Constitutional Law Prof Blog

President to Nominate Cordray (again) to Lead CFPB

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

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

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

SDS

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

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

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

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

SDS

President Obama's Signing Statement on NDAA

President Obama signed the National Defense Authorization Act for FY 2013 this week and, just as he did on last year's NDAA, issued a signing statement objecting to several provisions on separation-of-powers grounds.  In characteristic language, the President said that he will implement those provisions "to avoid a constitutional conflict."  This means, largely, that the administration will ignore them.  But it's unlikely that the administration will act contrary to all of them.

Perhaps the most notable provisions restrict the President's use of funds to transfer detainees out of Guantanamo Bay--either to the U.S. for criminal trials in regular Article III courts, or to other countries--or to house detainees in the U.S.  Last year's NDAA also contained similar restrictions.  These provisions--Sections 1022, 1027, and 1028--are designed to prevent the President from closing Guantanamo and detaining suspected terrorists in the United States; they effectively foiled the President's plans last year to close Guantanamo.

But another provision, Section 1025, new this year, similarly restricts the President's use of funds to transfer detainees out of the detention facility in Parwan, Afghanistan.  The President wrote,

That facility is located within the territory of a foreign sovereign in the midst of an armed conflict.  Decisions regarding the disposition of detainees captured on foreign battlefields have traditionally been based upon the judgment of experienced military commanders and national security professionals without unwarranted interference by Members of Congress.  Section 1025 threatens to upend that tradition, and could interfere with my ability as Commander in Chief to make time-sensitive determinations about the appropriate disposition of detainees in an active area of hostilities. 

The President also objected to provisions interfering with his authority to conduct foreign relations and supervise the executive branch.  As to the latter, Sections 827 and 828 enhance whistleblower protection for executive branch contractors.  The President wrote, "I will interpret those sections consistent with my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential."

Section 1034 requires the President to "transmit to the congressional defense committees a report by the Commander of the United States Strategic Command, without change, detailing whether the recommended reduction would create a strategic imbalance or degrade deterrence and extended deterrence between the total number of nuclear weapons of the United States and the total number of nuclear weapons of the Russian Federation."  President Obama wrote, "section 1034 would require a subordinate to submit materials directly to the Congress without change, and thereby obstructs the traditional chain of command."

SDS

Judge Dismisses FOIA Request for Legal Justification of Targeted Killings

Judge McMahon (SDNY) ruled Wednesday in New York Times Co. v. U.S. Dep't of Justice that the government need not disclose its legal justification for targeted killings in response to the plaintiffs' FOIA requests.  The ruling means that any OLC memo providing a legal justification for targeted killings (or any other government-issued legal justification) will remain under wraps unless and until the ruling is successfully appealed.

The case involves FOIA requests by the New York Times and Charlie Savage and Scott Shane, and the ACLU, for the government's legal justification for its targeted killing program--in particular, any OLC memos outlining the legal justification.  We covered the Times's complaint here; we covered the ACLU's complaint here.

The court held that FOIA did not compel the disclosure of any government legal analysis of the program, but not before outlining in some detail why "there are indeed legitimate reasons, historical and legal, to question the legality of killings unilaterally authorized by the Executive . . . ."  Op. at 17.  The court also noted the troublesome nature of its holding:

However, this Court is constrained by law, and under the law, I can only conclude that the Government has not violated FOIA by refusing to turn over the documents sought in the FOIA requests, and so cannot be compelled by this court of law to explain in detail the reasons why its actions do not violate the Constitution and laws of the United States.  The Alice-in-Wonderland nature of this pronouncement is not lost on me; but after careful and extensive consideration, I find myself stuck in a paradoxical situation in which I cannot solve a problem because of contradictory constraints and rules--a veritable Catch-22.  I can find no way around the thicket of laws and precedents that effectively allow the Executive Branch of our Government to proclaim as perfectly lawful certain actions that seem on their face incompatible with out Constitution and laws, while keeping the reasons for their conclusions a secret.  

Op. at 3.

In this lengthy opinion, Judge McMahon also surveys the several statements by Administration officials on the legality of targeted killing, in order to address (and reject) the plaintiffs' waiver arguments.

The court declined in camera review of withheld documents (in order to evaluate the government's claims under Exemptions 1 and 3), concluding that it didn't need in camera review to fully evaluate Exemptions 1 and 3, because Exemption 5 applied.  (Exemption 5 exempts disclosure of inter- or intra-agency documents that wouldn't be available to a party in litigation.  The government argued, and the court agreed, that the requested documents were covered by attorney-client and deliberative process privileges.)

The court granted the government's motion for summary judgment in full, "except to the extent of permitting the DoD to submit a supplemental and more fulsome justification for why the deliberative process privilege applies to two Unclassified Memos on its Vaugh Index."  Op. at 68.

SDS

150th Anniversary of the Emancipation Proclamation

Today marks the 150th anniversary of the Emancipation Proclamation, signed by President Abraham Lincoln on January 1, 1863. 

