternoon with Professor Rick Pildes (NYU) about Free Enterprise Fund v. Public Company Accounting Oversight Board, the D.C. Circuit case upholding the PCAOB against Appointment Clause and separation-of-powers challenges. The Supreme Court granted cert. on Monday. (I posted on the case, with links to the opinion and my edited version of the opinion, here.)
Pildes filed an amicus brief in the D.C. Circuit on behalf of seven former SEC chairmen, arguing in support of Congress's authority to create the PCAOB under the control of the SEC (itself an independent agency) and to vest appointment of its members--who, Pildes argued and the D.C. Circuit ruled, are "inferior officers"--in the SEC.
We discussed the role of the PCAOB in the Sarbanes-Oxley Act, the plaintiffs' arguments in Free Enterprise, and implications of the case beyond the PCAOB. The entire interview is here (about 15 minutes, MP3 format). Here are some highlights:
On Presidential Control Over Executive Agencies and the Unitary Executive Theory:
[The plaintiffs are] certainly opening up much larger questions about how much control the President has to have under Article II of the Constitution over the regulatory state, over all the administrative structures of government. And as you know, this has been an on-going battle certainly since the New Deal, at the very least, but a battle that really revived during the 1980s, when arguments in favor of what’s called the Unitary Executive Branch vision of Article II became much more pronounced. And proponents of the Unitary Executive Branch view of Article II argue that the independent agencies are in fact unconstitutional, that the President has to have everybody who is implementing or executing federal law under his direct control, which means that he has to have the ability to fire them at will as a way of influencing the performance of their duties. Now as you say, the plaintiffs in the case don’t purport to be challenging the 70-year old principle . . . that independent agencies are constitutional, but at the bottom of their case I think you’re right to recognize that there are very fundamental questions about how exactly the Court understands the President’s Article II powers and how the Court understands how much control the President must have over agencies, or contrarily how much independence Congress can give administrative agencies. . . . There’s some concern about independent agencies that drives all of this at some deep level of this case.
On the Larger Implications of the Case:
On the Larger Implications of the Case:
As we all know, cases that are framed in narrow terms often implicate much larger principles. And I think that’s exactly what’s going on here. I think the plaintiffs, as plaintiffs or petitioners typically want to do, want to present their case as a very narrow challenge that doesn’t require the Court to revisit big principles of presidential power over agencies. But I think anybody looking at this case will recognize that the Court will have to address those kinds of issues to some extent in resolving this case. So there will be implications for these bigger issues, however the Court resolves this case.
One implication is to understand what agency independence means as a matter of statutory law. So independence of [independent commissions] has always been tied to Congress protecting the commissioners by saying that they cannot be removed by the President from office except for good cause. So inevitably this case raises questions about How big a constraint is that? What does good cause mean? And that will have implications for a lot of the agencies. So the more the Court waters down what the good cause removal constraint means, the more that will give the President more control over the independent agencies than under an understanding of independence and of good cause protection that is much more robust.
Second, if they strike the Board down, they will inevitably say things about the amount of power and control the President has to have over the officials who implement and execute federal law. Whatever is said about those questions will have implications for the power relationships between the President and what we think of as the independent agencies.
President Obama's speech today outlining his plans for Guantanamo Bay and detainees there reflects the sharp break that the Obama administration made from the Bush administration on inherent executive authority, the rule of law, and transparency in the conflict against terrorists. Some highlights:
On Torture: The President "categorically reject[ed] the assertion that [so-called enhanced interrogation techniques are] the most effective means of interrogation," and "[w]hat's more, they undermine the rule of law." "In short, they did not advance our war and counterrorism efforts--they undermined them, and that is why I ended them once and for all."
On Guantanamo Bay: The President, after comparing the few benefits (merely "three convictions in over seven years") to the many drawbacks (including the loss of moral authority, our allies' objections, and its recruitment value for terrorists), concluded: "By any measure, the costs of keeping it open far exceed the complications involved in closing it. That's why I argued that it should be closed throughout my campaign, and that is why I ordered it closed within one year."
On Trial of Detainees: The President said that "whenever feasible, we will try those who have violated American criminal laws in federal courts . . . ." Detainees who violated laws of war will be tried in military commissions with new rules that bring them "in line with the rule of law." Those ordered released by the courts--and President Obama specifically cited the Uighurs--must be released, because the President, too, is "bound by the law." Yet others will be transferred to other countries. And finally for those who pose a continuing danger, but who cannot be prosecuted, the administration will apparently work out a plan with the aid of Congress and within the rulings of the courts: "In our constitutional system, prolonged detention should not be the decision of one man. If and when we detrmine that the United States must hold individuals to keep them from carrying out an act of war, we will do so within a system that involves judicial and congressional oversight."
On Transparency in Government: The President said that there is a delicate balance between security concerns and transparency, but "[w]henever we cannot release certain information to the public for valid national security reasons, I will insist that there is oversight of my actions--by Congress or by the courts." Specifically, the President committed to overhauling his administration's use of the State Secrets Privilege; but he also reiterated his opposition to any independent commission to investigate Bush administration excesses, saying that "our existing democratic institutions are strong enough to deliver accountability."
In these areas and throughout the speech, the President references "the rule of law," Congressional and judicial oversight, and transparency and accountability--seldom-heard language from the Bush administration in matters of national security. Clearly the Obama administration represents something different.
Or does it?
Recall that the Obama administration already adopted positions of the Bush administration in two closely watched and key constitutional areas--the definition of detainable individuals, and the State Secrets Privilege. As to the former, the administration proposed a definition in the habeas cases in the D.C. District that was all but the same as Bush administration definition of "enemy combatant." (Two judges now have ruled on the proposed definition. One adopted it in its entirety; the other dropped a component of it that wasn't supported by law.) And as to the latter, the administration asserted precisely the same sweeping State Secrets Privilege in Mohamed, the extraordinary rendition case before the Ninth Circuit. (The Ninth Circuit ruled against the administration.) (In another case, the administration sought to appeal a lower court's order extending habeas to Bagram Airfield in Afghanistan.)
And even in today's speech, the President supported some of his positions primarily on the basis of policy, and only secondarily on the basis of constitutionality. The President's position on torture is a good example: He banned it (primarily) because it "did not advance our war and counterterrorism efforts," and (only secondarily--"what's more") because it "undermine[s] the rule of law."
In the speech today--as in prior speeches, actions, and orders--President Obama articulated a markedly different balance of powers than we saw from the Bush administration. There are no claims of inherent executive authority, absolute secrecy with regard to national security concerns, Presidential authority without regard to U.S. or international law, or even strained interpretations of U.S. and international law. And the speech itself reflected exactly the kind of transparency that the President praised in the speech.
But if key policies don't change, does any of this matter? Perhaps, but we can't know yet. Some policies, after all, may change: the President committed to try certain detainees in regular Article III courts, for example, and he committed to releasing detainees already ordered to be released. Moreover, other hold-over policies might turn out to be well justified; for example, the administration's reassertion of the sweeping State Secrets Privilege in Mohamed might turn out to meet a much higher threshold--a Totten threshold.
But we don't know yet how many detainees will actually be transferred to Article III courts (and whether the administration will be able to overcome objections to such transfers), whether the administration will actually be able to find a home for the Uighurs, and whether the administration was validly protecting national security by asserting a sweeping State Secrets Privilege in Mohamed. Until we know, it's difficult to assess the benefits of the administration's new positions on separation of powers and transparency.
In the meantime, President Obama's transparency means at least that we can hold him (and others) accountable: We at least know who to blame for what. But as the President suggested in his speech today, voters were able to do that in the last election. And they did it with a much less transparent executive.
Wednesday, May 20, 2009
The Supreme Court on Monday granted cert. in Free Enterprise Fund v. Public Co. Accounting Oversight Board, the D.C. Circuit case upholding (2-1 and 5-4 against en banc review) that portion of the Sarbanes-Oxley Act that created an independent Board, the PCAOB, to enforce Sarbanes-Oxley. PCAOB members are appointed by and under the authority of the SEC, itself an independent agency. The plaintiff-appellants argued that the PCAOB violates the Appointments Clause and separation-of-powers principles. The D.C. Circuit rejected those arguments and upheld the Act. The full D.C. Circuit opinion is here; my edited (and substantially shorter) version is here.
The plaintiff-appellants argued that the PCAOB violates the Appointments Clause, because PCAOB members are "officers" by virtue of their independence. (Under the Appointments Clause, only the President may appoint, with the advice and consent of the Senate, "officers"; Congress may vest the appointment of "inferior officers" in the President, the courts, or heads of departments.) Plaintiff-appellants point to members' appointments by the independent SEC (not the President), the heightened standard for removing a member (only if the member "has willfully violated" any provision of the Act), and the PCAOB's authority to investigate violations of Sarbanes-Oxley without SEC control or oversight.
The D.C. Circuit flatly rejected these arguments, holding that PCAOB members were subject to greater control than Coast Guard judges in Edmond v. United States and the independent counsel in Morrison v. Olson, both upheld by the Court.
The plaintiff-appellants' separation-of-powers argument is more interesting. This argument is based upon the excessive attenuation of Presidential control over the PCAOB. In short, they argue the President can direct the independent PCAOB only through the independent SEC, creating an inulated body within an insulated body.
For unitary executives--who in their purest form reject any independent body within the executive branch--the PCAOB is doubly troubling. It means that the President can't absolutely control even those who control an insulated board--a kind of double-reinforced wall between the law enforcers (the PCAOB) and the President, and thus a big problem for those who see the executive as unitary. Free Enterprise Fund gives them an opportunity to test their theory.
The D.C. Circuit rejected the separation-of-powers argument. That court held that a President's attenuated control over independent agencies has been tolerated since Humphrey's Executor v. United States in 1935.
But the claim may receive a different reception at the Supreme Court. The plaintiff-appellants led their cert. petition with this claim, putting the issue squarely before the Court. But they also carefully tempered the claim by citing and navigating Edmond and Morrison. The argument thus appears modest--based upon, not attempting to overturn, these landmark cases--but it also opens the door for a much more sweeping ruling on independent agencies, the unitary executive theory, and, ultimately, Congress's authority to create and empower agencies within the executive branch.
Tuesday, May 19, 2009
Judge John D. Bates (D.D.C.) ruled today that the government lacks authority to detain individuals in the global struggle against terrorism based merely upon their "substantial support" of Taliban, al Qaida, or associated forces or merely upon their "direct support" in aid of such forces.
Bates's ruling comes in response to the Obama administration's refined position on detainable individuals, filed with the court on March 13. Under the Obama administration's preferred definition, the government would have had authority to detain not only those who "planned, authorized, committed, or aided the terrorist attacks" of 9/11 and anyone who harbored them, but also those who "substantially supported" Taliban, al Qaida, or associated forces and those who "directly supported hostilities" in aid of those forces. In a separate case, Judge Walton (D.D.C.) previously approved the administration's preferred approach in its entirety.
Bates concluded that the government had authority under the AUMF and the laws of war to detain those who "planned, authorized, committed, or aided the terrorist attacks" for the same reasons that Walton so concluded.
But Bates broke with Walton on the "substantial support" component and ruled that the government lacked authority under the AUMF and the laws of war to detain those who merely "substantially supported" Taliban, al Qaida, or associated forces, or those who "directly supported" hostilities in aid of such forces. Bates suggested that allowing the administration to detain these individuals may run afoul of separation-of-powers principles (because the President would be operating beyond Congressional authorization and outside the laws of war) and nondelegation principles (because the administration's preferred interpretation would have meant that the AUMF was too vague and left the administration to make law).
Bates minimized the differences between his ruling and Walton's, however, writing that those detained based merely on "substantial support" or on "direct support" would likely also be detainable as "part of" a covered organization.
Bates's ruling didn't apply his revised definition to the detainees in the case, so we don't know yet how it'll play out--and whether he's right that the differences won't matter in practice. In theory, though, Bates's ruling represents a significant difference in its application of principles of international law, its reading of the AUMF, and its sensitivity to separation-of-powers concerns.
Monday, May 18, 2009
A split (5-4) Supreme Court ruled today in Ashcroft v. Iqbal that allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss. The ruling leaves open the narrow possibility that the plaintiff Iqbal could amend his complaint to comply with the heightened pleading requirement, thus keeping Ashcroft and Mueller in the suit at least into discovery. But as a practical matter the Court made it all but impossible for Iqbal or other plaintiffs to sustain a civil suit for constitutional violations against high-level officials.
Iqbal sued Ashcroft, Mueller, and numerous other federal officials for detaining him as a person "of high interest" on account of his race, religioin, or national origin, in violation of his First and Fifth Amendment rights. He alleged that Ashcroft and Mueller "knew of, condoned, and willfully and maliciously agreed" to detain him because of his religion, race, or national origin," that Ashcroft was the "principal architect" of the policy, and that Mueller was "instrumental" in adopting and executing the policy, among other allegations.
The District Court denied Ashcroft and Mueller's motion to dismiss, because, relying on Conley v. Gibson, "it cannot be said that there [is] no set of facts on which [Iqbal] would be entitled to relief as against" Ashcroft and Mueller. Ashcroft and Mueller filed an interlocutory appeal in the Second Circuit. As that appeal was pending, the Supreme Court decided Bell Atlantic Corp. v. Twombly, which refined the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss and retired the no-set-of-facts standard under Conley. The Second Circuit applied the Twombly standard and upheld the District Court's denial.
The Supreme Court applied Twombly and reversed. The Court ruled that vicarious liability claims are not actionable under Bivens, and so Iqbal had to plead--in more than a merely conclusory way--that Ashcroft and Mueller, through individual actions, violated the Constitution. Here, in alleging invidious discrimination in violation of the First and Fifth Amendments, Iqbal had to plead that Ashcroft and Mueller engaged in purposeful discrimination--more than "intent as volition or intent as awareness of consequences." This Iqbal failed to do. The Court:
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. . . .
Iqbal's complaint failed on both:
[The] bare assertions [in the complaint, and quoted above] amount to nothing more than a "formulaic recitation of the elements" of a constitutional discrimination claim, namely, that petitioners adopted a policy "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." As such, the allegations are conclusory and not entitled to be assumed true. . . .
Taken as true, [Iqbal's] allegations are consistent with petitioners' purposefully designating detainees "of high interest" because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.
What "likely explanations"? The post-9/11 arrest and detention policy resulted in disproportionate detention of Arab Muslims, because 9/11 hijackers were Arab Muslims and members of an Islamic fundamentalist organization. According to the Court, "[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of theri suspected link to the attacks would produce a disprate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims." Because of this likely alternative explanation, the Court ruled that Iqbal's complaint "has not 'nudged [his] claims' of invidious discrimination 'across the line from conceivable to plausible.'"
While the Court left open the theoretical possibility that Iqbal could amend his complaint to comply with the higher pleading standard in Twombly's "two working principles," the practical effect of the case will be to severely curtail constitutional tort claims against high-level officials. Plaintiffs often simply lack the information about high-level officials to plead a case with requisite specificity and plausibility to satisfy the standard. If Iqbal's claims were insufficient on these points, just imagine the claims a plaintiff would need to make--and where a plaintiff would get the information to support those claims.
And more: As Justice Souter wrote in dissent (for himself and Justices Stevens, Ginsburg, and Breyer), Ashcroft and Mueller conceded that "a supervisor's knowledge of a subordinate's unconstitutional conduct and deliberate indifference to that conduct are grounds for Bivens liability"--acknowledging an alternative, non-vicarious liability form of supervisory liability. Iqbal even more clearly satisfied this standard, but the Court apparently ignored the concession. The result, according to Souter: The Court "eliminat[ed] Bivens supervisory liability entirely."