Tuesday, November 19, 2013

Government Releases Trove of NSA Documents

The Obama administration late Monday released a trove of documents related to NSA surveillance, including key FISA court rulings and other materials going back to the Bush administration.  The NYT reports here.  Lawfare is covering the release and analyzing particular documents here.

The materials include documents on government e-mail and domestic phone surveillance, including the Bush administration's 2006 application for initial approval by the FISA court to collect bulk logs of domestic phone calls and a FISA court ruling approving a program to track e-mails during the Bush administration.

The Office of the Director of National Intelligence declassified and released the documents in response to FOIA lawsuits by the ACLU and EPIC.

 

November 19, 2013 in Congressional Authority, Executive Authority, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, November 17, 2013

How the President Should Deal With the Debt Limit

Neil H. Buchanan (GW) argues at the Jurist.org that the President should just pay the nation's bills if Congress fails to increase the debt ceiling.

Buchanan summarizes an argument that he and Michael Dorf made over three articles last year in the Columbia Law Review--one, two, and three--that the President should do the least constitutional damage if ever faced with a trilemma involving taxing, spending, and a debt ceiling that don't add up. 

Buchanan and Dorf argue that Congress would create this trilemma if it failed to increase the debt limit: Congress would have authorized a particular level of taxation; Congress would have authorized a higher level of spending; and Congress would have capped the debt limit at a level lower than authorized spending.  All three are congressional acts that the President must enforce, but if the President enforces any two, he necessarily violates the third.

So: what to do?

Buchanan and Dorf argue that the constitution requires the President to take the action (1) that exercises as little legislative power as possible and (2) in a way that allows Congress to later enact legislation that can undo his actions, if it so desires.

Those two criteria mean that the President should, even must, violate the debt limit.  That's because violating the debt limit (but complying with the taxing and spending measures passed by Congress) is the choice that's least legislative in nature, and the one that Congress can later undo (by enacting taxing and spending measures that add up). 

Buchanan explains why this solution is novel--but also why it's right:

Bizarrely, the shared assumption among Republicans and Democrats alike has been that the president must simply default on the government's spending obligations, if he is ever faced with a trilemma. . . .

The reason that is so bizarre is that it simply presumes that duly-enacted spending laws can be ignored by the president.  They cannot.  We are not taking about choosing to increase or decrease future levels of spending, after all.  We are, instead, contemplating having the president refuse to honor legal claims for payment from the federal government, choosing not to pay the government's legal obligations, in full, on the date that they are due.

November 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, Spending Clause, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Monday, November 4, 2013

Conservative Physician Group Sues to Stop Individual Mandate

The Association of American Physicians and Surgeons filed suit last week to stop the government from enforcing the universal coverage provision (the individual mandate) in the Affordable Care Act.  The group argues that the court should issue an order prohibiting the enforcement of the individual mandate, because President Obama lacked authority to delay enforcement of the employer mandate.

Recall that President Obama this past summer unilaterally delayed enforcement of the employer mandate--the ACA's requirement that employers with over 50 employees provide health insurance for their employees.  The authority for this move, however, wasn't at all obvious.  That's because the ACA says in pretty clear language that the employer mandate "shall apply to months beginning after December 31, 2013."

We commented at the time that the question of authority might not matter, because it wasn't clear that anyone would have standing to challenge the delay.

Enter the AAPS.  The group argues that President Obama's delay of the employer mandate violates the separation of powers--that President Obama can't unilaterally delay enforcement of a statutory requirement. Still, it's not obvious why this group should have standing.  Here's what the complaint says:

13. Defendant's shifting of the mandate for health insurance premiums from employers to only individuals causes the elimination of many cash-paying patients from the medical practices of [plaintiff McQueeney, an AAPS member] and other AAPS members.  Defendant's shifting of the ACA insurance burden entirely onto individuals diverts their discretionary health care dollars towards insurance premiums, away from direct payments to physicians.  This significantly reduces the customer base for AAPS members who have "cash practices" accepting direct payments from patients.

