Constitutional Law Prof Blog

President Obama on Drones, Guantanamo

President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror.  Politico reports here.

President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities.  According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:

First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.

Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons.  It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.

Third, the following criteria must be met before lethal action may be taken:

1. Near certainty that the terrorist target is present;

2. Near certainty that non-combatants will not be injured or killed;

3. An assessment that capture is not feasible at the time of the operation;

4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and

5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.

Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force.  The United States respects national sovereignty and international law.

The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper.  The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target.  (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets.  Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.)  The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.  

SDS

Third Circuit Invalidates President Obama's NLRB Recess Appointment

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

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

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

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

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Daily Read: Congressional Research Service on Obama's Federal Court Nominees

The general perception that Congress has been recalcitrant regarding President Obama's nominees to the federal bench can be tested against the Congressional Research Service report, President Obama’s First-Term U.S. Circuit and District Court Nominations: An Analysis and Comparison with Presidents Since Reagan, authored by Barry J. McMillion.

Regarding Circuit judgeships, the report concludes:

During the first terms of the five most recent Presidents (Reagan to Obama), the 30 confirmed Obama circuit court nominees were tied with 30 Clinton nominees as the fewest number of circuit nominees confirmed. The percentage of circuit nominees confirmed during President Obama’s first term, 71.4%, was the second-lowest, while the percentage confirmed during G.W. Bush’s first term, 67.3%, was the lowest.

For district judges, the report declares:

President Obama’s first term, compared with the first terms of Presidents Reagan to G.W. Bush, had the second-fewest number of district court nominees confirmed (143 compared with 130 for President Reagan) and the second-lowest percentage of district court nominees confirmed (82.7% compared with 76.9% for President G.H.W. Bush).

As to the timeliness of the process, the report states:

President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).

 

The 31 page report has many specific details and statistics.  It's definitely worth a read for anyone interested in the federal judiciary.

RR

 

Government Seeks Supreme Court Review of Recess Appointment Power

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

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

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

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

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

Petition at 11-12.

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Epps Takes on Originalism in Recess Appointment Decision

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

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

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

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

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

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President Nominates Three to NLRB

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

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

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Drone Attacks Outside the Ongoing Conflict Zone

The Obama Administration has given us just a glimpse of its legal analysis authorizing its use of drone attacks on U.S. citizens in a foreign country outside the zone of active hostilities.  And that mere glimpse contains a telling, and deeply troubling, reference to an earlier episode, Nixon's bombing of Cambodia, writes Professor Mary Dudziak (Emory), author of War Time: An Idea, Its History, Its Consequences, in the NYT.

Dudziak points to a citation to a 1970 speech by Department of State Legal Adviser John R. Stevenson in the recently released "white paper" setting out the administration's legal justification for drone attacks.  In that speech, Stevenson argued that the U.S. had authority to take military action in Cambodia in self-defense against North Vietnamese attacks from that country.  Dudziak explains:

Since 1965, "the territory of Cambodia has been used by North Vietnam as a base of military operations," [Stevenson] told the New York City Bar Association.  "It long ago reached a level that would have justified us in taking appropriate measures of self-defense on the territory of Cambodia.  However, except for scattered instances of returning fire across the border, we refrained until April from taking such action in Cambodia."

But there was a problem:

In fact, Nixon had begun his secret bombing of Cambodia more than a year earlier.  (It is not clear whether Mr. Stevenson knew this.)  So the Obama administration's lawyers have cited a statement that was patently false.

