The Volokh Conspiracy

I wasn’t planning on blogging the story in the print edition of today’s New York Times (p. A15), reporting that the President may issue a constitutional signing statement “asserting that [the President] has the constitutional power to disregard . . . restrictions” contained in recently enacted legislation that would restrict his ability to transfer detainees from Guantanamo. There has been a fair amount of leaking during this Administration undertaken in an apparent effort to influence decisionmaking, and I assumed that this leak (originally reported by ProPublica) was made to embarrass the White House into foregoing the issuance of such a signing statement.  I figured that there was time enough to cover this story if the President actually issued such a signing statement.

But the following statement in the story caught my eye:

Early in his presidency, [President Obama] issued several signing statements that made relatively uncontroversial challenges. But he has not issued any since June 2009, when lawmakers of both parties expressed outrage over a statement he attached to a bill saying that he could disregard requirements imposed on certain negotiations with international financial institutions.

The online edition of the story included a hyperlink to a January 2010 article reporting that the Administration had adopted a new policy and that henceforth, the President would not issue signing statements “repeating claims of executive power that the White House has previously voiced.”  I discussed that story here.

For the record, the President has issued constitutional signing statements since June 2009. He issued a couple just this fall, this one about the Intelligence Authorization Act for FY10 (which I discussed here) and this one about the Coast Guard Authorization Act, of all things.  (The text of the most recent signing statement, which I haven’t blogged previously, is reproduced after the jump.)

The President’s recent constitutional signing statements are very similar to ones issued by both Presidents Clinton and George W. Bush, although he’s issued many fewer than either.  Although the Intelligence Authorization Act signing statement touches on a theme that that President Obama has addressed in previous signing statements (limits on Congress’s ability to require the Executive Branch to turn information over to it), in most respects, both address concerns that he personally has not voiced in previous signing statements.  Thus, they appear consistent with the policy reported in January 2010.  But it’s simply not the case that the President hasn’t issued any signing statements since June 2009.

UPDATE:  The Times is now reporting that the President’s aides are leaning against a signing statement. As I indicated, I think the link may have helped them lean in that direction, which I suspect was the motivation for it.
 
Another interesting development is that the ACLU has written a letter to the President “urg[ing]” him “to direct all federal agencies with instructions that the restrictions [on transfer of Guantanamo detainees] do not materially restrict the ability of DOJ, DHS, or the State Department to effect transfers from Guantanamo to the United States or to foreign countries,” because the funding restrictions literally only apply to the use of Department of Defense funds. The president could do so, of course, through a signing statement. The ACLU has a point, but this illustrates a corollary to Kerr’s Rule, which is that people’s enthusiasm for relying on technical legal distinctions is directly proportional to whether it achieves a policy goal they favor. I can’t imagine they’d embrace the distinction if Congress had in 2007 prohibited DoD from using its appropriated funds to engage in “enhanced interrogation,” for example.

Continue reading ‘The President’s Recent Signing Statements’ »

The 112th Congress will convene on January 5, 2011.   During his first two years in office, President Obama was at times frustrated by the slow pace of legislation he favored in Congress, but he ultimately had the necessary Democratic votes if he could muster them.  He now faces a solidly Republican House of Representatives, and no legislation will pass without truly bipartisan support. 

For a President who aspires to be a transformational leader in the mold of Ronald Reagan, it is surely a frustrating situation.  How can he continue to advance an ambitious policy agenda in the face of congressional opposition?

Obama is the third President in a row whose party lost control of Congress.  The prior two administrations thus provide a roadmap for a possible way forward.  As former presidential adviser Dick Morris recalled, “[a]fter he lost Congress in 1992, Bill Clinton . . . resorted to executive orders to maintain his momentum as president.  With Congress unwilling to pass anything he proposed, the president canvassed the administration for ideas that could be implemented by executive orders.”  President George W. Bush followed a similar course, although his administration also considered advancing his agenda by using regulations promulgated by executive agencies.  Call it “frustregulation”—when Congress is no longer in friendly hands, Presidents turn to those levers of power still available to them. 

President Obama’s staff undoubtedly began compiling ideas for similar efforts immediately after November 2, if not before.  Indeed, as Charles Krauthammer has noted, the Administration has already made use of regulations to implement initiatives that failed in the Democratic Congress.  The Department of Health and Human Services recently issued a final rule providing Medicare coverage for “voluntary advance care planning” during routine physicals, which is explicitly “based on the definition of ‘end-of-life planning’” (see p. 73406, column 3, of this final rule) and owes much to a provision of the President’s health care reform bill omitted from the final package after it touched off a political firestorm over “death panels.” And although the President’s favored environmental legislation failed, as Jonathan Adler noted, in late December, the Administration announced plans to set greenhouse gas emission limits on refineries and fossil-fuel power plants. So we may expect to see more in this vein as the legislative picture worsens for the Administration.

As a fairly recent alumnus of the Executive Branch, my purpose here is simply to note the phenomenon as we count down to the opening gavel of the 112th Congress, not to condemn it.  But this is becoming a regular feature of modern political life as the houses of Congress continue to change hands.

The President today announced that he would recess appoint James M. Cole as Deputy Attorney General.  His nomination has been pending since May–reportedly the longest delay in confirming a DAG nominee in 30 years, but in the context of nominations in the last decade or so (some of which have dragged on for years), an all-too-typical delay.  A synopsis of the controversy over the Cole nomination here. The President also recess appointed ambassadors to Azerbaijan, the Czech Republic, Turkey, and Syria (the last was controversial because some complained it was rewarding Syria’s bad behavior by sending an ambassador; there has been no ambassador to Syria since 2005).  My favorite of the current crop is the recess appointment of William Boarman to be Public Printer of the United States, mainly because you’d think you could get a printer confirmed without a kerfuffle, but no. Get the skinny here.  Eventually the national security implications of not having a confirmed Public Printer are grave enough that it forces the President’s hand.  The appointments will last until the end of the next session of Congress. 

The Senate rose sine die on December 22, so these are intersession recess appointments. Whether they are intersession or intrasession appointments doesn’t make a material difference here, because the Senate is out for two weeks until January 5, an amount of time that traditionally has been considered (by the Executive Branch, at least) sufficient even to make intrasession recess appointments. The main significance of the inter/intra distinction is that once the Senate rises sine die there’s no question that the Senate is in recess and so everyone isn’t focused on whether the duration of Congress’s adjournment is sufficient that it is a “recess” for purposes of the Recess Appointments Clause. That and the fact that when Congress has gone home for good there is no real mechanism for conducting “pro forma sessions,” which are thought by some to prevent the President from making recess appointments.  My and Steve Bradbury’s contrary view on pro forma sessions here.