That may not sound like the strongest theory of standing. 

But if standing's a weakness, there's more.  The complaint alleges that "Defendant changes legislation passed by Congress in violation of the separation of powers in the Constitution, and the Tenth Amendment."  (Emphasis added.)  The Tenth Amendment?  That seems surprising in this context, and unnecessary given the stronger arguments one might make about a President's inability to unilaterally delay the implementation of a mandate.

But if the invocation of the Tenth Amendment seems odd, there's yet even more.  The complaint argues that President Obama lacked authority to delay the employer mandate, but asks for a court order stopping the enforcement of the individual mandate

Between standing issues, a novel use of the Tenth Amendment, and redressability issues, this complaint has its problems. 

The attorney who filed it, Andrew Schlafly, is a conservative activist, son of Phyllis Schlafly, and founder of Conservapedia, a conservative web-site that grew out of one of Schlafly's home-school courses.

 

November 4, 2013 in Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 23, 2013

District Judge Dismisses Separation of Powers Challenge to CFPB

Update Below

Judge Colleen Kollar-Kotelly (D.D.C.) dismissed a separation-of-powers challenge to the Consumer Financial Protection Bureau, an independent agency created by Dodd-Frank that's tasked with the responsibility for "ensuring that all consumers have access to markets for consumer financial products and services and that markets for consumer financial products and services are fair, transparent, and competitive."  (This case challenges the CFPB on separation-of-powers grounds.  We most recently posted on the other challenge to the recess-appointed head of the CFPB here.  The recess appointment question is heading to the Supreme Court in Noel Canning.)

But the order dismissing the case in the D.C. District didn't touch the merits, and the plaintiffs in the D.C. case will undoubtedly raise the same constitutional claims in the underlying enforcement action against them in the Central District of California.

The case, Morgan Drexen, Inc. v. CFPB, arose after the CFPB filed an enforcement action against Morgan Drexen in the Central District of California.  Morgan Drexen and its "attorney-client" then filed for injunctive and declaratory relief in the D.C. District, seeking to halt the enforcement action in the Central District of California, arguing that the CFPB violates constitutional separation-of-powers principles.  The result: two parallel cases in two different courts, one enforcement action and one facial challenge, challenging the CFPB on constitutional grounds.

Update: Morgan Drexen filed in the D.C. court before the CFPB filed its case in California.

But Judge Kollar-Kotelly didn't bite.  Instead, the court ruled that injunctive and declaratory relief in the D.C. District would be inappropriate with the case pending in California--and that Morgan Drexen could obtain complete relief on its claim there.  (The court said that ruling on the matter would frustrate both the final judgment rule (because Morgan Drexen could immediately appeal a D.C. District ruling on the merits, but not a ruling from the Central District of California denying a motion to dismiss on constitutional grounds) and the principle of constitutional avoidance (because the Central District of California could dodge the constitutional issues and rule on other grounds, but the D.C. District case would force the court to address the constitutional claims).  The court also ruled that declaratory relief was inappropriate.

The court held that Morgan Drexen's "attorney-client" lacked standing, becuase she couldn't point to specific or generalized interference with the attorney-client privilege, or any other harm in the CFPB's investigation or enforcement action against Morgan Drexen.

The case ends this collateral piece of the litigation, but it doesn't end the enforcement action, still pending in the Central District of California.  Morgan Drexen raises the same constitutional claims, and other statutory claims, as defenses in that case. 

October 23, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, Standing | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 16, 2013

Toobin on Recess Appointments and Noel Canning

Jeffrey Toobin writes in the Daily Comment at The New Yorker that the Noel Canning case on recess appointments, now before the Supreme Court, could lead to an entirely new level of dysfunction in Washington--putting the current crisis to shame.  That is, if the Court strikes President Obama's recess appointments to the NLRB.  (Our latest post on Noel Canning, with links to earlier posts and lower court rulings, is here.)  Toobin explains:

If the ruling by the D.C. Circuit [striking President Obama's recess appointments to the NLRB] is upheld, the result will be a massive shift of power from Presidents to Senate minorities.  Forty senators will have the power to stop an agency from functioning.  Given the general political inclinations of the contemporary G.O.P., this would be a tremendous victory.  They don't want an N.L.R.B. at all, and they don't care for most other regulatory agencies, either.  The D.C. Circuit decision is more than a gift of a minority veto on individual members of a commission; it's a minority veto on the very existence of vunerable federal agencies.

