Saturday, April 5, 2014

District Court Rejects Targeted Killing Claim

Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan.  Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.

We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser.  Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.

The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism.  Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).

Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir.  Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing).  All three were U.S. citizens. 

Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others).  The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.  

Judge Collyer ruled that special factors counseled against a Bivens remedy.  Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:

In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role.  This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular.  Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.

Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military.  The need to hesitate before implying a Bivens claim is particularly clear.  Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces.  It is the Executive's position that AQAP is affiliated with al-Qa'ida. 

. . .

Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.

. . .

Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen.  Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.

Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.

The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense.  Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case.  The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.  

Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy.  She wrote that without these facts, the court "would have denied the motion to dismiss."

April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 28, 2014

D.C. Circuit Appears Split in Latest Obamacare Challenge

A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange.  We posted on those cases here.  In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange.  This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy.  So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).

That rule is what's at issue in these cases.  The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges).  Jason Millman over at the WaPo's Wonkblog explains the significance:

The subsidy question is central to the future survival of the law.  Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.

About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage.  Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage.  That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."

The D.C. Circuit is the first appellate court to hear arguments in these challenges.  Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote.  The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.

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

Tuesday, March 11, 2014

Feinstein Rails Against CIA Search of Committee Computers

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

March 11, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, March 7, 2014

FISC Rejects Government Motion to Keep Telephony Records More Than Five Years

Robson

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In an opinion today Foreign Intelligence Surveillance Court Judge Reggie Walton denied the Government's motion to amend a previous order requiring  "telephony metadata produced in response to the Court’s orders be destroyed within five years."  The Government argued that it should be allowed to retain data beyond five years because destruction of the metadata “could be inconsistent with the Government’s preservation obligations in connection with civil litigation pending against it.”

In denying the motion without prejudice, the judge reasoned that FISA’s minimization requirements are not superseded by the common-law duty to preserve evidence.  The Government's presumed "fear that the judges presiding over the six pending civil matters may sanction the government at some point in the future for destroying BR [telephony] metadata that is more than five years old," was, the judge stated, "far-fetched."  The judge's dismissal was without prejudice to a subsequent motion "providing additional facts or legal analysis, or seeking a modified amendment to the existing minimization procedures."

Taking the motion to dismiss at face value, it seems that the Government was actually worried that it might be sanctioned in civil trials if it destroyed evidence after five years and wanted a ruling from the court.

Telephone_Line_Time_is_Precious_Art.IWMPST4037

A more nefarious interpretation would be that the Government used the excuse of civil trials to attempt to extend the time it could keep telephony metadata, but was thwarted by the court.

And an even more nefarious interpretation would be that the Government wanted the "cover" of a court opinion to destroy telephony metadata that might be beneficial to plaintiffs in pending civil matters.

And an even more nefarious interpretation?   There are sure to be more speculations.

[image via]

March 7, 2014 in Cases and Case Materials, Executive Authority, Fourth Amendment, Opinion Analysis, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

Gitmo Detainees May Assert Mistreatment Claims

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)

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

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.

Daywefightback

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)

Aftermath of Windsor in the Federal Government: AG Holder's Memo

Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible."  Holder discussed the forthcoming memo in a speech delivered the previous weekend.

Memo DOJ

In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law."  This shifts the marriage validity question away from domicile or residence. 

Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."

Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.

One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges.  Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).

February 11, 2014 in Current Affairs, Executive Authority, Family, Fundamental Rights, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, February 10, 2014

Daily Read: The Intercept on the NSA and Targeted Killing

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.

Intercept

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.

February 10, 2014 in Congressional Authority, Executive Authority, Foreign Affairs, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Thursday, January 30, 2014

Is RFRA Unconstitutional?

RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and  Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners.  RFRA, 42 USC § 2000bb–1, provides that

(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.

(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—

™(1) is in furtherance of a compelling governmental interest; and
™(2) is the least restrictive means of furthering that compelling governmental interest.

Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment.  RFRA's findings explicitly state that :

(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and

(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.

The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores.  Thus, RFRA cannot constitutionally be applied to state laws. 

So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but"  quickly added.  But RFRA still applies to the federal government.  Or so we assume?

That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton.  Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government.  The brief argues that the "plain language" of the statute

establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.

Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional

has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it.  The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.

Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States.  That may seem highly unlikely, but stranger things have happened.

 

January 30, 2014 in Executive Authority, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 28, 2014

Can President Obama Increase the Minimum Wage for Government Contractors?

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.

January 28, 2014 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, January 26, 2014

Daily Read: Marjorie Cohn on the NSA Decisions and the Constitutionality of Surveillance

Over at Jurist, LawProf Marjorie Cohn (pictured below) intervenes in the constitutional conundrum caused by NSA metadata surveillance.

CohnRecall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.  

Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland.  But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.

Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."

But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.

Unless, of course, President Obama acts quickly to revise the program.

 

January 26, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Fourth Amendment, Scholarship, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Sunday, January 19, 2014

Does Obama's Ban on Lobbyists in Advisory Slots Violate Free Speech?

Schwinn-steven
Steven D. Schwinn, John Marshall Law School

The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees.  The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment.  The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.

Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974.  There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry.  As a result, ITAC members include representatives from major corporations. 

But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington.  In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees."  This meant that the appellants couldn't serve on ITACs.  Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.

The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed.  The court remanded the case for a determination of the First Amendment question.

The court distinguished Minnesota State Board for Community Colleges v. Knight.  In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment.  Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."

The court instead drew on the government-employee speech doctrine.  It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights.  In other words, the ban might violate the unconstitutional conditions doctrine. 

The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State."  The court wrote,

In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not).  The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."

January 19, 2014 in Cases and Case Materials, Executive Authority, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

Saturday, January 18, 2014

Daily Read: Jonathan Hafetz on Obama's NSA Speech

In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.

Hafetz-jonathan-lg_1

Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:

 The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.

Worth a read, in addition to our take here and Cyrus Farivar over at Ars Technica.

January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Friday, January 17, 2014

Obama's Speech and Directive on NSA Surveillance

In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities,"  regarding NSA Surveillance.   Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper,  Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.

While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:

Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.

As for Obama's specific reforms, critics might also argue that they are more "heat than light."  Importantly, Obama did pay more attention to "foreign" persons.  He also broadly stated:
 
In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.

But the details, as usual, can be a bit more perplexing.  For example, consider this qualification to "competitive advantage" :

Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive.  Afterwards, it tweeted the results of its assessment of Obama's performance:

EFF scorecard

 

January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 15, 2014

Obamacare Tax Credit Survives Lawsuit

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 herePolitico 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)

Tuesday, January 14, 2014

Senate Confirms Wilkins to D.C. Circuit

The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit.  WaPo reports here.  The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court.  We last posted on the issue here.

January 14, 2014 in Appointment and Removal Powers, Courts and Judging, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, January 13, 2014

Argument Review in Noel Canning, Recess Appointment Authority

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)

Friday, January 10, 2014

Noel Canning and the Recess Appointment Power

Steven D. Schwinn

John Marshall Law School

The Supreme Court will hear oral arguments on Monday in NLRB v. Noel Canning, the case testing the President's recess appointment power.  In particular, the case tests whether the President can make a recess appointment during a prolonged intra-session recess of the Senate in which the Senate sits in pro forma sessions every three days.  We most recently posted on the case here.

Here's a preview, reprinted, with permission, from the ABA Preview of United States Supreme Court Cases:

FACTS

The National Labor Relations Board, or the NLRB or the Board, consists of five members who are appointed by the president and confirmed by the Senate. Three members constitute a quorum, and without three or more members the Board cannot adjudicate cases involving unfair labor practices under the National Labor Relations Act.

