Executive power

  • 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.

  • June 10, 2013

    by Jeremy Leaming

    Apologists of the federal government’s massive surveillance programs are pushing us to read David Simon’s lengthy explanation of why the programs are not bad. Simon, creator of “The Wire,” is dumbstruck -- how can Americans be so shocked. Instead those who can’t see things like Simon are dolts.

    “You would think,” Simon writes, “that the government was listening in to secrets of 200 million Americans from reaction and hyperbole tossed around.” There aren’t enough American spies to do such a thing, and why in the hell would they want to, he maintains. And then he reminds us that Americans supported the Patriot Act, don’t we remember? And besides, the Foreign Intelligence Surveillance Act which created the FISA Court provides judicial review. The president said the same thing last week. Don’t worry, a highly secretive court is ensuring that those thousands of requests from the nation’s surveillance apparatus are being checked by the FISA Court. 

    But Simons’ long-winded, sanctimonious blather, while providing comfort to supporters of the massive intelligence community, shuns or shows great ignorance of the Constitution. Really, why have a Fourth Amendment at all, or the other amendments, such as the First, that are intended to limit the government and provide us reasonable expectations of privacy. Toss those amendments aside already.

    The ACLU and other supporters of liberty are not likely to be swayed by a television creator’s wobbly arguments supporting an increasingly unweildy intelligence apparatus.

    Today, the ACLU and Yale Law School’s Media Freedom and Information Access Clinic lodged a motion with the FISA Court calling on it to release “its opinions on the meaning, scope, and constitutionality” of a section of the Patriot Act that provides the federal government ability to easily obtain and stockpile information on Americans’ activities.

    ACLU Deputy Legal Director Jameel Jaffer said, “In a democracy, there should be no room for secret law. The public has a right to know what limits apply to the government’s surveillance authority, and what safeguards are in place to protect individual privacy.”  

    Daniel Ellsberg, who leaked a lot of top secret government material on the Vietnam War, also weighed in with a piece for The Guardian, calling Edward Snowden’s release of classified nformation about the surveillance programs likely the most important in history.

    Simon, in his post, writes about probable cause, saying it’s needed before the FISA Court will give the intelligence apparatus what it wants. He’s wrong. The FISA Court is essentially a rubber stamp. As Ellsberg says, “The government claims it has a court warrant under FISA – but that unconstitutionally sweeping warrant is from a secret court, shielded from effective oversight, almost totally deferential to executive requests. As Russell Tice, a former National Security Agency analyst put it: ‘It is a kangaroo court with a rubber stamp.’”

    And then there’s Glenn Greenwald, the columnist, attorney, who along with Ewen MacAskill and Spencer Ackerman broke the first story about the NSA and FBI sweeping up and collecting telephone information. He’s rather tenacious, and is promising more information about the machinations of American spies.

  • June 7, 2013

    by Jeremy Leaming

    Are we over reacting when tossing around Orwellian to describe the federal government’s massive surveillance programs or denouncing President Obama as losing all credibility on this issue, as The New York Times Editorial Board has done?

    We noted one of the massive spying programs yesterday regarding a FISA Court order granting the National Security Agency the power to collect telephone information from Verizon. The Guardian released the FISA Court order in its coverage. Later The Guardian and The Washington Post reported on a program called PRISM where the NSA and FBI are “tapping directly into central servers of nine leading Internet companies [like Google, Facebook and Apple], extracting audio and video chats, photographs, e-mails, documents and connection logs ….” The order to collect telephone data has apparently been made much easier to obtain because of the administration’s sweeping interpretation of a provision in the Patriot Act.

    President Obama today dismissed criticism of the surveillance programs as hype. At a press conference this morning intended to focus on implementation of the Affordable Care Act he was confronted with questions about the two programs.

    Obama first acknowledged he has a duty to protect the constitutional right to privacy and civil liberties, but quickly shifted into defending the massive surveillance programs.

    “The programs discussed over the last couple of days in the press are secret in the sense that they are classified but they are not secret in the sense that when it comes to phone calls every member of Congress has been briefed on this program,” Obama said. “With respect to all these programs the relevant intelligence committees are fully briefed on these programs. These are programs that have been authorized by broad bipartisan majorities repeatedly since 2006. So I think it’s important to understand that your duly elected representatives have been consistently informed about exactly what we’re doing.”