The Canning case brings together several themes of recent political life: fierce congressional obstruction of President Obama, aggressive use of the courts by conservative activists, precedent-shattering rulings by conservative judges to undo the work of the democratically elected branches of government.  As with so many of these struggles during the Obama era, the outcome is far from certain.

October 16, 2013 in Appointment and Removal Powers, Cases and Case Materials, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

FISA Court Says 24.4 Percent of Matters Involve Substantive Changes

Foreign Intelligence Surveillance Court Presiding Judge Reggie Walton wrote to Senators Leahy and Grassley this week that "24.4% of matters submitted [to the FISA court] ultimately involved substantive changes to the information provided by the government or to the authorities granted as a result of Court inquiry or action."  Judge Walton wrote that "[t]his does not include, for example, mere typographical corrections."  The figure comes from a three-month study of FISA court matters, between July 1, 2013, and September 20, 2013, but Judge Walton wrote that "we have every reason to believe that this three month period is typical . . . ."

The letter is a follow up to a letter that Judge Walton sent to the Judiciary Committee on July 29, 2013 (included after the most recent letter).  It doesn't say how many matters the FISA court dealt with during the three-month period or give any other details.  It does say, however, that the FISA court will continue to collect statistics.

The two letters come amid continued scrutiny of the FISA court, following criticism this summer after the Snowden release.  The Senate Judiciary Committee held an oversight hearing on the FISA earlier this month.  In his opening remarks, Senatory Leahy described features of  his bill, S. 1215, the FISA Accountability and Privacy Protection Act of 2013:

Our legislation would end Section 215 bulk collection.  It also would ensure that the FISA pen register statute and National Security Letters (NSLs) could not be used to authorize bulk collection. . . .

In addition to stopping bulk collection, our legislation would improve judicial review by the FISA Court and enhance public reporting on the use of a range of surveillance activities.  The bill would also require Inspector General reviews of the implementation of these authorities . . . .

Senator Leahy's bill doesn't include the new privacy advocate that has gotten so much attention.  That office, dubbed the Office of the Constitutional Advocate, is in Senator Wyden's S. 1551.

October 16, 2013 in Congressional Authority, Courts and Judging, Jurisdiction of Federal Courts, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, September 30, 2013

Court Allows "Fast and Furious" Subpoena Case to Move Forward

Judge Amy Berman Jackson (D.D.C.) today denied AG Eric Holder's motion to dismiss a case brought against him by the House Oversight and Government Reform Committee seeking to enforce its subpoena for documents related to DOJ's infamous February 4, 2011, letter denying that gun-walking in the "fast and furious" program had taken place.  (The subpoena wasn't over the "fast and furious" program itself; instead, it was for any documents related to the government's February 4 denial.)  Our latest post on the case, with background and links to earlier posts, is here.

Judge Jackson ruled in Committee on Oversight v. Holder that the case is justiciable, and that there's no good reason for the courts to decline to hear it.  The ruling doesn't touch the merits.

The ruling means that the case will move forward on the merits question--whether executive privilege protects the subpoenaed documents--unless the parties settle.

Judge Jackson wrote that the case was a straightforward application of Committee on the Judiciary v. Miers:

And five years ago, another court in this District carefully considered and rejected the same arguments being advanced by the Attorney General here.  In a case involving a different Congress and a different President, [Miers], the court concluded in a persuasive opinion that it had jurisdiction to resolve a similar clash between the branches.

Op. at 4.

