Monday, March 9, 2015
The Supreme Court ruled today in Perez v. Mortgage Bankers Association that the Department of Labor need not engage in notice-and-comment rule-making when it changes a Department interpretation of an existing rule. At the same time, the Court overturned the D.C. Circuit rule that forced agencies to do this whenever an agency wished to issue a new interpretation that deviated significantly from an old one.
The ruling thus re-shifts power back to executive agencies in determining the meaning of their own regulations. That's because Congress didn't require agencies to use notice-and-comment rule-making for interpretations, but the D.C. Circuit did, when a new interpretation deviated significantly from an old one--that is, when an agency changed its interpretation. By overturning that decision, and putting interpretive decisions back in the exclusive hands of the agencies (with loose, deferential judicial oversight), the Court re-set the balance that Congress struck. The ruling is thus a victory for agencies and their power to interpret their own regulations without notice-and-comment rule-making and with deferential judicial review. (More on that last part below.)
The case grows out of DOL's re-interpretation of its FLSA rule on minimum wage and overtime for mortgage-loan offices. The agency's rule exempts certain classes of employees, including individuals who are "employed in a bona fide executive, administrative, or professional capacity . . . or in the capacity of outside salesman . . . ." In 1999 and 2001, DOL issued interpretive letters opining that mortgage-loan officers did not qualify for this exemption. In 2006, however, DOL reversed course and opined that mortgage-loan officers did meet the exemption. But in 2010, DOL went back to its old position, withdrew the 2006 interpretation, and opined that mortgage-loan officers didn't meet the exemption.
The Administrative Procedure Act requires agencies to provide public notice and an opportunity to comment when they propose new rules and regulations under an authorizing statute. But the APA does not require this notice-and-comment rule-making when an agency simply issues an interpretation. Seeing the potential for abuse, the D.C. Circuit devised a court-created rule that said that agencies still had to use notice-and-comment rule-making, even for a mere interpretation. The D.C. Circuit rule is called the Paralyzed Veterans rule, after the case that established it.
So the question in Mortgage Bankers Association was whether DOL had to use notice-and-comment rule-making in issuing its 2010 interpretation.
The Supreme Court said no. The Court, in an opinion by Justice Sotomayor, ruled that the APA by its plain terms exempts interpretative decisions from the notice-and-comment requirement, and that the D.C. Circuit's Paralyzed Veterans rule violated those plain terms. Justice Sotomayor wrote that Congress, in enacting the APA, considered the costs and benefits of applying notice-and-comment rule-making requirements to agency interpretations, and that Congress decided that notice-and-comment procedures weren't necessary.
All nine justices agreed on the result, but Justices Scalia, Thomas, and Alito each wrote separately to take issue in different ways and to different degrees with judicial deference to agency interpretations. In other words, they're not sure that the courts should defer to agency interpretations (even if courts do validly defer to agency rules), or they reject deference altogether. Judicial deference to agency interpretations comes from Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins. In Auer (relying on Seminole Rock) the Court held that agencies may authoritatively resolve ambiguities in their own regulations.
The rule that courts defer to an agency's interpretation of its authorizing statute is well settled in Chevron v. Natural Resources Defense Council. This is called Chevron deference. But Auer extended that deference to an agency's interpretation of its own rules. This Auer deference is what caught the eyes of Justices Scalia, Thomas, and Alito.
They all indicated that they'd reconsider Auer deference if given the chance. Justices Scalia and Thomas both outlined their (separate) separation-of-powers objections to Auer deference. In short, Justice Scalia expressed concern that an agency could both write its own rule and then interpret that rule without meaningful oversight; Justice Thomas explained why Auer deference took power away from the judiciary and gave it to the executive agencies.
Both Chief Justice Roberts and Justice Kennedy signed on in full to Justice Sotomayor's opinion (as did Justices Ginsburg, Breyer, and Kagan). None of these joined Justice Scalia, Justice Thomas, or Justice Alito and the concerns with Auer deference that they expressed.
Any nuclear agreement negotiated by President Obama could be short-lived, according to an open letter signed by forty-seven Senate Republicans today, and Iran should take note.
The letter, first reported by Josh Rogin at Bloomberg, tries to school Iran in the U.S. Constitution and separation of powers--and to undermine President Obama's efforts to come to nuclear deal with Iran.
