Tuesday, January 7, 2014

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)

Monday, October 21, 2013

Daily Power Point Slides: PRISM, Surveillance, France and the NSA

Many will be considering the new revelations regarding the NSA and France, published in Le Monde today, linked and discussed in this LeMonde editorial, with The Guardian coverage here.

A few Power Point slides are published in Le Monde.   But Journalist Glenn Greenwald and Edward Snowden have also released additional Power Point Slides that are worth a look.  A set of eleven slides have some redactions, but will also seem eerily familiar to anyone who has ever prepared or seen a Power Point presentation:

 

Slide 3
slide 3

 

Slide 5
slide 5



October 21, 2013 in Executive Authority, First Amendment, Foreign Affairs, State Secrets | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 16, 2013

Toobin on Recess Appointments and Noel Canning

Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame.  That is, if the Court strikes President Obama's recess appointments to the NLRB.  (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.)  Toobin explains:

If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities.  Forty senators will have the power to stop an agency from functioning.  Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory.  They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either.  The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.

The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government.  As with so many of these struggles during the Obama era, the outcome is far from certain.

October 16, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, October 7, 2013

Daily Read: Justice Scalia Interview

NY Magazine Cover ScaliaJustice Scalia previously gave a brief interview to New York Magazine on "his childhood," and this week's magazine has an extensive interview with Jennifer Senior about almost everything else.

What newspapers does he read?  Is he softening on his views of homosexuality?  Does he believe in hell and the devil?  Are women protected by the Fourteenth Amendment?  What are his hobbies other than hunting?  His television viewing? Favorite novels?

Most wrenching decision?:

Probably the most wrenching was Morrison v. Olson, which involved the independent counsel. To take away the power to prosecute from the president and give it to somebody who’s not under his control is a terrible erosion of presidential power. And it was wrenching not only because it came out wrong—I was the sole dissenter—but because the opinion was written by Rehnquist, who had been head of the Office of Legal Counsel, before me, and who I thought would realize the importance of that power of the president to prosecute. And he not only wrote the opinion; he wrote it in a manner that was more extreme than I think Bill Brennan would have written it. That was wrenching.

But later, he comes back to the opinion:

As to which is the most impressive opinion: I still think Morrison v. Olson. But look, we have different standards, I suppose, for what’s a great opinion. I care about the reasoning. And the reasoning in Morrison, I thought, was devastating—devastating of the majority. If you ask me which of my opinions will have the most impact in the future, it probably won’t be that dissent; it’ll be some majority opinion. But it’ll have impact in the future not because it’s so beautifully reasoned and so well written. It’ll have impact in the future because it’s authoritative. That’s all that matters, unfortunately.

It's not what he terms his most "heroic" decision, however, reserving that for a very different sort of opinion.

I mean the most heroic opinion—maybe the only heroic opinion I ever issued— was my statement refusing to recuse.

From the case involving Vice-­President Cheney, with whom you’d gone hunting?

I thought that took some guts. Most of my opinions don’t take guts. They take smarts. But not courage. And I was proud of that. I did the right thing and it let me in for a lot of criticism and it was the right thing to do and I was proud of that. So that’s the only heroic thing I’ve done.

 Scalia's 2004 Memorandum in Cheney v. United States District Court for the District of Columbia is here and a good discussion of the controversy from Michael Dorf is here.

Given the standards of recusal - - - despite continuing controversies - - - there is little reason that Scalia or any other Supreme Court Justice should not give as many interviews as possible, even if they might reveal "bias." 

 UPDATE:

Dahlia Lithwick over at Slate has an excellent analysis of the interview, including asking for the interviewer's perceptions about the interview: Are Jennifer Senior and Justice Scalia as far apart as they seem?

I asked Senior whether this [perception] felt accurate. She replied, “It's embarrassing, but the overlap between our worlds is almost nonexistent. It explains why the left and the right both responded so enthusiastically to this piece. Each side sees its own view, affirmed. One sees a monster and the other sees a hero. It's extraordinary, actually. The O'Reilly constituents think he's speaking sense; the Jon Stewart vote thinks virtually everything the guy says is nuts.”

October 7, 2013 in Books, Courts and Judging, Current Affairs, Equal Protection, Executive Authority, Fourteenth Amendment, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

The Syria Resolution's Last Whereas

Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.

The give-away comes in the last "Whereas" of the Senate's Syria Resolution.  It reads:

Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .

Epps writes,

The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power.  Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.

Lawfare has some terrific analysis on the Senate resolution and related issues, including Jack Goldsmith's analysis of that final "Whereas" (quoted in Epps's piece).

SDS

September 6, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)