Tuesday, December 16, 2014

District Judge Says President's Immigration Action is Unconstitutional

A federal district judge in Pennsylvania has taken it upon himself to rule President Obama's recently announced immigration action unconstitutional--in a case that apparently has nothing to do with the action. We've posted on President Obama's action, and challenges to it, here, here, and here.

The surprising and brazenly activist, stretch-of-a-ruling underscores just how political President Obama's action has become, driving a district judge to reach out in a wholly unrelated case to rule the action unconstitutional.

The ruling comes in a case involving an undocumented immigrant who pleaded guilty to re-entry into the United States by a removed alien in violation of 8 U.S.C. Sec. 1326. Judge Arthur J. Schwab (W.D. Pa.) then ordered the parties to brief whether President Obama's action has any impact on the defendant, and whether the action is constitutional. Despite the government's reply that the action wouldn't affect this defendant (because "the Executive Action is inapplicable to criminal prosecutions under 8 U.S.C. Sec. 1326(a), and . . . [it] solely relates to civil immigration enforcement status"), and the defendant's agreement with that position, Judge Schwab said that the action could protect the defendant from removal and went ahead to rule on its constitutionality.

Even if the action applied to the defendant, however, Judge Schwab didn't bother to explain why ti was relevant to this proceeding, or why he had to rule on its constitutionality, except to say this:

Specifically, this Court was concerned that the Executive Action might have an impact on this matter, including any subsequent removal or deportation, and thereby requiring the Court to ascertain whether the nature of the Executive Action is executive or legislative.

Judge Schwab went on to say why he thought the action was unconstitutional, relying not on the ordinary judicial tools for such an important task (like, say, the text of the law, serious consideration of Supreme Court precedent, prior executive practice, etc.), but instead on President Obama's public statements about the action. Judge Schwab wrote that the President can't act just because Congress won't (answering President Obama's public statements suggesting that he'd act unilaterally if Congress wouldn't) and that the President's action is policy-making, not prosecutorial discretion, because it treats a large class of people alike.

Oddly, after concluding that the action is unconstitutional, Judge Schwab goes on to consider whether it applies to this defendant. (His conclusion: maybe, maybe not. Judge Schwab says the action leaves the defendant in a "no-man's land.") Ordinarily, this question would come prior to the constitutional question--for constitutional avoidance reasons, but also because it is logically prior to the constitutional question. Still, Judge Schwab answered it second.

In a final surprising move, Judge Schwab says that President Obama's action violates the rights of the defendant, because it doesn't obviously grant deferred status to him, even as it grants deferred status to others.

Judge Schwab concluded by giving the defendant a chance to withdraw his guilty plea, go to sentencing and take one year supervised release in the United States, or go to sentencing and be turned over to ICE.

So the logic of the opinion appears to be this: The President's action is unconstitutional; but if it is constitutional, it doesn't obviously apply (or not apply) to the defendant; and therefore the defendant should have a chance to withdraw his guilty plea in order to (possibly) take advantage of the (unconstitutional) action. All this after both parties agreed that the President's action didn't really have anything to do with this case in the first place.

With all its twists and turns, it's really hard to make heads or tails of this opinion. But one thing is clear: This is not the stuff of a serious separation-of-powers ruling. If the case against President Obama's action is going anywhere, opponents are going to have to do better--much better--than this.

December 16, 2014 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2014

Daily Reads: On Torture

With the publication of the more than 500 page  "Executive Summary" of the Senate Select Committee on Intelligence Committee Study of the Central Intelligence Agency's Detention and Interrogation Program (searchable document here),  the subject of torture is dominating many public discussions.

A few items worth a look (or second look):

    In French, Justice Scalia's interview with Le Journal du matin de la RTS (videos and report) published today.  One need only be marginally fluent in French to understand the headline: "La torture pas anticonstitutionnelle", dit le doyen de la Cour suprême US.  (h/t Prof Darren Rosenblum).

    The French report will not surprise anyone familiar with Justice Scalia's discussion of torture from the 2008 "60 Minutes" interview discussed and excerpted here.

    The "ticking time bomb" discussion in Scalia's remarks is the subject of an interesting commentary by ConLawProf Rosa Brooks in Foreign Policy provocatively entitled "Tick, Tick, Bull, Shit."

