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)

Government Responds in Contraception Mandate Case

The government on Friday filed its response on the emergency application for an injunction pending appeal at the Supreme Court in the Little Sisters case.  That case tests whether the Obama administration's accommodation for non-profit, religious-affiliated organizations from the "contraception mandate" in Obamacare violates the Religious Freedom Restoration Act.  (This case is different than the Hobby Lobby case, testing whether the "contraception mandate" violates religious freedom of for-profit, non-religious companies.  That case is headed for the Supreme Court.)

We posted most recently on the issue (in another case) here.

Recall that the administration's accommodation allows religious-affiliated non-profits to escape the "contraception mandate" by certifying that they have a religious objection to the mandate.  Then their third-party administrator ordinarily must provide or arrange separate payments for contraception, costs to be reimbursed through an adjustment to federally faciliated exchange user fees.  This accommodation builds a kind of fire-wall between the organization and the third-party administrator's provision of contraception to the organization's employees.

Dozens or scores of organizations balked, however, claiming that the self-certification process violates their religious freedom--on the theory that self-certification is really just an authorization for another party to provide contraception, something that their religious beliefs forbid.  Lower courts are split on whether the accommodation violates the RFRA.

In the Little Sisters case, the district court concluded that the accommodation did not substantially burden the organization's religious liberties--in particular, that the self-certification requirement wasn't a burden, and that the organization's third-party administrator declined to provide coverage, anyway (see below).  The Tenth Circuit denied an injunction pending appeal, but Justice Sotomayor last week issued a stay, prompting DOJ to respond with its Friday filing.

This case is an especially bad test case, though.  That's because Little Sisters' third-party administrator is exempt from the contraception requirement (as a "church plan" under ERISA), and has said that it won't provide contraception.  In short: Little Sisters certifies, its third-party administrator declines to provide contraception (as it may), and no contraception is provided.  As the government explains:

In this case, however, as both of the lower courts again recognized, the third-party administrator of applicants' church plan says it will not provide contraceptive coverage.  As a result, a signed certification will discharge all employer-applicants' responsibilities under the contraceptive-coverage provision, and their employees will not receive such coverage from the third-party administrator.  Given these circumstances, applicants' concern that they are "authorizing others" to provide coverage lacks any foundation in the facts or the law.

January 7, 2014 in Cases and Case Materials, Executive Authority, News, Religion | Permalink | Comments (0) | TrackBack (0)

Sunday, January 5, 2014

Johnson to Sue Over Congressional "Exemption" From Obamacare

Senator Ron Johnson (R-Wis) writes in the Wall Street Journal that he'll file suit today to stop the congressional "exemption" from Obamacare.  Senator Johnson writes that the OPM rule allowing members of Congress and staffers to use the exchange and also get an employer subsidy violates the Affordable Care Act and exceeds executive authority.

The dispute over the congressional "exemption" goes way back.  But it turns out, there's no such exemption at all.  The ACA contained a provision that required members of Congress and their staffers to get health insurance on an exchange.  But that was unusual, because members and staffers already had employer-subsidized coverage under the Federal Employee Health Benefit Plan.  (Exchanges are for the uninsured or employees of small corporations, not for employees of large corporations who already have coverage.  Congress, which previously provided subsidized health insurance to members and staffers, nevertheless inserted a provision in the ACA that required members and staffers to use an exchange.)  As a result, members and staffers would have lost their subsidy.  So OPM stepped in and ruled this fall that members and staffers would qualify for an employer subsidy on the exchange if they purchased insurance in a Small Business Health Options Program, or SHOP.

As PolitiFact, Factcheck.org, and WaPo's Fact Checker all explain, this treatment is different and unusual, but it's hardly an exemption.  Instead, the employer subsidy simply attempts to put members and staffers back in the position they would have been in if they were treated as employees with employer-subdized health insurance in any large corporation.  In other words, the ACA treated members and staffers differently (worse) than similarly situated employees in large corporations; OPM merely tried to return them to their previous situation--so that they would be treated like everybody else.

