the polling data suggests that a significant number of people who identify as belonging to a political party (a) change their values to conform to the policies of their party, and/or (b) change their values to oppose the leader of the other party. Either is totally inconsistent with a citizen’s role in a democracy.

More here and here.  This is further confirmation of Kerr’s Law (as is much of the opposition to the individual mandate from those who used to support it).

UPDATE: And speaking of commercials, some have already sparked controversy. Ford is unhappy about GM’s 2012 Mayan Doomsday ad. Also, an ad GOP Senate candidate Pete Hoekstra is running during the Super Bowl on Michigan stations has also sparked controversy.

UPDATE: As noted in the comments below, the station supplemented the report with the following comment on its story:

People seem very interested in which party these ineligible voters were for, so let’s look at the numbers we have. We found 87 people who said they couldn’t serve on a jury but were registered to vote. Of those:
33 were registered as Democrats (3 inactive).
25 were registered as Republicans (1 inactive).
1 was a registered Independent.
20 were No Party Affiliation (1 inactive).
8 were unknown.
It’s a small sampling, so trying to extrapolate these numbers probably wouldn’t give you any reliable statewide percentage breakdown. But that’s what the data show.

It is time to end the ability of a single senator, or group of senators, to block the confirmation process by threatening a filibuster, which can be overcome only by the vote of 60 senators. We agree with President Obama’s call in the State of the Union address for the Senate to change its rules and require votes on judicial and executive nominees within 90 days.

This is a major change of position for us, and we came to it reluctantly. The filibuster has sometimes been the only way to deny life terms on the federal bench to extremist or unqualified judges. But the paralysis has become so dire that we see no other solution.

Like the Independent Counsel law, the filibuster of judicial nominees seemed like a much better idea when it was focused on one’s political opponents — and the NYT enthusiastically supported the filibuster of qualified Republican nominees it deemed too conservative. Now that it has been used to block qualified liberal nominees, the NYT now recognizes the resulting tit-for-tat leaves no one better off. Perhaps members of the Senate will concur.

Many Republican Senators are on record supporting elimination of the filibuster for judicial nominations, but they will not agree to unilateral disarmament. So long as it is on the table it will be used.  If the filibuster of judicial nominees is to end, both parties must agree to end it. Those Democrats who complain the loudest about GOP nominees were among those who eagerly used the filibuster against President Bush, even after the “Gang of 14″ deal.  Their willingness to consider the filibuster’s end will be necessary to secure a truce.

Now that it has been shown the filibuster can be used against nominees of both parties, perhaps some Senate Democrats will now agree to support a bi-partisan deal to ensure all judicial nominees receive a prompt up-or-down vote within a set time after their nomination. Senator Leahy supported legislation along these lines back when Bill Clinton was President, only to abandon the idea once George W. Bush was in office. Republicans toyed with the idea as well, but are loathe to offer such a gift to a sitting Democratic President.   Perhaps both could agree to forego filibusters for whomever occupies 1600 Pennsylvania Avenue next.

It is said little gets done in an election year, particularly when it comes to nominations. But the fact that it is an election year provides a rare window of opportunity. It is still early enough that neither party knows who will win the Presidency this fall, or even who will hold a Senate majority. This allows each side to put aside consideration of partisan advantage and embrace a neutral set of rules to govern future nominations to take effect in January 2013. Such a deal could ensure prompt committee and floor votes of nominees within a set number of days after they are referred to the Senate and their paperwork in complete. Unacceptable nominees could still be opposed, but they would have to be opposed on the merits, and so long as the White House makes nominations with dispatch, there would be no concern about excess judicial vacancies.

The window for a deal along the lines above will not stay open long, as neither side will sign on to something they believe will advantage the other side. The question is whether enough members of the Senate care enough about the judiciary to make it happen.  If not, any deal like this will have to wait another three or four years.

Another interesting finding from the survey is that a majority of Americans also believe that the Supreme Court will strike down the mandate.  In other words, according to this poll, a majority of Americans will be surprised and disappointed if the individual mandate is upheld.