The letter warns that any agreement "not approved by Congress is a mere executive agreement" that "[t]he next president could revoke . . . with the stroke of a pen and future Congresses could modify the terms of the agreement at any time."
The letter also reminds Iran that President Obama leaves office in January 2017, "while most of [the letter signers] will remain in office well beyond then--perhaps decades."
Wednesday, March 4, 2015
The Supreme Court heard oral arguments today in King v. Burwell, the case testing whether IRS tax subsidies to health-insurance purchasers on a federally-facilitated exchange violate the ACA. We posted our oral argument preview here.
There were no huge surprises, and questions from the bench mostly aligned with conventional beliefs about the Justices' politics (with Chief Justice Roberts, in his near silence, declining to tilt his hand at all).
But questions from Justice Kennedy--one to watch here (along with Chief Justice Roberts)--suggested that federalism principles and constitutional avoidance may drive the case. (That assumes that Justice Kennedy controls the center in the case.) This could be an elegant way for a conservative Justice to uphold the subsidies, because it's rooted in the challengers' argument itself (and not the government's case). In other words, a conservative Justice could accept the challengers' premise, but still uphold the subsidies.
Justice Kennedy at several points raised federalism concerns about the challengers' case: If the challengers are right that Congress designed the ACA so that all states would establish their own exchange (on threat of the death spiral that would result if they defaulted to a federally-facilitated exchange, without tax subsidies), then isn't that coercion in violation of federalism principles? And if that's so, shouldn't the Court reject the challengers' reading for constitutional avoidance reasons? Here he puts the question to Michael Carvin, arguing for the ACA challengers:
Let me say that from the standpoint of the dynamics of Federalism, it does seem to me that there is something very powerful to the point that if your argument is accepted, the States are being told either create your own Exchange, or we'll send your insurance market into a death spiral. We'll have people pay mandated taxes which will not get any credit on -- on the subsidies. The cost of insurance will be sky-high, but this is not coercion. It seems to me that under your argument, perhaps you will prevail in the plain words of the statute, there's a serious constitutional problem if we adopt your argument.
Later, he made a similar point with General Verrilli: "Because it does seem to me that if Petitioners' argument is correct, this is just not a rational choice for the States to make and that they're being coerced. And that you then have to invoke the standard of constitutional avoidance."
But in terms of constitutional avoidance, Justice Kennedy qualified his earlier statement to Carvin: "It may well be that you're correct as to these words, and there's nothing we can do. I understand that." Justice Kennedy also later seemed concerned with the government's Chevron argument, pointing out that a statute that costs billions of dollars in tax subsidies has to be absolutely clear.
Carvin argued that the ACA didn't create coercion for the states to establish their own exchanges. But he may have painted himself into a corner with the argument, because his argument also assumes that Congress thought all 50 states would establish an exchange, and, as Justices Ginsburg, Sotomayor, and Kagan pointed out, the portion of the ACA establishing a federally-facilitated exchange would be superfluous if all 50 states set up their own exchanges. They also pointed out that he had a different position in the last ACA challenge. Chief Justice Roberts rescued him, though, reminding everyone that he lost.
Most of the rest of the argument involved predictable statutory construction arguments, with no clear winner or loser. Maybe the only surprise was Justice Scalia's cramped reading of the four words, seemingly at odds with his approach (stated at oral argument earlier just this Term) to consider the context and entire statutory scheme when interpreting any individual provision.
Justice Ginsburg noted that standing is an issue, and that the Court can address it itself. Some of the other Justices fished a little around the question with General Verrilli. But in the end, General Verrilli didn't press the point and instead assumed that "because Mr. Carvin has not said anything about the absence of a tax penalty," that at least two plaintiffs still have standing.
Monday, March 2, 2015
Senators Orrin Hatch, Lamar Alexander, and John Barrasso wrote in WaPo that Republicans now have a plan for health care, should the Supreme Court strike the IRS subsidies for health-insurance purchasers on a federally facilitated exchange in King v. Burwell. The plan apparently involves "financial assistance to help Americans keep the coverage they picked for a transitional period." It also involves giving states "the freedom and flexibility to create better, more competitive health insurance markets offering more options and different choices." But the senators are short on detail.
There's another problem. While Hatch, Alexander, and Barrasso claim that "Republicans have a plan to protect Americans harmed by" the loss of IRS subsidies (should Obamacare opponents win in King), the most they can say is that "there is a good deal of consensus on how to proceed" among congressional Republicans.
