Saturday, July 19, 2014
The D.C. Circuit ruled on Friday that survivors of rape and sexual assault in the military did not have constitutional damage claims against military officers who failed to address the prevalence of sexual misconduct and retaliation in the Navy and Marine Corps, even in the face of congressional mandates to take action. (The plaintiffs did not sue their assailants in this case; instead, they sued higher-ups for perpetuating and grossly mismanaging the problem.) The ruling means that this avenue of relief--the constitutional tort--is unavailable, and that survivors will have to look elsewhere for a remedy.
The three-judge panel declined to apply a Bivens remedy to the survivors' claims that officers violated the First, Fifth, and Seventh Amendments. (A Bivens remedy would have allowed the survivors to sue the officers for monetary damages, even though there's no statutory authorization for such a suit.) The court said that "special factors" counseled against a Bivens remedy. (The court did not say whether other avenues of relief were available, the other part of the Bivens inquiry.) In particular, the court wrote that "the military context" and "Congress's extensive legislation on this specific issue" were "special factors that counsel decisively against authorizing a Bivens remedy."
The court rejected the plaintiffs' argument that rape and sexual assault were not "incident to service," and that therefore the military context shouldn't foreclose a Bivens remedy. The court said that the plaintiffs did not sue their assailants for rape and sexual assault; instead, they sued higher-ups for creating and failing to change a hostile environment--"a decade's worth of military management decisions," which, according to the court, is exactly the kinds of military decisions that fall outside Bivens's scope.
The court also rejected the plaintiffs' argument that officers ignored Congress in failing to establish an investigatory commission and failing to create a database. The court said that Congress's extensive regulation of the issue, without creating a statutory civil damages remedy, was telling, and that it would violate separation-of-powers principles for the courts to step in and create a remedy when Congress declined.
The ruling aligns with the Fourth Circuit's Cioca v. Rumsfeld and adds to the recent line of cases rejecting Bivens claims for military torture, including Doe v. Rumsfeld, Vance v. Rumsfeld, and Lebron v. Rumsfeld. In other words, it adds to the well established body of law that says that courts defer entirely to the military in defining the kinds of military actions that fall outside of Bivens--even when those actions quite clearly have nothing to do with running a good ship.
July 19, 2014 in Cases and Case Materials, Congressional Authority, Fundamental Rights, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Thursday, July 17, 2014
White House Counsel Neil Eggleston wrote this week to Congressman Darrell Issa, Chair of the House Oversight Committee, to explain why David Simas, Assistant to the President and Director of the White House Office of Political Strategy and Outreach, wouldn't appear before Issa's Committee this week. Issa issued a subpoena to Simas as part of the Committee's investigation of possible Hatch Act violations in Simas's office.
Eggleston's letter to Issa explains that Simas, as an immediate presidential adviser, is absolutely immune from congressional testimonial subpoenas. Eggleston cites a recently issued OLC memo (apparently not yet public) and the "longstanding position of Administrations of both political parties."
Indeed, the administration's position is exactly the same as the position of the Bush White House when Congress issued subpoenas to Harriet Miers and Karl Rove. (Congress was investigating the firings of U.S. attorneys.) That episode resulted in Committee on the Judiciary v. Miers, the D.C. Circuit ruling granting Miers and Chief of Staff Josh Bolton's motion for stay pending appeal of the lower court's ruling against them. (The Committee and House held Miers in contempt and sued to get her to testify; she asserted absolute immunity under executive privilege. The district court ruled that Miers was not absolutely immune and denied her motion for a stay pending appeal.) The appeals court did not reach the merits, however. Instead, Miers and Bolton effectively ran the clock on the case.
Issa is now reportedly considering holding Simas in contempt of Congress.
Although the claims of privilege are exactly the same, there is one big difference in the two cases: Issa opposed holding Miers in contempt.
The House Rules Committee had a hearing yesterday on the House Resolution authorizing a lawsuit against President Obama for alleged overreach in implementing the Affordable Care Act. (We posted on some of these alleged overreaches here.) Profs. Elizabeth Price Foley (FIU) and Jonathan Turley (GW) testified in support of the measure; Simon Lazarus (CAC) and Walter Dellinger testified against.
