Monday, June 24, 2013
The Supreme Court today agreed to review the President's recess appointment authority. The Court granted cert. to the D.C. Circuit and agreed to hear an appeal in Noel Canning v. NLRB, the case testing the President's authority under the Recess Appointments Clause to appoint members to the NLRB during an intra-session recess in the Senate. Our post on the D.C. Circuit's ruling--holding that the President lacks authority--including links to prior posts, is here.
Recall that the D.C. Circuit ruled President Obama's appointments to the NLRB unconstitutional. The Third Circuit followed suit.
The Supreme Court's move today gives the high court an opportunity to weigh in.
Friday, June 21, 2013
The Newseum will host a special program NSA Surveillance Leaks: Facts and Fiction on Tuesday, June 25, 2013, at 4:00 p.m., at the Knight TV Studio in Washington, D.C. More information is here; the program will be streamed live online at newseum.org.
The program includes an introduction by ABA President Laurel Bellows and a panel of experts on national security law, free speech, and the press. Harvey Rishikof, chair of the ABA Standing Committee on Law and the National Security Advisory Committee, will moderate. James Duff, president and CEO of the Freedom Forum and CEO of the Newseum, will deliver welcoming remarks.
Thursday, June 20, 2013
The D.C. Circuit this week denied a habeas petition of a Yemeni detained at Guantanamo Bay. The ruling in Hussain v. Obama is unremarkable, given the lower courts' approach in these cases. But a concurrence in the case sheds light on a problem: the lower courts are in fact applying the wrong standard.
If that's right--and the concurrence makes a good case that it is--then the courts are denying habeas petitions that shouldn't be denied. The solution, according to concurring Judge Edwards: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Indeed.
The majority in the case applied the now-settled test for habeas petitions coming out of Guantanamo Bay: Whether the government has shown, by a preponderance of the evidence, that the detainee was "part of" al Qaeda, the Taliban, or associated forces at the time of capture. (The test purports to apply the government's detention authority under the AUMF, which permits the president to detain individuals who "planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such . . . persons.") The majority rejected Hussain's arguments to adjust and tighten the test and concluded that it was easily met here.
But concurring Senior District Judge Edwards argued that the court actually and wrongly applied a lower "substantial evidence" test, not the more rigorous preponderance-of-evidence test that the court said it applied. Judge Edwards argued that the evidence in this case--or lack thereof--only supported a conclusion that Hussain fell into the covered group by a substantial evidence standard, not by a preponderance of the evidence, even though the majority held that it met that higher standard. Moreover, Judge Edwards wrote that the court implicitly shifted the burden from the government to Hussain in showing that he continued to affiliate with enemy forces after leaving Afghanistan.
Despite these problems, Judge Edwards concurred in the result, because, he said, the law of the circuit compelled it.
Still, Judge Edwards concluded with a call for change: "The time has come for the President and Congress to give serious consideration to a different approach for the handling of the Guantanamo detainee cases." Conc. at 5.
Wednesday, June 19, 2013
Common Cause this week pursued its case against the Senate filibuster at the D.C. Circuit when it filed its appellate brief, arguing that Judge Emmett G. Sullivan (D.D.C.) was wrong to dismiss the case last December and pressing its argument that the filibuster is unconstitutional. Common Cause's press release is here; the brief is here. We posted on Judge Sullivan's decision here.
Recall that Judge Sullivan dismissed the case, Common Cause v. Biden, for lack of standing and for raising a political question. In its brief, Common Cause takes on Judge Sullivan's ruling and argues that the filibuster is unconstitutional.
As to standing, Common Cause argues that House-member-plaintiffs have standing to challenge Senate Rule XXII, the cloture rule that allows a filibuster if the majority can't muster 60 votes to close debate, because the Rule allowed a minority in the Senate to effectively nullify their votes in favor of the DISCLOSE and DREAM Acts. Common Cause relies on language from Raines v. Byrd (1997), which says that "legislators whose votes . . . would have been sufficient to . . . enact a specific legislative Act have standing to sue if that legislative action . . . does not go into effect on the ground that their votes have been completely nullified" by a procedural violation of the Constitution. (In Raines, the Court held that Senator Byrd lacked standing when he mounted a facial challenge to the Line-Item Veto Act but failed to show that his vote on any specific appropriation bill had been nullified by the Act.)