Wednesday, February 11, 2015
The White House today sent its long-awaited authorization for use of military force against ISIS (or ISIL) to Congress. Here's the accompanying letter from the President.
The draft AUMF authorizes the President to use "necessary and appropriate" military force against "ISIL or associated persons or forces." (The draft defines "associated persons or forces" as "individuals and organizations fighting for, on behalf of, or alongside ISIL or any closely-related successor entity in hostilities against the United States or its coalition partners.") The draft has a three-year duration, and specifically excludes the use of U.S. troops in "enduring offensive ground operations," but it contains no geographic restriction on the use of force.
The draft would also revoke the 2002 AUMF against Iraq. However, it does not revoke (or otherwise address) the sweeping 2001 AUMF, although President Obama calls for refinement, and ultimately revocation, in his accompanying letter.
The draft acknowledges that "the United States has taken military action against ISIL" already, and cites "its inherent right of individual and collective self-defense" as authority for that prior action. Last fall, the President cited his Article II powers and the 2001 AUMF as authority for military action against ISIS and the Khorasan Group.
Tuesday, January 13, 2015
The Supreme Court heard oral arguments yesterday in Oneok v. Learjet, the case testing whether the federal Natural Gas Act preempts state antitrust claims arising from a conspiracy among natural gas companies to inflate retail natural gas prices.
The dispute arose when natural gas companies reported false natural gas sales prices to industry publications used to set gas prices in retail and wholesale contracts, artificially inflating those prices, and resulting in the Energy Crisis in 2000 to 2002. Retail gas purchasers brought state antitrust cases in several states. The gas companies moved to dismiss, arguing that the Natural Gas Act preempted those claims.
Indeed, the Gas Act grants FERC authority to regulate wholesale sales of natural gas (called "jurisdictional" sales) and any practice that "directly affect[s] jurisdictional rates." So the question in the case is this: Does that authority reach, and preempt state-law claims based upon, the gas companies' false reporting of gas prices to industry publications, thus affecting retail and wholesale gas prices?
The arguments didn't reveal any significant new points (that weren't briefed), and revealed only a little about the Court's likely direction in the case.
The parties agreed that the Gas Act field-preempts state-law claims for some field, but the predictably disagreed about the scope of that field. Oneok, represented by Neal Katyal, argued that the field includes practices like false reporting of gas prices that affect retail sales, because the false reporting also affected wholesale sales (or jurisdictional sales, within FERC's bailiwick). Learjet, represented by Jeffrey Fisher, argued that the Act doesn't sweep that far, and that FERC's authority does not field-preempt the state-law claims here.
Oneok also argued that the Gas Act could conflict-preempt state-law claims (an issue, it said, that would have to be decided on remand), because state-law claims could conflict with the Act and the nationwide uniformity in reporting that FERC encourages. Learjet said that the state-law antitrust claims were congruent with a federal antitrust claim (that everyone says was available to Learjet and the other plaintiffs), so there's no conflict between the state-law claims and federal law.
Questions from the bench revealed little. The progressives on the bench were by far the most active, pressing Katyal the hardest (and seemingly least persuaded by his points), but also probing Fisher (especially Justice Breyer). Conservatives were largely silent, except that Justice Scalia seemed inclined to accept Katyal's point about how price reporting affects wholesale rates (and therefore preempts state-law claims as to retail rates), and Chief Justice Roberts seemed skeptical of Fisher's argument that a ruling for the gas companies would allow them to manipulate and transform any non-jurisdictional practice into one that "directly affect[s] jurisdictional rates."
Justice Kennedy seemed to straddle, and maybe hinted at a result. He asked Katyal whether the Gas Act would preempt a state-law claim that was "exactly the same as the Sherman Act." Katyal responded:
And I think that is complementary authority, which, Justice Kennedy, your opinion in Arizona v. United States decried. Once we're in the field, once Congress has said to a federal agency, as it is here, FERC is regulating the very practice that they are seeking to regulate three different ways, then you can't tolerate states in the area. Why? Because states will have all sort --
Justice Kennedy then asked if Katyal had a back-up conflict-preemption argument, in case his field-preemption point didn't pan out. Katyal: Yes, but for remand.
The outcome will obviously be important to the parties and anyone else worried about accountability for the Energy Crisis in 2000-2002, but probably won't be too important to anyone else. That's because Congress increased FERC's authority in 2005--prompting the government to argue against cert. in the first place.