The big hurdle to a suit is standing: under current doctrine, the House lacks standing to sue (although Foley reiterated her theory of standing, and Turley argued that current standing doctrine is wrong). Without standing, the courts won't hear the case.
And they shouldn't. This is obviously a gimmick, not a serious constitutional challenge to the President's authority, as evidenced by the nonsense at yesterday's hearing. Dana Milback over at WaPo hits the nail on the head. (H/t to Darren Elliott.) We might add that it's just a little ironic that political conservatives are now touting the benefits of open courts, access to justice, and an activist judiciary.
Supporters of the suit argue, among other things, that the courts are the proper venue for this dispute, because the House has no other realistic way to control the President. (Changing the law or withholding appropriations won't work, they say, because a bill would also have to pass the Senate (and get signed by the President).) But that's no standard for standing. It also ignores the fact that Congress, even one party in Congress, has a whole panoply of ways to check and frustrate the President--which Republicans have used to great effect. Finally, it proves too much: If there really are no political ways to check the President, maybe that's because the President's actions enjoy wide political support (because they help people, not harm them, and thus raise standing problems for anyone seeking to challenge them).
The Resolution authorizes the Speaker to "initiate or intervene in one or more civil actions on behalf of the House of Representatives" to force the President to "act in a manner consistent with [his] duties under the Constitution and laws of the United States with respect to implementation (and failure to implement) any provision of [the Affordable Care Act]."
The authorization doesn't identify a particular presidential action that violates the Constitution. Turley identifies shifting funds between line-items in the budget to fund portions of the ACA and extending tax credits to health-insurance purchasers in states where the federal government runs the exchange, among others. Lazarus offers good arguments why these are valid executive actions in implementing the ACA, and not violations of separation of powers principles.
Thursday, June 26, 2014
Richard Trumka, head of the AFL-CIO, put out a statement today in reaction to the Court's ruling in Noel Canning, which struck President Obama's recess appointments to the NLRB. He said, correctly, that "[t]he impact of today's ruling is far less than it might have been, because there is now a full complement of Senate-confirmed members of the NLRB and a Senate-confrimed NLRB general counsel."
But there's another reason that the impact of today's decision is less than it might have been: the Senate's limitation on the use of the filibuster. That limitation, a Senate rules change from last fall, should also blunt today's ruling. That's because the President won't have to use recess appointments as much to dodge Senate minority obstruction on nominees, because the principle tool for that obstruction, the filibuster, is now limited to legislation and Supreme Court nominees, not executive nominees and lower federal judges.
Sean Higgins at the Washington Examiner makes a similar point, and argues that the ruling today is merely a set-back for unions at the NLRB (because they'll have to relitigate all the cases the NLRB decided with its recess-appointees). (This applies to other agencies, too, with recess appointees that are invalid under today's ruling.) The bigger fight, over the filibuster and actual appointees to the NLRB, has already been won by the President.
The Supreme Court today in NLRB v. Noel Canning gave a broad reading to the Recess Appointment Clause, but nevertheless struck President Obama's recess appointments to the NLRB, ruling that the Senate was in session. The ruling means that the NLRB lacked a quorum when it issued an order to Noel Canning, a Pepsi distributor, and that order is invalid. It's not clear yet how many other offices may be affected by the ruling. Our oral argument review (with a link to our preview) is here.
The ruling hands a defeat to President Obama in the short run (on the NLRB appointments), and, despite the broad reading of the clause, may hinder presidents in the future. That's becuase the Court said that the Senate is in session when it says it is, provided that it retains power to act, as it did here. That means that even when the Senate meets in pro forma sessions, as here, presidential appointments have to follow the usual course and get Senate confirmation (instead of dodging Senate confirmation through the recess appointment mechanism). As a result, the Senate can frustrate a president's ability to recess-appoint a nominee by going into pro forma sessions (again, with the ability to act), thus forcing a president to gain Senate confirmation (which, as we've seen, may be a difficult or impossible task).
The Court said that any session more than 3 days but shorter than 10 days is presumptively too short to constitute a recess of the Senate and thus to allow a recess appointment. And again: the Senate gets to say, presumptively, when it's in recess.