Still, there's the question whether OPM had authority to authorize subsidies for member and staffer insurance purchases on an exchange, or whether that required a congressional fix to the ACA.  Senator Johnson says OPM exceeded its authority--that this was a job (were it to be done at all) only for Congress.

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

Friday, December 27, 2013

Shapiro on President Obama's Top Ten Constitutional Violations

Ilya Shapiro (Cato) wrote a list this week in Forbes of President Obama's Top Ten Constitutional Violations of 2013.

The top five are (not surprisingly) all related to Obamacare: (1) the delay of out-of-pocket caps; (2) the delay of the employer mandate; (3) the delay of the requirement to purchase compliant plans; (4) the exemption of Congress; and (5) the expansion of fines for employers who don't provide coverage in states where the exchanges are established by the federal government.  We posted on President Obama's authority for delays here, here, and here.

Number 8, recess appointments, is before the Court next month in Noel Canning, the case testing whether President Obama's intra-session recess appointments of three members to the NLRB violated the Recess Appointments Clause.  Number 10 is the mini-DREAM Act.

December 27, 2013 in Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata

In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.

352px-TelephoneHelloNellieThe judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.

The tone of the opinion is set by Judge Pauley's opening:

The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse filaments connecting al-Qaeda.

As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment.  For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:

Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s finding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.

For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy.  The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.

The absence of any Fourth Amendment claim means that there is not a First Amendment claim.  Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.

Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion.  In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue.  Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide."  Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon.  Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.

[image via]

 

December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

DNI Releases State Secret Declarations

The Director of National Intelligence this weekend released previously classified DNI and NSA declarations in support of the government's assertions of the state secrets privilege in litigation challenge the TSP program.  We posted on the government's assertion of the state secrets privilege in Jewel v. NSA here.

The cases, Jewel v. NSA and In re National Security Agency Telecommunications Record Litigation, both in the Northern District of California, challenged the NSA's "dragnet" surveillance program.  The declarations say that no such program exists, and that to defend the cases would reveal national security secrets.  

SDS

December 23, 2013 in Cases and Case Materials, Executive Authority, News, State Secrets | Permalink | Comments (0) | TrackBack (0)

Saturday, December 21, 2013

Spitzer Compares Bush and Obama

Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes.  As the title suggests, Spitzer compares the presidencies just in three dimensions.  But his piece also briefly summarizes the political science literature comparing other dimensions.  Here's Spitzer . . .

On war powers:

Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya].  Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.

On signing statements:

Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation.  This is nothing new. . . .  What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto.  As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States."  Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval].  Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on.  And Bush II's signing statement use continues to keep him in a class by himself.

On protective return pocket vetoes:

Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority.  Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism.  A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved.  Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.

December 21, 2013 in Executive Authority, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 3, 2013

The New Generation of Challenges to Obamacare

Opponents of the Affordable Care Act, or Obamacare, have set off a new wave of challenges to the Act, according to today's NYT.  Among these: the religious challenges to the contraception mandate; cases challenging President Obama's extension of the employer mandate deadline; and challenges to the IRS rule providing a subsidy to purchasers of health insurance on the federal exchange.

As to that last one: plaintiffs in a spate of cases argue that Section 1401(a) of the ACA provides that purchasers of health insurance on a state exchange, but not the federal exchange, get a federal subsidy; yet the IRS issued a rule that extends the federal subsidy (in the form of a tax credit) to purchasers on the federal exchange.  This, they say, violates the Administrative Procedures Act and the Tenth Amendment.