Here's the transcription from the National Archives:

The Emancipation Proclamation

Whereas, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be, in good faith, represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such State shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States."

Now, therefore I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-in-Chief, of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do publicly proclaimed for the full period of one hundred days, from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the Parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James Ascension, Assumption, Terrebonne, Lafourche, St. Mary, St. Martin, and Orleans, including the City of New Orleans) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth[)], and which excepted parts, are for the present, left precisely as if this proclamation were not issued.

And by virtue of the power, and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States, and parts of States, are, and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known, that such persons of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution, upon military necessity, I invoke the considerate judgment of mankind, and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the City of Washington, this first day of January, in the year of our Lord one thousand eight hundred and sixty three, and of the Independence of the United States of America the eighty-seventh.

By the President: ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

 RR
[pages of proclamation via]

No Standing to Challenge President's NLRB Recess Appointments

The Seventh Circuit ruled last week in Richards v. NLRB that the petitioners lacked standing to challenge President Obama's 2012 recess appointments to the NLRB.  The ruling means that this challenge to the recess appointments is dismissed.  We posted on another challenge, in the D.C. District, with links to other posts on those recess appointments, here.

The Seventh Circuit case arose out of a dispute over unions' rule that required non-union employees to file an annual objection to opt out of paying dues for the unions' non-collective-bargaining activities.  (Non-union members that are part of a union's collective bargaining unit can be charged dues for a union's collective bargaining, but they cannot be required to pay dues for non-collective-bargaining activities, like political activities.)  Non-members filed unfair labor practice charges against the unions, arguing that the annual renewal requirement violated the unions' duty of fair representation by placing an undue burden on objectors.  They sought an order striking the policies and a refund for non-members who at one time objected but failed to renew their objections.  The petitioners did not seek a refund for themselves, because they renewed their objections every year.

The NLRB granted the order striking the annual renewal requirement, but denied the refund for other non-members.

While the case was pending at the NLRB (on the petitioners' motion for reconsideration), on January 4, 2012, President Obama made three recess appointments to the Board, without which the Board would have lacked a quorum.  The NLRB later denied the petitioners' motion for reconsideration.

The petitioners argued that President Obama's appointments were invalid, and therefore that the NLRB's action on reconsideration was invalid.  They said that the Recess Appointments Clause allowed the President to make recess appointments only during intersessions of Congress (any recess between the two annual sessions of Congress, generally starting in December and ending on January 3, when the next session starts), not intrasessions of Congress (any recess during an annual session of Congress).  They also said that the Senate didn't consider itself in recess when President Obama made the appointments.  (It was in pro forma sessions.)

The Seventh Circuit dismissed the case for lack of standing and didn't reach the merits.  The court ruled that the plaintiffs already got all the relief they asked for and all they qualified for--that they suffered no injuries from NLRB decisions that could be remedied on appeal.  In particular, the court said that the NLRB already struck the annual renewal requirement, and that the petitioners didn't qualify for a refund because they renewed their objections annually and didn't pay the non-collective-bargaining assessment.

The court also ruled that the plaintiffs didn't have standing to seek postage fees they paid for their annual objection renewals, because they didn't raise this claim at the NLRB.

SDS

Court Rejects Bagram Detainees' Habeas Claims

Judge John D. Bates (D.D.C.) dismissed the habeas corpus claims of detainees at Bagram Airfield (Afghanistan) last week in Al Maqaleh v. Gates.  The ruling is the latest chapter in the detainees' quest to challenge their detentions by way of habeas in federal court, just as Guantanamo detainees won the right to challenge their detention by way of habeas in Boumediene v. Bush.  The detainees may appeal, but their chances seem slim, at best, especially given the history of the case.

Recall that Judge Bates originally ruled that Bagram detainees enjoyed the privilege of habeas in 2009.  Judge Bates wrote that with technology the courts could hear Bagram detainees' habeas claims just as easily as they could hear Guananamo detainees' claims, and that habeas claims wouldn't unduly disrupt the government's prosecution of the war.  But the D.C. Circuit reversed, saying that Bagram was fundamentally different than Guantanamo.  The D.C. Circuit ruled that Bagram was in an active war zone, that the government didn't have the kind of control over Bagram that it had over Guantanamo, and that habeas claims risked interfering with the government's prosecution of the war.

This latest case arose when the same Bagram detainees argued that certain developments at Bagram undermined the D.C. Circuit's ruling.  In particular, the Bagram detainees argued that new evidence showed that the government intends to stay at Bagram indefinitely; that recent criminal trials at Bagram showed that practical obstacles to litigation are far less serious than the D.C. Circuit believed; that the government was attempting to avoid habeas jurisdiction by detaining prisoners at Bagram; and that procedures used to determine the detainees' status are unacceptable.

Judge Bates rejected these claims, in short disagreeing with the detainees' interpretation of their new evidence, or saying that their "new" evidence wasn't new at all--that it was fully available to the D.C. Circuit when the D.C. Circuit issued its earlier ruling.

