Friday, April 7, 2017

Did Trump Have Authority to Launch Strikes in Syria?

Charlie Savage provides a good starting point for the legal analysis at the NYT; Amber Phillips looks a little more at the politics at WaPo; Conor Friedersdorf has a little of both at The Atlantic.

For a deeper dive into the constitutional law, check out these:

Jack Goldsmith, at Lawfare

John Bellinger, same

Ashley Deeks, same

Andrew Kent, same

Marty Lederman, at Just Security

Harold Koh, same

Marty Lederman (responding to Koh), same

Ryan Goodman, same

Julian Ku, Opinio Juris

Deborah Pearlstein, same

Edward Swaine, same

Julian Ku (again), same

Ilya Somin, Volokh Conspiracy

Here are links to the cited OLC memos:

Libya (2011)

Kosovo (2000)

Haiti (1994)

For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.

April 7, 2017 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Tuesday, February 21, 2017

Court Leans Toward Agent in Cross-Border Shooting Case

The Supreme Court heard oral arguments today in Hernandez v. Mesa, the case testing whether the family of a Mexican youth can sue a border patrol agent for Fourth and Fifth Amendment violations for shooting and killing the youth while the agent was on the U.S. side of the border, but the youth was in the concrete border culvert, 60 feet into Mexico.

The parties briefed three issues--whether a formalist or functionalist approach governs the Fourth Amendment's application outside the U.S., whether the officer enjoyed qualified immunity for the Fifth Amendment violation, and whether Bivens provided a remedy--but only two were really on display today: the extraterritorial application of the Fourth Amendment, and Bivens. And if the arguments are any prediction, it looks like a closely divided Court could rule for the agent. But the case could also be a good candidate for re-argument, when a ninth Justice joins the Court.

The plaintiffs' biggest problem was defining a workable test for the application of the Fourth Amendment. The formalist approach has the benefit of providing a bright-line for the application of the Fourth Amendment--the actual border. But the functional approach (or something like it) is more flexible in a situation like this, where the difference in a remedy could (absurdly, to some) be measured in the 60-foot distance between Hernandez and the U.S. border when he was shot.

Trying to walk a line between a rigid-border approach and a functional approach without any clear and determinate limits, the plaintiffs argued for a test that would apply the Fourth Amendment only in the culvert area straddling the border--an area that includes both U.S. and Mexican territory, but just barely. They justified this case-specific approach on the number of cross-border shootings that occurred of late: a particular problem demands a particular solution.

Justices Ginsburg, Breyer, Sotomayor, and Kagan seemed on board with this approach; Chief Justice Roberts and Justice Alito did not. If the Court splits 4-4 on the issue (as seems likely), the lower court ruling simply stays in place. That ruling said that neither the Fourth nor Fifth Amendment applied, and that Hernandez therefore had no federal constitutional remedy.

But whatever the Court says about the "extraterritorial" application of the Fourth Amendment, there's another issue--a threshold one: Bivens. Here, the Justices seemed to divide along conventional political lines. Justice Kennedy well outlined the conservatives' case when he asked the plaintiffs this:

Since 1988, this Court has not recognized a single Bivens action. We look for special considerations. You've indicated that there's a problem all along the border. Why doesn't that counsel us that this is one of the most sensitive areas of foreign affairs where the political branches should discuss with Mexico what the solution ought to be? It seems to me that this is an extraordinary case for us to say there's a Bivens action in light of what we've done since 1988 where we haven't created a single one.

The four conventional progressives pushed back, equally hard.

If the Court divides 4-4 on Bivens, as seems likely, it might not matter to the outcome, because a 4-4 split on extraterritoriality would hand the win to Mesa, the border agent. But a 4-4 split on Bivens would leave open a substantial question that the Court itself directed the parties to answer: does Bivens provide a remedy here? Because there's no lower-court ruling on Bivens (the en banc Fifth Circuit did not address the issue, and only reinstated the non-Bivens portions of the panel ruling), a 4-4 split would not even leave in a place a lower court ruling. Given that the Court itself added this question--suggesting that it would like an answer--a 4-4 split may mean that the Court holds this case over for re-argument with a ninth Justice.