Why the Tenth Amendment?  Opponents say that under the ACA an employer who declines to extend coverage has to pay a penalty if and when the federal government gives the employer's employees a subsidy for purchasing health insurance on a state exchange.  Opponents say that the IRS rule extends this federal subsidy, and also the employer penalty, when the employer's employees purchase health insurance on the federal exchange.  According to opponents, that undermines the state's policy decision not to open a state exchange in the first place.  Or, as Indiana put it in paragraph 10 of its complaint in State of Indiana v. IRS:

[The IRS rule] contravenes the text of the ACA, thwarts Indiana's ability to execute State policy sparing employers from Employer Mandate penalties, induces Plaintiffs to reduce the hours of certain employees, including part-time and intermittent employees, to avoid having to provide all such employees with minimum essential coverage, and requires Plaintiffs to file onerous reports with the IRS detailing insurance coverage decisions.  It thereby violates both the Administrative Procedure Act and the Tenth Amendment, and the Court should permanently enjoin Defendants from putting it into effect.

Later, in paragraph 17, it says:

In light of the IRS Rule, the State will be forced to reduce the hours of several part-time or intermittent employees in order to avoid the "assessable payment" or employer penalty of the ACA.

According to the Notice of Final Rulemaking, the IRS considered and rejected claims that the ACA itself limits subsidies to purchasers on state exchanges when it took comments on the proposed rule.  The IRS said:

The statutory language of section 36B and other provisions of the Affordable Care Act support the interpretation that credits are available to taxpayers who obtain coverage through a State Exchange, regional Exchange, subsidiary Exchange, and the Federally-facilitated Exchange.  Moreover, the relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges.

December 3, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 19, 2013

Government Releases Trove of NSA Documents

The Obama administration late Monday released a trove of documents related to NSA surveillance, including key FISA court rulings and other materials going back to the Bush administration.  The NYT reports here.  Lawfare is covering the release and analyzing particular documents here.

The materials include documents on government e-mail and domestic phone surveillance, including the Bush administration's 2006 application for initial approval by the FISA court to collect bulk logs of domestic phone calls and a FISA court ruling approving a program to track e-mails during the Bush administration.

The Office of the Director of National Intelligence declassified and released the documents in response to FOIA lawsuits by the ACLU and EPIC.

 

November 19, 2013 in Congressional Authority, Executive Authority, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, November 18, 2013

Senate Republicans Block Third D.C. Circuit Nominee in Three Weeks

Senate Republicans once again successfully blocked a nominee for the D.C. Circuit.  Today's vote, 38 to 53, fell seven short of the 60 needed to overcome the Republican filibuster of Robert Wilkins's nomination to the court.  Politico reports here.

This now puts Republicans at 3-0 in the last three weeks in blocking judicial nominees to the D.C. Circuit.  In the last two weeks, they successfully filibustered Patricia Millett and Nina Pillard.

Some Senate Democrats are making more noise about using the nuclear option, that is, getting rid of the filibuster (the cloture rule) for judicial nominees.  Republicans (still) say that the court isn't busy enough to fill the three vacancies, and that they're just doing the same thing that Democrats did when they blocked President Bush's nominee to the court, Peter Keisler. 

Active judges on the court are evenly divided between those appointed by Democrats and those appointed by Republicans.  But five of the court's six senior judges--who still sit and decide cases--are appointed by conservatives.  Indeed, 15 of the last 19 appointments to the court were by Republican presidents.

November 18, 2013 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

How the President Should Deal With the Debt Limit

Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.

Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up. 

Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending.  All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.

So: what to do?

Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.

Those two criteria mean that the President should, even must, violate the debt limit.  That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up). 

Buchanan explains why this solution is novel--but also why it's right:

Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .

The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president.  They cannot.  We are not taking about choosing to increase or decrease future levels of spending, after all.  We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.

November 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 12, 2013

Senate Republicans Successfully Filibuster Pillard Nomination to D.C. Circuit

The Senate failed to break a Republican-led filibuster today on President Obama's nomination of Nina Pillard to the D.C. Circuit.  The vote on the cloture motion was 56-41, but 60 votes are needed to close debate. 

The move marks the second time in two weeks that Republicans have successfully filibustered President Obama's nominees to the D.C. Circuit.  The last failed cloture vote came on October 31, on Patricia Millett's nomination.

