Tuesday, February 11, 2014
Citing United States v. Windsor, declaring DOMA's section 3 unconstitutional, in a Memorandum issued on Monday February 10, Attorney General Eric Holder has announced that it is the policy of the federal government to "recognize same-sex marriages as broadly as possible." Holder discussed the forthcoming memo in a speech delivered the previous weekend.
In the memo, Holder specifies that marriage recognition will extend to "same-sex marriages, valid in the jurisdiction where the marriage was celebrated to the extent consistent with the law." This shifts the marriage validity question away from domicile or residence.
Importantly, in footnote 1 of the Memo, Holder notes that the policy is limited to marriage and "does not apply to individuals who have entered into another similar relationship such as a domestic partnership or civil union, recognized under state law that is not denominated as a marriage under the laws of that state."
Holder also expresses pride in the DOJ's role in the litigation challenging DOMA, citing his 2011 letter concluding that sexual orientation classifications should be subject to strict scrutiny and that DOMA failed this constitutional test.
One of the more interesting aspects of Holder's Memo is the discussion of marital testimonial privileges. Holder directs prosecutors to apply the memo "prospectively" - - - to conduct that occurred on or after the date of the Windsor decision (and not the date of the 2011 Holder memo or the present memo).
Monday, February 10, 2014
A new digital publication, The Intercept, created by Glenn Greenwald, Laura Poitras, and Jeremy Scahill, launched today. It describes itself as devoted to reporting on the documents previously provided by NSA whistleblower Edward Snowden, and in the longer term, to broaden its scope.
Included is the article "The NSA’s Secret Role in the U.S. Assassination Program" by Scahill and Greenwald, arguing that the NSA uses electronic surveillance, rather than human intelligence, as the primary method to locate targets for lethal drone strikes, which is "an unreliable tactic that results in the deaths of innocent or unidentified people."
The article relies on a variety of sources, confidential and not, to paint a portrait of the "targeted killing" program. It ends by implicating President Obama:
Whether or not Obama is fully aware of the errors built into the program of targeted assassination, he and his top advisors have repeatedly made clear that the president himself directly oversees the drone operation and takes full responsibility for it.
And Obama may even think it's one a "strong suit" of his.
This will definitely be a publication to watch for anyone interested in Executive, military, and other government powers.
Thursday, January 30, 2014
RFRA, the Religious Freedom Restoration Act, is at the center of the upcoming and increasingly contentious cases of Conestoga Wood Specialties Corporation v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. to be heard by the Court on March 25, involving religious-based challenges to the contraception “mandate” of the Affordable Care Act by corporations and corporate shareholder/owners. RFRA, 42 USC § 2000bb–1, provides that
(a) Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive means of furthering that compelling governmental interest.
Passed by Congress in 1993, RFRA's purpose was to change the Court's interpretations of the First Amendment. RFRA's findings explicitly state that :
(4) in Employment Division of Oregon v. Smith the Supreme Court virtually eliminated the requirement that the government justify burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder is a workable test for striking sensible balances between religious liberty and competing governmental interests.
The United States Supreme Court found that RFRA was unconstitutional as exceeding Congressional power under the enforcement clause of the Fourteenth Amendment in City of Bourne v. Flores. Thus, RFRA cannot constitutionally be applied to state laws.
So the short answer to the question "Is RFRA unconstitutional" is "yes," with a "but" quickly added. But RFRA still applies to the federal government. Or so we assume?
That underlying assumption is questioned by an amicus brief filed in Hobby Lobby on behalf of Freedom from Religion Foundation, et. al., by ConLawProf Marci Hamilton. Hamilton - - - who argued for the City of Bourne in Bourne v. Flores - - - argues that RFRA is similarly unconstitutional as applied to the federal government. The brief argues that the "plain language" of the statute
establishes that Congress was aggrandizing its power by taking over this Court’s power to interpret the Constitution. On its face, therefore, RFRA is not an ordinary statute, and is in violation of the separation of powers and Art. V. Moreover, the only class of beneficiaries for these extreme rights against constitutional laws is religious, which violates the Establishment Clause. No matter how much one pretends that RFRA is “just a statute,” it is in fact an unconstitutional enactment.
Lyle Denniston of SCOTUSBlog, writing over at Constitution Daily, notes that the argument that RFRA is unconstitutional
has arisen late in the cycle for written arguments, so it is unclear whether the Court will ultimately reach that argument, and even whether the federal government and the private businesses involved in the pending cases will respond to it. The Court need not deal with it at all, but, if it does, it would be a daring use of judicial power to nullify the law.
Given that the opposing parties have not raised the issue of RFRA's constitutionality, and seem to agree on that aspect of the case (if on little else), the Court might take it upon itself to solicit another amicus brief on this issue, similar to the manner in which the Court appointed ConLawProf Vicki Jackson to argue that BLAG had no standing in Windsor v. United States. That may seem highly unlikely, but stranger things have happened.
Tuesday, January 28, 2014
President Obama will announce tonight during his State of the Union speech that he will increase the minimum wage for federal contractors from $7.25 per hour to $10.10 per hour. He'll do this by executive order, without specific congressional authorization or action, and notwithstanding the statutory minimum wage of $7.25.
Can he do this?
Some Republicans have cried foul, arguing that the action exceeds the President's Article II authority and thus violates the Constitution. But the action is hardly unprecedented, and probably supported by the President's statutory authority, let alone his constitutional authority over the executive branch. In other words, the action is probably a valid exercise of power that Congress granted the President, not a usurpation of power in violation of Article II limits.
Republicans who have criticized the action point to the federal statutory minimum wage. They say that the federal statutory minimum wage, $7.25 per hour, set in the Fair Labor Standards Act, limits Presidential authority to order a higher minimum wage for government contractors. Indeed, the FLSA says that "[e]very employer shall pay . . . wages . . . not less than . . . $7.25 an hour . . . ." FLSA Section 206.
But the FLSA sets a floor. Nothing in the FLSA prevents an employer from paying more than the minimum. And nothing prevents the President from ordering executive agencies to require contract bids to include wages higher than the minimum.
Indeed, another federal statute, the Federal Property and Adminstrative Services Act of 1949, or FPASA, seems specifically to authorize this kind of action. The FPASA was designed to centralize government property management and to use the same kind of flexibility in the public procurement process that characterizes like transactions in the private sector. The Act thus gives the President a great deal of authority to prescribe policies related to government procurement. For example, it says that the President "may prescribe such policies and directives that the President considers necessary to carry out this subtitle. . . ." 40 U.S.C. Sec. 121.