Other VC coverage of President Obama’s recess appointments here and here.

In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.”  At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11.  Bradbury was (and for the remainder of the Bush Administration, would remain) the most senior official in the Office, but he had served as an Attorney-Adviser there under AAGs Mike Luttig and Tim Flanagan.  The memo codified and reaffirmed the Office’s traditional methods for preparing, reviewing, and issuing opinions. 

In July 2010, then-Acting Assistant Attorney General David J. Barron issued a memo entitled “Best Practices for OLC Legal Advice and Written Opinions.” In a gesture of continuity, the memo states that it “updates” (rather than “supersedes” or “replaces”) the May 2005 memo. See 2010 Memo at 1 n.*.  It expands the scope of the 2005 Memo explicitly to include informal advice as well as formal opinions; alters somewhat the process of review and comment for draft opinions (although it’s unclear how much practical effect that has); and codifies the presumption favoring publication that I observed in practice.

I’ve prepared a redline comparing the two documents here.  Because there is nothing people crave on the eve of a major holiday so much as a lengthy missive on the minutiae of the operations of a small government office, I have more detailed thoughts on the differences between the memos after the jump. 

Continue reading ‘OLC’s “Best Practices” In Giving Legal Advice’ »

The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel.  OLC hasn’t had a confirmed head since July 2004. 

NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner for that post. And her name had been making the rounds locally for a couple months before that, making this a very long-running trial balloon indeed.

The Journal reports that “[s]everal conservatives contacted Tuesday . . . warned her nomination could run into trouble if Republicans object to her shortage of national-security experience.” National security law has certainly been an increasingly important part of OLC’s docket since 9/11. But while Jack Goldsmith had experience in national security law before coming to OLC, Jay Bybee (who was confirmed in October 2001) did not. (Of course, some critics would say that Bybee’s lack of preexisting experience in the area played a role in the Office’s issuance of national security opinions that have been controversial.)  Before 9/11, OLC heads frequently had no significant pre-existing experience in that area. 

The Journal reports that the Obama Administration will name Caroline Krass as the Principal Deputy in the Office. That may help to blunt the criticism that Ms. Seitz lacks national security experience: Caroline (who was a classmate of mine in law school) has extensive experience in national security law, and during my tenure at OLC, she was one of the foremost OLC experts in the area.  And she’s worked in national security while in her current position in the White House.

On a day when traffic to read about the substantively important decision in Virginia v. Seblius is so heavy that the page is running very slowly, this seems like a great time to post on a subject of interest to practically no one at all. But hey, I amuse myself.

Three apparent new relists:

Swartout v. Cooke, 10-333, CA9 (Reinhardt, Wardlaw, M. Smith), which presents the question whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions. Orin may be along shortly to note that given the identity of the author, the Justices are probably taking a close look at this one.

Blaine Lafler v. Anthony Cooper, 10-209, CA6 (Kennedy, Cole, Jordan (DJ)), presents the question whether a state habeas petitioner is entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

Clifton Terelle McNeill v. United States, 10-5258, CA4 (Traxler, Niemeyer, Kiser (dj)), presents the question whether the plain meaning of “is prescribed by law” which ACCA uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.

I say “apparent” because after a couple weeks of promptly posted detailed updates on the Court’s automated system telling callers when they could expect an update about a case, today, everything just says “pending” with no end date. Hopefully, that just reflects the fact that the Clerk’s office is taking a little more time to get the dockets updated, since the Court won’t have grants again for the better part of the month (until January 7 or 10, depending on whether it’s doing Friday grants then), rather than a change in practice or policy.

Still no action on hardy perennials Aldermann v. United States, 09-1555, and Beer v. United States, 09-1395, or on newcomers Ryan v. Schad, 10-305, and Missouri v. Frye, 10-444. The last entries for Beer and Schad are for the 12/3 Conference, which suggests they weren’t relisted at that Conference; ordinarily, when the last entry is for a long-passed conference, it suggests the case is being held for another case or some external event, but I don’t know what that might be. Suggestions?

We finally got action on Allen v. Lawhorn, 10-24, a habeas case presenting the question whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant was “contrary to” clearly established Supreme Court precedent.  The case had been relisted 8 times.  Justice Scalia, joined by Justices Thomas and Alito, dissented from the Court’s decision not to grant certiorari and summarily reverse, concluding that the Eleventh Circuit’s decision was “patently wrong.” The closing paragraph is noteworthy because it reflects a sentiment that explains a lot of the Court’s summary reversals, and indicates lower-court judges are being “lawless[],” so I reproduce most of it below.

I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand.

Today the D.C. Circuit (panel of Ginsburg, Tatel, Brown) denied the request of those challenging the EPA’s suite of greenhouse gas regulations to stay the regulations pending the outcome of the litigation. The order is available here.

Last Term, the Supreme Court vacated former executive Conrad Black’s conviction on the ground that the “honest services” fraud instructions given in his case were invalid under Skilling v. United States, and remanded for a determination whether the error was harmless. On remand, the Seventh Circuit (Posner, Kanne, and Sykes–under circuit procedure, the same panel that heard his first appeal) reversed two fraud counts, but affirmed another, as well as an obstruction count.

Black filed a petition seeking only rehearing en banc–not panel rehearing. The court called for a response (indicating that, under Seventh Circuit procedures, one or more judges had requested one), and the government filed one. Because neither the Federal Rules of Appellate Procedure nor the Seventh Circuit rules provide for a reply brief as of right, Black filed it as an attachment to a motion requesting leave to file a reply. The motion was denied two days later (yesterday) in a single-judge order. The author of the order was Judge Posner, author of both of the Seventh Circuit’s opinions in the case.

Former Seventh Circuit clerks, chime in here, and I’ll update this post to correct any misstatements of Seventh Circuit procedures.

Under Seventh Circuit procedures, motions for leave to file a reply are considered “nonroutine,” and, after review by a staff attorney, are submitted to “the motions judge, and if necessary, the motions panel.” The Seventh Circuit’s written procedures don’t specify how the motions judge or panel are assigned. I would have thought that, following the practice for “duty” judges generally, the judge or judges randomly assigned to duty the day the motion was considered would pass on it. But (Seventh Circuit cognoscenti, a little help here please) it may be that motions involving an already-argued case are assigned to the presiding judge for that case, because Judge Posner also wrote the one-judge order denying leave to file a reply brief on rehearing back in 2008, the first time the court had the case (although the then-counsel was seeking a week to prepare the brief, and the Seventh Circuit makes a point of moving pretty expeditiously on rehearing petitions).