Judge Bates also rejected the habeas claim in a companion case brought by a minor, Hamidullah v. Obama.  Hamidullah argued that his age set him apart from the others, because habeas is "somewhat more robust" for minors.  Judge Bates ruled that he failed to support this argument.

The case likely marks the end of the line for Bagram detainees.  Even if they appeal, given the D.C. Circuit's ruling and Judge Bates's most recent ruling, they're likely to lose.

SDS

DOJ Moves to Dismiss Fast and Furious Suit

Earlier this week the Justice Department filed its motion to dismiss and supporting memorandum in Committee on Oversight and Government Reform v. Holder.  The motion was expected, and the arguments are not a surprise.

Recall that the Committee brought the case seeking a declaration that the administration's assertion of executive privilege was without merit and that its failure to turn over certain documents to the Committee in its investigation of the "Fast and Furious" program was without justification.  The Committee seeks an order requiring the government to turn over these documents.

Recall also that since the Committee filed its suit, the DOJ Inspector General issued its report into the program and testified before Congress on it.

DOJ argues that the court lacks Article III jurisdiction because the case presents a political question and that separation-of-powers principles counsel against the case moving forward.  In short, DOJ says that the political branches should work this out.  According to the Department, this is especially so with regard to material on internal deliberations regarding the Department's responses to congressional inquiries for substantive material on the program.

DOJ also argued that the court lacks subject matter jurisdiction and that the Committee has no cause of action.  It says that the Committee brought the case under 28 U.S.C. Sec. 1331, but that given the history of that provision and 28 U.S.C. Sec. 1365, the court lacks jurisdiction.  In particular, DOJ argues that Congress enacted 1365, giving the court jurisdiction over Senate subpoena enforcement actions, after Congress was foiled by the old amount-in-controversy in 1331.  (Congress asserted no claim for monetary damages in that case.)  Congress later removed the amount-in-controversy requirement, but DOJ argues that 1365, with its careful language limiting jurisdiction to cases brought by the Senate (not the House), trumps.  (Otherwise 1365 would be a nullity.)  If so, the court lacks jurisdiction over the House Committee's suit.  Morever, DOJ says that the Committee has no cause of action, because the Declaratory Judgment Act contains no independent cause of action (contrary to the D.C. District court's own relatively recent prior ruling in Miers) and because the Constitution grants no independent cause of action.

Now we wait for the Committee's response.

SDS

Daily Read: Bowden on Obama on binLaden's Possible Article III Trial

In the just-published book The Finish: The Killing of Osama bin Laden by Mark Bowden apparently argues that

in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. “We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.” Obama continues: “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

Obama's representations, given in an interview with Bowden, present an interesting - - - and perhaps unlikely - - - counterfactual.  Over at Lawfare, Wells Bennett observes that "it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 co-conspirators."

RR

Appeals Judge Stays District Court Injunction on NDAA Detention Authority

Charlie Savage at the NYT reports that Judge Raymond J. Lohier of the Second Circuit granted an interim stay of district Judge Katherine Forrest's permanent injunction against the use of the detention authority in the National Defense Authorization Act by the Obama administration.  Our post on Judge Forrest's injunction, along with background, is here.

The stay means that Judge Forrest's injunction does not prevent the government from acting under its detention authority in the NDAA, until a panel of the Second Circuit hears the case, scheduled for September 28.

This is a set-back for the plaintiffs in the case and other opponents of the NDAA's detention authority--but only a minor, maybe temporary one: everyone expected that the Second Circuit would have the next say on this case, whatever Judge Forrest ruled, and that the Supreme Court may have the final say.

SDS

Court Permanently Enjoins NDAA Detention Authority

Judge Katherine B. Forrest (SDNY) ruled in Hedges v. Obama that the detention authority in Section 1021 of the National Defense Authorization Act violated free speech and free association and was unconstitutionally vague.  Judge Forrest issued a permanent injunction against its enforcement.

The ruling comes nearly four months after Judge Forrest issued a temporary injunction in the same case.  The ruling means that the government cannot use Section 1021 as authority for military detention--at least in the Southern District, if not beyond--and it warns the government strongly against using the AUMF instead.  Judge Forrest wrote that the AUMF never authorized the kind of detention authorized in Section 1021--that Section 1021 is a new and different kind of detention authority--undermining the government's claim that the AUMF allowed this all along.  According to Judge Forrest, it didn't.  And still doesn't.  The ruling thus not only strikes Section 1021; it also strikes at the government's sweeping theory of detention under the AUMF itself.  Needless to say, the ruling is a huge victory for opponents of limitless and military detention without trial.

Recall that the plaintiffs in the case, a group of writers, journalists, and activists, sued the government, arguing that Section 1021 violated the First Amendment.  That Section provides:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons.  A covered person under this section is any person as follows

. . .

(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under the Law of War.  The disposition of a person under the law of war as described under subsection (a) may include the following:

(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

. . .

