Tuesday, March 11, 2014
Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things.
The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies. (CIA Director John Brennan denied this.) The CIA Inspector General referred the matter to the Justice Department.
In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material. Senator Feinstein said that this move was designed to intimidate the Committee.
As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material. The NYT has a good back-grounder here.
Monday, March 3, 2014
The United States Supreme Court today granted certiorari in Holt [Muhammad] v. Hobbs, later issuing a clarifying order:
The petition for a writ of certiorari is granted limited to the following question: “whether the Arkansas Department of Correction’s grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U. S. C. §2000cc et seq., to the extent that it prohibits petitioner from growing a one—half—inch beard in accordance with his religious beliefs.”
Recall that the Religious Land Use and Institutionalized Persons Act - - - RLUIPA - - - essentially reinstates the "strict scrutiny" standard of the pre-Smith [Employment Div. Dep't of Human Resources v. Smith] cases to a more limited set of circumstances than Congress did with RFRA, held unconstitutional as applied to the states as exceeding §5 of the Fourteenth Amendment in City of Boerne v. Flores. RLUIPA arguably gives prisoners more free exercise of religion protection than the general public, though in cases, prison security often provides a sufficient compelling governmental interest that is being further by the least restrictive means and thus overcome a prisoner's religious freedom.
Many RLUIPA claims concern grooming as I discuss in Dressing Constitutionally. For Muslim male inmates, the question of facial hair has been prominent. While some circuits have rejected RLUIPA claims, crediting the administrative costs of special scissors necessary to not completely shave prisoners, other courts have upheld RLUIPA claims, finding that prison officials did not satisfy the compelling government standard achieved by the least restrictive means.
The Eighth Circuit's opinion in Holt v. Hobbs is typically cursory at three pages. Here's the court's analysis:
we conclude that defendants met their burden under RLUIPA of establishing that ADC’s grooming policy was the least restrictive means of furthering a compelling penological interest, see Fegans v. Norris, 537 F.3d 897, 903 (8th Cir. 2008) (absent substantial evidence in record indicating that response of prison officials to security concerns is exaggerated, courts should ordinarily defer to their expert judgment in such matters), notwithstanding Mr. Holt’s citation to cases indicating that prisons in other jurisdictions have been able to meet their security needs while allowing inmates to maintain facial hair, see id. at 905 (although prison policies from other jurisdictions provide some evidence as to feasibility of implementing less restrictive means of achieving prison safety and security, it does not outweigh deference owed to expert judgment of prison officials who are more familiar with their own institutions).
The court's reliance on Fegans v. Norris, involving the Arkansas Department of Corrections restriction on hair length for male (but not female) inmates, is not surprising. Fegans is a particularly deferential decision by the Eighth Circuit - - - it almost seems as if the court applied rational basis rather than the strict scrutiny required by RLUIPA.
The Court's grant of certiorari in Holt v. Hobbs might bring some clarity to the religious freedom for prisoners in the grooming context.
Thursday, February 27, 2014
Pro Publica has a concise list of state-by-state changes to voting laws since the Supreme Court's ruling last summer in Shelby County. The page includes an interactive map that shows how previously covered jurisdictions have taken advantage of their lack of coverage to impose tighter voting requirements.
Recall that the Supreme Court ruled last summer in Shelby County that Section 4 of the Voting Rights Act, the coverage formula for the preclearance provision (in Section 5), exceeded congressional authority. Chief Justice Roberts wrote that "things had changed" since Congress enacted the VRA in 1965, but that the preclearance coverage formula hadn't kept pace. Moreover, he wrote that a coverage formula that treats states differently, as Sections 4 and 5 did, violated a newly minted principle of equal state sovereignty.
In the immediate wake of the ruling, previously covered jurisdictions like Texas and North Carolina moved swiftly to enact more restrictive voting requirements that were previously denied preclearance--bold, in-your-face moves that illustrated the impact of the Court's ruling. Since that time, more jurisdictions, many of them previously covered jurisdictions, have similarly tightened voting requirements in ways that will likely have disparate impacts on poor and racial minority communities.