The Seventh Circuit does not have a blanket prohibition on reply briefs supporting en banc petitions; indeed, it has received such briefs on quite a number of occasions in the past. See, e.g., Smothers v. McCaughtry, 2005 U.S. App. LEXIS 22923 (Oct. 19, 2005); Chicago v. Dept of Treasury, 2004 U.S. App. LEXIS 28002 (Dec. 21, 2004); Manning v. Miller, 2004 U.S. App. LEXIS 7454 (Apr. 16, 2004); Weinberg v. City of Chicago, 320 F.3d 682 (2003). It also receives amicus briefs at the en banc stage, although it emphasizes they must be timely because the court likes to move quickly. See Fry v. Exelon Corp., 576 F.3d 723 (2009). The tendered reply brief here was only six pages long, arrived the next business day after the government’s opposition, and to my eyes appears to exclusively respond to matters in the government’s opposition, and not simply to repeat stuff already covered in the petition.

There is certainly nothing in the Seventh Circuit procedures that prohibits a member of a panel from acting as the sole judge determining whether his colleagues will receive a reply brief supporting an en banc petition seeking review of his opinion. Indeed, comparing the identity of the author of the two orders in this case with the author of the two opinions in it, that may be the court’s preferred practice. (UPDATE: A former Seventh Circuit law clerk emailed me to confirm that “motions to permit a reply, or for an extension of time to file a petition for rehearing, are routinely referred to the author of the panel opinion for decision.”) But it may not be best for a member of the panel whose decision is under review to be the sole gatekeeper determining whether his colleagues will receive additional argument on whether his panel opinion was correct.

The tendered reply brief didn’t go out of its way to curry favor with the panel members; in response to the government opposition’s repeated references to the panel’s unanimity, the reply brief noted (p.4) “[t]he same unanimous panel previously ruled against the defendants on two independent grounds, neither of which garnered a single vote in the United States Supreme Court.” But I suspect denial of the motion had more to do with Judge Posner’s belief that judges “have heavy caseloads” and so “need to minimize extraneous reading,” as my co-conspirator has discussed with respect to amicus briefs. Maybe so, but it still might be preferable for a judge other than a panel member to determine when the court has had enough argument on an en banc petition.

A bunch of new relists today, and the beat goes on for the group of perennial favorites.

PLIVA, Inc. v. Mensing, 09-993/ Actavis Elizabeth LLC v. Mensing, 09-1039, CA8, present the question whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the statute’s requirement that a generic drug’s labeling be the same as the FDA-approved labeling for the listed (or branded) drug.  The Court CVSG’d, and the SG recommended denial, but the Court needs more time.

Ryan, Dir., Ariz. Dept of Corrections v. Edward Harold Schad, 10-305, CA9, presents the questions (1) Whether, by awarding a defendant an evidentiary hearing on diligence and a simultaneously hearing on the merits, despite his lack of diligence, the Ninth Circuit’s opinion conflicts with Court precedent and the AEDPA; and (2) whether the Ninth Circuit’s opinion conflicts with Court precedent and AEDPA, by remanding the case for an evidentiary hearing without analyzing whether a colorable ineffective assistance of counsel claim was presented or considering the claim on the merits, when the district court considered the claim in light of the new evidence the defendant presented and concluded it showed neither deficient performance nor prejudice.

Talk America Inc v. Michigan Bell Telephone Co., 10-313, CA6, presents the question whether a public service commission was barred from requiring incumbent local exchange carriers (ILECs) to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs’ obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. This is together with . . .

Isiogu v. Michigan Bell Telephone Company, 10-329, CA6, presents the questions (1) whether the Telecommunications Act of 1996 and the Federal Communications Commission’s Triennial Review Remand Order permit incumbent local telephone companies to charge competing telephone companies rates for entrance facilities used for interconnection; and (2) whether the lower court provided the appropriate level of deference to the FCC’s interpretation of its regulations.

Missouri v. Frye, 10-444, Mo. Ct. Appeals, presents the question whether a defendant who validly pleads guilty successfully can assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel’s failure to communicate a plea offer, he would have pleaded guilty with more favorable terms.

Let me know if you are aware of others.

Williams v. Hobbs, 09-10382, which has been relisted seven times, I believe, and which has been much discussed here, was the subject of another of Justice Sotomayor’s dissents from denial of certiorari, which was again joined by Justice Ginsburg.  Webster v. United States, 10-150, relisted last week, was denied without comment today. Wal-Mart v. Dukes, 10-277, also relisted last week, was of course one of today’s two grants.

Other than that, all of the old favorites are back for another week on the hit parade: Alderman v. United States, 09-1555, Beer v. United States, 09-1395, and Allen v. Lawhorn, 10-24. The one wrinkle is that for Beer, alone among all the relists today, the Court’s automated update line just says the case is “pending” without also saying that “an update may be available December 13, 2010 after 10:15am.”

(And thanks to the great Roy Englert for tipping me off to the fact that the Court’s automated phone line is generally more up-to-date than the online docket.  Go figger.)

UPDATE (12/7, 3:24 pm).  I’ve checked the online dockets, and the dockets for all of the above except Schad and Beer  reflect they’ve been relisted for the 12/10 Conference; for both of those cases, the last docket entries simply state that the cases are on for the 12/3 Conference.  My notes from yesterday indicate that the automated recording for Schad indicated that there would be an update available on 12/13, but today, the recorded update for both Schad and Beer simply says they’re “pending,”  and the dockets for both indicate that the cases haven’t been relisted yet.  Curious.

A couple of important apparent relists today.

First, a closely watched labor class action case: Wal-Mart v. Dukes, 10-277, from the en banc Ninth Circuit (over dissents by Kozinski and Ikuta), presents the questions (1) whether (and under what circumstances) claims for monetary relief can be certified under Fed. R. Civ. P. 23(b)(2), which petitioners argue is by its terms limited to injunctive or corresponding declaratory relief; (2) whether the lower court’s order certifying a class conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Rule 23.