(d) Construction.  Nothing in this section is intended to limit or expand the authority of the President or the scope of the [AUMF].

The plaintiffs argued that the language was pliable and vague enough that the government could use Section 1021(b)(2) to detain them as "covered persons."

Judge Forrest agreed.  She ruled that the government had done nothing since the preliminary injunction to better or more clearly define vague terms in that subsection, and that it had done very little to assure her that the plaintiffs in this case wouldn't be subject to detention under its authority.  Here are some key points from the ruling:

• Standing.  Judge Forrest rejected the government's claim that the plaintiffs lacked standing, particularly becuase the government had done almost nothing to persuade her that the plaintiffs might not be subject to detention under Section 1021 in violation of the First Amendment.  Since the preliminary injunction, the government only issued a highly qualified statement that said that the plaintiffs, based solely on their independent activities described in their affidavits and testimony, wouldn't be subject to detention.  For Judge Forrest, this wasn't enough.  The highly qualified statement left the door wide enough open for prosecution of protected activities that the plaintiffs still had standing.
• AUMF Authority.  Judge Forrest categorically rejected the government's repeated claim in this litigation (and elsewhere) that Section 1021 only codified authority that it already enjoyed pursuant to the AUMF.  Judge Forrest was clear that the authorities differed--and that Section 1021 added to authority under the AUMF, that the AUMF didn't go so far as to authority detention of those "substantially or directly supporting" "associated forces."  She wrote that the government itself extended its own authority under the AUMF to resemble something like the authority codified in Section 1021, but that the AUMF itself (without the government's subsequent gloss) does not grant the same authority as Section 1021.  (The AUMF authorizes "all necessary and appropriate force against those . . . [who the President determines] planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons . . . ."  Compare that language to the language of Section 1021(b)(2), above.)
• Alternative Use of AUMF.  Related to that last point, Judge Forrest issued a strong statement warning the government against using the "substantially or directly supporting" theory as the basis of any detention.  She wrote,

If, following issuance of this permanent injunctive relief, the Government detains individuals under theories of "substantially or directly supporting" associated forces, as set forth in Section 1021(b)(2), and a contempt action is brought before this Court, the Government will bear a heavy burden indeed.

Op. at 14.

• Habeas.  Judge Forrest categorically rejected the government's claim that habeas would ensure that detainees under Section 1021 would get their day in court.  She said that if only habeas review were available to U.S. citizens detained within the U.S., core constitutional rights (like the right to a jury trial in a criminal case) would be eliminated.

SDS

DOJ Closes Torture Investigations, Declines to Prosecute

Attorney General Eric Holder announced yesterday that the Justice Department will not pursue criminal charges in the two cases--the only two, and the last two--that it investigated involving torture of detainees in U.S. custody.  The announcement means that no U.S. official, employee, or service member will face criminal charges for torture.

This announcement, along with the courts' now widely adopted view that civil suits for torture are barred by either the state secrets privilege or by "special factors" counseling against such suits (under Bivens), means that no U.S. official, employee, or service member is likely to face any judicial accountability for torture.

Recall that the Justice Department in 2009 tasked Assistant U.S. Attorney John Durham of the District of Connecticut with an expanded investigation into whether federal laws were violated in connection with the interrogations of specific detainees at overseas locations.  But AG Holder said that the Department wouldn't prosecute anyone who acted in good faith and within the scope of legal guidance by the OLC.  In June 2011, Durham recommended opening full criminal investigations into only two cases.  The announcement today means that those investigations are now closed--without prosecutions.

SDS

Fordham Discussion of the Constitutionality of "Targeted Killings"

Registration here

RR

ICE Officers Sue to Halt DHS Deferred Action

A group of ICE officers sued DHS Secretary Janet Napolitano today in the United States District Court for the Northern District of Texas to halt the Department's deferred action program, which defers removal of qualifying aliens.  (Deferred action is simply an exercise of executive discretion not to remove certain aliens; it's the administration's way of achieving the goals of the DREAM Act without a DREAM Act.)  The administration has argued that the program is a valid exercise of prosecutorial discretion.  We last posted on it here, including a link to a letter by immigration and constitutional law profs arguing that the action is fully constitutional (and outlining a handful of different ways that the administration might go about it).

It's not easy to get a case like this into the courts: by definition, it's hard to identify somebody who has been harmed (and thus who has Article III standing) by a non-action by the government.  The ICE officers claim that they're harmed because their bosses, through deferred action, are forcing them to violate federal law and their oaths to uphold federal law and the Constitution.  It's not clear that this will be enough; and even if it is, there's this problem: If the officers here have sufficient Article III harm, then any federal officer who has even a vague constitutional disagreement with his or her bosses' policies will be able to sue to stop them.  There are other preliminary problems, too, maybe most obviously the political question doctrine and related separation-of-powers considerations. 