(LvWSJ)

• I’ll be speaking to the University of Michigan Law School Federalist Society chapter on ”The Individual Mandate Litigation and the Future of Federalism,” Jan. 25 at 12:00pm, 120 Hutchins Hall.
• I’ll be debating the constitutionality of the individual mandate with David Orentlicher of Indiana at the University of Utah S.J. Quinney College of Law’s  28th Annual Jefferson P. Fordham Debate, Feb. 6 as 12:15pm.
• I’ll be debating Professor Neil Wise on EPA regulation of greenhouse gases under the Clean Air Act to the Rutgers-Camden chapter of the Federalist Society, Feb. 8.
• I’ll be discussing EPA regulation under the Clean Air Act with Stephanie Tai before the Madison, Wisconsin lawyers chapter of the Federalist Society, Feb. 22.

[Post updated]

I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.

And what are the electrical emissions of a Kindle?

When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.

“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”

But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.

It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”

Currently, there are six major departments and agencies that focus primarily on business and trade in the federal government. The six are: U.S. Department of Commerce’s core business and trade functions, the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.

This is redundant and inefficient. Small businesses often face a maze of agencies when looking for even the most basic answers to the most basic questions. There is a whole host of websites, toll-free numbers and customer service centers that at times offer them differing advice. The result is a system that is not working for our small businesses.

The President is proposing to consolidate those six departments and agencies into one Department with one website, one phone number and one mission – helping American businesses succeed.

This is a good idea. To be sure, I would love to see the President go even farther and consider whether the federal government needs to devote taxpayer dollars to business promotion at all. But if the government is going to be engaged in such efforts, it certainly makes sense to do so in as efficient a way as is possible, eliminating duplicative agencies and functions. This plan may only be a small step in the right direction, but given the orgy of spending over the past several years (including during the Bush Administration), a reorganization plan projected to save $3 billion over ten years is certainly a step in the right direction. Brad Plumer has more here.

This case turns on whether a government agency may provide employees with free bottled water even when safe and drinkable water is available from water fountains at their work sites. Under federal appropriations law, the answer is no.

Apparently the Navy began providing bottled water to workers at a facility in Rhode Island because some water fountains had been manufactured with lead. After the water fountains were replaced, the Navy discontinued providing the bottled water without charge because “providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees’ personal expenses.” But the Navy failed to consult with the facility’s civilian employees’ unions before making its decision. In response, the unions filed a grievance, alleging that the provision of bottled water had become a condition of employment at the facility. An arbitrator and the Federal Labor Relations Authority agreed, only to be reversed by the D.C. Circuit on the following grounds:

Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for “necessary expenses” but not for employees’ “personal expenses.” As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are “inconsistent with any Federal law.” 5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.

We therefore vacate the decision of the Federal Labor Relations Authority and remand this case to the Authority to determine whether the tap water is in fact safe to drink. If the Authority concludes that the tap water is safe to drink, the Authority must rule for the Navy.

Also, FWIW, the Court today also issued another 8-1 opinion in Perry v. New Hampshire.

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.

Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.

So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.

Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”

UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges.  As he notes, it is rare for a President to bypass or overrule OLC.  He is correct.  The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya.  In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT‘s Charlie Savage.  So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted.  In any event, the Administration should be willing to offer a more complete justification of its position.  Writes Goldsmith:

I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.

FURTHER UPDATE:  As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.

Who would defend mandating the use of a substance that, for all practical purposes, does not exist?  Not the renewable fuel industry.  As the NYT reports, they acknowledge that commercial production of cellulosic ethanol remains years away.

“From a taxpayer/consumer standpoint, it doesn’t seem to make a lot of sense that we would require blenders to pay fines or fees or whatever for stuff that literally isn’t available,” said Dennis V. McGinn, a retired vice admiral who serves on the American Council on Renewable Energy.