The D.C. Circuit relied on the predecessor to that section in 1979 in AFL-CIO v. Kahn, 618 F.2d 784, to uphold President Carter's EO directing the Council on Wage and Price Stability to establish voluntary wage and price standards for noninflationary behavior for the entire economy. The Kahn court also recognized that other presidents had imposed similar requirements on government contractors, like President Johnson's EO that federal contractors not discriminate based on age, a GSA regulation requiring that procurement of materials and supplies for use outside the U.S. be restricted to goods produced within the U.S., and President Nixon's EO excluding certain state prisoners from employment on federal contract work. Indeed, there's a long line of similar requirements imposed by Presidents.
The D.C. Circuit didn't even apply Justice Jackson's Youngstown framework to the problem, because the President simply relied on his statutory authority under the FPASA, not inherent Article II authority. The court treated the case as an exercise in statutory construction--whether the President had authority under the FPASA.
Given the nature of the minimum wage in the FLSA, and given the President's broad authority to prescribe policies to enhance government contracting, President Obama almost surely has authority to require government contractors to use a higher minimum wage. And that's not even considering any inherent Article II authority the President may have over government contractors.
That's not to say that Congress doesn't have a check. If Congress wants to block the President's action, it probably can--by enacting a statute that specifically proscribes a higher minimum wage. (If Congress were to do this, then inherent Article II power over government contractors, if any, becomes important.) But current law doesn't seem to do that.
For more, including a nice history and summary of court rulings, check out this report by the Congressional Research Staff, Presidential Authority to Impose Requirements on Government Contractors.
Sunday, January 26, 2014
Recall that in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional.
Cohn notes that the judges' differing opinions rest from their differing interpretations of Smith v. Maryland. But Cohn goes further, providing a swift description the Fourth Amendment terrain, especially the Court's 2012 decision in United States v. Jones in which a 5-4 majority found that attachment of a GPS device to track the movements of a vehicle for nearly a month violated a reasonable expectation of privacy.
Cohn concludes that Judge Leon's opinion is better reasoned than Judge Pauley's, noting that while "Leon's detailed analysis demonstrated how Jones leads to the result that the NSA program probably violates the Fourth Amendment, Pauley failed to meaningfully distinguish Jones from the NSA case, merely noting that the Jones Court did not overrule Smith."
But she, like many others, thinks the issue is ultimately headed to the United States Supreme Court.
Unless, of course, President Obama acts quickly to revise the program.
Sunday, January 19, 2014
The D.C. Circuit on Friday remanded a case challenging President Obama's ban on registered lobbyists serving on advisory committees. The case, Autor v. Pritzker, means that the district court will have a second crack at determining whether the ban violates the First Amendment. The ruling suggests, but does not conclude, that the D.C. Circuit thinks that it does.
Appellants in the case are federally registered lobbyists wishing appointment to an Industry Trade Advisory Committee, or ITAC, a type of advisory committee established under the Trade Act of 1974. There are sixteen industry-specific ITACs that provide information and advice to the President on trade issues reflecting the viewpoints of the industry. As a result, ITAC members include representatives from major corporations.
But President Obama moved to bar lobbyists from serving on ITACs and other advisory committees in order to change "the culture of special-interest access" in Washington. In particular, he directed "the heads of executive departments and agencies not to make any new appointments or reappointments of federally registered lobbyists to advisory committees." This meant that the appellants couldn't serve on ITACs. Appellants sued, arguing that the ban violated the First Amendment--that service on an ITAC would require them to relinquish their free-speech rights.
The D.C. Circuit ruled that their complaint stated a First Amendment claim and that it shouldn't be dismissed. The court remanded the case for a determination of the First Amendment question.
The court distinguished Minnesota State Board for Community Colleges v. Knight. In that case, the Court held that a union's ability to exclude non-union-members from participation in "meet and confer" sessions with government employers did not violate the First Amendment. Here, in contrast, the court wrote that "any burden on Appellants' constitutional rights results directly from the government's decision to bar them from ITAC membership."
The court instead drew on the government-employee speech doctrine. It ruled that the lobbyist ban might work a deprivation of a valuable benefit, service on a congressionally created ITAC, at the expense of federally registered lobbyists' free-speech rights. In other words, the ban might violate the unconstitutional conditions doctrine.
The court remanded the case for a calculation under Pickering of the "balance between the interests of the [appellants] . . . and the interests of the State." The court wrote,
In doing so, the district court should ask the parties to focus on the justification for distinguishing, as the lobbyist ban does, between corporate employees (who may represent their employers on ITACs) and the registered lobbyists those same corporations retain (who may not). The court may also want to ask the government to explain how banning lobbyists from committee composed of representatives of the likes of Boeing and General Electric protects the "voices of ordinary Americans."
Saturday, January 18, 2014
In the provocatively titled "Is Obama Failing Constitutional Law?" and subtitled "Talking and tinkering may not be enough to make the old law professor’s surveillance program legal" Law Prof Jonathan Hafetz (pictured below) assesses President Obama's January 17 speech over at Politico.
Here's Hafetz on the "mixed bag" of Obama's proposed reforms to the FISA court:
The court currently operates in secret and hears only from the government, contrary to basic principles of due process. Obama said he would ask Congress to create a public advocate to argue for privacy concerns before the FISA court, as his advisory panel urged. But Obama did not clarify whether the advocate’s opportunity to argue would be left within the secret court’s discretion. Obama also rejected the panel’s recommendation to revise the method for selecting the court’s 11 members to create more balance. Presently, Chief Justice John Roberts alone decides the membership.
January 18, 2014 in Criminal Procedure, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, News, Profiles in Con Law Teaching, Web/Tech | Permalink | Comments (0) | TrackBack (0)
Friday, January 17, 2014
In a highly anticipated event today, President Obama delivered his remarks accompanied by a directive, Presidential Policy Directive/PPD-28, on "Signals Intelligence Activities," regarding NSA Surveillance. Recall that late last year a presidential advisory committee issued a report with specific recommendations, that one program has been subject to differing judicial interepretations - - - in Klayman v. Obama, Judge Richard Leon granted a preliminary injunction against NSA surveillance of telephone metadata, while in American Civil Liberties Union v. Clapper, Judge William J. Pauley granted a motion to dismiss in favor of the government, finding the same program constitutional - - - and that the national discussion on this issue is largely attributable to Edward Snowden.
