Thursday, November 20, 2014
The Office of Legal Counsel yesterday released an opinion on the President's legal authority for his immigration plan, which he'll announce shortly. Here's the summary, in three points:
The Department of Homeland Security's proposed policy to prioritize the removal of certain aliens unlawfully present in the United States would be a permissible exercise of the DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of U.S. citizens and legal permanent residents would also be a permissible exercise of DHS's discretion to enforce the immigration laws.
The Department of Homeland Security's proposed deferred action program for parents of recipients of deferred action under the Deferred Action for Childhood Arrivals program would not be a permissible exercise of DHS's enforcement discretion.
In short, the first two are OK, because the executive has authority to prioritize enforcement based on available limited resources, the actions are consistent with (and not inconsistent with) federal law and congressional priorities, and there is precedent (i.e., similar prior executive actions) for them. The third is not, because it's not consistent with priorities in federal law, and because there's no precedent.
As to the first, OCL said that "DHS's organic statute itself recognizes [that DHS must make enforcement choices], instructing the Secretary to establish 'national immigration enforcement policies and priorities.'" It also said that the proposal is consistent with the removal priorities established by Congress, that it doesn't amount to a legislative rule that overrides the requirements of the substantive statute, and that it doesn't "identify any category of removable aliens whose removal may not be pursued under any circumstances."
As to the second, OCL said that deferred action for parents of U.S. citizens and legal permanent residents is a lawful exercise of executive power, because it's based on an allocation of scarce resources (deferring action against this class in order to shift very limited resources elsewhere), and because deferred action for this class is consistent with the INA's concerns with keeping families together when possible. OCL also noted that "the proposed deferred action program would resemble in material respects the kinds of deferred action programs Congress has implicitly approved in the past . . . ."
Finally, as to the third, OLC said that the President lacks authority to implement deferred action for DACA parents. OLC said that the considerations here are similar to considerations for deferred action for parents of U.S. citizens, but are different in two key respects. First, while immigration law expresses concern about keeping families together, it expresses this concern in the context of citizens and lawful residents, not DACA'd individuals (who "unquestionably lack lawful status in the United States"). Next, deferred action for DACA parents "would represent a significant departure from deferred action programs that Congress has implicitly approved in the past."
Here are some other resources on the issue:
- We posted on executive authority for DACA here.
- The CRS has a report on Prosecutorial Discretion in Immigration Enforcement here, and a Memo on DACA authority here.
- The Immigration Policy Center has a legal resources page on executive enforcement of immigration laws here.
Monday, November 10, 2014
The D.C. Circuit today upheld an appointment to the NLRB on the first day of a 17-day intra-session recess of the Senate for a vacancy that existed before the recess. The case is an application of the Supreme Court's ruling last Term in Noel Canning--and it shows why all three parts of that ruling matter.
The case was a challenge to an NLRB decision based on lack of quorum, just like Noel Canning. In particular, the appellants, Stevens Creek Chrysler Jeep Dodge, argued that President Obama's appointment of Gary Becker to the Board violated the Recess Appointment Clause, because President Obama made the appointment to an already-existing vacancy on the first day of an intra-session recess.
The D.C. Circuit said that the recess appointment authority extends to intra-session recesses and to vacancies that already existed at the time of the recess, based on two of the holdings in Noel Canning. The court also said that the 17-day recess here was longer than the 10 days that the Supreme Court identified as enough to constitute a "recess."
Breaking a little new ground, however, the court also said that it didn't matter that Becker's appointment came on the first day of this 17-day recess. That's because, under historical examples that the Court relied upon in Noel Canning, the "lawfulness of a recess appointment depends on the ultimate length of the recess . . . not the number of days from the start of the recess to the appointment."
But don't count on this to shift the balance of power back to the President (by allowing him to recess appoint on the first day of any open-ended recess). Instead, it'll only mean that the Senate, if it wants to foil the use of the recess appointment power, won't have an open-ended recess; it'll define the recess and use pro forma sessions (as it did in the recess leading to Noel Canning).