Republicans complain that the President is trying to "stack" this court, often called the second most important court in the country.  But that's not exactly right: Democratic Presidents still have a ways to make up with their nominees on the court, as we explained here.  The American Constitution Society's JudicialNominations.org has more information about judicial vacancies, including the D.C. Circuit, here.

No word whether the Democrats will use the nuclear option (and eliminate the filibuster for judicial nominations), but TPM Livewire reports that Senate Grassley "dared Democrats to 'go ahead,'" warning that such a move would make it easier for future Republicans "to appoint judges like Antonin Scalia."

November 12, 2013 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 5, 2013

Court Hears Oral Arguments in Bond v. United States on Treaty Power and Chemical Weapons

The oral arguments in Bond v. United States today evoked both the use of chemical weapons in the ongoing conflict in Syria and the understandings of the farmers of the Constitution regarding the  power given to the Executive, with "Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur."  The treaty at issue is the Chemical Weapons Convention, but also at issue is the Chemical Weapons Implementation Act.

Carol Anne Bond was convicted of a crime in violation of the Act, 18 U.S.C. § 229(a).  But the fact that she is not a "terrorist," but rather a venegful woman in a love triangle, has caused much consternation.  While the international arms-control agreement prohibits nation-states from producing, stockpiling, or using chemical weapons, Bond, a biologist, used her expertise to spread injurious chemicals on the property of her former best friend, after learning that the friend was pregnant by Bond’s husband.   Although Bond was prosecuted in state court, she continued her campaign against her former friend and she was eventually prosecuted in federal court.

772px-4308313563_502491392a_bAlabamaBombingGasIt's not the first time that Carol Anne Bond has been before the United States Supreme Court.  Recall that in 2011, the Court unanimously held that Bond could raise a Tenth Amendment claim in her prosecution, reversing the Third Circuit.

On remand, the Third Circuit rejected Bond's argument to  "set aside as inapplicable the landmark decision Missouri v. Holland, 252 U.S. 416 (1920), which is sometimes cited for the proposition that the Tenth Amendment has no bearing on Congress‟s ability to legislate in furtherance of the Treaty Power in Article II, § 2 of the Constitution."  Bond argued that "legal trends since the Supreme Court‟s 1920 decision in Holland make it clear that the Tenth Amendment should not be treated as irrelevant when examining the validity of treaty-implementing legislation."   The Third Circuit found that the Chemical Weapons Convention "falls comfortably within the Treaty Power's traditional subject matter limitation" and thus the implementing Act is "within the constitutional powers of the federal government under the Necessary and Proper Clause and the Treaty Power, unless it somehow goes beyond the Convention."  The Supreme Court (again) granted the petition for certiorari.

In a nutshell, Bond's prosecution under a federal law for what seems a state (local) crime raises issues of federalism not unlike the issues the Court has confronted regarding the power of Congress to criminalize guns in school zones (Lopez) or marijuana (Raich).  But the invocation of these cases at the beginning of Paul Clement's argument on behalf of Carol Anne Bond brought a clarification from Justice Scalia that the Court did not take the case to decide any Commerce Clause question.  Instead, the focus must be on the Treaty power and whether a treaty can alter constitutional structures, namely federalism.  

Later, Justice Alito returned to these cases as well as Section 5 (of the Fourteenth Amendment) to pose a question to the Solicitor General about the Treaty power as circumventing the Court's limitations, and interestingly demonstrating a familiarity with scholarly articles:

JUSTICE ALITO: Whenever -- when this Court has issued decisions in recent years holding that there are some limits on Congress's power, cases like Lopez and Morrison and City of Boerne, there have been legal commentators who have written articles saying that could be circumvented to -- through the use of the treaty power. Do you agree with that?

The Solicitor General eventually answered that it depended on "whether the treaty is a valid exercise of the treaty power."

The limiting construction of the statute proposed by Paul Clement - - - war-like use of the chemicals as includable within federal power - - - proved problematic at times.  The Solicitor General argued that this was "one of the very things we are trying to sort out right now in Syria under the Chemical Weapons Convention is where the line is between peaceful and warlike uses."  On the other hand, the lack of a line other than valid treaty also proved problematical. 