Tuesday, February 11, 2014
A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.
The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).
The ruling is likely to bring a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement. It may also bring a congressional response--to foreclose those claims.
The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.
Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims. The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).
The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:
Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).
The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.
In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims). It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims. And it said that Boumediene struck Section 2241(e)(1).
So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.
The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed). The court said that the Supreme Court left this question open, and that there is a split among the circuits. Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:
The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention." Munaf v. Geren. The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention. In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.
The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.
Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).
The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims. The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest. The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA.
The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.
February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.
The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act). The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues. The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."
The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.
While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments. Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.
February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, February 10, 2014
A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today. It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.
Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."
The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program. It ends by implicating President Obama:
Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.
And Obama may even think it's one a "strong suit" of his.
This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.
Thursday, January 30, 2014
The Fourth Circuit ruled this week in Montgomery County, Maryland v. Federal National Mortgage Association that Fannie Mae and Freddie Mac enjoy statutory immunity certain state and local taxes--and that this congressionally granted immunity is not unconstitutional.
The ruling is a rejection of some of the more aggressive states'-rights theories that we've heard in other contexts. It underscores federal supremacy, even in the area of state and local taxes. It's not a surprising ruling, but the court's flat rejection of certain of the plaintiffs' states-rights arguments is notable.
The case arose out of Fannie's and Freddie's refusal to pay state and local transfer and recording taxes on foreclosed properties that they sought to sell. Fannie and Freddie cited their federal statutory exemption, which exempts Fannie and Freddie generally from state and local taxes, "except that any real property of [either entity] shall be subject to State, territorial, county, municipal, or local taxation to the same extent as other real property is taxed."
The court distinguished between property taxes (not exempt under the statute) and transfer taxes (exempt) and ruled that Fannie and Freddie were exempt under the plain language.
But that's not the interesting part. The court also ruled that Congress had authority to grant the exemption, and that it didn't run afoul of federalism principles.
The court rejected the plaintiffs' contention that Fannie's and Freddie's property sales were local in nature, and therefore outside Congress's Commerce Clause authority. "In this case, the overall statutory schemes establishing Fannie Mae and Freddie Mac are clearly directed at the regulation of interstate economic activity." The court also rejected the novel contention that the sweep of congressional authority here should be judged under a strict scrutiny standard (and not traditional rational basis review), because the exemption intruded into an area of state sovereignty. "The Counties' analogy to the Fifth and Fourteenth Amendments fails because there is not independent constitutional protection for the States' right to tax."
The court also rejected the plaintiffs' contentions that the exemption violated federalism principles. The court said that the exemption didn't commandeer states or state officials, that it didn't violate the Tenth Amendment (because Congress acted within its Commerce Clause authority), and that Congress can exempt non-government entities like Fannie and Freddie.
Tuesday, January 28, 2014
President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour. He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.
Can he do this?
Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution. But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch. In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.
Republicans who have criticized the action point to the federal statutory minimum wage. They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors. Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ." FLSA Section 206.
But the FLSA sets a floor. Nothing in the FLSA prevents an employer from paying more than the minimum. And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum.
Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action. The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector. The Act thus gives the President a great deal of authority to prescribe policies related to government procurement. For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ." 40 U.S.C. Sec. 121.
The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy. The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work. Indeed, there's a long line of similar requirements imposed by Presidents.
The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority. The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.
Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage. And that's not even considering any inherent Article II authority the President may have over government contractors.
That's not to say that Congress doesn't have a check. If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage. (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.) But current law doesn't seem to do that.
For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.
Thursday, January 23, 2014
As we discussed yesterday, bipartisan legislation has been introduced in Congress that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance, as a response the the Court's holding in Shelby v. Holder that section 4(b) of the VRA was unconstitutional.
Tolson argues that while
there are some aspects of the legislation that may displease civil rights organizations, particularly the exemption of voter identification laws from coverage under the new formula, the proposal is a strong start to address the gaping hole in the preclearance regime created by the Court's decision in Shelby County.
But in some respects, she contends, the proposed legislation may go too far.
