The Volokh Conspiracy

This Thursday, I will be taking part in a Federalist Society panel on President Obama’s decision not to defend DOMA in Court. Edward Whelan, President of the Ethics and Public Policy Center and prominent legal blogger for National Review, will be on the panel with me, and my colleague Neomi Rao will moderate. The panel will be held from 12 to 1:30 PM at the Rayburn House Office Building on Capitol Hill, and free lunch will be served. Registration and other details available here.

I previously defended the president’s decision here.

Last week, I defended President Obama’s decision not to defend the constitutionality of the Defense of Marriage Act, on the grounds that the administration has concluded that it is unconstitutional. Although I disagree with some of the administration’s specific legal arguments in this case, I think the president’s duty to defend the Constitution supersedes his obligation to uphold federal statutes when the two conflict.

As I mentioned in the earlier post, this is not the first time that an administration has refused to defend a federal law on such grounds.
NPR recently published a helpful summary of similar decisions by previous administrations, including various Republican ones:

While the administration’s DOMA shift is unusual, it is not rare. It has happened more than a dozen times since 2004 and many more in the past 60 years, including in some very important cases.

During the Eisenhower, Kennedy and Truman administrations, the presidents, in one form or another, refused to defend separate-but-equal facilities in schools and hospitals. The Ford Justice Department refused to defend the post-Watergate campaign finance law, much of which was subsequently upheld by the Supreme Court. The Reagan administration refused to defend the independent counsel law, a law subsequently upheld by the Supreme Court by a 7-to-1 vote. It also refused to defend the one-house legislative veto of many executive actions; in that case, the administration was more successful, winning 7-2 in the Supreme Court. The Clinton administration refused to defend a federal law mandating the dismissal of military personnel who were HIV-positive. The George W. Bush administration refused to defend a federal law that denied mass-transit funds to any transportation system that displayed ads advocating the legalization of marijuana. And in the George H.W. Bush administration, the Justice Department refused to defend a federal law providing affirmative action in the awarding of broadcasting licenses — a law subsequently upheld by the Supreme Court by a narrow 5-4 vote.

The fact that Republican administrations have done the same thing in the past doesn’t necessarily prove that Obama’s decision was justified. After all, as Obama himself would be quick to agree, Republican administrations make plenty of mistakes too.

The history does, however, support my point that presidential refusal to defend the constitutional of a statute doesn’t automatically lead to its defeat in Court. As NPR notes, the courts ended up upholding the challenged law in many of the cases where an administration chose not to defend it. More importantly, in all these cases the law was effectively defended by other parties, even if it was ultimately struck down.

The Obama Administration’s decision not to defend the constitutionality of the Defense of Marriage Act has inspired a great deal of criticism from commentators who believe that it is an unwise or illegitimate extension of executive power. The critics include Richard Epstein, Curt Levey, and our own Orin Kerr, among others. John Yoo argues that this is a constitutionally permissible exercise of executive power, but an unwise one that contradicts the Democrats’ position on other executive power issues.

I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.

I. The President’s Duty to Defend the Constitution Supersedes His Duty to Uphold Federal Statutes When the Two Conflict.

Let’s start with first principles. The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.

Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.

Thus, if the president genuinely believes that DOMA or any other federal statute is unconstitutional, he has at least a prima facie duty not to defend it in court, and possibly a duty not to take actions to enforce it either, as part of his exercise of prosecutorial discretion (a traditional executive power). Obviously, the president can still choose to defer to Congress or the courts in ambiguous cases where he is not sure whether a statute is constitutional or not. It would have been perfectly legitimate for the Obama Administration to conclude that they are not sure whether DOMA is constitutional, and therefore will defer to the considered judgment of Congress until such time as the Supreme Court definitively decides the issue. But the President apparently has a considered view that the statute really is unconstitutional, and not merely uncertain in its status. If so, his duty to the Constitution requires him take the action that he did.

II. Practical Considerations.

Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.

The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene. For example, any of the 45 states that today forbid gay marriage would probably have standing to defend its constitutionality on the grounds that otherwise they might have to extend tax credits and other government benefits to resident couples who have entered into same-sex marriages in other states. If a future Republican administration chooses not to defend the constitutionality of the individual mandate, both state governments who support it and various private parties who benefit from it materially would have standing to intervene. For example, insurance companies support the mandate because it requires people to buy their products and that financial stake in the law is surely sufficient to give them standing.

Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it. Ed Whelan, a prominent critic of the Obama Administration’s handling of the DOMA litigation, claims that the “administration has been sabotaging DOMA litigation from the outset” by refusing to make the best possible arguments in the law’s defense. If so, wouldn’t DOMA supporters be better off if the statute’s defense were handled by parties who actually believe in their case and genuinely want to win it?

Past experience supports the conjecture that a president’s unwillingness to defend a federal statute doesn’t necessarily doom it to defeat. This is not the first time that a president refused to defend the constitutionality of a federal law or regulation. In 1989, as Jim Copland points out, the George H.W. Bush administration refused to defend the constitutionality of federal affirmative preferences in the Metro Broadcasting case. In the 1982 Bob Jones case, the Reagan administration refused to defend an IRS policy denying tax exemptions to a university that practiced racial segregation for religious reasons. Significantly, both policies were ultimately upheld by the Supreme Court, as other extremely able lawyers were found to defend them. For example, the Bob Jones case was won by prominent Washington, DC lawyer William Coleman.

In recent years, federal courts have gradually relaxed standing rules, making it easier for a variety of parties – especially state governments – to bring lawsuits or intervene in existing ones. Thus, it is highly unlikely that a president’s refusal to defend a statute in court will mean that it won’t find able defenders elsewhere. If there is still a problem, the proper solution is to further loosen restrictive standing requirements, which should be eliminated anyway for reasons I explained here.

UPDATE: I should add that it might also be legitimate for the president to adopt a general policy of deferring to congressional judgment on issues relating to the constitutionality of federal statutes, if he believes that Congress’ judgment on these matters is likely to be systematically superior to that of the executive branch. But I think any such presumption is at best dubious in an era when Congress generally enacts whatever statutes it wants with little or no serious consideration of constitutional constraints on its power.

UPDATE #2: I have changed around some of the wording in this post for the sake of clarity.

UPDATE #3: It may be that it will be harder for states to get standing to defend DOMA than I suggest above, because the President is only declining to defend the constitutionality of Section 3 (forbidding federal government recognition of same sex marriages contracted in the states), while continuing to argue the provisions in DOMA that allow states to refuse to recognize same-sex marriages contracted elsewhere. Nonetheless, I think states can get standing. Some state tax benefits depend on federal law recognition of marriage, as also does some federal funding of state government programs. Given that even a small fiscal effect is enough to get standing under current precedent, the states will likely be able to find something – as might various private parties opposed to same-sex marriage.

AG Holder’s memo explaining why Justice is declining to defend DOMA begins, “After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (“DOMA”), 1 U.S.C. § 7, i as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.” Later, Holder claims that the arguments in favor of the constitutionality of DOMA are not “reasonable.”

Orin has explained below why this assertion of executive power may be troubling, but I suspect that I am significantly less troubled than he is.

But I have a different bone to pick with the administration. According to news reports, while Justice will not defend DOMA in Court, the Administration will continue to enforce DOMA until it’s declared unconstitutional by the judiciary.

Wait a second! If the Executive Branch is asserting the authority to engage in independent constitutional review of an existing law, and the president decides that the law is unconstitutional, it strikes me that the Executive Branch has no business enforcing this unconstitutional law.

So I take the Obama Administration to task not for asserting executive review here, which is at least arguably proper, but for trying to split the baby in half, and declaring that it won’t defend an unconstitutional law, but will enforce it. And not just any unconstitutional law, but one regarding which the Administration claims there are no “reasonable” supporting arguments.

Lawrence Hurley at Greenwire (now up on the NY Times website) is reporting that the Justice Department asked that Professor Larry Tribe’s name be stricken from the brief he filed in American Electric Power v. Connecticut, 10-174, now pending before the Supreme Court, citing post-employment restrictions for former employees. In December, Tribe left DOJ after a (fairly brief) stint as senior counselor to the Attorney General for access to justice issues.

According to the article, Justice Department spokesperson Tracy Schmaler said Tribe is bound by a law that bans former senior officials from seeking to influence their former employer “in connection with any matter on which such persons seeks official action by any officer or employee of such department.” According to the article, Tribe’s co-counsel stated that “Tribe ‘had been led to believe’ that he could be listed as counsel of record after discussing the issue with ethics experts in the department.” He said that the intent of the brief is to influence the court, not the Justice Department (which represents respondent the Tennessee Valley Authority).