September 30, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Privilege, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Friday, September 6, 2013

The Syria Resolution's Last Whereas

Garrett Epps writes over at The Atlantic that the Senate's Syria Resolution contains a huge give-away to the President: congressional recognition of inherent executive authority to use the military to defend the national security interests of the United States--independent of any AUMF.

The give-away comes in the last "Whereas" of the Senate's Syria Resolution.  It reads:

Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States . . . .

Epps writes,

The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power.  Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.

Lawfare has some terrific analysis on the Senate resolution and related issues, including Jack Goldsmith's analysis of that final "Whereas" (quoted in Epps's piece).

SDS

September 6, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, August 9, 2013

President Opens Up on Surveillance

President Obama today announced a new effort at transparency and oversight in government surveillance programs.  WaPo reports here; here's the transcript.

President Obama said that he directed his national security team "to review where our counterterrorism efforts and our values come into tension," and "to be more transparent and to pursue reforms of our laws and practices."  He said he'd work with Congress to reform Section 215 of the Patriot Act, the statutory authority for the Foreign Intelligence Surveillance Court to order the release of telephone records (and which came under fire with Snowden's release of the FISC order doing just that), and to reform the FISC, in particular, by appointing a civil liberties advocate at the court.  He also said he'd work to be more transparent about surveillance and appoint an independent group "to step back and review our capabilities, particularly our surveillance technologies, and . . . how we can maintain the trust of the people . . . ."

The President also released a Readers Digest version of the legal authority for bulk collection of telephony metadata under Section 215, and an NSA mission statement.

As to the legal authority, the administration gave a broad read to the term "relevant" in Section 215--the issue that EPIC pressed in its recent suit challenging the program.  That is, the administration takes the position that Section 215's requirement that FISC production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation" gives very broad sweep to the FISC's authority.  The administration also focused on controls over abuse of the authority under Section 215.

The document argues that the program violates neither the Fourth Amendment nor the First Amendment.  As to the Fourth, the document claims that surveillance of telephony metadata doesn't even qualify as a "search" under Smith v. Maryland (1979), and, even if it did, the "search would satisfy the reasonableness standard that the Supreme Court has established in its cases authorizing the Government to conduct large-scale, but minimally intrusive, suspicionless searches" under Maryland v. King (2013).

As to the First Amendment, the document argues that the program authorizes the collection of only metadata, not content.  Moreover, it says that as a lawful investigative activity, can't violate the First Amendment, and that there's no chilling of protected speech.

SDS

August 9, 2013 in Congressional Authority, Courts and Judging, Executive Authority, First Amendment, Fourth Amendment, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 30, 2013

New York Appellate Court Rules NYC's Large Size Soda Ban Violates State Constitution

The super-size soda ban, a program advocated by NYC Mayor Michael Bloomberg, is not constitutional according to the unanimous opinion from a state appellate court in New York Statewide Coalition of Hispanic Chambers of Commerce v. NYC Department of Health and Mental Hygiene. 

The court affirmed a state trial court's decision that the NYC regulation prohibiting sugary drinks in restaurants, movie theaters and arenas that exceed 16 ounces was an unconstitutional exercise of power by a city agency, as well as arbitrary and capricious.  A good discussion of the trial court's decision is here.

Essentially, the issue is whether NYC Health Code ยง81.53, known as the "portion cap rule" is within the power of the Department of Health.  The short answer by the judicial branch: no. 

800px-Sodas

In today's opinion, the court held that the NYC

Board of Health overstepped the boundaries of its lawfully delegated authority when it promulgated the Portion  Cap Rule to curtail the consumption of soda drinks. It therefore violated the state principle of separation of powers. In light of the above, we need not reach petitioners' argument that the subject regulation was arbitrary and capricious. Before concluding, we must emphasize that nothing in this decision is intended to circumscribe DOHMH's legitimate powers. Nor is this decision intended to express an opinion on the wisdom of the soda consumption restrictions, provided that they are enacted by the government body with the authority to do so. Within the limits described above, health authorities may make rules and regulations for the protection of the public health and have great latitude and discretion in performing their duty to safeguard the public health.