Wednesday, December 17, 2014
The Sixth Circuit ruled today in Michigan Corrections Organization v. Michigan Dep't of Corrections that the federal courts lacked subject matter jurisdiction over a claim by Michigan correctional officers against the Corrections Department Director under the federal Fair Labor Standards Act. The court dismissed the federal case.
While the case marks a defeat for the workers (and others who seek to enforce the FLSA against a state), the plaintiffs may be able to re-file in state court. (They brought a state claim in federal court, along with their FLSA claim, and, if there are no other bars, they may be able to revive it in a new state proceeding.)
Correction officers filed the suit, claiming that they wre denied pay for pre- and post-shift activities (like punching the clock, waiting in line for security, and the like) in violation of the FLSA. They sued the Department Director in his official capacity for denied overtime pay and declaratory relief.
The Sixth Circuit rejected the federal claims. The court ruled that the Director enjoyed Eleventh Amendment immunity against monetary damages, and that Congress did not validly abrogate Eleventh Amendment immunity through the FLSA (because Congress enacted the FLSA under its Commerce Clause authority). The court rejected the plaintiffs' contention that Congress enacted the FLSA under its Fourteenth Amendment, Section 5 authority to enforce privileges or immunities against the states (which, if so, would have allowed Congress to abrogate Eleventh Amendment immunity). The court said that the Privileges or Immunities Clause (after The Slaughter-House Cases) simply can't carry that weight--that wages are not a privilege or immunity of national citizenship.
The court went on to reject the plaintiffs' claim for declaratory relief under the FLSA, Section 1983, and Ex Parte Young. The court said that the FLSA "does not provide a basis for this declaratory judgment action." That means that the plaintiffs can't get declaratory relief from the statute itself, and, because the FLSA doesn't provide for private enforcement by way of declaratory relief, the plaintiffs can't get Section 1983 or Ex Parte Young relief, either.
December 17, 2014 in Cases and Case Materials, Commerce Clause, Congressional Authority, Eleventh Amendment, Federalism, Fourteenth Amendment, News, Opinion Analysis, Privileges or Immunities: Fourteenth Amendment , Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Friday, December 5, 2014
As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.
The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.
The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."
That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.
The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.
Tuesday, November 25, 2014
Texas Governor-Elect Greg Abbott put the finest point yet on Republicans' legal case against President Obama over his announcement last week to defer immigration enforcement action against certain unauthorized aliens. Abbott said in a statement yesterday that President Obama's move violated the Take Care Clause, Congress's immigration authority under Article II, Section 8, and the Administrative Procedure Act.
These claims are head-and-shoulders above the kind of general blustering we've heard from others in the debate. But they're still far from specific. Indeed, they're answered by the OLC's own legal analysis: the OLC relies on congressionally-designed flexibility in the text of the INA, among other legal authorities, to conclude that President Obama's action is consistent with, and supported by, the INA. In other words, Congress wrote the INA (using its authority under Article II, Section 8) to give the President just this kind of flexibility in enforcement. If that's true--and we haven't heard many (if any) specifics challenging this interpretation from opponents of President Obama's actions--then it seems odd to argue that President Obama isn't properly executing the law, or that he isn't respecting a uniquely congressional authority, or that he's violating the APA. Indeed, it seems that's exactly what he's doing.
Moreover, Abbott's statement is silent on prior executive practice, an important tool in sorting out this kind of separation-of-powers problem.
Abbott swears that "[t]his is a legal issue, not a political issue." But before we can take that claim seriously, it'd help if Abbott, Oklahoma AG Scott Pruitt, Kansas AG Kris Kobach, and others threatening suit sharpen their case with a little statutory interpretation and history of executive practice (to say nothing of Supreme Court precedent). We'll keep you posted.
Friday, November 21, 2014
House Republicans filed their expected lawsuit against the Obama administration, arguing that the administration spend money on the Affordable Care Act's insurer offset program without an appropriation and extended the ACA's deadline for the employer mandate without congressional authorization. The complaint is here; Jonathan Turley's post on his blog onthe case is here; we previously posted on the issue here. It's also all over the news.
The case is only the latest move by opponents of the ACA to chip away and ultimately kill the Act by a thousand cuts. It's also only the latest move by opponents of President Obama in their effort to cast him as lawless.
