Friday, July 6, 2012
A three-judge panel of the D.C. Circuit ruled today in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board that the appointment of Copyright Royalty Judges, or CRJs, violated the Appointments Clause. The court remedied the violation by reading out of the CRJ statute the CRJs' for-cause removal provision and permitting the Librarian of Congress to remove CRJs at will. The court said that this alone changed CRJs from "Officers" to "inferior Officers" under the Appointments Clause and allowed them to be appointed by the Librarian of Congress (as provided by statute), and without Presidential nomination and advice and consent of the Senate.
The ruling simply modifies a characteristic of the CRJs' job to put them in line with the Appointments Clause (by making them inferior officers) and sends the case back to the lower court for consideration of the merits. It probably doesn't break any significant new ground under the Appointments Clause or separation of powers (even if this kind of ruling is relatively rare). The court looks to both the power of the position and to its removability to determine whether it's an "Office" or "inferior Office," but the court turns it from an "Office" into an "inferior Office" by focusing only on removability. The court's remedy--reading out of the CRJ statute the for-cause removal and leaving CRJs with only at-will removal--takes a page from the Supreme Court's playbook in Free Enterprise Fund v. PCAOB.
The case arose out of a challenge to a CRJ decision on licensing terms between an association of noncommercial webcasters who transmit digital music over the internet in high schools and colleges and owners of the songs' copyrights. CRJs have statutory authority to set these terms, subject to review, discussed below, when the parties can't come to an agreement. The association, Intercollegiate, didn't like the terms set by the CRJ and brought this case arguing that the CRJ is unconstitutional under the Appointments Clause.
That Clause, Article II, Section 2, Clause 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States," but that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Intercollegiate lodged a two-prong attack: First, it argued that CRJs were "Officers" and thus required Presidential nomination and Senate advice and consent (and that their appointment by the Librarian of Congress therefore violated the Appointments Clause); and second, it argued that the Library of Congress wasn't a "Department" (and that therefore Congress couldn't vest CRJs' appointment in its head, the Librarian of Congress, and their appointment was therefore unconstitutional).
The court agreed on the first argument, but disagreed on the second. The court, principally applying Edmond v. United States, ruled that the CRJs were "Officers," not "inferior Officers" the the purpose of the Appointments Clause. It wrote that the CRJs were supervised by the Librarian of Congress and the Registrar, but only as to pure issues of law, leaving the CRJs with vast discretion and authority to set rates on their own. It said that CRJs could only be removed by the Librarian of Congress for misconduct or neglect of duty. And it wrote that the CRJs' rate determinations were not reviewable or correctable by any other officer or entity within the executive branch (although they are reviewable by the D.C. Circuit). Thus it ruled that the three Edmond factors lined up in favor of "Officer," not "inferior Officer."
But the court didn't stop there. Following the Supreme Court's approach in Free Enterprise Fund, the court severed the removability provision for CRJs--the one that allows the Librarian of Congress to fire them only for misconduct or neglect of duty--and read out the "misconduct or neglect of duty" part. The effect was to leave CRJs with no protection against termination--and to allow the Librarian of Congress to remove them at will. This alone, the court ruled, turned the otherwise "Officers" into "inferior Officers." And this allowed Congress to vest their appointment in the Librarian of Congress--exactly what Congress did--and saved them. And: "We further conclude that free removability constrains their power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in [Morrison v. Olson]."
As to Intercollegiate's second argument, the court ruled that the Library of Congress is a "Department" under the Appointments Clause. It ruled that the Library's power "to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case" are associated with executive authority, even if there are some aspects of the Library (like the Congressional Research Service) that make it look like a legislative agency. The Librarian of Congress is the Library's "head," and so the appointment of the now-inferior-officers is valid.
July 6, 2012 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, February 16, 2012
The House Judiciary Committee might not be the most obvious body to conduct oversight of President Obama's recent recess appointments to the NLRB and the CFPB. But that's just what it did in a hearing yesterday, featuring testimony by two former OLCers and a law professor.
The prepared statements of the Honorable Charles Cooper (arguing against authority for the appointments), John Elwood (arguing for), and Jonathan Turley (arguing against) are together a terrific back-and-forth on the constitutional issues and a wonderful complement to the Obama administration's OLC memo concluding that the appointments were authorized.