Second, a Medicare case, Maxwell-Jolly v. Santa Rosa Memorial Hospital, 10-283, also from the Ninth Circuit, involving whether Medicaid providers may maintain a cause of action to enforce 42 U.S.C. § 1396a(a)(3)(A) by asserting that the provision preempts a state law that reduces reimbursement rates.  (UPDATE: This is almost certainly being held for the CVSG in Maxwell Jolly v. Independent Living Center, No. 09-958, which has been pending since 5/24.) 

Third, a federal capital case from the Fifth Circuit, Webster v. United States, 10-150, which presents questions about whether the Supreme Court has certiorari jurisdiction to review the court of appeals’ denial of a request for authorization to file a second or successive collateral attack under 28 U.S.C. § 2255.  Because Congress purported to eliminate certiorari review of denials of authorization to file a second or successive collateral attack, and “jurisdiction-stripping” statutes are always controversial, I suspect one or more Justices is preparing a dissent from denial of cert.   Or perhaps someone is penning a concurrence in denial, noting the SG’s concessions in its brief in opposition (see p17) about the various mechanisms petitioner still has for review of his claims by the Supreme Court.

Those are the relists among the cases I have been watching. Anyone aware of any others?

Finally, it looks like the hardy perennials Beer, Alderman v. US, Williams v. Hobbs, and Allen v. Lawhorn , discussed here, here, and here, have been relisted once again. The Court has had the record in Allen v. Lawhorn for over a month, so it is about time for a summary reversal (or a dissent from denial of cert at least) to be forthcoming.

Harper v. Maverick, a relist noted last time, turned into Justice Alito’s dissent from denial of cert issued today.   In other news, Gamache v. California, 10-5196, which was the subject of Justice Sotomayor’s second opinion respecting denial of cert of the term today (the first was denominated a dissent), had been relisted six times (and the record requested after the third relist).  Both Sotomayor and Alito each have two opinions respecting denial of cert this term (mostly dissents); and Justice Ginsburg has one that Sotomayor joined.

The Austin American-Statesman is reporting that Greg Coleman, the former SG of Texas and one of the leading lights of the Supreme Court bar, has died in light plane crash off the coast of Florida. The paper reports:

Coleman, 47, was piloting the Piper Malibu when it crashed into a bayou while approaching the Destin Airport landing strip about 7:40 p.m. on a foggy night, according to the Okaloosa County Sheriff’s Office.

Two passengers also were killed: Coleman’s mother-in-law Charlene Black Miller, 63, and uncle James Patrick Black, 58.

According to the Destin Log newspaper, Coleman’s wife was waiting at the Destin airport for his return from Texas, where he had flown to pick up Miller and Black. The family was attending their annual Thanksgiving holiday in Destin.

Greg clerked with my wife. He was a good guy and a great lawyer. This is a terrible loss. Safe travels to our readers.

The Court may have relisted in Harper v. Maverick Recording Company, 10-94, out of the Fifth Circuit, which presents the question “Should the inadvertent innocent infringer defense to copyright infringement be eliminated for all Internet music downloading?”

I say they “may” have relisted because it’s possible that the Court is holding the case for Global-Tech Appliances v. SEB, S.A., 10-6, granted on October 12, which presents the question whether the legal standard for the state of mind element of a claim for actively inducing patent infringement is “deliberate indifference of a known risk” that an infringement may occur, or “purposeful, culpable expression and conduct” to encourage an infringement. But since that’s patent infringement, and the question presented is not that close, it’s not self evident that they’d hold Harper for it. The situation will become clearer over the next week if the docket is updated (if it’s a “hold,” the last entry will continue to be the 11/12 conference).

Incidentally, the Court appears once again to have relisted Alderman v. US (involving a commerce clause challenge to a criminal prohibition on felons possessing body armor), Beer v. United States (involving salary adjustments for federal judges), Allen v. Lawhorn and Williams v. Hobbs (both ineffective assistance of counsel claims), all of which I blogged here. Alderman may be on course for a dissent from denial of cert. I wouldn’t be surprised if Allen v. Lawhorn or Williams v. Hobbs yielded a summary reversal, as Wilson v. Corcoran did, but I don’t know if the alleged error in the cases is clear enough to support summary reversal; it’s just that ineffective assistance claims are frequently fodder for summary reversals.

A lot of ink has been spilled over the years about how much the Free Exercise Clause should keep courts from addressing employment disputes between houses of worship and clergy. Because such employment disputes frequently hinge on matters implicating faith, courts are often loathe to become involved. Such concerns arise most obviously when a house of worship terminates clergy because of disagreements over theological issues.

But some courts have declined to entertain a suit even where a discharged member of the clergy sues the former employer for defamation arising from statements related to the employment dispute. The Virginia Supreme Court wrote in 2001 that “most courts that have considered the question whether the Free Exercise Clause divests a civil court of subject matter jurisdiction to consider a pastor’s defamation claims against a church and its officials have answered that question in the affirmative.” It continued:

plaintiff’s allegations of defamation against the individual defendants cannot be considered in isolation, separate and apart from the church’s decision to terminate his employment. * * * [I]f a civil court were to exercise jurisdiction [over] the plaintiff’s [lawsuit] under these circumstances, the court would be compelled to consider the church’s doctrine and beliefs because such matters would undoubtedly affect the plaintiff’s fitness to perform pastoral duties and whether the plaintiff had been prejudiced in his profession. Neither the Free Exercise nor [the] Constitution of Virginia permits a civil court to undertake such a role.

Cha v. Korean Presbyterian Church of Washington, 553 S.E.2d 511, 516-517 (Va. 2001), cert. denied, 535 U.S. 1035 (2002); see also, e.g., Thibodeau v. Am. Baptist Churches, 994 A.2d 212, 222 (Conn. App. 2010) (“The plaintiff’s defamation count * * * would require an impermissible inquiry into the defendant’s bases for its action and its ground for evaluating ministers.”); Heard v. Johnson, 810 A.2d 871, 883 (D.C. 2002) (under “most circumstances, defamation is one of those common law claims that is not compelling enough to overcome First Amendment protection surrounding a church’s choice of pastoral leader”).

Cooke v. Tubra, 10-559, petition filed October 22, involves a dispute between the International Church of the Foursquare Gospel and the former interim pastor of the Vernonia, Oregon, congregation of the church, Tim Tubra. (Yes, that Vernonia.) After a rocky start, the church fired Tubra after a dispute over the propriety of a $3,000 withdrawal he made from church funds. The church then read a letter to the congregation saying that “it is now evident that there has been, to some extent, a financial misappropriation by [the] former pastor,” and one church employee emailed another that Tubra had “demonstrated a willingness to lie.” Tubra sued the church for defamation, and a state court jury awarded him damages. The trial court granted the church’s motion for judgment notwithstanding the verdict on the grounds that the First Amendment “operated to deprive the court of jurisdiction over the defamation claim.”