Common Cause also argues that it has standing in its own right, because the filibuster of the DISCLOSE Act frustrated its core mission of campaign reform. It argues that it has standing based on its members, because they cannot learn the identities of certain campaign contributors. And it argues that the "dreamer"-plaintiffs have standing, because the filibuster of the DREAM Act denied them the benefits of that Act.
As to political question, Common Cause says that rules of Congress are justiciable, that they must be constitutional, and that "[t]here is nothing in the record of the Federal Convention indicating that the Framers intended to delegate to either house the authority to depart from the principle of majority rule . . . ." Brief at 15-16.
Finally, on the merits, Common Cause says,
Rule XXII's supermajority vote requirement is inconsistent with the rules of parliamentary practice that preceeded the adoption of the Constitution, the intent of the Framers as reflected in The Federalist Papers, the text of the Quorum and the Presentment Clauses, the exclusive list of exceptions to the principle of majority rule in the Constitution which specify when a supermajority vote is required, the provision of Article I, Sec. 3, cl. 4 that gives the Vice President the power to cast the tie-breaking majority vote when the Senate is "equally divided," and the first rules adopted by the Senate and the House immediately after ratification.
Brief at 56.
June 19, 2013 in Campaign Finance, Cases and Case Materials, Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)
Monday, June 10, 2013
The Ninth Circuit today dismissed a case first challenging the Bush Administration's warrantless wiretap program (the Terrorist Surveillance Program, or TSP) and later requesting destruction of records retained from that program. The case, In re National Security Agency Telecommunications Records Litigation, was brought by the Center for Constitutional Rights. CCR's information page, including links to earlier filings and rulings, is here.
The Ninth Circuit dismissed the case in a very brief, unpublished decision that relied on the Supreme Court's ruling in Clapper v. Amnesty International. Recall that the Court in that case dismissed a challenge to the government's surveillance program under the FISA Amendments Act of 2008. The Court ruled that the plaintiffs lacked standing, because they could not demonstrate that they were injured by the Act.
So too, here, the Ninth Circuit said. The court ruled that CCR had the same "highly attenuated chain" of alleged injury with one difference: the Amnesty International plaintiffs challenged a program with judicial oversight (by way of the FISC), whereas the CCR case challenged a program with no judicial oversight. Still, the Ninth Circuit said that "CCR's asserted injury relies on a different uncertainty not present in Amnesty Int'l, namely, that the government retained 'records' from any past surveillance it conducted under the now-defunct TSP."
The ruling puts an end to CCR's efforts to destroy any records that the government retained under the TSP. Indeed, it puts an end to efforts to determine whether the government even retained any such records at all.
Thursday, June 6, 2013
The National Security Agency is collecting telephone metadata of U.S. customers of Verizon, first reported The Guardian. The NSA sweeping effort appears to have been in place for years, but The Guardian first published a top secret Foreign Intelligence Surveillance Court order just last night. The remarkably short order, issued pursuant to a provision in the PATRIOT Act, 50 U.S.C. Sec. 1861, directs the telecommunications company to turn over "telephony metadata" on communications between its subscribers in the United States and abroad and wholly within the United States. ("Metadata" includes identifying information like the originating and terminating phone numbers, and the time and duration of calls. It does not include the substantive content of the communication or the name, address, or financial information of a subscriber or customer.)
The order also prohibits any person from disclosing that the FBI or NSA sought or obtained any information under the order.
The White House defended the efforts, while reactions on Capitol Hill were mixed. There's a ton of reporting and commentary; here are some links:
- Charlie Savage and Edward Wyatt at the NYT have a nice piece here;
- politico.com has a piece on 5 things you need to know;
- The Guardian has a series of reports, links are here.
Tuesday, May 28, 2013
President Obama plans to simultaneously nominate three judges to the D.C. Circuit, reports the NYT and HuffPo. The nominations would fill the three remaining vacancies on the 11-member court. The reports come the week after the Senate voted 97-0 to approve the President's nomination of Deputy SG Sri Srinivasan--nearly a year after his nomination.