Doctrinally, the decision is most pertinent to New York state constitutional law and administrative law scholars and practitioners.  It has broader interest, however, to those interested in the powers of governments to enact regulations that (arguably) promote health.

RR
[image via]

July 30, 2013 in Cases and Case Materials, Separation of Powers, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 23, 2013

D.C. Circuit Strikes Congressional Attempt to Recognize Israeli Sovereignty Over Jerusalem

The D.C. Circuit struck a congressional act that required the State Department to include "Israel" on the passport of any U.S. citizen born in Jerusalem.  The court in Zivotofsky v. Secretary of State ruled that the law interfered with the President's exclusive power to recognize foreign countries.

The case will likely go (back) to the Supreme Court, this time on the merits.  This is a significant separation-of-powers case, with important implications, and even if the Court ultimately agrees with the D.C. Circuit, it'll almost certainly want to put its own stamp on the substantive questions.

The case was on remand, after the Supreme Court ruled last Term that it did not raise a nonjusticiable political question.  We posted on that case here; here's our argument preview in that case.

The problem was that long-standing State Department policy and practice did not recognize Jerusalem as part of Israel.  The Foreign Affairs Manual, the State Department regs, reflected this, saying that passports issued to U.S. citizens born in Jerusalem should use just "Jerusalem" as the place of birth, not "Jerusalem, Israel," or "Israel."

Congress moved to direct the State Department to use "Israel," however, as part of its broader effort in 2002 to change U.S. foreign policy and identify Jerusalem as the capital of Israel.  President Bush signed the larger bill, but issued a signing statement on those portions of the bill, including the portion that required the use of "Israel" on passports of U.S. citizens born in Jerusalem, saying that those portions interfered with the President's foreign affairs powers.

Zivotofsky was born in Jerusalem to U.S. citizens.  His parents sought to designate his place of birth as "Jerusalem, Israel," on his passport, but the State Department refused.  The Zivotofskys sued, and after going up and back to the Supreme Court, the case landed again in the D.C. Circuit.

The D.C. Circuit started with the so-called recognition power--the power to recognize foreign countries.  The court reviewed the original intent, early and later practices, and Supreme Court rulings on the recognition power and found that it belonged to the President alone.  (It found original intent inconclusive, however.)

It said that Congress's attempt to require the use of "Israel" interfered with that power and thus struck the provision.

The court rejected Zivotofsky's argument that Congress has a "passport power" that it properly exercised here.  The court said that, whatever the extent of its passport power, Congress was quite obviously trying to do more than just regulate the contents of passports here: it was trying to set U.S. foreign policy.  The court said that this interfered with the President's power to recognize foreign countries.  

The court also rejected Zivotofsky's argument that the use of "Israel" didn't affect foreign affairs or recognition, because the State Department used the country-of-birth simply to identify the passport holder.  The court said that the State Department said that this would affect foreign affairs, and that it's not the court's place to second-guess the executive branch on this.

(The court also said that President Bush's signing statement was irrelevant to its analysis, and that Zivotofsky's argument that the State Department policy discriminates against supporters of Israel was waived.)

Judge Tatel, concurring, came to the same conclusion, but started with the passport power.  Judge Tatel argued that the passport power, whatever it is, can't interfere with the President's recognition power.

SDS

July 23, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, July 18, 2013

Second Judge Rejects Anti-Force-Feeding Case

Judge Rosemary M. Collyer (D.D.C.) earlier this week rejected hunger-striking Guantanamo detainees' suit for an injunction against the government to stop it from force-feeding them.  The ruling in Aamer v. Obama is the second recent case coming out of the federal courts rejecting an anti-force-feeding claim.  Here's our post on the first.

Judge Collyer, like Judge Kessler in the earlier case, ruled that the court lacked jurisdiction under 28 U.S.C. Sec. 2241(e)(2), which deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.

