Wednesday, January 25, 2017
Check out Daniel Hemel, Jonathan Masur, and Eric Posner's (all U. Chicago) piece in the NYT, arguing that Justice Scalia's opinion in Michigan v. EPA could block President Trump from building his wall.
Here's why. Scalia wrote in Michigan that the EPA's authority to issue "appropriate and necessary" regulations meant that it had to do a cost-benefit analysis on proposed rules. President Trump apparently intends to rely on the Secure Fence Act of 2006 as authority to build his wall. But that Act authorizes Homeland Security to take actions to secure the border only if they're "necessary and appropriate."
Hemel, Masur, and Posner argue that Scalia's opinion that "appropriate" includes a cost-benefit analysis should apply to President Trump's wall, too. And if so, they say it'll be very hard, even impossible, to justify it.
Check out Prof. Eric Segall's (Georgia State) piece in the LA Times, arguing that CREW has standing to sue President Trump for an Emoluments Clause violation. We posted on the case here.
Segall says that CREW's harm is greater than the plaintiffs' harms in other cases, where the Court granted standing. Citing Fisher and Massachusetts v. EPA, Segall writes that "[t]here are many examples of plaintiffs in high-profile and important cases having their cases heard despite injuries just as or even more abstract and tenuous than the ones put forward by CREW."
Monday, January 23, 2017
In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."
CREW's standing to sue will certainly be an issue. Here's the abridged version of what CREW has to say about its injury:
Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.
There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
Sunday, January 22, 2017
The New York Times reported today that a group of law profs, Supreme Court litigators, and former White House ethics lawyers will file a suit tomorrow alleging that President Trump is violating the Emoluments Clause. Here's the gist:
The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.
The plaintiff in the case is Citizens for Responsibility and Ethics in Washington, CREW.
We've posted on the Emoluments Clause and President Trump here and here (with links to others). Prof. Andy Grewel's (Iowa) paper, recently posted, referenced in the piece, and arguing that payment to a Trump hotel wouldn't violate the Emoluments Clause, is here.
The Office of Legal Counsel memo that concludes that President Trump can hire son-in-law Jared Kushner to the White House staff is mostly statutory construction. (It concludes that the anti-nepotism statute does not apply to the President's hiring authority for the White House Office. At the same time, however, it also concludes that conflict-of-interest laws do apply.)
But it contains just a wee little bit of separation of powers, too. Check it out:
Finally, we believe this result--that the President may appoint relatives to his immediate staff of advisors in the White House Office--makes sense when considered in light of other legal principles. Congress has not blocked, and mostly likely could not block, the President from seeking advice from family members in their personal capacities. Cf. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the President's need "[i]n making decisions on personnel and policy, and in formulating legislative proposals, . . . to seek confidential information from many sources, both inside the government and outside"); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act ("FACA") not to apply to the judicial recommendation panels of the American Bar Association in order to avoid "formidable constitutional difficulties"). Consequently, even if the anti-nepotism statute prevented the President from employing relatives in the White House as advisors, he would remain free to consult those relatives as private citizens.
Because conflict-of-interest laws apply to White House staff, according to the memo, this leaves the President with a choice: (1) seek the advice of a relative on an unofficial, ad hoc basis; or (2) "appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest."
Check out Seth Chandler's piece in Forbes, arguing that President Obama's unilateral executive actions on the Affordable Care Act set a precedent for President Trump's executive order scaling back the Act. "[A]ctions taken by the Obama administration to play fast and loose with administrative procedures and separation of powers have opened the door to the Trump executive branch to derail the ACA even without Congressional action." One example (of a few):
President Obama, after all, delayed enforcement of the employer mandate for a year for some large employers and delayed enforcement for two years for others. It was, the President asserted, too burdensome to comply with. President Trump might equally assert that, given the poor quality and high prices of ACA policies in many jurisdictions, it is too burdensome to comply with the individual mandate today.
Wednesday, December 28, 2016
A divided panel of the Tenth Circuit ruled yesterday that SEC Administrative Law Judges violate the Appointments Clause.
The important, pathbreaking ruling creates a circuit split--the D.C. Circuit went the other way earlier this fall--and tees the issue up for Supreme Court review.
The majority was careful to remind that its ruling extended only to SEC ALJs, not all ALJs, so it's not clear exactly how far the logic goes. It probably doesn't matter much, though, at least for now, because the case will almost surely go to the Supreme Court.
The case arose when David Bandimere challenged an SEC ruling against him, in part because the ALJ that issued the initial decision was appointed in violation of the Appointments Clause. The SEC rejected the argument, but the Tenth Circuit agreed with Bandimere. (The SEC ruled that the ALJ was an "employee," not subject to the Appointments Clause.)
