Thursday, October 31, 2013

Senate Republicans Successfully Filibuster Millett Nomination for D.C. Circuit

Senate Republicans today successfully filibustered Patricia Millett's nomination for the D.C. Circuit.  The Senate voted 55-38 to end debate and proceed to a vote on the nomination, but the body needed 60 votes under Senate rules.  The Republicans' move blocks the nomination, unless and until the Senate can muster 60 votes, or changes its rules.

Millett would fill one of three vacancies on the court.  The Republicans' move means that this exceptionally important court--often called the second most important court in the country--continues to operate three shy of a full bench.  The move also means that the court continues to be dominated by judges appointed by Republican presidents (despite Republicans' argues to the contrary).  (There's an even split among the active judges, but judges appointed by Republicans are dominant among the semi-retired.  Those semi-retired judges still sit and help decide cases.)  Finally, the move means that a supremely well qualified nominee who receieved bipartisan praise won't get the nod from the Senate, despite receiving a majority to proceed to a vote.

No word yet whether Democrats will use the nuclear option and try to change the filibuster rule to bypass Republican obstruction, or whether leaders will come up with some other way to proceed.

UPDATE: Here's a link to the roll-call (h/t Glenn Sugameli).

 

October 31, 2013 in Appointment and Removal Powers, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 30, 2013

Parties Wrangle Over D.C. Circuit Nominee

Democrats are preparing for a Republican filibuster of D.C. Circuit nominee Patricia Millett tomorrow and threaten to use the "nuclear option" when it happens, according to the NYT and BLT.

Millett's nomination comes before the full Senate tomorrow, and there's indication that Republicans could filibuster.  If so, Senator Leahy is quoted in the NYT, "I think that the pressure on changing the [cloture] rules would be almost insurmountable."  Democrats will have 55 votes in the Senate tomorrow, after Cory Booker, newly elected Democrat of New Jersey, is seated.  That means that they need to pick up five Republicans to close debate.

Meanwhile, the House Judiciary Committee joined the fray, holding a hearing yesterday titled, "Are More Judges Always the Answer?"  The thrust of the hearing--and one of the Republicans' argument against Millett's appointment: the D.C. Circuit doesn't do enough work to justify filling the seat.  (There are currently three vacancies on the court.)

Republicans also argue that President Obama is trying to "stack" the court with judges who will be friendly to his regulatory agenda.  (The court is now evenly split between judges appointed by Republican presidents and judges appointed by Democats.)

October 30, 2013 in Appointment and Removal Powers, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring 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."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 16, 2013

Toobin on Recess Appointments and Noel Canning

Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame.  That is, if the Court strikes President Obama's recess appointments to the NLRB.  (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.)  Toobin explains:

If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities.  Forty senators will have the power to stop an agency from functioning.  Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory.  They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either.  The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.

The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government.  As with so many of these struggles during the Obama era, the outcome is far from certain.

October 16, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

Supreme Court to Review Recess Appointment Authority

The Supreme Court today agreed to review the President's recess appointment authority.  The Court granted cert. to the D.C. Circuit and agreed to hear an appeal in Noel Canning v. NLRB, the case testing the President's authority under the Recess Appointments Clause to appoint members to the NLRB during an intra-session recess in the Senate.  Our post on the D.C. Circuit's ruling--holding that the President lacks authority--including links to prior posts, is here.  

Recall that the D.C. Circuit ruled President Obama's appointments to the NLRB unconstitutional.  The Third Circuit followed suit.

The Supreme Court's move today gives the high court an opportunity to weigh in.

SDS

June 24, 2013 in Appointment and Removal Powers, Cases and Case Materials, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 4, 2013

White House Nominates Three to D.C. Circuit

President Obama made good today on his earlier plan to simultaneously nominate three people to the D.C. Circuit.  The nominations are designed to fill the three vacancies on the court and to force Republicans' hand on judicial nominations.  The White House promises an aggressive push to get the three confirmed.  The tactic is designed to put a finer public point on Republican foot-dragging on judicial nominations, should the party decide to hold up these three nominees.  Roll Call reports here.

The three are: Patricia Ann Millett; Cornelia T.L. Pillard; and Robert Leon Wilkins.

Meanwhile, the Republican line is that the D.C. Circuit is underworked--and that it doesn't need to fill the three vacant seats.  Thus Senator Grassley introduced S. 699, which would eliminate the three vacant seats from the D.C. Circuit and reallocate two of them--one to the Second Circuit, and one to the Eleventh Circuit.  