The EPA, on the other hand, defends the mandate:

Cathy Milbourn, an E.P.A. spokeswoman, said that her agency still believed that the 8.65-million-gallon quota for cellulosic ethanol for 2012 was “reasonably attainable.” By setting a quota, she added, “we avoid a situation where real cellulosic biofuel production exceeds the mandated volume,” which would weaken demand.

AEI’s Ken Green has trouble making sense of the EPA’s rationalization:

So what’s most important about biofuel quotas is that they prevent us from over-producing a product that we can’t produce so we don’t weaken demand for the product that the government mandates we use.

As Green notes, Congress might as well have mandated oil companies blend gasoline with rainbows and unicorn sweat.

It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.

It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.

McConnell notes that Harvard’s Laurence Tribe, who is now defending the recess appointments, “dismissed as ‘absurd’ any suggestion that a period of ‘a fortnight, or a weekend, or overnight’ is a ‘recess’ for purposes of the Recess Appointments Clause.” He also observes that the Administration “has offered no considered legal defense for the recess appointments,” suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department’s OLC backed the decision:

Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.

As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.

Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, “Recess Appointments: The Original Meaning and Its Decline.”

Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review. Instead, that Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits. For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order. Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.

One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.

Here are my prior posts on the Sackett case:

• Court to Consider Administrative Compliance Orders
• Sackett v. EPA
• Sackett Oral Argument

JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.

The federal government’s attorney did not have much of an answer other than to say that, in most cases, there would have been some prior communication between the landowner and the EPA or Army Corps alerting the landowner to the potential problem, at which point the landowner could have filed a permit. Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court. As Justice Scalia noted later, in most cases, if the government is threatening to prosecute you, rather than “wait for the prosecutor to drop the hammer,” you may go to court to seek a declaratory judgment to resolve the question. Yet here, where the government has done more than merely threaten prosecution, no such pre-enforcement review is available. Worse, refusing to comply with the government’s order is, itself, a legal violation. It would be one thing to defend this sort of system where time is of the essence — such as where prompt action is necessary to prevent severe, ongoing contamination, such as from a hazardous waste spill. It’s quite another to try and defend this as “due process” when what is at issue is a the deposit of clean fill on a half-acre plot of land that may not even be within the scope of federal regulatory jurisdiction in the first place.

UPDATE: At Legal Planet, Richard Frank comments:

There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed. (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.) The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue? Will the anticipated ruling against EPA be confined to enforcement of the Clean Water Act, or might it extent to a host of other federal environmental laws that EPA frequently enforces through the issuance of ACOs? And will the Court base its decision on exclusively on statutory grounds, or will it follow the urging of several of Sacketts’ amici to find that the lack of judicial review of ACOs represents an unconstitutional deprivation of due process?

]]> http://volokh.com/2012/01/09/sackett-oral-argument/feed/ 32 http://volokh.com/2012/01/09/sackett-v-epa/ http://volokh.com/2012/01/09/sackett-v-epa/#comments Mon, 09 Jan 2012 13:10:23 +0000 Jonathan H. Adler http://volokh.com/?p=54532 Today the Supreme Court hears oral argument in Sackett v. EPA, a challenge to the federal government’s claim that landowners (and other regulated entities) may not obtain pre-enforcement review of an administrative compliance order under the Clean Water Act.  I previewed the case before.  Here is how the WSJ reports on the case this morning:

Based on “any information”—even a newspaper article or an anonymous tip—the Environmental Protection Agency can issue an administrative compliance order directing a property owner to stop discharging pollutants or restore a damaged wetland. The government says such directives, similar to stop-work orders by local zoning inspectors, allow it to respond rapidly to prevent environmental damage.

But business groups contend that the EPA acts as a judge and jury, forcing property owners either to comply, often at great expense, or risk penalties of up to $37,500 a day if the agency later obtains a court ruling to enforce its directive.

Challengers say that by issuing compliance orders without first giving property owners a chance to contest them in court, the EPA skirts the federal law and the Fifth Amendment guarantee of due process.

