Saturday, March 27, 2010

Obama's Recess Appointments: 15 announced today including to NLRB

Article II section 2, clause 3 of the Constitution allows the President to make "recess appointments":

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

A release from the White House Press Secretary today notes that there are currently "a total of 217 nominees pending before the Senate," who have been "pending for an average of 101 days, including 34 nominees pending for more than 6 months."  Specifically, the release contends that the 15 nominees to be appointed  "have been pending for an average of 214 days or 7 months for a total of 3204 days or almost 9 years."

The named nominees are:

  • Jeffrey Goldstein: Nominee for Under Secretary for Domestic Finance, Department of the Treasury;
  • Michael F. Mundaca: Nominee for Assistant Secretary for Tax Policy, Department of the Treasury;
  • Eric L. Hirschhorn: Nominee for Under Secretary of Commerce for Export Administration and head of the Bureau of Industry and Security, Department of Commerce;
  • Michael Punke: Nominee for Deputy Trade Representative - Geneva, Office of the United States Trade Representative;
  • Francisco "Frank" J. Sánchez: Nominee for Under Secretary for International Trade, Department of Commerce;
  • Islam A. Siddiqui: Nominee for Chief Agricultural Negotiator, Office of the U.S. Trade Representative;
  • Alan D. Bersin: Nominee for Commissioner, U.S. Customs and Border Protection, Department of Homeland Security;
  • Jill Long Thompson: Nominee for Member, Farm Credit Administration Board;
  • Rafael Borras: Nominee for Under Secretary for Management , Department of Homeland Security;
  • Craig Becker: Nominee for Board Member, National Labor Relations Board;
  • Mark Pearce: Nominee for Board Member, National Labor Relations Board;
  • Jacqueline A. Berrien, Nominee for Chair of the Equal Employment Opportunity Commission;
  • Chai Feldblum, Nominee for Commissioner, Equal Employment Opportunity Commission;
  • Victoria A. Lipnic: Nominee for Commissioner, Equal Employment Opportunity Commission;
  • P. David Lopez: Nominee for General Counsel, Equal Employment Opportunity Commission

The appointments of Becker and Pearce to the NLRB provide an answer to CJ Roberts query in the oral argument in New Process Steel v. National Labor Relations Board on Tuesday, concerning the ability of the NLRB to act when only two of its five positions are filled.  Neal Katyal, Deputy Solicitor General, was discussing the present composition of the NLRB:

MR. KATYAL: There are three nominees pending right now.
MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum -- a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.
CHIEF JUSTICE ROBERTS: And the recess appointment power doesn't work why?
MR. KATYAL: The -- the recess appointment power can work in -- in a recess. I think our office has opined the recess has to be longer than 3 days. And -- and so, it is potentially available to avert the future crisis that -- that could -- that could take place with respect to the board.

(Transcript at 49-50). 


March 27, 2010 in Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Friday, March 26, 2010

The Response: A Movie About Guantanamo Detainee Trials

The Response, a short film dramatizing detainee Combat Status Review Tribunals at Guantanamo Bay, has been traveling around the country and earning praise and prizes.  The film was researched and shot at the University of Maryland School of Law with a cast that agreed to defer all or most of their salaries in order to produce it. 


You can see clips on the film's web-site, but the full film is not yet available for purchase, download, or rental.  Check out the web-site, though: If it's scheduled to play in your city, this could make an excellent complement to lessons on separation of powers in wartime.


March 26, 2010 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Heyck on Originalism and the Second Amendment

Thomas William Heyck (Northwestern, professor emeritus of history) satirizes originalism as applied to the Second Amendment in an op-ed in today's Chicago Tribune.  Heyck argues that Justice Scalia's form of originalism absolutely protects "the right to keep and bear muzzle-loading flintlock arms."  (It also protects hatchets, tomahawks, swords, pitchforks, and other weapons known to the founders.)  But originalist advocates of Second Amendment protection for modern weapons--necessary, they say, to protect against an over-reaching government--commit the "original intention" fallacy: They focus on the ever-ambiguous intent of the framers, not the more determinate original meaning of the text, and thus open the text up to anything anybody wants it to mean. 


March 26, 2010 in Fundamental Rights, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Shesol's Supreme Power

Jeff Shesol, author of Mutual Contempt: Lyndon Johnson, Robert Kennedy, and the Feud that Defined a Decade, just published Supreme Power: Franklin Roosevelt vs. the Supreme Court.


Shesol, a Clinton speechwriter, tells the story of FDR's court-packing plan "with a novelist's eye, a historian's care, and a blogger's energy" (quoting Jeffrey Toobin's dust-cover advance praise).