The court ruled that SEC ALJs look just like the Tax Court Special Trial Judges at issue in Freytag v. Commissioner. In Freytag, the Supreme Court used a functional analysis to conclude that the STJs were inferior officers, to be appointed by "the President alone, in the Court of Law, or in the Heads of Department." The court said that SEC ALJs, like the STJs, (1) were "established by Law," (2) had "duties, salary, and means of appointment . . . specified by statute," and (3) "exercise significant discretion" in "carrying out . . . important functions." As inferior officers, the court said that they had to be appointed by the President, the courts, or a head of a department, and, because they weren't (this point wasn't contested), they violate the Appointments Clause.
The court parted ways with the D.C. Circuit on the same question, because, it said, the D.C. Circuit put too much emphasis on the third part of the Freytag analysis--in particular, that the ALJs didn't exercise final decisionmaking power: "We disagree with the SEC's reading of Freytag and its argument that final decision-making power is dispositive to the question at hand."
Judge McKay dissented, focusing on the differences between SEC ALJs and the STJs in Freytag ("Most importantly, the special trial judges at issue in Freytag had the sovereign power to bind the Government and third parties," while "the Commission is not bound--in any way--by an ALJ's recommendations") and the potentially sweeping implications of the ruling ("all federal ALJs are at risk of being declared inferior officers," and therefore in violation of the Appointments Clause).
Saturday, December 17, 2016
Check out this Brookings brief, The Emoluments Clause: Its text, meaning, and application to Donald J. Trump, just published by Norman Eisen, Richard Painter, and Laurence Tribe. From the intro:
Foreign interference in the American political system was among the gravest dangers feared by the Founders of our nation and the framers of our Constitution. . . .
As careful students of history, the Framers were painfully aware that entanglements between American officials and foreign powers could pose a creeping, insidious risk to the Republic. The Emoluments Clause was forged of their hard-won wisdom. It is no relic of a bygone era, but rather an expression of insight into the nature of the human condition and the preconditions of self-governance. . . .
While holding office, Mr. Trump will receive--by virtue of his continued interest in the Trump Organization and his stake in hundreds of other entities--a steady stream of monetary and other benefits from foreign powers and their agents.
Thursday, December 15, 2016
President Obama's 2016 Proclamation regarding Bill of Rights Day stresses the evolving nature of the Bill of Rights protections:
As it was originally created, the Bill of Rights safeguarded personal liberties and ensured equal justice under the law for many -- but not for all. In the centuries that followed its ratification, courageous Americans agitated and sacrificed to extend these rights to more people, moving us closer to ensuring opportunity and equality are not limited by one's race, sex, or circumstances. The desire and capacity to forge our own destinies have propelled us forward at every turn in history. The same principles that drove patriots to choose revolution over tyranny, a country to cast off the stains of slavery, women to reach for the ballot, and workers to organize for their rights still remind us that our freedom is intertwined with the freedom of others. If we are to ensure the sacred ideals embodied in the Bill of Rights are afforded to everyone, each generation must do what those who came before them have done and recommit to holding fast to our values and protecting these freedoms.
Two and a quarter centuries later, these 10 Constitutional Amendments remain a symbol of one of our Nation's first successful steps in our journey to uphold the rights of all citizens. On Bill of Rights Day, we celebrate the long arc of progress that transformed our Nation from a fledgling and fragile democracy to one in which civil rights are the birthright of all Americans. This progress was never inevitable, and as long as people remain willing to fight for justice, we can work to swing open more doors of opportunity and carry forward a vision of liberty and equality for generations to come.
As for how "Bill of Rights Day" became a named day - - - if not a true holiday - - - my previous discussion is here.
Tuesday, November 29, 2016
The United States Supreme Court has held that flag burning as expressive speech is protected by the First Amendment and that loss of citizenship is not a constitutional punishment for a crime.
In Texas v. Johnson (1989), the Court declared:
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . . . In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it.. . . There is, moreover, no indication -- either in the text of the Constitution or in our cases interpreting it -- that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole -- such as the principle that discrimination on the basis of race is odious and destructive -- will go unquestioned in the marketplace of ideas. . . .
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag -- and it is that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong.
To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to bee applied is more speech, not enforced silence.
Whitney v. California(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by -- as one witness here did -- according its remains a respectful burial. We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.
During the oral argument in Texas v. Johnson, the late Justice Scalia, who joined the Court's opinion, expressed scorn for the notion that the flag should be insulated from the First Amendment protections of speech. In a colloquy with the attorney for the State of Texas, Justice Scalia wondered if Texas could similarly criminalize desecration of the state flower, the blue bonnet. Scalia then remarked:
Well, how do you pick out what to protect?
I mean, you know, if I had to pick between the Constitution and the flag, I might well go with the Constitution.
