Tuesday, September 9, 2014
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.
Thursday, September 4, 2014
The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements. Today's order also vacates that earlier ruling. It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books. The court will hear arguments on December 17.
Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit. Today's order also removes that circuit split.
We last posted on the case, with background explanation, here. In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange. Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange. The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges.
A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch. That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it. An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway).
Wednesday, July 30, 2014
The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act.
The case will have several problems right out of the gate, most notably standing. Here's our last post on the suit, with links to earlier posts.
Tuesday, July 29, 2014
The D.C. Circuit today rejected an Origination Clause challenge to the so-called individual mandate under the Affordable Care Act. The court also rejected a Commerce Clause challenge to the individual mandate. The ruling means that this long-shot case is dismissed.
The plaintiff in the case, Matt Sissel, argued that the individual mandate violated the Origination Clause. That Clause requires revenue-raising bills to originate in the House; it says,
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
Sissel argued that the ACA's individual mandate really originated in the Senate, not the House, and therefore violated the Clause.
The court summarily rejected that argument. The court said that the Supreme Court has given a narrow reading to the Origination Clause, applying it only to bills that "levy taxes in the strict sense of the word." But the court said that the taxing feature (or the revenue-raising feature) of the individual mandate was merely a by-product of the mandate, not the principal goal of the mandate--and therefore not a tax in the strict sence. Instead, the court said, the mandate was designed to help achieve universal health care coverage, not principally to raise revenue:
The purposive approach embodied in Supreme Court precedent necessarily leads to the conclusion that [the individual mandate] is not a "Bill for raising Revenue" under the Origination Clause. . . . And after the Supreme Court's decision in NFIB, it is beyond dispute that the paramount aim of the Affordable Care Act is "to increase the number of Americans covered by health insurance and decrease the cost of health care," not to raise revenue by means of the shared responsibility payment.
The court also rejected Sissel's Commerce Clause argument, ruling that the this argument was foreclosed by the Supreme Court's decision in NFIB, which upheld the individual mandate as a valid measure under Congress's taxing power. The court rejected Sissel's argument that his election not to purchase insurance was a violation of federal law (and therefore the federal requirement violated the Commerce Clause). Instead, the court said that under NFIB Sissel had a choice: buy insurance, or pay a tax. That's a valid exercise of the taxing power (even if it has a regulatory effect), and Sissel's argument under the Commerce Clause misses the mark.
The ruling is just the latest in a line of cases challenging different aspects of the Affordable Care Act. It's an important victory for the ACA, even if not a particularly surprising one.
Tuesday, July 22, 2014
Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level). A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated. In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.
The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration. If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare. That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered.
Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general). All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong. That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.
The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges. Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges. The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.
The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]." But other sections of the Act treat an "Exchange" as only a state-created exchange. And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so. (Other portions of the Act are relevant, too, but these are the key portions.)
In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.
The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act. They also said that the legislative purpose of the ACA supports this reading. Because of the ambiguous language, the IRS could interpret it in any way that's reasonable. And its interpretation was reasonable.
Saturday, July 19, 2014
The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action. (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.) The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.
The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments. (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.) The court said that "special factors" counseled against a Bivens remedy. (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.) In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."
The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy. The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.
The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database. The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.
The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld. In other words, it adds to the well established body of law that says that courts defer entirely to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.
July 19, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 17, 2014
White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week. Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.
Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas. Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."
Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove. (Congress was investigating the firings of U.S. attorneys.) That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them. (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege. The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.) The appeals court did not reach the merits, however. Instead, Miers and Bolton effectively ran the clock on the case.
Issa is now reportedly considering holding Simas in contempt of Congress.
Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt.
The House Rules Committee had a hearing yesterday on the House Resolution authorizing a lawsuit against President Obama for alleged overreach in implementing the Affordable Care Act. (We posted on some of these alleged overreaches here.) Profs. Elizabeth Price Foley (FIU) and Jonathan Turley (GW) testified in support of the measure; Simon Lazarus (CAC) and Walter Dellinger testified against.
The big hurdle to a suit is standing: under current doctrine, the House lacks standing to sue (although Foley reiterated her theory of standing, and Turley argued that current standing doctrine is wrong). Without standing, the courts won't hear the case.
And they shouldn't. This is obviously a gimmick, not a serious constitutional challenge to the President's authority, as evidenced by the nonsense at yesterday's hearing. Dana Milback over at WaPo hits the nail on the head. (H/t to Darren Elliott.) We might add that it's just a little ironic that political conservatives are now touting the benefits of open courts, access to justice, and an activist judiciary.
Supporters of the suit argue, among other things, that the courts are the proper venue for this dispute, because the House has no other realistic way to control the President. (Changing the law or withholding appropriations won't work, they say, because a bill would also have to pass the Senate (and get signed by the President).) But that's no standard for standing. It also ignores the fact that Congress, even one party in Congress, has a whole panoply of ways to check and frustrate the President--which Republicans have used to great effect. Finally, it proves too much: If there really are no political ways to check the President, maybe that's because the President's actions enjoy wide political support (because they help people, not harm them, and thus raise standing problems for anyone seeking to challenge them).