While the judicial opinions did not specifically feature in Obama's remarks, Snowden did:
Given the fact of an open investigation, I’m not going to dwell on Mr. Snowden’s actions or motivations. I will say that our nation’s defense depends in part on the fidelity of those entrusted with our nation’s secrets. If any individual who objects to government policy can take it in their own hands to publicly disclose classified information, then we will never be able to keep our people safe, or conduct foreign policy. Moreover, the sensational way in which these disclosures have come out has often shed more heat than light, while revealing methods to our adversaries that could impact our operations in ways that we may not fully understand for years to come.
But the details, as usual, can be a bit more perplexing. For example, consider this qualification to "competitive advantage" :
Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.
The Electronic Frontier Foundation released a "scorecard" before Obama's remarks and directive. Afterwards, it tweeted the results of its assessment of Obama's performance:
January 17, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, Foreign Affairs, International, State Secrets, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)
Wednesday, January 15, 2014
Judge Paul Friedman today upheld an IRS rule that extends tax credits to individuals purchasing health insurance on a federally-facilitated exchange under Obamacare. The ruling in Halbig v. Sebelius deals a blow to opponents of Obamacare in one of the several cases against the Act still percolating in the courts. We wrote on some of those cases and issues most recently here. Politico reports on this case here.
The case was a challenge to an IRS rule that extended tax credits not only to health-insurance purchasers on state exchanges, but also to health insurance purchasers on federally-facilitated exchanges. That's a problem, the plaintiffs said, because the ACA didn't authorize the IRS to extend credits to purchasers on federally-facilitated exchanges.
In particular, the ACA calculates the credit based in part on the premium expenses for the health plan "enrolled in [by the individual] through an Exchange established by the State . . . ." (Emphasis added.) But the IRS rule makes tax credits available to qualifying individuals who purchase health insurance on state-run or federally-facilitated exchanges.
A group of individuals and employers residing in states that have declined to establish state exchanges sued, arguing that the IRS exceeded its authority under the ACA in extending tax credits to individuals in states without exchanges (and where the federal government facilitates the exchange).
You might wonder about standing, given that the rule is designed to make insurance cheaper. The court said at least one plaintiff had standing. That's because one plaintiff lives in a state that declined to create an exchange, plans to earn $20,000 in 2014, and does not plan to enroll in a health insurance plan. That plaintiff also introduced evidence that the cost of minimum health insurance coverage, if unsubsidized, would exceed eight percent of his income, allowing him to qualify for an unaffordability exemption. But the IRS rule would lower the cost of his insurance premiums so significantly that he no longer qualifies for the unaffordability exemption. As a result, the IRS rule means that he (1) has to purchase subsidized health insurance at about $20 per year or (2) has to pay some higher amount per year as a tax penalty (for not buying health insurance). Because the rule encourages him to buy insurance--and that costs money (more than the exemption), even if only $20 a year--he has standing. The irony wasn't lost on the court: "Counterintuitively, by making health insurance more affordable, the IRS Rule imposes a financial cost on Klemencic."As to the merits, the court said that the ACA is ambiguous when it extends credits to purchasers on exchanges "established by the State." That's because the ACA, taken as a whole (and not just the limited provision cited by the plaintiffs, taken in isolation), can be reasonably understood to assume that states establish exchanges, and to leave it to the federal government to step in and establish an exchange only when a state declines to do so. When the federal government does this, the court said, then it (the federal government) creates an exchange "established by the State." "In other words, even where a state does not actually establish an Exchange, the federal government can create 'an Exchange established by the State . . .' on behalf of that state."The court also said that other provisions of the ACA suggest that Congress intended to extend credits to purchasers on federally-facilitated exchanges, and that those provisions would clash with the plaintiffs' preferred reading of the Act.
January 15, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 14, 2014
The Senate voted yesterday 55 to 43 to confirm Robert L. Wilkins to serve on the U.S. Court of Appeals for the D.C. Circuit. WaPo reports here. The confirmation marks the third time since the Senate abolished the filibuster for executive and lower-court nominees that the body voted by a bare majority to confirm one of President Obama's nominees to this court. We last posted on the issue here.
Monday, January 13, 2014
The Supreme Court heard oral arguments today in NLRB v. Noel Canning, the case testing whether the President may make recess appointments to positions already vacant during an intra-session recess of the Senate. Our argument preview is here.
The Court today was especially sensitive to the many thorny doctrinal, practical, and political issues in the case, and seemed to be looking for a simple solution that would dodge them. The ordinary appointments process (with advice and consent of the Senate), as suggested by Chief Justice Roberts and Justice Ginsburg (see below), may well be that solution. If so, the Court might read the Recess Appointments Clause more restrictively in this case, limiting the President's recess-appointments authority, and giving more power to the Senate to hold up executive appointments by declining to recess.
The case presents three questions about the Recess Appointments Clause:
1. Does "the Recess of the Senate" include intra-session breaks, or recesses?
2. Do "Vacancies that may happen during the Recess" include vacancies that already existed?
3. Can the President exercise the recess-appoitnment power when the Senate convenes only every three days in pro forma sessions?
The arguments included the predictable points on text and history--interpretations of "the Recess," the clause "may happen," and historical practices and understandings. (If anything, these arguments only revealed how indeterminate and contestable these sources can be. See, e.g., the discussion on the OED's definitions of "happen" starting at about page 60 or so of the transcript, and the points over practices running throughout the arguments.) The particular concern with the words "may happen" suggest one possible outcome: the Court could rule that while "the Recess" includes intra-session recesses, "may happen" extends only to vacancies that occur (not already exist) during a recess.
But the more interesting--and probably more important--points were on balance-of-powers principles and practical implications--against the obvious backdrop of partisan politics.
Indeed, what started in the briefing as a debate principally about the meaning and practice of the Recess Appointment Clause turned quickly today into a debate about executive power and whether the Senate encroached on executive recess-appointment power by meeting in pro forma sessions and thus denying the President a recess in which to make recess appointments. General Verrilli pushed the argument on executive authority beyond a mere point on when the Senate is in "recess," claiming broadly that the President should get to fill all vacancies. Justice Alito put a fine point on it:
But you are making a very, very aggressive argument in favor of executive power now and it has nothing whatsoever to do with whether the Senate is in session or not. You're just saying when the Senate acts, in your view, irresponsibly and refuses to confirm nominations, then the President must be able to fill those--fill those positions. That's what you're arguing. I don't see what that has to do with whether the Senate is in session.