SDS

June 4, 2013 in Appointment and Removal Powers, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 28, 2013

White House Reacts to Republican Obstruction of Judicial Nominations

President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo.  The nominations would fill the three remaining vacancies on the 11-member court.  The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.  

The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans.  Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).  

Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words).  According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.

The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit.  If it could ever get out of the Senate, it would surely meet a veto.  

The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.

SDS

May 28, 2013 in Appointment and Removal Powers, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, May 20, 2013

Third Circuit Invalidates President Obama's NLRB Recess Appointment

A divided three-judge panel of the Third Circuit last week invalidated President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board.  The ruling, National Labor Relations Board v. New Vista Nursing and Rehabilitation, marks the second time a federal appeals court invalidated President Obama's "intrasession" recess appointments.  The first came earlier this year from the D.C. Circuit, in the Noel Canning case.  We posted on that case when it came down, and more recently when the government filed for cert. review at the Supreme Court.

The Third Circuit, like the D.C. Circuit before it, ruled that "the Recess of the Senate" in the Recess Appointments Clause refers only to the period between sessions of the Senate, or intersession breaks, and not breaks while the Senate is in session, or intrasession breaks.  Because President Obama appointed Becker while the Senate was holding pro forma sessions every three or four days--during intrasession breaks--the court said that Becker's appointment was invalid.  And because Becker's appointment was invalid, the NLRB lacked a quorum to issue a bargaining order to a New Jersey nursing facility that was at the center of the dispute.

Judge Greenaway, Jr., wrote a lengthy dissent, stating that "[t]he Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years."

As we said, the government has already filed its cert. petition in the Noel Canning case.  Now with this ruling, the Court is all but certain to take the question up and issue a final ruling on "intrasession" recess appointments.

SDS

May 20, 2013 in Appointment and Removal Powers, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 8, 2013

D.C. Circuit Strikes NLRB Notice-of-Rights Rule

A three-judge panel of the D.C. Circuit struck the enforcement mechanisms for the NLRB rule requiring employers to post a notice of employee rights.  The ruling yesterday in National Association of Manufacturers v. NLRB means that the NLRB rule is invalid.

The case strikes a blow at the NLRB effort to educate employees on their workplace rights, in an era where union membership is way down (7.3% of the private workforce) and where more and more workers enter the workplace without knowledge of their rights.

The case arose after the NLRB promulgated a rule that required employers to post a notice of employee rights in the workplace.  Violation of the rule came with an unfair labor practice under Section 8(a)(1) of the NLRA.  (It also came with a suspension of the running of the six-month period for filing any unfair labor practice charge, and it constituted evidence of unlawful motive in a case in which motive is an issue.)

The rule says,

[a]ll employers subject to the NLRA must post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures . . . .

29 C.F.R. Sec. 104.202(a).  (Here's the single-page version of the notice poster.)  But the plaintiffs argued that this violated the NLRA and free speech.  The court agreed, concluding that the rule violated Section 8(a), which says:

The expressing of any views, arguments, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this [Act], if such expression contains no threat of reprisal or force or promise of benefit.

The court said that "[a]lthough Section 8(a) precludes the Board from finding noncoercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board's rule does both."  

The court rejected the NLRB's argument that the required post is the Board's speech, not the employer's speech.  Comparing Section 8(a) to First Amendment law, the court said that it didn't matter: dissemination of messages gets the same free speech treatment as creation of messages.

The court also rejected the NLRB's argument based on UAW-Labor Employment & Training Corp. v. Chao, (D.C. Cir. 2003), which upheld President Bush's executive order requiring government contractors to post notice at their workplaces informing employees of their rights not to be forced to join a union or to pay union dues for nonrepresentational activities.  (The plaintiffs in that case argued only that President Bush's EO was preempted by the NLRA; they lodged no First Amendment claim.)  The difference, according to the court: there was no prospect in UAW of a contractor's being charged with an unfair labor practice for failing to post the required notice.  

(Two members of the panel, Judges Henderson and Brown, would have gone farther and ruled that the NLRB lacked authority to pomulgate the posting rule.)

The court addressed the preliminary issue whether the NLRB had a quorum when it promulgated the rule, in light of its recent ruling in Noel Canning v. NLRB that President Obama's recess appointments were invalid.  But the court held that the NLRB had a quorum when the rule was filed with the Office of the Federal Register (the relevant time), even if it didn't have a quorum when the rule was published.

SDS

May 8, 2013 in Appointment and Removal Powers, Cases and Case Materials, First Amendment, News, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Friday, April 26, 2013

Government Seeks Supreme Court Review of Recess Appointment Power

The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.