Cocounsel, who in Tribe’s absence has been elevated to “counsel of record,” reports that her client is upset because they “hired Tribe because of his ‘sterling reputation’ as the ‘best constitutional scholar in the country.’” (Don’t worry–in the age of the Internet, everyone at the Court will know whose brief it is.)  Tribe is still working behind the scenes and the brief is substantively identical; his name just isn’t on it.

It looks to me like the post-employment restriction in question is 18 U.S.C. § 207(c), which prohibits former senior officials of the Executive Branch, within a year of their departure, from “knowingly mak[ing], with the intent to influence, any communication to or appearance before any officer or employee of [his former] department or agency . . . , on behalf of any other person . . . in connection with any matter on which such person seeks official action by any officer or employee of such department or agency.” (For purposes of the statute, DOJ is considered several agencies, so people from the various divisions like ENRD and Crim and Civil frequently can file briefs involving other divisions.  But folks like Tribe who were in the Big Cheese “Senior Management Offices” are all from the same “agency,” along with the Office of the Solicitor General.)

Tribe has a point: his main purpose is no doubt to influence the Court, not the government, and by the time Tribe’s client filed its brief, the government had filed its opening brief already–favoring the same side his client did.  But the government (since it is supporting the petitioner) will get a reply brief, and will probably get argument time, and so the brief might be seen as influencing the position the government takes with respect to those.    

Because of concerns like these, former government lawyers (including me) routinely leave their names off briefs in which the government is participating during their first year of separation.  It would be a tough criminal case to make given the “intent to influence” and “on which such person seeks official action” language.  But section 207(c) is, it bears repeating, a criminal prohibition, and having your name on yet another brief is not worth even the tiny risk of prosecution.  For that reason, every ethics lawyer I know of in DOJ advises former employees to steer well clear of anything that might be seen as such a communication with the Agency.   They may acknowledge the counter-arguments if pressed, and that may be what Tribe did.  But they’re a cautious lot, and generally won’t give you the thumbs up unless everything is glatt.

The most interesting fact to me is that the government apparently acted to have his name striken from the brief.  Clearly, by that point, DOJ knew of the the brief and his role in it, so it would seem that any violation would have occurred.   Taking his name off the brief at that point wouldn’t seem to make it any more or less of a violation, unless the person who spotted it wasn’t in the Senior Management Offices and thus wasn’t in the same “agency.”  I wonder if someone at DOJ got wind of the filing and urged Tribe to file a substitute brief promptly before it was distributed at OSG.   In any event, very interesting.

Here are the briefs.  As they say in Philly, wit  and wit-out.

UPDATE (2/14/11, 11:58 am): DOJ has issued a statement about this kerfuffle, which doesn’t actually add much.  It’s reproduced in full after the jump.
Continue reading ‘Larry Tribe Caught Up in Post-Employment Restrictions in AEP Case’ »

Jennifer Rubin, author of the Washington Post‘s new “Right Turn” blog, interviews former Attorney General Michael Mukasey about his views of current AG Eric Holder in the Weekly Standard.

As I suspected, President Obama didn’t go through with issuing a so-called “constitutional signing statement” with respect to the recent legislation placing restrictions on the transfer of detainees out of Guantanamo, through which he would have noted his constitutional objections to the legislation and construed it not to affect his authority to transfer the detainees, or stated that the legislation was unconstitutional and did not validly abrogate his ability to make such transfers. I think such a position would have been consistent with signing statements of Presidents of both parties back to at least President Reagan, and (if memory serves) even President Carter. (Which is not to say that those Presidents put those stated positions into action; in my experience, most legislative provisions that are the subject of constitutional signing statements are implemented as written, and the signing statement is done mostly to “lay down a marker” with Congress.)

Instead, President Obama issued a much milder statement that criticized the restrictions on policy grounds, stating that the restrictions “undermine[] our Nation’s counterterrorism efforts and ha[ve] the potential to harm our national security.” He also announced that “my Administration will work with the Congress to seek repeal of these restrictions, will seek to mitigate their effects, and will oppose any attempt to extend or expand them in the future.”

The Washington Post praised the President for “appropriate restraint in refusing to use the signing statement in th[e] way” most of his recent predecessors did, but said he showed “too much restraint in opposing the provisions” during the legislative process and for not vetoing them (although they were part of an important defense authorization bill). Well, whatever you think of the President’s actions, it’s clear he didn’t use the signing statement of this bill to pick a fight with the new Republican majority in the House.