Judge Collyer went on to address the merits, too.  She wrote that the government is "responsible for taking reasonable steps to guarantee the safety of inmates in their charge," that there is no right to suicide or assisted suicide, and that the government has a legitimate penological interest in preventing suicide.  Moreover, she wrote that the government has put controls in place so that the procedure really isn't so bad, and that the government made adjustments to the force-feeding schedule for the Ramadan fast.

SDS

July 18, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Secret Surveillance Court May Pull Back Curtain

Scott Bombay, over at Constitution Daily, reports on a recent order of the Foreign Intelligence Surveillance Court, or FISC, directing the Justice Department to conduct a "declassification review" of a April 25, 2008, ruling and legal briefs involving Yahoo!  The move could lead to release of documents that reveal some of the FISC's secret workings--in particular, according to Yahoo!, "how the parties and the Court vetted the Government's arguments supporting the use of directives" to gather information about subscribers without their knowledge.  (Yahoo!'s interest is in showing that it vigorously defended its users' privacy.)

But Bombay notes that when the Justice Department finishes its classification job, there may not be much left of the ruling or the briefs to help us understand much of anything.

FISC Presiding Judge Reggie Walton ordered the Justice Department to report back to him by July 29 about when the documents could be ready for public inspection.

We posted on the recent spate of criticism over the FISC's secrecy here.

SDS

July 17, 2013 in Congressional Authority, Courts and Judging, Executive Authority, Fundamental Rights, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Authority for ACA Delay

Simon Lazarus argues at The Atlantic that the White House's delayed enforcement of the employer mandate is legal.  We previously posted on this here and here.

Lazarus says, referencing Assistant Secretary for Tax Policy Mark Mazur's letter to Congressman Fred Upton, that delayed enforcement, or temporary postponements, of tax reporting and payment requirements are routine across Republican and Democratic administrations.  Moreover, the administration's delay is well within the courts' zone of tolerance under the Administrative Procedure Act:

To be sure, the federal Administrative Procedure Act authorizes federal courts to compel agencies to initiate statutorily required actions that have been "unreasonably delayed."  But courts have found delays to be unreasonable only in rare cases where, unlike this one, inaction had lasted for several years, and the recalcitrant agency could offer neither a persuasive excuse nor a credible end to its dithering.

In other words, the courts give the administration some room, and the administration's delayed enforcement of the employer mandate, just one year while the administration gears up for it, is well within that space.

Mazur's letter also cites the IRC:

The Notice [of delayed enforcement] is an exercise of the Treasury Department's longstanding administrative authority to grant transition relief when implementing new legislation like the ACA.  Administrative authority is granted by section 7805(a) of the Internal Revenue Code.

This authority has been used to postpone the application of new legislation on a number of prior occasions across Administrations. 

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Delays on ACA's Mandates

In response to the White House announcement that it will delay enforcement of the so-called employer mandate in the Affordable Care Act, House Republicans introduced two bills, H.R. 2667 and H.R. 2668, that would amend the ACA to delay the effective date of the employer mandate and the individual mandate, respectively.

The White House promised a veto, saying that legislation authorizing a delay for the employer mandate is unnecessary (because according to the White House it can do this unilaterally) and that legislation authorizing a delay for the individual mandate would raise health insurance premiums and result in fewer insured.  

The bills were clearly designed to highlight the Republicans' complaint that the administration is treating businesses more favorably than individuals and to force the administration to own up to its more favorable treatment of businesses.  The White House didn't bite.  (The Hill covered the politics here.)

But there's still this problem: It's not at all clear on what authority the administration can delay the enforcement of the employer mandate.  As we wrote earlier, the ACA says that the employer mandate "shall apply to months beginning after December 31, 2013."  That doesn't leave much wiggle room.

If the administration doesn't enforce the employer mandate until later, it's not clear that anyone could complaint (that is, that anyone would have standing to sue in federal court to compel enforcement).  So the administration, as a practical matter, may not need a legal theory for delayed enforcement.  