    And while Justice Scalia contended that defining torture is going to be a "nice trick," LawProf David Luban's 2014 book Torture, Power, and Law offers very explicit definitions, even as it argues that these definitions can erode as torture becomes "normalized," seemingly giving credence to Scalia's point.

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Woodcut circa 1540 via

 

December 12, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, Foreign Affairs, International, Interpretation, News, Scholarship, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2014

States Sue Feds Over President's Immigration Policy

As expected, Texas Governor-Elect Greg Abbott led 17 other states and state officials in suing the federal government over President Obama's immigration policy.

The complaint contains no surprises; everything Abbott said would be in it is there. And as expected, it reads more like a political ad (in numbered paragraphs) than a serious legal complaint.

The complaint argues that the President, through DACA and administration immigration policies, caused a humanitarian crisis by encouraging illegal immigration and then turning a blind eye to undocumented immigrants within the country. It contends that the President, having created this crisis, now makes it even worse by authorizing an even larger class of certain undocumented immigrants to stay. The plaintiffs claim that even President Obama previously said, repeatedly (with quotes), that taking the kind of action that he took would have exceeded his authority. This all appears to be just context, or even political blustering; the plaintiffs don't say why or how any of it bears on their legal claims.

The complaint discusses the OLC memo that provides legal justification for President Obama's policy, but doesn't seriously try to undermine it. The complaint says only that the OLC justifies President Obama's policy based in part "on much smaller and more targeted deferred action programs that previous Congresses approved," such as "deferred action for victims of violence and trafficking, family members of U.S. citizens killed in combat, and family members of individuals killed in the September 11 attacks."

That's true, as far as it goes. But it also woefully under-describes the OLC analysis. The complaint doesn't take issue with the other components of the OLC memo, like the statutory analysis, e.g. The plaintiffs appended the OLC memo to their complaint.

The plaintiffs argue that the President's policy violates the Take Care Clause and the APA. As to the Take Care Clause, the complaint says, "the President admitted that he 'took an action to change the law.' The Defendants could hardly contend otherwise because a deferred action program with an acceptance rate that rounds to 100% is a de facto entitlement--one that even the President and OLC previously admitted would require a change to the law." As to the APA, the complaint alleges that the President's policy made law without proper authority, and without following notice-and-comment rulemaking procedures.

December 5, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 25, 2014

Is This Really The Best Case Against Executive Action on Immigration?

Texas Governor-Elect Greg Abbott put the finest point yet on Republicans' legal case against President Obama over his announcement last week to defer immigration enforcement action against certain unauthorized aliens. Abbott said in a statement yesterday that President Obama's move violated the Take Care Clause, Congress's immigration authority under Article II, Section 8, and the Administrative Procedure Act.

These claims are head-and-shoulders above the kind of general blustering we've heard from others in the debate. But they're still far from specific. Indeed, they're answered by the OLC's own legal analysis: the OLC relies on congressionally-designed flexibility in the text of the INA, among other legal authorities, to conclude that President Obama's action is consistent with, and supported by, the INA. In other words, Congress wrote the INA (using its authority under Article II, Section 8) to give the President just this kind of flexibility in enforcement. If that's true--and we haven't heard many (if any) specifics challenging this interpretation from opponents of President Obama's actions--then it seems odd to argue that President Obama isn't properly executing the law, or that he isn't respecting a uniquely congressional authority, or that he's violating the APA. Indeed, it seems that's exactly what he's doing.

Moreover, Abbott's statement is silent on prior executive practice, an important tool in sorting out this kind of separation-of-powers problem.

Abbott swears that "[t]his is a legal issue, not a political issue." But before we can take that claim seriously, it'd help if Abbott, Oklahoma AG Scott Pruitt, Kansas AG Kris Kobach, and others threatening suit sharpen their case with a little statutory interpretation and history of executive practice (to say nothing of Supreme Court precedent). We'll keep you posted.

November 25, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 21, 2014

House Republicans Sue Administration for ACA Actions

House Republicans filed their expected lawsuit against the Obama administration, arguing that the administration spend money on the Affordable Care Act's insurer offset program without an appropriation and extended the ACA's deadline for the employer mandate without congressional authorization. The complaint is here; Jonathan Turley's post on his blog onthe case is here; we previously posted on the issue here. It's also all over the news.