February 21, 2017 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Oral Argument Analysis, Separation of Powers | Permalink | Comments (1)

Wednesday, February 8, 2017

Groups Sue Over Trumps 2-for-1 Regulation Order

Public Citizen, the NRDC, and the Communications Workers of America (AFL-CIO) sued the Trump administration today over President Trump's two-for-one administrative regulation executive order. That EO requires an agency to revoke two regulations for every new regulation it adopts.

The plaintiffs argue that the EO violates the separation of powers, the Take Care Clause, and the Administrative Procedure Act, among others. In short:

To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.

The plaintiffs say that the EO violates the separation of powers, because "[b]y requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies." They say it violates the Take Care Clause, because it "directs agencies to take action contrary to numerous laws passed by Congress." (The plaintiffs also bring claims under non-statutory review of ultra vires action, and the APA.)

The plaintiffs point to harms they'll incur under several statutes, if administrative agencies follow the two-for-one rule. Those include the Motor Vehicle Safety Act and Motor Carrier Safety Act, OSHA, the Mine Safety and Health Act, the Toxic Substance Control Act, and several other environmental protection acts.

The plaintiffs  point to harms (for standing purposes) throughout, including organizational harms (by requiring the plaintiffs to shift advocacy priorities) and member harms (because a lack of regulation, where a statute requires it, will harm individual members).

February 8, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, February 7, 2017

Obama-Era Regs on the Chopping Block

The White House and Congress are working at a very quick pace to strike late-promulgated Obama-era administrative regulations under the Congressional Review Act.

That Act allows Congress to pass, and the President to sign, a joint resolution of disapproval to revoke certain administrative regulations. The Congressional Research Service has a backgrounder here, with links to other CRS reports on the Congressional Review Act.

President Trump has issued statements telling Congress that he'll sign four joint resolutions now pending in Congress: (1) a Labor rule on drug testing of unemployment compensation applicants, (2) a BLM reg that establishes procedures to prepare, revise, or amend federal land-use plans, (3) an Ed. rule relating to accountability and state plans under the Elementary and Secondary Educational Act of 1965, an (4) Ed. rule related to teacher preparation.

Congress has considered several resolutions of disapproval since 1996, but overturned just one regulation, a 2000 OSHA rule related to workplace ergonomics standards. President Obama vetoed five resolutions of disapproval, and Congress failed to override the vetoes, so none passed.

With the Republican-controlled House and Senate likely to pass these disapproval resolutions--the Senate minority can't filibuster a CRA disapproval resolution--President Trump's anticipate four overrides will set a record.

February 7, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Saturday, February 4, 2017

Federal District Judge Enjoins "Muslim Ban" in Washington v. Trump

In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." 

Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed.  Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).

A_morning_wandering_around_the_Base_of_the_Mt._Baker_Ski_Area_(at_Mt_Shuksan)_-_(28474738420)
Mt. Baker, Washington, by Murray Foubister via

The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:

The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.  In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.

Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy.  Here is the entire last paragraph:

Fundamental to the work of this court is a vigilant recognition that it is but one of   three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this   country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.

 The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
 

February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)

Monday, January 30, 2017

Merkley to Filibuster Supreme Court Nominee

Politico reports that Senator Jeff Merkley (D-Or.) plans to filibuster any Trump Supreme Court nominee who is not Merrick Garland.

Said Merkley: "This is a stolen seat. This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this."

Is turnabout fair play for the Republicans' refusal to give Garland a hearing? Or is a Democratic filibuster (because Republicans refused to give Garland a hearing) different than a Republican refusal to give a hearing at all?

January 30, 2017 in Appointment and Removal Powers, Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

Monday, January 23, 2017

CREW Files Complaint Alleging Trump Violates the Emoluments Clause

Here's CREW's complaint against President Trump for violations of the Emoluments Clause. (We wrote on this yesterday, too.) CREW filed this morning in the Southern District of New York.