The move is part of a strategy by Senate Democrats to highlight obstruction of judicial nominees by Senate Republicans. Democrats hope that by putting up three nominations at once, Republicans will be less likely to foot-drag (because foot-dragging on three nominations, and not just one, would highlight Republicans' obstruction).
Senate Republicans have reacted, calling the this an effort to "stack the court" (Senator McConnell's words). According to the NYT, Senate Republicans are considering a proposal to eliminate the three empty seats on the court and move two of them to other circuits.
The measure, S. 699, sponsored by Senator Grassley, would eliminate the three seats from the D.C. Circuit, add one seat to the Second Circuit, and add one seat to the Eleventh Circuit. If it could ever get out of the Senate, it would surely meet a veto.
The NYT reports that some Democrats think that Republican overreaching on these nominations could bring enough public pressure to change Senate rules to prohibit filibusters on judicial nominations.
Thursday, May 23, 2013
President Obama spoke out today on his administration's use of drone attacks and argued (again) for closing the detention facility at Guantanamo Bay in a speech that looked to wind down the war on terror. Politico reports here.
President Obama's speech came the same day as the administration released a "fact sheet" on U.S. policy standards and procedures for drone strikes and other hostile actions against terrorist suspects outside the United States and areas of active hostilities. According to the document, there's a preference for capture (and other reasonable alternatives) over killing, but still the document sets out standards for the use of lethal force:
First, there must be a legal basis for using lethal force, whether it is against a senior operational leader of a terrorist organization or the forces that organization is using or intends to use to conduct terrorist attacks.
Second, the United States will use lethal force only against a target that poses a continuing, imminent threat to U.S. persons. It is simply not the case that all terrorists pose a continuing, imminent threat to U.S. persons; if a terrorist does not pose such a threat, the United States will not use lethal force.
Third, the following criteria must be met before lethal action may be taken:
1. Near certainty that the terrorist target is present;
2. Near certainty that non-combatants will not be injured or killed;
3. An assessment that capture is not feasible at the time of the operation;
4. An assessment that the relevant governmental authorities in the country where action is contemplated cannot or will not effectively address the threat to U.S. persons; and
5. An assessment that no other reasonable alternatives exist to effectively address the threat to the U.S. person.
Finally, whenever the United States uses force in foreign territories, international legal principles, including respect for sovereignty and the law of armed conflict, impose important constraints on the ability of the United States to act unilaterally--and on the way in which the United States can use force. The United States respects national sovereignty and international law.
The "fact sheet" makes some changes in emphasis and language, but seems to basically leave in place the substance of the three-part test outlined earlier this year in the White Paper. The "fact sheet" emphasizes rule-of-law principles and broad government decisionmaking and oversight over hostilities, but it does not specifically address or define "imminence" or the process by which the administration will designate a person a target. (Recall that the White Paper looked specifically at the question when lethal force could be used against a U.S. citizen who is a senior leader of al-Qa'ida or an associated force; the "fact sheet" sweeps in a broader class of potential targets. Recall, too, that the White Paper defined imminence rather broadly, and it counterbalanced a target's interest in life with the U.S. interest in forestalling attacks on other Americans, under Mathews v. Eldridge.) The upshot: only time will tell whether the Fact Sheet represents a real change in the way the administration actually executes drone attacks.
Monday, May 20, 2013
A divided three-judge panel of the Third Circuit last week invalidated President Obama's recess appointment of Craig Becker as a member of the National Labor Relations Board. The ruling, National Labor Relations Board v. New Vista Nursing and Rehabilitation, marks the second time a federal appeals court invalidated President Obama's "intrasession" recess appointments. The first came earlier this year from the D.C. Circuit, in the Noel Canning case. We posted on that case when it came down, and more recently when the government filed for cert. review at the Supreme Court.
The Third Circuit, like the D.C. Circuit before it, ruled that "the Recess of the Senate" in the Recess Appointments Clause refers only to the period between sessions of the Senate, or intersession breaks, and not breaks while the Senate is in session, or intrasession breaks. Because President Obama appointed Becker while the Senate was holding pro forma sessions every three or four days--during intrasession breaks--the court said that Becker's appointment was invalid. And because Becker's appointment was invalid, the NLRB lacked a quorum to issue a bargaining order to a New Jersey nursing facility that was at the center of the dispute.