March 25, 2010 in Books, Current Affairs, History, News | Permalink | Comments (0) | TrackBack (0)

Supreme Court Nominees: No Presidential Wannabes Need Apply

There is no perfect SCOTUS nominee.  One suggestion for Obama has been that he nominate himself.  Obama would therefore join the rarified company of a POTUS who became a member of SCOTUS: kudos if you can name that person (pictured below) without any research.


And further kudos if you know who was responsible for William Taft pursuing the presidency first when he really wanted to be on the Supreme Court: according to Taft's Presidential bio on, his wife is to blame.

But what about SCOTUS members who have presidential aspirations?  There have been quite a few, as discussed in an intriguing new paper by ConLawProf William G. Ross.   Ross charts the changes in US political culture, noting that:

In at least three quarters of the presidential elections between 1832 and 1956, one or more Justices attempted to obtain a presidential or vice presidential nomination or were prominently mentioned as potential candidates. Several Justices conducted covert presidential campaigns, and a few even openly campaigned from the bench. On numerous occasions, political parties or political leaders encouraged Justices to become presidential candidates. One Justice, Charles Evans Hughes, resigned from the Court to accept a presidential nomination. 

No Justice during the past half century, however, appears to have entertained serious presidential ambitions.

Professor Ross suggests this change is all for the good.  He concludes that  presidential "ambition is hazardous to the Court's integrity" because a Justice could alter - -  - or be perceived to alter - - - his or her judgments in light of the presidential prospects.  This would "impair the prestige that the Court must have in order to command public support for its decisions."    Although Ross recognizes that the Court "might benefit from the experience of a career politician," nevertheless a Presidential nomination to the Supreme Court should occur only if the President is convinced the nominee "lacked any further political ambition."


March 25, 2010 in History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 24, 2010

The Independence of Dodd's Bureau of Consumer Protection

Senator Chris Dodd last week introduced his financial reform bill, including his version of a consumer financial protection agency to regulate the financial services industry and "to protect consumers from abusive financial services practices."  In contrast to the House version, which includes a new stand-alone Consumer Financial Protection Agency, Dodd's Bureau of Consumer Protection would be housed within the independent Federal Reserve.  (See Section 1001, et seq., of the bill.)

The independence of the regulatory agency, whatever it's called, matters to the (Democratic) policy-makers: The more independent, the better.  (Dodd's move to place his Bureau within the Federal Reserve may have been the result of a compromise with Republicans on the measure.  House Democrats seem to favor a stand-alone agency.)

But the debates over the proposals raise the question: What does it mean to be "independent"? 

One measure of an agency's independence is the President's power to remove agency personnel.  Thus challengers to the Public Company Accounting Oversight Board, created by Sarbanes-Oxley, focused almost exclusively on the President's removal power (or lack thereof) in arguing last December before the Supreme Court that the Board violated the Appointments Clause and separation-of-powers principles.  Under Sarbanes-Oxley, Board members can be removed for cause only by the SEC, which itself can be removed only for cause by the President.  According to challengers, this so-called "double for-cause" protection unconstitutionally insulated Board members from Presidential control.

But the President's removal power is only one measure of independence.  Dodd's Bureau illustrates this well.  While the director and deputy director of the Bureau would enjoy 5-year terms, removable only for cause, and while the Bureau would be located within the Federal Reserve (characteristics suggesting dependence), the Bureau would also have its own qualified rule-making authority and its own enforcement authority (characteristics suggesting independence).  (The Wonk Room helpfully compares the Senate, House, and administration proposals here.)  Surely each of these characteristics (and not just the President's power to remove Bureau members) would be relevant in assessing the Bureau's "independence"--and its constitutionality under the Appointments Clause and separation-of-powers principles.  This, in fact, is what the government argued in the PCAOB case.

The debates over the appropriate level of independence for a new consumer financial regulatory agency are helpful reminders, soon after the PCAOB arguments, that multiple characteristics (and not just the President's power to remove officers) define an agency's independence, and its constitutionality.


March 24, 2010 in Appointment and Removal Powers, Congressional Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Liu Ninth Circuit Nomination Hearing: Update

[Update: Liu hearing is rescheduled for April 16, 2010].

According to a just issued press release from Patrick Leahy (D-Vt), Chair, Senate Judiciary Committee, the nomination hearing scheduled for today for Goodwin Liu has been postponed.  FacultyPhoto

Liu, (pictured right) is a ConLawProf at UC-Berkeley (Boalt Hall) who has been nominated for the Ninth Circuit Court of Appeals.  The LATimes reports that Liu is facing opposition from conservatives who believe Liu is too liberal.

Liu clerked for U.S. Supreme Court Justice Ruth Bader Ginsburg and for Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit.   He has a B.S., from Stanford University (1991); a M.A. from Oxford University (1993), and his J.D. from Yale Law School (1998).   A list of his publications is here.