The officers state five causes of action.  First, the officers claim that deferred action requires them to violate federal law that requires them to detain any alien "who is not clearly and beyond a doubt entitled to be admitted."  Next, they say that deferred action confers a benefit on qualifying aliens, the deferred action itself, that is not authorized by federal law.  Third, the officers argue that deferred action confers the benefit of employment authorization on qualifying aliens without any statutory basis and "under the false pretense of 'prosecutorial discretion.'"  Fourth, they say that deferred action amounts to a legislative act (as evidenced by the numerous DREAM Act bills in Congress that didn't pass) and thus intrudes on the powers of Congress.  Finally, they claim that deferred action violates the executive's constitutional obligation to take care that the laws are faithfully executed.

Between the preliminary problems and the inherently weak claims, it's hard to see that this case has much of a future.  But maybe it's not supposed to.  The complaint--signed by Kris Kobach and apparently bankrolled by NumbersUSA, a group that advocates for "lower immigration levels"--seems as much designed to get the issue out in the public as it is to get the issue into the courts.

SDS

Court Dismisses Operation Flex Challenge on State Secrets Privilege

Judge Cormac J. Carney (C.D. Cal.) this week dismissed a case brought by several Muslims challenging an FBI surveillance program on the government's assertion of the state secrets privilege.  (Thanks to emptywheel.net for links to the opinions below.)

The ruling, along with a companion ruling on the plaintiffs' FISA claim, terminates all but a sliver of the case.  It also illustrates what a powerful weapon the state secrets privilege can be--protecting an indiscriminate surveillance program that, as described by the plaintiffs, even the judge called "disturbing."  At the end of the day, Judge Carney dismissed the entire case (aside from the FISA claim, discussed below and dismissed in part on other grounds) on the government's own claim, based on a sealed declaration, that its defense would necessarily reveal state secrets.

The rulings in Fazaga v. FBI arose out of the plaintiffs' challenge to the FBI's "Operation Flex" program.  According to the complaint, the FBI engaged a civilian, Craig Monteilh, to conduct indiscriminate surveillance on Muslims in Southern California.  The surveillance resulted in hundreds of hours of video and thousands of hours of audio recordings from the mosques, homes, businesses, and associations of hundreds of Muslims.  But it didn't result in a single criminal charge.

The plaintiffs sued the FBI and its officers under several constitutional and statutory theories, including FISA.  The government moved to dismiss, arguing that its defense necessarily required disclosure of information that would harm national security--that is, state secrets--and the court agreed.  Judge Carney explained:

Here, Plaintiffs' claims are predicated on their core allegation that Defendants engaged in an indiscriminate investigation, surveillance, and collection of information of Plaintiffs and the putative class because they are Muslim. . . .  [T]he Court is persuaded that privileged information provides essential evidence for Defendants' full and effective defense against Plaintiffs' claims--namely, showing that Defendants' purported "dragnet" investigations were not indiscriminate schemes to target Muslims, but were properly predicated and focused. . . .  [T]he Court is [also] convinced that the privileged and nonprivileged information are inextricably intertwined, such that litigating the instant case to judgment on the merits would present an unacceptable risk of disclosing state secrets.

Op. at 31, 33 (emphasis in original).

Judge Carney's ruling is thorough and thoughtful--explaining the Totten bar and the Reynolds privilege; navigating between and synthesizing recent rulings coming out of the Ninth Circuit (Jeppesen Dataplan) and the Fourth  Circuit (El-Masri); reviewing the government's confidential supporting affidavit and memorandum; checking the government's assertion against the government's own standards and processes for asserting the privilege; and explaining in broad terms just what the kind of information might be disclosed in the litigation.  In other words, the ruling seems modest, balanced, and reasonable.

But still there's this: Judge Carney dismissed the entire case because the government's defense would have required revealing information that would harm national security, based only on the government's own say so.  The dramatic result creates a perverse incentive for the government to overreach in its surveillance programs, with the knowledge and comfort that it can successfully shut down an entire case simply by showing that any defense of it would reveal state secrets.  

In the companion ruling, Judge Carney dismissed the plaintiffs' FISA claim against the government, but not the individual defendants.  Judge Carney relied on the Ninth Circuit's recent ruling that FISA's civil damages provision did not unequivocally waive sovereign immunity.  But Judge Carney also said that nothing in the civil damages provision stops the suit against the individual defendants.  And the government didn't assert the state secrets privilege over the FISA part of the case.  

As a result, the plaintiffs' FISA claim against the individual defendants appears to go on.  We might expect a government assertion of the state secrets privilege over this remaining part of the case now.  If so, it could face a hurdle: The Northern District of California ruled in In re Nat'l Sec. Agency Telecomms. Records Litig., 564 F. Supp. 2d 1109, 1120 (2008) that FISA preempts the state secrets privilege with respect to a FISA claim.  While the court cited and discussed the case (in rehearsing the plaintiffs' argument), it's not clear that it would agree with it, or not.

SDS

House Committee Sues AG Holder for Fast and Furious Docs

The House Committee on Oversight and Government Reform filed its anticipated complaint today in the United States District Court for the District of Columbia against Attorney General Eric Holder, seeking a declaration that AG Holder's assertion of executive privilege is without merit and that his failure to turn over certain documents to the Committee was without justification, and requiring AG Holder to turn over certain "obstruction" documents.