The Oregon Court of Appeals reversed and remanded, holding that the First Amendment is not necessarily a bar “[i]f * * * the statements * * * do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose.” Here, “the alleged defamatory statements—that the pastor had misappropriated money and had demonstrated a willingness to lie—would not ‘always and in every context’ be religious in nature.” Tubra v. Cooke, 225 P.2d 862, 873 (Ore. App. 2010). The Oregon Supreme Court summarily denied review. 225 P.2d 221 (Ore. 2010).

The case presents some interesting issues. The particular statements at issue are not overtly religious (although the letter in question does begin, “Greetings in the powerful and unchanging name of Jesus Christ”), but many courts, including the Cha and Heard courts, have explicitly said that does not matter, because they have concluded that the Free Exercise Clause prohibits them from becoming involved in disputes involving church discipline and statements made among church members. Because the last opinion in this case was from a state’s intermediate appellate court, this case may fly under many people’s radar. The brief in opposition is currently due Nov. 29.

For a short article on the case from the ABA Journal, check out this:

(A nonlawyer friend of mine is involved in the case, but I have no interest in it other than as a Supreme Court nerd.)

Of last week’s eight relists (discussed here), two were denied today: Stroud v. Blount and Wong v. Smith, the latter over the dissent of Justice Alito (joined by the Chief and Justices Scalia). Those were both cases on their first relist. The rest all appear to have been relisted yet again, so Alderman is on its second relist (Dismuke, as noted in the comment thread, was relisted once on 10/15, probably to consider a supplemental brief that petitioner had filed, but now is probably a hold for Sykes v. United States, 10-11311, granted 9/28); Beer v. United States, Allen v. Lawhorn, Wilson v. Corcoran, and Williams v. Hobbs are all on their fourth (!) relist. (See my last post, linked above, for the questions presented.) Since my last post, the Court has called for (and received) the record on Allen v. Lawhorn.

Expect to see some writing from the Court on those soon. Wilson, Allen and Williams may be candidates for summary reversal, but it’s hard to know whether they are really serious candidates without examining the pleadings.

In addition, it looks like the court relisted for the first time in at least two more cases today.

NFL v. Williams, 09-1380, CA8, which presents the question whether, when federal subject matter jurisdiction is not in question, defenses that require analysis of a collective-bargaining agreement may substantively preempt state-law claims under Section 301 of the Labor-Management Relations Act, 29 USC § 185(a), as the Seventh and Tenth Circuits have held, or whether such defenses are categorically irrelevant to preemption analysis, as the Eighth Circuit here and the Ninth Circuit have held.

Allshouse v. Pennsylvania, 09-1396, PA S.Ct., involving whether a child’s statements in an interview with a child protection agency worker investigating suspicions of past abuse are “testimonial” evidence subject to the demands of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36 (2004).

Let me know if you’re aware of others.

UPDATE: Checking the docket today, I see that the Court hasn’t relisted Allshouse for the November 5 conference, although it has relisted each of the others. Looks like that case is simply being held for another case–one possibility is Michigan v. Bryant, 09-150, although I think there may be another case kicking around.

I’m confident that this is only a partial list of cases the Court has relisted.  If you know of others, I’m all ears. 

Four cases on their first relist:

Wong v. Smith, 09-1031, CA9. The Court called for the record on 9/28. The case involves whether 28 U.S.C. § 2254(d) and the Supreme Court’s “clearly established law” permit federal habeas corpus relief on a claim that a state judge unconstitutionally “coerces” jurors to return a guilty verdict by identifying specific evidence in the case as important and instructing them to consider it.

Alderman v. United States, 09-1555, CA9, involves the constitutionality of 18 USC § 931. (Disclosure: This petition was filed by the UVA School of Law Supreme Court Litigation Clinic, with which I’m affiliated.)

Stroud v. Blount, 09-1572, Ill. App., involves the validity of a punitive damages award under BMW v. Gore, and whether the lower court erred in rejecting the applicability of Noerr-Pennington doctrine (which, as an aside, is a great thing to cite when you need to induce puzzled looks).

Dismuke v. United States, 10-109, CA7, involving whether a conviction for attempting to flee or elude a police officer in a motor vehicle under only the second prong of such a fleeing statute constitute a “violent felony” under the residual clause of section 924(e)(2)(B)(ii) of the Armed Career Criminal Act.

Then we have four cases that appear to be on their third relist. As a statistical matter, these seem likely to produce dissents from denial or possibly a summary reversal.

Beer v. United States, 09-1395, CAFed. Relisted 9/27, 10/8, apparently 10/15. Whether the Compensation Clause of Article III prevents Congress from withholding the future judicial salary adjustments established by the Ethics Reform Act of 1989.

Williams v. Hobbs, 09-10382, CA8, relisted 9/27, 10/8, 10/15. Looks like an ineffective-assistance claim in a capital case. (Thanks to commenter Scott Braden for contributing this one.)

Allen v. Lawhorn, 10-24, CA11, Relisted 9/27, 10/8, apparently 10/15. Whether, under 28 U.S.C. §2254(d)(1), a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant was “contrary to” clearly established precedent of this Court.

Wilson v. Corcoran, 10-91, CA7, relisted 9/27, 10/8, apparently 10/15; the court called for the record on 10/1. 1. Does a state capital defendant have a constitutional right to a sentencing decision informed in no way by facts that are neither elements of a crime of which he stands convicted or aggravating circumstances authorized by statute? 2. If so, may a federal court grant habeas relief based on its own finding that a state trial court improperly considered non-statutory aggravators when imposing a sentence of death, contrary to the determination of the state supreme court on that issue?

UPDATE: Cert was denied on Wong v. Smith and Stroud v. Blount on November 1; the former drew this dissent.

Or so reports the Associated Press (available in the Washington Post).

The justice said the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.”
* * * * *
The better course, Alito said, is to follow the example of more experienced justices like Antonin Scalia, Clarence Thomas and the recently retired John Paul Stevens. None has attended in several years.

“So I doubt that I will be there in January,” Alito said.

File under “surprising to absolutely no one.”

