Executive power

  • June 26, 2014
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Ohio State University, Moritz College of Law. This piece is cross-posted on RegBlog, where it was originially published.

    As losses go, NLRB v. Noel Canning is going to be pretty easy for the National Labor Relations Board (NLRB) and future presidents to live with.

    In a 5-to-4 vote, the U.S. Supreme Court held that Article II’s Recess Appointments Clause empowers presidents to fill vacancies that occur at any time and during any recess—intra-session or intersession—of sufficient length. The Court did invalidate President Obama’s January, 2012, recess appointments of three NLRB members, but only on a narrow two-part rationale. First, a series of pro forma Senate sessions held between December 17, 2011, and January 23, 2012, were effective in dividing this 37-day break into periods of adjournment no longer than three days. Second, periods of intra-session adjournment shorter than 10 days are “presumptively” too short to count as recesses that trigger the president’s recess appointments power. (There is some ambiguity in the majority opinion whether the 10-day rule now applies even to intersession adjournments, which, as far as I know, no party ever argued.) Because of the pro forma sessions – which the D.C. Circuit had not addressed at all – the NLRB owes the Noel Canning Co. a do-over in its unfair labor practice proceeding.

    All in all, it was a good day for the legacy of Chief Justice John Marshall. The majority eschewed implausible claims for the supposed clarity of plainly ambiguous constitutional text, in favor of a constitutional reading that was guided by a history of interbranch practice. Marshall would have approved the Court’s framing of the intra- versus inter-session recess problem:

    The question is not: Did the Founders at the time think about intra-session recesses? Perhaps they did not. The  question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances? The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is “intended to endure for ages to come,” and must adapt itself to a future that can only be “seen dimly,” if at all …We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.

    In short, pragmatism trumped an overconfident textualism.

  • April 9, 2014
    At The Atlantic, Andrew Cohen discusses “secession by attrition” in which a collection of senators are “starving the federal courts of the trial judges they need to serve the basic legal needs of the litigants who come to court each year seeking redress of their grievances.”
     
    Writing for Daily Kos, Jon Perr criticizes Politico’s recent piece “Obama now outpaces George W. Bush on judges,” for its misleading message. While the Obama administration has made some “headway” against Senate Republicans’ egregious obstruction of the president’s judicial nominations, Perr reveals how  Politico’s data shows that President Obama’s nominations have been “confirmed at a lower rate than President Bush’s.”
     
    Yesterday, President Obama signed two executive orders that “will prevent retaliation against employees who disclose compensation information and will require businesses to include race and gender information when reporting compensation data.” Keli Goff at The Root comments on this critical step towards ensuring workplace equality. 
     
    At the Daily Journal, Richard L. Hasen discusses Justice Clarence Thomas’ concurring opinion in McCutcheon v. Federal Election Commission and the "faux judicial restraint" of the chief justice’s “gradualism.” 
     
    Michelle Olsen at Appellate Daily notes a recent petition to the high court requesting oral argument in a case involving threats made on Facebook.
  • March 28, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and an ACS Faculty Advisor at the University of Chicago Law School; former Chair, ACS Board of Directors
     
    This post originally appeared at The Daily Beast.
     
    President Obama announced this morning that he will propose legislation calling for significant changes in the NSA’s telephone metadata program. This is good news, indeed.
     
    The enactment of these proposals would strike a much better balance between the interests of liberty and security. They would preserve the value of the NSA’s program in terms of protecting the national security, while at the same time providing much greater, and much needed, protection to individual privacy and civil liberties.
     
    The proposals are based on recommendations made by the president’s five-member Review Group, of which I was a member. To understand why we came up with these suggestions, it is necessary first to understand how the program operates.
     
    Under the telephone metadata program, which was created in 2006, telephone service companies like Sprint, Verizon and AT&T are required to turn over to the NSA, on an ongoing daily basis, huge quantities of telephone metadata involving the phone records of millions of Americans, none of whom are themselves suspected of anything.
     
    Even though the program to-date has functioned properly, history teaches that there is always the risk of another J. Edgar Hoover or Richard Nixon.
     
  • March 12, 2014
    Guest Post
    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs
     
    * Prof. Edelson’s research focuses on presidential power and other questions of U.S. constitutional interpretation. His first book, Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror, was published in 2013 by the University of Wisconsin Press.
     
     
    Republicans are right to insist on the need for limits on presidential power (though I have argued that the particular examples of “overreach” they cite are red herrings). When it comes to foreign policy and national security, however, Republicans criticize President Obama for being too weak.
     
    There is some dissonance here, to put it mildly. As Dana Milbank observed, Republicans seem to see Obama as a “feckless tyrant.” They also seem to be suggesting that it is important to limit presidential power at home, but not abroad. This view may draw on the misconceived “sole organ” doctrine, which is incorrectly cited to justify the claim that presidents have inherent, plenary power over foreign affairs. The Constitution says otherwise, however—it divides these powers between the president and Congress. The framers decisively broke with the then-prevailing British model, which assigned most power over external affairs to the king. The U.S. Constitution, of course, does not provide for a king. It created a president who would share war power and foreign policy responsibilities with Congress.
     
    In reacting to the crisis in Ukraine, Republicans have forgotten their concerns about setting limits on presidential power. They complain that Obama’s problem is that he’s not tough enough—that he’s being “weak and indecisive” when it comes to Ukraine—in contrast with Putin, who is “running circles around us.” That is a mistake. It is essential to emphasize limits on presidential power, but those limits must apply in all contexts—not just when it comes to domestic policy. 
     
  • January 3, 2014
    Guest Post
    by Geoffrey R. Stone, Edward H. Levi Distinguished Professor of Law and ACS Co-Faculty Advisor at the University of Chicago, and former ACS Board Chair
     
    * This post originally appeared on The Huffington Post and is the third part of an ongoing series. The first part can be read here; the second part can be read here; the fourth part can be read here; the fifth part can be read here.
     
    In my last post, I explored the pros and cons of the NSA's bulk telephony meta-data program. As I reported, after considering all the competing interests and perspectives, the Review Group concluded that, in light of the availability of other means by which the government could achieve its legitimate objectives, there was "no sufficient justification to allow the government itself to collect and store bulk telephony meta-data." The Review Group therefore recommended that the meta-data program, as currently constituted, "should be terminated as soon as reasonably practicable."
     
    At the same time, though, the Review Group found that access to telephony meta-data can be useful to the government in its effort to identify terrorists operating inside the United States. The challenge was to figure out how best to preserve the legitimate value of the program while at the same time reducing its risks to personal privacy and individual freedom.
     
    To strike a better balance, the Review Group recommends several important changes in the program as it currently exists.
     
    First, and perhaps most important, the Review Group recommends that the government should not be permitted to store the telephony meta-data. The Review Group reasoned that taking the meta-data out of the hands of government would substantially reduce the potential for government abuse. The Review Group therefore recommends that the telephony meta-data should be held by private entities. That is, the meta-data should be held either by the various telephone service providers themselves or, upon a showing that that solution would make effective use of the meta-data impossible, by a private organization created specifically for that purpose. This approach would both prevent the government from having direct access to the database and ensure that an independent set of eyes could monitor the government's access to the information.