Friday, November 7, 2014
The Supreme Court today agreed to hear King v. Burwell, the case testing the federal government's authority to issue tax credits to individuals who purchase health insurance on a federal (not state) health-insurance exchange.
The case tests whether the IRS can issue tax credits to low- and moderate-income individuals who purchase health insurance on a federal (not state) health-insurance exchange, in light of the language in the Affordable Care Act that, read in isolation, seems to limit those credits to purchasers on an "[e]xchange established by the State."
The plaintiff-petitioners argue that the this language means exactly what it says: that the government can provide credits only for purchasers on state exchanges, not federal exchanges. The government argues that other provisions in the ACA and the broader purposes of the Act show that Congress clearly intended to offer credits to purchasers on all exchanges.
Under the ACA, the federal government can step in an establish an exchange when a state declines to. Thirty-six states are now covered by a federal exchange; the rest established a state exchange.
If the plaintiff-petitioners ultimately win, the case would strike a serious blow to the universal coverage goal of Obamacare. That's because without the credits (which are significant, $4,700 per person per year, on average), low- and moderate-income individuals may not be able to afford insurance. Given that estimates put the number of individuals who have already received subsidies at nearly 5 million, the lack of subsidies could force large numbers out of the insurance pool and drive up rates for those in the insurance pool.
Today's grant was of the Fourth Circuit decision, which upheld the subsidies. The D.C. Circuit panel decision struck the subsidies, but the en banc D.C. Circuit vacated that ruling and agreed to rehear the case. (Oral argument is set for December 17.) All this means that there was no circut split before the Court (although there were conflicting lower court rulings, at least before the en banc D.C. Circuit stepped in).) This probably says little, if anything, about the likely result in the case. (In particular: the Court didn't necessarily take the case to reverse the Fourth Circuit.)
The Court requires the votes of four Justices to grant review. But this, too, probably says little, if anything, about the likely result in the case. (We don't know which Justices voted for review, which voted against (if any), and why.) All we know is that four or more wanted to hear it.
Monday, November 3, 2014
The Supreme Court heard oral arguments on Monday in Zivotofsky v. Kerry, the case testing whether Congress can require the State Department to list "Israel" as the country of birth for a U.S. citizen born in Jerusalem, upon the request of that citizen. The State Department has long declined to list "Israel" (or "Palestinian Territories" or the like) as the country of birth on such a passport, in order to promote its long-standing position of neutrality with regard to sovereignty over Jerusalem. This case tests which branch gets to decide whether Congress, or the executive branch, gets to decide what goes on the passport.
If arguments are any indication, this'll be a 5-4 opinion, along conventional lines (conservatives for Congress; progressives for the President). In short, conservatives didn't seem to think the Act's place-of-birth designation mattered much to recognition or to foreign affairs (or, as Justice Kennedy suggested, that its impact could be mitigated), and therefore that the Act didn't seriously interfere with any exclusive powers of the presidency. Progressives took the opposite view.
Zivotofsky tried to steer the Court toward his argument that the country-of-birth deisgnation on a passport has nothing to do with official recognition of a foreign sovereign. This position could allow the Court to dodge a thorny separation-of-powers problem entirely, by hanging its hat on the idea that the country-of-birth designation serves only an identification purpose, not a sovereign-recognition purpose. If so, the Court could rule for Zivotofsky by saying that Congress can require anything it wants in the place-of-birth line, because it doesn't interfere with the President's recognition power. (Or, as the government argued, the Court could rule for the government, saying that the congressionally required designation in effect requires the President to issue a diplomatic communication that contradicts the President's own recognition and foreign policy. But this would require at least some consideration of constitutional separation of powers--in particular, whether the President's power of recognition is exclusive.)