SDS

July 17, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1) | TrackBack (0)

Thursday, July 11, 2013

More on Employer Mandate Delays

Representative Scott Garrett (R-NJ) introduced a resolution, H. Con. Res. 45, saying that President Obama violated Article II, Section 3 of the Constitution by postponing the requirement that employers with more than 50 employees provide health insurance or pay a fine.  (Article II, Section 3 says that the President "shall take Care that the Laws be faithfully executed.")  The Hill reports here; we posted on Michael McConnell's piece in the WSJ here.

According to the resolution, the Affordable Care Act sets a specific date, December 31, 2013, after which the employer mandate "shall" take effect:

Whereas section 1513(d) of such Act states that the employer mandate "shall apply to months beginning after December 31, 2013";

This is right, and it seems pretty firm.  

Lyle Denniston argues (correctly) over at Constitution Daily, the blog of the U.S. Constitution Center, that administrative agencies enjoy some flexibility in enforcing federal law.  In particular, agencies may sometimes require time to be able to write regs to effectively enforce the law.  

But here the language of the ACA is clear on the date of its application, and the administration's delay doesn't seem to have anything to do with its ability to enforce the employer mandate.  Instead, the delay seems designed to meet the concerns of business owners--a policy consideration, not an administrative one.

The best way for the two ends of Pennsylvania Avenue to work this one out would be to amend the ACA, to give employers another year--simply change that date to December 31, 2014.  This is a simple step, but an unlikely one in the current political climate, where pols can score points instead of making policy.

SDS

July 11, 2013 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 10, 2013

Federal Judge Urges Halt to Guantanamo Force-Feeding

Judge Gladys Kessler (D.D.C.) this week reluctantly denied a Guantanamo detainee's plea to stop his force-feeding.  Detainee Jihad Dhiab requested expidited consideration because of the risk that force-feeding during the day will deprive him of the Ramadan fast, which started July 8.  

Dhiab is an 11-year detainee at Guantanamo who has received no habeas or military commission proceeding to determine the merits of his case.  He was cleared for release two years ago.

Judge Kessler wrote that the court lacked jurisdiction to hear Dhiab's petition, because 28 U.S.C. Sec. 2241(e)(2) deprives courts of jurisdiction to hear an action related to "any aspect of the detention, transfer, treatment, trial, or conditions of confinement" of an alien detainee at Guantanamo.  She wrote that "the Court feels just as constrained now, as it felt in 2009, to deny this Petitioner's Application for lack of jurisdiction."

Judge Kessler went on to address the merits, though, and to urge President Obama to stop the force-feeding:

The Court also feels constrained, however, to note that Petitioner has set out in great detail in his papers what appears to be a consensus that force-feeding of prisoners violates Article 7 of the International Covenant on Civil and Political Rights which prohibits torture or cruel, inhumane, and degrading treatment. . . .

Even tough this Court is obligated to dismiss the Application for lack of jurisdiction, and therefore lacks any authority to rule on Petitioner's request, there is an individual who does have the authority to address the issue. . . . 

Article II, Section 2 of the Constitution provides that "[t]he Preisdent shall be the Commander in Chief of the Army and Navy of the United States . . ."  It would seem to follow, therefore, that the President of the United States, as Commander-in-Chief, has the authority--and power--to directly address the issue of force-feeding of the detainees at Guantanamo Bay.

The White House responded at the daily press briefing yesterday that the President doesn't want these detainees to die, and that he maintains his position that Guantanamo should close.

SDS

July 10, 2013 in Cases and Case Materials, Congressional Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Scrutiny of the FISA Court

The Foreign Intelligence Surveillance Court, or FISC, has come under increasing scrutiny in recent weeks, after Edward Snowden leaked an order of that court directing Verizon to turn over "comprehensive communications routing information" to the NSA.  We posted here on EPIC's petition to the Supreme Court to overturn that order.

In particular, critics are taking aim at the FISC's secrecy, the un-adversarial nature of its proceedings, and the appointment process for its judges.  (The FISC's decisions, though tremendously important, are classified; only the government, and not private individuals subject to surveillance, gets to make arguments to the FISC; and the Chief Justice alone appoints and details sitting federal judges to the FISC.)