Judge Greenaway, Jr., wrote a lengthy dissent, stating that "[t]he Majority's rationale undoes an appointments process that has successfully operated within our separation of powers regime for over 220 years."
As we said, the government has already filed its cert. petition in the Noel Canning case. Now with this ruling, the Court is all but certain to take the question up and issue a final ruling on "intrasession" recess appointments.
Friday, April 26, 2013
The Obama Administration filed its Petition for Writ of Certiorari yesterday in NLRB v. Noel Canning, the case testing whether President Obama's recess appointments of three NLRB members satisfied the Recess Appointments Clause.
Recall that the D.C. Circuit ruled that they didn't. (Here's our coverage of the lower court ruling, with links to resources.) That court held that the Recess Appointments Clause permits a recess appointment only during an inter-session recess of Congress (i.e., a recess that occurs between one enumerated session of Congress and the beginning of the next), not an intra-session recess (i.e., a recess that occurs during the course of a session), and that it permits a recess appointment only for vacancies that arise during an inter-session recess. The court said that because President Obama made the appointments during an intra-session recess of Congress, and because the vacancies did not arise during an inter-session recess of Congress, the appointments were invalid.
The government seeks review of both issues--whether the President can exercise the recess-appointment power during an intra-session recess, and whether the President can fill a vacancy that existed (even if not arose) during a recess.
It's a good bet the Court will take this. There's a circuit split, and the stakes are high. As the government explains:
[The decision below] would deem invalid hundreds of recess appointments made by Presidents since early in the Nation's history. It potentially calls into question every order issued by the National Labor Relations Board since January 4, 2012, and similar reasoning could threaten past and future decisions of other federal agencies.
Petition at 11-12.
Friday, April 12, 2013
Garrett Epps writes in the Atlantic that if originalism's aim was to keep judges from writing their personal views into the law, it has been "an abject failure." His evidence? Chief Judge David Sentelle's ruling in Noel Canning v. NLRB, the D.C. Circuit's January ruling striking President Obama's recess appointments to the NLRB.
Epps criticizes Judge Sentelle's ruling as putting a 1755 definition over the consistent executive practice based on a practical concern, getting the government's business done, and judicial precedent:
For at least a century, presidents--with congressional acquiescence--have interpreted [the Appointments Clause] as giving them the ability to make appointments any time when the Senate is not in session. But Chief Judge David Sentelle looked up the six-word entry for "the" in Samuel Johnson's Dictionary of the English Language, published in 1755, and found that its "original public meaning" was "noting a particular thing," meaning that there can be one and only one "recess" of the Senate.
Epps notes that the Noel Canning rule would have voided 232 appointments under President Reagan, 78 under President G.H.W. Bush, 139 under President Clinton, and 171 under G.W. Bush. Appointees include Alan Greenspan and Lawrence Eagleburger.
Epps points to a recent Congressional Research Service report, The Recess Appointment Power After Noel Canning v. NLRB: Constitutional Implications. The CRS issued a companion report, Practical Implications of Noel Canning on the NLRB and CFPB.
Tuesday, April 9, 2013
President Obama today sent three nominations for full terms at the NLRB to the Senate--a renomination of Board chair Mark Pearce, a Democrat, and nominations of two Republicans. The President nominated two Democrats to full terms in February.
The nominations come just months after the D.C. Circuit ruled in Canning v. NLRB that the President's recess appointments to the Board were invalid. According to TPM, the administration plans to appeal that decision, but in the meantime it "has prompted more than 100 businesses to claim the board lacks authority to take action against them becuase two of its members are not there legitimately."
Monday, April 1, 2013
The United States District Court for the Southern District of Indiana last week ruled in Buquer v. City of Indianapolis that two provisions of Indiana's immigration law, SEA 590, were preempted by federal law. The ruling on one of the provisions, Section 20, followed the Supreme Court's ruling last summer in Arizona v. United States. (H/t Indianalawblog.com)
The ruling permanently enjoins Sections 18 and 20 of SEA 590.