In other Executive-Legislative relations news, today the White House announced that President Obama was using the second “pocket veto” of his presidency to disapprove H.R. 3808, the “foreclosure documents” bill.  The official name of the bill is, if I am not mistaken, the Interstate Recognition of Notarizations Act of 2010, which has to set a new record for most ungainly name that does not yield a cool acronym (e.g., USA-PATRIOT, PROTECT Act, etc.)

Article 1, Section 7 of the Constitution states:

If any Bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a Law, in like manner as if he had signed it, unless the Congress by their Adjournment prevent its return, in which case it shall not be a Law.

Pocket vetos raise cause even more friction between the branches than the regular variety of veto because they turn on whether “Adjournment prevent[s]” a bill’s return.  But Congress has designated agents to receive returned bills during recesses, and so Members of Congress often argue that pocket vetos are ineffective.  In an effort to make sure such bills are truly dead, presidents have taken to performing “protective returns,” whereby they return the pocket-vetoed bill with a “memorandum of disapproval” for the stated purpose of “leav[ing] no doubt that the bill is being vetoed” (to quote President Obama’s first Memorandum of Disapproval). 

The $64,000 question is what happens if Congress purports to override a pocket veto, and someone has standing to get the issue into the courts.  But this is a relatively good time for the President to attempt such a gambit, at the beginning of a six-week recess, with congressional majorities of the President’s own party preoccupied with the coming midterm elections.

In my efforts to bore readers into submission, I’ve blogged a fair amount here about presidential use of “constitutional signing statements.” As then-Assistant Attorney General Walter Dellinger explained early during the Clinton Administration, such signing statements are frequently used to “express[] the President’s intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality).”

As I’ve discussed previously, earlier this year, President Obama discontinued the use of “constitutional signing statements” in response to the July 2009 kerfuffle with Congress (recounted here). It was reported that he would not stop construing laws to avoid conflicts with Executive Branch positions about the President’s powers; he’d just stop publicly announcing that fact in signing statements.

Well, some things in the Intelligence Authorization Act for FY 2010 apparently raised sufficient concerns that the President departed from his prior practice and he issued another constitutional signing statement today.

Today’s signing statement was of a common type: expressing the understanding that language in a statute providing for disclosure of information to Congress would be construed in manner consistent with the President’s duty to safeguard confidential information. See the testimony of this disreputable hack at pages 10-11 for more on this type of signing statement. 

Here is an excerpt of President Obama’s statement:

In a March 15, 2010, letter to Congress, the Department of Justice summarized my Administration’s understanding of a number of provisions. In particular, section 405 establishes an Inspector General of the Intelligence Community in the ODNI. In accordance with longstanding executive branch policy, my Administration understands section 405′s requirement that the Inspector General make an immediate report to congressional committees regarding investigations focused upon certain current or former IC officials as not requiring the disclosure of privileged or otherwise confidential law enforcement information. Moreover, the whistleblower protection provisions in section 405 are properly viewed as consistent with President Clinton’s stated understanding of a provision with substantially similar language in the Intelligence Authorization Act for Fiscal Year 1999. See Statement on Signing the Intelligence Authorization Act for Fiscal Year 1999: Public Papers of the Presidents of the United States, William J. Clinton, 1998 (p. 1825).

One of the common defenses of President Bush when he was being pilloried for his use of signing statements was that his statements were substantively indistinguishable from those of his predecessors. President Obama is taking no chances on that score. As with his signing statement of another bill during June 2009 (where he invoked a similar signing statement by President Reagan), today’s signing statement invokes a similar statement by President Clinton.

As suggested by the testimony above, President Obama could have found a more recent precedent among those issued by his immediate predecessor.  But that may not be a comparison that the Administration is trying to encourage.

As some of you know, for a few years (with a big hiatus when I was in the gummint) I have done semi-humorous and often factual Supreme Court Term-end wrap-ups.  Well, I did my fourth this year, but because of a busy summer (and fall) at my day job, it looks like it won’t be in print until after the First Monday in October. 

As a matter of principle, I feel like we can’t start the new Term until we have wrung whatever comedic value we can from the old.  So here is a link to the final draft of What Were They Thinking – The Supreme Court In Revue, October Term 2009–my first ever with a visual aid.

In fact, this is actually a longer version than what will ultimately appear in print. Because electrons are cheap, this version includes a section that I deleted from the version that went to the ‘Bag. So this is sort of the Bootleg Series version of the article. This is also your opportunity to email me with (kindly worded) comments, so I don’t go to print with egregious misspellings (see p.446, n.25).

(This may also answer the question that has been on the lips of both of my readers: Where has Elwood been?)

In late June, I posted on the Supreme Court’s recent decision in Morrison v. National Australia Bank, which included a very full-throated reaffirmation of the presumption against extraterritorality.  I noted in my post that “[t]he Court’s opinion has implications for a petition that the Court considered at its private conference yesterday, British American Tobacco Co. v. United States, 09-980, involving whether civil RICO applies extraterritorially to a foreign defendant in DOJ’s long-running suit against the tobacco industry.”  I said that “[i]t may be that the Court simply decides to grant, vacate, and remand in light of” Morrison.

Well, shows what I know.  The Court denied cert a few days later.  Petitioner’s lawyer petitioned for rehearing, asking the Court to GVR the case for consideration in light of Morrison.  The rehearing petition argued:

Not only does Morrison invalidate the rationales underlying the D.C. Circuit’s extraterritoriality decision, but it also repudiates the legal authorities on which the lower courts relied[.]
* * *
In light of Morrison, there is a virtual certainty — far more than merely the requisite ‘reasonable probability’ — that the D.C. Circuit would reject the premises underlying its decision to use the ‘effects’ test (a) to measure RICO’s extraterritorial reach, and more generally (b) to disregard the presumption against extraterritorial application of U.S. laws.

On September 3, the Court denied rehearing.

Today, just over three weeks later, the Second Circuit held in Norex Petroleum v. Acess Industries that, in light of Morrison, civil RICO does not apply extraterritorially, and that even the fact that “some domestic conduct occurred cannot support a claim of domestic application.”  Slip op. 7.   That is at least in tension with the D.C. Circuit at issue in BATCo, United States v. Philip Morris, where the D.C. Circuit concluded that RICO applied to foreign conduct with domestic effects.

It will be interesting to see what comes of this.

(And, as noted in my earlier post, “I was among the small army of people who filed an amicus brief” supporting BATCO.)

Another member of the Obama Administration’s “beachhead team” is leaving OLC.