She argues that the proposed amendments to section 3(c) of the VRA are "alarming because they place a bull's eye squarely on the back of section 3(c)" as well as section 2. She notes that section 3(c) of the VRA is constitutional precisely "because its intentional discrimination requirement is identical to the constitutional standard for establishing violations of the Fourteenth and Fifteenth Amendments."
She concludes that the "legislative focus should be limited to replacing the coverage formula and leaving section 3(c) alone."
Worth a read for anyone considering the proposed amendments to the VRA and the legacy of Shelby v. Holder.
Wednesday, January 22, 2014
Senator Patrick Leahy (D-VT) and Representatives Jim Sensenbrenner (R-WI) and John Conyers (D-MI) introduced legislation last week that would amend the Voting Rights Act and recalibrate the coverage formula for preclearance. The legislation responds to the Supreme Court's ruling last summer in Shelby County v. Holder, striking Section 4(b) of the VRA, the coverage formula for the preclearance requirement. That ruling left Section 5 preclearance nearly a dead letter (although litigants could still seek to have a court order a jurisdiction to bail-in to preclearance under Section 3).
The bills would update the coverage formula to include states that have 5 or more voting rights violations during the previous 15 years and political subdivisions that have 3 or more voting rights violations during the previous 15 years. (Coverage would continue for 10 years, unless the jurisdiction gets a court order releasing it.) This new formula would cover Georgia, Louisiana, Misissippi, and Texas, but not Alabama, Arizona, Florida, North Carolina, South Carolina, and Virginia.
The bills also contain a number of other provisions, perhaps most notably expanding Section 3 bail-in so that litigants can ask a court to bail-in a jurisdiction when that jurisdiction has intentionally discriminated (as now) and for any other violation of the VRA. Ari Berman over at The Nation has a nice summary.
The new provisions will undoubtedly be challenged when and if they're enacted. On the one hand, they address a major concern of the Court in Shelby County: they update the coverage formula to use more current violations as the basis for coverage. But on the other hand, they still treat states differently (and potentially run afoul of the Court's new-found "equal sovereignty" doctrine), and the state-wide formula does not account for actual voter turn-out (although the political subdivision formula does) and neither formula addresses the number of elected officials--data that the Court found at least relevant in its ruling.
January 22, 2014 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)
Saturday, January 18, 2014
Julie Ebenstein of the ACLU writes on Jurist.org that the dual system of voter registration in Kansas unlawfully denies citizens the right to vote. Ebenstein outlines the Kansas case challenging the dual system under state constitutional provisions, filed last November and now pending in state court.
As we wrote, two states, Arizona and Kansas, adopted a dual system of voter registration in the wake of the Supreme Court's ruling last summer in Arizona v. Inter Tribal Council of Arizona. In that case, the Court held that the requirement under the National Voter Registration Act that states "accept and use" an approved and uniform federal form for registering voters preempted Arizona's requirement that voters present evidence of citizenship at registration. (The NVRA form requires applicants simply to attest to their citizenship, not to provide additional documentation.)
Arizona and Kansas then announced that they would require voters to register separately for state and federal elections. This created a dual system of voter registration: NVRA and state-form registrants before January 1, 2013, can vote in both state and federal elections; but NVRA registrants after January 1, 2013, can vote in only federal elections. (NVRA registrants after that date also can't sign petitions.) Now only state-form registrants who provide the additional proof of citizenship can vote in state elections. State-form registrants who fail to provide the additional proof of citizenship cannot vote at all.
The ACLU and ACLU of Kansas filed suit last November challenging the dual registration system. The complaint, filed in state court, alleges that the system violates state constitutional equal protection by distinguishing between classes of voters in the state, that state officials exceeded their state constitutional authority, and that the system wasn't properly promulgated as a rule or regulation under Kansas law.
January 18, 2014 in Cases and Case Materials, Comparative Constitutionalism, Congressional Authority, Elections and Voting, Equal Protection, Federalism, News, Preemption, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare. The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts. We wrote on some of those cases and issues most recently here. Politico reports on this case here.
The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges. That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.