Section 20 says that an Indiana officer "may arrest a person when the officer has . . . a removal order issued for the person by an immigration court; a detainer or notice of action for the person issued by the United States Department of Homeland Security; or probable cause to believe that the person has been indicted for or convicted of one (1) or more aggravated felonies (as defined in 8 U.S.C. Sec. 1101(a)(43)). The court ruled that Section 20 was preempted for the same reason that a similar provision in SB 1070 was preempted in Arizona v. United States:
Similarly, in the case before us there is no indication that state or local law enforcement officers would be required to consult federal immigration officers before effecting an arrest . . . . [W]here the federal government has exercised it discretion to release an individual who has had a removal order issued, the subsequent arrest of that person by Indiana law enforcement officers would directly conflict with the federal decision, obviously and seriously interfering with the federal government's authority in the field of immigration enforcement.
Op. at 19-20. The court said that "it is even more apparent with [the section's] authorization of the arrest of individuals who have been issued a notice of action." That's because such notices are inherently non-criminal. The court also ruled that Section 20 violates the Fourth Amendment, because it allows a warrantless arrest for a non-criminal action.
Section 18 outlaws the use of a consular identification document, or CID--an identification issued by the government of a foreign state for the purpose of providing consular services in the United States to a national of the foreign state. The court said that Section 18 "directly interferes wtih the rights bestowed on foreign nations by treaty by virtually nullifying the issuance of one of the tools used by foreign nations to exercise those rights." Op. at 29. "It is also clear that such a sweeping prohibition has the potential to directly interfere with executive discretion in the field of foreign affairs." Id.
The same court earlier rejected three state senators' effort to intervene in the case. The senators argued that because they voted for SEA 590, they had a sufficient interest in the case. But the court held that they did not satisfy standing requirements under Coleman v. Miller, because the law actually passed. "We find that the three legislators here have not alleged a vote nullifcation injury sufficient to bestow standing in this case." Op. at 7.
Monday, March 11, 2013
The constitutional issues in the challenge to NYC Health Code §81.53 - - - the New York City Department of Health regulation prohibiting sugary drinks in restaurants, movie theaters and arenas to exceed 16 ounces - - - largely involve the power of a city agency to promulgate such a rule. Today, a state trial judge, Milton Tingling, issued an decision in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene enjoining §81.53 for violating the state separation of powers doctrine.
After a lengthy discussion of New York City Charters - - - beginning with the first charter in 1686 - - - Judge Tingling wrote:
To accept the respondents' interpretation of the authoriy granted to the Board [of Health] by the New York City Charter would leave its authority to define, create, mandate and enforce limited only by its own imagination. . . . The Portion Cap Rule, if upheld, would create an administrative Levianthan and violate the separation of powers doctrine. The Rule would not only violate the separation of powers doctrine, it would eviscerate it. Such an evisceration has the potential to be more troubling that sugar sweetened beverages.
The judge's conclusion that the regulation was therefor "arbitrary and capricious" followed from the lack of agency power.
The ruling is sure to be appealed from the supreme court - - - which in New York is the lowest and trial court - - - to an appellate court.
Thursday, February 21, 2013
While many continue talking about a drone court in the judicial branch, Neal Katyal wrote in the NYT in favor of a drone court in the executive branch. Katyal argues that an executive tribunal comprised of national security experts, with congressional oversight, is a better tailored way to ensure accountability in the administration's use of drone strikes for targeted killings. The proposal splits the difference--or takes the best of both approaches--between the administration's current policy (which, it says, includes an internal executive branch review by experts, but with no independent oversight) and a full-fledged drone court in the judicial branch.
According to supporters, the drone court would provide a check to the administration's use of drones for targeted killing of Americans overseas, in the spirit of the FISA court. But ideas so far locate the court in the judiciary. Katyal sees a problem with that:
There are many reasons a drone court composed of generalist federal judges will not work. They lack national security expertise, they are not accustomed to ruling on lightning-fast timetables, they are used to being in absolute control, their primary work is on domestic matters and they usually rule on matters after the fact, not beforehand.