In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."

CREW's standing to sue will certainly be an issue. Here's the abridged version of what CREW has to say about its injury:

Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.

There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.

January 23, 2017 in Cases and Case Materials, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Sunday, January 22, 2017

OLC Says Trump Can Hire Son-In-Law Kushner

The Office of Legal Counsel memo that concludes that President Trump can hire son-in-law Jared Kushner to the White House staff is mostly statutory construction. (It concludes that the anti-nepotism statute does not apply to the President's hiring authority for the White House Office. At the same time, however, it also concludes that conflict-of-interest laws do apply.)

But it contains just a wee little bit of separation of powers, too. Check it out:

Finally, we believe this result--that the President may appoint relatives to his immediate staff of advisors in the White House Office--makes sense when considered in light of other legal principles. Congress has not blocked, and mostly likely could not block, the President from seeking advice from family members in their personal capacities. Cf. In re Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the President's need "[i]n making decisions on personnel and policy, and in formulating legislative proposals, . . . to seek confidential information from many sources, both inside the government and outside"); Pub. Citizen v. U.S. Dep't of Justice, 491 U.S. 440, 466 (1989) (construing the Federal Advisory Committee Act ("FACA") not to apply to the judicial recommendation panels of the American Bar Association in order to avoid "formidable constitutional difficulties"). Consequently, even if the anti-nepotism statute prevented the President from employing relatives in the White House as advisors, he would remain free to consult those relatives as private citizens.

(Emphasis added.)

Because conflict-of-interest laws apply to White House staff, according to the memo, this leaves the President with a choice: (1) seek the advice of a relative on an unofficial, ad hoc basis; or (2) "appoint his relative to the White House under title 3 and subject him to substantial restrictions against conflicts of interest."

January 22, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Did Obama Open the Door to Trump's EO on Obamacare?

Check out Seth Chandler's piece in Forbes, arguing that President Obama's unilateral executive actions on the Affordable Care Act set a precedent for President Trump's executive order scaling back the Act. "[A]ctions taken by the Obama administration to play fast and loose with administrative procedures and separation of powers have opened the door to the Trump executive branch to derail the ACA even without Congressional action." One example (of a few):

President Obama, after all, delayed enforcement of the employer mandate for a year for some large employers and delayed enforcement for two years for others. It was, the President asserted, too burdensome to comply with. President Trump might equally assert that, given the poor quality and high prices of ACA policies in many jurisdictions, it is too burdensome to comply with the individual mandate today.

January 22, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Wednesday, December 28, 2016

Tenth Circuit Says SEC ALJs Violate Appointments Clause

A divided panel of the Tenth Circuit ruled yesterday that SEC Administrative Law Judges violate the Appointments Clause.

The important, pathbreaking ruling creates a circuit split--the D.C. Circuit went the other way earlier this fall--and tees the issue up for Supreme Court review.

The majority was careful to remind that its ruling extended only to SEC ALJs, not all ALJs, so it's not clear exactly how far the logic goes. It probably doesn't matter much, though, at least for now, because the case will almost surely go to the Supreme Court.

The case arose when David Bandimere challenged an SEC ruling against him, in part because the ALJ that issued the initial decision was appointed in violation of the Appointments Clause. The SEC rejected the argument, but the Tenth Circuit agreed with Bandimere. (The SEC ruled that the ALJ was an "employee," not subject to the Appointments Clause.)

The court ruled that SEC ALJs look just like the Tax Court Special Trial Judges at issue in Freytag v. Commissioner. In Freytag, the Supreme Court used a functional analysis to conclude that the STJs were inferior officers, to be appointed by "the President alone, in the Court of Law, or in the Heads of Department." The court said that SEC ALJs, like the STJs, (1) were "established by Law," (2) had "duties, salary, and means of appointment . . . specified by statute," and (3) "exercise significant discretion" in "carrying out . . . important functions." As inferior officers, the court said that they had to be appointed by the President, the courts, or a head of a department, and, because they weren't (this point wasn't contested), they violate the Appointments Clause.