On January 3, 2012, Board membership fell to two members. The next day, on January 4, 2012, President Obama sought to fill the three vacancies with recess appointments pursuant to the Recess Appointments Clause of the Constitution. That Clause allows the president “to fill up all Vacancies that may happen during the Recess of the Senate,” without obtaining the usual advice and consent. Thus President Obama purported to appoint Sharon Block, Terence F. Flynn, and Richard F. Griffin to seats that had become vacant on January 3, 2012, August 27, 2010, and August 27, 2011, respectively. The appointments, if valid, would have completed the five-member NLRB. (Two Board members, Chairman Mark G. Pearce and Brian Hayes, were confirmed by the Senate on June 22, 2010. Neither party disputes the validity of their appointments.)

President Obama purported to use the recess appointment power, because at the time the Senate was not meeting regularly. Instead, the Senate was operating pursuant to a unanimous consent agreement that provided that the Senate would meet in pro forma sessions only, “with no business conducted,” every three business days from January 3, the beginning of the second session of the 112th Congress, to January 23, 2012. The agreement said that each pro forma session would be followed immediately by another adjournment. The agreement meant that no senators were required to attend, except the one who gaveled in and out each pro forma session. (A previous and similar unanimous consent agreement ran from December 17 to January 3, 2012. The Senate interrupted that agreement once, on December 23, 2011, to pass a temporary extension to the reduced payroll tax.)

On February 8, 2012, a three-member panel of the Board, composed of Block, Hayes, and Flynn, affirmed the findings of an NLRB administrative law judge (ALJ) that Noel Canning engaged in an unfair labor practice. (The ALJ found that Noel Canning refused to execute a written collective bargaining agreement incorporating terms, related to wages and pension, that the union and Noel Canning agreed upon during contract negotiations. The ALJ found that Noel Canning’s refusal to execute an agreement violated §§ 8(a)(1) and (5) of the National Labor Relations Act.) Noel Canning appealed to the United States Court of Appeals for the D.C. Circuit, challenging the NLRB’s decision on its merits, and arguing that the Board could not act lawfully because it lacked a quorum. The court rejected Noel Canning’s arguments on the merits, but ruled that the NLRB lacked a quorum, and therefore did not act lawfully, because President Obama’s appointments violated the Recess Appointments Clause.

The Board sought review in the Supreme Court, presenting two questions that had been decided by the court of appeals. The Supreme Court granted review and directed the parties also to address “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”

CASE ANALYSIS

The Recess Appointments Clause, Article II, Section 2, Clause 3 of the Constitution, provides that “[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 Clause is designed to allow the president to fill vacancies that would otherwise require the advice and consent of the Senate when the Senate is not available to provide advice and consent. This case tests the pliability of that Clause.

The parties’ arguments turn on the plain language, meaning, and history of the Clause and presidential practice. In particular, the parties dispute (1) whether the Senate was on “the Recess” on January 4, 2012, when President Obama appointed the three members of the NLRB, (2) whether the vacancies on the NLRB “happen[ed] during the Recess of the Senate,” and (3) whether the president can exercise his recess-appointment authority when the Senate is convening every three days in pro forma sessions.

On each question, the parties also wrangle over separation-of-powers principles. In short, the government argues that the Senate should not be able to frustrate the president’s constitutional duty to execute the laws by holding up appointments by recessing with only pro forma sessions. Noel Canning counters that the president’s position represents a dramatic power grab over the recess appointment authority, at the expense of the Senate.

What is “the Recess”?

The government argues that the phrase “the Recess” applies to both an inter-session recess (that is, one between sessions of Congress) and an intra-session recess (that is, one during a session of Congress, as here). The government says that the definite article “the” does not change that. It contends that “the” is commonly used to refer to a category of events (and not a particular event, like “the [only inter-session] Recess”), even elsewhere in the Constitution itself. It also claims that the phrase “the Recess” was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British Parliament, state legislatures, the Continental Congress, and even the Constitutional Convention.