About one month after Acting Assistant Attorney General David Barron announced that he was returning to Harvard Law School, Deputy Assistant AG Marty Lederman has announced he’s leaving the Office in August and will return to Georgetown University Law Center this fall.

I understand that Marty has been doing a lot of terrorism-related issues for OLC–particularly matters involving detention of alleged enemy combatants.  In addition, he has signed two opinions, one concluding that two criminal prohibitions created by the Matthew Shepard Hate Crimes Prevention Act are constitutional, and one concluding that provisions of the Ronald Reagan Centennial Commission Act of 2009, which provided that members of Congress would serve as members of the Commission, would raise “constitutional problem[s]” under the Appointments Clause, the Ineligiblility Clause, and the separation of powers.

The latter opinion appears to have provided the basis for one of President Obama’s signing statements, in which he said that members of Congress “will be able to participate only in ceremonial or advisory functions” of the Ronald Reagan Centennial Commission, and not “matters involving the administration of the act, in light of the separation of powers and the Appointments and Ineligibility Clauses of the Constitution.”

Marty signed the second-lowest number of opinions among his cohort of DAAGs, edging out only Jonathan Cedarbaum, the new acting head of OLC (who signed only one opinion as DAAG; two if you count his testimony to Congress on the Virgin Islands’ proposed constitution, which is published on OLC’s website).  But that is likely only a partial measure of Marty’s output.  DAAGs frequently also write opinions that are signed by the AAG or Acting AAG; David Barron signed 9 full-blown opinions by my count, far more than any of the other DAAGs during that time.  But it’s impossible to identify from publicly available materials which additional opinions Marty might have written that David Barron signed.  UPDATED in response to a comment (5:51pm EDT): And yes, it’s a possibility that Marty signed some classified opinions too, although there are many fewer of those than unclassified opinions.

So the New York Times is reporting that President Obama will recess appoint Dr. Donald M. Berwick to be administrator of the Centers for Medicare and Medicaid Services. The agency has been without a permanent administrator since October 2006. The Times reports:

The recess appointment was somewhat unusual because the Senate is in recess for less than two weeks and senators were still waiting for Dr. Berwick to submit responses to some of their requests for information. No confirmation hearing has been held or scheduled.

Looks to me like the Senate went out for an intrasession recess on July 1 and will reconvene on July 12. That’s 11 days under the counting method employed by the Justice Department. While it’s on the aggressive end because it’s relatively short, there certainly are a number of precedents for recess appointments during intrasession recesses of that duration–including, if memory serves, President George W. Bush’s recess appointment of Judge Pryor to the Eleventh Circuit. President Clinton made one recess appointment during a 10-day recess, one during an 11-day recess, and 16 appointments during a 12-day recess. I believe that President George H.W. Bush made one recess appointment during a 13-day recess (although the shortest one I can find at this late hour is 17 days). See the government’s brief in opposition in Miller v. United States (especially pp. 26-27 n.5) and its opp. in Franklin v. United States (pp. 29-30) for more.

It is certainly not without controversy, however; Attorney General Daugherty said in dicta in one opinion that an adjournment for “5 or even 10 days” would be too brief to constitute a recess for purposes of using the Recess Appointments Clause.  But the Executive Branch (unsurprisingly) has been walking away from the Daugherty opinion  pretty much ever since.  And that is to say nothing about the considerable academic writing on the subject, much of which has been critical of intrasession recess appointments.  See, e.g., Michael Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487, 1487, 1562 (2005) (stating that “one-month recesses seem too short” but acknowledging that the “prevailing interpretation” of the Recess Appointments Clause “allows the President to make recess appointments . . . during intrasession recesses of ten days and perhaps of even shorter duration”).

See here for Jonathan Adler’s post on the President’s last round of recess appointments, back in March.

I have long thought that if the Court invalidated any provision of Sarbanes-Oxley in Free Enterprise Fund v. PCAOB, 08-861, it would base its decision on the Act’s dual good-cause removal restrictions for Board members. First, because that was the strongest claim as a matter of doctrine. But also because doing so wouldn’t break much china. As the Court noted today in doing just that, “[t]he parties have identified only a handful of isolated positions in which inferior officers might be protected by two levels of good-cause tenure.”

Free Enterprise Fund thus reminds me a bit of United States v. Lopez, 514 U.S. 549 (1995), in which the Court invalidated the Gun Free School Zones Act of 1990 on the ground it exceeded Congress’s Commerce Clause authority. The offense at question in Lopez was charged fairly infrequently, and thus the Court could warn Congress of the limitations on its power in a case yielding a minimum of immediate disruption.  The same is true here. Aside from some administrative law judges identified by counsel for PCAOB, who might be subject to two layers of for-cause removal restrictions, today’s opinion won’t have much immediate effect outside of the PCAOB. It would have been far more disruptive if the Court would have held for F.E.F. on one of the other grounds it advocated (e.g., that the Board members were principal officers; that a multi-member body cannot be the “head” of a department for Appointment Clause purposes). 

The comparison to Lopez is also apt because it’s the first time the Court has invalidated a law on this basis in a while.

UPDATE:  Over at Balkinization, Prof. Rick Pildes has an excellent post that is in a similar vein:

I view Chief Justice Roberts’s opinion * * * as a symbolic victory for the “unitary executive branch” view of the Presidency, but as little more than symbolic. The decision has no practical effect at all on the Sarbanes-Oxley Act; the SEC and the Board that administers the Act will go on as before. Indeed, lost in the headlines will be the fact that the Court actually rejected all the most expansive constitutional challenges to the SEC and to SOX. It accepted only the most narrow challenge * * * .
* * * * *
Moreover, despite the headline of “Court holds SOX unconstitutional,” the decision is also a loss on many fronts to the “unitary executive branch” view.

The “Honest Services” fraud cases are getting all the attention.  But I think the relatively little-noticed decision in Morrison v. National Australia Bank, 08-1191, may be as significant (although I have my doubts, as set forth below, about its potential long-term impact).

 The case involved a claimed securities fraud scheme that mostly occurred in Australia (with some US-based conduct), and presented the question whether section 10(b) of the Securities Exchange Act of 1934 (and Rule 10b-5 thereunder) provides a cause of action for foreign plaintiffs to sue foreign and American defendants for misconduct in connection with securities traded on foreign exchanges.  The Court answered that question with an emphatic “no.” 

