January 2012

  • January 5, 2012
    The Odd Clauses
    Understanding the Constitution Through Ten of Its Most Curious Provisions
    Jay Wexler

    By Jay Wexler, a law professor at Boston University School of Law.

    When I first sat down to write The Odd Clauses — my new book about ten of the Constitution’s lesser known but still-pretty-important provisions — probably the hardest question I faced was which clauses to include. This, in turn, forced me to confront the question of what makes an odd clause odd? Are the oddest clauses those that nobody has ever heard of? Those that are historically anachronistic? Those that seem to deal with topics — post roads, perhaps? — that seem somehow beneath the dignity of a constitution?

    In the end, after many late-night boozy breathless conversations about the meaning of constitutional oddness (not really), I decided that, for me, what makes a clause odd is its specificity. The clauses that I find oddly compelling are those — like the Incompatibility Clause, which prohibits members of Congress from simultaneously holding executive office, or the Letters of Marque Clause, which gives Congress the power to authorize private ships to fight pirates on the government’s behalf  —that perform or illustrate key constitutional functions or values (separation of powers, for instance, or allocating power over foreign affairs) in very specific, and therefore (to me, anyway), quirky and odd ways.

    Under this definition, the Recess Appointments Clause of Article II, Section 2 (“The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”) qualifies as odd, and I therefore included it as the subject of Chapter Three of my book (illustrating presidential powers). But at the same time, I realized that in many other ways the clause is not all that odd — people have generally heard about it, and it’s played an important role historically — and so it was no surprise that of all the clauses I discuss in the book, the Recess Appointments Clause is the first to make front page news. (By contrast, the notion that Senator Scott Brown might be violating the Incompatibility Clause by remaining in the National Guard has made front page news only in my own head.)

    For the past month or so, speculation ran rampant as to whether President Obama would use his recess appointment power to appoint Richard Cordray as the first head of the newly created Consumer Financial Protection Bureau. Republicans refused to confirm Cordray unless major changes to the law creating the new agency that are unappealing to the President were implemented, and so a recess appointment had been the President’s only option. To stop the President from taking this step, Republican senators decided to hold pro-forma sessions every three days since leaving for the holidays (Democrats, incidentally, did a similar thing at the end of the Bush Administration), relying on past governmental pronouncements that in order to qualify as a “recess,” the Senate must be on break for at least three days. 

    Originally, some speculated that President Obama might appoint Cordray during the imaginary moment on January 3 when the previous session of Congress ended and the new one began, following the example of Teddy Roosevelt, who pulled such a maneuver (to much criticism) back in 1903. Instead, Obama waited until January 4, when he exercised his more typical recess appointment power to install Cordray as the head of the new agency without Senate approval, on the theory that the Republicans’ pro-forma sessions do not render what otherwise would be a recess a recess, for purposes of the Constitution.

    Republicans are, of course, up in arms, threatening to challenge the President’s exercise of power in court. It is likely that a court — maybe even the Supreme Court — will one day weigh in on whether the President exceeded his power under the Recess Appointments Clause. Do pro-forma meetings count as real Senate sessions? 

  • January 4, 2012

    by Nicole Flatow

    Several hours after news broke that President Obama would appoint Richard Cordray to head the Consumer Financial Protection Bureau, Obama announced he would also fill all three empty slots on the National Labor Relations Board.

    The move reaffirms President Obama’s stance that he is able to make recess appointments while Congress is on winter break, even as Senate Republicans attempt to block them by holding “pro forma” sessions every few days.

    In making the appointments, Obama has prevented the NLRB from coming to a standstill. After board member Craig Becker’s term expired yesterday, the agency was left without the required three members to legally operate, as determined by a Supreme Court decision last year.

    In spite of the approaching expiration of Becker’s term, all 47 Senate Republicans signed a letter to President Obama last month asking him to refrain from making recess appointments to the NLRB, and threatening to continue blocking other nominations, according to Politico.

    The agency, which oversees activity between unions and employers, was the object of significant conservative fury in 2011. The Huffington Post summarizes:

  • January 4, 2012

    by Jeremy Leaming

    Apparently consumed by what Rolling Stone’s Matt Taibbi calls the “most meaningless national election we’ve ever had,” the recent enactment of the National Defense Authorization Act, a sweeping law that some constitutional experts argue poses grave dangers to civil liberties, has garnered limited attention from the media.