As for the constitutionality of "loss of citizenship" as punishment for a criminal violation, the United States Supreme Court, in Trop v. Dulles (1958), declared that "Citizenship is not a license that expires upon misbehavior." In considering a statute that revoked citizenship for desertion by a member of the armed forces, the Court stated that the
use of denationalization as a punishment is barred by the Eighth Amendment. There may be involved no physical mistreatment, no primitive torture. There is instead the total destruction of the individual's status in organized society. It is a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development. The punishment strips the citizen of his status in the national and international political community. His very existence is at the sufferance of the country in which he happens to find himself. While any one country may accord him some rights, and presumably as long as he remained in this country he would enjoy the limited rights of an alien, no country need do so because he is stateless. Furthermore, his enjoyment of even the limited rights of an alien might be subject to termination at any time by reason of deportation. In short, the expatriate has lost the right to have rights.
This punishment is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress. He knows not what discriminations may be established against him, what proscriptions may be directed against him, and when and for what cause his existence in his native land may be terminated. He may be subject to banishment, a fate universally decried by civilized people. He is stateless, a condition deplored in the international community of democracies. It is no answer to suggest that all the disastrous consequences of this fate may not be brought to bear on a stateless person. The threat makes the punishment obnoxious.
The civilized nations of the world are in virtual unanimity that statelessness is not to be imposed as punishment for crime.
Thus it seems that the president-elect's sentiment is at odds with our constitutional precedent.
Nobody should be allowed to burn the American flag - if they do, there must be consequences - perhaps loss of citizenship or year in jail!— Donald J. Trump (@realDonaldTrump) November 29, 2016
Tuesday, November 22, 2016
Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.
The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.
At the same time, the new Trump Administration will almost surely undo these rules, anyway.
So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)
The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.
Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.
States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.
The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.
As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)
Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.
The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.
The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.
Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)
If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.
A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.
Julie Silverbrook of The Constitutional Sources Project has a worthwhile "brief history" of the Emoluments Clause, including the text and this excerpt from The Federalist No. 22: "Evils of this description ought not to be regarded as imaginary. One of the weak sides of republics, among their numerous advantages, is that they afford too easy an inlet to foreign corruption." The passage goes on to contrast monarchies with republican governments, the former being less susceptible to corruption because the hereditary monarch "has so great a personal interest in the government, and in the external glory of the nation, that it is not easy for a foreign power to give him an equivalent for what he would sacrifice by treachery to the State."
Scholar Zephyr Teachout has also been discussing Emoluments, as we noted here; And now might be a good time to reread Teachout's 2014 book Corruption in America). [update: If you don't have the book handy, her 2012 essay, Gifts, Offices, and Corruption is available on ssrn.]
While it has been argued that the Emoluments Clause should not apply to the President as we noted here, its application to a President-Elect is even more uncertain.
Law professors looking for a class exercise (or perhaps a paper topic) could use any number of examples, although a "hypothetical" based on an Argentina construction project might be useful. Here is the situation courtesy of a storify of tweets and here is the piece from The Hill.
Monday, November 21, 2016
Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.
The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.
The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.
The court went on to rule that the case raised a nonjusticiable political question:
Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.
The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:
Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.
Sunday, November 20, 2016
In Miami Herald Publishing Co. v. Tornillo (1974), a unanimous Supreme Court held that Florida's "right of reply" statute granting a political candidate a right to equal space to answer criticism and attacks on his record by a newspaper violated the First Amendment.
As the opinion by Chief Justice Burger phrased it:
the Court has expressed sensitivity as to whether a restriction or requirement constituted the compulsion exerted by government on a newspaper to print that which it would not otherwise print. The clear implication has been that any such a compulsion to publish that which "reason' tells them should not be published" is unconstitutional. A responsible press is an undoubtedly desirable goal, but press responsibility is not mandated by the Constitution, and, like many other virtues, it cannot be legislated. . . . Governmental restraint on publishing need not fall into familiar or traditional patterns to be subject to constitutional limitations on governmental powers.
Thus, while the President-Elect may simply be requesting "equal time" for "us," his widely reported tweet implicates serious constitutional concerns.
I watched parts of @nbcsnl Saturday Night Live last night. It is a totally one-sided, biased show - nothing funny at all. Equal time for us?— Donald J. Trump (@realDonaldTrump) November 20, 2016
Check out Seth Barrett Tillman's (Maynooth U., Ireland) contribution to the debate over Trump and foreign gifts in the NYT. (We linked to Zephyr Teachout's piece in the debate here.) Tillman argues that the Emoluments Clause, or Foreign Gifts Clause, doesn't even apply to the President. Check it out.
Friday, October 28, 2016
The Court today has granted certiorari in Glouster County School Board v. G.G.