Here's the full paragraph from page 4 of the white paper:

The Department has not found any authority for the proposition that when one of the parties to an armed conflict plans and executes operations from a base in a new nation, an operation to engage the enemy in that location cannot be part of the original armed conflict, and thus subject to the laws of war governing that conflict, unless the hostilities become sufficiently intense and protracted in the new location.  That does not appear to be the rule of the historical practice, for example, even in a traditional international conflict [i.e., a conflict between nations].  See John R. Stevenson, Legal Adviser, Department of State, United States Military Action in Cambodia: Questions of International Law, Address before the Hammarskjold Forum of the Association of the Bar of the City of New York (May 28, 1970), in 3 The Vietnam War and International Law: The Widening Context 23, 28-30 (Richard A. Falk, ed. 1972) (arguing that in an international armed conflict, if a neutral state has been unable for any reason to prevent violations of its neutrality by the troops of one belligerent using its territory as a base of operations, the other belligerent has historically been justified in attacking those enemy forces in that state).  Particularly in a non-international armed conflict, where terrorist organizations may move their base of operations from one country to another, the determination of whether a particular operation would be part of an ongoing armed conflict would require consideration of the particular facts and circumstances in each case, including the fact that transnational non-state organizations such as al-Qa'ida have no single site serving as their base of operations. [Citation omitted.]

Dudziak argues that the citation to Nixon's bombing of Cambodia illustrates a problem, instead of providing a precedent:

The Cambodia bombing, far from providing a valuable precedent for today's counterterrorism campaign, illustrates the trouble with secrecy: It doesn't work.  If Nixon had gone to Congress or announced the plan publicly, the historian Jeffrey P. Kimball has written, "there would have been an uproad."  But disclosure was ultimately forced upon him when he decided to send ground troops into Cambodia.  A new wave of giant antiwar protests erupted, and Nixon's ability to take further aggressive action became infeasible.

She writes that we expect more, and deserve more, of President Obama.

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Daily Read: Geoffrey Stone on Bradley Manning

On this week's WNYC show "On The Media," ConLawProf Geoffrey Stone talks about the Bradley Manning case.

Listen here:

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Portions of the show examine "the ‘aiding the enemy’ charge the government has brought against Bradley Manning, the man who gave hundreds of thousands of classified documents to WikiLeaks," including an interview with Yocahi Benkler, whose New Republic article we profiled here.  More of our discussions on Bradley Manning here, here, and here.

"On the Media" is broadcast on public radio throughout the nation; this week's show is worth a listen for anyone interested in the First Amendment.

RR
[image via]

 

NYC Soda Regulation Enjoined by State Judge

The constitutional issues in the challenge to NYC Health Code §81.53 - - - the New York City Department of Health regulation prohibiting sugary drinks in restaurants, movie theaters and arenas to exceed 16 ounces - - - largely involve the power of a city agency to promulgate such a rule.  Today, a state trial judge, Milton Tingling, issued an decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene enjoining §81.53 for violating the state separation of powers doctrine.  

After a lengthy discussion of New York City Charters - - - beginning with the first charter in 1686 - - - Judge Tingling wrote:

To accept the respondents' interpretation of the authoriy granted to the Board [of Health] by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. . . . The Portion Cap Rule, if upheld, would create an administrative Levianthan and violate the separation of powers doctrine.  The Rule would not only violate the separation of powers doctrine, it would eviscerate it.  Such an evisceration has the potential to be more troubling that sugar sweetened beverages.

The judge's conclusion that the regulation was therefor "arbitrary and capricious" followed from the lack of agency power.

The ruling is sure to be appealed from the supreme court - - - which in New York is the lowest and trial court - - - to an appellate court.

RR
[image via]

UPDATE: NYC filed an appeal the day after the decision; COMMENTARY on the opinion here.

Administration Won't Use Domestic Drones to Kill Americans, After All

It turns out that the administration won't use drones to kill Americans on U.S. soil after all, according to White House Press Secretary Jay Carney earlier today.  This seems a very strange thing to be relieved about, but this is the level of discussion after AG Eric Holder earlier this week suggested in a letter to Senator Rand Paul that there might be extraordinary circumstances when the White House could order such a strike.  Senator Paul then engaged in a 13-hour talking filibuster, holding up a vote on John Brennan to head the CIA, in protest.

In response to a question whether "the president has authority to use a weaponized drone to kill an American not engaged in combat on American soil," Carney simply said "No."  "The president has not and would not use drone strikes against American citizens on American soil," according to Carney.