But Noel Canning and the Senate Minority Leader both took aggressive positions the other way, saying that the Senate gets to decide when it's on recess--even saying that it's never on recess--thus severely limiting the President's recess appoitment power. Respondents argued that the President has come to use the recess appointment power to deal with Senate intransigence, not emergencies--an argument that seemed to resonate with the Court.
Chief Justice Roberts and Justice Kagan both seemed concerned that such an important balance-of-powers issue could turn on magic language in a Senate resolution, for example, as here, that says "No business shall be conducted." Chief Justice Roberts said that this maybe made the point not so important. Justice Kagan said that focusing on the phrasing of a Senate resolution could just land the case back at the Court, and that focusing on this kind of formalism suggests that it really is the Senate's responsibility to determine when it's in session or not. But General Verrilli responded that the recess appointment power is an executive authority, "[a]nd the President has got to make a determination of when there's a recess"--that the Senate's use of pro forma sessions to stay in session (and not on recess) is an encroachment on Article II Recess Appointment power.
The Court was also concerned about how to balance text against practice. Justice Scalia posed this question:
What do you do when there is a practice that--that flatly contradicts a clear text of the Constitution? Which--which of the two prevails?
General Verrilli responded:
The answer is I think, given this--a practice going back to the founding of the Republic, the practice should be--the practice should govern, but we don't have that here. This provision has been subject to contention as to its meaning since the first days of the Republic.
Justices Alito and Kagan asked the same question to Noel Canning, and got the exact opposite answer.
The Court was also concerned about a related problem: If the government gets its way, it appears that the Senate violated the 20th Amendment and the Adjournment Clause. Justices Breyer and Alito both suggested that the Court would rather avoid that conclusion.
These more theoretical issues are serious, to be sure, but they may not be necessary to resolve the case. The Court was equally, or more, concerned about the practical implications of the case--in particular, how a ruling could affect already-made decisions by the NLRB, other government agencies, and even the courts (because of recess-appointed judges). Chief Justice Roberts and Justices Sotomayor and Ginsburg asked about this; Justice Scalia suggested a way out of this problem, the de facto officer doctrine; still General Verrilli said that "it certainly casts a serious cloud over the legitimacy of all those actions."
Also focusing on the practical aspects of the case, Chief Justice Roberts and Justice Ginsburg both wondered why the President couldn't just use the ordinary appointment process (and why the Senate couldn't decline to confirm)--in other words, why the government says that the pro forma sessions and lack of intra-session recess appointment power is a problem. Justice Scalia pointed out that the President can convene Congress (under Article II, Section 3, "He may, on extraordinary occasions, convene both houses"), and that Congress can get back within a day or so to deal with appointments.
Finally, Justice Breyer and Justice Kagan both asked about the politics--the shifting positions of the parties, depending on who is in the White House, and the President's use of the recess appointment power to deal with congressional intrasingence, not emergencies. General Verrilli responded that the Senate's advice-and-consent role is much larger today than the framers anticipated, and that today it encroaches on the President's appointment power--trying to take the case out of ordinary politics and place it back in larger balance-of-powers issues.
January 13, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Friday, January 10, 2014
The Supreme Court will hear oral arguments on Monday in NLRB v. Noel Canning, the case testing the President's recess appointment power. In particular, the case tests whether the President can make a recess appointment during a prolonged intra-session recess of the Senate in which the Senate sits in pro forma sessions every three days. We most recently posted on the case here.
Here's a preview, reprinted, with permission, from the ABA Preview of United States Supreme Court Cases:
The National Labor Relations Board, or the NLRB or the Board, consists of five members who are appointed by the president and confirmed by the Senate. Three members constitute a quorum, and without three or more members the Board cannot adjudicate cases involving unfair labor practices under the National Labor Relations Act.
On January 3, 2012, Board membership fell to two members. The next day, on January 4, 2012, President Obama sought to fill the three vacancies with recess appointments pursuant to the Recess Appointments Clause of the Constitution. That Clause allows the president “to fill up all Vacancies that may happen during the Recess of the Senate,” without obtaining the usual advice and consent. Thus President Obama purported to appoint Sharon Block, Terence F. Flynn, and Richard F. Griffin to seats that had become vacant on January 3, 2012, August 27, 2010, and August 27, 2011, respectively. The appointments, if valid, would have completed the five-member NLRB. (Two Board members, Chairman Mark G. Pearce and Brian Hayes, were confirmed by the Senate on June 22, 2010. Neither party disputes the validity of their appointments.)
President Obama purported to use the recess appointment power, because at the time the Senate was not meeting regularly. Instead, the Senate was operating pursuant to a unanimous consent agreement that provided that the Senate would meet in pro forma sessions only, “with no business conducted,” every three business days from January 3, the beginning of the second session of the 112th Congress, to January 23, 2012. The agreement said that each pro forma session would be followed immediately by another adjournment. The agreement meant that no senators were required to attend, except the one who gaveled in and out each pro forma session. (A previous and similar unanimous consent agreement ran from December 17 to January 3, 2012. The Senate interrupted that agreement once, on December 23, 2011, to pass a temporary extension to the reduced payroll tax.)
On February 8, 2012, a three-member panel of the Board, composed of Block, Hayes, and Flynn, affirmed the findings of an NLRB administrative law judge (ALJ) that Noel Canning engaged in an unfair labor practice. (The ALJ found that Noel Canning refused to execute a written collective bargaining agreement incorporating terms, related to wages and pension, that the union and Noel Canning agreed upon during contract negotiations. The ALJ found that Noel Canning’s refusal to execute an agreement violated §§ 8(a)(1) and (5) of the National Labor Relations Act.) Noel Canning appealed to the United States Court of Appeals for the D.C. Circuit, challenging the NLRB’s decision on its merits, and arguing that the Board could not act lawfully because it lacked a quorum. The court rejected Noel Canning’s arguments on the merits, but ruled that the NLRB lacked a quorum, and therefore did not act lawfully, because President Obama’s appointments violated the Recess Appointments Clause.
The Board sought review in the Supreme Court, presenting two questions that had been decided by the court of appeals. The Supreme Court granted review and directed the parties also to address “[w]hether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.”
The Recess Appointments Clause, Article II, Section 2, Clause 3 of the Constitution, provides that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” The Clause is designed to allow the president to fill vacancies that would otherwise require the advice and consent of the Senate when the Senate is not available to provide advice and consent. This case tests the pliability of that Clause.
The parties’ arguments turn on the plain language, meaning, and history of the Clause and presidential practice. In particular, the parties dispute (1) whether the Senate was on “the Recess” on January 4, 2012, when President Obama appointed the three members of the NLRB, (2) whether the vacancies on the NLRB “happen[ed] during the Recess of the Senate,” and (3) whether the president can exercise his recess-appointment authority when the Senate is convening every three days in pro forma sessions.
On each question, the parties also wrangle over separation-of-powers principles. In short, the government argues that the Senate should not be able to frustrate the president’s constitutional duty to execute the laws by holding up appointments by recessing with only pro forma sessions. Noel Canning counters that the president’s position represents a dramatic power grab over the recess appointment authority, at the expense of the Senate.
What is “the Recess”?
The government argues that the phrase “the Recess” applies to both an inter-session recess (that is, one between sessions of Congress) and an intra-session recess (that is, one during a session of Congress, as here). The government says that the definite article “the” does not change that. It contends that “the” is commonly used to refer to a category of events (and not a particular event, like “the [only inter-session] Recess”), even elsewhere in the Constitution itself. It also claims that the phrase “the Recess” was, by 1787, regularly used to describe the equivalent of intra-session breaks of the British Parliament, state legislatures, the Continental Congress, and even the Constitutional Convention.
The government argues that excluding intra-session recesses from the Clause would undermine its purposes. In particular, the government says that excluding intra-session recesses would prevent the president from filling vacant offices, and thus exercising his constitutional responsibility to take care that the laws be faithfully executed, whenever the Senate is unavailable to provide advice and consent for a significant period of time.
Finally, the government claims that long-standing practice supports intra-session recess appointments throughout the nation’s history, and even before 1943. (The government particularly takes on the court of appeals’ assumption that there were only a handful of intra-session recess appointments before 1943, suggesting that presidents before 1943 thought they lacked the power to make them.) The government says, contrary to the court of appeals’ assumption, that presidents made intra-session recess appointments “in every year before 1943 in which there was an intra-session recess of significant duration.” It claims that “[a]t least fourteen Presidents have, collectively, made at least 600 civilian appointments (and thousands of military ones) during intra-session recesses.” And it contends that the practice was endorsed in a 1921 attorney general opinion and described as “the accepted view” in a 1948 comptroller general opinion. It says that nearly all presidents after President Truman made intra-session recess appointments, and that opinions of the attorney general, the Office of Legal Counsel, and the United States Court of Appeals for the Eleventh Circuit all reaffirmed the validated of intra-session recess appointments during that most recent period.
Noel Canning argues that the plain language of the Clause means that the president can exercise his recess appointment power only during inter-session recesses. Noel Canning claims that the Clause links “the Recess” with the “next Session,” so that “the Recess” refers only to inter-session breaks. It says that the Clause makes “the Recess” and the “Session” alternating states, so that “the Recess” must fall between “Session[s],” that is, formal, numbered Sessions of the Senate (and not daily “sessions”). Stated only slightly differently, Noel Canning contends that the plain language means that the Senate cannot be in “the Recess” and “the Session” at the same time—a condition necessary to support the government’s reading.
Noel Canning argues that the original understanding and historical practice support its plain reading of the Clause. It says that its reading is supported by “every executive or congressional official to construe the Clause prior to 1948,” by early commentators, and by other ratification-era documents and provisions. As to the historical practice, it claims that no president other than Andrew Johnson even attempted to make a recess appointment during an intra-session recess before 1921.
Finally, Noel Canning argues that the government’s position is not supported by the text, original meaning, or historical practice. Instead, it contends, the government’s position is simply the latest in a relatively recent series of increasingly aggressive assertions by the executive branch of mid-session recess appointment power.
Did the Vacancies Happen During the Recess?
The government argues that the Recess Appointments Clause authorizes the president to fill vacancies that exist during the recess, and not just those that arose during the recess. The government claims that the phrase “Vacancies that may happen during the Recess” is ambiguous (as recognized by President Jefferson in 1802 and by Attorney General Wirt in 1823), but can reasonably be read to include vacancies that exist during the recess. It says that this reading best serves the Clause’s purposes, to allow the president to fill all vacancies that occur. It claims that the contrary reading would cause offices to remain vacant “solely because prior occupants died or resigned—or those offices were first established—shortly before, rather than shortly after, a recess began.
The government also argues that long-standing practice supports this reading. The government says that since the 1820s, the vast majority of presidents have made recess appointments to fill vacancies that arose before a recess and existed during the recess. It claims that this practice was supported by a series of attorney general opinions and every court of appeals prior to the D.C. Circuit’s ruling here. The government says that before 1823, contrary to the court of appeals’ assumption, there was no settled understanding of this issue. But it contends that “there were indications from each of the first four Presidents—including actual appointments by Washington, Jefferson, and Madison—that recess appointments can indeed be used to fill vacancies that pre-existed the recess.”
Noel Canning argues that the plain text supports its position. In particular, it says that the Clause’s requirement that the vacancy must “happen during” “the Recess” means that the vacancy must arise during the recess. It says that the government’s contrary reading would erase the phrase “may happen during” from the Clause.
Noel Canning argues that its reading is supported by the original understanding and historical practice. It says that the first four presidents understood that the Clause was limited to those vacancies that arose during the recess, as did the Senate and numerous courts until the late nineteenth century. It contends that the executive branch’s longstanding practice “has been more equivocal than [the government] lets on,” and that the “Senate’s resistance more robust.” But in any event, it claims, that the political branches’ practices cannot override the Clause’s plain language and its structural protection against presidential overreach.
Did This Break Constitute a Recess?
The government argues that the Senate’s 20-day break, with only fleeting pro forma sessions in which no business was to be conducted, was a “recess” under the Recess Appointments Clause. The government claims that both the Senate (since 1905) and the president (since 1921) have formally recognized that the Senate is in “recess” under the Clause when the Senate’s members do not have to attend sessions and when the Senate cannot receive communications from the president or participate in making appointments. The government contends that these conditions held during the 20-day period here, notwithstanding the periodic pro forma sessions.
The government argues that the mere possibility that the Senate might have overturned its unanimous consent agreement, recalled its members, and conducted business cannot change this. The government contends that if that possibility alone meant that the president could not make a recess appointment, then the recess appointment power would be dormant anytime the Senate might come back into session, including during traditional inter-session recesses.
The government argues that historical practice does not support the use of pro forma sessions to prevent the president from making recess appointments. The government says that no president has acknowledged that pro forma sessions would prevent him from making a recess appointment, and that there is no settled presidential acquiescence in the practice of using pro forma sessions to frustrate a president’s use of the recess appointment power. Moreover, the government claims that the use of pro forma sessions by the House and Senate to comply with the Adjournment Clause (which prevents either house from adjourning for more than three days without the consent of the other) does not provide precedent for the Senate’s use of pro forma sessions here. The government says that the better view of this practice is that pro forma sessions do not satisfy the Adjournment Clause.
Finally, the government argues that the Senate’s use of pro forma sessions to frustrate the president’s exercise of his recess appointment power disrupts the balance of powers in Article II. The government says that this gambit—which the Senate has used since 2007 “to string together breaks in business lasting as long as 47 days”—would undermine the president’s constitutional duty to “take Care that the Laws be faithfully executed.”
Noel Canning argues that the president cannot make recess appointments when the Senate convenes pro forma sessions every three days. It claims that the Senate has used pro forma sessions for a variety of purposes since 1854 (including for Adjournment Clause purposes), that the executive has recognized the validity of those sessions, and that presidents have historically refrained from recess appointments during pro forma sessions. Noel Canning contends that the executive branch previously acknowledged that pro forma sessions count under the Clause, and that this administration previously “expressly recognized that pro forma sessions preclude recess appointments.” (At oral argument in New Process Steel v. NLRB, 130 S. Ct. 2635, in 2010, Neal Katyal, then Principal Deputy Solicitor General, said, in response to a question from Chief Justice Roberts on the recess appointment power: “I think our office has opined the recess has to be longer than 3 days.” But just four days later, President Obama made a recess appointment to the NLRB.)
Noel Canning argues that pro forma sessions are actual and legitimate Senate sessions, with the capability of conducting business. Noel Canning says that this is so regardless of whether members have to attend. It also claims that the president has no authority to second-guess the Senate’s internal operations, including its use of pro forma sessions.
This case threatens a key practice by presidents of both parties in filling executive vacancies in the face of an obstructionist Senate and ensuring the continued operations of executive departments. The appendices in the government’s merits brief, detailing recess appointments starting from the Washington administration, show just how widely this practice has been used—and how a rejection of the practice could threaten so many appointments and operations of the executive branch. The facts of this case well illustrate that threat: President Obama made his recess appointments to the NLRB in order to sidestep Senate obstructionism; without valid recess appointments, the NLRB would have had no authority to enforce the National Labor Relations Act.
But the case threatens more than just this particular NLRB. As the government writes in its certiorari brief, “[t]he decision potentially calls into question every final decision of the Board since January 4, 2012,” earlier Board orders, and the actions of “almost any federal officer who received a recess appointment during an intra-session recess, or who was appointed to fill a vacancy that did not first arise during the recess in which the appointment was made . . . .” Considering the number of recess appointments (again, identified in the appendices to the government’s merits brief), there may be numerous such actions across the federal bureaucracy.
On the other hand, the case threatens a key Senate tool in checking the president. The Senate’s practice of using pro forma sessions to frustrate the President’s use of the recess-appointment power could be a very effective way for some in the Senate (or even the House, by way of the Adjournment Clause, see below) to advance their own agendas by way of the appointment process.
Aside from its implications, this case marks the latest round in the escalating gamesmanship between both parties in Congress and the White House over executive nominees. That gamesmanship includes (as relevant here) the use of the filibuster in the Senate to frustrate presidential appointments; the president’s use of the recess-appointment power to sidestep a filibuster or other obstruction in the Senate; and congressional efforts to prevent the president from exercising the recess appointment power. Those efforts include pro forma sessions, as in this case, and even House efforts to prevent a recess in the Senate. (For example, in May and June, 2011, Republicans in the Senate and House urged the Speaker of the House John Boehner to “prevent any and all recess appointments by preventing the Senate from recessing for the remainder of the 112th Congress.” The House could do this, because the Adjournment Clause says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Between May 12, 2011, and the end of that year, no concurrent resolution of adjournment was introduced in either chamber, and as a result the Senate held pro forma sessions every three days during extended breaks (rather than going on “recess.”) This case is just the latest move in this escalating struggle over nominations.
But the case is probably somewhat less significant than it was just a few months ago. That’s because the Senate’s abolishment of the filibuster in late 2012 for executive and lower court appointments removed a significant block to appointments—one that spurred the president’s use of the recess appointment authority in the first place. If the abolishment of the filibuster continues to mean that the president’s nominees can get a vote in the Senate, the president may not need to resort to the recess appointment power as much. (This could change if the Senate and the White House are controlled by different parties, so that a bare majority of the opposite party in the Senate could reject a nominee, even without resorting to the filibuster.)
There is a way that the Court could dodge the issue entirely. At least one amici, Professor Victor Williams, argued at the certiorari stage and again at the merits stage that the Court should dismiss the case as a nonjusticiable political question. If the Court so ruled, it would reverse the circuit court’s ruling on the constitutional question. That would mean that President Obama’s recess appointments to the NLRB would be valid, and that the circuit court’s ruling on the merits (against Noel Canning) would stand.
Tuesday, January 7, 2014
A new book, The Burglary: The Discovery of J. Edgar Hoover's Secret FBI by Betty Medsger tells the "never-before-told full story of the 1971 history-changing break-in of the FBI offices in Media, Pennsylvania" that made clear the "shocking truth" that J. Edgar Hoover was spying on Americans and which led to the Ciontelpro scandal.
The NYT report compares the 1971 incident to contemporary events:
"Unlike Mr. Snowden, who downloaded hundreds of thousands of digital N.S.A. files onto computer hard drives, the Media burglars did their work the 20th-century way: they cased the F.B.I. office for months, wore gloves as they packed the papers into suitcases, and loaded the suitcases into getaway cars. When the operation was over, they dispersed. Some remained committed to antiwar causes, while others, like John and Bonnie Raines, decided that the risky burglary would be their final act of protest against the Vietnam War and other government actions before they moved on with their lives."