This approach seemed to get the attention of the conservatives on the Court. In particular, Justices Kennedy and Scalia in different ways seemed to suggest that the country-of-birth designation didn't recognize sovereignty. (If not, however, Justice Kennedy at one point wondered why Congress would have passed it in the first place.) Justice Kennedy returned several times to the ideal of a State Department disclaimer--that State could just write a statement that the place-of-birth designation didn't reflect the policy of the United States. And Chief Justice Roberts wondered later in the arguments whether the President's objections to the Act and the executive's position in litigation amount to a self-fulfilling prophecy--that is, whether designating "Israel" wasn't really all that big of a deal, until the President made it so. (This exchange, with SG Verilli, came up in a line of questions about why President Bush signed the Act in the first place, even with his constitutional reservations in the signing statement.) All these, and Justice Alito, suggested at different times that the country-of-birth designation wasn't all that important, anyway--a corollary to the country-of-birth-designation-as-mere-identification theory.
But Justice Kagan pushed back against the self-identification theory: she called the Act a "very selective vanity plate law," because it allows a passport holder to determine the designation of country of birth. She also underscored the passport-as-diplomatic-note point by asking whether a hypothetical congressional act would be constitutional if it required the State Department to inform all foreign minister that a new American was born in Israel whenever a new American was born in Jerusalem. (Zivotofsky's answer: Yes. Justice Kagan called this "a little bit shocking.") Justice Sotomayor went a step further and said (several times) that Zivotofsky and Act supporters wanted the government to lie--to say that Israel was the place of birth, even though the government doesn't recognize Israel as sovereign over Jerusalem.
Justice Breyer took an institutional competence view of the case, asking if the foreign affairs experts at the State Department declined to recognize Israeli sovereignty over Jerusalem, who was he to question them?
Justice Kagan took the final shot at the it-doesn't-matter-that-much view at the very end of arguments:
Can I say that this seems a particularly unfortunate week to be making this kind of, "oh, it's no big deal" argument. I mean, history suggests that everything is a big deal with respect to the status of Jerusalem. And right now Jerusalem is a tinderbox because of issues about the status of and access to a particularly holy site there. And so sort of everything matters, doesn't it?
It seems doubtful that she'll persuade her conservative colleagues.
Wednesday, October 15, 2014
With the denial of certiorari in James Risen's case by the United States Supreme Court in June 2014, from the Fourth Circuit's divided opinion in United States v. Sterling, the situation of James Risen is in limbo. In large part, it was Risen's book, State of War that led to his current difficulties because he will not reveal a source.
Now Risen has a new book, Pay Any Price: Greed, Power, and Endless War, just reviewed in the NYT. As part of the book promotion - - - but also quite relevant to the case against Risen - - - Risen has made several media appearances of note, with the twist on the book title being that it's James Risen who is prepared to "pay any price" to protect his journalistic integrity (and by implication resist governmental power).
Perhaps the most populist of Risen's appearances is in an extended segment of the television show "60 minutes" including not only James Risen but others. The segment explains and situates the controversy, including its current status under President Obama. It also includes statements by General Mike Hayden that he is at least "conflicted" about whether Risen should be pursued for not divulging his source(s), even as Hayden expresses his view that NSA surveillance is "warantless but not unwarranted."
The entire segment is definitely worth watching:
Springboarding to some extent from General Hayden's remarks is Risen's extensive interview with Amy Goodman on Democracy Now (full video and the helpful transcript is here), in which Risen talks about his arguments in the book and a bit about his own predictament, concluding by saying:
AMY GOODMAN: So, you’re covering the very people who could put you in jail.
JAMES RISEN: Yeah, sometimes, yes. As I said earlier, that’s the only way to deal with this, is to keep going and to keep—the only thing that the government respects is staying aggressive and continuing to investigate what the government is doing. And that’s the only way that we in the journalism industry can kind of force—you know, push the government back against the—to maintain press freedom in the United States.