The case is only the latest move by opponents of the ACA to chip away and ultimately kill the Act by a thousand cuts. It's also only the latest move by opponents of President Obama in their effort to cast him as lawless.

House Republicans' first claim involves the administration's expenditures of funds that haven't been appropriated by Congress. The ACA contains two expenditure programs. The first, the Section 1401 Refundable Tax Credit Program, provides refundable tax credits for individual purchasers of health insurance on an ACA health insurance marketplace exchange. The second, the Section 1402 Offset Program, provides direct payments to ACA insurers to offset costs that they incur in providing cost-sharing reductions to beneficiaries that are required under the Act.

House Republicans claim that Congress funded the Section 1401 program, but did not fund the Section 1402 program. Yet they say that the Obama administration is using Section 1401 appropriated funds to make payments under Section 1402. In other words, House Republicans claim that the administration is spending money that wasn't appropriated by Congress, and shifting money from one line to another, in violation of Congress's exclusive power of the purse.

House Republicans also claim that the administration unilaterally extended the deadline for the ACA's employer mandate. The ACA says that large employers will be subject to tax penalties (or shared-responsibility payments), and that those penalties "shall apply to months beginning after December 31, 2013." But House Republicans claim that the administration unilaterally altered that date, without congressional action or congressional delegation, by extending the date by which penalties will be assessed by a year.

November 21, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, November 20, 2014

Legal Authority for President Obama's Immigration Action

The Office of Legal Counsel yesterday released an opinion on the President's legal authority for his immigration plan, which he'll announce shortly. Here's the summary, in three points:

The Department of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of the DHS's discretion to enforce the immigration laws.

The Department of Homeland Security's proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS's discretion to enforce the immigration laws.

The Department of Homeland Security's proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS's enforcement discretion.

In short, the first two are OK, because the executive has authority to prioritize enforcement based on available limited resources, the actions are consistent with (and not inconsistent with) federal law and congressional priorities, and there is precedent (i.e., similar prior executive actions) for them. The third is not, because it's not consistent with priorities in federal law, and because there's no precedent.

As to the first, OCL said that "DHS's organic statute itself recognizes [that DHS must make enforcement choices], instructing the Secretary to establish 'national immigration enforcement policies and priorities.'" It also said that the proposal is consistent with the removal priorities established by Congress, that it doesn't amount to a legislative rule that overrides the requirements of the substantive statute, and that it doesn't "identify any category of removable aliens whose removal may not be pursued under any circumstances."

As to the second, OCL said that deferred action for parents of U.S. citizens and legal permanent residents is a lawful exercise of executive power, because it's based on an allocation of scarce resources (deferring action against this class in order to shift very limited resources elsewhere), and because deferred action for this class is consistent with the INA's concerns with keeping families together when possible. OCL also noted that "the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past . . . ."

Finally, as to the third, OLC said that the President lacks authority to implement deferred action for DACA parents. OLC said that the considerations here are similar to considerations for deferred action for parents of U.S. citizens, but are different in two key respects. First, while immigration law expresses concern about keeping families together, it expresses this concern in the context of citizens and lawful residents, not DACA'd individuals (who "unquestionably lack lawful status in the United States"). Next, deferred action for DACA parents "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past."

Here are some other resources on the issue:

  • We posted on executive authority for DACA here.
  • The CRS has a report on Prosecutorial Discretion in Immigration Enforcement here, and a Memo on DACA authority here.
  • The Immigration Policy Center has a legal resources page on executive enforcement of immigration laws here.

November 20, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 10, 2014

D.C. Circuit Upholds Recess Appointment Under Noel Canning

The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.

The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.

The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."

Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."

But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).

November 10, 2014 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, November 7, 2014

Supremes Take Up Obamacare Subsidies

The Supreme Court today agreed to hear King v. Burwell, the case testing the federal government's authority to issue tax credits to individuals who purchase health insurance on a federal (not state) health-insurance exchange.

We posted on the Fourth Circuit ruling (along with a conflicting D.C. Circuit ruling) here; we posted on the D.C. Circuit en banc rehearing here.