Recall that the D.C. Circuit ruled that they didn't.  (Here's our coverage of the lower court ruling, with links to resources.)  That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess.  The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid. 

The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess. 

It's a good bet the Court will take this.  There's a circuit split, and the stakes are high.  As the government explains:

[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history.  It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.

Petition at 11-12.

SDS

April 26, 2013 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

Epps Takes on Originalism in Recess Appointment Decision

Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure."  His evidence?  Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.

Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:

For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session.  But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.

Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush.  Appointees include Alan Greenspan and Lawrence Eagleburger. 

Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications.  The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.

SDS

April 12, 2013 in Appointment and Removal Powers, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 10, 2013

Senate Judiciary Committee Takes Up Srinivasan Nomination

The Senate Judiciary Committee begins hearings today (2:30 EDT) on President Obama's nomination of Principal Deputy Solicitor General Sri Srinivasan to the D.C. Circuit.  The Committee web-cast is here.

The nomination has gotten plenty of attention.  Jeremy Peters at the NYT reports here; Jeffrey Toobin profiles Srinivasan in the New Yorker here; and Adam Serwer has a profile in Mother Jones here.  

SDS

April 10, 2013 in Appointment and Removal Powers, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 9, 2013

President Nominates Three to NLRB

President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans.  The President nominated two Democrats to full terms in February.

The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalidAccording to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."

SDS

April 9, 2013 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

Is the Violence Against Women Act Unconstitutional?

The Senate this week reauthorized the Violence Against Women Act and added a provision authorizing Native American Indian tribal courts to try non-Indians for acts of violence against Native American tribal members.  The provision, Section 904 of the Senate-passed VAWA, caught the attention of some on the right, who claim it's unconstitutional.

The Heritage Foundation outlined the argument in a post today.  According to the post, congressional extension of tribal jurisdiction to non-Indians violates the Appointments Clause and the life-tenure provision in Article III.  The reason, according to the post, is simple: tribal judges aren't appointed pursuant to the Appointments Clause, and they don't meet the requirements of Article III.  They therefore can't mete out punishment against non-Indians.

To unpack this, it helps to understand the debate between congressionally delegated power to tribes versus inherent power of tribes.  Advocates of the congressionally-delegated view say that tribes operate pursuant to congressional delegation, and therefore the full force of the Constitution applies.  Advocates of the inherent power view say that tribes have inherent sovereignty and authority on their lands, and that they operate pursuant to their own rules and any overriding congressional requirements.

The Supreme Court has weighed in, but barely.  It ruled in Oliphant v. Suquamish Indian Tribe that tribal courts lacked inherent authority over non-Indians, but it suggested that Congress could extend their authority to reach non-Indians.  In United States v. Lara, the Court ruled that Congress has authority to relax the restrictions on a tribe's inherent sovereignty to allow it to exercise inherent authority to try non-member Indians.  

The Heritage Foundation piece takes the congressionally-delegated-power view.  This means, as the piece argues, that the Constitution applies with full force over the tribal courts, and that if they exercise jurisdiction over non-Indians, they, like regular Article III courts, have to meet constitutional requirements.  (You might ask why the piece didn't argue that they similarly have to meet due process requirements.  The reason: Congress extended due process protections in the earlier Indian Civil Rights Act and in the VAWA itself.)

The Senate took the inherent-authority view.  Thus Section 904 of the VAWA says, "the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction over all persons."  (Emphasis added.)

Which view is right?  Well, the Court has suggested in both Oliphant and Lara that the inherent-authority view is correct.  But that view might not get five Justices on the current Court.  So we're not sure how the Court would rule.

The Congressional Research Service has a terrific report on the issue here.

SDS

February 14, 2013 in Appointment and Removal Powers, Congressional Authority, Courts and Judging, Fundamental Rights, News | Permalink | Comments (0) | TrackBack (0)

Friday, January 25, 2013

D.C. Circuit Strikes President Obama's Recess Appointments to NLRB, Tees Case for Supreme Court

The D.C. Circuit ruled today in Noel Canning v. NLRB that President Obama's three recess appointments to the NLRB last year, on January 4, 2012, were invalid under the Recess Appointments Clause, and that the NLRB therefore lacked a quorum to issue its decision finding that the petitioner violated the NLRA.  The ruling tees the issue up for likely Supreme Court review.

We've previously posted on President Obama's recess appointments and court challenges herehere, and hereHere's our post on the OLC memo concluding that President Obama had authority to make the appointments.