The NYT video, part of its "retro report" series is definitely worth a watch.
On NPR, one important aspect is how Betty Medsger obtained and accessed the information:
"I think most striking in the Media files at first was a statement that had to do with the philosophy, the policy of the FBI," Medsger says. "And it was a document that instructed agents to enhance paranoia, to make people feel there's an FBI agent behind every mailbox."
The NPR segment is definitely worth a listen:
As we explained, there really is no exemption. Instead, it's an OPM attempt to put members and staffers of Congress more-or-less in the position they were prior to Obamacare--just like any other employees of large corporations with employer-subsidized health insurance. In other words, Obamacare treated members and staffers differently (worse) than other similarly situated employees (by requiring them to enter an exchange instead of continue their employer-subsidized health insurance), and the OPM simply acted to continue an employer subsidy for them.
Still, there's the question whether OPM had authority to do this. That's what Johnson's suit is about (from the complaint):
The legal problem is that the OPM Rule violates the ACA and the federal statutes that apply to the [Federal Employee Health Benefit Plan]. The health plans offered through the exchanges are not OPM-negotiated large group health insurance plans. Only OPM-negotiated and contracted-for plans can be offered to federal employees through the FEHBP. Furthermore, the designated Exchange plans do not meet the statutory requirements for FEHBP plans administered by the OPM. In addition, the federal government does not meet the definition of a small business and, as a result, is not eligible to participate in a SHOP exchange. Neither the ACA nor any other applicable statute or rule permits the OPM to provide group health insurance to government employees who do not participate in the FEHBP. Finally, the OPM Rule violates the Equal Protection Clause of the United States Constitution in that it treats Members of Congress and their staffs differently than other similarly-situated employees who obtain insurance coverage pursuant to the terms of the ACA. No other employees of large employers are able to purchase insurance through small business exchanges with tax free subsidies from their employers.
What Johnson doesn't say in the complaint is that those employees of large corporations get employer-subsidized insurance, like members and staffers used to get under the FEHBP.
The Wisconsin Institute for Law & Liberty brought the case. Paul Clement, a consultant on the suit, joined Senator Johnson at a news conference yesterday:
The government on Friday filed its response on the emergency application for an injunction pending appeal at the Supreme Court in the Little Sisters case. That case tests whether the Obama administration's accommodation for non-profit, religious-affiliated organizations from the "contraception mandate" in Obamacare violates the Religious Freedom Restoration Act. (This case is different than the Hobby Lobby case, testing whether the "contraception mandate" violates religious freedom of for-profit, non-religious companies. That case is headed for the Supreme Court.)
Recall that the administration's accommodation allows religious-affiliated non-profits to escape the "contraception mandate" by certifying that they have a religious objection to the mandate. Then their third-party administrator ordinarily must provide or arrange separate payments for contraception, costs to be reimbursed through an adjustment to federally faciliated exchange user fees. This accommodation builds a kind of fire-wall between the organization and the third-party administrator's provision of contraception to the organization's employees.
Dozens or scores of organizations balked, however, claiming that the self-certification process violates their religious freedom--on the theory that self-certification is really just an authorization for another party to provide contraception, something that their religious beliefs forbid. Lower courts are split on whether the accommodation violates the RFRA.
In the Little Sisters case, the district court concluded that the accommodation did not substantially burden the organization's religious liberties--in particular, that the self-certification requirement wasn't a burden, and that the organization's third-party administrator declined to provide coverage, anyway (see below). The Tenth Circuit denied an injunction pending appeal, but Justice Sotomayor last week issued a stay, prompting DOJ to respond with its Friday filing.
This case is an especially bad test case, though. That's because Little Sisters' third-party administrator is exempt from the contraception requirement (as a "church plan" under ERISA), and has said that it won't provide contraception. In short: Little Sisters certifies, its third-party administrator declines to provide contraception (as it may), and no contraception is provided. As the government explains:
In this case, however, as both of the lower courts again recognized, the third-party administrator of applicants' church plan says it will not provide contraceptive coverage. As a result, a signed certification will discharge all employer-applicants' responsibilities under the contraceptive-coverage provision, and their employees will not receive such coverage from the third-party administrator. Given these circumstances, applicants' concern that they are "authorizing others" to provide coverage lacks any foundation in the facts or the law.
Sunday, January 5, 2014
Senator Ron Johnson (R-Wis) writes in the Wall Street Journal that he'll file suit today to stop the congressional "exemption" from Obamacare. Senator Johnson writes that the OPM rule allowing members of Congress and staffers to use the exchange and also get an employer subsidy violates the Affordable Care Act and exceeds executive authority.
The dispute over the congressional "exemption" goes way back. But it turns out, there's no such exemption at all. The ACA contained a provision that required members of Congress and their staffers to get health insurance on an exchange. But that was unusual, because members and staffers already had employer-subsidized coverage under the Federal Employee Health Benefit Plan. (Exchanges are for the uninsured or employees of small corporations, not for employees of large corporations who already have coverage. Congress, which previously provided subsidized health insurance to members and staffers, nevertheless inserted a provision in the ACA that required members and staffers to use an exchange.) As a result, members and staffers would have lost their subsidy. So OPM stepped in and ruled this fall that members and staffers would qualify for an employer subsidy on the exchange if they purchased insurance in a Small Business Health Options Program, or SHOP.
As PolitiFact, Factcheck.org, and WaPo's Fact Checker all explain, this treatment is different and unusual, but it's hardly an exemption. Instead, the employer subsidy simply attempts to put members and staffers back in the position they would have been in if they were treated as employees with employer-subdized health insurance in any large corporation. In other words, the ACA treated members and staffers differently (worse) than similarly situated employees in large corporations; OPM merely tried to return them to their previous situation--so that they would be treated like everybody else.
Still, there's the question whether OPM had authority to authorize subsidies for member and staffer insurance purchases on an exchange, or whether that required a congressional fix to the ACA. Senator Johnson says OPM exceeded its authority--that this was a job (were it to be done at all) only for Congress.
Friday, December 27, 2013
Ilya Shapiro (Cato) wrote a list this week in Forbes of President Obama's Top Ten Constitutional Violations of 2013.
The top five are (not surprisingly) all related to Obamacare: (1) the delay of out-of-pocket caps; (2) the delay of the employer mandate; (3) the delay of the requirement to purchase compliant plans; (4) the exemption of Congress; and (5) the expansion of fines for employers who don't provide coverage in states where the exchanges are established by the federal government. We posted on President Obama's authority for delays here, here, and here.