A third noteworthy appearance by Risen is his interview by Terry Gross on NPR's Fresh Air (audio and transcript available here). One of the most interesting portions is near the end, with the discussion of the contrast to the celebrated Watergate investigation of Woodward and Bernstein and Risen's solution of a federal shield law for reporters.
For ConLawProfs teaching First Amendment, these "sources" could be well-used.
October 15, 2014 in Books, Cases and Case Materials, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, International, Privacy, Recent Cases, Speech, State Secrets, Theory, War Powers, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Tuesday, October 14, 2014
With the release of "Citizen Four," the film by Laura Poitras on Friday, two videos are worth a watch.
First, here is a Q&A session with Laura Poitras at the 52nd New York Film Festival on October 10 after a premier of the film.
Second, here is a "virtual interview" with Edward Snowden from the New Yorker Festival - - - including in the first minute or so the official trailer of the film (also here) and an extended discussion with Snowden:
October 14, 2014 in Current Affairs, Due Process (Substantive), Executive Authority, Film, First Amendment, Foreign Affairs, International, News, Speech, Theory, War Powers, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Tuesday, September 30, 2014
Judge Ronald A. White (E.D. Okla.) ruled today in Oklahoma v. Burwell that the IRS rule providing subsidies for individual purchasers of health insurance on an exchange established by the federal government (and not a state government) ran afoul of the plain language of the Affordable Care Act. Judge White stayed his ruling pending appeal, however, so it has no immediate impact on subsidies in Oklahoma.
Judge White's ruling aligns with the D.C. Circuit panel decision in Halbig and stands opposite the Fourth Circuit ruling in King. (Recall that the full D.C. Circuit vacated the panel ruling and agreed to rehear the case en banc. That argument is set for December.) All this means that there is currently no circuit split on the issue; instead, the Fourth Circuit upheld the tax subsidies, the full D.C. Circuit will reconsider them in December, and the Tenth Circuit will consider them soon (on the inevitable appeal from Judge White's ruling).
Judge White wrote that the plain language of the ACA resolved the case. That language allows a tax subsidy for a purchaser of health insurance who is "covered by a qualified health plan . . . enrolled in through an Exchange established by the State under section 1311 of the [ACA]." 26 U.S.C. Sec. 36B(c)(2)(A)(i) (emphasis added). Like the panel in Halbig, Judge White said that the language was clear, and that the IRS rule extending credits to purchasers of health insurance on exchanges established by the federal government (and not a state) violated it.
Judge White downplayed the effect of striking the IRS rule, saying that "apocalyptic" claims about the challenges tot he IRS rule are overstated. In any event, he wrote, Congress could re-write the law to specifically authorize the subsidies.
Judge White also ruled that Oklahoma had standing to challenge the IRS rule, because the state, as a large employer, would have been subject to federal penalties for some of its employees who might purchase health insurance on the federal exchange and qualify for a subsidy under the IRS rule.
Judge White's ruling probably doesn't make this case any more (or less) likely to go to the Supreme Court soon. With just two circuits weighing in so far--and one of them vacating the panel ruling and rehearing the case en banc--the Court will likely wait to see what the full D.C. Circuit, and now the Tenth Circuit, do with it. Still, the challengers in the Fourth Circuit case have asked the Supreme Court to review it.
Wednesday, September 24, 2014
President Obama sent two letters to Congress yesterday pursuant to the War Powers Resolution notifying it of U.S. military efforts in Iraq and Syria against ISIS and the Khorasan Group.
The first letter outlines "a series of strikes in Syria against elements of al-Qa'ida known as the Khorasan Group." It says that "[t]hese strikes are necessary to defend the United States and our partners and allies against the threat posed by these elements." The letter cites as authority the constitutional Commander-in-Chief, Chief Executive, and foreign relations powers of the presidency, and authority under the 2001 AUMF, the authorization for use of force against those who planned the attacks of September 11 and anyone who helped or harbored them.
The second letter reviews previous military efforts against ISIS in Iraq and outlines the deployment of 475 additional troops to Iraq and the use of U.S. forces "to conduct coordination with Iraqi forces and to provide training, communications support, intelligence support, and other support to select elements of the Iraqi security forces, including Kurdish Peshmerga forces." The letter also says that the President "ordered the U.S. Armed Forces to conduct a systematic campaign of airstrikes and other necessary actions against [ISIS] in Iraq and Syria . . . in coordination with and at the request of the Government of Iraq and in conjuntion with coalition partners." The letter cites the same authority as the first letter, above, along with the 2002 AUMF, the authorization for use of military force against Iraq.
The President has faced plenty of criticism for relying on his inherent constitutional authority and these two AUMFs in authorizing recent strikes. Congress is considering new AUMFs that would specifically authorize his actions. The Hill reports that Senator Levin, chairman of the Armed Services Committee, thinks that Congress will take up the measures after the mid-terms.
Tuesday, September 9, 2014
According to The Hill, President Obama told congressional leaders today that he doesn't need congressional approval for his campaign against ISIS, details to be announced tomorrow night.
While he told the congressional leaders he would welcome congressional action that demonstrated a unified front, the president told the bicameral, bipartisan group "he has the authority he needs to take action against [ISIS] in accordance with the mission he will lay out in his address," according to the White House.
Participants in the meeting--the House Speaker and Minority Leader, and the Senate Majority and Minority Leaders--didn't say anything about the need for congressional approval afterward.
The Senate Health, Education, Labor and Pensions Committee held a hearing today on President Obama's nomination of Sharon Block to the NLRB. Block was one of the recess-appointees to the NLRB that the Supreme Court struck this summer in Noel Canning. Her nomination this time is going through the regular Appointments Clause process.
If confirmed, Brown would replace Nancy Schiffer and become the third Democrat on the five-member Board.
Republicans oppose Brown because of her political ideology and the direction of the Board with President Obama's appointments. They also see her appointment as an end-run around Noel Canning (given that Noel Canning struck her recess appointment).
Still, the full Senate will likely confirm her. That's because of the filibuster rules change that allows most presidential nominees to move forward to an up-or-down majority vote in the Senate.
Of course, if nominees like Brown hadn't faced a Republican filibuster in the first place, President Obama wouldn't have recess-appointed them; instead, they would have been confirmed through the ordinary appointment process--exactly what's happening to Brown now. In that way, after all the drama and attention to President Obama's recess appointments in Noel Canning, we're right back where we might have started: majority (not super-majority) confirmation of presidential nominees through the ordinary appointment process.
Thursday, September 4, 2014
The full D.C. Circuit today agreed to rehear Halbig v. Burwell, in which a three-judge panel of the court previously struck the IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income requirements. Today's order also vacates that earlier ruling. It means that the full, en banc D.C. Circuit will get a bite at the apple, and that the earlier panel ruling is wiped from the books. The court will hear arguments on December 17.
Recall that the earlier panel ruling striking the tax credit was in direct conflict with a Fourth Circuit ruling the same day upholding the tax credit. Today's order also removes that circuit split.
We last posted on the case, with background explanation, here. In short, the case involves an IRS rule that extends tax credits to purchasers of health insurance on a federally operated exchange. Opponents of the rule argue that the plain text of the ACA limits credits to purchasers on a state-operated exchange. The government argues that the broader text of the ACA and its purposes show that the credit applies to purchasers on both state and federal exchanges.
A ruling striking the credits for purchasers on a federal exchange would deal a major blow to the Affordable Care Act and its goal of universal coverage, and could put lower-income purchasers in a pinch. That's because purchasers in states that declined to establish their own exchanges (and thus triggered the federal government to establish a federal exchange) wouldn't qualify for a credit, and may not be able to afford insurance without it, yet would still be required to purchase it. An amendment to the ACA could easily solve the problem (again, if a court struck the credits for purchasers on federal exchanges), but congressional opponents of the ACA, and thus Congress, would never go for it--at least unless and until these cases are resolved in favor of the government (when the point would be moot, anyway).