The case tests whether the IRS can issue tax credits to low- and moderate-income individuals who purchase health insurance on a federal (not state) health-insurance exchange, in light of the language in the Affordable Care Act that, read in isolation, seems to limit those credits to purchasers on an "[e]xchange established by the State."

The plaintiff-petitioners argue that the this language means exactly what it says: that the government can provide credits only for purchasers on state exchanges, not federal exchanges. The government argues that other provisions in the ACA and the broader purposes of the Act show that Congress clearly intended to offer credits to purchasers on all exchanges.

Under the ACA, the federal government can step in an establish an exchange when a state declines to. Thirty-six states are now covered by a federal exchange; the rest established a state exchange.

If the plaintiff-petitioners ultimately win, the case would strike a serious blow to the universal coverage goal of Obamacare. That's because without the credits (which are significant, $4,700 per person per year, on average), low- and moderate-income individuals may not be able to afford insurance. Given that estimates put the number of individuals who have already received subsidies at nearly 5 million, the lack of subsidies could force large numbers out of the insurance pool and drive up rates for those in the insurance pool.

Today's grant was of the Fourth Circuit decision, which upheld the subsidies. The D.C. Circuit panel decision struck the subsidies, but the en banc D.C. Circuit vacated that ruling and agreed to rehear the case. (Oral argument is set for December 17.) All this means that there was  no circut split before the Court (although there were conflicting lower court rulings, at least before the en banc D.C. Circuit stepped in).) This probably says little, if anything, about the likely result in the case. (In particular: the Court didn't necessarily take the case to reverse the Fourth Circuit.)

The Court requires the votes of four Justices to grant review. But this, too, probably says little, if anything, about the likely result in the case. (We don't know which Justices voted for review, which voted against (if any), and why.) All we know is that four or more wanted to hear it.

November 7, 2014 in Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 3, 2014

Who Gets to Say Whether Israel Can Go on a Passport?

The Supreme Court heard oral arguments on Monday in Zivotofsky v. Kerry, the case testing whether Congress can require the State Department to list "Israel" as the country of birth for a U.S. citizen born in Jerusalem, upon the request of that citizen. The State Department has long declined to list "Israel" (or "Palestinian Territories" or the like) as the country of birth on such a passport, in order to promote its long-standing position of neutrality with regard to sovereignty over Jerusalem. This case tests which branch gets to decide whether Congress, or the executive branch, gets to decide what goes on the passport.

If arguments are any indication, this'll be a 5-4 opinion, along conventional lines (conservatives for Congress; progressives for the President). In short, conservatives didn't seem to think the Act's place-of-birth designation mattered much to recognition or to foreign affairs (or, as Justice Kennedy suggested, that its impact could be mitigated), and therefore that the Act didn't seriously interfere with any exclusive powers of the presidency. Progressives took the opposite view.

Zivotofsky tried to steer the Court toward his argument that the country-of-birth deisgnation on a passport has nothing to do with official recognition of a foreign sovereign. This position could allow the Court to dodge a thorny separation-of-powers problem entirely, by hanging its hat on the idea that the country-of-birth designation serves only an identification purpose, not a sovereign-recognition purpose. If so, the Court could rule for Zivotofsky by saying that Congress can require anything it wants in the place-of-birth line, because it doesn't interfere with the President's recognition power. (Or, as the government argued, the Court could rule for the government, saying that the congressionally required designation in effect requires the President to issue a diplomatic communication that contradicts the President's own recognition and foreign policy. But this would require at least some consideration of constitutional separation of powers--in particular, whether the President's power of recognition is exclusive.)

This approach seemed to get the attention of the conservatives on the Court. In particular, Justices Kennedy and Scalia in different ways seemed to suggest that the country-of-birth designation didn't recognize sovereignty. (If not, however, Justice Kennedy at one point wondered why Congress would have passed it in the first place.) Justice Kennedy returned several times to the ideal of a State Department disclaimer--that State could just write a statement that the place-of-birth designation didn't reflect the policy of the United States. And Chief Justice Roberts wondered later in the arguments whether the President's objections to the Act and the executive's position in litigation amount to a self-fulfilling prophecy--that is, whether designating "Israel" wasn't really all that big of a deal, until the President made it so. (This exchange, with SG Verilli, came up in a line of questions about why President Bush signed the Act in the first place, even with his constitutional reservations in the signing statement.) All these, and Justice Alito, suggested at different times that the country-of-birth designation wasn't all that important, anyway--a corollary to the country-of-birth-designation-as-mere-identification theory.