House Republicans' first claim involves the administration's expenditures of funds that haven't been appropriated by Congress. The ACA contains two expenditure programs. The first, the Section 1401 Refundable Tax Credit Program, provides refundable tax credits for individual purchasers of health insurance on an ACA health insurance marketplace exchange. The second, the Section 1402 Offset Program, provides direct payments to ACA insurers to offset costs that they incur in providing cost-sharing reductions to beneficiaries that are required under the Act.
House Republicans claim that Congress funded the Section 1401 program, but did not fund the Section 1402 program. Yet they say that the Obama administration is using Section 1401 appropriated funds to make payments under Section 1402. In other words, House Republicans claim that the administration is spending money that wasn't appropriated by Congress, and shifting money from one line to another, in violation of Congress's exclusive power of the purse.
House Republicans also claim that the administration unilaterally extended the deadline for the ACA's employer mandate. The ACA says that large employers will be subject to tax penalties (or shared-responsibility payments), and that those penalties "shall apply to months beginning after December 31, 2013." But House Republicans claim that the administration unilaterally altered that date, without congressional action or congressional delegation, by extending the date by which penalties will be assessed by a year.
Thursday, November 20, 2014
The Office of Legal Counsel yesterday released an opinion on the President's legal authority for his immigration plan, which he'll announce shortly. Here's the summary, in three points:
The Department of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of the DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS's enforcement discretion.
In short, the first two are OK, because the executive has authority to prioritize enforcement based on available limited resources, the actions are consistent with (and not inconsistent with) federal law and congressional priorities, and there is precedent (i.e., similar prior executive actions) for them. The third is not, because it's not consistent with priorities in federal law, and because there's no precedent.
As to the first, OCL said that "DHS's organic statute itself recognizes [that DHS must make enforcement choices], instructing the Secretary to establish 'national immigration enforcement policies and priorities.'" It also said that the proposal is consistent with the removal priorities established by Congress, that it doesn't amount to a legislative rule that overrides the requirements of the substantive statute, and that it doesn't "identify any category of removable aliens whose removal may not be pursued under any circumstances."
As to the second, OCL said that deferred action for parents of U.S. citizens and legal permanent residents is a lawful exercise of executive power, because it's based on an allocation of scarce resources (deferring action against this class in order to shift very limited resources elsewhere), and because deferred action for this class is consistent with the INA's concerns with keeping families together when possible. OCL also noted that "the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past . . . ."
Finally, as to the third, OLC said that the President lacks authority to implement deferred action for DACA parents. OLC said that the considerations here are similar to considerations for deferred action for parents of U.S. citizens, but are different in two key respects. First, while immigration law expresses concern about keeping families together, it expresses this concern in the context of citizens and lawful residents, not DACA'd individuals (who "unquestionably lack lawful status in the United States"). Next, deferred action for DACA parents "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past."
Here are some other resources on the issue:
- We posted on executive authority for DACA here.
- The CRS has a report on Prosecutorial Discretion in Immigration Enforcement here, and a Memo on DACA authority here.
- The Immigration Policy Center has a legal resources page on executive enforcement of immigration laws here.
Tuesday, November 11, 2014
The Supreme Court will hear oral arguments tomorrow in the case challenging Alabama's re-drawing of its state legislative districts after the 2010 census. The case pits a claim under Section 2 of the Voting Rights Act against a defense under Section 5, although the constitutionality of those provisions is not (directly) at issue in the case.
Alabama redrew its state legislative districts after the 2010 census in order to maintain equal population across districts (within 2 percent), to maintain the existing number of majority-minority districts, and to maintain the existing percentage of black voters in those majority-minority districts. But the state's demographics shifted so that in order to achieve those goals the state had to pack black voters into existing majority-minority districts. The net result was to consolidate minority voting power in these majority-minority districts, but to enhance Republicans' power in the rest of the state.
Democrats and black legislators and groups sued, arguing that the re-districting plans violated Section 2 of the Voting Rights Act and amounted to racial and political gerrymanders. The state countered that it was compelled to draw the districts this way under Section 5 of the VRA in order to preserve majority-minority districts and to avoid retrogression. (The irony of Alabama using Section 5 as a shield after it so vigorously attacked Section 5 in Shelby County has escaped no one.)
The three-judge district court divided along party lines--the two judges appointed by a Republican president ruling for the state, and the lone judge appointed by a Democrat dissenting.