Thursday, August 28, 2014
The Tenth Circuit yesterday upheld an NLRB order by a Board panel that included Craig Becker, one of President Obama's recess appointments to the Board. The court suggested that the parties might have challenged the NLRB order under the Supreme Court's ruling this summer in Noel Canning (which held that President Obama lacked authority under the Recess Appointment Clause to appoint certain members to the Board). But because the parties didn't raise the argument--and instead actively steered the court away from the point--the court didn't rule on the Board's quorum, and instead upheld the order on the merits.
The order at issue came from an NLRB panel that included Craig Becker, a recess appointee during a two-plus week recess of the Senate. The Supreme Court wrote in Noel Canning that a Senate recess less than ten days is "presumptively too short" to allow the President to make an appointment pursuant to the Recess Appointment Clause. Under that language, Becker's appointment isn't presumptively invalid. But the Tenth Circuit also suggested that it wasn't necessarily valid:
To be sure, the Supreme Court stopped short of validating every appointment made during a recess ten days or longer. One might even read the majority opinion as leaving the door open for future challenges to some such appointments: from the proposition that shorter than ten days is usually too short it doesn't follow that ten days or longer is always enough.
Still, the court didn't touch the issue, because the parties didn't argue it. ("We don't often raise arguments to help litigants who decline to help themselves, especially when the litigants have consciously waived the arguments by steering us away from them and toward the merits instead.") Instead, the court upheld the order on the merits.
Wednesday, July 30, 2014
The House of Representatives voted along party lines this afternoon to authorize a federal lawsuit against President Obama for alleged constitutional overreach in implementation of the Affordable Care Act.
The case will have several problems right out of the gate, most notably standing. Here's our last post on the suit, with links to earlier posts.
Tuesday, July 22, 2014
Two federal appeals courts today issued dueling rulings on the legality of an IRS rule that offers tax credits to purchasers of health insurance on a federally operated exchange who meet certain income guidelines (100 to 400 percent of the federal poverty level). A sharply divided D.C. Circuit panel ruled in Halbig v. Burwell that the IRS exceeded its authority under the Affordable Care Act in offering these credits, and ordered the IRS rule vacated. In contrast, a unanimous panel of the Fourth Circuit ruled in King v. Burwell that the IRS did not exceed its authority.
The split makes it all the more certain (if ever there were ever any doubt) that this issue is heading to the Supreme Court for yet another judicial showdown between Obamacare opponents and the administration. If the high court upholds the D.C. Circuit ruling, that could mark the end of Obamacare. That's because health insurance for those in states with a federally operated exchange (and with incomes between 100 and 400 percent of the poverty line) could be cost prohibitive without tax credits (that's the whole purpose of tax credits, to make insurance affordable); and if as a result those individuals don't purchase insurance, that significant portion of the population would fall outside the broader insurance pool, undermining the key structural assumption of Obamacare, that everyone's covered.
Remember: We only have federally operated exchanges because many states declined to establish their own exchanges (often for political reasons--to register dissent or lack of cooperation with the ACA in general). All indications are that Congress passed, and the president signed, the ACA on the assumption that states would establish their own exchanges, and that the federal government wouldn't have to. That turned out to be wrong. That, in combination with some less-than-perfect legislative language, led to the D.C. court's ruling.
The crux of the case involves the administration's authority to offer tax credits to purchasers on federally operated exchanges, and not just state operated exchanges. Opponents of the credit argue that the plain language of the ACA allows credits only for purchasers on state operated exchanges. The administration says that a broader, contextual reading of the ACA, along with an understanding of congressional intent, allows credits for purchasers on federally operated exchanges, as well.
The ACA authorizes the tax credit to subsidize the purchase of insurance on an "Exchange established by the State under section 1131 of the [ACA]." But other sections of the Act treat an "Exchange" as only a state-created exchange. And yet a different portion requires the federal government to establish an operate an "Exchange" if a state declines to do so. (Other portions of the Act are relevant, too, but these are the key portions.)
In short, the D.C. Circuit said that the ACA's language was plain and unambiguous, and that it authorized tax credits only for state-established exchanges. It also said that the scant legislative history on this point did not change that result.
The Fourth Circuit, and the dissent in the D.C. Circuit, said that when read together these portions of the ACA could mean that the federal government stands in the shoes of a state when the federal government establishes an exchange, and that the federally established exchanges are therefore also "Exchange[s] established by the State" for the purpose of the Act. They also said that the legislative purpose of the ACA supports this reading. Because of the ambiguous language, the IRS could interpret it in any way that's reasonable. And its interpretation was reasonable.
Monday, July 21, 2014
Today President Obama signed an Executive Order: "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity."
Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.
Here's the video put out by the White House:
And here are some more specific details:
The Executive Order broadens the terms of prohibited discrimination in federal employment in Executive Order 11478 by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."
It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."
As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279, which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
But what about Bush's Executive Order? Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial.
This might be a good time to reread Michele Gilman's terrific article from 2007, If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007). Gilman argues that Bush has exceeded his constitutional powers. Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.
And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.
While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo. It allows religious entities to discriminate on the basis of religion, but not on any other basis. The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit." It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.
Thursday, July 17, 2014
The House Rules Committee had a hearing yesterday on the House Resolution authorizing a lawsuit against President Obama for alleged overreach in implementing the Affordable Care Act. (We posted on some of these alleged overreaches here.) Profs. Elizabeth Price Foley (FIU) and Jonathan Turley (GW) testified in support of the measure; Simon Lazarus (CAC) and Walter Dellinger testified against.
The big hurdle to a suit is standing: under current doctrine, the House lacks standing to sue (although Foley reiterated her theory of standing, and Turley argued that current standing doctrine is wrong). Without standing, the courts won't hear the case.
And they shouldn't. This is obviously a gimmick, not a serious constitutional challenge to the President's authority, as evidenced by the nonsense at yesterday's hearing. Dana Milback over at WaPo hits the nail on the head. (H/t to Darren Elliott.) We might add that it's just a little ironic that political conservatives are now touting the benefits of open courts, access to justice, and an activist judiciary.
Supporters of the suit argue, among other things, that the courts are the proper venue for this dispute, because the House has no other realistic way to control the President. (Changing the law or withholding appropriations won't work, they say, because a bill would also have to pass the Senate (and get signed by the President).) But that's no standard for standing. It also ignores the fact that Congress, even one party in Congress, has a whole panoply of ways to check and frustrate the President--which Republicans have used to great effect. Finally, it proves too much: If there really are no political ways to check the President, maybe that's because the President's actions enjoy wide political support (because they help people, not harm them, and thus raise standing problems for anyone seeking to challenge them).
The Resolution authorizes the Speaker to "initiate or intervene in one or more civil actions on behalf of the House of Representatives" to force the President to "act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation (and failure to implement) any provision of [the Affordable Care Act]."
The authorization doesn't identify a particular presidential action that violates the Constitution. Turley identifies shifting funds between line-items in the budget to fund portions of the ACA and extending tax credits to health-insurance purchasers in states where the federal government runs the exchange, among others. Lazarus offers good arguments why these are valid executive actions in implementing the ACA, and not violations of separation of powers principles.