Yesterday, the White House finally sent to the Senate the long-rumored nomination of Virginia Seitz to be Assistant Attorney General.  I’ve discussed the (then-rumored) nomination here.  

In keeping with tradition, the nomination does not specify that Seitz would be AAG for the Office of Legal Counsel. If I remember correctly, that is because the legislation creating most of the Justice Department’s AAG spots doesn’t specify that they’ll head a particular office. As a technical matter, this might permit the Attorney General to reassign one AAG to head another DOJ component (so long as the legislation creating that AAG spot is similarly general). Thus (for example), the AG could switch the confirmed AAG for the Criminal Division and the confirmed AAG for OLC without renominating either of them. But that strikes me as extraordinarily unlikely to happen nowadays, since it would make the relevant Senate committees so unhappy.

UPDATE:  Thanks to a reader who was ready with the authorities, here is confirmation of my recollection that AAGs can be moved around.  Ted Olson, when he was head of OLC, signed an opinion concluding that “the Attorney General may reassign Assistant Attorneys General . . . from one unit to another without resubmitting their names to Congress.”  Historical Use of Assistant Attorneys General, 7 Op. O.L.C. 165, 165 (Oct. 27, 1983).  The opinion said that the Office had “identified at least ten occasions on which an Attorney General ha[d] made such transfers,” including Robert Jackson (Tax to Antitrust), Tom Clark (Antitrust to Criminal Division), and David Bazelon (Lands, now ENRD, to Office of Alien Property).  Id. at 165-66.  This reading seems to be confirmed by 28  U.S.C. § 507A(a), added, in 2006, which provides that “[o]f the [eleven] Assistant Attorneys General appointed under 28 [ U.S.C. §] 506, one shall serve, upon the designation of the President, as the Assistant Attorney General for National Security.”

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 Friday the Washington Post ran an extensive story on the Justice Department’s handling of a voter intimidation case against members of the New Black Panther Party in Philadelphia.  Based upon the Post‘s reporting, which seemed quite thorough and balanced, I’ve come to the following conclusions:

1. The original case was small potatoes.  The Philadelphia district attorney’s office thought it was a “non-incident.”  Yes there were technical violations, but the Bush DoJ never identified any voters who felt intimidated by the Panthers, so it’s hard to justify making their conduct into a federal case.
2. It may not have made sense to pursue the case in the first place, but once the Justice Department obtained a default judgment, it made no sense to dismiss it and narrow the injunction.
3. As is so often the case, it’s not the crime but the cover-up.  Justice Department officials have never forthrightly explained their decision to dismiss the case and have alternately stone-walled and dissembled about the involvement of political appointees.  Had they instead come clean at the outset, this issue would have gone away and conservative complaints would have never gained traction (let alone this sort of coverage from the Post).
4. The Civil Rights Division at DoJ remains politicized and divided, as it has been for quite some time, and this cannot be good for the even-handed enforcement of federal law.

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.

The Washington Port reports the Justice Department “reluctantly” invoked the state secrets doctrine in seeking dismissal of a lawsuit challenging the alleged targeting of Anwar al-Aulaqi, a radical Islamic cleric (and U.S. citizen) believed to be in Yemen.

Justice Department spokesman Matthew Miller said that the groups are asking “a court to take the unprecedented step of intervening in an ongoing military action to direct the President how to manage that action – all on behalf of a leader of a foreign terrorist organization.”

Miller added, “If al-Aulaqi wishes to access our legal system, he should surrender to American authorities and return to the United States, where he will be held accountable for his actions.” . . .

In its 60-page filing, the Justice Department cites state secrets as the last of four arguments, objecting first that Aulaqi’s father lacks standing, that courts cannot lawfully bind future presidents’ actions in as-yet undefined conflicts, and that in war the targeting of adversaries is inherently a “political question.”

Over at the Lawfare Blog, Jack Goldsmith offers an interesting take on the recent announcement that David Addington has joined the Heritage Foundation as its new Vice President of Domestic and Economic Policy Studies.

As a law professor who lives and works in DC, and frequently interacts with folks in various parts of the federal government, I should probably know the bureaucratic structure and process for executive-branch policy making than I do.  But I’ve never actually worked in the federal government, and I found this discussion by Keith Hennessey (H/T Greg Mankiw) to be a helpful primer.  It walks through the basics of how questions go to one policy council or another within the White House structure, and then talks specifically about the process for formulating economic policy in the White House.