The court parted ways with the D.C. Circuit on the same question, because, it said, the D.C. Circuit put too much emphasis on the third part of the Freytag analysis--in particular, that the ALJs didn't exercise final decisionmaking power: "We disagree with the SEC's reading of Freytag and its argument that final decision-making power is dispositive to the question at hand."

Judge McKay dissented, focusing on the differences between SEC ALJs and the STJs in Freytag ("Most importantly, the special trial judges at issue in Freytag had the sovereign power to bind the Government and third parties," while "the Commission is not bound--in any way--by an ALJ's recommendations") and the potentially sweeping implications of the ruling ("all federal ALJs are at risk of being declared inferior officers," and therefore in violation of the Appointments Clause).

December 28, 2016 in Appointment and Removal Powers, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Tuesday, December 27, 2016

Yet More on Clinton E-Mails, in the Courts

The D.C. Circuit ruled today that a civil case involving the recovery of some unknown number of apparently not-yet-released Hillary Clinton e-mails is not moot. But the ruling carefully says nothing about the merits and other barriers to moving forward, so it's not yet clear that the ruling will result in any further investigation. It just means that the district court can move to the next steps.

The case arose when Judicial Watch sought a court order compelling Secretary of State Kerry to refer the effort to recover certain e-mails to the Attorney General. Judicial Watch relied on the Administrative Procedure Act and a portion of the Federal Records Act. That Act requires the relevant agency head (in mandatory, non-discretionary language), when he or she becomes aware of "any actual, impending, or threatened unlawful removal . . . or [] destruction of [agency] records," to "notify the Archivist . . . and with the assistance of the Archivist [to] initiate action through the Attorney General."

The district court tossed the case on mootness grounds, ruling that Secretary Kerry and the Archivist had made a "sustained effort" to recover the e-mails, yielding "a very substantial harvest," even if they failed to refer the effort to the AG.

The D.C. Circuit reversed. The court ruled that there may still be some un-recovered e-mails out there that the Secretary's and Archivist's efforts haven't revealed--and that therefore require referral to the AG, under the Records Act. In particular, the court said that Clinton used yet different e-mail accounts (other than her private server account) during part of her tenure as Secretary, and that e-mails on these accounts haven't been recovered.

If appellants had only sought emails from the server account, a mootness argument based on the recovery of hte server might well succeed. But the server and the emails it housed do not tell the full story; Secretary Clinton used two nongovernmental email accounts during her tenure at the State Department. . . .

The complaints here sought to ensure recovery [of] all of the former Secretary's work emails, including [on these other accounts]. Because the complaints sought recovery of emails from all of the former Secretary's accounts, the FBI's recover of a server that hosted only one account does not moot the suits.

The ruling sends the case back to the district court. But that doesn't necessarily mean that the court will, or can, order Secretary Kerry to refer the matter to the AG, or that the AG must do anything. As the court wrote,

[W]e express no opinion on whether the Attorney General's action or inaction in response to a referral would be reviewable. Nor do we address possible constitutional defenses that the Secretary or Archivist might raise to the statutory command's constraint on their discretion; they have raised no such argument.

December 27, 2016 in Cases and Case Materials, Jurisdiction of Federal Courts, Mootness, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

Monday, November 28, 2016

House Dems Call for Oversight of Trump's Conflicts

House Democrats today issued a(nother) letter to House Oversight and Government Reform Chair Jason Chafetz to conduct oversight hearings on conflicts between President-Elect Trump's business interests and his role as President. (They issued an earlier letter two weeks ago.)

Although you have stated publicly that you will hold Mr. Trump to the same standards as President Obama and Secretary Clinton, you have not responded to Ranking Member Cummings' letter, and you have not taken steps to conduct basic oversight of these unprecedented challenges.

The letter goes on to outline the many now-familiar conflicts between Trump's overseas and domestic business interests and his role and his family's roles through the transition and into his presidency.