We've covered this issue from its beginning. Here are some highlights:
- Plaintiffs in ongoing litigation challenge the President's recess appointments to the NLRB in court;
- Republican Senators join that suit as amicus;
- Obama Administration's OLC OKs the recess appointments;
- The President makes the recess appointments in the first place.
Monday, February 6, 2012
A group of 39 Republican Senators said on Friday that they would file an amicus brief in a court case challenging President Obama's recent recess appointments to the Consumer Financial Protection Bureau and the National Labor Relations Board.
We posted most recently on the ongoing litigation brought by the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business against the NLRB. The plaintiffs in that case most recently filed a motion to amend their complaint to include a charge that President Obama's recess appointments to the NLRB were unconstitutional, and therefore that the NLRB didn't have sufficient sitting members to enforce its new rules. It's not clear if the Republicans seek to weigh in on this case, though: It involves only the NLRB, not the CFPB.
Senator John Cornyn (R-TX) released this statement on Friday:
American democracy was born out of a rejection of the monarchies of Western Europe, anchored by limited government and separation of powers. We refuse to stand by as this President arrogantly casts aside our Constitution and defies the will of the American people under the election-year guise of defending them.
Here's the statement from the Republican Senators:
We the undersigned believe that President Obama's January 4, 2012 recess appointments of individuals to lead the Consumer Financial Protection Bureau and National Labor Relations Board were unprecedented and unconstitutional. We intend to jointly file an amicus brief challenging the constitutionality of President Obama's appointments to the National Labor Relations Board and Consumer Protection Financial Bureau.
Wednesday, January 18, 2012
The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.
In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules. From the memorandum in support of the motion:
The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . . The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void. As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes. The Supreme Court has declared that the Board lacks authority to act with only two members. New Process Steel, L.P. v. NLRB.
Thursday, January 12, 2012
The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate. We most recently posted on the appointments here.
Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.
The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments. The Office said no, and therefore the President may use his recess appointment power.
The OLC took it in a two-step. First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess. Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question. This is relatively uncontroversial.
Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted." Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."
This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause. The memo explains:
Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess. This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.
Op. at 9, n. 13. In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent). (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15. What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)
The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.
Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."
The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).
Sunday, January 8, 2012
President Obama's recess appointments last week of Richard Cordray to head the Consumer Financial Protection Board and three new members of the National Labor Relations Board have come under fire for violating a 3-day rule. That is, opponents claim, the period between the Senate's pro forma sessions this month and last is less than three days, and therefore is not a "recess" under the President's recess appointment power. In short, they say, because the Senate is not in "recess," the President lacks authority to appoint without Senate confirmation.
But there's nothing in the Constitution that defines a "recess" as three days or more (or as any other period). The (scant) textual support for opponents' claim comes from Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:
Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
Based on this Clause, the Justice Department wrote in its brief in Mackie v. Clinton (D.D.C. 1993):
If the recess here at issue were of three days or less, a closer question would be presented. The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. . . . It might be argued that this means that the Framers did not consider one, two or three day recesses to be constitutionally significant. . . .
Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days. Whatever number of days is deemed required, that number would of necessity be completely arbitrary.
Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993), Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26 (emphasis added). (Note the difference in language: The Adjournment Clause uses "adjourn"; the Recess Appointment Clause in Article II uses "Recess.")
Thus Article I, Section 5 doesn't plainly require, and the Justice Department's brief doesn't acquiesce to, a 3-day rule. In fact, the President has made recess appointments during recesses of three days or less between sessions at least twice--when President Truman appointed Oswald Ryan to be a member of the Civil Aeronautics Board on January 1, 1949, during a three-day recess, and when President Theodore Roosevelt appointed 160 mostly military officers during a several-hour recess. (In the last 30 years, the shortest recess periods during which a President made a recess appointment were 11 and 10 days: President Reagan made a recess appointment during an 11-day intersession recess, and President Clinton made a recess appointment during a 10-day intrasession recess.) See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions.
Despite the lack of support for a 3-day rule, both parties in the Senate in recent years have sought to structure Senate recesses around it, and ran pro forma sessions every three days or less in order to avoid a recess of more than three days and thus, according to their view, deny the President an opportunity to recess appoint. Republicans went a step further this summer, when one group of Republicans from the Senate and another group from the House both wrote to House Speaker Boehner to urge him not to pass any House resolution that would permit the Senate to go into recess for more than three days (under the Adjournment Clause).
