President Obama

  • May 15, 2013
    Guest Post

    by Peter M. Shane, Jacob E. Davis & Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University

    Much of my writing on the constitutional separation of powers and checks and balances in operation is directed at the central importance of informal norms to effective government. Chief Justice Hughes famously wrote that “[b]ehind the words of the constitutional provisions are postulates which limit and control.” A subtle, but intimately related point is that our constitutional plan cannot work unless the competing institutions (and those in charge of them) agree on some common overarching values and on certain general understandings as to shared aims and the limits of unilateral power.

    If you think the text of the Constitution provides sufficient guidance by itself to keep the government operating, do a few thought experiments. Imagine that the Senate and House had adopted a custom early on that each would unanimously reapprove any legislation returned to Congress with a presidential veto. Nothing in the Constitution forbids such a practice. 

    Imagine that Congress had read the Constitution to allow the House to impeach presidents for acts of lesser magnitude than “high Crimes or Misdemeanors,” providing that conviction carried some punishment short of removal. Don’t believe the constitutional text permits this? Read it. 

    These things did not happen, I presume, because Congress recognized that such “customs” would eviscerate the contemplated co-equality of the executive and legislative branches. But not a word of constitutional text would have cast doubt on these practices.

    What we are witnessing today in depressing, even contemptible form is a GOP-led congressional subversion of two of the most elementary norms on which our government rests. The first is the proposition that the government should actually function.  Agencies Congress has created and to which it has delegated administrative responsibilities should discharge those responsibilities efficiently and effectively. The second is that the president is primarily responsible for achieving effective administration and, toward that end, he is entitled to significant, if not controlling deference by the Senate in his choice of individuals to head government agencies.

  • May 15, 2013
    Guest Post

    by Anne Marie Lofaso, Associate Dean for Faculty Research & Development, Professor of Law, West Virginia University College of Law

    The Senate Health, Education, Labor and Pensions (HELP) Committee will hold hearings tomorrow on President Obama’s five nominees to the National Labor Relations Board (NLRB or Board). So why, when there are so many vitally important issues facing our country – the enormous budget deficit and sequester being only two of those issues – is the Senate spending its time on the confirmation of five public servants?

    Since the 1947 Taft-Hartley amendments, the Board has been comprised of five members, appointed by the president with the advice and consent of the Senate. For years, Senate Democrats and Republicans held to a gentlemen’s agreement that the president would select three Board members from the majority party and two Board members from the minority party. Over the years, these nominations became increasingly more political, with administrative decisions predictably oscillating between pro-business and pro-labor-enforcement results, depending on which party held control of the Executive Branch.

    In an administrative agency that tends to make law by adjudication rather than rulemaking, this back-and-forth between reasonable interpretations of the National Labor Relations Act (NLRA or Act) is both lawful and par for the course. Those in power are privileged to re-interpret the statute that they are charged by Congress with administering so long as the following conditions are met: (1) a case comes along that raises the issue; (2) their statutory interpretation is reasonable and permissible/constitutional; and (3) they give reasons for changing their mind.

  • April 30, 2013
    by Jeremy Leaming
     
    Recent reports about the Guantánamo Bay military prison have documented and confirmed the torture of detainees, and offered new insight into the wobbly legality of military commissions.

    Scores of prisoners remain there and according to a Seton Hall report an elaborate system has been installed to eavesdrop on attorneys meeting with the prisoners, thereby undermining the legitimacy of the military tribunals. The Constitution Project also released an exhaustive report confirming what has been known for years – that torture of prisoners did occur at Guantánamo. Many of the prisoners are on hunger strikes, they see no escape from a place where they are being indefinitely held. “The situation is desperate now,” prisoner Samir Najl al Hasan Moqbel wrote in a recent column for The New York Times.
     
    Today, President Obama, during a White House news briefing, said he still would like to see Gitmo shuttered. Obama promised to close the prison during his first term, but failed. Some reporting said the administration did not have much of a strategy in place for closing the prison.
     
    Obama said, “I continue to believe that we need to close Guantánamo. I think it is critical for us to understand that Guantánamo is not necessary to keep us safe. It is expensive, it is inefficient, it hurts us in terms of our international standing, it lessens cooperation with our allies on counterterrorism efforts, it is a recruitment tool for extremists. It needs to be closed,” The Huffington Post’s Ryan J. Reilly reports.
     