We covered the Committee's vote to holder AG Holder in contempt here; we covered the administration's assertion of executive privilege here; and we covered the House authorization to file suit here.

The complaint seeks a mere subset of the larger body of documents originally sought by the Committee--the so-called "Obstruction Component" documents, relating to DOJ's alleged obstruction of the Committee's investigation into the Fast and Furious program.  (The Committee does not seek other documents covered in its earlier subpoena--the "Operations Component" documents, related to the operations of the program--although it maintains its right to seek and to receive those documents.)  The Committee explains, in paragraph 62 of the complaint:

The Department's and the Attorney General's response to the Committee's investigation has been woefully inadequate in every respect.  However, notwithstanding their lack of cooperation, the Committee has managed to obtain sufficient facts--principally through the aid of DOJ whistleblowers--to begin reporting to the American people on the Operations Component of its investigation.  Accordingly, although the Committee has a legal and constitutional right to obtain from the Attorney General all documents responsible to the Holder Subpoena not already produced, the Committee chooses in this action to seek only a limited subset of such responsive but unproduced documents, namely, those documents that are relevant to the Obstruction Component of the Committee's investigation which the Committee cannot obtain from any other source.  To that end, the Committee here seeks to compel the Attorney General to produce those documents dated or that were created after February 4, 2011, that are responsive to Categories 1, 4, 5, and 10 of the Holder Subpoena [attached to the complaint].  In the Committee's judgment, this limited subset of responsive documents--referred to herein as the "Post-February 4 Subset"--includes or constitutes the documents most likely to be relevant to the Obstruction Component of the Committee's investigation and, when produced, most likely to enable the Committee to complete its investigation.

Here's what the Committee thinks of the administration's executive privilege claim:

The principal legal issue presented here is whether the Attorney General may withhold that limited subset on the basis of "Executive privilege" where there has been no suggestion that the documents at issue implicate or otherwise involve any advice to the President, and where the Department's actions do not involve core constitutional functions of the President.

No Court has ever held that "Executive privilege" extends anywhere near as far as the Attorney General here contends that it does.  Indeed, it is no exaggeration to say that the Attorney General's conception of the reach of "Executive privilege," were it to be accepted, would cripple congressional oversight of Executive branch agencies, to the very great detriment of the Nation and our constitutional structure.  Accordingly, the Committee asks this Court to reject the Attorney General's assertion of "Executive privilege" and order him forthwith to comply with the Committee's subpoena, as set forth below.

Compl. at page 3.  

Recall that AG Holder urged the assertion of the privilege based on "executive branch deliberative communications"--supported, AG Holder argued, by several DOJ and OLC opinions (including DOJ advice, authored by Paul Clement, in the Bush administration relating to the assertion of executive privilege in the congressional investigation on the politicization of the Justice Department).  See Holder Memo at 2-3.  

The privilege dispute thus centers on whether the President himself had to be part of the communications--or whether the communication had to be in relation to advice to the President--or whether the privilege applies more broadly over "executive branch deliberative communications" that did not involve the President directly.

In the D.C. court's last foray into this and similar issues, in a similar case involving above-mentioned congressional investigations into the politicization of the Justice Department, Committee on the Judiciary v. Miers, Judge John D. Bates ruled that the Committee jumped the several significant hurdles to get the case into court and that White House Counsel Harriet Miers did not have absolute immunity from testifying before Congress.  (The case was stayed pending appeal and resolved itself by agreement of the parties in January 2009.)  

But while Judge Bates's opinion dealt at length with (and ultimately rejected) the defendants' claimed barriers to the Committee's suit, it did not resolve the executive privilege issues presented in this case.

Miers may provide useful guidance, though, for a more pragmatic reasons: The D.C. Circuit in that case declined to put the appeal on the fast track, suggesting that the case could become moot when the 110th Congress, along with its subpoenas, expired.  

This case, like that one, will not reach final judicial resolution (and maybe even not a district court ruling) before the end of the current Congress.  The case could fizzle out--that is, moot out, because the subpoena will have expired with the current Congress--when the new Congress comes in . . . unless the new House reauthorizes it.

SDS

Ninth Circuit Says No Waiver of Sovereign Immunity in Case Challenging TSP

In the latest and perhaps last chapter of the Al-Haramain case, the Ninth Circuit ruled that the government did not unequivocally waive sovereign immunity through the Foreign Intelligence Surveillance Act civil liability provision, ending the plaintiffs' case challenging the government's terrorist surveillance program.

As the court said, "[t]his case effectively brings to an end the plaintiffs' ongoing attempts to hold the Executive Branch responsible for intercepting telephone conversations without judicial authorization."  Op. at 8784.