What with the obvious political motivations and the pro forma (and not real) sessions, some have claimed that President Obama had authority to recess appoint even in a recess of less than three days. But in truth we need not go so far, because there's only very weak textual support for a 3-day rule, the Justice Department has not acquiesced in a 3-day rule, and past practice cuts against such a rule.
The lack of a 3-day rule wouldn't leave Congress without appropriate checks. It still has the power of the purse, it still has oversight authority, and the Senate still has its advise-and-consent role for non-recess appointments (including those recess appointments that expire and then come up for Senate confirmation, assuming the President doesn't re-recess-appoint, which the President may do). And, of course, Congress can move to change the law.
This last course seems most appropriate here. Senate Republicans never objected principally to Cordray; instead, they held up his confirmation because they objected to the CFPB. The cleanest, most transparent way to change the CFPB, of course, is to try to change the CFPB.
The Congressional Research Service has done some excellent work (as usual) on recess appointments. Check out these:
- Recess Appointments: Frequently Asked Questions
- Recess Appointments Made by President George W. Bush
- Recess Appointments: A Legal Overview
- Recess Appointments of Federal Judges
- Judicial Recess Appointments: A Legal Overview
Thursday, November 17, 2011
The Arizona Supreme Court issued an order today finding the controversial removal of Colleen Mathis, the Chair of the Arizona Independent Redistricting Commission, by Governor Jan Brewer (pictured right) was unconstitutional.
Here is the entire order:
Having considered the filings in this matter by the petitioner, the intervenor, the respondents, and the amici curiae, and the arguments of counsel,
1. The Court accepts jurisdiction of the petition for special action, having concluded that it has jurisdiction under Article 6, Section 5(1) of the Arizona Constitution;
2. The Court concludes that the issues presented in this matter are not political questions and are therefore justiciable. See Brewer v. Burns, 222 Ariz. 234, 238-39 ¶¶ 16-22, 213 P.3d 671, 675-76 (2009);
3. The Court concludes that the letter of November 1, 2011, from the Acting Governor to the intervenor Colleen Mathis does not demonstrate “substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office” by the intervenor Mathis, as required under Article 4, Part 2, Section 1(10) of the Arizona Constitution;
Therefore, the Court grants the relief requested by the intervenor Mathis and orders that she be reinstated as chair of the Independent Redistricting Commission.
The Court in due course will issue an opinion more fully detailing its reasoning in this matter.
Article 4, Part 2, Section 1(10) of the Arizona Constitution provides "After having been served written notice and provided with an opportunity for a response, a member of the independent redistricting commission may be removed by the governor, with the concurrence of two-thirds of the senate, for substantial neglect of duty, gross misconduct in office, or inability to discharge the duties of office."
“The Arizona Constitution provides that the Governor has direct oversight of the Independent Redistricting Commission, as well as the ability to remove any member due to "substantial neglect of duty‟ or "gross misconduct in office.‟ I invoked that authority today with my decision to remove IRC Chairwoman Colleen Mathis, and I‟ve called the Arizona Legislature into Special Session so that the State Senate may concur with this removal, in accordance with the Constitution.
“I recognize that my decision will not be popular in some quarters. I certainly did not reach it lightly. However, the conduct of the IRC – led by Chairwoman Mathis – has created a cloud of suspicion that will not lift. A flawed redistricting process has resulted in a flawed product. Just as disturbing, the public does not have confidence in the integrity of the current redistricting process. As Chairwoman of this Commission, the buck stops with Ms. Mathis.
“Today‟s action isn‟t the easy thing, certainly. But I‟m convinced it‟s the right thing. I will not sit idly-by while Arizona‟s congressional and legislative boundaries are drawn in a fashion that is anything but Constitutional and proper. Arizona voters must live with the new district maps for a decade.
“I urge the Senate to act quickly so that a newly-constituted Redistricting Commission may complete its duties in time.”
The dispute seems to be a classic one in which the Executive removed an official (and was supported by the legislature) based upon a disapproval or disagreement rather than the constitutionally required good cause standard.
More on the Arizona Supreme Court's full opinion when it appears.