Justice Scalia delivered the opinion of the Court, which was joined by the four more conservative Justices.  Justice Scalia loves bright lines, so unsurprisingly, the opinion began with a very muscular restatement of the traditional presumption that legislation enacted by Congress is meant to apply only within the territorial jurisdiction of the United States, unless a contrary intent appears.  He noted that for “many decades,” courts have applied a variety of tests for “divining what Congress would have wanted, complex in formulation and unpredictable in application.”  The Court criticized those tests in strong terms, saying they “disregard[ed] . . . the presumption against extraterritoriality.”  Courts around the country have been applying a bunch of such tests that look to domestic effects and contacts, among other things, and the opinion yesterday may clean out a lot of the doctrinal underbrush.

The Court found nothing in Section 10(b) to defeat the presumption against extraterritoriality, including “a general reference to foreign commerce in the definition of ‘interstate commerce,’” and a “fleeting reference” in the description of the Exchange Act’s purposes to the dissemination and quotation abroad of prices of domestically traded securities.  There is already Supreme Court precedent to similar effect, but nothing I can recall that postdates 1963, and there are certainly some contraindications in other cases.  For good measure, the Court also noted that “[t]he same focus on domestic transactions is evidence in the Securities Act of 1933.”  The Court held that the presence of some domestic activity in this case does not mean petitioners only seek domestic application of the Act; the Exchange Act’s focus is not on the place the deception originated, but on the purchases and sales of securities in the United States.  Applying that analysis here, the Court held that Section 10(b) applies “only [to] transactions in securities listed on domestic exchanges and domestic transactions in other securities.”  

I suspect the opinion will not have as broad effect as its language suggests, because it was for a narrow majority that relied on Justice Kennedy’s vote.  I suspect that in a sympathetic case, Kennedy could see wiggle room to allow US law to be applied to foreign conduct.  Maybe the presumption against extraterritoriality will function like the Lemon Test, as a zombie to be summoned when needed, but commanded to return to the tomb at will.

I would not be surprised if Congress is moved to act sooner or later to respond to stated concerns that the US is becoming a haven for illegal activity (although such conduct could probably be prosecuted or subject to suit under other laws). But that is as it should be; the Supreme Court applies the presumption against extraterritoriality, and Congress can legislate against a (relatively) bright line.

The Court’s opinion has implications for a petition that the Court considered at its private conference yesterday, British American Tobacco Co. v. United States, 09-980, involving whether civil RICO applies extraterritorially to a foreign defendant in DOJ’s long-running suit against the tobacco industry.  (Disclosure: I was among the small army of people who filed an amicus brief in the case.)  The decision whether to accept cert in that case will be announced Monday.  It may be that the Court simply decides to grant, vacate, and remand in light of today’s decision.

Some funny language from the decision after the jump. 

Continue reading ‘The Supreme Court and Extraterritoriality: Yesterday’s decision in Morrison v. National Australia Bank’ »

Two OLC opinions were published today, both quite recent, and both concerning bread-and-butter issues for that Office (note the capital “O,” from force of habit).

1.  Emoluments Clause.  It is hard to make the Emoluments Clause sound interesting or important, particularly because most people think an “emolument” is something you put on a rash.  But the Emoluments Clause has nothing to do with unguents, at least not in the quantities in which unguents are usually employed:  It forbids holders of any “Office of Profit or Trust” from accepting, without Congressional consent, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” U.S. Const. art. I, § 9, cl. 8. 

In an opinion released today, OLC held that a nongovernmental member of the Administrative Conference of the United States does not occupy an “Office of Profit or Trust” within the meaning of the Emoluments Clause, and in the process overruled this 1993 opinion, based on intervening OLC precedents.

As today’s opinion notes,

the text of the Clause . . . makes clear that it applies only to a specified class of persons—i.e., those who hold offices of profit or trust under the United States—and not to all positions in the United States government. Consistent with that textual limitation, our precedents since our [1993] opinion have endeavored to give substance to that category.

The 1993 opinion reflected a much more expansive view of the Clause. The cracks in its construction of the Clause began to show the following year, when then-AAG Walter Dellinger (himself the author of the 1993 opinion) advised that “not every member of an advisory committee necessarily occupies an ‘Office of Profit or Trust’ under the Clause.”  But the heavy lifting was done in this 2005 opinion, in which OLC (to use the words of today’s opinion), “based on an extensive historical analysis of the phrase ‘Office of Profit or Trust,’ . . . advised that the Clause did not apply” to positions on a “purely advisory” bioethics advisory council, reasoning that “to qualify as an office within the meaning of the Constitution, a position must “at least involve some exercise of governmental authority, and an advisory position does not.”  That was followed by a 2007 opinion by Your Correspondent, which, based on the 2005 bioethics opinion, held that members of an FBI advisory council were not subject to the Clause.

After reviewing the Office’s precedents, today’s opinion said that holding that nongovernmental positions on the advisory panel are not covered by the Clause “best accords with our Office’s now substantial precedents giving substance to the Emoluments Clause through a careful explication of its proper scope, so as to ensure that concerns about foreign corruption and influence are accounted for with respect to the types of ‘Office[s]’ that the Clause was meant to cover in identifying ‘Office[s] of Profit or Trust.’”

The opinion was signed on June 3; publishing it on June 16 is breakneck speed by historical standards.  I suspect that the Office’s leadership thought it was important to make its views known quickly so Congress could take action if it disagreed with the conclusion.

2. Tax Levy on Retirement Accounts. Next up, the Office held in this opinion that Thrift Savings Plan accounts (federal employees’ much-beloved 401(k) equivalents) are subject to federal tax levies under sections 6331 and 6334 of the Internal Revenue Code, despite the fact that another statute protect such accounts from “levy,” except as expressly provided in that statute. This may strike readers who are not professional proofreaders or sock inspectors as dull, but it’s an important subject that is near to the hearts of federal employees and the conclusion is potentially unpopular since it subjects retirement cash to tax levy. The opinion was signed on May 3, so in keeping with recent practice, its publication is quick by historical standards.

At the risk of oversimplifying a closely reasoned 12-page opinion on a dense subject, it sounds like OLC sided with the levy clause because the exemption did not begin with “notwithstanding” language (which usually signifies it knocks out everything to the contrary) and because construing the exemption clause to trump the levy clause would mean it is an implicit partial repeal of the levy clause, which is disfavored under ordinary maxims of construction. The levy clause, by contrast, did begin with “notwithstanding” and used exceptionally broad language (“no property or rights to property shall be exempt from levy” except as “specifically” provided).

The government do take a bite, don’t she?