Josh Gerstein at Politico posted the story here.

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[Picture: Air Force]

Paul's Filibuster and the Administration's Domestic Drone Authority

Senator Rand Paul started a talking filibuster today on the Senate floor, holding up John Brennan's nomination to head the CIA.  His problem?  The administration's use of drones.  In particular, a reply he received earlier this week from AG Holder in response to his question whether the government could use drones to target and kill U.S. citizens within the United States.  Here's Holder's answer:

The question you have posed is therefore entirely hypothetical, unlikely to occur, and one we hope no President will ever have to confront.  It is possible, I suppose, to imagine an extraordinary circumstance in which it would be necessary and appropriate under the Constitution and applicable laws of the United States for the President to authorize the military to use lethal force within the territory of the United States.  For example, the President could conceivably have no choice but to authorize the military to use such force if necessary to protect the homeland in the circumstances of a catastrophic attack like the ones suffered on December 7, 1941, and September 11, 2001.

Were such an emergency to arise, I would examine the particular facts and circumstances before advising the President on the scope of his authority.

Adam Serwer at Mother Jones was out front in reporting on AG Holder's letter.  Senator Paul's official web-site is posting his hour-by-hour comments on the floor.

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Daily Read: Dimock on Torture, Music, and Literature

Peter Dimock's just published book, George Anderson: Notes for a Love Song in Imperial Time, is a novelistic intervention in contemporary anguish about the legality of torture. 

In a starred review, Publishers Weekly explains,

The novel takes the form of a letter from Theo Fales, editor and memoir ghostwriter for former CIA operatives, to David Kallen, a government official who directed Special Forces trainers to torture him before signing a document that led to the legalization of torture by the George W. Bush administration. Fales attempts to teach Kallen a method he devised as a, "means by which every person rids the self of its inordinate attachment to empire and creates reciprocity."

It's a brief but challenging book, interweaving music and literature to interrogate the roles of lawyers and journalists regarding the use of torture.   It is worth a read by anyone exploring how the constitutionality of "enhanced interrogation" should be decided.

RR

 

Daily Read: Reinstein on Executive Power and Haiti

Today we celebrate "Presidents' Day" and ConLawProfs contemplating executive power might do well to consider the Haitian Revolution (1791-1804) as a formative experience. 

In his new article, Slavery, Executive Power and International Law: The Haitian Revolution and American Constitutionalism, available in draft on ssrn, ConLawProf Robert Reinstein argues that the "six administrations from George Washington through John Quincy Adams responded to the slave revolt and establishment of Haitian independence in ways that greatly expanded executive power." 

Indeed, as Reinstein reminds us, the first sole executive agreements were made by Adams with regard to Haiti (predating the seizure of the schooner The Wilmington Packet by six months).  Reinstein contends that the Haitian history is important because

Many of the most controversial questions presidents face in the modern era—whether to support regime change, use military force to protect American interests abroad, intervene in civil wars, arm foreign rebellions, form secret agreements with governments or belligerents, comply with obligations of international law—were first faced in the American reactions to the Haitian slave revolt.

Yet as Reinstein observes, the history also reveals conflicting executive interests, at times favoring  domestic fear of a similar slave-revolt and at other times favoring geopolitical (and capitalist) interests. At the center - - - not surprisingly - - - is Thomas Jefferson, who vowed to reduce Haiti's charismatic leader Toussaint L'ouverture to "starvation." 

But Reinsten also centers the Supreme Court's hostility to the establishment of the second independent nation in the Western Hemisphere.  Reinstein writes that as   "Congress debated the first Haitian embargo bill, a Representative asked: “Have these Haytians no rights?”"  Reinstein concludes that the "answer ultimately given by the United States government was unequivocal: “No.”"

An important - - - and oft-neglected - - - history of executive power as well as judicial power worth a read on Presidents' Day.

RR
[image of Toussaint L'ouverture from a French engraving circa 1802 via]

A Targeted Killing Court?