Friday, August 26, 2011
The White House recently posted this info-graphic (below) on the administration's successes in judicial nominees and on congressional footdragging. According to the stats, President Obama has seen only 62.6% of his nominees confirmed (compared with 86.8% for President George W. Bush, 84.2% for President Clinton, and 77.9% for President George H.W. Bush). Obama circuit court nominees have waited on average 151 days between their vote in the Senate Judiciary Committee and confirmation (compared with 29 days for President Bush's nominees); district court nominees have waited on average 103 days (compared with 20 days for President Bush's nominees). President Obama nominated 20 judges who passed the Judiciary Committee but have yet to receive a vote in the Senate.
As a result, one of ten federal judgeships is vacant, and the wait for civil trials is increasing. According to Chief Justice Roberts (in his 2010 year-end report on the federal judiciary): "Vacancies cannot remain at such high levels indefinitely without eroding the quality of justice that traditionally has been associated with the federal judiciary."
Check out JudicialNominations.org for more.
Tuesday, July 19, 2011
President Obama nominated former Ohio attorney general Richard Cordray on Monday to lead the Consumer Financial Protection Bureau. But congressional Republicans continue to say they'll hold up any nomination until the nascent CFPB undergoes fundamental changes. (They also object to Cordray, who, some say, has been too tough on banks and their lending practices.) Under the Dodd-Frank Wall Street Reform and Consumer Protection Act passed last year, the Bureau is set to receive its full regulatory powers on Thursday, July 21. But a lack of a confirmed leader will hamper its regulatory efforts.
Among the key changes that Republicans are demanding:
- Replace the single Director with a Board. Republicans object that the Bureau has just one Senate-confrimed appointment--the Director--and that the Director has too much regulatory power under the Act. A board would diffuse power.
- Take the CFPB's funding out from under the Federal Reserve and put it directly through the regular appropriations process. Republicans say this will mean greater transparency and accountability for the Bureau.
- Allow the Financial Stability Oversight Council to set aside or to stay any regulation issued by the CFPB under certain circumstances. This would mean that another body has veto power over the CFPB's actions.
While the changes might lead to a Bureau that is more answerable to Congress, they would also undercut the purposes of the Bureau: to ensure that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive.
The Republicans' tactic--holding up any nomination until the Bureau changes fundamentally--is an effective and fully constitutional check on the administration (even if it seems to be refighting a lost legislative battle in Appointment Clause clothes). But it can only go so far. President Obama has said that he will fight any changes to the CFPB. The Bureau is set to receive its full regulatory powers on Thursday. And President Obama could always make a recess appointment in August, the next scheduled congressional break--a move advocated by some Democrats. In other words, the Republicans' tactic may hold up the work of the Bureau, but it (alone) can't change it.
Saturday, July 16, 2011
Two days after Elizabeth Warren, the interim Consumer Financial Protection Bureau chief, appeared before the House Oversight and Governmental Reform Committee in a testy hearing on the CFPB, the White House has apparently decided against nominating Warren to lead the CFPB, according to WaPo.
Recall that congressional Republicans most recently demanded dramatic changes to the CFPB before they would confirm any nominee, leaving President Obama with a handful of options, including a recess appointment. But with the CFPB set to gain its full powers next week, under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 that established it, the lack of a permanent leader, and the ongoing disputes about the structure and leadership of the CFPB, will hamper its efforts.
Monday, July 11, 2011
President Obama issued an Executive Order today designed to "streamlin[e], improv[e], and eliminat[e] regulations" of independent regulatory agencies, including the Consumer Product Safety Commission, the Federal Trade Commission, the Federal Communications Commission, and the Securities and Exchange Commission. The EO is directed to get independent agencies on board with regulatory reforms that the administration required in its earlier EO, issued in January. (OIRA Chief Cass Sunstein told the House Energy and Commerce Committee in June that no independent agencies had submitted a plan under the earlier EO.)
The EO says that each independent regulatory agency within 120 days
should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and processes, under which the agency will periodically review its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.
The White House touts the EO as an "historic initiative" that will stimulate job creation and promote economic growth.
Like the January EO, the new EO leaves plenty of wiggle room ("consistent with law and reflecting its resources and regulatory priorities") and leaves the review and plan to the agencies themselves. But in contrast to the mandatory language in the January EO, the new EO, aimed exclusively at independent agencies, appropriately uses hortatory language ("should develop and release to the public a plan"), stepping back from directing the independents.