Eric Lichtblau framed some of the issues last week in the NYT, and Orin Kerr reacted on Volokh.  The WSJ reported on the expanding definition of "relevant" in the FISC's jurisprudence--important because under federal law the FISC can order the production of tangible things that are "relevant to an authorized investigation."  That question--how far does "relevant" extend--is front-and-center in EPIC's petition at the Supreme Court.

Bloomberg editors took aim at the FISC's "missing checks and balances," adopting a recommendation by Kerr that an independent office in DOJ should advocate for privacy at the FISC, in order to create some measure of adversity before the court.  Bloomberg editors also recommended changing the appointment process--a recommendation echoed at Bloomberg by Noah Feldman and Ezra Klein.  In particular, critics worry that the current method of appointment could lead to a kind of group-think among judges on the FISC--a worry that seems supported by the government's breathtaking success rate at the court.

There is some legislation in Congress to address these concerns, one way or another.  For example, H.R. 2440, the FISA Court in the Sunshine Act of 2013, would require the disclosure of FISC decisions, or an explanation why they can't be disclosed.  H.R. 2475, the Ending Secret Law Act, and S. 1130, would do the same thing.  H.R. 2586, the FISA Court Accountability Act, would provide for the appointment of FISC judges by the Chief Justice and by congressional leaders.

SDS

July 10, 2013 in Congressional Authority, Courts and Judging, Fourth Amendment, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 9, 2013

Senate Judiciary Questions Comey

The Senate Judiciary Committee today questioned James Comey, Jr., President Obama's pick to replace Robert Mueller as the head of the FBI.  Comey was a deputy attorney general under President George W. Bush who gained fame after his 2004 confrontation with White House Counsel Alberto Gonzales and Chief of Staff Andrew Card over that administration's secret surveillance program at the hospital bedside of former AG John Ashcroft.  But, as Rick Perlstein argues at The Nation, and as Laura Murphy argues at the Guardian, Comey's record is a little more complicated.

As has been widely reported, Comey today told the Committee that he thought waterboarding was torture.  The Atlantic Wire has a summary of his responses to other, similar issues.  Here's the hearing on c-span.org.

SDS

July 9, 2013 in News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Monday, July 8, 2013

EPIC Takes Surveillance Challenge Directly to Supreme Court

The Electronic Privacy Information Center, or EPIC, today asked the Supreme Court to vacate the order of the Foreign Intelligence Surveillance Court, or FISC, compelling the disclosure of domestic phone records by Verizon.  We previously posted on the FISC order here.

EPIC filed a petition for a writ of mandamus directly with the Supreme Court, bypassing the usual route through the lower courts, because of the unique nature of the FISC order.  EPIC claims that FISC Judge Roger Vinson ordered the disclosure of domestic phone records in violation of the FISC's statutory authority under the Foreign Intelligence Surveillance Act, or FISA.  But EPIC says that under the FISA, the only court that can reverse Judge Vinson's order is the Supreme Court.  Moreover, the order creates exceptional circumstances relating to the invasion of privacy, privileged communications, and the First Amendment that warrant mandamus relief.  Thus, the mandamus petition.

On the merits, EPIC argues that Judge Vinson exceeded his authority under FISA:

[T]he FISC issued an order requiring disclosure of records for all telephone communications "wholly within the United States, including local telephone calls."  The Business Records provision does not enable this type of domestic programmatic surveillance.

Specifically, the statute requires that production orders be supported by "reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation. . . . ."  50 U.S.C. Sec. 1861(b)(2)(A).  It is simply unreasonable to conclude that all telephone records for all Verizon customers in the United States could be relevant to an investigation.  Thus, the FISC simply "ha[d] no judicial power to do what it purport[ed] to do."

Petition at 18.

EPIC also argues that the order violates the separation of powers, insofar as it compels the disclosure of phone records of the judicial and legislative branches to the executive branch.

SDS

July 8, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Executive Authority, Jurisdiction of Federal Courts, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)