Number 8, recess appointments, is before the Court next month in Noel Canning, the case testing whether President Obama's intra-session recess appointments of three members to the NLRB violated the Recess Appointments Clause. Number 10 is the mini-DREAM Act.
Federal District Judges Dismisses ACLU Complaint Regarding Government Collection of Telephone Metadata
In a Memorandum and Order today, federal judge William J. Pauley for the United States District Court of the Southern District of New York, granted the government's motion to dismiss in American Civil Liberties Union v. Clapper.
The judge rejected both the statutory and constitutional claims by the ACLU that the NSA's bulk telephony metadata collection program as revealed by Edward Snowden is unlawful.
The tone of the opinion is set by Judge Pauley's opening:
The September 11th terrorist attacks revealed, in the starkest terms, just how dangerous and interconnected the world is. While Americans depended on technology for the conveniences of modernity, al-Qaeda plotted in a seventh-century milieu to use that technology against us. It was a bold jujitsu. And it succeeded because conventional intelligence gathering could not detect diffuse ﬁlaments connecting al-Qaeda.
As to the constitutional claims, Judge Pauley specifically disagreed with Judge Leon's recent opinion in Klayman v. Obama regarding the expectation of privacy under the Fourth Amendment. For Judge Pauley, the "pen register" case of Smith v. Maryland, decided in 1979, has not been overruled and is still controlling:
Some ponder the ubiquity of cellular telephones and how subscribers’ relationships with their telephones have evolved since Smith. While people may “have an entirely different relationship with telephones than they did thirty-four years ago,” [citing Klayman], this Court observes that their relationship with their telecommunications providers has not changed and is just as frustrating. Telephones have far more versatility now than when Smith was decided, but this case only concerns their use as telephones. The fact that there are more calls placed does not undermine the Supreme Court’s ﬁnding that a person has no subjective expectation of privacy in telephony metadata. . . . .Because Smith controls, the NSA’s bulk telephony metadata collection program does not violate the Fourth Amendment.
For Judge Pauley, the ownership of the metadata is crucial - - - it belongs to Verizon - - - and when a person conveys information to a third party such as Verizon, a person forfeits any right of privacy. The Fourth Amendment is no more implicated in this case as it would be if law enforcement accessed a DNA or fingerprint database.
The absence of any Fourth Amendment claim means that there is not a First Amendment claim. Any burden on First Amendment rights from surveillance constitutional under the Fourth Amendment is incidental at best.
Judge Pauley's opinion stands in stark contrast to Judge Leon's opinion. In addition to the Fourth Amendment claim, Judge Pauley deflects the responsibility of the judicial branch to resolve the issue. Certainly, the judiciary should decide the law, but "the question of whether that [NSA surveillance] program should be conducted is for the other two coordinate branches of Government to decide." Moreover, Judge Pauley states that the "natural tension between protecting the nation and preserving civil liberty is squarely presented by the Government’s bulk telephony metadata collection program," a balancing rejected by Judge Leon. Given these substantial disagreements, the issue is certainly on its way to the Circuit Courts of Appeal, and possibly to the United States Supreme Court.
December 27, 2013 in Courts and Judging, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, Opinion Analysis, Supreme Court (US), Web/Tech | Permalink | Comments (0) | TrackBack (0)
Monday, December 23, 2013
The Director of National Intelligence this weekend released previously classified DNI and NSA declarations in support of the government's assertions of the state secrets privilege in litigation challenge the TSP program. We posted on the government's assertion of the state secrets privilege in Jewel v. NSA here.
The cases, Jewel v. NSA and In re National Security Agency Telecommunications Record Litigation, both in the Northern District of California, challenged the NSA's "dragnet" surveillance program. The declarations say that no such program exists, and that to defend the cases would reveal national security secrets.
Saturday, December 21, 2013
Robert J. Spitzer (SUNY Cortland) recently posted perhaps the most recent comparison of assertions of executive power in the Bush and Obama presidencies coming out of the political science world: Comparing the Constitutional Presidencies of George W. Bush and Barack Obama: War Powers, Signing Statements, Vetoes. As the title suggests, Spitzer compares the presidencies just in three dimensions. But his piece also briefly summarizes the political science literature comparing other dimensions. Here's Spitzer . . .
On war powers:
Nevertheless, in constitutional terms, Bush had the congressional authorization he needed [for the Iraq war]; Obama did not [for Libya]. Ironically, the grotesque scale of, and web of deception surrounding, the Iraqi war suggest that its precedential value for future presidents may be limited, whereas the presidential consequences of Obama's actions--another instance of an intervention without congressional approval, and the first instance of violation of the 60 day limit [in the War Powers Act]--are more likely to encourage future presidents tempted to engage in unilateral military actions.
On signing statements:
Presidents surely have interpretive latitude, especially when legislative language is vague or ambiguous, and therefore open to interpretation. This is nothing new. . . . What presidents may not do, Bush's unitary executive theory notwithstanding, is to rewrite legislation at the point at which a bill is presented for signature through signing statement in what some have called a de facto item veto. As James Pfiffner concluded, "Bush's systematic and expansive use of signing statements constitutes a direct threat to the separation of powers system in the United States." Obama has, to date, skirted, if not walked away from, this ambition, especially after the criticism of his 2009 signing statement of P.L 111-8 [directing that legislation that calls for congressional committee approval of spending decisions by federal agencies is to be treated as "advisory" and "not . . . dependent" on committee approval]. Contrary to the claim of some that Obama has assumed the mantle of a unitary president, his signing statement use to date has been comparable to, or less than that of any predecessor from Reagan on. And Bush II's signing statement use continues to keep him in a class by himself.
On protective return pocket vetoes:
Unlike the other powers discussed in this paper, the Bush and Obama protective returns were nearly identical in form, and both appeared to arise from the bowels of the "deep structure" of the executive bureaucracy rather than from top political aides seeking to expand executive authority. Here is one of the most important, if underappreciated, aspects of executive power accretion: secular bureaucratic power incrementalism. A day may come where a constitutional challenge or political flare-up may drag the protective return pocket veto into the intense lights of the legal or political stage, and where a full airing, and final disposition, of this arcane executive power grab may be vetted and resolved. Absent such a moment, however, the executive's "deep structure" will continue to advance the protective return for every subsequent chief executive.