The government argues that excluding intra-session recesses from the Clause would undermine its purposes. In particular, the government says that excluding intra-session recesses would prevent the president from filling vacant offices, and thus exercising his constitutional responsibility to take care that the laws be faithfully executed, whenever the Senate is unavailable to provide advice and consent for a significant period of time.

Finally, the government claims that long-standing practice supports intra-session recess appointments throughout the nation’s history, and even before 1943. (The government particularly takes on the court of appeals’ assumption that there were only a handful of intra-session recess appointments before 1943, suggesting that presidents before 1943 thought they lacked the power to make them.) The government says, contrary to the court of appeals’ assumption, that presidents made intra-session recess appointments “in every year before 1943 in which there was an intra-session recess of significant duration.” It claims that “[a]t least fourteen Presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses.” And it contends that the practice was endorsed in a 1921 attorney general opinion and described as “the accepted view” in a 1948 comptroller general opinion. It says that nearly all presidents after President Truman made intra-session recess appointments, and that opinions of the attorney general, the Office of Legal Counsel, and the United States Court of Appeals for the Eleventh Circuit all reaffirmed the validated of intra-session recess appointments during that most recent period.

Noel Canning argues that the plain language of the Clause means that the president can exercise his recess appointment power only during inter-session recesses. Noel Canning claims that the Clause links “the Recess” with the “next Session,” so that “the Recess” refers only to inter-session breaks. It says that the Clause makes “the Recess” and the “Session” alternating states, so that “the Recess” must fall between “Session[s],” that is, formal, numbered Sessions of the Senate (and not daily “sessions”). Stated only slightly differently, Noel Canning contends that the plain language means that the Senate cannot be in “the Recess” and “the Session” at the same time—a condition necessary to support the government’s reading.

Noel Canning argues that the original understanding and historical practice support its plain reading of the Clause. It says that its reading is supported by “every executive or congressional official to construe the Clause prior to 1948,” by early commentators, and by other ratification-era documents and provisions. As to the historical practice, it claims that no president other than Andrew Johnson even attempted to make a recess appointment during an intra-session recess before 1921.

Finally, Noel Canning argues that the government’s position is not supported by the text, original meaning, or historical practice. Instead, it contends, the government’s position is simply the latest in a relatively recent series of increasingly aggressive assertions by the executive branch of mid-session recess appointment power.

Did the Vacancies Happen During the Recess?

The government argues that the Recess Appointments Clause authorizes the president to fill vacancies that exist during the recess, and not just those that arose during the recess. The government claims that the phrase “Vacancies that may happen during the Recess” is ambiguous (as recognized by President Jefferson in 1802 and by Attorney General Wirt in 1823), but can reasonably be read to include vacancies that exist during the recess. It says that this reading best serves the Clause’s purposes, to allow the president to fill all vacancies that occur. It claims that the contrary reading would cause offices to remain vacant “solely because prior occupants died or resigned—or those offices were first established—shortly before, rather than shortly after, a recess began.

The government also argues that long-standing practice supports this reading. The government says that since the 1820s, the vast majority of presidents have made recess appointments to fill vacancies that arose before a recess and existed during the recess. It claims that this practice was supported by a series of attorney general opinions and every court of appeals prior to the D.C. Circuit’s ruling here. The government says that before 1823, contrary to the court of appeals’ assumption, there was no settled understanding of this issue. But it contends that “there were indications from each of the first four Presidents—including actual appointments by Washington, Jefferson, and Madison—that recess appointments can indeed be used to fill vacancies that pre-existed the recess.”

Noel Canning argues that the plain text supports its position. In particular, it says that the Clause’s requirement that the vacancy must “happen during” “the Recess” means that the vacancy must arise during the recess. It says that the government’s contrary reading would erase the phrase “may happen during” from the Clause.

Noel Canning argues that its reading is supported by the original understanding and historical practice. It says that the first four presidents understood that the Clause was limited to those vacancies that arose during the recess, as did the Senate and numerous courts until the late nineteenth century. It contends that the executive branch’s longstanding practice “has been more equivocal than [the government] lets on,” and that the “Senate’s resistance more robust.” But in any event, it claims, that the political branches’ practices cannot override the Clause’s plain language and its structural protection against presidential overreach.

Did This Break Constitute a Recess?

The government argues that the Senate’s 20-day break, with only fleeting pro forma sessions in which no business was to be conducted, was a “recess” under the Recess Appointments Clause. The government claims that both the Senate (since 1905) and the president (since 1921) have formally recognized that the Senate is in “recess” under the Clause when the Senate’s members do not have to attend sessions and when the Senate cannot receive communications from the president or participate in making appointments. The government contends that these conditions held during the 20-day period here, notwithstanding the periodic pro forma sessions.

The government argues that the mere possibility that the Senate might have overturned its unanimous consent agreement, recalled its members, and conducted business cannot change this. The government contends that if that possibility alone meant that the president could not make a recess appointment, then the recess appointment power would be dormant anytime the Senate might come back into session, including during traditional inter-session recesses.

The government argues that historical practice does not support the use of pro forma sessions to prevent the president from making recess appointments. The government says that no president has acknowledged that pro forma sessions would prevent him from making a recess appointment, and that there is no settled presidential acquiescence in the practice of using pro forma sessions to frustrate a president’s use of the recess appointment power. Moreover, the government claims that the use of pro forma sessions by the House and Senate to comply with the Adjournment Clause (which prevents either house from adjourning for more than three days without the consent of the other) does not provide precedent for the Senate’s use of pro forma sessions here. The government says that the better view of this practice is that pro forma sessions do not satisfy the Adjournment Clause.

Finally, the government argues that the Senate’s use of pro forma sessions to frustrate the president’s exercise of his recess appointment power disrupts the balance of powers in Article II. The government says that this gambit—which the Senate has used since 2007 “to string together breaks in business lasting as long as 47 days”—would undermine the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

Noel Canning argues that the president cannot make recess appointments when the Senate convenes pro forma sessions every three days. It claims that the Senate has used pro forma sessions for a variety of purposes since 1854 (including for Adjournment Clause purposes), that the executive has recognized the validity of those sessions, and that presidents have historically refrained from recess appointments during pro forma sessions. Noel Canning contends that the executive branch previously acknowledged that pro forma sessions count under the Clause, and that this administration previously “expressly recognized that pro forma sessions preclude recess appointments.” (At oral argument in New Process Steel v. NLRB, 130 S. Ct. 2635, in 2010, Neal Katyal, then Principal Deputy Solicitor General, said, in response to a question from Chief Justice Roberts on the recess appointment power: “I think our office has opined the recess has to be longer than 3 days.” But just four days later, President Obama made a recess appointment to the NLRB.)

Noel Canning argues that pro forma sessions are actual and legitimate Senate sessions, with the capability of conducting business. Noel Canning says that this is so regardless of whether members have to attend. It also claims that the president has no authority to second-guess the Senate’s internal operations, including its use of pro forma sessions.

SIGNIFICANCE

This case threatens a key practice by presidents of both parties in filling executive vacancies in the face of an obstructionist Senate and ensuring the continued operations of executive departments. The appendices in the government’s merits brief, detailing recess appointments starting from the Washington administration, show just how widely this practice has been used—and how a rejection of the practice could threaten so many appointments and operations of the executive branch. The facts of this case well illustrate that threat: President Obama made his recess appointments to the NLRB in order to sidestep Senate obstructionism; without valid recess appointments, the NLRB would have had no authority to enforce the National Labor Relations Act.

But the case threatens more than just this particular NLRB. As the government writes in its certiorari brief, “[t]he decision potentially calls into question every final decision of the Board since January 4, 2012,” earlier Board orders, and the actions of “almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made . . . .” Considering the number of recess appointments (again, identified in the appendices to the government’s merits brief), there may be numerous such actions across the federal bureaucracy.