The letter quotes Chafetz's own words, from before the election, way back in August:

If you're going to run and try to become the president of the United States, you're going to have to open up your kimono and show everything, your tax returns, your medical records. You are just going to have to do that. It's too important. . . . I promise you, I don't care who is in the White House. My job is not to be a cheerleader for the president. My job is to hold them accountable and to provide that oversight. That's what we do.

We'll see.

November 28, 2016 in Congressional Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, November 22, 2016

Court Halts President Obama's Overtime Rules, but Rebuffs Effort to Overturn Garcia

Judge Amos L. Mazzant (E.D. Tex.) granted a nationwide injunction today against the Obama Administration in enforcing its new overtime rules.

The ruling is a blow to President Obama's effort to update the overtime requirements through administrative rulemaking, and not legislation. The nationwide injunction seems extreme, but, as Judge Mazzant noted, this district-court-issuing-a-nationwide-injunction-thing seems to be a growing trend among district court judges striking President Obama's administrative initiatives.

At the same time, the new Trump Administration will almost surely undo these rules, anyway.

So the big loser is the lower-income (between $23,660 to $47,892 per year), salaried worker. That person, covered by the now-enjoined rule, won't qualify for overtime. (The court said that the FLSA requires a "duties" test. So if DOL can reissue regs around duties, some of these workers may still qualify. But don't count on this with the new administration.)

The government can appeal, but the conservative Fifth Circuit seems likely to affirm. And again: The Trump Administration will almost surely undo this, anyway.

Recall that DOL issued rules raising the "executive, administrative, and professional" exemption from the FLSA requirement that employers pay overtime to workers. In particular, DOL issued rules that said that employees who earn up to $47,892 per year (up from $23,660 per year) fell outside the exemption, and therefore qualified for mandatory overtime. The new rules also set an automatic update that adjusts the minimum salary level every three years.

States and business organizations sued, arguing that the rules violated the Administrative Procedures Act, because they weren't authorized by the FLSA. The state plaintiffs threw in a claim that the new rules and the entire FLSA violated the Tenth Amendment and federalism principles. Because this claim ran headlong into Garcia (which upheld the application of the FLSA to the states), the states, for good measure, went ahead and boldly argued that the court should overturn Garcia.

The court agreed with the APA claim, but disagreed about Garcia. As to the APA, the court said that the language of the FLSA--"executive, administrative, and professional" employees are exempt from the overtime mandate, and that DOL can promulgate regs to implement this exemption--required that the government consider employees' duties, and not just income, in determining whether an employee qualifies. Because the new regs only considered income, they violated the FLSA.

As to Garcia: the court flatly rejected the call to overturn it. This is hardly a surprise: It's still good law, after all. It seems the states were banking on a favorable ruling from the Fifth Circuit and a split Supreme Court. (That sounds familiar.)

Or they were banking on a differently comprised Court entirely--one friendly to their anti-Garcia claim. And who knows? Now they might get it.

November 22, 2016 in Cases and Case Materials, Congressional Authority, Executive Authority, Federalism, News, Opinion Analysis, Separation of Powers | Permalink | Comments (1)

House Republicans Seek to Stall Obamacare Appeal

The House of Representatives last week filed a motion at the D.C. Circuit to delay the government's appeal of a district court ruling that the Obama Administration spent money on reimbursements to insurers under the Affordable Care Act without congressional authorization of funds. We posted on that ruling here.

The move seeks to halt the appeal and give President-Elect Trump and House Republicans time to figure out what to do next.

Recall that the district court ruled that the Obama Administration could not spend money on reimbursements for insurers on the ACA exchanges without an authorization from Congress. Because Congress hadn't authorized the expenditure, the Administration couldn't spend the money. (The ACA provision providing for insurer reimbursement is important, even critical, to the success of the exchanges--it's designed to keep insurance rates affordable. Congress zero-funded the line-item, though.)

If the appeals court affirms the district court ruling, and if (as expected) Congress declines to fund the line-item for insurer reimbursement, insurers would have to dramatically increase rates or drop out of the exchange markets. On the other hand, the D.C. Circuit could rule that the House lacks standing, or it could rule for the Administration on the merits.