For a very recent argument that the President lacks directive authority even for non-independent agencies, check out Prof. Bob Percival's (U. Md.) forthcoming piece in the Fordham Law Review, Who's in Charge? Does the President Have Direct Authority Over Regulatory Decisions?
[Image: Man Controlling Trade, Model, Federal Trade Commission Building, Smithsonian Institution]
Sunday, July 10, 2011
The Office of Legal Counsel released an opinion last month that concluded that congressional extension of the term for FBI Director Robert S. Mueller III does not violate the Constitution.
Director Mueller was nominated by President Bush and unanimously confirmed by the Senate. He was sworn in on September 4, 2001. But the Director position only has a ten-year life; Mueller's appointment would thus expire on September 4, 2010. President Obama proposed extending the term by two years in May; Senator Leahy introduced legislation (now pending in the Senate) that would do just that.
The OLC opined that Congress has authority to enact Leahy's bill under Article I, Section 8, Clause 18, which authorizes Congress to establish offices and fix their terms:
To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation--all except as otherwise provided by the Constitution.
According to the OLC, the extension is just an extension of Mueller's original appointment by President Bush; it's not a new congressional appointment--an action that would surely unconstitutionally interfere with the President's authority under the Appointments Clause. (The Appointments Clause vests the President with authority to nominate officers and, with the advice and consent of the Senate, to appoint them.)
The OLC for one brief, seven-year period (1987 to 1994) did hold the view that congressional extensions for incumbent officers were new appointments, thus violating the Appointments Clause. But in 1994 the Office re-adopted the traditional view, "that Congress, by extending an incumbent officer's term, does not displace and take over the President's appointment authority, as long as the President remains free to remove the officer at will and make another appointment." Op. at 2. But under the traditional view, Congress may not extend the term of those offices with protection above at-will employment, because such an extension would mean that the President couldn't replace the incumbent with a nominee of his or her choice. (The courts do not seem to distinguish by tenure-protection and have upheld congressional extensions even of protected offices, such as bankruptcy judges. See, e.g., In re Benny, 812 F.2d 1133, 1141 (9th Cir. 1987).)
The OLC interprets the FBI Director's appointment not to restrict the President's authority to fire the incumbent, and therefore a congressional extension does not violate the Appointments Clause. (It of course wouldn't violate the Appointments Clause under the Ninth Circuit's approach in In re Benny either.)
Sunday, July 3, 2011
The Senate voted 79-20 in favor of legislation last week that would streamline the appointment process for 170 of the 1,200 executive branch positions that currently require Senate confirmation. The measure also would establish a Working Group on Streamlining Paperwork for Executive Nominations, which would, well, make recommendations for how to streamline paperwork for executive nominations. We first reported on the legislation, S. 679, here.
The bill passed overwhelmingly in the Senate, but still faced vocal opposition. We reported on David Addington's objections here; he argued that the measure shifts power from the Senate to the President and curtails one of Congress's key oversight tools. Other opponents took a different tack, represented by a Washington Examiner editorial, and argued that the bill only addresses a symptom of a ballooning federal bureaucracy--a larger problem that goes unaddressed by the legislation.
On the other side, Brookings Institute scholars E.J. Dionne, Jr., and William Galston took a look at the politics of the problem--and possible solutions--in their December 2010 report, A Half-Empty Government Can't Govern: Why Everyone Wants to Fix the Appointments Process, Why it Never Happens, and How We Can Get It Done.
As we wrote here, the positions exempted from Senate confirmation under the legislation are "inferior officers" (or even in some cases presidential advisors or employees). The Appointments Clause says that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." Article II, Section 2. The inferior officers covered in S. 679 were tagged for Senate confirmation by law, but not by the Constitution; and so S. 679 only removed them from the constitutionally unnecessary, but practically burdensome, requirement of Senate confirmation in order to enhance the efficiency of the appointment process overall. (The Constitution contains no formal requirements for appointment of presidential advisors or employees that are neither officers nor inferior officers.) In other words, the bill only takes a set of positions that never needed Senate confirmation out of the class of positions that do need it.
The bill still needs House approval, but it's not clear how it will be received there.
Friday, May 6, 2011
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 JudicialNominations.org.
Thursday, May 5, 2011
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.
Monday, April 25, 2011
The Senate Committee on Homeland Security and Governmental Affairs earlier this month reported out S. 679, a bill to reduce the number of Senate-confirmed positions in the executive branch and to streamline the appointment process. The NYT reported on the bill here. (Thanks to Timothy Peterson for the tip.)