The NYT editorializes on the case today as well, suggesting that the Sacketts must lose because (gasp) their position might benefit corporations.

This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.

One fact the NYT (and many commentators) ignore is that allowing pre-enforcement review of administrative compliance orders does not relieve regulated parties of the obligation to comply with such orders.  Judicial review does not automatically stay enforcement of the order, so allowing regulated entities their day in court does not necessarily entail allowing them to  continue to engage in allegedly polluting behavior.  It does, however, prevent agencies from using enforcement leverage to force compliance with rules that may not even apply.  In the Sacketts’ case, for instance, the whole question is whether their land is subject to federal regulation in the first place.  Granting pre-enforcement review does not automatically entitle them to continue building their house, but it does prevent the EPA from piling on penalties before the jurisdictional question is answered.

The briefs for the case are on SCOTUSBlog, and here’s an article in Regulation by PLF attorney Tim Sandefur, advocating the Sacketts’ position.

]]> http://volokh.com/2012/01/09/sackett-v-epa/feed/ 89 http://volokh.com/2012/01/06/preemptive-recess-appointments/ http://volokh.com/2012/01/06/preemptive-recess-appointments/#comments Fri, 06 Jan 2012 21:07:03 +0000 Jonathan H. Adler http://volokh.com/?p=54395 One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties.  In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured.  A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.

In the case of the National Relations Board, the President was concerned that the Board would lack a quorum.  As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3.  Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.

Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed.  As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration.  (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)

It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know.  The two were given recess appointments before they could be considered, let alone opposed.  In this regard, the Griffin and Block appointments were something of a preemptive strike.

]]> http://volokh.com/2012/01/06/preemptive-recess-appointments/feed/ 50 http://volokh.com/2012/01/06/recess-appointment-round-up/ http://volokh.com/2012/01/06/recess-appointment-round-up/#comments Fri, 06 Jan 2012 13:07:40 +0000 Jonathan H. Adler http://volokh.com/?p=54379 The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler.  However odd it may be,  it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.

Michael Rappaport makes the originalist case against the President’s recess appointments here.  Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced.  Recall our own John Elwood has also taken the opposite view.  Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made.  (Hat tip: Lawrence Solum)

Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration.  Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess.  The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.

Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop.  But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).

While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders.  As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.

UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.

]]> http://volokh.com/2012/01/06/recess-appointment-round-up/feed/ 91 http://volokh.com/2012/01/05/santorum-states-do-not-have-the-right-to-do-wrong/ http://volokh.com/2012/01/05/santorum-states-do-not-have-the-right-to-do-wrong/#comments Thu, 05 Jan 2012 16:02:10 +0000 Jonathan H. Adler http://volokh.com/?p=54369 The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.

I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.

Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.

I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It’s not just a constitution, it is an ideal. It’s a set of morals and principles that were established in that declaration, and states don’t have the right, just like they didn’t have the right to do slavery.

If Senator Santorum is a “strong supporter of the 10th amendment,” he might want to read it, as it seems to say precisely what he denies.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government.  Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.

The reference to Lincoln is also interesting, and does not exactly support Santorum’s claim that “states don’t have a right to undermine the basic fundamental values” of the nation. Contrary to Santorum’s suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln’s death). The Emancipation Proclamation, issued pursuant to the President’s War Powers, only applied in those states that had seceded.  The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to “do wrong.”

A more charitable interpretation of Santorum’s remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage.  That would be true, but trivially so.  There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today).  But this only makes the point.  Were a constitutional amendment  adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages  by the Constitution, not by some conception of America’s “moral enterprise” or the “basic fundamental values” of the nation.

]]> http://volokh.com/2012/01/05/santorum-states-do-not-have-the-right-to-do-wrong/feed/ 258 http://volokh.com/2012/01/04/more-recess-appointments/ http://volokh.com/2012/01/04/more-recess-appointments/#comments Wed, 04 Jan 2012 22:57:22 +0000 Jonathan H. Adler http://volokh.com/?p=54329 The Consumer Financial Protection Board was not the only beneficiary of a recess appointment today. The AP reports the President also made three recess appointments to the National Labor Relations Board — two Democrats and one Republican. The White House release is here.