Recall that the plaintiffs sued under the FISA's civil liability provision for damages resulting from the government's surveillance of them through the TSP.  Most recently, the district court ruled that the state secrets privilege did not foreclose the plaintiffs' suit--that "FISA preempts or displaces the state secrets privilege . . . in cases within the reach of its provisions"--and that the government implicitly waived sovereign immunity through FISA.  The district court ruling would have allowed the case to move forward.

But the Ninth Circuit stopped it.  The court ruled that the government did not unequivocally waive sovereign immunity through the FISA civil damages provision, and therefore the plaintiffs could not sue for damages from the government.

The FISA civil damages provision, 50 U.S.C. Sec. 1810, reads,

An aggrieved person . . . who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation . . . .

For the court, the key missing phrase was "the United States" (as in "against the United States" or "the United States shall be liable")--a mainstay of statutes in which the government unequivocally waived sovereign immunity.  Without such an unequivocal waiver, the government cannot be sued for damages.

Even with the government off the hook, though, the plaintiffs still could have proceeded against FBI Director Mueller, another defendant in the action (and a "person" under 50 U.S.C. Sec. 1810).  But the court said that the plaintiffs "never vigorously pursued its claim against Mueller" and dismissed it.  Op. at 8797.

The case almost certainly puts an end to the plaintiffs' litigation efforts to hold the government responsible for the TSP.

SDS

D.C. Circuit Strikes Copyright Judges' Removal Protection

A three-judge panel of the D.C. Circuit ruled today in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board that the appointment of Copyright Royalty Judges, or CRJs, violated the Appointments Clause.  The court remedied the violation by reading out of the CRJ statute the CRJs' for-cause removal provision and permitting the Librarian of Congress to remove CRJs at will.  The court said that this alone changed CRJs from "Officers" to "inferior Officers" under the Appointments Clause and allowed them to be appointed by the Librarian of Congress (as provided by statute), and without Presidential nomination and advice and consent of the Senate.

The ruling simply modifies a characteristic of the CRJs' job to put them in line with the Appointments Clause (by making them inferior officers) and sends the case back to the lower court for consideration of the merits.  It probably doesn't break any significant new ground under the Appointments Clause or separation of powers (even if this kind of ruling is relatively rare).  The court looks to both the power of the position and to its removability to determine whether it's an "Office" or "inferior Office," but the court turns it from an "Office" into an "inferior Office" by focusing only on removability.  The court's remedy--reading out of the CRJ statute the for-cause removal and leaving CRJs with only at-will removal--takes a page from the Supreme Court's playbook in Free Enterprise Fund v. PCAOB.

The case arose out of a challenge to a CRJ decision on licensing terms between an association of noncommercial webcasters who transmit digital music over the internet in high schools and colleges and owners of the songs' copyrights.  CRJs have statutory authority to set these terms, subject to review, discussed below, when the parties can't come to an agreement.  The association, Intercollegiate, didn't like the terms set by the CRJ and brought this case arguing that the CRJ is unconstitutional under the Appointments Clause.

That Clause, Article II, Section 2, Clause 2, says that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States," but that "Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."  Intercollegiate lodged a two-prong attack: First, it argued that CRJs were "Officers" and thus required Presidential nomination and Senate advice and consent (and that their appointment by the Librarian of Congress therefore violated the Appointments Clause); and second, it argued that the Library of Congress wasn't a "Department" (and that therefore Congress couldn't vest CRJs' appointment in its head, the Librarian of Congress, and their appointment was therefore unconstitutional).

The court agreed on the first argument, but disagreed on the second.  The court, principally applying Edmond v. United States, ruled that the CRJs were "Officers," not "inferior Officers" the the purpose of the Appointments Clause.  It wrote that the CRJs were supervised by the Librarian of Congress and the Registrar, but only as to pure issues of law, leaving the CRJs with vast discretion and authority to set rates on their own.  It said that CRJs could only be removed by the Librarian of Congress for misconduct or neglect of duty.  And it wrote that the CRJs' rate determinations were not reviewable or correctable by any other officer or entity within the executive branch (although they are reviewable by the D.C. Circuit).  Thus it ruled that the three Edmond factors lined up in favor of "Officer," not "inferior Officer."

But the court didn't stop there.  Following the Supreme Court's approach in Free Enterprise Fund, the court severed the removability provision for CRJs--the one that allows the Librarian of Congress to fire them only for misconduct or neglect of duty--and read out the "misconduct or neglect of duty" part.  The effect was to leave CRJs with no protection against termination--and to allow the Librarian of Congress to remove them at will.  This alone, the court ruled, turned the otherwise "Officers" into "inferior Officers."  And this allowed Congress to vest their appointment in the Librarian of Congress--exactly what Congress did--and saved them.  And: "We further conclude that free removability constrains their power enough to outweigh the extent to which the scope of their duties exceeds that of the special counsel in [Morrison v. Olson]."

As to Intercollegiate's second argument, the court ruled that the Library of Congress is a "Department" under the Appointments Clause.  It ruled that the Library's power "to promulgate copyright regulations, to apply the statute to affected parties, and to set rates and terms case by case" are associated with executive authority, even if there are some aspects of the Library (like the Congressional Research Service) that make it look like a legislative agency.  The Librarian of Congress is the Library's "head," and so the appointment of the now-inferior-officers is valid.