The positions that would be exempted from Senate confrimation are largely assistant secretaries and positions at about that level. The bill would also create a task force to reduce the paperwork requirements for executive appointments.
The bill apparently enjoys bipartisan support, but some argue that it would do away with an important check on presidential power. Here's David Addington, former counsel to former VP Dick Cheney, writing on the Heritage Foundation web-site:
The Framers of the Constitution did not give the President the kingly power to appoint the senior officers of the government by himself. . . .
The Congress should not decide by law to relinquish the Senate role in filling a federal office and leave filling the office to the President alone, unless the Congress concludes for each such office that the Senate's checking influence on the President is of no value because the office is of little or no authority or consequence. Generally, each time Congress by law removes the Senate from a role in the appointment to a federal office, the institutional influence of the Senate diminishes by a marginal amount and the influence of a President increases by a marginal amount. If the office is of little or no authority or consequence, the shift in influence may be immaterial, but if the office wields power that affects the American people, the Congress should not abdicate the Senate checking function.
Addington's point is overstated. The offices exempted under S. 679 are inferior offices, and Congress can vest their appointment in the President alone under the Appointments Clause. It's true that this means Congress loses, and the President gains, a little power. But that's power that resided in Congress only by virtue of legislation. The Appointments Clause in the Constitution, which reflects the balance struck by the framers, allows Congress to vest appointment of these positions in the President. Thus if anything, the bill would move to restore that original power balance.
Saturday, April 16, 2011
President Obama issued a signing statement yesterday on H.R. 1473, the FY 2011 budget bill recently negotiated between the White House and Congress that avoided a shut-down and will keep government operating through the fiscal year.
President Obama took issue with two provisions in the bill: the restriction on use of funds to transfer Guantanamo detainees to the U.S. (thus preventing trials in Article III tribunals); and the restriction on use of funds to pay salaries of presidential advisors, the so-called "czars."
The former restriction isn't new, and the administration previously registered its constitutional objections to the restriction. In short, the administration says (correctly) that Congress can't interfere with its ability to execute the law by trying detainees for violation of U.S. law in regular U.S. courts. President Obama's statement yesterday reiterates the core objection to the restriction on transfers and says that the administration will work to change it (while respecting it in the meantime).
The latter restriction--the restriction on use of funds to pay for presidential advisors--is new. Section 2262 of the bill reads as follows:
None of the funds made available by this division may be used to pay the salaries and expenses of the following positions:
(1) Director, White House Office of Health Reform.
(2) Assistant to the President for Energy and Climate Change.
(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.
(4) White House Director of Urban Affairs.
The restriction raises serious separation-of-powers concerns. On the one hand, opponents claim that these positions are "officers" that require Senate advice and consent (confirmation) under the Appointments Clause. Without Senate confirmation, appointments to these positions are unconstitutional. On the other hand, many argue that these positions are merely presidential advisors that do not require Senate confirmation, and that congressional restrictions on the President's authority to make these appointments violates core Article II functions. In between these two poles: The positions may be "inferior officers," and then the debate is whether Congress has properly vested authority to appoint them under the Appointments Clause.
We explored these questions with regard to the so-called "Pay Czar" here, here, here, and here (this last post linking to the Federalist Society on-line debate in which I joined Martin Flaherty and Michael McConnell).
President Obama's signing statement raises and explains his constitutional objections in some detail, consistent with his commitment to issue such statements only sparingly, and to explain them well when he does it. He also points out that his statements on this legislation are necessary because of the nature of the bill: It had to get his signature on Friday to keep the government in business. A veto would have shut the government down until the White House and Congress could have worked these issues out. (President Obama has used constitutional signing statements much less frequently, and much less aggressively, than his predecessor. But he's still used them.)
The Bill's urgency and the President's transparency don't mitigate the core separation-of-powers problem in constitutional signing statements themselves. When the President signs legislation, but declines to abide by pieces of it on constitutional grounds, that looks an awful lot like a line-item veto. If so, the signing statement itself runs up against the constitutional requirements for bicameralism and presentment--that the same piece of legislation has to pass both houses and receive the President's signature--no matter how necessary or well explained it is.