As to a recess over 3 days: the Adjournment Clause (Art. I, Sec. 5) allows the House to prevent a recess of the Senate. This gives even the House the power to block a recess--and recess appointments--for any period over 3 days. That means that the House could block a recess appointment by denying the Senate consent to recess.
Because the Senate was in session when President Obama made the NLRB appointments--because it said it was, and because it retained power to act, even if it was in pro forma sessions--the Court ruled them invalid.
At the same time, the Court handed the executive branch a victory on its broader reading of the Recess Appointments Clause. Thus the Court ruled that a "recess" includes both inter-session recesses and intra-session recesses. It also ruled that "vacancies that may happen during the recess of the Senate" include vacancies that first come into existence during a recess and vacancies that initially occurred before a recess but continued during the recess.
The judgment striking the NLRB appointees was unanimous. But Justice Scalia wrote a concurrence, joined by Chief Justice Roberts and Justices Thomas and Alito. Justice Scalia wrote that the majority went too far in reading a broader Recess Appointment Clause and relied too heavily on prior presidential practice:
To reach [its] result, the majority casts aside the plain, original meaning of the constitutional text in deference to late-arising historical practices that are ambiguous at best. The majority's insistence on deferring to the Executive's untenably broad interpretation of the power is in clear conflict with our precedent and forebodes a dimunition of this Court's role in controversies involving the separation of powers and the structure of government.
June 26, 2014 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (2) | TrackBack (0)
Monday, June 23, 2014
The Second Circuit today released a redacted version of the DOJ/OLC memo outlining the government's legal authority for the use of a drone attack to kill Anwar al-Aulaqi (sometimes spelled al-Awlaki). We've blogged extensively about this issue, including here, on the earlier released white paper outlining the government's authority to conduct the same attack.
The released version does not include the first 11 pages of the memo, presumably including the information that the government passed on to the OLC about al-Awlaki that formed the basis of the analysis. It's not clear whether that first 11 pages included other material or analysis. (The released version starts with "II.") There are other redactions throughout, especially in the portion analyzing the CIA's authority to conduct drone attacks.
The analysis in the memo differs slightly from the analysis in the earlier white paper, but, because of the redactions, it's not clear how much this matters. Thus, for example, the analysis released today makes a careful distinction between DoD authority and CIA authority to conduct a targeted drone attack. (The earlier white paper didn't make this clear distinction.) But it's not entirely clear why or how that distinction is significant, given that much of the CIA analysis is redacted. The analysis released today is also more fact specific. (The earlier white paper didn't so clearly limit itself to the facts of one case.) But the memo today redacts the facts, so we don't know them.
Other than those points, the analysis released today doesn't appear to be importantly different than the earlier white paper.
As we've noted, and as others have noted, the analysis leads to the surprising result that the government may be able to kill someone by drone attack more easily than it may detain them (with due process under Hamdi). Still, we don't know this for sure, because we don't know precisely what processes the government used in killing al-Awlaki: that detail is redacted from the memo.
The memo starts by outlining the statutory prohibition on foreign murder of a U.S. national--the federal provision that outlaws one U.S. national from killing another overseas. That provision, 18 U.S.C. 1119(b), says that "[a] person who, being a national of the United States, kills or attempts to kill a national of the United States while such national is outside the United States but within the jurisdiction of another country shall be punished as provided under sections 1111, 1112, and 1113." Section 1111 penalizes "murder," defined as "the unlawful killing of a human being with malice aforethought." The memo thus centers on whether al-Aulaqi's killing was "unlawful."
The memo says that the killing was not unlawful, because the prohibition includes the "recognized justification" of "public authority"--that is, the government's ability to kill under its public authority. As to the Defense Department's use of drones, the memo says that (1) the president had executive war powers authorized by Congress under the AUMF, (2) the AUMF authorized the president to use all necessary force against al-Qaida and associated forces (the OLC said that the AUMF included associated forces in an earlier memo), (3) al-Aulaqi was a member of al-Qaida or associated forces (AQAP) who posed a "continued and imminent threat" to the U.S., and (4) the DoD was acting pursuant to statutory authorization in targeting and killing al-Aulaqi. Moreover, the memo says that al-Aulaqi's killing comports with the laws of war. That's because DoD "would carry out its operation as part of the non-international armed conflict between the United States and al-Qaida, and thus that on those facts the operation would comply with international law so long as DoD would conduct it in accord with the applicable laws of war that govern targeting in such a conflict." The memo said that this operation in Yemen is part of that conflict, even though Yemen is not within the area of that conflict. Finally, the memo says that the method of killing complies with the laws of war--that is, that the targeted drone attack complies with the principle of distinction, it would minimize civilian casualties, and it would not violate prohibitions on "treachery" and "perfidy" (because those "do not categorically preclude the use of stealth or surprise, nor forbid military attacks on identified, individual soldiers or officers . . . and we are not aware of any other law-of-war grounds precluding the use of such tactics.").