But Justice Kagan pushed back against the self-identification theory: she called the Act a "very selective vanity plate law," because it allows a passport holder to determine the designation of country of birth. She also underscored the passport-as-diplomatic-note point by asking whether a hypothetical congressional act would be constitutional if it required the State Department to inform all foreign minister that a new American was born in Israel whenever a new American was born in Jerusalem. (Zivotofsky's answer: Yes. Justice Kagan called this "a little bit shocking.") Justice Sotomayor went a step further and said (several times) that Zivotofsky and Act supporters wanted the government to lie--to say that Israel was the place of birth, even though the government doesn't recognize Israel as sovereign over Jerusalem.

Justice Breyer took an institutional competence view of the case, asking if the foreign affairs experts at the State Department declined to recognize Israeli sovereignty over Jerusalem, who was he to question them?

Justice Kagan took the final shot at the it-doesn't-matter-that-much view at the very end of arguments:

Can I say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?

It seems doubtful that she'll persuade her conservative colleagues.

 

November 3, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 15, 2014

Daily Read (and Videos): James Risen on James Risen

With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterlingthe situation of James Risen is in limbo.  In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source. 

19484530Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT.  As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).

Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others.  The segment explains and situates the controversy, including its current status under President Obama.  It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted." 

The entire segment is definitely worth watching:

 

 

 

Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:

AMY GOODMAN: So, you’re covering the very people who could put you in jail.

JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.

A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here).  One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.

For ConLawProfs teaching First Amendment, these "sources" could be well-used.

October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 14, 2014

Daily Videos: "Citizen Four" and Edward Snowden Interviews

With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.

First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.

 

 

Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:

 

 

October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

Judge Strikes Subsidies for Health Insurance Purchasers on Federal Exchanges

Judge Ronald A. White (E.D. Okla.) ruled today in Oklahoma v. Burwell that the IRS rule providing subsidies for individual purchasers of health insurance on an exchange established by the federal government (and not a state government) ran afoul of the plain language of the Affordable Care Act. Judge White stayed his ruling pending appeal, however, so it has no immediate impact on subsidies in Oklahoma.

Judge White's ruling aligns with the D.C. Circuit panel decision in Halbig and stands opposite the Fourth Circuit ruling in King. (Recall that the full D.C. Circuit vacated the panel ruling and agreed to rehear the case en banc. That argument is set for December.) All this means that there is currently no circuit split on the issue; instead, the Fourth Circuit upheld the tax subsidies, the full D.C. Circuit will reconsider them in December, and the Tenth Circuit will consider them soon (on the inevitable appeal from Judge White's ruling).

Judge White wrote that the plain language of the ACA resolved the case. That language allows a tax subsidy for a purchaser of health insurance who is "covered by a qualified health plan . . . enrolled in through an Exchange established by the State under section 1311 of the [ACA]." 26 U.S.C. Sec. 36B(c)(2)(A)(i) (emphasis added). Like the panel in Halbig, Judge White said that the language was clear, and that the IRS rule extending credits to purchasers of health insurance on exchanges established by the federal government (and not a state) violated it.

Judge White downplayed the effect of striking the IRS rule, saying that "apocalyptic" claims about the challenges tot he IRS rule are overstated. In any event, he wrote, Congress could re-write the law to specifically authorize the subsidies.

Judge White also ruled that Oklahoma had standing to challenge the IRS rule, because the state, as a large employer, would have been subject to federal penalties for some of its employees who might purchase health insurance on the federal exchange and qualify for a subsidy under the IRS rule.

Judge White's ruling probably doesn't make this case any more (or less) likely to go to the Supreme Court soon. With just two circuits weighing in so far--and one of them vacating the panel ruling and rehearing the case en banc--the Court will likely wait to see what the full D.C. Circuit, and now the Tenth Circuit, do with it. Still, the challengers in the Fourth Circuit case have asked the Supreme Court to review it.

September 30, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 24, 2014

President Obama Issues WPR Notices

President Obama sent two letters to Congress yesterday pursuant to the War Powers Resolution notifying it of U.S. military efforts in Iraq and Syria against ISIS and the Khorasan Group.