The case pits the plaintiffs' Section 2 claim against the state's Section 5-based reason for the districts. The state's position--that Section 5 made them do it--is part of a larger trend of states applying "not the Voting Rights Act, but a hamhanded cartoon of the Voting Rights Act--substituting blunt numerical demographic targets for the searching examination of local political conditions that the statute actually demands," according to Loyola's (Los Angeles) Justin Levitt. The state's position also potentially puts the constitutionality of Section 5 before the Court: If Section 5 requires race-based decisions like this, isn't it unconstitutional? That question isn't squarely before the Court, but it's certainly lingering behind the curtains.
Monday, November 3, 2014
The Supreme Court heard oral arguments on Monday in Zivotofsky v. Kerry, the case testing whether Congress can require the State Department to list "Israel" as the country of birth for a U.S. citizen born in Jerusalem, upon the request of that citizen. The State Department has long declined to list "Israel" (or "Palestinian Territories" or the like) as the country of birth on such a passport, in order to promote its long-standing position of neutrality with regard to sovereignty over Jerusalem. This case tests which branch gets to decide whether Congress, or the executive branch, gets to decide what goes on the passport.
If arguments are any indication, this'll be a 5-4 opinion, along conventional lines (conservatives for Congress; progressives for the President). In short, conservatives didn't seem to think the Act's place-of-birth designation mattered much to recognition or to foreign affairs (or, as Justice Kennedy suggested, that its impact could be mitigated), and therefore that the Act didn't seriously interfere with any exclusive powers of the presidency. Progressives took the opposite view.
Zivotofsky tried to steer the Court toward his argument that the country-of-birth deisgnation on a passport has nothing to do with official recognition of a foreign sovereign. This position could allow the Court to dodge a thorny separation-of-powers problem entirely, by hanging its hat on the idea that the country-of-birth designation serves only an identification purpose, not a sovereign-recognition purpose. If so, the Court could rule for Zivotofsky by saying that Congress can require anything it wants in the place-of-birth line, because it doesn't interfere with the President's recognition power. (Or, as the government argued, the Court could rule for the government, saying that the congressionally required designation in effect requires the President to issue a diplomatic communication that contradicts the President's own recognition and foreign policy. But this would require at least some consideration of constitutional separation of powers--in particular, whether the President's power of recognition is exclusive.)
This approach seemed to get the attention of the conservatives on the Court. In particular, Justices Kennedy and Scalia in different ways seemed to suggest that the country-of-birth designation didn't recognize sovereignty. (If not, however, Justice Kennedy at one point wondered why Congress would have passed it in the first place.) Justice Kennedy returned several times to the ideal of a State Department disclaimer--that State could just write a statement that the place-of-birth designation didn't reflect the policy of the United States. And Chief Justice Roberts wondered later in the arguments whether the President's objections to the Act and the executive's position in litigation amount to a self-fulfilling prophecy--that is, whether designating "Israel" wasn't really all that big of a deal, until the President made it so. (This exchange, with SG Verilli, came up in a line of questions about why President Bush signed the Act in the first place, even with his constitutional reservations in the signing statement.) All these, and Justice Alito, suggested at different times that the country-of-birth designation wasn't all that important, anyway--a corollary to the country-of-birth-designation-as-mere-identification theory.
But Justice Kagan pushed back against the self-identification theory: she called the Act a "very selective vanity plate law," because it allows a passport holder to determine the designation of country of birth. She also underscored the passport-as-diplomatic-note point by asking whether a hypothetical congressional act would be constitutional if it required the State Department to inform all foreign minister that a new American was born in Israel whenever a new American was born in Jerusalem. (Zivotofsky's answer: Yes. Justice Kagan called this "a little bit shocking.") Justice Sotomayor went a step further and said (several times) that Zivotofsky and Act supporters wanted the government to lie--to say that Israel was the place of birth, even though the government doesn't recognize Israel as sovereign over Jerusalem.
Justice Breyer took an institutional competence view of the case, asking if the foreign affairs experts at the State Department declined to recognize Israeli sovereignty over Jerusalem, who was he to question them?
Justice Kagan took the final shot at the it-doesn't-matter-that-much view at the very end of arguments:
Can I say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?
It seems doubtful that she'll persuade her conservative colleagues.
Thursday, October 23, 2014
The Constitutional Accountability Center is examining Chief Justice John Roberts's first decade in office in a series of posts and articles called Roberts at 10. Here's the intro.