    He claimed that the “intelligence community” is not looking at content of telephone calls, but instead sifting “so-called metadata” for leads of people plotting to engage in terrorism. He then knocked coverage of the two surveillance programs as “hype.” He added that the program of collecting telephone data is overseen by Congress and the FISA Court, which was created by the Foreign Intelligence Surveillance Act of 1978 (FISA).

    With respect to the Internet surveillance program, he said PRISM does not apply to U.S. citizens and that Congress is fully aware of the program and that the FISA Court “has to authorize it.” They are both programs, the president said, that have been approved by Congress and the FISA Court is overseeing them.

    The Dish’s Andrew Sullivan writes, “I don’t find such data-mining for national security purposes to be that horrifying. If that’s the price we have to pay for deterring Jihadist attacks, then we should recognize there’s a trade-off. The problem is that we, the public, cannot judge the gravity of those threats and so cannot even weigh the necessity of giving up our privacy.”  

    Geoffrey R. Stone, a constitutional expert and distinguished law professor at the University of Chicago, in a piece for The Huffington Post says that “based on the facts that have been made public,” the government actions “are neither unconstitutional nor otherwise unlawful under existing law.” Stone, however, adds that he would “personally like to see the interpretation of the Constitution and the state of federal legislation changed in particular ways that might alter this conclusion ….” 

    Both Sullivan and Stone are touching upon the trade-offs that Obama also mentioned during his press conference today. In some instances national security will trump the interests of protecting privacy.

    Others, like The New York Times Editorial Board believe the Obama administration has recklessly expanded the surveillance programs started under his predecessor and given more power to the nation’s unwieldy intelligence apparatus. “The administration has now lost all credibility on this issue. Mr. Obama is proving the truism that the executive branch will use any power it is given and very likely abuse it. That is one reason we have long argued that the Patriot Act, enacted in the heat of fear after the Sept. 11, 2001, attacks by members of Congress who mostly had not even read it, was reckless in its assignment of unnecessary and overbroad surveillance powers.”

  • June 7, 2013
    Guest Post

    by Victor Williams, Clinical Assistant Professor of Law, Columbus School of Law, Catholic University of America

    President Barack Obama engaged in welcome “audacity of hope” when he named three stellar lawyers to the D.C. Circuit, even as his own lawyers were busy taking the court’s Noel Canning ruling to the Supreme Court. Each of his judicial picks -- Patricia Ann Millett, Cornelia Pillard and Robert Leon Wilkins -- built a sterling record since graduating from Harvard Law. Each is a perfect fit for, and transformative addition to, the nation’s second highest court. 

    Obama accurately describes the court as having a unique national jurisdiction and “final say” responsibility. In a 2006 essay, “What Makes the D.C. Circuit Different,” John Roberts explained: “Whatever combination of letters you can put together, it is likely that jurisdiction to review that agency’s decision is vested in the D.C. Circuit.”  Supreme Court nominees are often drawn from the D.C. Circuit; indeed, one of the three vacancies that Obama seeks to fill has been empty since Circuit Judge John Roberts rose to the U.S. Supreme Court.

    Having battled unprecedented partisan confirmation obstruction for the entirety of his tenure, PresidentObama also took opportunity at the Rose Garden announcement to make the case against Senate delay and procedural hurdles. He spoke about past nominees -- of both parties -- unfairly worn down by obstructionist delay. Assertive, while not combative, Obama simply asked the Senate minority not to block up-or-down confirmation votes: “What I am doing today is my job. I need the Senate to do its job.”  

    Republicans Jump the Obstructionist Shark; Noel Canning May Backfire 

    Senate Republicans predictably responded by doubling down on obstruction. Absurdly shouting “court packing” and “intimidation,” the Senate minority quickly launched its campaign of obstruction. The D.C. Circuit’s bench status quo is exactly what the GOP wants; the court’s opinion in Noel Canning v. NLRB serves as best evidence.  The radical ruling nullified the independent labor agency’s legal authority and challenged the legitimacy of over 500 intersession recess appointed officials and judges. Unknown-thousands of acts and judgments by recess appointed officials were tainted as ultra vires. As I argued in the National Law Journal, the congressional pro forma scheduling shenanigans of the past years pale in comparison to the D.C. Circuit panel’s interpretive gimmickry. The ruling rejects 150 years of accepted appointment practice and threatens exponential chaos in regulatory law.