A halt to the appeal would allow the incoming administration some time to decide how to deal with the suit, insurer reimbursements, and Obamacare in general.

November 22, 2016 in Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, Standing | Permalink | Comments (0)

Monday, November 21, 2016

Court Punts on President's Authority to Fight ISIS

Judge Colleen Kollar-Kotelly today dismissed Smith v. Obama, a case by a service-member challenging President Obama's authority to fight ISIS. The ruling ends the case, with little chance of a successful appeal, and frustrates anyone waiting for a court ruling on whether President Obama can use the AUMF to fight ISIS.

The plaintiff, a U.S. Army Captain, sued President Obama, arguing that neither the 2001 AUMF nor the 2002 AUMF authorized the President to order a military campaign against ISIS (Operation Inherent Resolve), and that the President violated the War Powers Resolution and the Take Care Clause in ordering the campaign.

The plaintiff, a supporter of Operation Inherent Resolve (not an opponent of the campaign, as is more usually the case in these kinds of challenges) who was deployed as part of that campaign, argued that he had standing, because President Obama's orders forced him to choose between two untenable options--following illegal orders (on the one hand) and disobey orders (on the other). The court rejected this claim. The court said that the plaintiff could follow orders without fear of punishment, even if the President acted illegally in ordering the campaign. The court also rejected the plaintiff's oath claim (that he'd violate his oath to protect the constitution by complying with illegal orders), again because he'd face no punishment.

The court went on to rule that the case raised a nonjusticiable political question:

Resolving this dispute would require the Court to determine whether the legal authorizations for the use of military force relied on by President Obama--the 2001 and 2002 AUMFs--in fact authorize the use of force against ISIL. With regard to the 2001 AUMF, the Court would have to determine whether the President is correct that ISIL is among "those nations, organizations, or persons" that "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons," and that Operation Inherent Resolve represents "necessary and appropriate force" against that group. With regard to the 2002 AUMF, the Court would have to determine whether the President is correct that operations against ISIL are "necessary and appropriate in order to . . . defend the national security of the United States against the continuing threat posed by Iraq." For the reasons set out below, the Court finds that these are political questions under the first two Baker factors: the issues raised are primarily ones committed to the political branches of government, and the Court lacks judicially manageable standards, and is otherwise ill-equipped to resolve them.

The belt-and-suspenders ruling (dismissing for lack of standing and political question) seems unnecessary, given that the standing problems alone would seem to comfortably support dismissal. Moreover, the application of the political question doctrine seems at odds with the D.C. Circuit's post-Boumediene habeas cases. The court had something to say about this, in footnote 17:

Those courts were not asked to declare that an ongoing military operation, about which there appears to be no dispute between Congress and the President, was "illegal." They were asked to determine whether an individual should be accorded habeas corpus relief because his detainment had become illegal. This is a far more traditional and appropriate judicial role, which does not raise the same separation of powers issues present in this case.

November 21, 2016 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Friday, October 21, 2016

No Political Question Bar for Abu Ghraib Torture Victims

The Fourth Circuit ruled today that victims of torture at the hands of a private military contractor are not barred by the political question doctrine from pressing their case in federal court.

The ruling is a significant victory for the plaintiff-victims and for access to justice in general. It means that some portion of this case (and maybe all of it) can move forward on the merits.

The case arose when former prisoners at Abu Ghraib sued a private military contractor, CACI, for torture and mistreatment under the Alien Tort Statute. After some up-and-down on different issues, the district court ruled that the case raised a non-justiciable political question and dismissed it. In particular, the district court said (1) that CACI was under the control of the military, (2) that the case raised questions of "sensitive judgments made by the military," and (3) that the court lacked judicially manageable standards for resolving the dispute.

The Fourth Circuit reversed and remanded. As to the district court's first two grounds, the Fourth Circuit said that they don't apply when a plaintiff alleges illegal behavior under international law or criminal law. "Accordingly, when a military contractor acts contrary to settled international law or applicable criminal law, the separation of powers rationale underlying the political question doctrine does not shield the contractor's actions from judicial review."