Brianne Gorod, the CAC's appellate counsel, posted most recently on Chief Justice Roberts and federal power, in particular, NFIB. Here's her conclusion:
[I]t is nonetheless clear that the Chief Justice is concerned about the scope of federal power and, in particular, the breadth of the federal regulatory state . . . . And while Chief Justice Roberts may not have the same appetite to change the law in these areas as Chief Justice Rehnquist had, it also seems clear that Chief Justice John Roberts's views on the Commerce Clause and the Spending Clause aren't exactly what Judge Roberts presented them to be at his confirmation hearing in 2005. Just how different they are . . . remains to be seen. But supporters of the Affordable Care Act shouldn't give Chief Justice Roberts too much credit for his decision in NFIB. It's complicated.
Thursday, October 2, 2014
A divided panel of the Fourth Circuit affirmed in part and reversed in part a district court ruling that declined to enjoin North Carolina's voting law under Section 2 of the Voting Rights Act. We posted on the district court case, with more background and links, here. (Recall that North Carolina moved swiftly to put this law into place after the Supreme Court struck the coverage formula for Section 5 of the Voting Rights Act in Shelby County. The move suggested that North Carolina itself thought that the law, or portions of it, wouldn't pass muster under Section 5, but that it would pass a Section 2 challenge.)
The ruling means that the state's elimination of same day registration and prohibition on counting out-of-precinct ballots are preliminarily enjoined during the pendancy of the case, but that the other portions of the law are not. Thus, the following provisions will go into effect pending the outcome of the merits case: (1) the state's reduction of early voting days; (2) expansion of allowable voter challengers; (3) elimination of discretion of county boards of election to keep polls open an additional hour on election day; (4) the elimination of pre-registration of 16- and 17-year-olds; (5) and the "soft" roll-out of voter identification requirements.
Unless the full Fourth Circuit or the Supreme Court steps in (and quick), that'll be the situation for the fall election. (The North Carolina AG reportedly said he'd appeal.)
The majority was quick to remind us that this is is not a final ruling on the merits, and does not speak to the underlying merits challenge. That case is still plugging forward in the district court.
The majority pulled no punches when it wrote that "the district court got the law plainly wrong in several crucial respects." It went on to identify, point by point, eight seperate ways the lower court misinterpreted and misapplied Section 2 of the Voting Rights Act. Perhaps most importantly, the court said that the district court misinterpreted the Section 2 standard in relation to Section 5:
First, the district court bluntly held that "Section 2 does not incorporate a 'retrogression' standard" and that the court therefore was "not concerned with whether the elimination of [same-day registration and other features] will worsen the position of minority voters in comparison to the preexisting voting standard, practice or procedure--a Section 5 inquiry."
Contrary to the district court's statement, Section 2, on its face, requires a broad "totality of the circumstances" review. Clearly, an eye toward past practices is part and parcel of the totality of the circumstances
Further, as the Supreme Court noted, "some parts of the [Section] 2 analysis may overlap with the [Section] 5 inquiry. . . .
The issue goes to the relevant baseline: Should the court measure a voting change with reference to the state's immediately preceding practice, or with reference to some other, lower baseline? (The issue came up recently in the Ohio early voting case, too.) The Fourth Circuit said that Section 2's totality-of-the-circumstances analysis requires a court to judge a voting change with reference to the state's prior practice. That, along with the rest of the totality of the circumstances, meant that the plaintiffs were likely to succeed on their challenges to the two portions of the North Carolina law that the court enjoined.
The Supreme Court will consider its first Section 2 case after Shelby County this Term--the Alabama redistricting cases. We'll likely get a better sense from that case how the current Court will analyze a Section 2 challenge--and how (and whether) it overlaps with the Section 5 standard.
Judge Motz dissented, emphasizing the high standard for a preliminary injunction, the timing of the case (right before the election), and the problems with implementation and potential confusion.
Tuesday, September 30, 2014
Judge Ronald A. White (E.D. Okla.) ruled today in Oklahoma v. Burwell that the IRS rule providing subsidies for individual purchasers of health insurance on an exchange established by the federal government (and not a state government) ran afoul of the plain language of the Affordable Care Act. Judge White stayed his ruling pending appeal, however, so it has no immediate impact on subsidies in Oklahoma.
