Separation of powers

  • May 22, 2013

    by Jeremy Leaming

    Sen. Mitch McConnell (R-K.Y.), the chamber’s ringleader of obstruction of Obama nominations, particularly judicial ones, is whining about the possibility of Senate action that could hobble an integral tool of obstructionists – the filibuster.

    But Senate Majority Leader Harry Reid (R-Nev.) has tried to work with McConnell on this matter before and wound up with a pretty weak deal, one that McConnell would subsequently mock. Earlier in the year the two reached an agreement that was supposed to help move along some of Obama’s nominations to the federal bench, especially those to the U.S. District Courts. Since then, however, Republicans appear ready to scuttle the nominations of Thomas Perez to head the Labor Department and Gina McCarthy to lead the Environmental Protection Agency. For good measure the Senate obstructionists are also seeking to prevent the administration from filling all the vacant seats on the U.S. Court of Appeals for the District of Columbia Circuit and blocking the president’s selections to fill vacancies on the National Labor Relations Board.

    In a press statement, Reid signaled he may be ready to push for a majority vote to alter the filibuster to help change the status quo in Congress, which is gridlock. Reid noted, as many others have for some time now, that McConnell and his cohorts have changed the rules of the Senate by demanding supermajority votes to consider legislation and increasingly to kill judicial and executive branch nominations.

    Reid said:

    Due to Republican obstruction, the de facto threshold for too many nominees to be confirmed has risen from a simple majority to a supermajority of 60 votes. On judicial nominees, Republicans’ obstruction is equally unprecedented. The nonpartisan Congressional Research Service confirms that President Obama is the only president in the last three decades whose highly qualified nominees have been forced to wait more than half a year from nomination to confirmation. There is no reason to delay qualified nominees for so long except delay itself, and it is little wonder we have a judicial vacancy crisis in this country.

    McConnell took to the Senate floor, TPM”s Sahil Kapur reports, to claim that Reid’s talk of reforming the filibuster amounted to intimidation. “Their view is that you had better confirm the people we want, when we want them, or we’ll break the rules of the Senate to change to the rules so you can’t stop us,” he said.

    It’s of course McConnell and his gang who have changed the rules. Their Party failed to win enough seats to control the Senate and lost a bid to take the White House. So they’re continuing their mission to obstruct, delay and start again. Reid is the one on solid ground here. Senate Republicans and their counterparts in the House of Representatives like things just the way they are.

  • 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.

  • May 14, 2013
    Guest Post

    by Norman J. Ornstein, Resident Scholar, American Enterprise Institute (AEI). Ornstein and Thomas E. Mann are authors of It’s Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism. 

    Few members of the Senate have professed more concern about dysfunction in the nomination and confirmation process than Sen. Lamar Alexander (R-Tenn.). Alexander is a wonk who cares about policy-making and problem solving. And, most importantly, it gets personal with Lamar -- he had his own unpleasant experience with the Senate's long-broken confirmation process when he came up as a nominee for Secretary of Education. Commendably, Lamar worked in a bipartisan fashion last year, with Sens. Susan Collins (R-Maine), Joe Lieberman (I-Conn.), Chuck Schumer (D-N.Y.) and others to streamline the process by removing a number of lower level executive nominees from the requirement for Senate confirmation.

    What has happened to that Lamar Alexander? His persona seems to have been kidnapped and replaced by partisan warrior Lamar Alexander, participating in a series of abuses of the confirmation process that are both denying a president elected by a wide margin from selecting his own people to serve and attempting to block agencies from being able to function by filibustering or applying blanket holds to clearly qualified nominees -- what Tom Mann and I have called the new nullification.

    We have seen the latter both with the NLRB, ever since Obama became president in 2009, and the Center for Medicare and Medicaid Services, the agency charged with implementing Obamacare, since the Affordable Care Act was enacted. Faced with the prospect of a National Labor Relations Board actually functioning and making decisions that reflected the majority, Republicans in the Senate filibustered to block any nominees, no matter how qualified, to prevent the agency from having a quorum. Frustrated after a long period of such behavior, Obama used recess appointments to get the agency working-- and then had to deal with a sweeping appeals court decision, written by the highly partisan judge David Sentelle, the same judge who fired competent and fair-minded Whitewater Independent Counsel Robert Fiske and replaced him with Kenneth Starr, outlawing almost all recess appointments. The decision is under appeal, but Alexander is calling for the removal of Obama-named commissioners, and also calling for them to be blocked from re-nomination in the future, before the court case has been finally litigated. 

  • January 22, 2013
    Guest Post

    by Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University. This post first appeared on Shane Reactions.

    Not being a psychiatrist, I don’t really understand why the President’s fairly modest efforts at gun policy reform seem to have utterly deranged some of his political opponents.  But talk of impeachment in connection with his gun-related “executive orders” is, to put it mildly, ridiculous.

    To put matters in context, it helps to understand “executive orders.” These are presidential directives – sometimes formally called “executive orders,” sometimes not – that are issued to help manage the federal government. There is no authoritative definition of “executive orders” that distinguishes them from “presidential memorandums,” “presidential proclamations,” or – as in the case of the George W. Bush first directive on military commissions – just “orders.” The Federal Register Act lumps them together with “presidential proclamations” as documents that, with some exceptions, must be made public.

    Although some news outlets reported that President Obama signed 23 executive orders relating to gun violence in America, he actually signed only three. Although they were called, “Presidential Memorandums,” two, at least, were indistinguishable from run-of-the-mill executive orders in that they applied to the heads of all executive departments and agencies. The other, addressed to a single agency, takes a form that would typically be called a “memorandum.”

    Executive orders, like any other form of presidential initiative, must be rooted in some form of legal authority. Some are issued in the President’s constitutional chief executive capacity, and set forth managerial requirements for specified federal operations. Some are issued pursuant to explicit authority delegated to the President by statute, or are issued as a way of complying with obligations Congress has imposed on the President or the executive branch more generally.