In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ." (Emphasis added.) But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.
A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange).
You might wonder about standing, given that the rule is designed to make insurance cheaper. The court said at least one plaintiff had standing. That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan. That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption. But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption. As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance). Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing. The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State." That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so. When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State." "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act.
January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Monday, January 13, 2014
The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate. Our argument preview is here.
The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them. The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution. If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.
The case presents three questions about the Recess Appointments Clause:
1. Does "the Recess of the Senate" include intra-session breaks, or recesses?
2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?
3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?
The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings. (If anything, these arguments only revealed how indeterminate and contestable these sources can be. See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.) The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.
But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.
Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments. General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies. Justice Alito put a fine point on it:
But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.
But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power. Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.
Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted." Chief Justice Roberts said that this maybe made the point not so important. Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not. But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.
The Court was also concerned about how to balance text against practice. Justice Scalia posed this question:
What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution? Which--which of the two prevails?
General Verrilli responded:
The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.
Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.
The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause. Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.
These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case. The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges). Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."
Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem. Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.
Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies. General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.
January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 7, 2014
As we explained, there really is no exemption. Instead, it's an OPM attempt to put members and staffers of Congress more-or-less in the position they were prior to Obamacare--just like any other employees of large corporations with employer-subsidized health insurance. In other words, Obamacare treated members and staffers differently (worse) than other similarly situated employees (by requiring them to enter an exchange instead of continue their employer-subsidized health insurance), and the OPM simply acted to continue an employer subsidy for them.
Still, there's the question whether OPM had authority to do this. That's what Johnson's suit is about (from the complaint):
The legal problem is that the OPM Rule violates the ACA and the federal statutes that apply to the [Federal Employee Health Benefit Plan]. The health plans offered through the exchanges are not OPM-negotiated large group health insurance plans. Only OPM-negotiated and contracted-for plans can be offered to federal employees through the FEHBP. Furthermore, the designated Exchange plans do not meet the statutory requirements for FEHBP plans administered by the OPM. In addition, the federal government does not meet the definition of a small business and, as a result, is not eligible to participate in a SHOP exchange. Neither the ACA nor any other applicable statute or rule permits the OPM to provide group health insurance to government employees who do not participate in the FEHBP. Finally, the OPM Rule violates the Equal Protection Clause of the United States Constitution in that it treats Members of Congress and their staffs differently than other similarly-situated employees who obtain insurance coverage pursuant to the terms of the ACA. No other employees of large employers are able to purchase insurance through small business exchanges with tax free subsidies from their employers.
What Johnson doesn't say in the complaint is that those employees of large corporations get employer-subsidized insurance, like members and staffers used to get under the FEHBP.
The Wisconsin Institute for Law & Liberty brought the case. Paul Clement, a consultant on the suit, joined Senator Johnson at a news conference yesterday:
Sunday, January 5, 2014
Senator Ron Johnson (R-Wis) writes in the Wall Street Journal that he'll file suit today to stop the congressional "exemption" from Obamacare. Senator Johnson writes that the OPM rule allowing members of Congress and staffers to use the exchange and also get an employer subsidy violates the Affordable Care Act and exceeds executive authority.
The dispute over the congressional "exemption" goes way back. But it turns out, there's no such exemption at all. The ACA contained a provision that required members of Congress and their staffers to get health insurance on an exchange. But that was unusual, because members and staffers already had employer-subsidized coverage under the Federal Employee Health Benefit Plan. (Exchanges are for the uninsured or employees of small corporations, not for employees of large corporations who already have coverage. Congress, which previously provided subsidized health insurance to members and staffers, nevertheless inserted a provision in the ACA that required members and staffers to use an exchange.) As a result, members and staffers would have lost their subsidy. So OPM stepped in and ruled this fall that members and staffers would qualify for an employer subsidy on the exchange if they purchased insurance in a Small Business Health Options Program, or SHOP.