]]> http://volokh.com/2012/01/04/more-recess-appointments/feed/ 22 http://volokh.com/2012/01/04/a-recess-appointment-for-cordray/ http://volokh.com/2012/01/04/a-recess-appointment-for-cordray/#comments Wed, 04 Jan 2012 16:39:13 +0000 Jonathan H. Adler http://volokh.com/?p=54309 The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board.  Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of meaningful legislative or executive oversight.

If the AP’s report is correct, President Obama’s decision is particularly interesting because the Senate has not officially recessed, at least not according to Senate traditions.  As the AP story notes, the Senate has been having pro forma sessions every three days for the express purpose of preventing there from being a recess during which recess appointments could be made.  Though done at Republican insistence now, the practice of adjourning without recessing began in 2007 when Senate Democrats sought to prevent President Bush from making recess appointments.  According to The Hill, an Obama Administration Justice Department official previously said a recess must be at least three days and a CRS report reported that in the past thirty years no recess appointment has been made during a recess of fewer than ten days.  As the CRS report also notes, thus far President Obama has made recess appointments at a significantly slower rate than either of his two immediate predecessors.

UPDATE: From the LA Times:

While the Constitution gives the president the authority to fill executive branch vacancies when the Senate is in recess, a Justice Department opinion in 1993 implied that a recess of more than three days was needed before the president could exercise the power, according to the nonpartisan Congressional Research Service. No such appointments have been made during recesses of fewer than 10 days over the last 20 years, the service said in a December report.

But there is precedent for appointments made during recesses of fewer than three days — President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903.

SECOND UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, explains why President Obama may have authority to make the appointment despite the Senate’s pro forma sessions).

THIRD UPDATE: It’s official. Here’s a statement from the White House, The Hill on the GOP response, and commentary from WonkBlog.

]]> http://volokh.com/2012/01/04/a-recess-appointment-for-cordray/feed/ 114 http://volokh.com/2011/12/28/the-latest-signing-statement/ http://volokh.com/2011/12/28/the-latest-signing-statement/#comments Wed, 28 Dec 2011 15:01:46 +0000 Jonathan H. Adler http://volokh.com/?p=54108 On December 23, the President signed an omnibus spending bill and issued a signing statement detailing his objections to various provisions and limitations contained in the bill. Here is coverage from The Hill and the NYT. Several of the bill’s provisions “raise constitutional concerns.” Accordingly, the President announced these provisions would be interpreted in a manner that would minimize potential constitutional conflicts and applied ” in a manner consistent with my constitutional authority as Commander in Chief.” Furthermore, the President explained, he would “not treat these provisions as limiting my constitutional authorities in the area of foreign relations.”

]]> http://volokh.com/2011/12/28/the-latest-signing-statement/feed/ 52 http://volokh.com/2011/12/28/football-over-soccer/ http://volokh.com/2011/12/28/football-over-soccer/#comments Wed, 28 Dec 2011 13:37:50 +0000 Jonathan H. Adler http://volokh.com/?p=54106 An Englishman makes a confession: He prefers American football to soccer.

In its energy and complexity, football captures the spirit of America better than any other cultural creation on this continent, and I don’t mean because it features long breaks in which advertisers get to sell beer and treatments for erectile dysfunction. It sits at the intersection of pioneering aggression and impossibly complex strategic planning. It is a collision of Hobbes and Locke; violent, primal force tempered by the most complex set of rules, regulations, procedures and systems ever conceived in an athletic framework.

Soccer is called the beautiful game. But football is chess, played with real pieces that try to knock each other’s brains out. It doesn’t get any more beautiful than that.