The Solicitor General often summoned originalist principles to support the primacy of a ratified treaty.  Justice Kagan in her questioning of Paul Clement suggested that all properly ratified treaties must be constitutional:

Because there's clearly a treaty power that does not have subject matter limitations. And, indeed, if you go back to the founding history, it's very clear that they thought about all kinds of subject matter limitations and James Madison and others decided, quite self-consciously, not to impose them. So where would you find that limitation in the Constitution?

MR. CLEMENT: I would find that limitation in the structural provisions of the Constitution and the enumerated powers of Congress. And I would say that it would be very -­

JUSTICE KAGAN: But this isn't an enumerated power. The enumerated power is the treaty power. So you have to find a constraint on the treaty power. Where does it come from?

MR. CLEMENT: Well, I think where that it would come from, again, is the structural provisions of the Constitution.

As to federalism being a limit, Chief Justice Roberts responded to the Solictor General's argument that the framers deemed the 2/3 ratification by the Senate was an important protection of the interests of the States by noting that at that time, the Senate was elected by State legislatures.
The tenor of the arguments, the echoes of Bond's previous unanimous success at the Supreme Court on the Tenth Amendment standing issue, and the Court's majority suspicion of federal power may mean another win for Carol Anne Bond before the United States Supreme Court.
[image via]

November 5, 2013 in Congressional Authority, Executive Authority, Oral Argument Analysis, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Monday, November 4, 2013

Conservative Physician Group Sues to Stop Individual Mandate

The Association of American Physicians and Surgeons filed suit last week to stop the government from enforcing the universal coverage provision (the individual mandate) in the Affordable Care Act.  The group argues that the court should issue an order prohibiting the enforcement of the individual mandate, because President Obama lacked authority to delay enforcement of the employer mandate.

Recall that President Obama this past summer unilaterally delayed enforcement of the employer mandate--the ACA's requirement that employers with over 50 employees provide health insurance for their employees.  The authority for this move, however, wasn't at all obvious.  That's because the ACA says in pretty clear language that the employer mandate "shall apply to months beginning after December 31, 2013."

We commented at the time that the question of authority might not matter, because it wasn't clear that anyone would have standing to challenge the delay.

Enter the AAPS.  The group argues that President Obama's delay of the employer mandate violates the separation of powers--that President Obama can't unilaterally delay enforcement of a statutory requirement. Still, it's not obvious why this group should have standing.  Here's what the complaint says:

13. Defendant's shifting of the mandate for health insurance premiums from employers to only individuals causes the elimination of many cash-paying patients from the medical practices of [plaintiff McQueeney, an AAPS member] and other AAPS members.  Defendant's shifting of the ACA insurance burden entirely onto individuals diverts their discretionary health care dollars towards insurance premiums, away from direct payments to physicians.  This significantly reduces the customer base for AAPS members who have "cash practices" accepting direct payments from patients.

That may not sound like the strongest theory of standing. 

But if standing's a weakness, there's more.  The complaint alleges that "Defendant changes legislation passed by Congress in violation of the separation of powers in the Constitution, and the Tenth Amendment."  (Emphasis added.)  The Tenth Amendment?  That seems surprising in this context, and unnecessary given the stronger arguments one might make about a President's inability to unilaterally delay the implementation of a mandate.

But if the invocation of the Tenth Amendment seems odd, there's yet even more.  The complaint argues that President Obama lacked authority to delay the employer mandate, but asks for a court order stopping the enforcement of the individual mandate

Between standing issues, a novel use of the Tenth Amendment, and redressability issues, this complaint has its problems. 

The attorney who filed it, Andrew Schlafly, is a conservative activist, son of Phyllis Schlafly, and founder of Conservapedia, a conservative web-site that grew out of one of Schlafly's home-school courses.

 

November 4, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Is it the Supreme Court's Role to Fashion a Standard for the Meaning of Clothes?