More particularly, as to the first ground (under the control of the military), the Fourth Circuit said that "when a contractor has engaged in unlawful conduct, irrespective of the nature of control exercised by the military, the contractor cannot claim protection under the political question doctrine." The court said that the district court improperly analyzed the under-the-control-of-the-military question and remanded for further consideration of the question of illegal conduct. (The court was quite clear, however, that there was some illegal behavior. The question on remand is just how much.)

As to the second ground (sensitive judgments of the military), the Fourth Circuit again looked to the legality of the conduct: "to the extent that the plaintiffs' claims rest on allegations of unlawful conduct in violation of settled international law or criminal law then applicable to the CACI employees, those claims fall outside the protection of the political question doctrine." The court said that the district court improperly analyzed the sensitive-judgments-of-the-military question and remanded this, too. (Again, the court was quite clear that there was some illegal behavior.)

In short:

Any conduct of the CACI employees that occurred under the actual control of the military or involved sensitive military judgments, and was not unlawful when committed, constituted a protected exercise of discretion under the political question doctrine. Conversely, any acts of the CACI employees that were unlawful when committed, irrespective whether they occurred under actual control of the military, are subject to judicial review. Thus, the plaintiffs' claims are justiciable to the extent that the challenged conduct violated settled international law or the criminal law to which the CACI employees were subject at the time the conduct occurred.

As to the third ground (that the court lacked judicially discoverable and manageable standards for adjudicating the case), the Fourth Circuit said that "torture" and "war crimes" are well defined in the U.S.C. The court said that it may be a hard question, but it's not one that lacks standards. No remand on this question.

In all, under the Fourth Circuit's ruling, some portion of this case (and maybe all of it) can move forward. It all depends on how much CACI behavior was clearly illegal.

October 21, 2016 in Cases and Case Materials, Courts and Judging, Jurisdiction of Federal Courts, News, Political Question Doctrine, Separation of Powers | Permalink | Comments (0)

Friday, October 14, 2016

Gerhardt and Painter on Senate Obstruction of Judicial Nominees

Michael Gerhardt (UNC) and Richard Painter (U. Minn.) recently released The New Normal: Unprecedented Judicial Obstruction and a Proposal for Change, an ACS Issue Brief that criticizes Senate obstruction of judicial nominees and proposes a solution.

Gerhardt and Painter argue that the majority and minority leaders in the Senate should enter into a pact "to keep their respective members completely committed to the objectives of allowing every judicial nomination the opportunity to receive a hearing and making public the reasons for any opposition." "An agreement between the majority and minority is the same mechanism that was used in 2013 to fix the problem with anonymous holds over judicial nominations, and it is the only kind of mechanism that can guarantee that our federal courts, including the Supreme Court, will be fully staffed and capable of exercising their constitutional functions as the third branch of government."

Gerhardt and Painter's latest solution complements their earlier ones, from this 2011 ACS Issue Brief. There the authors prescribed this four-part plan:

1.    Nominees should get a Judiciary Committee hearing within 90 days of nomination;

2.    The Senate should bar the use of anonymous holds;

3.    Every nominee should come to the Senate with a presumption that the nominee will get a prompt Judiciary Committee hearing, with the burden falling on any senators who oppose the nomination "to make their case publicly"; and

4.    When a nominee is reported out of committee, there's a presumption "that a majority 'yes' votes are needed to confirm the nominee," with an up-or-down vote within 120 days of the nomination.

October 14, 2016 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Tuesday, October 11, 2016

D.C. Circuit Hands Victory to Unitary Executive Theory, Defeat to CFPB

In a sweeping endorsement of the unitary executive theory, the D.C. Circuit ruled today in PHH Corp. v. CFPB that the Consumer Financial Protection Bureau is unconstitutional. But at the same time, the court limited the remedy to reading out the "for-cause" termination provision for the director and turning the Bureau into an ordinary executive agency.