The memo drew the same, or very similar, conclusions as to the CIA's use of a drone strike, but that section was largely redacted.
(The memo also said that another murder-abroad statute similarly did not prohibit the strike, and that the War Crimes Act did not prohibit it, because al-Aulaqi was still an active, fighting beligerent, and an allowable target under the laws of war.)
As to Fourth- and Fifth Amendment protections, the memo says that a high-level decision-maker ("the highest officers in the intelligence community") can make a determination to use lethal force and authorize a strike. (That's about all it said: this portion of the memo is also highly redacted.)
The memo makes clear that this is all context specific: the "facts" given to OLC that form the basis of its analysis are "sufficient" for the Office to form its conclusions, but the memo declines to say whether those facts are also necessary. (And we don't know them, in any event, because they're redacted.)
June 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Fifth Amendment, Fourth Amendment, Fundamental Rights, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
George Will weighed in again today on presidential overreach in Stopping a Lawless President, joining the increasing (and partisan) drumbeat against President Obama's efforts to work around congressional non-action and obstruction. In the piece, Will takes aim at President Obama's "perpetrat[ion] [of] more than 40 suspensions of the law." (Emphasis in original.) Among these: Deferred Action for Childhood Arrivals and the delayed implementation of the ACA's employer mandate. "Institutional derangement driven by unchecked presidential aggrandizement did not begin with Barack Obama, but his offenses against the separation of powers have been egregious in quantity and qualitatively different."
Will also explores a problem for those who'd like to stop presidential overreach in court: they don't have standing. That's because President Obama's actions have generally helped people, not harmed them, leaving only certain taxpayers and frustrated legislators to complain. As Will points out, David Rivkin and Elizabeth Price Foley floated a theory earlier this year in Politico that would allow legislators to sue. And the House recently passed Rep. Gowdy's cleverly named ENFORCE the Law Act of 2014 ("Executive Needs to Faithfully Observe and Respect Congressional Enactments"), authorizing House or Senate lawsuits against the president to require enforcement of the law. That bill will surely die in the Senate. But Rivkin and Foley's arguments for standing don't depend on legislation.
Still, Rivkin and Foley's arguments run up against language from Justice Scalia's dissent in U.S. v. Windsor (joined by Chief Justice Roberts and Justice Thomas), quoted in the dissenting views in the House report on the ENFORCE the Law Act:
Heretofore in our national history, the President's failure to "take Care that the Laws be faithfully executed," could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure. Justice Alito would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. This system would lay to rest Tocqueville's priase of our judicial system as one which "intimately binds the case made for the law with the case made for one man," one in which legislation is "no longer exposed to the daily aggression of the parties," and in which "the political question that the judge must resolve is linked to the interest of private litigants."
That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress's liking. . . .
If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit--from refusing to confirm Presidential appointees to the elimination of funding.
Friday, May 23, 2014
Thirty-five human rights groups are holding a "May 23 Global Day of Action to Close Guantanamo and End Indefinite Detention" today, one year after President Obama (again) made the case for closing the detention facility. Amnesty International's press release is here.
Recent defense authorization acts, called the National Defense Authorization Acts, or NDAAs, restricted the use of funds for transfering detainees from Guantanamo Bay. We posted on those restrictions, and the White House responses (signing statements) to them, here, here, and here, among other places. The 2014 NDAA loosened some restrictions on repatriation of detainees, but maintained the restriction on the use of funds to transfer detainees to facilities in the United States.