Saturday, April 9, 2011
Sean Fielder and Jeffrey Bell of the American Principles Project wrote last week in the Wall Street Journal that the Federal Reserve is too independent--but not too independent from the President (a conlawprof's usual worry), rather too independent from Congress. (Thanks to Jon Gutek for the tip.)
Fielder and Bell argue that the Fed's problematic independence arose when we abandoned the gold standard (in favor of mere "statutory supervision" of the Fed). They explain:
Statutory supervision of government bureaucracies is usually workable because Congress maintains the power of the purse. But the Fed, which can print money, has no budget constraint. Its profit and loss statement doesn't matter because, unlike every other legal entity, its liabilities are irredeemable. Not having a real budget means that the Fed doesn't have to compete with anyone for scarce resources.
Their answer is to bring back the gold standard, or at least to let gold compete with federal reserve notes.
The argument in places like Utah--which has moved to legalize gold and silver as legal currency in the state--is that gold and silver will crowd out devaluing federal reserve notes, because people, businesses, and banks will see that gold and silver, unlike fed notes, hold their value. Fielder and Bell say that this competition will "concentrate the minds of the Federal Reserve Board on keeping inflation under control."
Thursday, April 7, 2011
The Senate Judiciary Committee today ordered reported the nominations of five nominees to the federal bench, all by voice vote, with one exception: Goodwin Liu (Boalt Hall), nominee to the Ninth Circuit, was ordered reported by a roll call along party lines, 10 to 8. (The Committee has approved Liu three times now within a year. Get the full details and history at confirmgoodwinliu.com, a blog tracking Liu's nomination. For more on all federal judicial nominations, check out judicialnominations.org.)
Republicans continue to oppose Liu's nomination based on his 2006 testimony against the confirmation of Samuel Alito to the Supreme Court and their concerns that he would be an "activist" judge. They're also likely concerned that Liu, if confirmed now, could later get a nomination to the Supreme Court. Republican Senator Kyl said today that there's a "definite possibility" of a filibuster. If so, full Senate confirmation seems unlikely: None of the 48 Senate Republicans has publicly supported Liu.
In the same meeting today, the Committee ordered reported the Sunshine in the Courtroom Act, S. 410, which would allow (but not require) federal courts, including the Supreme Court, to permit recording, broadcasting, and televising proceedings.
Monday, December 6, 2010
The Office of Legal Counsel released a memo late last month opining that the "Pay Czar" is an inferior officer and therefore not subject to Senate advice and consent under the Appointments Clause. The upshot: The Pay Czar is constitutional.
The Pay Czar--or, formally, the Special Master for Troubled Asset Relief Program Executive Compensation--was created by the Treasury Secretary pursuant to the Emergency Economic Stabilization Act and the Troubled Asset Relief Program, or TARP. Under the TARP legislation, the Secretary had the power to set executive compensation and corporate governance standards for TARP fund recipients. The Secretary issued interim final rules on June 15, 2009, and established the office of the Pay Czar to set and implement standards.
The Pay Czar came under fire last year from those who claimed that the Obama administration was governing under the table with secretive appointed "czar" positions. Some also came under fire as violating the Appointments Clause. That Clause reads as follows:
[The President] . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.
Officers thus fall into two categories: Principal officers (subject to Senate advice and consent); and inferior officers (subject to appointment as Congress may authorize). If the Pay Czar is a principal officer, the appointment violated the Appointments Clause (because there was no Senate advice and consent). If, however, the Pay Czar is an inferior officer, and if the TARP legislation reasonably provided for its appointment, there's no Appointments Clause problem (because inferior officers do not require Senate advice and consent).
The Supreme Court set out factors for determining when an officer is a principal officer in Morrison v. Olson and considerations for this determination under Edmond v. United States. The OLC opined that the Pay Czar is an inferior officer under either approach. Under Morrison, the OLC opined that the Pay Czar is subject to at-will removal by the Secretary, the office's duties are limited and defined, the jurisdiction is limited to TARP recipients' executive compensation and corporate governance, and the tenure stops when TARP funds are repaid.
Under Edmond, the OLC opined that the Pay Czar is removable at-will by the Secretary, and Pay Czar decisions are reviewable by the Secretary. (The OLC wrote the longest on this latter consideration. The interim rule makes the Pay Czar's decisions "final and binding," suggesting that the Secretary cannot review them. But the OLC, looking at Department interpretation of the rules and precedent, opined that the Secretary could review them.)