    In a three-part series for the People’s Blog for the Constitution, Shahid Buttar, in a Q-and-A format, explains why the NDAA, which President Obama signed at the end of December, deserves far more attention for its possible detrimental effects on civil liberties. (The bill does more than authorize billions in military spending, $662 billion to be exact. It also, as Buttar explains, provides the executive branch with potentially far-reaching powers to detain Americans suspected of terrorism-related activities. In signing the bill, Obama maintained he would never authorize indefinite military detention of Americans citizens, and that he would not feel compelled to try all suspects in military tribunals, as the law authorizes. Buttar’s exhaustive series, however, explains why such assurances are wobbly.)

    Buttar, executive director of the Bill of Rights Defense Committee, in his first blog post, “The NDAA: Another assault in the dead of night,” blasts Congress for supporting, with passage of the NDAA, “indefinite military detention of even US citizens.” The version that Obama signed into law contains provisions that only appear to limit the law’s reach, Buttar writes.

    “Apologists for the NDAA,” Buttar states, “forget that laws remain fixed until changed, beyond the terms of particular officials who write them. And the ambiguity created by the law could be construed by future Presidents (or their advisors) to confer dramatic, sweeping powers to detain US citizens without a right to trial or Due Process. In the wrong hands, it could be used as a powerful tool to suppress dissent, with predictably catastrophic consequences.”

  • January 4, 2012

    by Nicole Flatow

    President Obama plans to appoint Richard Cordray today to lead the Consumer Financial Protection Bureau, flouting Republican attempts to block Cordray’s confirmation through procedural tactics.

    The new consumer watchdog agency has been without a leader since it began operating in July, and it cannot perform several of its most central functions without a director. Senate Republicans have opposed Cordray’s nomination because they advocate fundamental change to the structure of the agency, not because they object to Cordray’s nomination.

    “[W]e can’t wait for Republicans in the Senate to act,” White House Communications Director Dan Pfeiffer said in a statement today. “… Because of the President’s leadership and decisive action, the American people will have a consumer watchdog fighting tooth and nail on their behalf.  … Today’s announcement is a critical piece to strengthen the economy and restore the economic security for the middle class and those trying to reach it.”

    Obama is installing Cordray through his constitutional power to make temporary appointments to vacant seats while Congress is out of session. Legislators had attempted to block Obama’s use of that power by holding “pro forma” sessions every few days throughout the winter break, purportedly preventing a formal “recess” from occurring.

    But Pfeiffer called this effort by Senate Republicans a “gimmick” that does not “override the President’s constitutional authority to make appointments to keep the government running.”

    “Legal experts agree,” he adds, pointing to a 2010 Washington Post op-ed by two lawyers who advised President George W. Bush on recess appointments. They wrote:

  • January 3, 2012

    by Jeremy Leaming

    The Montana Supreme Court recently upheld the state’s century-old prohibition against corporate financing of elections, providing a striking rebuke to the U.S. Supreme Court’s 2010 opinion in Citizens United v. FEC.

    In Citizens United the high court ruled 5-4 that corporations have First Amendment rights equivalent to persons, and therefore can funnel their expenditures into politics. Citizens United overruled long time federal regulations of corporate campaign financing.

    Montana’s high court, with two members dissenting in Western Tradition Partnership, Inc. v. State of Montana, said the Citizens United opinion does not nullify the state’s Corrupt Practices Act, enacted in 1912. The Montana campaign finance regulation was invalidated by a lower court state judge, citing Citizens United.

    Writing for the Montana Supreme Court majority, Chief Justice Mike McGrath said the state had never lost a “compelling interest to enact” the law. “At the time,” McGrath wrote, “the State of Montana and its government were operating under a mere shell of legal authority, and the real social and political power was wielded by powerful corporate managers to further their own business interests.”

    The chief justice continued that today concerns of “corporate influence, sparse population, dependence upon agriculture and extractive resource development, location as a transportation corridor, and low campaign costs make Montana especially vulnerable to continued efforts of corporate control to the detriment of democracy and the republican form of government. Clearly, Montana has unique and compelling interests to protect through preservation of this statute.”

    Jeff Clements, general counsel of Free Speech for People, a public interest group devoted to overturning Citizens United, lauded the Montana high court’s opinion, writing, “Corporations are not people. The Framers understood that. We are proud to stand today with the State of Montana to vindicate the Framers’ intent and to defend our democracy.”