December 19, 2009
Obama Administration says Ninth Circuit Judge's Administrative Opinion not "Binding"
In a statement issued by Elaine Kaplan (pictured) OPM counsel and "open lesbian," the OPM and the Obama Administration refuse to comply with Ninth Circuit Judge Kozinski's order granting spousal benefits to lesbian federal employee's same-sex partner, previously discussed here.
Kaplan's statement, not yet on the OPM website but on the Advocate website here, provides in part:
It’s important to understand that Judge Kozinski was acting as an administrative official in this matter, reacting to the concerns of an employee of the judiciary. He was not acting as a federal judge in a court case. This does not mean that the inability to extend benefits to Karen Golinski’s spouse is any less real or less painful, but it is a critical point.
The decision in this matter was not reached lightly — after we learned of this development, we examined our options and consulted with the DOJ. DOJ advised us that the order issued by Judge Kozinski does not supersede our obligation to comply with existing law because it is not binding on OPM, as it was issued in his administrative capacity, and not as a judge in a court case. Thus, this type of order does not change the existing law, which DOJ concludes prevents the enrollment. DOJ also advised us that DOMA prohibits same-sex spouses of federal employees from enrolling in the FEHBP and that the law does not permit OPM to allow this enrollment to proceed.
By characterizing Kozinski's order as administrative rather than an opinion by a judge in an Article III capacity, the Statement seeks to diffuse any arguments raising separation of powers issues. The statement ends with a note that Obama has "personally" called for an end to DOMA.
December 18, 2009
Holiday Gift for the Con Law Prof in Your Life
If you're in search of the perfect holiday gift for the Con Law Prof in your life, consider the Visual History of the Supreme Court of the United States, published by Timeplots. The History includes an amazing amount of information about the Court, graphically (and attractively) displayed all in one place. Framing available.
Pentagon Announces Policy to Assist with Voter Registration
The Defense Department this week announced a new policy to ask all military personnel if they want to register to vote when they relocate to a new base. The New York Times reports here.
The initiative is designed to address long-standing problems with military personnel registering and voting. It comes in the wake of a provision (Sections 575 to 589) in the Defense Department authorization, passed in October, that would make it easier for overseas citizens and military personnel to vote absentee.
Senator Cornyn (R-TX) reportedly held up confirmation of President Obama's nomination for under-secretary of defense for personnel and readiness until the Defense Department agreed to this change.
December 17, 2009
Federalist Society Debates "Pay Czar," PCAOB
The Federalist Society is hosting two debates in their on-line debate series, one on the constitutionality of the "pay czar," the other on the constitutionality of the Public Company Accounting Oversight Board. (I posted on the "pay czar" most recently here; I posted on the PCAOB most recently here.)
The pair juxtapose nicely on separation-of-powers and Appointments Clause issues. The PCAOB debate, argued at the Supreme Court just last week in Free Enterprise Fund v. PCAOB, asks the question whether Congress overstepped its bounds and went too farin creating the PCAOB, an "independent" regulatory board within the already "independent" SEC. The "pay czar" debate asks whether Congress didn't go far enough in vesting the Secretary of the Treasury with appointment power for the Office of Master for Compensation.
The PCAOB arguments are more typical of the kinds of claims we've heard in cases like Morrison v. Olson (upholding the independent counsel), where the claim is that Congress intruded on an area reserved to the executive. We've also heard these arguments from unitary executive theorists, perhaps especially during the Bush Administration.
Arguments against the "pay czar," in contrast, say that Congress didn't go far enough--that it wasn't specific enough in its vesting to meet the demands for inferior officers under the Appointments Clause.
While the two debates together nicely bookend Appointments Clause and separation-of-powers questions, together they won't help us draw any lines. The PCAOB case pushes the outer edge of what Congress can authorize without intruding on the executive; the "pay czar" debate goes the other way and pushes the outer edges of what the executive can do without specific authorization from Congress. They make an interesting comparison, but they're too far apart to help us move forward in defining precise lines.
December 15, 2009
Uighurs File Brief at Supreme Court
The petitioners in Kiyemba v. Obama, the Chinese Muslims still detained at Guantanamo Bay, filed their merits brief at the Supreme Court last week in their case challenging the government's authority to continue to detain them. Recall that the Uighurs filed a habeas case in the D.C. District and won release. Judge Urbina ordered their release into the United States (because the government couldn't at that time find another country to take any of them). The government appealed and won at the D.C. Circuit on separation-of-powers grounds: The D.C. Circuit ruled that the lower court had no authority to order release into the U.S., because the political branches, and not the courts, have power over immigration. I most recently posted on the case here.
The Obama administration has since searched for a home for the Uighurs, relocating some of them to the Bahamas and Palau. And Congress enacted legislation prohibiting the government from using funds to relocate detainees within the United States.
The remaining Uighurs last week filed their brief at the Supreme Court. Substantively, there's nothing new here. But two things stand out and make the brief well worth your time. First, the brief puts together in one place the timeline of the Uighurs' detention and litigation--a concise statement of the government's foot-dragging and legal maneuvering in the case. Next, the brief underscores the significance of the case: If the Court upholds the D.C. Circuit, the case threatens to become the twenty-first century Mezei--a widely criticized relic in which the Court upheld an alien's detention at Ellis Island (variously described by the Court as "harborage," "temporary haven," and "exclusion") without a hearing based on alleged secret information.
The Uighurs' argument is simple and elegant: They won on habeas; the remedy on habeas is release (citing Boumediene); and the only place they can go is the U.S. But the argument runs up against the government's position, and the D.C. Circuit's ruling, on separation of powers and the courts' lack of authority over immigration. If the Court buys this point, the case could mean that the government could detain indefinitely--for immigration reasons, not enemy combatant reasons. If the Court doesn't buy this point--and instead upholds Judge Urbina's decision--it could put the Obama administration in a very tough spot: The administration would have to release the Uighurs into the U.S., or make the difficult sell to other countries that the Uighurs are too dangerous for the U.S., even after our highest court ordered release, but yet not too dangerous for them.
The government argued in its cert. brief that the Uighurs are no longer detained as enemy combatants and are free to go to any country that will take them. None will, at least not yet. As the government continues to move to close Guantanamo--President Obama formally announced just today that the government will transfer some detainees to a prison in Illinois--we might imagine that it also is moving to find a permanent home for the Uighurs and moot this case before before the Court rules.
December 14, 2009
A Constitutional Play at the AALS
Actor, playwright, and Con Law Prof Paul Baier (LSU) is previewing his new play, "Father Chief Justice": Edward Douglass White and the Constitution at the Louisiana Supreme Court on January 6, 2009--during the AALS Annual Meeting. More on the play here.
Just a few seats remain, so contact Steve Errick Managing Director, Aspen Publishers now to reserve your spot.
December 13, 2009
Staszewski on Statutory Interpretation and Separation of Powers
Glen Staszewski (Mich. St.) just published his thoughtful article on statutory interpretation and separation of powers, Textualism and the Executive Branch,on SSRN. The piece is part of an impressive symposium that Staszewski organized at MSU on administrative statutory interpretation, including some of the most active and impressive scholars in this area. Staszewski's introduction is here; links to other symposium articles in the MSU Law Review are here. (The entire issue is well worth a look.)
Staszewski argues that a commitment to textualism and a commitment to a strong executive--commitments often held by the same people--are fundamentally incompatible. In short, textualism--the approach to statutory interpretation that looks to the meaning of a statute's words at the time of their adoption, and not to legislative history--is a restrained method of interpretation. For adherents, it's thus an effective device to control an active judiciary. But this kind of restraint won't work for a powerful executive. A powerful executive needs broad, not restrained, interpretive authority, and adherents enthusiastically support the deference the executive gets through Chevron. Textualism is thus incompatible with a powerful executive; and when the same person holds both positions, argues Staszewski, there's a problem.
Staszewski traces both textualism and the push for a powerful executive to the Reagan administration. He shows that textualism evolved in the executive branch as a way to rein in an active judiciary--to limit the power of the courts in matters of statutory interpretation, and thus expand the power of the executive. But in the textualists' enthusiasm for controlling the courts, they fundamentally overlooked the fact that all their arguments for the textualist technique applied with equal force to the executive: By the textualists' own reckoning, textualism should also apply to executive statutory interpretation. But this is inconsistent with a powerful executive.
Staszewski reviews some recent scholarship that has attempted to reconcile textualism and a powerful executive based on claims, for example, that the courts occupy a different role and have a different institutional competence than the executive. Moreover, the courts are not accountable in the same way that the executive is. And the courts do "law," where the executive does "policy." For each of these reasons, the courts, the argument goes, should interpret statutes differently than the executive. Staszewski rejects these arguments, first because they're mostly beside the point (because the primary arguments for textualism apply to the executive as well as the courts, these points notwithstanding) and second because they're riddled with problems.
Staszewski concludes that the incompatibility of these two positions ultimately undercuts textualism:
Rather, the point of this Article is to show that a legal theory that simultaneously embraces the new textualism and unbridled executive discretion is fundamentally incoherent. A faithful agent of Congress could always adhere to the plain meaning of statutory language or exercise a reasonable degree of policy discretion, but a true believer in modern textualism cannot have it both ways. When textualists nonetheless advocate broad and unconstrained executive discretion, they are effectively acknowledging that their understanding of the legislative process and constitutional structure is ultimately not controlling. Although a heavy emphasis on the text could still be defended in statutory interpretation on other grounds, modern textualist theory loses most of its content and force when stripped of those underpinnings.
Check it out.