The idea to create a judicial check on the administration's use of targeted killings seems to be gaining some momentum, according to several sources, including WaPo and NYT.  According to the reports, the idea is to create a secret court, like the FISA court, to provide a measure of process before the government kills a person by drone attack.  There is some concern that a court could act quickly enough, however.  Senate Intelligence Committee Chairman Senator Diane Feinstein said she and others may explore the idea of a special court.

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DOJ Releases Memos on Drone Attacks to Senate Committee

The Justice Department today released a series of legal memos outlining the case for the administration's use of drone attacks to the Senate Intelligence Committee, according to WaPo.  But the memos are (inexplicably) not for public consumption.

The release came just days after the leak of a DOJ white paper outlining the legal case for drone attacks on Americans overseas, and just hours before John Brennan's confirmation hearing before the Committee to be CIA director.  Brennan defended the attacks in his testimony.

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DOJ White Paper Says Why Drone Attacks on Americans Are Constitutional

A Department of Justice white paper leaked to NBC gives the more detailed version of the administration's legal case for drone attacks against overseas Americans associated with al-Qa'ida.  (Note that the white paper is unsigned and undated; it is not an OLC memo.  It is titled simply "Department of Justice White Paper.")  Michael Isikoff wrote on the white paper here.  The leak is significant, because the administration has steadfastly refused to release a formal legal justification for the program.  Just last month, the administration successfully defended against a FOIA claim in federal court seeking legal justification for the program.)

According to the white paper, the president has constitutional authority to order drone attacks and is not prohibited by due process.  The paper says that the president has authority to respond to order strikes as part of his authority to defend the country against the imminent threat posed by al Qa'ida and associated forces, including U.S. citizens associated with al Qa'ida, under "the inherent right of the United States to national self defense under international law, Congress's authorization of the use of all necessary and appropriate military force against this enemy, and the existence of an armed conflict with al-Qa'ida under international law." 

According to the paper, due process does not prohibit this:

Were the target of a lethal operation a U.S. citizen who may have rights under the Due Process Clasue and the Fourth Amendment, that individual's citizenship would not immunize him from a lethal operation.  Under the traditional due process balancing analysis of Mathews v. Eldridge, we recognize that there is no private interest more weighty than a person's interest in his life.  But that interest must be balanced against the United States' interest in forestalling the threat of violence and death to other Americans that arise from an individual who is a senior operational leader of al-Q'aida or an associated of al-Q'aida and who is engaged in plotting against the United States.

Instead, the white paper sets out a three-part test for targeted killing of a U.S. citizen who is outside the United States and who is "an operational leader continually planning attacks against U.S. persons and interests":

(1) where an informed, high-level official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States;

(2) where a capture operation would be infeasible--and where those conducting the operation continue to monitor whether capture becomes infeasible; and

(3) where such an operation would be conducted consistent with applicable law of war principles.

The paper says that "[i]n these circumstances, the 'realities' of the conflict and the weight of the government's interest in protecting its citizens from an imminent atack are such that the Constitution would not require the government to provide further process to such a U.S. citizen before using lethal force."

The paper, however, goes on to define "imminent" quite broadly (and surprisingly): "the condition that an operational leader present an 'imminent' threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future."  The paper also goes on at length as to why this isn't unlawful murder. 

It mentions as part of the justification that "under the circumstances described in this paper, there exists no appropriate judicial forum to evaluate these constitutional considerations."

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D.C. Circuit Vacates al Bahlul's Military Tribunal Conviction

The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others.  (Thanks to Lawfare for the links.)  The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II.  (The government made the latter point in order to preserve the argument for appeal.)

Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012.  The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.

The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too.  But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.  

The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.

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

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

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

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

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

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

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

[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

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

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

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

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

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

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

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President to Nominate Cordray (again) to Lead CFPB

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

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

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

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Stockman, Paul Seek to Overturn Obama's Orders on Gun Control

Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control.  Politico reports here; The Hill here; and Stockman's press release is here.  (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)

According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both.  As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws."  Stockman's legislation, the Restore The Constitution Act, would

declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.

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