The first letter outlines "a series of strikes in Syria against elements of al-Qa'ida known as the Khorasan Group." It says that "[t]hese strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements." The letter cites as authority the constitutional Commander-in-Chief, Chief Executive, and foreign relations powers of the presidency, and authority under the 2001 AUMF, the authorization for use of force against those who planned the attacks of September 11 and anyone who helped or harbored them.

The second letter reviews previous military efforts against ISIS in Iraq and outlines the deployment of 475 additional troops to Iraq and the use of U.S. forces "to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support to select elements of the Iraqi security forces, including Kurdish Peshmerga forces." The letter also says that the President "ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against [ISIS] in Iraq and Syria . . . in coordination with and at the request of the Government of Iraq and in conjuntion with coalition partners." The letter cites the same authority as the first letter, above, along with the 2002 AUMF, the authorization for use of military force against Iraq.

The President has faced plenty of criticism for relying on his inherent constitutional authority and these two AUMFs in authorizing recent strikes. Congress is considering new AUMFs that would specifically authorize his actions. The Hill reports that Senator Levin, chairman of the Armed Services Committee, thinks that Congress will take up the measures after the mid-terms.

September 24, 2014 in Congressional Authority, Executive Authority, Foreign Affairs, News, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 9, 2014

Obama Tells Congress He Doesn't Need Approval for ISIS Campaign

According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night. 

While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.

Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.

September 9, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Senate Committee Considers Sharon Block for NLRB

The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB.  Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning.  Her nomination this time is going through the regular Appointments Clause process.

If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.

Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments.  They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).

Still, the full Senate will likely confirm her.  That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.

Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now.  In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.

 

September 9, 2014 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

D.C. Circuit to Rehear Obamacare Challenge

The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements.  Today's order also vacates that earlier ruling.  It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books.  The court will hear arguments on December 17.

Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit.  Today's order also removes that circuit split.

We last posted on the case, with background explanation, here.  In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange.  Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange.  The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges. 

A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch.  That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it.  An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway). 

September 4, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, August 28, 2014

Tenth Circuit Upholds NLRB Ruling with Recess Appointment

The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board.  The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board).  But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.

The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate.  The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause.  Under that language, Becker's appointment isn't presumptively invalid.  But the Tenth Circuit also suggested that it wasn't necessarily valid:

To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer.  One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.

Still, the court didn't touch the issue, because the parties didn't argue it.  ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.")  Instead, the court upheld the order on the merits.

August 28, 2014 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

House Republicans Authorize Suit Against President Obama

The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act. 

Here's the resolution, H. Res. 676

The case will have several problems right out of the gate, most notably standing.  Here's our last post on the suit, with links to earlier posts.

July 30, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Political Question Doctrine, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2014

Appeals Courts Issue Opposing Rulings on Obamacare Exchange Tax Credits

Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level).  A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated.  In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.

The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration.  If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare.  That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered. 

Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general).  All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong.  That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.

The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges.  Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges.  The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.

We posted more details on the D.C. case (in the lower court) here.

The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]."  But other sections of the Act treat an "Exchange" as only a state-created exchange.  And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so.  (Other portions of the Act are relevant, too, but these are the key portions.)

In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.

The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act.  They also said that the legislative purpose of the ACA supports this reading.  Because of the ambiguous language, the IRS could interpret it in any way that's reasonable.  And its interpretation was reasonable.

July 22, 2014 in Congressional Authority, Courts and Judging, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Monday, July 21, 2014

Obama (& Bush) on Executive Orders Regarding LGBT Discrimination and Religion

Today President Obama signed an Executive Order:  "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity." 

Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.

Here's the video put out by the White House:

 

 And here are some more specific details:

The Executive Order  broadens the terms of prohibited discrimination in federal employment in Executive Order 11478  by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."

It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."

As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”

But what about Bush's Executive Order?  Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial. 

GilmanThis might be a good time to reread Michele Gilman's terrific article from 2007,  If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007).  Gilman argues that Bush has exceeded his constitutional powers.  Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.

And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.

While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo.   It allows religious entities to discriminate on the basis of religion, but not on any other basis.  The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit."   It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.

July 21, 2014 in Equal Protection, Executive Authority, Gender, Scholarship, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)