The New York Times reports that David Barron, acting head of the Justice Department’s Office of Legal Counsel, will step down next month to return to Harvard Law School.  Deputy Assistant Attorney General Jonathan Cedarbaum will replace him.  Of note, OLC has not had a Senate-confirmed head in six years.  More at Main Justice.

Elie Mystal, who graduated from law school at the same time as I did, has bad memories of Elena Kagan from when he had her for Civ Pro as a 1L. [UPDATE: Read The Whole Thing, the commenters remind me to say.] For what it’s worth, here are my own impressions of Elena Kagan:

• I had Kagan for Administrative Law in Spring 2002. She showed sound judgment early on by giving me a high grade in the class, and wrote me a very gracious letter afterwards (which no doubt will fetch a high price on eBay) in which she added, by hand: “I loved everything you said in class. Thanks for making things interesting. EK”.

Slightly more substantively:

• I enjoyed her class a lot, and she was very good at eliciting all the relevant points of view through questioning. I recall saying some fairly libertarian stuff in the class, which she welcomed.
• My scribbled Admin notes for Tuesday, February 12, 2002, say the following. (This was after a discussion of Myers, Humphrey’s Executor, and the “unitary executive theory.”) “Kagan thinks this is all total garbage — so manipulable. Pitch for honesty: everyone needs one area where policy views ≠ constitutional views. Kagan is a total unitarian for policy reasons. But doesn’t think this is a constitutional command. The constitution says so remarkably little that to take this issue away from political decisionmaking is a mistake — courts shouldn’t make these decisions.”
• As has been well documented elsewhere, as dean, Kagan was a good friend (though not a fellow traveler!) of the Federalist Society and of conservative/libertarian professors.
• In particular — and despite her presumably pro-gun-control views (see the David Kopel post below), she was a good friend of the HLS Target Shooting Club, which I founded in Fall 2001 and was the president of for two years. At this link to my old web site for the club, you can see a link (now defunct) to the video of an April 8, 2003 debate on gun control, co-sponsored by my club, and featuring Eugene, Alan Dershowitz, and Dennis Henigan of the Brady Center. Kagan was glad to agree to moderate — this was before she became dean — and her appearance at the debate was one of her first acts after becoming dean.

So there you have it. I know very little first-hand about her actual policy views, except for the snippet above about her views on the unitary executive theory; otherwise, she’s a great person, a great professor, (as far as I was in a position to experience) a great dean, and a friend of campus conservatives and libertarians at a time when, unfortunately, you can’t take that for granted.

My colleague Richard Painter, former chief ethics counsel to President Bush, thinks so because it “institutionalizes dishonesty.” Last fall, he sent a letter outlining his concerns to President Obama, whose administration has been lumbering toward pushing for a congressional repeal. “It is the only instance I know of,” writes Painter, “in which an employee of the United States government can formally suffer discipline and dismissal for telling the truth.” No response yet from the administration.

There has been some speculation that the President’s willingness to make recess appointments, as he did last week, may have been prompted by the Chief Justice’s suggestion that such appointments could be used to fill seats on the National Labor Relations Board.  Last Tuesday, in New Process Steel v. NLRB, the Court heard arguments questioning the validity of decisions made by the Board with only two of its five seats filled.  Among other things, the Justice Department argued that the decisions made by the two-member Board should be upheld, as otherwise decisions in pending cases could not be made.  At the end of the argument, Deputy Solicitor General was asked whether the Board could be reduced to a single member, prompting this exchange:

JUSTICE SCALIA: Do — do we have any notion when — when the board will reduce to one?

(Laughter)

JUSTICE SCALIA: When — when — when is one of the two’s term over?

MR. KATYAL: In the absence of any further confirmations or other appointments, one of the members, Member Schaumber, will leave on August 27th of this year.

JUSTICE SCALIA: Of this year. At which point there will be some pressure on Congress, I guess, right?

MR. KATYAL: There will.

JUSTICE GINSBURG: There are — there are two nominees, are there not?

MR. KATYAL: There are three nominees pending right now.

JUSTICE GINSBURG: Three?

MR. KATYAL: Yes. And they have been pending. They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed quorum — a failed cloture vote in February. And so all three nominations are pending. And I think that underscores the general contentious nature of the appointment process with respect to this set of issues.