]]> http://volokh.com/2011/12/28/football-over-soccer/feed/ 91 http://volokh.com/2011/12/24/remembrances-of-ribstein/ http://volokh.com/2011/12/24/remembrances-of-ribstein/#comments Sat, 24 Dec 2011 23:27:48 +0000 Jonathan H. Adler http://volokh.com/?p=54060 Like Ilya, I was terribly saddened to learn that Professor Larry Ribstein suffered a stroke and died yesterday.  He was on the faculty when I studied at George Mason, though I never had the good fortune to have him as one of my professors.  I have, however, learned quite a bit from his scholarly and other writings, as well as from our occasional conversations.  He will be missed.

Here is the University of Illinois release and remembrances from many around the blogosphere:

• Larry Solum
• Geoff Manne (with an update collecting comments from others)
• Stephen Bainbridge
• Kim Krawiec
• Jeff Lipshaw

]]> http://volokh.com/2011/12/24/remembrances-of-ribstein/feed/ 2 http://volokh.com/2011/12/21/texts-lies-and-distracted-driving/ http://volokh.com/2011/12/21/texts-lies-and-distracted-driving/#comments Wed, 21 Dec 2011 13:34:31 +0000 Jonathan H. Adler http://volokh.com/?p=53927 The National Transportation safety Board (NTSB) is supposed to be “an independent federal agency charged with determining the probable cause of transportation accidents” that, among other things, conducts “objective, precise accident investigations and safety studies.” So why is NTSB Chair A.P. Hersman falsely claiming that 3,000 people died in traffic accidents last year due to the use of cellphones or other “portable electronic devices” while driving? As Walter Olson notes, the 3,000-death figure is the National Highway Traffic Safety Administration’s estimate for deaths due to all sorts distracted driving, and only one-third of these deaths were attributed to the use of portable electronic devices.

Even though highway fatalities are down, distracted driving is a problem. But why are cellphones, PDAs, etc. any worse than other sources of distraction? Is the driver who quickly glances at a text more dangerous than the one applying makeup, shaving, reading directions struggling with a map, playing with the radio, or looking at the passenger while immersed in conversation? I don’t think so.  Indeed, the federal government’s own data shows other problems, such as aggressive driving, remain a greater problem than driver distraction, and passengers appear to be a greater source of distraction than electronic devices. Nonetheless, as Glenn Reynolds notes, the NTSB is exaggerating the relative risk of using such devices — and misrepresenting the causes of a 2010 pileup in Missouri — to push for a federal ban.

State and local governments are fully capable of adopting such policies, and many have. Yet, as Marc Scribner notes, it’s not clear such bans actually reduce crash risks (in part because some drivers respond by engaging in surreptitious texting). This doesn’t mean all such laws are a bad idea, but there is no need for a federal ban.   State and local authorities are fully capable of acting and continued state and local experimentation will help uncover what sorts of restrictions do the most to improve traffics safety. In the meantime, the NTSB should top  misrepresenting facts to support an unnecessary federal ban, particularly if it’s going to fulfill its mission of being “objective” and “independent.”

UPDATE: To clarify the above, last week the NTSB called for the “first-ever nationwide ban” on the use of portable electronic devic es while driving.  The NTSB is also urging state governments to prohibit texting and other electronic device use while driving.  (Thirty-five states have such rules in place now.)  In addition, Transportation Secretary Ray LaHood has called for Congress to enact a federal ban.

]]> http://volokh.com/2011/12/21/texts-lies-and-distracted-driving/feed/ 140 http://volokh.com/2011/12/20/johnson-goes-libertarian/ http://volokh.com/2011/12/20/johnson-goes-libertarian/#comments Wed, 21 Dec 2011 02:51:54 +0000 Jonathan H. Adler http://volokh.com/?p=53911 Former New Mexico Governor Gary Johnson has decided to drop out of the GOP primaries and run for President as a Libertarian. (You didn’t know Johnson was running for President? Didn’t you see him in all the debates? Oh . . wait, the two-term former governor didn’t get to participate.)

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