Thursday, May 15, 2014
Senate Majority Leader Harry Reid told Buzzfeed that he's ready to reconsider the Authorization for Use of Military Force. The AUMF, enacted just days after the 9/11 attacks, has been cited as legal authorization for a wide range of military actions against al Qaeda and individuals and organizations with links to al Qaeda. Reid's critique isn't new--Members of Congress on both sides have voiced criticism of the broad language in the AUMF in recent years, and have introduced legislation to repeal it--but it may lend some urgency and priority to the issue.
At the same time, Senators Kane, McCain, and King are rethinking Congress's role in war more generally. They introduced legislation earlier this year to repeal the War Powers Resolution and replace it with a requirement that the President consult with a new Joint Congressional Consultation Committee, comprised of House and Senate leadership and certain committee chairs and ranking members, "regarding significant matters of foreign policy and national security" and "[b]efore ordering the deployment of members of the Armed Forces into significant armed conflict." The bill would exempt from the prior consultation requirement certain emergency actions, "[l]imited acts of reprisal against terrorists or states that sponsor terrorism, humanitarian missions, "covert operations," and rescue missions for U.S. citizens overseas. The bill prescribes a streamlined process for Congress to approve or disapprove of military action in the absence of a declaration of war or authorization for use of military force. (The Senate has taken no action on the measure.)
According to the findings, the new procedures are necessary because the War Powers Resolution isn't working, and to create "a constructive means by which the judgment of both the President and Congress can be brought to bear when deciding whether the United States should engage in a significant armed conflict . . . ." According to the findings, the political branches need to figure out a way to work these issues out, because the courts aren't helping:
Past efforts to call upon the judicial branch to define the constitutional limits of the war powers of the executive and legislative branches of government have generally failed because courts, for the most part, have declined jurisdiction on the grounds that the issues involved are "political questions" or that the plaintiffs lack standing.
Wednesday, April 23, 2014
The Supreme Court agreed on Monday to hear Zivotofsky v. Kerry--or, rather, to rehear the case, this time on the merits. The case tests congressional authority versus presidential authority in foreign affairs, in particular, the power to designate the place of birth on a U.S. passport issued to a person born to U.S.-citizen-parents overseas, in Jerusalem. Our latest post on the case, with links to earlier posts, is here.
The case pits a federal law that requires U.S. passports issued to citizens born in Jerusalem to designate "Israel" as the country of birth against State Department regs that prohibit the designation of "Israel."
The Court ruled in the first round, in 2012, that the case did not present a non-justiciable political question. On remand, the D.C. Circuit struck the federal law as an intrusion on the President's power to recognize foreign nations.
In this round, the Court will determine whether the law indeed infringes on presidential authority--a significant separation-of-powers question in the area of foreign affairs.
April 23, 2014 in Cases and Case Materials, Congressional Authority, Executive Authority, Foreign Affairs, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)
Friday, April 11, 2014
The Third Circuit ruled yesterday in U.S. v. Cooper that the delegation to the Attorney General in the Sex Offender Registration and Notification Act, or SORNA, to determine whether SORNA applied to pre-Act offenders did not run afoul of the nondelegation doctrine.
The ruling aligns the Third Circuit with the eight other circuits that have addressed the question.
Cooper was convicted in Oklahoma state court on three counts of rape and was paroled in January 2006. Congress passed SORNA in July 2006. Cooper was charged with failing to register in 2012.
Cooper argued that SORNA's delegation to the AG to determine whether the Act applied to pre-Act offenders was an unconstitutional delegation. SORNA says that "[t]he [AG] shall have the authority to specify the appliability of the requirements of this chapter to sex offenders convicted before the enactment of this chapter or its implementation . . . ."
Cooper's argument picked up on a suggestion by Justice Scalia, dissenting a couple years ago in Reynolds v. U.S. That case held that SORNA did not require pre-Act offenders to register before the AG validly specified that its registration requirements applied to them. Justice Scalia wrote that the delegation "sail[ed] close to the wind with regard to the principle that legislative powers are nondelegable." We posted on the case and Justice Scalia's concern here.
But the Third Circuit rejected Cooper's claim. The court wrote that SORNA gave the AG sufficient guidance to pass the intelligible principle test:
In enacting SORNA, Congress laid out the general policy, the public agency to apply this policy, and the boundaries of the delegated authority. This is all that is required under the modern nondelegation jurisprudence.