CHIEF JUSTICE ROBERTS: And the recess appointment power doesn’t work why?

MR. KATYAL: The — the recess appointment power can work in — in a recess. I think our office has opined the recess has to be longer than 3 days. And — and so, it is potentially available to avert the future crisis that — that could — that could take place with respect to the board.

The question about recess appointments was certainly timely, but I doubt it had much influence on the Administration’s decision to make its recess appointments.  Perhaps it encouraged the Administration ton include two NLRB nominees, including one who has been particularly controversial, but I am skeptical.  The Administration has been in office for over a year, so it is a logical time to begin considering the use of the recess appointment power to fill important positions.  Looking at the list of appointments, several are to positions that are quite important, if not high profile.  If anything, I am surprised the Obama Administration did not make its first recess appointments earlier.  President Bush made his first recess appointments in January 2002.

President Obama made fifteen recess appointments today, including two to the National Labor Relations Board and four to the Equal Employment Opportunity Commission. Embattled Justice Department nominee Dawn Johnsen was not on the list.

These were the President’s first recess appointments of his term, and if not confirmed by the Senate, they will be eligible to serve until the end of 2011.  The White House release and full list of recess appointments is here.

Recess appointments have been used with some regularity by prior Presidents in response to Senate confirmation delays.  The Washington Post “Federal Eye” blog reports:

The White House said that 217 of Obama’s nominees still await Senate confirmation, including 34 nominees that have waited for more than six months. By comparison George W. Bush also had made 15 recess appointments by this point in his presidency, the White House said. Bush made at least 171 recess appointments during his presidency while Bill Clinton made 139, according to the Congressional Research Service.

During part of the Bush Administration, Senate Majority Leader Harry Reid would avoid taking full recesses in the Senate to prevent recess appointments from being made.  Not anymore. Back then, Senator Reid maintained that recess appointments were “an end run around the Constitution,” even though the Constitution provides for recess appointments.

Harvard’s Jack Goldsmith and Lawrence Lessig have an interesting op-ed in today’s Washington Post arguing that it woudl be constitutionally dubious for President Obama to adopt the Anti-Counterfeiting Trade Agreement (ACTA) as an executive agreement. Here’s a taste:

The president has no independent constitutional authority over intellectual property or communications policy, and there is no long historical practice of making sole executive agreements in this area. To the contrary, the Constitution gives primary authority over these matters to Congress, which is charged with making laws that regulate foreign commerce and intellectual property.The administration has suggested that a sole executive agreement in this instance would not trample Congress’s prerogatives because the pact would not affect U.S. domestic law. Binding the United States to international obligations of this sort without congressional approval would raise serious constitutional questions even if domestic law were not affected. In any event, an anti-counterfeiting agreement made on the president’s own authority could affect domestic law in at least three ways:

First, the noncriminal portions of this agreement that contemplate judicial enforcement can override inconsistent state law and possibly federal law. Second, the agreement could invalidate state law that conflicts with its general policies under a doctrine known as obstacle preemption, even if the terms are not otherwise judicially enforceable. Third, a judicial canon requires courts to interpret ambiguous federal laws to avoid violations of international obligations. This means courts will construe the many ambiguities in federal laws on intellectual property, telecom policy and related areas to conform to the agreement.

As the Washington Post is reporting today (on page A16 in the print edition), Office of Legislative Affairs AAG Ron Weich has sent a letter to Congressional Hispanic Caucus Chairperson Nydia Velazquez assuring her that the information-gathering and information-sharing provisions of the PATRIOT Act do not override the preexisting confidentiality requirements of the Census Act. The critical language of the letter is this:

The long history of congressional enactments protecting such information from such disclosure, as well as the established precedents of the courts and this Department, supports the view that if Congress intended to override these protections it would say so clearly and explicitly. Because no provision of the Patriot Act, including Section 215, indicates such a clear and explicit intent on the part of Congress, the Department’s view is that no provisions of that Act override otherwise applicable Census Act provisions barring the Commerce Secretary and other covered individuals from disclosing protected census information possessed by the Commerce Department.

I think it’s clear that OLA is channeling OLC on this. I suspect that those two sentences are cut and pasted either from some informal advice OLC rendered in advance of a formal opinion, or from an as-yet-unpublished formal opinion.

Because one of the Administration’s themes is (with apologies to Blue Oyster Cult) “Don’t Fear the Census,” I expect that the opinion will be published as soon as possible on the OLC website. