Constitutional Law Prof Blog

ACLU Sues for Material Authorizing Targeted Killings

The ACLU filed suit on Wednesday against the U.S. government in the Southern District of New York seeking the release of records related to the targeted killings of U.S. citizens overseas.  Recall that the New York Times and two reporters filed a similar suit in December 2011.

The ACLU lawsuit comes after the Departments of Justice and Defense and the CIA rejected or indefinitely delayed their responses to the group's FOIA request for the records.  The complaint alleges,

The press began reporting in early 2010 that Anwar al-Awlaki, a U.S. citizen born in New Mexico, had been placed on CIA and JSOC "kill lists" that authorized his targeted killing.  In the fall of 2011, the media reported on the existence of a legal memorandum drafted by the OLC ("OLC memo") that provided a legal analysis to support al-Awlaki's killing.

The lawsuit comes on the heels of President Obama's YouTube interview in which he acknowledges and defends drone strikes.  Here's Al Jazeera's report on the interview:

 

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Fourth Circuit Rejects Padilla's Civil Claims

A three-judge panel of the Fourth Circuit yesterday rejected Jose Padilla's civil claims against Donald Rumsfeld and other high-level government officials growing out of his designation as an enemy combatant and his military detention.  The ruling, Lebron v. Rumsfeld, is at least in part in tension with a recent Seventh Circuit ruling (now on appeal to the en banc Seventh Circuit, and discussed below) and two recent district court rulings--one from the Western District of Washington and the other from the District of Columbia.

Padilla sued the officials for constitutional violations under Bivens and for violations of the Religious Freedom Restoration Act.  He sought declarations that his designation and detention were unconstitutional and that the policies that led to his treatment were unconstitutional, an injunction against future designations and detentions, and nominal monetary relief.  The district court rejected his Bivens and RFRA claims, and ruled that he lacked standing for injunctive relief.

The Fourth Circuit affirmed.  The panel applied the two-part framework in Wilkie v. Robbins (2007) and ruled (1) that special factors counseled against a Bivens remedy and (2) that Padilla had alternative forms of relief.  The panel said that separation-of-powers principles counseled against a Bivens remedy, in particular: military matters like this are the province of the political branches, and the courts lack the expertise and risk upsetting the military command structure and intelligence gathering activities.

The panel also said that Padilla had other forms of relief, in particular habeas.

The ruling on special factors and separation of powers is in tension with similar recent rulings by the Seventh Circuit and two district courts.  Thus in Vance v. Rumsfeld a three-judge panel of the Seventh Circuit ruled that separation-of-powers principles like those at issue here did not stand in the way of the plaintiffs' Bivens remedy.  The U.S. District Court for the District of Columbia ruled similarly in Doe v. Rumsfeld.  Both cases involved U.S. citizen plaintiffs (like Padilla)--an important point of distinction for the Seventh Circuit panel, which distinguished Ali v. Rumsfeld (D.C. Cir. 2011) and Arar v. Ashcroft (2d Cir. 2009), both of which rejected Bivens claims of aliens.  (We posted on the cases here.)

The Western District of Washington extended Vance and Doe just last month in Hamad v. Gates.  That court ruled that separation-of-powers principles did not counsel against a Bivens claim of an alien.  The court ruled that alienage didn't matter for the special factor analysis.

The ruling on alternative relief is not so obviously in tension with Vance and Doe.  The plaintiffs in those cases were U.S. citizens detained overseas at Camp Cropper, without available access to habeas.  (Whatever one thinks about the Fourth Circuit's ruling that habeas as a reasonable alternative to a Bivens claim in the Wilkie calculus, the plaintiffs in Vance and Doe didn't even have that.)

The panel ruling in Vance was vacated and is now on appeal to the en banc Seventh Circuit.  Oral arguments are set for February 8.

The Fourth Circuit also ruled that the defendants enjoyed qualified immunity against Padilla's RFRA claim, because it wasn't clearly established that RFRA would apply to military detention.

Finally, the court ruled that Padilla lacked standing on his claim for injunctive relief.  It ruled that Padilla couldn't show that he'd be subject to re-designation or re-detainment, and, in any event, it won't happen for a long time: He's now facing more than 17 years on resentencing in his criminal case.

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Groups Challenge President's Recess Appointments

Plaintiffs in ongoing litigation filed a motion last Friday challenging President Obama's recent recess appointments to the NLRB.  We most recently posted on the appointments here and here.

The plaintiffs--including the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business--filed their initial complaint in the Federal District Court for the District of Columbia last September, alleging that the NLRB lacked authority under the National Labor Relations Act to implement several new rules, including one that would require employers to post notices to their employees of their rights under the NLRA.

In the motion last week, the plaintiffs sought to amend their complaint to add a new charge--that President Obama's recent recess appointments to the NLRB were unconstitutional, and therefore the NLRB didn't have sufficient sitting members to enforce its new rules.  From the memorandum in support of the motion:

The Board has lost its quorum due to the expiration of Member Becker's term and the President's failure to appoint new Board members with the advice and consent of the U.S. Senate, as required by Article II of the Constitution. . . .  The President's purported appointment of the new Board members on January 4, 2012 was unconstitutional, null and void.  As a result, there are at present only two validly serving members of the Board, Chairman Pearce and Member Hayes.  The Supreme Court has declared that the Board lacks authority to act with only two members.  New Process Steel, L.P. v. NLRB.

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OLC OKs President Obama's Recess Appointments

The Justice Department Office of Legal Counsel today released its opinion (dated January 6, 2012) concluding that President Obama had authority under the Recess Appointments Clause to appoint Richard Cordray as head of the Consumer Financial Protection Bureau and members of the National Labor Relations Board during less than three-day breaks between pro forma sessions of the Senate.  We most recently posted on the appointments here.

Recall that opponents of the appointments argued that the three-day breaks between pro forma sessions were not long enough to constitute a "recess" of the Senate, and that the appointments therefore required Senate advice and consent and violated the Recess Appointments Clause.

The OLC took a functional approach to the definition of "recess," asking whether the Senate's pro forma sessions would have allowed the Senate to fulfill its advice-and-consent role for ordinary appointments.  The Office said no, and therefore the President may use his recess appointment power.

The OLC took it in a two-step.  First, it asked whether the President had authority to make a recess appointment during the Senate's recess here--a 20-day intrasession recess.  Answer: Yes, based on the OLC's prior advice, historical practice, and the limited judicial authority on the question.  This is relatively uncontroversial.

Second, it asked "whether the President is disabled from making an appointment when the recess is punctuated by periodic pro forma sessions at which Congress has declared in advance that no business is to be conducted."  Answer: Also yes, although it acknowledged that this was somewhat more controversial--and creates "some litigation risk for such appointments."

This functional approach allowed the OLC to dodge the harder question, whether any three-day recess is necessarily a "recess" under the Recess Appointments Clause.  The memo explains:

Because we conclude that pro forma sessions do not have this effect [that the Senate is unavailable to fulfill its advice-and-consent role], we need not decide whether the President could make a recess appointment during a three-day intrasession recess.  This Office has not formally concluded that there is a lower limit to the duration of a recess within which the President can make a recess appointment.

Op. at 9, n. 13.  In other words, what's important isn't the three-day recess between pro forma sessions, but the 20-day recess (which is a "recess" under the Recess Appointments Clause) punctuated by pro forma sessions (which do not allow the Senate to fulfill its constitutional role of advice and consent).  (Under this reasoning, the pro forma sessions could be spread across any number of days--1, 2, or 15.  What matters is whether the Senate can conduct business, or, more precisely according to the OLC, whether the President determines that the Senate can conduct business--see below.)

The Office cited its own precedent, historical practice, and the Senate Judiciary Committee's own position in support of this functional approach.

Under the approach, the Office concluded that "the President may determine that pro forma sessions at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause."

The OLC rejected arguements that the Senate employed pro forma sessions, with full legal effect as other sessions, in other contexts (because those contexts are different); that the Senate itself, under its rules, should be able to determine when it's open for business (because that determination can't trump the Constitution); that based on experience the Senate is, in fact, open for business during pro forma sessions (because the Senate said here "no business conducted," and because the President gets to determine this); that precedent on the pocket veto should constraint the President's recess appointment authority (because the purposes are different); and that the Justice Department (through then-SG Kagan) took a different position on NLRB appointments in 2007 (because SG Kagan's letter, like this OLC opinion, did not answer the question whether an intrasession recess of three days or less constitutes a "recess" under the Recess Appointments Clause).

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President Obama's Recess Appointments

President Obama's recess appointments last week of Richard Cordray to head the Consumer Financial Protection Board and three new members of the National Labor Relations Board have come under fire for violating a 3-day rule.  That is, opponents claim, the period between the Senate's pro forma sessions this month and last is less than three days, and therefore is not a "recess" under the President's recess appointment power.  In short, they say, because the Senate is not in "recess," the President lacks authority to appoint without Senate confirmation.

But there's nothing in the Constitution that defines a "recess" as three days or more (or as any other period).  The (scant) textual support for opponents' claim comes from Article I, Section 5, Clause 4, the Adjournments Clause, which says that neither chamber can take a break of more than three days without the consent of the other:

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Based on this Clause, the Justice Department wrote in its brief in Mackie v. Clinton (D.D.C. 1993):

If the recess here at issue were of three days or less, a closer question would be presented.  The Constitution restricts the Senate's ability to adjourn its session for more than three days without obtaining the consent of the House of Representatives. . . .  It might be argued that this means that the Framers did not consider one, two or three day recesses to be constitutionally significant. . . .

Apart from the three-day requirement noted above, the Constitution provides no basis for limiting the recess to a specific number of days.  Whatever number of days is deemed required, that number would of necessity be completely arbitrary.

Mackie v. Clinton, 827 F. Supp. 56 (D.D.C. 1993), vacated as moot, 10 F.3d 13 (D.C. Cir. 1993), Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26 (emphasis added).  (Note the difference in language: The Adjournment Clause uses "adjourn"; the Recess Appointment Clause in Article II uses "Recess.")

Thus Article I, Section 5 doesn't plainly require, and the Justice Department's brief doesn't acquiesce to, a 3-day rule.  In fact, the President has made recess appointments during recesses of three days or less between sessions at least twice--when President Truman appointed Oswald Ryan to be a member of the Civil Aeronautics Board on January 1, 1949, during a three-day recess, and when President Theodore Roosevelt appointed 160 mostly military officers during a several-hour recess.  (In the last 30 years, the shortest recess periods during which a President made a recess appointment were 11 and 10 days: President Reagan made a recess appointment during an 11-day intersession recess, and President Clinton made a recess appointment during a 10-day intrasession recess.)   See Henry B. Hogue, Congressional Research Service, Recess Appointments: Frequently Asked Questions.

Despite the lack of support for a 3-day rule, both parties in the Senate in recent years have sought to structure Senate recesses around it, and ran pro forma sessions every three days or less in order to avoid a recess of more than three days and thus, according to their view, deny the President an opportunity to recess appoint.  Republicans went a step further this summer, when one group of Republicans from the Senate and another group from the House both wrote to House Speaker Boehner to urge him not to pass any House resolution that would permit the Senate to go into recess for more than three days (under the Adjournment Clause).

What with the obvious political motivations and the pro forma (and not real) sessions, some have claimed that President Obama had authority to recess appoint even in a recess of less than three days.  But in truth we need not go so far, because there's only very weak textual support for a 3-day rule, the Justice Department has not acquiesced in a 3-day rule, and past practice cuts against such a rule. 

The lack of a 3-day rule wouldn't leave Congress without appropriate checks.  It still has the power of the purse, it still has oversight authority, and the Senate still has its advise-and-consent role for non-recess appointments (including those recess appointments that expire and then come up for Senate confirmation, assuming the President doesn't re-recess-appoint, which the President may do).  And, of course, Congress can move to change the law.

This last course seems most appropriate here.  Senate Republicans never objected principally to Cordray; instead, they held up his confirmation because they objected to the CFPB.  The cleanest, most transparent way to change the CFPB, of course, is to try to change the CFPB.

The Congressional Research Service has done some excellent work (as usual) on recess appointments.  Check out these:

• Recess Appointments: Frequently Asked Questions
• Recess Appointments Made by President George W. Bush
• Recess Appointments: A Legal Overview
• Recess Appointments of Federal Judges
• Judicial Recess Appointments: A Legal Overview

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Signing Statement on NDAA

The White House on Saturday issued a signing statement on the National Defense Authorization Act, which we covered most recently here.  There are two principal issues here.  The first relates to authorities that Congress seeks to grant to the President, including, apparently, the authority to detain U.S. citizens in military custody.  The second relates to restrictions on authorities.  The signing statement deals with both.

As to authorities, the President clarified that the Administration will not use authority in the NDAA to detain U.S. citizens in military custody "without trial."  We wrote earlier that the NDAA itself probably doesn't change the government's detention authority under existing law and court decisions (whatever one thinks about that law and those court decisions).  The signing statement, too, doesn't fundamentally change that picture.  In short, the Administrations statement that it won't detain U.S. citizens in military custody "without trial" probably only comports with the requirements in Hamdi v. Rumsfeld, and probably doesn't offer any extra or special protection beyond Hamdi.

As to restrictions, the Administration's signing statement flatly refuses to comply with the requirement for military custody for foreign detainees and the restrictions on transfer of Guantanamo detainees to the U.S. or to other countries.  These restrictions undoubtedly raise separation-of-powers problems, but the signing statement means that the President will ignore the NDAA--the law--in favor of his Administration's own (even if correct) interpretation of the Constitution.  (An alternative would have been the veto.)  This is a practice that this President once disavowed, or at least qualified.  The Administration's signing statement on the NDAA is one of its more aggressive uses of a constitutional signing statement, signalling the Administration's willingness to ignore the law it just signed because it is unconstitutional in some applications.  The Administration is correct that these limitations raise grave separation-of-powers problems, but it's less clear that a signing statement is the best way to deal with them.

Here are some particulars:

• Section 1021.  This section defines a detainable person and apparently authorizes indefinite military detention.  The White House says that this "breaks no new ground," because it simply confirms authorities already recognized by the law and the courts; it also says that it requested "critical limitations" in the bill that say that the authority here doesn't expand or limit existing legal authority.  The signing statement addresses the principal criticism of this section, the potential indefinite detention of American citizens: "Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens.  Indeed, I believe that doing so would break with our most important traditions and values as a Nation.  My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the Constitution, the laws of war, and all other applicable laws."  This statement doesn't change anything.  In particular, the "without trial" is a reference to Hamdi v. Rumsfeld, which held that the government can't hold U.S. citizens indefinitely without due process.  The key is understanding what the administration means by "without trial."  Whatever it means, it still has to satisfy due process under Hamdi.  In short, the section and the signing statement together don't seem to change existing law.
• Section 1022.  This section mandates military custody for a category of non-citizen detainees and was controversial because it would tie the Commander-in-Chief's hands in choosing how to deal with alleged terrorists--a restriction that the Administration earlier objected to on separation of powers grounds.  The signing statement reiterates the Administration's earlier objections and flatly rejects its limitations.  Here's what the statement says: "I reject any approach that would mandate military custody where law enforcement provides the best method of incapacitating a terrorist threat.  While section 1022 is unnecessary and has the potential to create uncertainty, I have signed the bill because I believe that this section can be interpreted and applied in a manner that avoids undue harm to our current operations.  I have concluded that section 1022 provides the minimally acceptable amount of flexibility to protect national security.  Specifically, I have signed this bill on the understanding that section 1022 provides the executive branch with broad authority to determine how best to implement it, and with the full and unencumbered ability to waive any military custody requirements,including the option of waiving appropriate categories of cases when doing so is in the national security interests of the United States.  . . . [U]nder no circumstances will my Administration accept or adhere to a rigid across-the-board requirement for military detention."  The Administration's objections here are practical and operational, and their separation-of-powers roots are clear: it's the Commander-in-Chief's job, not Congress's, to determine how to detain foreign alleged terrorists.  Whether the President can lodge this kind of objection in a signing statement (as opposed to a veto), and whether the President can therefore disregard the plain law (that he just signed), are different questions.
• Sections 1027 and 1028.  These are restrictions on the use of funds to transfer Guantanamo detainees to the U.S. or to foreign countries.  The statement reiterates the Administration's earlier separation-of-powers objections and says that "[i]n the event that the statutory restrictions in sections 1027 and 1028 operate in a manner that violates constitutional separation of powers principles, my Administration will interpret them to avoid the constitutional conflict."

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Ninth Circuit: Birthers Have No Standing to Challenge Obama's Presidency

The Ninth Circuit ruled last week in Drake v. Obama that a group of plaintiffs lacked standing to challenge President Obama's qualifications to be President under Article II, Section 1, on the ground that he is not a "natural born Citizen."  The ruling affirms the earlier district court ruling, although for somewhat different reasons.

The case involves six categories of plaintiffs.  Here's what the court said, one group at a time:

Active Military Personnel.  The court ruled that an active duty officer failed to allege sufficiently concrete harm when he claimed that his failure to obey orders from President Obama, his Commander in Chief, would result in disciplinary action against him.  Instead, the court said, the alleged harm is speculative, and easily avoidable: "he can obey the orders of the Commander-in-Chief."  Op. at 11.

Former Military Personnel.  The court ruled that this group's claim--that it could be called back into duty and subject to orders of President Obama--was "far too speculative and conjectural."  Op. at 12.

State Representatives.  The court held that state representatives, who claimed that they could be harmed because "receipt of funds from any officer without legal authority [like President Obama, under their theory] would be complicity in theft or conversion," also claimed a far too speculative harm.  Op. at 13.

Federal Taxpayers.  The court ruled that taxpayers generally do not have standing.

Relatives of President Obama.  The court ruled that plaintiff Kurt Fuqua failed to allege an injury in fact based only on his familial relationship to President Obama.  The fact that he's family does not bolster his otherwise standing-less claims.

Political Candidates and Electors in the 2008 Election.  The court ruled that plaintiffs Alan Keyes and Wiley Drake, the Presidential and Vice Presidential candidates, respectively, of the American Independent Party, a write-in candidate for President, and a certified California elector all lacked standing based on their allegation that they were denied a fair competition for the presidency.  The court recognized that some courts, including the Ninth Circuit, have recognized something like "competitive standing."  But here the plaintiffs' complaint came in only after President Obama was officially sworn in as President.  The court said that after President Obama was sworn in, the plaintiffs were no longer candidates in the 2008 general election, and they have no alleged any interest in running against President Obama in the future.  (In contrast, the district court assumed, without deciding, that political candidates had some form of "competitive standing," but that they lacked redressability, because the federal courts could not grant their requested remedy--ousting President Obama--without running afoul of the political question doctrine and separation of powers.)

The court also rejected the plaintiffs' quo warranto claims, ruling that those claims have to be brought in the D.C. district and by the Attorney General or the U.S. Attorney for D.C.  It's no excuse that those officers have declined to bring a quo warranto case.

Finally, the court rejected the plaintiffs' novel FOIA and RICO claims.

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The New York Times Sues the Justice Department for Memos Authorizing Targeted Killing

The New York Times and reporters Charlie Savage and Scott Shane sued the Department of Justice in the Southern District of New York this week to obtain any legal analysis from the Office of Legal Counsel authorizing the government's targeted killing of suspected terrorists.  Courthouse News Service first reported here.

Recall that Savage reported on the government's legal justification for its targeted killing of Anwar al Alwaki, a United States citizen and alleged terrorist living in Yemen.  But Savage relied on a government source, not an OLC memo or other formally released legal advice.  According to Savage's story, the government's legal advice probably closely tracked State Department Legal Adviser Harold Koh's arguments to the American Society of International Law in May 2010.  But still, the government had not released the actual legal advice.

Savage and Shane filed two separate FOIA requests with the Department of Justice for any legal advice that the Department offered to the administration on the legality of, or authority to commit, targeted killings.  The DOJ rejected the requests, citing FOIA Exemption 1 (relating to national defense or foreign policy information classified under EO 13526), Exemption 3 (relating to information protected by statute), and Exemption 5 (relating to privileged information).

The complaint argues that Exemptions 1 and 3 do not apply, because the FOIA request seeks only legal analysis, and "[m]emoranda containing only legal analysis fail to meet the requirements for properly classified materials under Executive Order No. 13526 or other legal authority."  (Para. 55.)  It argues that Exemption 5 doesn't apply, because "[m]emoranda containing legal analysis relied upon by the government constitute final determination of policy by the government and therefore are not deliberative materials."  (Para. 54.)

The complaint also cites the widespread calls for release of any memos--by Members of Congress and former OLC attorneys.

Given the widespread calls for release, the all-but-known legal advice that's in the memo, and the administration's stated commitment to transparency, the government's intransigence doesn't seem to make a lot of sense.  (The government also succeeded in dismissing al Alwaki's father's case on the pleadings--and, alas, could probably succeed in dismissing any similar case on similar grounds--and so there doesn't appear to be a threat that release of any memo now would give up a litigation position later.)  And now, in response to the Times's case, the government may feel like it has to dig in its heels to preserve the vitality of these exemptions in future cases. 

The government should just release the memo publicly--something it should have done months ago, without the threat of a FOIA suit--and move to dismiss the Times's case as moot.

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The National Defense Authorization Act

There's quite a bit of confusion and argument about what exactly the National Defense Authorization Act, or NDAA, does.  (The Conference Report is here; the relevant Title, Subtitle D, Counterterrorism, begins on page H8436.)  On one side, detractors claim that it expands government authority to detain aliens and even U.S. citizens.  Glenn Greenwald does a nice job setting out the case at salon.com.  On the other side, supporters say that it only codifies the government's authority under existing law.  Benjamin Wittes and Bobby Chesney carefully make this argument in their thorough examination at lawfare.

It turns out, both sides are right.  In short, the plain language of the NDAA expands detention authority beyond the plain language of the Authorization to Use Military Force, P.L. 107-40, but it only codifies the authority already claimed by President Obama and granted by the D.C. Circuit under the AUMF.  Here are some of the highlights:

• Indefinite Detention.  Section 1021(c)(1) says that "[t]he disposition of a person under the law of war as described in subsection (a) may include . . . [d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force."  (Emphasis added.)  This is the definition of indefinite detention.  But it's also an authority that President Obama claimed from the early days of the administration.  In fact, the definition of a "covered person" in Section 1021(b)(2) almost exactly tracks the administration's proposed definition of a "detainable person" under the AUMF in its March 13, 2009, filing in a Guantanamo habeas case in the D.C. District.  (More below.)  So while this authority in the NDAA is significant for representing clear congressional support for indefinite detention, and while it's deeply troubling, it also merely reflects the administration's long-standing position.
• Detainable Persons.  Section 1021(b)(2) says that the government can detain (indefinitely) "[a] person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces."  This is new, and adds to the definition of detainable person under the AUMF (and tracked in Section 1021(b)(1)) that allows detention of "[a] person who planned, authorized, committed, or aided the terrorist attacks that occured on September 11, 2001, or harbored those responsible for those attacks."  Moreover, Section 1022(a) requires military detention for anyone who is "a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda" and anyone who "participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners."  (Section 1022 covers a subset of detainable persons in Section 1021.  U.S. citizens and resident aliens are excepted from the requirement; more below.)  In short, the NDAA authorizes indefinite detention, and in some cases requires military detention, for those who not only participated in the 9/11 attacks or harbored those who did (as under the AUMF), but also for those who currently attack the United States or its partners.  But again, this is an authority that the administration claimed from its early days.  Thus the NDAA tracks almost exactly the adminsitration's proposed definition of a detainable person in Guantanamo habeas cases.  And it seems congruent with the D.C. Circuit's "part of" test--that under the AUMF the government can detain anyone who is "part of forces associated with Al Qaeda or the Taliban."  So here, too, the plain language of the NDAA seems to expand authority beyond the AUMF, but it also seems consistent with the government's long-standing position and the courts' interpretation of the government's authority under the AUMF.
• Detainability of U.S. Citizens.  Section 1022(b) says that the military detention requirement in Section 1022 does not apply to U.S. citizens and lawful resident aliens for conduct within the United States.  This means that the NDAA does not require the military and indefinite detention of U.S. citizens who are "covered persons" under Section 1022(a)(2) (see above), but it also seems to permit such detention of U.S. citizens.  The Act is deliberately ambiguous on this point and seems to punt to the courts.  But in any event, it doesn't obviously add anything to the administration's position on detention or to what the courts would permit under Hamdi.
• Guantanamo Transfers.  Section 1027 unequivocally denies funds for transfers of Guantanamo detainees to the United States.  This restriction means that the administration can't transfer detainees for civilian criminal trials.  The administration previously objected to this restriction (among others), even threatening a veto over this and other measures in the bill, but apparently dropped its objection.
• Civilian Trials.  In addition to the restrictions in Section 1027, which prevent transfers of Guantanamo detainees to the United States for civilian trials (or for any other reason), Section 1029 requires the Attorney General to consult with the Director of National Intelligence and the Secretary of Defense about civilian trials for anyone held under Sections 1021 and 1022, discussed above.

These provisions in the NDAA represent significant and explicit congressional approval of government detention authority.  But they also only represent the administration's long-standing positions, and they're not obviously out of line with the courts' approaches.  In short, the codification of these authorities is significant--because it means that Congress is explicitly signing onto them--but they also only represent the creep of authority claimed by the administration and reflected in the courts under the AUMF.

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Gingrich on the Judiciary

In case you missed it, here's Newt Gingrich explaining his views on the federal judiciary--and how to check it--yesterday to Bob Schieffer on Face the Nation.

 

Among the more eye-popping claims in the interview, Gingrich explains that separation of powers means that "it's always two [branches] out of three."  The "two-out-of-three" rule came up in response to Schieffer's question about whether President Obama could ignore a Court ruling overturning the Affordable Care Act (now at the Court, and scheduled for oral argument March 26 to 28).  Gingrich said it would depend on whether President Obama could get Congress to go along--two out of three.  (It doesn't matter, apparently, that Congress already went along.  It seems that the two-out-of-three rule only works if two out of three come to the right decision.)  This exchange is around six minutes into the interview.

Gingrich also says that Congress could subpoena a federal judge to explain his or her reasoning to Congress.  And more: Congress could enlist the Department of Justice to help do this.

Gingrich sets out his positions in more detail in a white paper modestly titled Restore the proper role of the judicial branch by using the clearly delineated Constitutional powers available to the president and Congress to correct, limit, or replace judges who violate the Constitution at newt.org, his campaign site.  From the intro:

This NEWT 2012 campaign document serves as political notice to the public and to the legislative and judicial branches that a Gingrich administration will reject the theory of judicial supremacy and will reject passivity as a response to Supreme Court rulings that ignore executive and legislative concerns and which seek to institute policy changes that more properly rest with Congress.  A Gingrich administration will use any appropriate executive branch power, by itself and acting in coordination with the legislative branch, to check and balance any Supreme Court decision it believes to be fundamentally unconstitutional and to rein in any federal judge(s) whose rulings exhibit a disregard for the Constitution.  The historical and constitutional basis for this position is outlined in this paper.

Paper, at 3.  "The constitutional solution is threefold":

First, the executive and legislative branches can explicitly and emphatically reject the theory of judicial supremacy and undertake anew their obligation to assure themselves, separately and independently, of the constitutionality of all laws and judicial decisions.

Second, when appropriate, the executive and legislative branches can use their constitutional powers to take meaningful actions to check and balance any judgments rendered by the judicial branch that they believe to be unconstitutional.  An outline of some of these constitutional steps is outlined elsewhere in this paper.

Third, the executive and legislative branches should employ an interpretive approach of originalism in their assessment of the constitutionality of federal laws and judicial decisions.

A Gingrich administration will undertake each of these steps.

Paper, at 6.

Gingrich says that one of his strengths is that he's not a lawyer and therefore not bound by elitist views of the role of the courts.

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White House Proposes Rules on Domestic Workers to "Overrule" Long Island Health Care at Home v. Coke

Today, President Obama announced proposed rulemaking to revise the companionship and live-in worker regulations under the Fair Labor Standards Act "to more clearly define the tasks that may be performed by an exempt companion" and " to limit the companionship exemption to companions employed only by the family or household using the services. Third party employers, such as in-home care staffing agencies, could not claim the exemption, even if the employee is jointly employed by the third party and the family or household."

This latter provision regarding home health care workers employed by contractors would change the result of Long Island Care at Home v. Coke, decided by the Court in 2007. As the President's announcement notes, the issue of FLSA coverage

gained national attention when, in 2007, the Supreme Court ruled that Evelyn Coke, a home care worker who worked as much as 70 hours a week, was not entitled to overtime pay under existing regulations. Thus, any change to these rules requires action by Congress or the Department of Labor. There have been bills introduced in numerous Congresses to address this issue (including legislation that then-Senator Obama co-sponsored in the 110th Congress) but these bills have not moved forward. The Department of Labor is therefore now proposing regulations to change these rules and ensure that home care workers like Evelyn Coke will have basic wage protections.

Interestingly, Coke was a unanimous opinion that provoked little controversy when it was rendered. 

I've elsewhere discussed Evelyn Coke in the context of legal theory regarding "servants."  At the oral argument in Coke, which Evelyn Coke attended in a wheelchair, Justice Scalia joked regarding the meaning of "footmen" and Justice Brennan expressed concern for the families who needed home health care workers, but not for the workers themselves.  Evelyn Coke died in 2009.

If the regulations are adopted, they would essentially "overrule" the Court's opinion, based as it was on regulatory and statutory construction.  Thus, the issue is of general interest regarding separation of powers.  The development is also of interest to ConLawProfs working on social change and poverty issues.

RR
[image Library of Congress via]

White House Renews Objections to Detainee Provisions

White House Press Secretary Jay Carney announced today that the Obama Administration continues to object to the detainee provisions in the National Defense Authorization Act for Fiscal Year 2012, S. 1867.  "So our position has not changed."  He also renewed the veto threat.

The Senate overwhelmingly passed the bill earlier this week, after compromise language was added that said the bill did not alter existing law.  It's not clear that the language did much of anything.

The White House objects to the requirement in the bill that the government keep alien detainees in military detention, the prohibition on using funds to transfer detainees, among others.  Here's what Carney said today:

By ignoring these nonpartisan recommendations, including the recommendations of the Secretary of Defense, the Director of the FBI, the Director of National Intelligence and the Attorney General, the Senate has unfortunately engaged in a little political micromanagement at the expense of sensible national security policy.  So our position has not changed.  Any bill that challenges the President's critical authorities to collect intelligence, incapacitate dangerous terrorists and protect the nation would prompt his senior advisors to recommend a veto.

Senator Patrick Leahy and Assistant Attorney General Lisa Monaco, head of the National Security Division at DOJ, also voiced objections today, according to the Blog of the Legal Times.  Monaco spoke specifically about the military detention requirement, saying that it would undermine the executive's prosecutorial authority and tie the administration's hands in dealing with detainees.

SDS

Senate Passes Defense Spending Bill, with Detainee Provisions

The Senate today passed the National Defense Authorization Act for Fiscal Year 2012, S. 1867, with its several provisions dealing with the government's detention authority.  Recall that the Obama Administration previously objected to several detainee-related provisions of the bill and threatened a veto.

Today's Senate vote comes after the Senate earlier this week rejected an amendment proposed by Senator Udall that would have stripped the detainee-related provisions from the bill and another amendment proposed by Senator Feinstein that would have prohibited indefinite military detention of U.S. citizens.

According to The Hill, the Senate vote, 93-7, came after an agreement to include compromise language that simply says that the bill does not alter existing law for the detention of U.S. citizens or anyone captured or arrested in the U.S.  In other words, the compromise maintains the status quo and punts any hard questions to the courts.  It doesn't appear to change anything in the legislation.

In particular, the bill still contains the provisions that the administration objected to: Section 1031, which codifies the government's detention authority recognized by the courts; Section 1032, which mandates military custody for certain terrorism suspects, but not for U.S. citizens and lawful residents (military custody appears to be optional for these); and Sections 1033, 1034, 1035, and 1036, which restrict the government's ability to detain and transfer detainees. 

SDS

White House Objects to Detainee Provisions in Defense Authorization Bill

The White House on Thursday issued a statement objecting to certain provisions in the National Defense Authorization Act for Fiscal Year 2012, now before the Senate.

The Statement of Administration Policy objects to the detention provisions in S. 1867 as bad policy and as encroaching on executive authority.  In particular:

• The White House objects to Section 1031 for codifying its detention authorities that the courts have already recognized under the AUMF.  "[F]uture legislative action must ensure that the codification in statute of express military detention authority does not carry unintended consequences that could compromise our ability to protect the American people."
• The White House "strongly" objects to Section 1032, which would mandate military custody for certain terrorism suspects, but not for U.S. citizens or lawful residents.  "[T]he provision would limit the flexibility of our national security professionals to choose, based on the evidence and the facts and circumstances of each case, which tool for incapacitating dangerous terrorists best serves our national security interests."
• The White House objects to Sections 1033, 1034, 1035, and 1036 which restrict the transfer of detainees to a foreign country and restrict funds for transferring or detaining them within the U.S.  "The Executive branch must have the flexibility to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers. . . .  [The] ban on the use of funds to construct or modify a detention facility in the United States is an unwise intrusion on the military's ability to transfer its detainees as operational needs dictate. . . .  [And] Section 1035 conflicts with the consensus-based interagency approach to detainee reviews . . . which establishes procedures to ensure that periodict review decisions are informed by the most comprehensive information and the considered views of all relevant agencies.  Section 1036, in addition to imposing onerous requirements, conflicts with procedures for detainee reviews in the field that have been developed based on many years of experience by military officers and the Department of Defense."

The White House concludes with a veto threat.  The Senate takes the measure up again on Monday.

Recall that President Obama issued a signing statement on the current restrictions on detainee transfer, arguing that the restrictions interfered with the President's Article II authority, but stopped short of calling them unconstitutional.

SDS

Cole on Targeted Killing

David Cole (Georgetown) revisits the government's targeted killing of Anwar al Awlaki in a piece titled Killing Our Citizens in the New York Review of Books.  Cole reopens and criticizes the killing, which faded from the mainstream news cycle within about a week of al Awalaki's death.  We covered it most recently here.

Cole takes on the idea that al Awlaki posed an imminent threat:

But al-Awlaki was not on the battlefield.  He was in Yemen.  And he was not even alleged to be a part of al-Qaeda or the Taliban, the two entities against whom Congress authorized the president to use military force in a resolution passed one week after the terrorist attacks of September 11, 2001.  That resolution continues to provide the legal justification for the war on al-Qaeda and the conflict in Afghanistan, but it is limited to those who attacked the US on September 11 and those who harbor them.  Al-Awlaki was not alleged to be part of either group, but instead a leader of AQAP, an organization in Yemen founded in 2009, long after the September 11 attacks.  He has never been tried, much less convicted, for any terrorist crime.

And more: al-Awlaki's case against the government, seeking to stop the government from killing his son, was dismissed based on lack of standing and the political question doctrine.

The part of this episode that ought to worry us most is the secrecy.  We know almost nothing about the legal justification for the killing, or the process through which the White House designated al Awlaki for targeted killing.  As Cole writes:

Secret memos, with or without leaked accounts to The New York Times, are no substitute for legal or democratic process.  As long as the Obama administration insists on the power to kill the people it was elected to represent--and to do so in secret, on the basis of secret legal memos--can we really claim that we live in a democracy ruled by law?

SDS

White House Turns Over Some Solyndra E-Mails

The White House on Friday turned over some, but not all, of the e-mails sought by the House Energy and Commerce Committee through its subpoenas issued earlier this month.  We posted most recently here.

Recall that the White House argued that the subpoenas were too broad and failed to balance the interests of the executive branch with the legitimate oversight interests of the Committee.

The Committee says that it's reviewing the e-mails now.  While Committee leaders acknowledged the White House's effort, they also said that the documents are "limited" and "self-selected."  According to the White House, it already gave the Committee over 85,000 pages of documents, and the Committee is releasing them "in a way that presented a misleading and inaccurate account to the public."

SDS

Speaking of United States v. Nixon . . . . More Watergate Material Just Made Available

As we just noted, before Clinton v. Jones, there was United States v. Nixon.

 

And now there are the Richard Nixon grand jury documents available on GPO:

In May 1975, the Watergate Special Prosecution Force (WSPF) decided that it was necessary to question former President Richard M. Nixon in connection with various investigations being conducted by the WSPF. Mr. Nixon was questioned over the period of two days, June 23 and June 24, 1975, and the testimony was taken as part of various investigations being conducted by the January 7, 1974, Grand Jury for the District of Columbia (the third Watergate Grand Jury). Chief Judge George Hart signed an order authorizing that the sworn deposition of Mr. Nixon be taken at the Coast Guard Station in San Mateo, California with two members of the grand jury present.

Included is much discussion of the 18 and a half minute gap in the tapes.

RR

Justice Stevens on Clinton v. Jones

The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.

The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time,"  seemed to have been proven false by subsequent events.  In his new book, Five Chiefs, Justice Stevens, defends his statement:

[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term.  In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial.  Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.

While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made.  In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.  As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.”  Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time.  These events, it is argued, proved my comments to have been ludicrous.

That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment.  A postponement of the trial would not necessarily have justified a postponement of the president’s deposition.  Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade.  Given that case (Clinton v. Jones [1997]) was settled, we will never know just how much time a trial would have consumed.  We did know that our ruling did not give rise to the predicted avalanche of litigation.  And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion. 

Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work. 

 (emphasis added). 

Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states.  Instead, as Stevens' opinion for the Court stated:

we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

Here's a quick overview of the case and developments from WaPo.

RR
[image via]

Separation of Powers and Passports, Foreign Affairs

The Supreme Court heard oral arguments yesterday in MBZ (Zivotofsky) v. Clinton, the case testing whether Congress or the President or both have the power to designate (or not) the place of birth on a U.S. passport.  We previewed the argument here.

The separation-of-power issue in the case is obvious: When Congress enacts a law in direct opposition to the President's practice (which, in turn, is driven by the President's foreign policy), who wins?  But the case may turn on a more basic question: Separation of powers about what?

The plaintiffs in the case argued that the case is merely about passports, and not foreign policy.  They said that the case can be decided easily under Justice Jackson's three-part framework in the steel-seizure case, Youngstown Sheet & Tube Co. v. Sawyer: When Congress acts pursuant to its own authority, as here, the President's power is at its lowest ebb.  The plaintiffs translated this as a kind of congressional veto over executive power--that when Congress and the President clash, Congress wins.

But more: The plaintiffs seemed to argue that even if the passport power implicates foreign affairs, Congress has a "shared" power with the President over foreign affairs.  This leaves little exclusive power to the President over foreign affairs--an approach to executive authority over foreign affairs that Justice Kennedy called "crabbed."  Others on the bench also signalled difficulties with this position; for example, Justice Sotomayor showed how it would "hobbl[] the President with respect to situations that occur frequently [in foreign affairs]," like changes in governments and changes in sovereignty.  Justice Scalia put perhaps the finest point on all this:

Mr. Lewin, you're--it seems to me you are not arguing for a co-equal congressional power, you are arguing for a superior congressional power.  You are saying whatever Congress says, the President has to comply with.  Now, that's quite different from saying that they both have authority in the field. 

Transcript, 10-11.

There was an even more basic problem with the plaintiff's approach, though.  That is: What exactly is Congress's authority over passports, and where does it come from?  The plaintiffs didn't have a great answer for that question (from Justice Kagan).

But even with these problems with the plaintiffs' approach--its all-or-nothing nature, its rigidity, and its lack of textual support--the argument was by no means one-sided.  The government similarly dug in its heels on its position on executive authority in foreign affairs: The President has exclusive authority, leaving no room for Congress.  But it's not obvious that such expansive authority here derives from the text--the government only has the reception clause (its power to receive ambassadors) and its historical gloss on that power.  And the government's theory didn't adequately address how it squares with Congress's power of the purse, its advice-and-consent power over appointments, and its oversight authority--whether those quite clear congressional authorities could in effect override the President's execution of the foreign affairs power.  (The government said that a congressional act defunding a foreign affairs policy might raise constitutional problems, but it didn't say why.  This is exactly what the government faced with congressional defunding of transportation of Guantanamo detainees to the mainland for criminal trials in Article III courts.  The Obama administration balked, but only a little, and basically acquiesced in that act of congressional control over a foreign affairs matter.)

Moreover, the Court was quick to recognize that the government's aggressive position on the political question doctrine--that the issue here is textually delegated to the President alone, and therefore the courts shouldn't intervene--answers the underlying merits question.  That is, to decide that the Constitution gives the power to the President  for the purpose of the political question doctrine is also to decide that the Constitution gives the power to the President for the purpose of actualizing the power.  This didn't seem to sit well.

Some on the bench floated intermediate positions.  On the merits, both Congress and the President probably have some power over place-of-birth designation on passports, but that that power might be very different.  The President may have some power by way of recognition, derived from the reception clause; but Congress, too, may have power by way of appropriations, appointments, and oversight.  On the political question doctrine, this case could well be a "political question" (or otherwise nonjusticiable) for that very reason--that both political branches have some power, but that their powers are different, and that the courts should let them work it out (as they do in so many issues).  These intermediate positions offer a more moderate and appealing view of shared power than the extreme views of either side in the case, and they keep the Court well away from delving into the underlying foreign policy itself--something that many on the Court seemed concerned about.

SDS

Argument Preview: Foreign Affairs and Separation of Powers

The Supreme Court will hear arguments on Monday in MBZ (Zivotofsky) v. Clinton, a case that on its face tests whether Congress or the President has authority to name the place of birth on a U.S. passport--but it's likely about much more.

The case arose when two U.S. citizens living in Israel sought a passport for their child, born in Jerusalem, with a place of birth as "Jerusalem, Israel."  Embassy officials agreed to designate the place of birth "Jerusalem," but refused to designate "Israel."  The officials' refusal was based on long-standing U.S. policy not to recognize Jerusalem as part of Israel and U.S. State Department regulations that prohibit the designation of "Israel" as the country of birth for any U.S. citizen born in Jerusalem.

The parents sued.  They pointed to the Foreign Relations Authorization Act, Fiscal Year 2003, that requires the Secretary of State to designate "Israel" as the country of birth for any U.S. citizens born in Jerusalem who so requests.  But President Bush issued a signing statement on the Act that claimed that this provision was unconstitutional and said that the executive branch would decline to enforce it.

The case thus pits the President against Congress on the question of which branch has authority over the birthplace on the passport.

The lower courts dismissed the case, holding that it raised a nonjusticiable political question.  The Zivotofskys appeal that ruling.  But the Supreme Court also directed the parties to argue the merits: whether the Act unconstitutionally infringes upon the President's authority in foreign affairs.

The Zivotofskys argue that the case involves a run-of-the-mine issue relating to passports--the mere designation of a place of birth, which serves identification objectives, not foreign policy objectives.  Thus in their view the case does not involve a political question, and requiring the designation of "Israel" as a country of birth for a U.S. citizen born in Jerusalem is within congressional authority. 

Secretary of State Clinton argues that the President's Article II power to receive Ambassadors includes the power to recognize (or not) foreign sovereigns and the power to designate them (or not) on U.S. passports.  She also argues that this is a political question because of the sensitive foreign policy issues behind the State Department regulation--the kind of issues that are delegated to the President alone under the Constitution.

The fact that the Court directed the parties to brief the merits suggests that it'll say at least something about the merits.  If it does, it seems likely that it'll say something very narrow--dealing only with the extent of the President's authority to receive Ambassadors as against any congressional authority over passports.  But even that narrow ruling could say something broader about the respective roles of the political branches over foreign policy--a much broader question.  This seems to be a narrow, even small, case on the surface, but there are potentially very big issues beneath.

As to presidential signing statements: it seems unlikely that the Court will say anything at all about them: this issue is not squarely before the Court; the parties did not brief it thoroughly; and the Court doesn't have to deal with it to decide the case.

SDS