    He continued, “The notion that we’re going to continue to keep over 100 individuals in a no-man’s land in perpetuity – even at a time when we’ve wound down the war in Iraq, we’re winding down the war in Afghanistan, we’re having success defeating al Qaeda, we’ve kept pressure up on all these transnational terrorist networks, when we’ve transferred detention authority to Afghanistan – the idea that we would still maintain, forever, a group of individuals who have not been tried, that is contrary to who we are, it’s contrary to our interests, and it needs to stop.”
     
    The Center for Constitutional Rights, which has long represented some of the prisoners, lauded Obama’s comments, but noted the president should not place the entire onus on Congress to close the prison.
     
    For instance, CCR said that Obama “still has the power to transfer the men right now. He should use the certification/waiver process created by Congress to transfer detainees with the 86 men who have been cleared for release, including our client Djamel Ameziane.”
  • April 30, 2013

    by Jeremy Leaming

    The Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa) likes to pin blame for the high vacancy rate on the federal bench on President Obama, saying he has not put forth enough nominees. Some befuddled reporters have bought and pushed Grassley’s line, or at least part of it to report that both parties are to blame in this matter.

    Grassley and others, however, should take a look at the work of Jennifer Bendery at The Huffington Post, who notes, like other honest observers of the fight over judicial nominations, that the obstruction is and always has been the product of Republican senators. A careful look at the judicial nominations process reveals, she writes, “the bigger problem is Republican senators quietly refusing to recommend potential judges in the first place.”

    Obama came into office promising to work with the other party and on judicial nominations that is what he’s attempted to do. In their 2012 book, Thomas E. Mann and Norman J. Ornstein blast Republicans as being largely to blame for the heightened obstruction of nominations and legislation.

    Citing a study by the Alliance for Justice, “Judicial Vacancies Without Nominees,” Bendery reveals it is rather lazy to report that both parties are to blame for the ongoing strife over judicial nominations and the large number of vacancies on the federal bench. Most of the nominees to the federal bench are to the district courts and senators, Bendery notes, jumpstart that process. Senators are supposed to make “recommendations from their home states, and the president works with them to get at least some of the nominees confirmed – the idea being that senators, regardless of party, are motivated to advocate for nominees from their states.”

    The research from AFJ shows that it is largely Republicans who are stalling the process. Michelle Schwartz, director of AFJ”s Justice Programs, told Bendery, “It’s disingenuous at best for Republicans to complain about the number of judicial vacancies without nominees when Republicans themselves are responsible for the majority of those vacancies. Nearly two-thirds of the vacancies without nominees are in states with at least one Republican senator, most of whom have consistently refused to work with the White House in good faith to identify qualified candidates.”

  • April 24, 2013

    by Jeremy Leaming

    If you’re one of the president’s nominees to the federal bench it helps to have a signficant connection to the Senate Judiciary Committee’s Ranking Member Chuck Grassley (R-Iowa).

    Jane Kelly, an assistant public defender in Iowa, nominated in January to a seat on the U.S. Court of Appeals for the Eighth Circuit was today confirmed to the federal appeals court 96 – 0. She was nominated by President Obama in January. She is the second woman and first public defender to serve on the Eighth Circuit. Both state senators, Grassley and Tom Harkin (D-Iowa) worked closely to move along the nomination.

    But of course most nominees do not have the sort of backing Kelly received. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) in a press statement lauding the confirmation, again noted that on average the president’s appeals court nominees “wait 132 days for a vote in the Senate, compared to just 18 days” for Obama’s predecessor. 

    Regardless of uninformed or brain-addled pundits who argue Obama is at fault for the judicial vacancy crisis or for filibusters of certain pieces of legislation, the reality is that Senate Republicans led by Minority Leader Mitch McConnell (R-K.Y.) have stuck to agenda of obstruction. In the case of the federal bench, Senate Republicans have put aside the concerns of Americans who should and need to be able to rely on an efficient court system for political machinations.

    Sen. Grassley, who supported Kelly, saying she is “well regarded in my home state” is also leading an effort to limit the president’s ability to fill vacancies on the 11-member U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit is one of the nation’s most important federal appeals courts, hearing complex litigation often focusing on high-profile constitutional concerns. Patricia Wald, who served on the D.C. Circuit for 20 years, wrote for The Washington Post that the Circuit “hears complex, time-consuming, labyrinthine disputes over regulations with the greatest impact on ordinary American lives: clean air and water regulations, nuclear plant safety, health-care reform issues, insider trading and more.”