The Resolution authorizes the Speaker to "initiate or intervene in one or more civil actions on behalf of the House of Representatives" to force the President to "act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation (and failure to implement) any provision of [the Affordable Care Act]."
The authorization doesn't identify a particular presidential action that violates the Constitution. Turley identifies shifting funds between line-items in the budget to fund portions of the ACA and extending tax credits to health-insurance purchasers in states where the federal government runs the exchange, among others. Lazarus offers good arguments why these are valid executive actions in implementing the ACA, and not violations of separation of powers principles.
Wednesday, July 2, 2014
The Supreme Court's ruling in Hobby Lobby this week opened up a potential free-for-all for closely held corporations to challenge all types of federal government regulations in the name of the owners' religious beliefs. (The only requirement: the reg has to pose a substantial burden on the belief. But we saw in Hobby Lobby itself how easy it is to meet that standard.) If so, those regs would be subject to RFRA's strict scrutiny test. That test requires the government to show that its regulation is the least restrictive way that it can achieve its compelling government interest--a tall order, indeed, and one that the government in other contexts can almost never satisfy.
In other words, the ruling seems to invite a religious exception for unknown numbers of federal laws. The majority dismissed this worry and did its best to cabin the ruling, but in truth only time will tell how far Hobby Lobby reaches. We can expect to a flurry of cases testing this.
So: What now?
ConLawProfBlog's own Ruthann Robson answers the question in her excellent post over at The London School of Economics Blog. Robson says that Congress has three ways to undo the Hobby Lobby ruling: (1) redefine "person" in the Dictionary Act to exclude for-profits; (2) change the level of scrutiny in RFRA (to rational basis review, consistent with the First Amendment standard); or (3) repeal RFRA entirely.
You might say that these options are unfriendly to religions. But Robson tells us why it's really the ruling itself that's religion-unfriendly. Robson argues that the ruling actually creates a disincentive for Congress to grant exemptions or accommodations to federal laws for religious organizations. That's becuase HHS's exemption for religious organizations (like Notre Dame, Little Sisters, and the like) was Exhibit A in the Court's conclusion that the so-called contraception mandate was not the least restrictive way for Congress to require insurers to provide contraception for women. (After all, if Congress could create an exemption for religious organizations, there's no reason why it couldn't similarly create an exemption for closely held corporations with religious owners. The fact that Congress had this alternative (and used it for religious organizations, but not for closely held corporations), according to the Court, shows why the so-called contraception mandate wasn't the best tailored way for Congress to achieve its goal.)
Robson's right. And she's right in arguing that Congress was sloppy and short-sighted in enacting RFRA in the first place, and that now, after Hobby Lobby, it may wreak all sorts of as-yet-unknown havoc. She concludes:
While Congress should take care when seeking to "reverse" a Supreme Court opinion, Congress did not take such care when ti sought to "overrule" Smith by enacting RFRA. Now Congress should act quickly and firmly to remedy the problem it caused by enacting RFRA. What Congress giveth, it can taketh away. And it should.
Monday, June 30, 2014
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Thursday, June 26, 2014
Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB. He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel."
But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster. That limitation, a Senate rules change from last fall, should also blunt today's ruling. That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.
Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees). (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.) The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.
The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session. The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid. It's not clear yet how many other offices may be affected by the ruling. Our oral argument review (with a link to our preview) is here.
The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future. That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here. That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism). As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).
The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment. And again: the Senate gets to say, presumptively, when it's in recess.
As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate. This gives even the House the power to block a recess--and recess appointments--for any period over 3 days. That means that the House could block a recess appointment by denying the Senate consent to recess.
Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.
At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause. Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses. It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.
The judgment striking the NLRB appointees was unanimous. But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:
To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.
June 26, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (2) | TrackBack (0)
Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction. In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law." (Emphasis in original.) Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate. "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."
Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing. That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain. As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue. And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law. That bill will surely die in the Senate. But Rivkin and Foley's arguments for standing don't depend on legislation.
Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:
Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."
That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .
If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.
Monday, June 16, 2014
Judge Emmet G. Sullivan (D.D.C.) on Friday dismissed a case brought by a U.S. citizen against FBI agents for torturing and mistreating him as a terrorist suspect in Africa in violation of his constitutional rights.
The plaintiff, Amir Meshal, was visiting Somalia in November 2006. When fighting erupted there, Meshal fled to Kenya. Upon arrival, he was captured by Kenyan soldiers, detained, and later interrogated repeatedly by FBI agents, who used threats, accusations that Meshal was a terrorist, and physical force to intimidate him. Later, Meshal was transferred to Somalia, then Ethiopia, where interrogations by FBI agents continued. Throughout, Meshal was denied outside communication (until U.S. consular officials later gained access to him), access to an attorney, and access to foreign courts. In all, Meshal was detained abroad for four months. He was never charged with a crime.