March 24, 2010 in Appointment and Removal Powers, Congressional Authority, Current Affairs, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Constitutional Challenge to Health Care Mandate: Complaint

 Within ten minutes of President Obama’s signing of the Patient Protection and Affordable Care Act, available as large download here, thirteen states through their state attorney generals filed a complaint in the Northern District of Florida, Pensacola Division, challenging the constitutionality of the statute. SUDO000Z

The states - - - Florida, South Carolina, Nebraska, Texas, Utah, Louisiana, Alabama, Michigan, Colorado, Pennsylvania, Washington, Idaho, and South Dakota - - -  contend that the Act “greatly alters the federal-state relationship, to the detriment of the states, with respect to Medicaid programs specifically and healthcare coverage generally” (para 39).  

Count One, entitled “Unconstitutional Exercise of Federal Power and Violation of The Tenth Amendment (Const. Art. I & Amend. X)”  alleges both that the Act exceeds Congressional power under Art I sec 8; the “taxing and Spending Clause”; or “any other provision of the Constitution” (para 56), and that the Act violates the Tenth Amendment.

Count Two, entitled “Violation of Constitutional Prohibition of Unapportioned Capitation or Direct Tax
(Const. Art. I, §§ 2, 9)” alleges that the tax penalty on uninsured persons “constitutes a capitation and a direct tax that is not apportioned among the states.”

Count Three, entitled “Unconstitutional Mandate That All Individuals Have Health Insurance Coverage Or Pay Tax Penalty (Const. Art. I & Amend. X)”  alleges:
The Act is directed to a lack of or failure to engage in activity that is driven by the choices of individual Americans. Such inactivity by its nature cannot be deemed to be in commerce or to have any substantial effect on commerce, whether interstate or otherwise. As a result, the Act cannot be upheld under the Commerce Clause, Const. art. I, § 8. The Act infringes upon Plaintiffs’ interests in protecting the freedom, public health, and welfare of their citizens and their state fiscs, by coercing many persons to enroll in Medicaid at a substantial cost to Plaintiffs; and denies Plaintiffs their sovereign ability to confer rights upon their citizens and residents to make healthcare decisions without government interference, including the decision not to participate in any healthcare insurance program or scheme, in violation of the Tenth Amendment (para 65).

The fourth and final count seeks declaratory judgment based on the previous allegations.

For pedagogical purposes, the Complaint could be used as an in class exercise in a Constitutional Law course, perhaps using some of the materials available from the Federalist Society here to write a memo in support of the complaint, as well our previous discussions here and here.  It might also be useful for a Constitutional Litigation seminar to engage in a redrafting of the Complaint or a drafting of an Answer.


March 23, 2010 in Commerce Clause, Congressional Authority, Current Affairs, Federalism, Medical Decisions, News, Supremacy Clause, Teaching Tips, Tenth Amendment | Permalink | Comments (3) | TrackBack (0)

Monday, March 22, 2010

Gender, Equal Protection & Immigration SCOTUS grants cert in Flores-Villar: Analysis

The question is a narrow one: : whether the court's decision in Nguyen v. INS, 533 U.S. 53 (2001), permits gender discrimination that has no biological basis?

Recall that the Court in Nguyen upheld 8 U. S. C. § 1409 which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States - - -  survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.”  The Majority found that the statute served two important governmental interests:  the importance of assuring that a biological parent-child relationship exists and the importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”   The Court in Nguyen relied on biological reasoning: women give birth and men may not even realize their paternity, concluding:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam.  Although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity and the father obtained an order of parentage from a state court. 

800px-Border_Mexico_USA The Court's grant of certiorari  in Flores-Villar will involve a reconsideration of Nguyen.  Flores-Villar was born in Tijuana, Mexico 1974 to a non-citizen mother and a United States citizen father who, importantly,  was sixteen at the time.   His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old.  He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985.  Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his fourteenth birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship.  Moreover, in the case of Flores-Villar, INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.

The Ninth Circuit upheld the statutory scheme, holding that avoiding statelessness, and assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen, are important interests, and that the means chosen substantially further the objectives.  The Court stated: "Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.”

This “fit” will certainly be at issue before the United States Supreme Court.  Justice O’Connor’s dissenting opinion in Nguyen, joined by Souter, Ginsburg, and Breyer,  stressed the heightened scrutiny required by Virginia v. US (VMI) with its requirement of a closer fit between the “discriminatory” means chosen and gender stereotypes.   The dissenting Justices reasoned that the statute was “paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children” and could easily be rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement - - - and not, as in Nguyen, a relationship with child requirement - - - the “fit” may not be sufficiently tight.  If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.”   However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.  Balancing gender equality and citizenship will be the task for the Court - - - a task which the newest Justice will certainly undertake.