As PolitiFact, Factcheck.org, and WaPo's Fact Checker all explain, this treatment is different and unusual, but it's hardly an exemption. Instead, the employer subsidy simply attempts to put members and staffers back in the position they would have been in if they were treated as employees with employer-subdized health insurance in any large corporation. In other words, the ACA treated members and staffers differently (worse) than similarly situated employees in large corporations; OPM merely tried to return them to their previous situation--so that they would be treated like everybody else.
Still, there's the question whether OPM had authority to authorize subsidies for member and staffer insurance purchases on an exchange, or whether that required a congressional fix to the ACA. Senator Johnson says OPM exceeded its authority--that this was a job (were it to be done at all) only for Congress.
Friday, December 13, 2013
Judge John D. Bates (D.D.C.) earlier this week dismissed Rep. Charles Rangel's suit against House Speaker John Boehner and others growing out of Rangel's censure in 2010 for a variety of improprieties.
Rangel sued Boehner and others after politico.com posted a memo purportedly written by the chief counsel of the House Ethics Committee. Rangel argued that that memo undermined the integrity of his censure proceeding--so much so that he had a cause of action.
The defendants moved to dismiss the case, arguing that Rangel lacked standing, the case raised a political question, the defendants enjoyed immunity from suit under the Speech and Debate Clause, Rangel's complaint failed to state a claim upon which relief could be granted, and even if the court had jurisdiction it should exercise its discretion not to reach the merits.
Judge Bates agreed. He concluded that Rangel lacked standing based on injury to his reputation (causation was too attenuated), his loss of status on the House Ways and Means Committee (again, no causation, because the Democrats lost seats on the Committee after the 2010 election, and it wasn't clear that Rangel's censure caused him to lose a subcommittee seat), the political exploitation of his censure by a primary opponent (because that's not an injury), or a due process injury (again, no injury).
Judge Bates also concluded that Rangel's claims were political questions, and that each defendant is immune under the Speech or Debate Clause.
Wednesday, December 11, 2013
The Senate confirmed Patricia Millett to the D.C. Circuit and Mel Watt to head the Federal Housing Finance Agency under its new, filibuster-free majority rule for confirmations (except Supreme Court confirmations). WaPo's Post Politics blog reports here. We posted earlier on Millett's nomination and on the Senate's move to do away with the filibuster for confirmations.
Tuesday, December 3, 2013
Opponents of the Affordable Care Act, or Obamacare, have set off a new wave of challenges to the Act, according to today's NYT. Among these: the religious challenges to the contraception mandate; cases challenging President Obama's extension of the employer mandate deadline; and challenges to the IRS rule providing a subsidy to purchasers of health insurance on the federal exchange.
As to that last one: plaintiffs in a spate of cases argue that Section 1401(a) of the ACA provides that purchasers of health insurance on a state exchange, but not the federal exchange, get a federal subsidy; yet the IRS issued a rule that extends the federal subsidy (in the form of a tax credit) to purchasers on the federal exchange. This, they say, violates the Administrative Procedures Act and the Tenth Amendment.
Why the Tenth Amendment? Opponents say that under the ACA an employer who declines to extend coverage has to pay a penalty if and when the federal government gives the employer's employees a subsidy for purchasing health insurance on a state exchange. Opponents say that the IRS rule extends this federal subsidy, and also the employer penalty, when the employer's employees purchase health insurance on the federal exchange. According to opponents, that undermines the state's policy decision not to open a state exchange in the first place. Or, as Indiana put it in paragraph 10 of its complaint in State of Indiana v. IRS:
[The IRS rule] contravenes the text of the ACA, thwarts Indiana's ability to execute State policy sparing employers from Employer Mandate penalties, induces Plaintiffs to reduce the hours of certain employees, including part-time and intermittent employees, to avoid having to provide all such employees with minimum essential coverage, and requires Plaintiffs to file onerous reports with the IRS detailing insurance coverage decisions. It thereby violates both the Administrative Procedure Act and the Tenth Amendment, and the Court should permanently enjoin Defendants from putting it into effect.
Later, in paragraph 17, it says:
In light of the IRS Rule, the State will be forced to reduce the hours of several part-time or intermittent employees in order to avoid the "assessable payment" or employer penalty of the ACA.
