Executive power

  • August 9, 2013
    Guest Post
     
    A United States intelligence employee sends classified government documents to the news media and ignites a national debate. Some hail him as a hero and whistleblower, others denounce him as a traitor. You might think we are talking about Edward Snowden, the National Security Agency contractor who disclosed  details of PRISM, the NSA’s massive surveillance program in  June. But we are also talking about Daniel Ellsberg, the Department of Defense consultant who provided  the Pentagon Papers to The New York Times 40 years ago to reveal the truth, which help end the Vietnam War.
  • July 30, 2013
    Guest Post

    by Michael German, senior policy counsel at the ACLU’s Washington Legislative Office and a former FBI agent.

    My American Civil Liberties Union colleagues and I have been extremely busy since the Guardian and the Washington Post published leaked classified documents exposing the scope of the government’s secret interpretations of the Patriot Act and the 2008 amendments to the Foreign Intelligence Surveillance Act, which allow the FBI and NSA to spy on hundreds of millions of innocent Americans. We haven’t written much about the alleged leaker of this information, Edward Snowden, however, mainly because we took his advice to focus on what the NSA and FBI were doing, rather than on what he did or didn’t do. (See exceptions here and here).

    But I did want to clear up a question that seems to keep coming up: whether Snowden is a whistleblower. It is actually not a hard question to answer. The Whistleblower Protection Act protects “any disclosure” that a covered employee reasonably believes evidences “any violation of any law, rule, or regulation,” or “gross mismanagement, a gross waste of funds, and abuse of authority, or a substantial and specific danger to public health or safety.”

    In the two months since Snowden’s alleged disclosures, no fewer than five lawsuits have been filed challenging the legality of the surveillance programs he exposed. The author of the Patriot Act, Rep. James Sensenbrenner (R-Wis.), called the scope of data collection revealed in one of the leaked Foreign Intelligence Surveillance Court orders “incredibly troubling,” and “an overbroad interpretation of the Act” that “raise[s] questions about whether our constitutional rights are secure.”

  • July 26, 2013
    Guest Post
    by Leslie C. Griffin, William S. Boyd Professor of Law, UNLV Boyd School of Law 
     
    Liberty University v. Lew, the Fourth Circuit’s recent decision about the Affordable Care Act [ACA], should please no one. The opinion demonstrates the dangers of exempting religious organizations and individuals from the law. Take your pick. The court either exempted too many, or too few. Its middle ground unsatisfactorily addresses the First Amendment challenges to the Act.
     
    Individual plaintiffs and Liberty University opposed the individual and employer mandates of the ACA. The individual mandate requires individuals to obtain minimum essential health care coverage or pay a penalty in their taxes. The employer mandate requires employers to provide affordable minimal essential health care coverage to full-time employees or face a tax penalty.
     
    All plaintiffs are Christians morally opposed to abortion except to save the life of the mother. The most straightforward of their complaints alleged that their mandated insurance payments would wind up paying for abortions in violation of their constitutional and statutory rights. This is the simplest exemption argument in the case: plaintiffs think they should be exempt from the ACA because it burdens their religion.
     
    The court quickly dismissed that argument. Under the Free Exercise Clause, it ruled, the ACA is a neutral law of general applicability that applies to everyone without singling out religions for disfavor. Moreover, the court decided, plaintiffs’ religion was not burdened by the mandates. Although plaintiffs alleged that their money would be used for abortion, other provisions of the ACA required that a plan without abortion coverage would always be available as a choice for consumers. Without a substantial burden on religion, neither the Free Exercise Clause nor the Religious Freedom Restoration Act (which prohibits the federal government from substantially burdening religion without a compelling government interest) was violated.
     
  • July 16, 2013

    by Jeremy Leaming

    As AEI’s Norman Ornstein predicted last week at a Common Cause event on the escalating use of the filibuster to scuttle consideration of legislation and nominations, senators crafted a deal to avoid a slight change to rules governing the filibuster.