The court also rejected Cooper's invitation to craft a new nondelegation test--a more rigorous "meaningfully constrains" standard--"[u]ntil the Supreme Court gives us clear guidance . . . ."
Saturday, April 5, 2014
Judge Rosemary M. Collyer (D.D.C.) yesterday dismissed a civil damages claim against government officials for their roles in authorizing the targeted killing of Anwar Al-Aulaqi, his son, and Samir Khan. Judge Collyer wrote in Al-Aulaqi v. Panetta that "special factors" counseled against the Bivens claim.
We've covered Al-Aulaqi's claims extensively (sometimes Al-Awlaki, sometimes Al-Awlaqi), both pre-killing and post-killing, brought by his father, Nasser. Here's our post on Judge Bates's ruling dismissing Nasser's case to stop the killing.
The ruling adds to a body of lower-court cases limiting civil damage remedies against government officials for constitutional violations for actions related to the military, intelligence, and terrorism. Indeed, these cases give government officials a free pass against civil damages claims for any action even loosely related to these areas, even with no showing by the government that the claims raise special factors counseling against a remedy (as this case illustrates--see below).
Nasser Al-Aulaqi brought this claim on behalf of his son Anwar and grandson Abdulrahman, along with Sarah Khan, who brought the claim on behalf of her son Samir. Anwar was designated for targeting; Abdulrahman and Samir were not (they were bystanders in Anwar's targeted killing and another targeted killing). All three were U.S. citizens.
Nasser and Sarah sued government officials in their personal capacity under Bivens for Fourth and Fifth Amendment violations (among others). The officials moved to dismiss, arguing that the complaint failed to state a claim, that special factors counseled against a Bivens remedy, and that they enjoyed qualified immunity.
Judge Collyer ruled that special factors counseled against a Bivens remedy. Citing Doe v. Rumsfeld, Lebron v. Rumsfeld, and Vance v. Rumsfeld, she wrote that military decisions get a pass, and that Bivens ought not be extended to them:
In this delicate area of warmaking, national security, and foreign relations, the judiciary has an exceedingly limited role. This Court is not equipped to qustion, and does not make a finding concerning, Defendants' actions in dealing with AQAP generally or Awar Al-Aulaqi in particular. Its role is much more modest: only to ensure that the circumstances of the exercise of war powers against a specifically-targeted U.S. citizen overseas do not call for the recognition of a new area of Bivens relief.
Here, Congress and the Executive have acted in concert, pursuant to their Constitutional authorities to provide for national defense and to regulate the military. The need to hesitate before implying a Bivens claim is particularly clear. Congress enacted the AUMF, authorizing the Executive to use necessary and appropriate military force against al-Qa'ida and affiliated forces. It is the Executive's position that AQAP is affiliated with al-Qa'ida.
. . .
Permitting Plaintiffs to pursue a Bivens remedy under the circumstances of this case would impermissibly draw the Court into "the heart of executive and military planning and deliberation," as the suit would require the Court to examine national security policy and the military chain of command as well as operational combat decisions regarding the designation of targets and how best to counter threats to the United States.
. . .
Plaintiff's Complaint also raises questions regarding foreign policy because Anwar Al-Aulaqi was a dual U.S.-Yemeni citizen who was killed in Yemen. Plaintiff's suit against top U.S. officials for their role in ordering a missile strike against a dual citizen in a foreign country necessarily implicates foreign policy.
Remarkably, the court so concluded without any help of from the government--even after the court ordered the government to help by providing material in camera and ex parte to support the special-factors defense.
The United States filed a Statement of Interest in the case, stating that it might later assert a state secrets defense. Judge Collyer ordered the government to lodge declarations, in camera and ex parte to explain why special factors counseled against a Bivens remedy in the case. The government refused, arguing that the court could resolve the defendants' motion to dismiss on the complaint alone.
Judge Collyer scolded the government for its refusal--and wrote that this made the court's job "unnecessarily difficult"--but still "cobble[d] together enough judicially-noticeable facts from various records" to conclude that special factors counseled against a Bivens remedy. She wrote that without these facts, the court "would have denied the motion to dismiss."