The ruling allows the Bureau to continue to operate, but, unless the ruling is stayed pending the inevitable appeal, removes the for-cause protection enjoyed by the director. Because that for-cause protection is what makes the CFPB "independent," the ruling turns the Bureau into a regular executive agency, with a single head that enjoys no heightened protection from removal.

In an opinion by Judge Kavanaugh, the court ruled that the single head of the Bureau, terminable only for cause, put the Bureau outside the reach of the President, in violation of Article II. The court said that this feature of the Bureau--single head, terminable only for cause--meant that there was no political accountability for the Bureau, and no check on the director's actions. (The court contrasted this single-head structure with a board structure in an independent agency, where, according to the court, the members could check each other.) The court also said that the single-head structure cuts against the historical grain--that we've never done it that way. Here's a summary:

The CFPB's concentration of enormous executive power in a single, unaccountable, unchecked Director not only departs from settled historical practice, but also poses a far greater risk of arbitrary decisionmaking and abuse of power, and a far greater threat to individual liberty, than does a multi-member independent agency. The overarching constitutional concern with independent agencies is that the agencies are unchecked by the President, the official who is accountable to the people and who is responsible under Article II for the exercise of executive power. Recognizing the broad and unaccountable power wielded by independent agencies, Congress and Presidents of both political parties have therefore long endeavored to keep independent agencies in check through other statutory means. In particular, to check independent agencies, Congress has traditionally required multi-member bodies at the helm of every independent agency. In lieu of Presidential control, the multi-member structure of independent agencies acts as a critical substitute check on the excesses of any individual independent agency head--a check that helps to prevent arbitrary decisionmaking and thereby to protect individual liberty.

Emphasizing a unitary executive, the court wrote at length, and disapprovingly, about how the director is entirely unaccountable. But this ignores the fact that the for-cause termination provision does not mean "never able to fire." It also ignores other ways that a President can influence the Bureau, outside of just firing the director at will. And it also ignores other checks on the office, like statutory authorities and restrictions, congressional oversight, and (ironically) judicial review of CFPB actions (although these are obviously not presidential checks on the Bureau).

After ruling the CFPB unconstitutional--but saving it by striking only the for-cause termination provision for the director--the court went on to hold that the CFPB misapplied the Real Estate Settlement Procedures Act.

Judge Randolph joined the majority opinion and added that the ALJ who presided over the hearing (after the CFPB filed its charges) was appointed in violation of the Appointments Clause.

Judge Lecraft Henderson concurred in the court's statutory ruling, but argued that the court did not need to touch the constitutional question (because it could grant PHH relief under the statute alone).

This ruling is hardly the end of this case: it'll undoubtedly go to the Supreme Court.

October 11, 2016 in Appointment and Removal Powers, Cases and Case Materials, Executive Authority, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Friday, September 30, 2016

Tax Court is, Indeed, a "Court" (Under FOIA)

Judge Rudolph Contreras (D.D.C.) ruled in Byers v. United States Tax Court that the Tax Court is a "court," not an "agency," under FOIA. The ruling means that the Tax Court isn't subject to the plaintiff's FOIA request.

The case arose when Ronald Byers filed a FOIA request against the Tax Court. Byers argued that the Tax Court should be exempt from FOIA (as Article III courts are), because it's located in the Executive Branch.

Judge Contreras disagreed. He wrote that the touchstone for FOIA coverage of the Tax Court isn't where the Tax Court is located, but rather its nature. "[A] number of factors, including congressional intent, Supreme Court interpretation, and the function of the Tax Court, all suggest that the Tax Court is best understood as a court, not an agency, for the purposes of FOIA." And because FOIA exempts "courts of the United States," the Tax Court is exempt.

September 30, 2016 in Cases and Case Materials, Courts and Judging, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0)

Thursday, September 15, 2016

Radiolab on the AUMF

Check out Radiolab's segment on the Authorization for Use of Military Force--an engaging and accessible discussion of the "60 words" (plus a couple read into it) that the government has used to justify operations against alleged terrorists, and the need to update it.

September 15, 2016 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)