On the other hand, the case threatens a key Senate tool in checking the president. The Senate’s practice of using pro forma sessions to frustrate the President’s use of the recess-appointment power could be a very effective way for some in the Senate (or even the House, by way of the Adjournment Clause, see below) to advance their own agendas by way of the appointment process.

Aside from its implications, this case marks the latest round in the escalating gamesmanship between both parties in Congress and the White House over executive nominees. That gamesmanship includes (as relevant here) the use of the filibuster in the Senate to frustrate presidential appointments; the president’s use of the recess-appointment power to sidestep a filibuster or other obstruction in the Senate; and congressional efforts to prevent the president from exercising the recess appointment power. Those efforts include pro forma sessions, as in this case, and even House efforts to prevent a recess in the Senate. (For example, in May and June, 2011, Republicans in the Senate and House urged the Speaker of the House John Boehner to “prevent any and all recess appointments by preventing the Senate from recessing for the remainder of the 112th Congress.” The House could do this, because the Adjournment Clause says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was introduced in either chamber, and as a result the Senate held pro forma sessions every three days during extended breaks (rather than going on “recess.”) This case is just the latest move in this escalating struggle over nominations.

But the case is probably somewhat less significant than it was just a few months ago. That’s because the Senate’s abolishment of the filibuster in late 2012 for executive and lower court appointments removed a significant block to appointments—one that spurred the president’s use of the recess appointment authority in the first place. If the abolishment of the filibuster continues to mean that the president’s nominees can get a vote in the Senate, the president may not need to resort to the recess appointment power as much. (This could change if the Senate and the White House are controlled by different parties, so that a bare majority of the opposite party in the Senate could reject a nominee, even without resorting to the filibuster.)

There is a way that the Court could dodge the issue entirely. At least one amici, Professor Victor Williams, argued at the certiorari stage and again at the merits stage that the Court should dismiss the case as a nonjusticiable political question. If the Court so ruled, it would reverse the circuit court’s ruling on the constitutional question. That would mean that President Obama’s recess appointments to the NLRB would be valid, and that the circuit court’s ruling on the merits (against Noel Canning) would stand.

 

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

Tuesday, January 7, 2014

Daily Read: The Cointelpro Revelations

A new book, The Burglary: The Discovery of J. Edgar Hoover's Secret FBI by  Betty Medsger tells the "never-before-told full story of the 1971 history-changing break-in of the FBI offices in Media, Pennsylvania"  that made clear the "shocking truth"  that J. Edgar Hoover was spying on Americans and which led to the Ciontelpro scandal.

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The NYT report compares the 1971 incident to contemporary events:

"Unlike Mr. Snowden, who downloaded hundreds of thousands of digital N.S.A. files onto computer hard drives, the Media burglars did their work the 20th-century way: they cased the F.B.I. office for months, wore gloves as they packed the papers into suitcases, and loaded the suitcases into getaway cars. When the operation was over, they dispersed. Some remained committed to antiwar causes, while others, like John and Bonnie Raines, decided that the risky burglary would be their final act of protest against the Vietnam War and other government actions before they moved on with their lives."

The NYT video, part of its "retro report" series is definitely worth a watch.

On NPR, one important aspect is how Betty Medsger obtained and accessed the information:

"I think most striking in the Media files at first was a statement that had to do with the philosophy, the policy of the FBI," Medsger says. "And it was a document that instructed agents to enhance paranoia, to make people feel there's an FBI agent behind every mailbox."

The NPR segment is definitely worth a listen:

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January 7, 2014 in Books, Current Affairs, Executive Authority, Foreign Affairs, History, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Johnson Files Suit Over Congressional "Exemption" From Obamacare

Senator Ron Johnson (R-Wis) filed suit on Monday to halt the congressional "exemption" from Obamacare.   Here's the complaint.  We posted on the case here.

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:

 

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