March 22, 2010 in Cases and Case Materials, Congressional Authority, Equal Protection, Family, Gender, Recent Cases, Reproductive Rights, Sexuality | Permalink | Comments (0) | TrackBack (0)

Sunday, March 21, 2010

Pending Executive Order on Abortion - Text

President Obama's "pending" EO on abortion, just released by The White House, provides:


By the authority vested in me as President by the Constitution and the laws of the United States of America, including the “Patient Protection and Affordable Care Act” (approved March __, 2010), I hereby order as follows:
Section 1.  Policy. Following the recent passage of the Patient Protection and Affordable Care Act (“the Act”), it is necessary to establish an adequate enforcement mechanism to ensure that Federal funds are not used for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), consistent with a longstanding Federal statutory restriction that is commonly known as the Hyde Amendment.   The purpose of this Executive Order is to establish a comprehensive, government-wide set of policies and procedures to achieve this goal and to make certain that all relevant actors—Federal officials, state officials (including insurance regulators) and health care providers—are aware of their responsibilities, new and old.
The Act maintains current Hyde Amendment restrictions governing abortion policy and extends those restrictions to the newly-created health insurance exchanges.  Under the Act, longstanding Federal laws to protect conscience (such as the Church Amendment, 42 U.S.C. §300a-7, and the Weldon Amendment, Pub. L. No. 111-8, §508(d)(1) (2009)) remain intact and new protections prohibit discrimination against health care facilities and health care providers because of an unwillingness to provide, pay for, provide coverage of, or refer for abortions.
Numerous executive agencies have a role in ensuring that these restrictions are enforced, including the Department of Health and Human Services (HHS), the Office of Management and Budget (OMB), and the Office of Personnel Management (OPM). 
Section 2.  Strict Compliance with Prohibitions on Abortion Funding in Health Insurance Exchanges.  The Act specifically prohibits the use of tax credits and cost-sharing reduction payments to pay for abortion services (except in cases of rape or incest, or when the life of the woman would be endangered) in the health insurance exchanges that will be operational in 2014.  The Act also imposes strict payment and accounting requirements to ensure that Federal funds are not used for abortion services in exchange plans (except in cases of rape or incest, or when the life of the woman would be endangered) and requires state health insurance commissioners to ensure that exchange plan funds are segregated by insurance companies in accordance with generally accepted accounting principles, OMB funds management circulars, and accounting guidance provided by the Government Accountability Office. 
I hereby direct the Director of OMB and the Secretary of HHS to develop, within 180 days of the date of this Executive Order, a model set of segregation guidelines for state health insurance commissioners to use when determining whether exchange plans are complying with the Act’s segregation requirements, established in Section 1303 of the Act, for enrollees receiving Federal financial assistance.  The guidelines shall also offer technical information that states should follow to conduct independent regular audits of insurance companies that participate in the health insurance exchanges.  In developing these model guidelines, the Director of OMB and the Secretary of HHS shall consult with executive agencies and offices that have relevant expertise in accounting principles, including, but not limited to, the Department of the Treasury, and with the Government Accountability Office.  Upon completion of those model guidelines, the Secretary of HHS should promptly initiate a rulemaking to issue regulations, which will have the force of law, to interpret the Act’s segregation requirements, and shall provide guidance to state health insurance commissioners on how to comply with the model guidelines.
Section 3.  Community Health Center Program.  The Act establishes a new Community Health Center (CHC) Fund within HHS, which provides additional Federal funds for the community health center program.  Existing law prohibits these centers from using federal funds to provide abortion services (except in cases of rape or incest, or when the life of the woman would be endangered), as a result of both the Hyde Amendment and longstanding regulations containing the Hyde language.  Under the Act, the Hyde language shall apply to the authorization and appropriations of funds for Community Health Centers under section 10503 and all other relevant provisions.  I hereby direct the Secretary of HHS to ensure that program administrators and recipients of Federal funds are aware of and comply with the limitations on abortion services imposed on CHCs by existing law.  Such actions should include, but are not limited to, updating Grant Policy Statements that accompany CHC grants and issuing new interpretive rules.
Section 4.  General Provisions.  (a) Nothing in this Executive Order shall be construed to impair or otherwise affect:  (i) authority granted by law or presidential directive to an agency, or the head thereof; or (ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This Executive Order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This Executive Order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, entities, officers, employees or agents, or any other person.


March 21, 2010 in Abortion, Current Affairs, Executive Authority, Family, Fourteenth Amendment, Fundamental Rights, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)