Friday, May 6, 2011

The Filibuster and Judicial Nominees

The Senate this week voted 50-44 along party lines to seat John McConnell on the U.S. District Court for Rhode Island 14 months after President Obama first nominated him. 

To get to the vote, however, the Senate had to invoke cloture to break a Republican filibuster.  Republicans opposed McConnell because of his positions on behalf of clients (including a public nuisance theory against lead paint manufacturers), his contracts with states to represent them in certain cases, and an allegation that he lied to the Senate Judiciary Committee during his confirmation process.  (Senator Cornyn outlined the case against McConnell in Wednesday's Congressional Record, at S2596.)

Senator Leahy responded on the merits and recounted the history of legislative deference to Presidential district court nominees under its "advice and consent" role:

I cannot recall a single instance in which a President's judicial nomination to a Federal trial court, a Federal district court, was blocked by a filibuster. . . .

Looking back over the last six decades, I found only three district court nominations--three in over 60 years--on which cloture was even filed. . . .  All three of those nominations were confirmed. . . .

From the start of President Obama's term, Republican Senators have applied a heightened and unfair standard to President Obama's district court nominees.  Senate Republicans have chosen to depart dramatically from the long tradition of deference on district court nominees to the home State Senators who know the needs of their States best.  Instead, an unprecedented number of President Obama's highly qualified district court nominees have been targeted for opposition and obstruction.

That approach is a serious break from the Senate's practice of advice and consent.  Since 1945, the Judiciary Committee has reported more than 2,100 district court nominees to the Senate.  Out of those 2,100 nominees, only five have been reported by party-line votes.  Only five total in the last 65 years.  Four of these five party-line votes have been against President Obama's highly qualified district court nominees.  Indeed, only 19 of those 2,100 district court nominees were reported by any kind of split rollcall vote at all, and five of those, more than a quarter, have been President Obama's nominees, including Mr. McConnell.

Cong. Rec. at S2599.  Leahy also recalled that Republicans "[j]ust a few years ago" argued that filibusters against judicial nominees were unconstitutional.  (Leahy stopped short of agreeing with that position.)

Ultimately the cloture vote on McConnell's nomination passed 63-33, with 11 Republicans joining the Democrats.

McConnell's process is a poignant case study in the Senate's powerful role in judicial appointments and ultimately in the work of the judiciary.  (Nearly 10 percent of all federal judgeships are vacant.  37 of these are considered to be "judicial emergencies."  We covered one of those emergencies here.)

It's also a reminder of the many powers of the minority party in the Senate, in judicial nominations and more generally in the work of the Senate.  For example, in addition to filibustering McConnell, Republicans called for a quorum in the debate referenced above.  The quorum call can eat up floor time and delay proceedings, sidetracking the body and holding up its work.

For more on the status of federal judicial nominations, check out


May 6, 2011 in Appointment and Removal Powers, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, May 5, 2011

Republicans Move for Changes to CFPB

Senate Republicans wrote Thursday to President Obama that they would hold up any nomination to head the new Consumer Financial Protection Bureau, created under the Dodd-Frank financial regulation act, unless the administration agrees to "structural changes that will make the Bureau accountable to the American people." 

Senate Republicans identified three "common sense reforms":

  • Replace the single Director with a Board.
  • Take the CFPB's funding out from under the Federal Reserve and put it directly through the regular appropriations process.
  • Allow the Financial Stability Oversight Council to set aside or stay any regulation issued by the CFPB "if the regulation puts at risk the safety and soundness of the entire U.S. banking system or the stability of the U.S. financial system."  (Here's a FAQ sheet on the FSOC, a body created by Dodd-Frank and housed in Treasury.)

These reforms are similar to those in legislation passed this week along party lines in the House Committee on Financial Services.  H.R. 1121 would replace the Director with a five-person Commission, each nominated by the President and confirmed by the Senate, serving staggered five-year terms and removable by the President only for cause.  H.R. 1315 would allow the FSOC to review and set aside CFPB regulations.  And H.R. 1667 would hold up the transfer of functions from the Fed, the FDIC, and other agencies to the CFPB, and would keep interim CFPB functions within Treasury, until the President nominates, and the Senate confirms, a Director.  (H.R. 1667 requires Senate confirmation, not a recess appointment.)

President Obama has yet to nominate a Director, but Elizabeth Warren is serving as an advisor and helping set up the CFPB.

The Senate Republicans' move apparently leaves four options for the President: Agree to the proposed changes (and get Senate consideration, though not certain confirmation, for a nominee); make a recess appointment and keep the CFPB as is; negotiate down the Republicans' demands; or do nothing. 

The House legislation would further limit options by requiring Senate confirmation of a Director before the CFPB could get off the ground on its own.  This would force a nomination in order to get full and independent authority for the CFPB.