The United States Supreme Court today heard oral argument in Sandifer v. United States Steel Corporation centered on the meaning of  “changing clothes” in section 203(o) of the Fair Labor Standards Act.  The Seventh Circuit's opinion by Judge Richard Posner found in favor of U.S. Steel that donning and doffing the safety gear was not necessarily changing clothes, because

not everything a person wears is clothing. We say that a person “wears” glasses, or a watch, or his heart on his sleeve, but this just shows that “wear” is a word of many meanings.

Sandifer posnerHe included an image in the opinion (at right) and stated

Almost any English speaker would say that the model in our photo is wearing work clothes.

And indeed, Justice Ginsburg, during the oral argument at the Supreme Court did just that, but the discussion continued:

JUSTICE GINSBURG: But we're dealing with here, from the picture, that looks like clothes to me.

MR. SCHNAPPER: Your Honor, I think that your question raises an excellent point. One of the problems with the picture is that it withholds from you other information that you would use to assess whether to describe it as clothes. You don't know what -­

JUSTICE KENNEDY: Except you would look and say, those clothes probably have something special underneath them. I mean, in ordinary parlance I think that would be a proper use of diction.

MR. SCHNAPPER: If you saw an airbag jacket, you would probably call it clothes unless you are an equestrian. It looks like a jacket. If you saw a compression torsion -- a torso compression bandage in a photograph, you would call it clothes, because you don't have all the relevant information.

JUSTICE ALITO:  Why is it that the jacket and the pants in that picture are not clothes?

MR. SCHNAPPER: In our view -- well, let me -- part of it -- first of all, they are designed for a protective function, to protect you from catching fire.

In addition to the ruminations on the meaning of clothes, perhaps leading to a definitional rule, there were attempts to understand why it mattered in this interpretation of the statute.   The statute excludes from “hours worked”

any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

Thus an employee would need to be paid for putting on "gear."

But if the Court can't tell by simply looking, then what?  As Justice Kagan noted toward the end of the argument, the distinction between clothes and gear "seems the quintessential question of statutory interpretation to which we would normally defer to the agency," but in this case, the agency hasn't issued a regulation.  Justice Scalia offered his own explanation for the administrative failure to address the matter with a rule: "Too complicated is why." 

Thus, while Judge Posner's opinion did raise some constitutional considerations about agency and executive power regarding differing meanings driven by politics, the constitutional question implicit in the Supreme Court arguments involve the separation of powers and the role of the Court in statutory interpretation.

So it is up to the Court to "fashion a standard," as Eric Schnapper, representing Clifton Sandifer, phrased it during oral argument.

(cross-posted at Dressing Constitutionally)

November 4, 2013 in Congressional Authority, Courts and Judging, Executive Authority, Oral Argument Analysis | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 22, 2013

Daily Read: The Meaning of "United States"

The meaning of "United States" if often not as clear as one might assume, demonstrated by much of the litigation surrounding Guantanamo Bay (which is geographically if not politically in Cuba).

  594px-1854_Map_of_USA_Mexico

Over at Lawfare, law student Raffaela Wakeman has a good description (and audio) of the oral arguments in Al Janko v. Gates before the DC Circuit.  She also has a good preview of the argument.  Al Janko is seeking damages for his detention at Guantanamo Bay, which was determined to be unlawful by a federal district judge.   

This requires the court to construe the jurisdiction-stripping provision of the Military Commissions Act, §2241(e)(2), which reads: “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 detained by the United States and has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.”

In short, does a federal judge's determination that Al Janko was not properly detained count as a determination by "the United States"?   The Government argues that it does not and that in this statute, United States means only the Executive (Al Janko's detention was determined to be proper by Combatant Status Review Tribunals). 

There are constitutional issues raised by the Bivens claim, but these tend to be backgrounded by the statutory interpretation issue of the meaning of "United States."

[image: map via]

 

October 22, 2013 in Current Affairs, Executive Authority, Interpretation, Jurisdiction of Federal Courts | Permalink | Comments (0) | TrackBack (0)