But putting oversight authority in the executive branch, staffed by experts, would solve that problem. And Katyal says that an executive branch "court" could still be subject to a check--by Congress:
The adjudicator would be a panel of the president's most senior national security advisers, who would issue decisions in writing if at all possible. Those decisions would later be given to the Congressional intelligence committees for review. Crucially, the president would be able to overrule this court, and take whatever action he thought appropriate, but would have to explain himself afterward to Congress.
As to explaining to Congress--and shifting gears just slightly--it's now widely reported that the White House is refusing to disclose DOJ memos justifying its targeted killing program. Instead, to gain bi-partisan support for John Brennan to lead the CIA, the administration is negotiating with Republicans to provide more information on the attacks in Benghazi in order to gain their support for Brennan.
Saturday, February 9, 2013
The idea to create a judicial check on the administration's use of targeted killings seems to be gaining some momentum, according to several sources, including WaPo and NYT. According to the reports, the idea is to create a secret court, like the FISA court, to provide a measure of process before the government kills a person by drone attack. There is some concern that a court could act quickly enough, however. Senate Intelligence Committee Chairman Senator Diane Feinstein said she and others may explore the idea of a special court.
Thursday, February 7, 2013
The Justice Department today released a series of legal memos outlining the case for the administration's use of drone attacks to the Senate Intelligence Committee, according to WaPo. But the memos are (inexplicably) not for public consumption.
The release came just days after the leak of a DOJ white paper outlining the legal case for drone attacks on Americans overseas, and just hours before John Brennan's confirmation hearing before the Committee to be CIA director. Brennan defended the attacks in his testimony.
Sunday, January 27, 2013
The D.C. Circuit on Friday vacated a military commission conviction of Ali Hamza Ahmad Suliman al Bahlul for material support, conspiracy, and solicitation, according to Lawfare and others. (Thanks to Lawfare for the links.) The ruling came after the government filed a supplemental brief a couple weeks ago arguing that the D.C. Circuit's ruling in Hamdan ("Hamdan II") compelled the court to vacate the ruling, but also disagreeing with the court's reasoning in Hamdan II. (The government made the latter point in order to preserve the argument for appeal.)
Recall that the D.C. Circuit vacated Hamdan's military commission conviction for "material support for terrorism" in October 2012. The court ruled that the Military Commissions Act of 2006, which criminalized material support, did not apply to acts before 2006, and that the government's other authority, 10 U.S.C. Sec. 821, which authorizes the government to try persons by military commission for violations of the "law of war" didn't apply, because material support wasn't a violation of international law of war.
The government argued that Hamdan II compelled the court to vacate al Bahlul's conviction, too. But it also went on to argue that the D.C. Circuit was wrong in Hamdan II, preserving that argument for appeal.
The D.C. Circuit agreed and, referencing the government's supplemental brief, on Friday issued a one-page per curiam ruling vacating al Bahlul's conviction.
Thursday, January 24, 2013
President Obama will re-nominate former Ohio AG Richard Cordray to head the Consumer Financial Protection Bureau, according to WaPo. Cordray is currently serving in that role as a recess appointee.
Recall that President Obama recess-appointed Cordray just over a year ago after Republicans made clear that they wouldn't confirm him. Republicans objected to both the CFPB and to Cordray. We posted on substantive objections here; we posted on procedural and constitutional objections here.
Cordray's nomination and another nomination expected today, former federal prosecutor Mary Jo White to head the SEC, are seen as part of the administration's drive to more tightly regulate financial markets. They promise to (again) create a stir in Congress.
Wednesday, January 23, 2013
Representative Steve Stockman (R-TX) and Senator Rand Paul (R-KY) today introduced companion bills that would overturn President Obama's series of recent orders on gun control. Politico reports here; The Hill here; and Stockman's press release is here. (Rep. Stockman, you may recall, earlier called for President Obama's impeachment over the orders.)
According to Stockman's press release, his objection is more about separation of powers than infringement on the Second Amendment, though he mentions both. As to powers, he argues that "the Constitution flatly prohibits the President from making up his own laws." Stockman's legislation, the Restore The Constitution Act, would
declare any past, present or future executive action that infringes on the powers and duties of Congress in Article I, Section 8 of the Constitution, or the Second Amendment to the Constitution or that would require the expenditure of federal funds not specifically appropriated for the purpose of executive action, is advisory only and has no force or effect unless enacted by law.