SDS

Congress Holds Holder in Contempt, Authorizes Suit

The House of Representatives voted today to approve House Resolution 706, holding AG Eric Holder in contempt of Congress for declining to turn over documents related to the DOJ's response to congressional and media inquiries into the Fast and Furious program.  Under the Resolution, the House holds AG Holder in contempt and authorizes the Chair of the House Oversight and Government Reform Committee, Rep. Darrell Issa, "to initiate or intervene in judicial proceedings in any Federal court of competent jurisdiction . . . to seek declaratory judgments affirming the duty of [AG Holder] to comply with any subpoena that is a subject of the resolution accompanying House Report 112-546"--the report issued by the Committee last week.

We posted on the Committee's vote here (with links to helpful sources); we posted on the administration's subsequent assertion of executive privilege here.

The move means that Rep. Issa and his committee can take the case directly to court, bypassing another option--referring the matter to the Assistant U.S. Attorney for D.C.  If Rep. Issa files, he will ask the court to order AG Holder to turn over the subpoenaed documents, notwithstanding the administration's assertion last week of executive privilege.  

The vote was 255 to 67, largely along party lines.  Seventeen Democrats voted with Republicans; two Republicans crossed the aisle.  More than 100 Democrats boycotted the vote altogether.

SDS

The Legality of the Administration's Position on Immigration

In the wake of President Obama's announcement last week that his administration would exercise prosecutorial discretion not to deport certain young people--undocumented aliens brought to the U.S. by their parents--Republicans cried foul and accused the President of overstepping his bounds by violating the law and not just enforcing it.  

Representative Steve King (R-IA) apparently moved one step closer to filing a lawsuit to stop the administration's move, citing separation-of-powers concerns.  Although we haven't seen a complaint yet, Rep. King argues, according to the Daily Caller, that the President's move was "constitutional overreach."  According to King:

If he can do this by memorandum, then he can raise the debt limit by the same standard.  He could argue that he's not going to audit nor enforce tax collection on certain classes of people.  He could do that by age group.  He could do that by race, by ethnicity.  The president can do anything he wants to do.

According to the story, Rep. King's "central argument" is that "the president has legislated by memorandum."

Rep. King's legal claims aren't particularly developed--they're bald, they overstate any slippery slope, and they're at least in part obviously false--but they well represent the kinds of claims we've heard from opponents of the President's move.

On the other side, a group of immigration and constitutional law professors sent this letter to the White House late last month, outlining three different ways that President might exert prosecutorial discretion under the law and prior practice.  According to the profs, the President could use "deferred action," "parole-in-place," or "deferred enforced departure" to support his prosecutorial discretion not to deport this class of individuals.  The profs argue that these methods are supported in both law and prior executive practice.

Indeed, Secretary Janet Napolitano's memorandum implementing the President's announced practice draws on deferred action, even if it doesn't cite specific authority (as the profs do).  The memo is careful to emphasize "prosecutorial discretion," attention to "enforcement priorities," and case-by-case consideration, ensuring that the practice stays on the execution-side of that sometimes fuzzy line between lawmaking (reserved for Congress) and law-executing (reserved for the President).  

The memo sets out 5 criteria for individualized consideration and says,

Our Nation's immigration laws must be enforced in a strong and sensible manner.  They are not designed to be blindly enforced without consideration given to the individual circumstances of each case.  Nor are they designed to remove productive young people to countries where they may not have lived or even speak the language.  Indeed, many of these young people have already contributed to our country in significant ways.  Prosecutorial discretion, which is used in so many other areas, is especially justified here.

As part of this exercise of prosecutorial discretion, the above criteria are to be considered whether or not an individual is already in removal proceedings or subject to a final order of removal.  No individual should receive deferred action under this memorandum unless they first pass a background check[,] and requests for relief pursuant to this memorandum are to be decided on a case by case basis.  DHS cannot provide any assurance that relief will be granted in all cases.

Opponents, like Representative King, seem to argue that President Obama's announcement represents a blanket policy that thrusts into the lawmaking power reserved for Congress.  But Secretary Napolitano's memo makes clear that this is no blanket policy; it is more like guidance to ensure that enforcement officers take the administration's priorities into account when determining whether to pursue deportation on a case-by-case basis.  And the law profs' letter shows why this exercise of prosecutorial discretion is supported by law and past executive practice.

Also working against opponents: Both the House and the Senate last year introduced legislation, but then let it stall in committee, to rein in the President's authority to do exactly what he did.  The bills, cleverly titled the Hinder the Administration's Legalization Temptation, or HALT, Act, H.B. 2497 and S. 1380, are both tied up in committees.  The bills, by moving to rein in the President, also recognize that the President has prosecutorial discretion.  Yet Congress didn't pass them, or even, apparently, prioritize them.

SDS