April 5, 2014 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fifth Amendment, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)
Friday, March 28, 2014
A three-judge panel heard oral arguments this week in one of several cases challenging federal subsidies to health-insurance purchasers on a federal exchange. We posted on those cases here. In short, the plain language of the ACA appears to authorize subsidies for health-insurance purchasers on state exchanges, but not on a federal exchange. This means that individuals who live in a state that declines to establish a state exchange--and instead relies upon a federal exchange--could not get a federal subsidy. So the IRS issued a rule providing subsidies to individuals who purchase on a federal exchange (as well as a state exchange).
That rule is what's at issue in these cases. The plaintiffs argue that the IRS rule (granting subsidies to purchasers on federal exchanges) is inconsistent with the ACA (which, they say, authorizes subsidies only to purchasers on state exchanges). Jason Millman over at the WaPo's Wonkblog explains the significance:
The subsidy question is central to the future survival of the law. Just 14 states and the District of Columbia are running their own exchanges in 2014, while the Department of Health and Human Services is operating 36 state exchanges.
About 85 percent of those signing up for insurance in federal-run exchanges have qualified for financial assistance to purchase coverage. Without those subsidies, the insurance would be less affordable, leaving those with the greatest health needs with more motivation to purchase coverage. That makes for a worse risk mix, driving up the cost of insurance to cover the sicker pool of people, creating what's known as an insurance "death spiral."
The D.C. Circuit is the first appellate court to hear arguments in these challenges. Some accounts said that the panel seemed split, or even leaning toward the plaintiffs, with Judge Raymond Randolph seeming to lean toward the plaintiffs, Judge Harry Edwards seeming to lean toward the government, and Judge Thomas Griffin seeming to be the panel's swing vote. The WSJ covered the arguments here; WaPo's Wonkblog coverd them here; and Bloomberg covered them here.
Monday, March 24, 2014
Conor Friedersdorf writes over at The Atlantic that media coverage of the dispute between Senator Dianne Feinstein and the CIA over the Agency's spying on Congress wrongly puts concerns about CIA oversight on par with concerns about Senate investigations in the separation-of-powers calculus.
Recall that Senator Feinstein recently criticized the CIA for spying on the Senate Intelligence Committee. The CIA responded that Committee staff improperly obtained CIA material in its investigation of CIA detention and interrogation policies. Both matters are now at the DOJ.
Friedersdorf argues (persuasively) that media coverage of the competing claims wrongly puts them on par. He says that the Senate Intelligence Committee is supposed to investigate the CIA (it is), and that even if Committee staff obtained CIA information, it was information that the CIA was supposed to turn over anyway. The real transgression is not Committee oversight; it's the CIA's spying on Congress.
What vexes me about how this dispute is being covered . . . is the false equivalence implicit in the juxtaposition: as if the CIA and the Senate committee stand accused of like transgressions. If the charges against the CIA are true, our nation's foreign spy agency, which is forbidden from conducting any surveillance in the U.S., snooped on our legislature. That's a transgression against our constitutional framework.
At the same time:
Are we prepared to accept that, during a comprehensive congressional inquiry into torture, the CIA was justified in withholding torture documents? Senate staffers committed no great sin in getting documents wrongly denied them.
Tuesday, March 11, 2014
Senator Dianne Feinstein, the head of the Senate Intelligence Committee, railed against CIA searches of the Committee computer network in a speech on the Senate floor today. Senator Feinstein said the searches violated separation of powers, the Senate's constitutional investigation and oversight powers, and the Fourth Amendment, among other things.
The CIA allegedly searched Committee computers to determine how Committee staff obtained certain documents related to CIA detention and interrogation policies. (CIA Director John Brennan denied this.) The CIA Inspector General referred the matter to the Justice Department.
In a related matter, the CIA General Counsel asked the Justice Department to investigate whether Committee staff improperly obtained CIA material. Senator Feinstein said that this move was designed to intimidate the Committee.
As a result, DOJ is apparently investigating two issues: whether the CIA improperly spied on the Committee, and whether Committee staff improperly obtained certain CIA material. The NYT has a good back-grounder here.
Tuesday, February 11, 2014
A divided panel of the D.C. Circuit ruled today in Aamer v. Obama that Guantanamo detainees may bring a habeas corpus claim in federal court challenging their forced-feeding by the government, but that that claim is not likely to succeed.