According to the Notice of Final Rulemaking, the IRS considered and rejected claims that the ACA itself limits subsidies to purchasers on state exchanges when it took comments on the proposed rule. The IRS said:
The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange. Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges.
The Supreme Court heard arguments today in Northwest, Inc. v. Ginsberg, the case testing whether the Airline Deregulation Act preempts a state-law claim for breach of implied covenant of good faith and fair dealing arising out of an airline's termination of a customer's membership in its frequent flyer program. Our argument preview is here.
Given that the Court has ruled in Wolens that the ADA does not preempt an ordinary breach-of-contract claim, arguments today turned on whether the claim for breach of implied covenant of good faith and fair dealing is simply an incorporated contract requirement or a rule of contract interpretation (so that it's actually part of the contract, and thus not preempted), or whether it's an additional state-imposed obligation on top of the plain terms of the contract (and thus preempted). This question is informed by the deregulatory purpose of the ADA. Justice Breyer framed the issue this way:
I absolutely agree wtih you that--that a free market in price is at the heart of the Deregulation Act. Given.
I also think frequent flyer programs are simply price discounts. Given.
I also think that if you don't have contracts, you can't have free markets. Given.
But I also think the State cannot, under the guise of contract law, regulate the prices of airlines. If you allow that, you're going to have worse than we ever had. It'll be 50 different systems, all right?
Justice Kagan framed it this way, suggesting a solution that would preserve the implied covenant claim:
I guess what I'm suggesting is that the implied covenant here, it's just an interpretive tool. It says that there are certain kinds of provisions that are written very broadly or very vaguely, and an implied covenant comes in to help us interpret those kinds of provisions. And viewed in that way, it's just a contractual device that in light of Wolens ought to be permitted.
Justice Sotomayor said it this way, and proposed a standard for distinguishing between ordinary breach-of-contract claims and implied covenant claims:
My simpler standard comes from quoting Hennepin: "Does the implied covenant claim extend to actions beyond the scope of the underlying contract, or can it override the express terms of the agreement? If the answer is no, it's not preempted."
The question is complicated by the fact that the frequent flyer program in this case gave Northwest the "sole discretion" to terminate. So: Is an implied covenant part of that contract, or is it an additional state-law requirement? And what's the standard for sorting that out?
As an initial matter, any standard may not answer the preemption question categorically. That's because different states interpret their implied covenant laws differently. This gave the Court another problem: Does it have to sort out the particular state law on implied covenants in order to determine whether a claim in a particular state is preempted? And might the answer change depending on the state, leading to inconsistent results and undermining the deregulatory purpose of the ADA? Justice Scalia put this point on it:
Wow, somebody's really been given a raw deal. You know, that's still going to be possible even if we rule for [Ginsberg] here. It depends on what State he's from, right?
Complicating things yet more, the answer may turn on the implied covenant's waivability. Justice Kagan made this point:
But if it can't be waived, it sure seems as though it is operating independently of the parties' reasonable expectations.
It may also turn on the fact that frequent flyer programs work for airline miles, but also for other goods and services--and thus state regulation of them may not amount to a regulation of airline price, in violation of the ADA. Justice Alito put it this way:
I don't want to take up your rebuttal time, but if the facts were that under a particular program 90 percent of the miles were earned by purchasing things other than flying and 90 percent of the miles were spent on things other than flying, wouldn't that be very different?
This could give the Court a way out of the problem, by ruling that state implied-covenant claims based on frequent flyer programs aren't preempted because they don't regulate the price of airline tickets. This seems unlikely, though: even if frequent flyer programs work for other goods and services, they still also work for airline tickets.
Finally, there's the presumption against preemption--and whether it has any bearing on this case. Chief Justice Roberts seemed to think so:
I do agree, it seems pretty inconsistent with the normal presumption against preemption that we apply out of respect for the State legal regimes to say we're going to adopt a broad prophylactic rule.
But Justice Scalia thought not:
But the whole purpose of the ADA was to preempt State laws. I mean, I can understand applying that presumption to other statutes which say nothing about preemption. The whole purpose of the ADA was to deregulate airlines, was to say there was going to be no Federal regulation. Let the free market handle it and there will be no State regulation.