    TPM’s Sahil Kapur reports that the deal means that nominees to the National Labor Relations Board (NLRB), Consumer Financial Protection Bureau (CFPB), the Environmental Protection Agency, the Labor Department and the Export-Import Bank would get up-or-down votes in the Senate. Also Sharon Block and Richard Griffin, appointed to the NLRB via recess appointments and then re-nominated by President Obama would have to be replaced with new nominees, but with a written promise that the new nominees would be confirmed before the end of August. Following the deal the Senate voted to begin debate on the nomination of Richard Cordray to head the CFPB. Cordray’s (pictured) was recess-appointed to the position by President Obama because of Republican opposition to the agency created by financial overhaul legislation.

    Yesterday during an event at the Center for American Progress, Senate Majority Leader Harry Reid (D-Nev.) said that the only way for Senate Republicans to avoid a vote to slightly change the rules surrounding the filibuster would be to stop blocking consideration of the president’s executive branch nominees. Regarding today’s deal he said, “I think we see a way forward that will be good for everybody,” The New York Times reports.

    Common Cause, which last year lodged a lawsuit challenging the constitutionality of the filibuster, said the deal should be the start of further action on the filibuster.

    “A vote on these nominees should be just the starting point for rules changes that would break the Senate’s gridlock permanently,” said Common Cause Staff Counsel Stephen Spaulding. “Senate rules should guarantee a prompt review in committee and confirmation by a simple majority vote for ALL future presidential nominees.”

    In a recent guest post for ACSblog, former ethics attorney for President George W. Bush also urged action on the filibuster, saying the “situation is even worse under President Obama now that Senate Republicans who once said they despised the filibuster have shown they actually enjoy it.”

    Regarding judicial nominations, which were not on the table in the discussions that lead to today’s deal, there are more than 80 federal court vacancies, 32 of them considered judicial emergencies. The high vacancy rate has plagued the majority of Obama’s time in office. As noted here Republicans led by Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) are threatening to scuttle or greatly stall President Obama’s nominations to fill the three vacant seats on the powerful U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit hears myriad constitutional concerns, including many challenges to government regulations intended to enforce environmental laws. For more about vacancies on the federal bench, see JudicialNominations.org.

  • June 18, 2013

    by Jeremy Leaming

    As some Senate Republicans continue to argue for removal of judgeships from the powerful U.S. Court of Appeals for the District of Columbia Circuit, Sen. Judiciary Chairman Patrick Leahy (D-Vt.) is pushing forward for consideration of President Obama’s recent nominations to fill three vacancies on the Court.

    Sen. Leahy announced yesterday that he is planning for a July 10 hearing before the Committee to consider one of the president’s nominees Patricia Ann Millett, a longtime appellate attorney who has earned the ABA’s highest rating. In announcing the hearing, Leahy took on Republicans’ claims that the D.C. Circuit has a light caseload and that the three current vacancies do not need to be filled. Sen. Chuck Grassley (R-Iowa) has introduced a bill to strip judgeships from the D.C. Circuit and move them to other federal appeals court circuits. As the Constitutional Accountability Center has noted, Grassley’s measure has nothing to do with careful restructuring of the federal appeals court bench, and everything to do with obstructionism.

    Leahy’s June 17 statement noted that some of the same Republicans now calling for judgeships to be stripped from the D.C. Circuit argued during George W. Bush’s administration the Circuit “should have 11 judgeships” and they voted to confirm his nominees for the “ninth, tenth, and eleventh seats ….” Leahy then ticked off a number of judicial nominations to other federal appeals courts that Republicans slow-walked, showing no concern about caseloads for those courts.

    “The American people are not fooled,” Leahy said. “Senate Republicans are playing by different rules. In the past 30 years, Republican presidents have appointed 15 of the last 19 judges named to the D.C. Circuit. Now that these three vacancies exist during a Democratic presidency, Senate Republicans are trying to use legislation to lock in their partisan advantage.”

    That advantage has served the interests of the Republican Party. As the D.C. Circuit is currently situated, it has a decisively right-wing tilt and has issued opinions harmful to workers’ rights, the environment and one widely panned opinion on the president’s power to use recess appointments to fill judicial and executive branch vacancies. That opinion, in Noel Canning v. NLRB, has been appealed by the administration.