May 5, 2011 in Appointment and Removal Powers, Congressional Authority, Executive Authority, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 4, 2011

O Canada: The Election and Torture Worries

The re-election this week in Canada of PM Harper and a decisive victory for his Conservative party was presumably not cause for celebration for Craig Scott, Professor of Law at Osgoode Hall.   Scott's article, Will Canada Be an Open Democracy after May 2?, available on ssrn, posits there is a "threat to open democracy in Canada posed by the nearly pathological extent to which secrecy and manipulation of access to the truth has taken over Ottawa and Parliamentary affairs in Canada" under Harper.  




Scott's specific concern should be of great interest to US constitutional scholars.  Scott questions the Canadian government's "policy of transferring detainees in Afghanistan to Afghan intelligence services (notably, the National Directorate of Security or NDS) in full knowledge of the torture practices of those agencies and thus of the risks faced by each transferred detainee."


May 4, 2011 in Comparative Constitutionalism, Current Affairs, Foreign Affairs, International, Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 3, 2011

Obama Made His Guantanamo Bed . . .

Owen Fiss (Yale) argues in the Boston Review that President Obama's pickle--caught between his former policy to close Guantanamo and his desire to try KSM and others in Article III courts, on the one hand, and the congressional ban on using appropriated funds to transfer Guantanamo detainees to the U.S., on the other--is of his own creation.

Fiss argues that President Obama's May 2009 speech at the National Archives (in which he announced that some detainees would get Article III trials while others would get military commissions while yet others would get indefinite detention) and his support for the Military Commissions Act of 2009 (which revised military commission procedures, but still fell short of Article III trials) lined up such that "the Guantanamo closure ceased to be of much importance."  According to Fiss, President Obama's resistance to extending habeas to detainees at Bagram in the Al Maqaleh litigation only underscores this conclusion.

With a Guantanamo closing all but off the table (by the President's own actions), congressional restriction on the use of appropriated funds to transfer Guantanamo detainees to the U.S. was only the final straw.  After the ban,

[t]he options that then remained for Obama were: (a) the continued imprisonment of Khalid Sheikh Mohammed without trial (he had already been incarcerated for more than seven years) or (b) trial before a military commission.  Given the alternative options, Obama chose the one that is, in my judgment, the less constitutionally offensive.  Sympathy for Obama's choice, however, should not obscure his complicity in constructing the alternatives he confronted.

In truth, there was (is) a third option, the one that the administration adopted: Sign the legislation banning the use of funds for transfer, but issue a signing statement that claims that such a ban unconstitutionally encroaches on a core executive function, and move to overturn it.

This third way is emblamatic of President Obama's approach to so many of these issues--detention, military trial, habeas, state secrets, even signing statements: He's made some constitutionally significant changes to Bush administration positions around the edges on each of these, but in the end the refined positions only result in more-or-less the same policies.

But with regard to KSM and some others, President Obama once seemed truly committed to moving forward in Article III courts.  And with regard to Guantanamo, he once seemed truly committed to closing.  Sure, his positions and policies may have contributed to a larger political environment in which closing Guantanamo "ceased to be of much importance."  (And maybe he could have (should have) spent even more political capital in seeking closure and Article III trials.) 

But in the end the congressional ban on transfers was a congressional ban.  (And the most recent version came in the eleventh-hour spending bill negotiated between the White House and Congress to avoid a shut-down, presenting President Obama with no practical option but to sign the measure.)  The ban entirely foreclosed even any marginal change that President Obama might have made (e.g., an Article III trial for KSM) using his third way. 


May 3, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Habeas Corpus, International, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 2, 2011

Gun Show Bans Don't Violate Second Amendment, Ninth Circuit Rules

A three-judge panel of the Ninth Circuit ruled today that a ban on gun shows on municipal property does not violate the Second Amendment.

In the long-running and procedurally dizzying case Nordyke v. King, the panel rejected a categorical application of strict scrutiny to all Second Amendment claims and instead applied a "substantial burden" test to the municipal ban:

Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. . . .

The Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and to bear arms in self-defense. . . .

We are satisfied that a substantial burden framework will prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws.

The panel ruled that the ban on gun shows on municipal property did not substantially burden the Second Amendment right to keep and to bear arms.  (It also ruled that the ban did not violate the First Amendment or the Equal Protection Clause.)

Judge Gould, concurring, would have upheld the ban under a rational basis test.  Here's Judge Gould's formulation:

Drawing from First Amendment doctrine, I would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of country; I would subject incidental burdens on the Second Amendment right (analogous to time, place, and manner speech restrictions) to reasonableness review.


May 2, 2011 in Cases and Case Materials, Fundamental Rights, News, Opinion Analysis, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Court to Hear Challenge to President's Foreign Affairs Power

The Supreme Court today agreed to hear a case involving the justiciability of a dispute over the administration's non-recognition of Jerusalem as the capital city of Israel.  But the Court also instructed the parties to brief the scope of Presidential power to recognize foreign sovereigns.  (See page 3 of the May 2 Order List.)  The case thus gives the Court a rare opportunity to explore the contours of separation-of-powers in foreign affairs and the President's foreign affairs power.