Monday, June 30, 2014
Divided Supreme Court Recognizes Right of Closely Held Corporations Hobby Lobby and Conestoga Wood Specialties under RFRA to Avoid "Contraceptive Mandate"
On this last day of the 2013-2014 Term, the Court delivered its long-awaited opinion in "Hobby Lobby" - - now Burwell v. Hobby Lobby, Inc. consolidated with Conestoga Woods Specialties Corp. v. Burwell - - - on the question of whether corporations (or their owner/shareholders) be able to interpose a religious objection under RFRA (the Religious Freedom Restoration Act) to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? Here's our primer on the issues for more detail. Recall that the Tenth Circuit en banc in Hobby Lobby ruled for the corporation, while the Third Circuit panel in Conestoga Woods ruled for the government, and several other courts entered the fray with disparate results.
The oral arguments in March were contentious and so too are the opinions in this 5-4 decision.
The majority opinion, authored by Justice Alito, holds that closely-held corporations such as Hobby Lobby and Conestoga Wood Specialties are "persons" within the meaning of RFRA and thus are entitled to raise a claim. The Court looks at Congressional intent in RFRA, its own precedent allowing RFRA claims by nonprofit corporations, and policy issues about the difficulty of determining the "beliefs" of a corporation, and held that closely held corporation that make a profit are "persons" within RFRA.
The Court then held that the challenged HHS regulations ("the contraceptive mandate") did substantially burden the business owners religious beliefs because they believe if they comply with the mandate they will be "facilitating abortions" and if they do not comply, they will face substantial fines. The Court rejected the argument that the link between the insurance coverage paid by an employer and an employee being reimbursed by the insurance company for obtaining contraception was too attenuated.
Given this finding, under RFRA, the Court applies "strict scrutiny," but interestingly assumes that the government satisfies the "compelling government interest" prong. However, the Court finds that the HHS mandate is not the "least restrictive means" to accomplish its goal: the system already in place for accommodating the religious beliefs of nonprofit entities granted exemptions under the regulations and statute.
Justice Kennedy writes a brief concurring opinion. As we discussed, Kennedy was focused on as the "Justice to watch" and he stresses that the existence of government accommodation already in existence.
The "principal dissent" (as the Court's opinion often characterizes it) is by Justice Ginsburg, joined by Sotomayor in full, and by Breyer and Kagan (except to a section regarding the construction of RFRA as applying to corporate persons). The dissent begins by labeling the majority's decision as one of "startling breadth" that allows corporations to "opt out" of "any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Justice Ginsburg argues there is a slippery slope in the majority's least restrictive means analysis, despite the majority's attempt to cabin it:
And where is the stopping point to the “let the government pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, or according women equal pay for substantially similar work? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection? Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” I have already discussed the “special solicitude” generally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths.
Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organizations. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Counsel for Hobby Lobby was similarly noncommittal.
[citations and footnotes omitted].
Whether or not the Court's opinion is narrow or broad might depend more on one's political outlook and one's view of the Court as "chipping away" or as "careful crafting."
However, recall that RFRA - - - the Religious Freedom Restoration Act - - - is a statute passed by Congress that changed the standard of review the Court had announced be accorded religious claims; many now believe that Congress will be called upon to change RFRA, including perhaps the definition of "person" to exclude for-profit corporations, or to repeal RFRA in its entirety.
June 30, 2014 in Abortion, Congressional Authority, Courts and Judging, Executive Authority, Family, First Amendment, Gender, Medical Decisions, Opinion Analysis, Religion, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)
Thursday, June 26, 2014
Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB. He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel."
But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster. That limitation, a Senate rules change from last fall, should also blunt today's ruling. That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.
Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees). (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.) The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.
The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session. The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid. It's not clear yet how many other offices may be affected by the ruling. Our oral argument review (with a link to our preview) is here.
The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future. That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here. That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism). As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).
The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment. And again: the Senate gets to say, presumptively, when it's in recess.
As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate. This gives even the House the power to block a recess--and recess appointments--for any period over 3 days. That means that the House could block a recess appointment by denying the Senate consent to recess.
Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.
At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause. Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses. It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.
The judgment striking the NLRB appointees was unanimous. But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:
To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.
June 26, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (2) | TrackBack (0)
Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)