The case arose after President Obama appointed three people to the NLRB on January 4, 2012, when the Senate was operating under a unanimous consent agreement that provided that it would meet in pro forma sessions every three business days from December 20, 2011, through January 23, 2012.  The pro forma sessions are designed to keep the body in business so that it's not "in recess" for Recess Appointment Clause purposes, thus thwarting the President's ability to make unilateral recess appointments.  (During these sessions, the Senate actually engaged in some business, including passing a temporary extension to the payroll tax and convening the second session of the 112th Congress.)  The Senate did not adjourn sine die before the end of the first session of the 112th Congress, and thus according to the court the Senate did not have an intersession recess between the first and second sessions of the 112th Congress.  Instead, "the First Session of the 112th Congress expired simultaneously with the beginning of the Second Session."  Op. at 42.

The petitioner challenged the appointments after the NLRB, with President Obama's appointees, issued a decision concluding that he violated the NLRA.  The petitioner claimed that the appointments were invalid under the Recess Appointments Clause, that the NLRB wouldn't have had a quorum without those appointees, and without a quorum it didn't have any authority to issue its decision against him.

The D.C. Circuit agreed.  It ruled that the Recess Appointments Clause only authorizes intersession appointments, not intrasession appointments, and that it only authorizes appointments for vacancies that happened during the intersession recess (and not that merely existed during the intersession recess).

As to the intersession requirement, the Court relied principally on the plain text of the Clause:

[t]he 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.

The court explained that the phrase "the Recess" must refer to the intersession recess, because of the use of the definite article "the."  If the Clause were to cover intrasession recesses, in contrast, the text would have used the phrase "a recess" or "recesses."  The word "the" here identifies "recess" only as the intersession recess.  The court also looked to history, structure, other text, state constitutionalism, and other sources to buttress its textual analysis.  It said that the OLC's position would allow the executive to define the scope of his or her own recess appointment power and to make a recess appointment anytime the Senate broke for lunch.  "This cannot be the law."  Op. at 26.

This part of the ruling puts the D.C. Circuit at odds with the Eleventh Circuit and its ruling in Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004).

As to when the vacancy happens, the D.C. Circuit also relied principally on text, but looked to other sources, too.  The court said that "happen" must mean that the vacancy arises during the recess, not that it merely exists during the recess. 

This part of the ruling puts the D.C. Circuit at odds with the Second, Ninth, and Eleventh Circuits.  It was also unnecessary: as Judge Griffith points out in concurrence, the court's ruling on the intrasession appointment was sufficient to vacate the NLRB's decision, without considering when the vacancies happened.

Because of the importance of the issues and the circuit splits, look for this case to go to the Supreme Court. 

There's just one potential hiccup: It's not obvious that the courts have jurisdiction to hear the constitutional claims.  The NLRA says that courts can consider appeals from NLRB judgments only when parties raised the issues at the NLRB, unless there are "extraordinary circumstances."  The parties didn't raise the appointments challenges at the NLRB, but the court said that there were "extraordinary circumstances": the appointments objections "go to the very power of the Board to act and implicate fundamental separation of powers concerns."  Op. at 11.

SDS

January 25, 2013 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis | Permalink | Comments (0) | TrackBack (0)

Thursday, January 24, 2013

President to Nominate Cordray (again) to Lead CFPB

President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo.  Cordray is currently serving in that role as a recess appointee.

Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him.  Republicans objected to both the CFPB and to Cordray.  We posted on substantive objections herewe posted on procedural and constitutional objections here.

Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets.  They promise to (again) create a stir in Congress.

SDS

January 24, 2013 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, December 31, 2012

No Standing to Challenge President's NLRB Recess Appointments

The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB.  The ruling means that this challenge to the recess appointments is dismissed.  We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.

The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities.  (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.)  Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors.  They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections.  The petitioners did not seek a refund for themselves, because they renewed their objections every year.

The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.

While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum.  The NLRB later denied the petitioners' motion for reconsideration.

The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid.  They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress).  They also said that the Senate didn't consider itself in recess when President Obama made the appointments.  (It was in pro forma sessions.)

The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits.  The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal.  In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.

The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.

SDS

December 31, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Friday, July 6, 2012

D.C. Circuit Strikes Copyright Judges' Removal Protection

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.

SDS

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

House Judiciary Examines Recess Appointments

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:

SDS

February 16, 2012 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Monday, February 6, 2012

Republican Senators to Oppose Recess Appointments as Friends of Court

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.

SDS

February 6, 2012 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)