Meshal filed a Bivens suit for damages against the agents, but Judge Sullivan dismissed the case. Judge Sullivan was highly critical of the U.S. government's treatment of Meshal and of the federal courts' refusal to hear Bivens claims by other U.S. citizens mistreated by government agents. But he nevertheless concluded that the D.C. Circuit's ruling in Doe, the Fourth Circuit's ruling in Lebron, and the Seventh Circuit's ruling in Vance compelled him to dismiss Meshal's case. Doe, Lebron, and Vance all also involved U.S. citizens suing government officers for violations of constitutional right in similar circumstances. The circuit courts all ruled that "special factors" counseled against a Bivens remedy, however, because they all arose in the context of the military and national security.
Given the state of the law, there is no chance of a successful appeal. But that didn't stop Judge Sullivan from delivering a full-throated condemnation of the agents' actions, the courts' rulings, and Congress's failure to create a remedy for U.S. citizens who are mistreated in these situations:
The facts alleged in this case and the legal questions presented are deeply troubling. Although Congress has legislated with respect to detainee rights, it has provided no civil remedies for U.S. citizens subject to the appalling mistreatment Mr. Meshal has alleged against officials of his own government. To deny him a judicial remedy under Bivens raises serious concerns about the separation of powers, the role of the judiciary, and whether our courts have the power to protect our own citizens from constitutional violations by our government when those violations occur abroad.
Monday, June 2, 2014
On her second trip to the United States Supreme Court, Carol Anne Bond prevailed again.
Recall that Carol Anne Bond was convicted of a crime in violation of the Chemical Weapons Implementation Act, 18 U.S.C. § 229(a), passed to implement a treaty , the Chemical Weapons Convention. But the fact that she is not a "terrorist," but rather a "vengeful" participant in a "love triangle" has caused much consternation. While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband. Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.
Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit. On remand, the Third Circuit rejected Bond's argument to "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress's ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."
Today's opinion in Bond v. United States again reverses the Third Circuit. The focus in oral argument was on the Treaty power and whether a treaty can alter constitutional structures, namely federalism. And while today's decision is unanimous, there are multiple concurring opinions.
The opinion for the Court, authored by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, is a relatively brief 21 pages and notes that the Bond's case is "unusual" and thus the "analysis is appropriately limited." For the Court,
the global need to prevent chemical warfare does not require the Federal Government to reach into the kitchen cupboard, or to treat a local assault with a chemical irritant as the deployment of a chemical weapon. There is no reason to suppose that Congress—in implementing the Convention on Chemical Weapons—thought otherwise.
Essentially, the Court practices constitutional avoidance by construing the statute narrowly; there is no need to confront Holland v. Missouri's holding regarding the constitutional parameters of Congress's treaty power.
Indeed, the Court only mentions Holland in its discussion of the Third Circuit's holding and Bond's arguments; it notes that notwithstanding that "debate" there is a "well-established principle" of constitutional avoidance and includes a citation to Ashwander v. TVA, 297 U. S. 288, 347 (1936) (Brandeis, J., concurring). Because "Bond argues that section 229 does not cover her conduct" it considers "that argument first," and finds it decides the issue.
In a nutshell, the Court concludes that the federal prosecutors exceeded the power the statute gave them - - - and thus there is no need to decide whether Congress exceeded the power the Constitution's treaty and necessary and proper powers gave it.
Justice Scalia, concurring and joined by Thomas, would conclude that the statute clearly covers Bond's Act and therefore is unconstitutional. Justice Thomas writes a separate concurrence, joined by Scalia and in part by Alito, writes separately to "suggest that the Treaty Power is itself a limited federal power." And in a very brief opinion, Alito argues that the "insofar as the Convention may be read to obligate the United States to enact domestic legislation criminalizing conduct of the sort at issue in this case, which typically is the sort of conduct regulated by the States, the Convention exceeds the scope of the treaty power" and thus the statute "lies outside Congress’ reach unless supported by some other power enumerated in the Constitution."
So, while the opinion is "unanimous," the three Justices considered to be the most conservative and perhaps most hostile to international law, would have limited Congress' power to implement treaties made pursuant to Article II §2 allowing the executive to "make Treaties, provided two thirds of the Senators present concur."
And for ConLawProfs, it demonstrates the relevance of the "Ashwander doctrine" as a part of constitutional law courses.
June 2, 2014 in Cases and Case Materials, Congressional Authority, Criminal Procedure, Executive Authority, Federalism, International, Interpretation, Opinion Analysis, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Friday, May 23, 2014
Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility. Amnesty International's press release is here.
Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay. We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places. The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.
Rep. Adam Schiff (D-Cal.) spoke this morning with Steve Inskeep on Morning Edition about the AUMF. The interview came a day after the House rejected a measure to set an end date on the Authorization.
Schiff said that the AUMF has been invoked as legal authority for actions both longer and broader than originally intended. He also said that Congress has abdicated its responsibility in checking its use.
We posted most recently on legislation related to the AUMF here, after Senate Majority Leader Harry Reid announced that he'd like to reconsider it.
Thursday, May 15, 2014
Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force. The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda. Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.
At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally. They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict." The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas. The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force. (The Senate has taken no action on the measure.)
According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ." According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:
Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.
Wednesday, April 23, 2014
The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits. The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem. Our latest post on the case, with links to earlier posts, is here.
The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel."
The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question. On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations.
In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.
April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)