On the one hand, a narrow ruling in this case--one that address Ginsberg's particular claim, under Minnesota law, recognizing that this particular program gave the airline "sole discretion" to terminate--seems both likely and appropriate, especially given the particularities of this case. But on the other hand, as at least some on the Court suggested, an overly narrow ruling, without a broader standard, leaves open the possibility (or even probability) that this very same issue, or one like it, could give the lower courts a headache in the 49 other states (where implied covenant claims might work differently).
If Ginsberg loses, and his claim is preempted, the U.S. Department of Transportation can still investigate Northwest's frequent flyer program. But that remedy doesn't do anything for Ginsberg.
Ever since the Supreme Court upheld the Affordable Care Act's individual mandate in NFIB, we've been treated to a new and surprising argument by constitutional conservatives. That argument is in favor of judicial activism. Yes, that's right: after years of railing against activist judges, conservatives now claim that the federal courts aren't activist enough, in particular, in checking out-of-control exercises of legislative power.
In a series of new books this fall, and reviews in the WSJ here and here (h/t Jon Gutek), constitutional conservatives argue that government regulation has gone wild, and that the courts have not properly checked this growth. Exhibit A: the Supreme Court's ruling upholding the individual mandate in NFIB.
For example, Randy Barnett, reviewing Clark M. Neily III's Terms of Engagement, argues that Chief Justice Roberts rewrote the individual mandate as a tax, using a "saving construction" as an exercise in judicial restraint in order to uphold a law validly enacted by the legislature. George Melloan, reviewing Josh Blackman's Unprecedented and Ken Cuccinelli's The Last Line of Defense, similarly argued that Chief Justice Roberts saved the mandate by "call[ing] the act's penalty for noncompliance . . . a 'tax' and waved the ACA through."
But this turns history on its head. The government always defended the individual mandate under both its Commerce Clause authority and its taxing power. It argued the tax point explicitly to the Supreme Court, starting at page 52 of its brief. It's hardly novel, then, let alone a rewrite of the Act, that the Court upheld the individual mandate under the taxing power. Indeed, it's exactly what the government argued. This may not be how constitutional conservatives read the Act's mandate, but it's how all three branches of government did. The Court's ruling on the taxing power wasn't a reach to defer to the legislature. Indeed, it wasn't a reach at all.
Barnett's argument that the courts aren't activist enough also ignores the startling activism of the Roberts Court. Remember, the Court rejected the individual mandate under the Commerce Clause, even as it upheld it under the taxing power. The Court also limited the Medicaid expansion component of the ACA. We could go on and on with examples of how this Court overturned state and federal legislative acts, but this one is undoubtedly the biggest: the Court last summer rejected the coverage formula for preclearance under the Voting Rights Act--a provision enacted by a breathtaking bipartisan majority in Congress and signed by a Republican president (no big government types, these). Given the history, it's hard to argue that this wasn't a supremely activist ruling. This Court has demonstrated its appetite for activism. But it's apparently not activist enough.
Barnett goes on to argue that judicial activism in the name of legislative restraint is necessary because voters don't know enough to hold their elected representatives accountable:
In practice, the claim that laws and administrative regulations reflect the will of the public is often a fiction. In the economic sphere, regulations are more commonly the product of pressure from politically connected and well-established companies at the expense of upstart entrepreneurs. Because voters know little about these laws and their impact, they can't hold their representatives accountable for enacting them, and the few affected individuals can hardly influence a general election.
This seems a remarkable claim, given the political backlash to the ACA, or Obamacare, and, as Melloan notes, the political blows that Obamacare supporters suffered in the 2008 mid-terms and beyond. Voters apparently knew how to hold Obamacare supporters accountable. But the claim is also ironic: the very problem that Barnett describes only gets worse with more money in politics--a result that the activist Supreme Court ensured when it overturned congressional regulation of corporate campaign expenditures in Citizens United.
These constitutional conservative talking points fall apart on their own terms. And that's not even getting to the merits.