The case arose out of a dispute over a the recorded birthplace of a U.S. citizen born in Jerusalem.  Petitioner's mother asked the State Department to record the birthplace as "Jerusalem, Israel" on the petitioner's Consular Report of Birth Abroad and U.S. passport.  But the State Department regs and policy required it to record merely "Jerusalem" as the birthplace.

The State Department's long-running policy not recognizing Jerusalem as Israel's capital (or even as a city within Israel's sovereign territory) is designed to preserve U.S. neutrality on state sovereignty over Jerusalem, leaving that issue to be decided by negotiation between the parties to the Arab-Israeli dispute.  According to the State Department's assessment, "[a]ny unilateral action by the United States that would signal, symbolically or concretely, that it recognizes that Jerusalem is a city that is located within the sovereign territory of Israel would critically compromise" the peace process.

In 2002, however, Congress enacted, and the President signed, legislation that specifically required the State Department to list "Israel" as the birthplace of any citizen born in Jerusalem, upon the parents' request.  President Bush issued a signing statement construing the provision, Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, as advisory, not mandatory, because it "impermissibly interfere[s] with the President's constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine teh terms on which the recognition is given to foreign states."

The petitioner sued, but both the district court and D.C. Circuit dismissed the case as a nonjusticiable political question.

The Supreme Court today agreed to hear the case, with this further instruction:

In addition to the question presented by the petition [whether the case presents a nonjusticiable political question], the parties are directed to brief and argue the following question: "Whether Section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003, impermissibly infringes the President's power to recognize foreign sovereigns."

The case thus puts front-and-center the question of Presidential authority over foreign affairs when executive policy and action violate plain law.  The case is unusual in that executive action and the law directly and obviously conflict, pitting one source of authority (the President's Article II powers) immediately against another (Section 214) and thus bringing Presidential foreign affairs power into particularly sharp focus.

We might also look for anything the Court has to say about Presidential signing statements that decline to enforce a law based on its intrusion into core areas of executive responsibility. 

The administration argued against review.  In its view, the lower courts properly dismissed the case as a nonjusticiable political question, because under the recognition or nonrecognition of foreign sovereigns is textually committed to the executive branch (under Article II, Section 3, the power to "receive Ambassadors and other Public Ministers.").  Baker v. Carr.


May 2, 2011 in Congressional Authority, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, May 1, 2011

No Backdoor Standing to Challenge Emissions Waiver

The D.C. Circuit ruled on Friday that the Chamber of Commerce and the National Automobile Dealers Association (NADA) lacked associational standing to sue the Environmental Protection Agency to block its waiver of greenhouse gas emissions standards to California and other states.  The court thus dismissed the case.

The plaintiffs' petition challenged the EPA's waiver, which allowed California and other states to adopt and enforce greenhouse gas emissions standards that exceeded the EPA's own standards.  (The Clean Air Act prohibits states from adopting more restrictive standards but allows the EPA to grant waivers.)

But last April, the EPA and the National Highway Transportation Safety Administration jointly issued a national program of greenhouse gas emissions and fuel economy standards for marketing years 2012 through 2016.  The standards grew out of an agreement with the agencies, the State of California, and major automobile manufacturers.  Under the agreement, California amended its regulations to deem compliance with the national standards compliance with its own standards for these years.  (For years 2009 through 2011, California adjusted its standards to make compliance somewhat easier.)

As a condition of the agreement, major auto manufacturers and their trade associations agreed not to sue to contest the new national standards or the California waiver.

But that agreement (alone) didn't stop the Chamber of Commerce and NADA to challenge the regs and waiver on behalf of auto dealers.

The D.C. Circuit nevertheless ruled that they lacked standing.  (The Chamber failed to allege that one of its members was affected and therefore lacked associational standing.  NADA, however, identified allegedly injured members.)  As to the years 2009 through 2011, the court ruled that the NADA failed to alleged with sufficient determinacy that manufacturers would adjust the "mix" of vehicles offered to dealers in waived states (thus affecting the dealers' sales) and that manufacturers would necessarily raise the price of vehicles (also affecting sales).  Part of NADA's problem was that Ford planned to raise its emissions standards on its own, even before the EPA granted California's waiver, thus undercutting any causation and redressibility.  (The two dealers that provided affidavits in support of standing sold Ford cars.)

As to years 2012 through 2016, the court wrote that Ford planned to up its own standards, independent of federal regulation, and that the case was moot.  Why moot?  Because starting in 2012, manufacturers will have to comply with federal standards, and compliance with those standards will also satisfy California under the 2010 agreement.  In other words, manufacturers will have to meet the federal standards, anyway, and their meeting the exact same California standards cannot possible harm dealers.


May 1, 2011 in Jurisdiction of Federal Courts, Mootness, News, Opinion Analysis, Standing | Permalink | Comments (0) | TrackBack (0)