Judge White's ruling aligns with the D.C. Circuit panel decision in Halbig and stands opposite the Fourth Circuit ruling in King. (Recall that the full D.C. Circuit vacated the panel ruling and agreed to rehear the case en banc. That argument is set for December.) All this means that there is currently no circuit split on the issue; instead, the Fourth Circuit upheld the tax subsidies, the full D.C. Circuit will reconsider them in December, and the Tenth Circuit will consider them soon (on the inevitable appeal from Judge White's ruling).
Judge White wrote that the plain language of the ACA resolved the case. That language allows a tax subsidy for a purchaser of health insurance who is "covered by a qualified health plan . . . enrolled in through an Exchange established by the State under section 1311 of the [ACA]." 26 U.S.C. Sec. 36B(c)(2)(A)(i) (emphasis added). Like the panel in Halbig, Judge White said that the language was clear, and that the IRS rule extending credits to purchasers of health insurance on exchanges established by the federal government (and not a state) violated it.
Judge White downplayed the effect of striking the IRS rule, saying that "apocalyptic" claims about the challenges tot he IRS rule are overstated. In any event, he wrote, Congress could re-write the law to specifically authorize the subsidies.
Judge White also ruled that Oklahoma had standing to challenge the IRS rule, because the state, as a large employer, would have been subject to federal penalties for some of its employees who might purchase health insurance on the federal exchange and qualify for a subsidy under the IRS rule.
Judge White's ruling probably doesn't make this case any more (or less) likely to go to the Supreme Court soon. With just two circuits weighing in so far--and one of them vacating the panel ruling and rehearing the case en banc--the Court will likely wait to see what the full D.C. Circuit, and now the Tenth Circuit, do with it. Still, the challengers in the Fourth Circuit case have asked the Supreme Court to review it.
Wednesday, September 24, 2014
President Obama sent two letters to Congress yesterday pursuant to the War Powers Resolution notifying it of U.S. military efforts in Iraq and Syria against ISIS and the Khorasan Group.
The first letter outlines "a series of strikes in Syria against elements of al-Qa'ida known as the Khorasan Group." It says that "[t]hese strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements." The letter cites as authority the constitutional Commander-in-Chief, Chief Executive, and foreign relations powers of the presidency, and authority under the 2001 AUMF, the authorization for use of force against those who planned the attacks of September 11 and anyone who helped or harbored them.
The second letter reviews previous military efforts against ISIS in Iraq and outlines the deployment of 475 additional troops to Iraq and the use of U.S. forces "to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support to select elements of the Iraqi security forces, including Kurdish Peshmerga forces." The letter also says that the President "ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against [ISIS] in Iraq and Syria . . . in coordination with and at the request of the Government of Iraq and in conjuntion with coalition partners." The letter cites the same authority as the first letter, above, along with the 2002 AUMF, the authorization for use of military force against Iraq.
The President has faced plenty of criticism for relying on his inherent constitutional authority and these two AUMFs in authorizing recent strikes. Congress is considering new AUMFs that would specifically authorize his actions. The Hill reports that Senator Levin, chairman of the Armed Services Committee, thinks that Congress will take up the measures after the mid-terms.
Friday, September 12, 2014
Senate Republicans unanimously blocked the campaign finance constitutional amendment proposed by Democrats. The measure, S.J. Res. 19, failed 54 to 42, short of the 60 votes necessary to close debate and move to a vote on the merits.
The proposed amendment would have overturned Citizens United and allowed Congress and state legislatures to regulate campaign contributions and spending. It read:
Section 1. To advance democratic self-government and political equality, and to protect the integrity of government and the electoral process, Congress and the States may regulate and set reasonable limits on the raising and spending of money by candidates and others to influence elections.
Section 2. Congress and the States shall have power to implement and enforce this article by appropriate legislation, and may distinguish between natural persons and corporations or other artificial entities created by law, including by prohibiting such entities from spending money to influence elections.
Section 3. Nothing in this article shall be construed to grant Congress or the States the power to abridge the freedom of the press.
Republicans argued that the measure infringed on free speech. Senator Ted Cruz captured the point when he said that SNL producer "Lorne Michaels could be put in jail under this amendment for making fun of any politician." That seems pretty unlikely, but still possible under the language. Politifact gave it a "half-true," based on interviews with several ConLawProfs.
Tuesday, September 9, 2014
According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night.
While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.
Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.
The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB. Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning. Her nomination this time is going through the regular Appointments Clause process.
If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.
Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments. They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).
Still, the full Senate will likely confirm her. That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.
Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now. In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.