As we previously discussed, while the constitutional issues are not in the foreground, it does involve important equality issues for transgender and gender nonconforming students as well as issues of Exceutive - - - or perhaps more properly, administrative agency - - - power.
The Court's Order limits the grant to Questions 2 and 3, thus eliminating the issue of the viability of "Auer deference" from consideration. The Questions presented in the certiorari petition are:
(1) Whether the court should retain the Auer v. Robbins doctrine despite the objections of multiple justices who have recently urged that it be reconsidered and overruled;
(2) whether, if Auer is retained, deference should extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and
(3) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.
Friday, October 14, 2016
Michael Gerhardt (UNC) and Richard Painter (U. Minn.) recently released The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change, an ACS Issue Brief that criticizes Senate obstruction of judicial nominees and proposes a solution.
Gerhardt and Painter argue that the majority and minority leaders in the Senate should enter into a pact "to keep their respective members completely committed to the objectives of allowing every judicial nomination the opportunity to receive a hearing and making public the reasons for any opposition." "An agreement between the majority and minority is the same mechanism that was used in 2013 to fix the problem with anonymous holds over judicial nominations, and it is the only kind of mechanism that can guarantee that our federal courts, including the Supreme Court, will be fully staffed and capable of exercising their constitutional functions as the third branch of government."
Gerhardt and Painter's latest solution complements their earlier ones, from this 2011 ACS Issue Brief. There the authors prescribed this four-part plan:
1. Nominees should get a Judiciary Committee hearing within 90 days of nomination;
2. The Senate should bar the use of anonymous holds;
3. Every nominee should come to the Senate with a presumption that the nominee will get a prompt Judiciary Committee hearing, with the burden falling on any senators who oppose the nomination "to make their case publicly"; and
4. When a nominee is reported out of committee, there's a presumption "that a majority 'yes' votes are needed to confirm the nominee," with an up-or-down vote within 120 days of the nomination.
Tuesday, October 11, 2016
In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.
The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.
In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:
The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.
Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).
After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.
Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.
Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).
This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.
Saturday, September 17, 2016
It's Constitution Day - - - week - - - yet again. And as we do every year, we commemorate it with a few notes.
First, there is the issue of the constitutionality of constitution day:
The right to be free of government-compelled speech - even speech that is worthwhile and beneficial - has been a "fixed star in our constitutional constellation" for over sixty years. That quote comes from Justice Robert Jackson, writing for the Supreme Court striking down a law expelling students who refused to recite the Pledge of Allegiance. Even though the country was in the middle of World War II at the time, the Court recognized that patriotism must be voluntary to be meaningful. Jackson did not mince words: "Those who begin coercive elimination of dissent soon find themselves exterminating dissenters."
The same is true now. Though we are at war, if we have to mandate patriotism or respect for the constitution, then we have already lost.
In part, this is because Constitution Day is a "mandate":
Federal law mandates that:
Each educational institution that receives Federal funds for a fiscal year shall hold an educational program on the United States Constitution on September 17 of such year for the students served by the educational institution.
Department of Education regulations provide that the law:
requires that Constitution Day be held on September 17 of each year, commemorating the September 17, 1787 signing of the Constitution. However, when September 17 falls on a Saturday, Sunday, or holiday, Constitution Day shall be held during the preceding or following week.
And then there is the issue of whether we should be honoring the Constitution's inception or its reconstruction:
On that date in 1870, our nation ratified the last of the Civil War Amendments. That date symbolizes our commitment to reconstruct the Founders’ immoral compromise and place under national protection the inalienable rights of all the nation’s people.
This year, President Obama's Presidential Proclamation stressed immigration - - - and included a mention of refugees - - - and also articulated a "living constitutionalism" theory:
America is more than a piece of land -- it is an idea, a place where we can contribute our talents, fulfill our ambitions, and be part of something bigger than ourselves. Each year on Citizenship Day, we celebrate our newest citizens who raise their hands and swear a sacred oath to join our American family. The journey they have taken reminds us that immigration is our origin story. For centuries, immigrants have brought diverse beliefs, cultures, languages, and traditions to our country, and they have pledged to uphold the ideals expressed in our founding documents. They come from all around the world, mustering faith that in America, they can build a better life and give their children something more. That is why I was proud to create the White House Task Force on New Americans, which is helping to build welcoming communities around our country and enhance civic, economic, and linguistic integration for immigrants and refugees. Through the Task Force, Federal agencies and local communities are working together to raise awareness about the rights, responsibilities, and opportunities of citizenship -- and to give immigrants and refugees the tools they need to succeed.
As a Nation of immigrants, our legacy is rooted in their success. Their contributions help us live up to our founding principles. With pride in our diverse heritage and in our common creed, we affirm our dedication to the values enshrined in our Constitution. We, the people, must forever breathe life into the words of this precious document, and together ensure that its principles endure for generations to come.