The ruling is notable, because it's the first time a federal appellate court ruled that Guantanamo detainees could bring a habeas claim to challenge their conditions of confinement (as opposed to the fact of their confinement).
The ruling is likely to bring a host of new habeas claims from detainees at Guantanamo--challenging not just the fact of their detention (the kind we've already seen) but also the conditions of their confinement. It may also bring a congressional response--to foreclose those claims.
The court also ruled that the detainees' challenge to their forced-feeding was not likely to succeed.
Some background: Congress enacted two provisions in the MCA designed to strip federal courts of jurisdiction over Guantanamo detainees' claims. The first, at 28 U.S.C. Sec. 2241(e)(1), purports to strip federal courts of jurisdiction over Guantanamo detainees' habeas claims challenging the fact of their detention:
No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The Supreme Court struck the provision in Boumediene v. Bush (2008), holding that Congress couldn't eliminate habeas jurisdiction over Guantanamo detainees without complying with the requirements of the Suspension Clause (which it had not).
The second provision, at 28 U.S.C. Sec. 2241(e)(2), purports to strip courts of jurisdiction over Guantanamo detainees' "other" claims challenging the conditions of their confinement:
Except as provided [in section 1005(e) of the DTA], no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, transfer, treatment, trial, or conditions of confinement of an alien who is or was determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.
The D.C. Circuit previously confirmed that this latter section continued in force after Boumediene (because Boumediene dealt only with the habeas-stripping Section 2241(e)(1)), and lower court judges have ruled that it bars Guantanamo detainees from bringing habeas claims challenging their conditions of confinement (because those habeas claims were "other" claims challenging the conditions of confinement).
The D.C. Circuit ruled that it does not bar detainees' habeas claims, and that detainees may bring statutory habeas claims challenging the conditions of their confinement.
In answering the question, the court said that the two different parts of Section 2241(e) meant that Congress attempted in the MCA to bar (1) habeas claims and (2) "other" claims (i.e., non-habeas claims). It said that Section 2241(e)(2), in barring "other" claims, had no impact on habeas claims. And it said that Boumediene struck Section 2241(e)(1).
So, if the detainees brought a habeas claim, it would have been covered by Section 2241(e)(1), and because that provision was struck, their habeas claim survives.
The core question, then, is whether habeas (any habeas, at Guantanamo or not) extends not only to the fact of confinement (everyone agrees it does) but also to the conditions of confinement (that's where the parties disagreed). The court said that the Supreme Court left this question open, and that there is a split among the circuits. Still, it said that in the D.C. Circuit habeas extends both to fact-of-confinement and to treatment claims:
The availability of habeas for both types of challenges simply reflects the extension of the basic principle that "[h]abeas is at its core a remedy for unlawful executive detention." Munaf v. Geren. The illegality of a petitioner's custody may flow from the fact of detention . . . the duration of detention . . . the place of detention . . . or the conditions of detention. In all such cases, the habeas petitioner's essential claim is that his custody in some way violates the law, and he may employ the writ to remedy such illegality.
Because the detainees' claim was a habeas claim that would have fallen under Section 2241(e)(1), and because Section 2241(e)(2) bars only with "other" (non-habeas) claims and therefore doesn't affect the detainees' habeas claim at all, and because the Supreme Court struck Section 2241(e)(1), the detainees' habeas claim can go forward.
The court noted that Congress has been entirely silent on this--and has not acted to strip courts of jurisdiction over this kind of claim.
Judge Williams dissented, arguing that the detainees' claim does not sound in habeas and therefore is barred under Section 2241(e)(2).
The court also ruled that the detainees failed to show a likelihood of success on the merits of their force-feeding claims. The court said that there were valid penological interests in force-feeding hunger-striking detainees that outweighed the detainees' liberty interest. The court also said that the Religious Freedom Restoration Act does not extend to Guantanamo detainees, who, as nonresident aliens, do not qualify as protected "person[s]" under the RFRA.
The court affirmed the lower court's denial of a preliminary injunction, sending the case back for more on the merits.
February 11, 2014 in Cases and Case Materials, Congressional Authority, Due Process (Substantive), Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
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.
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)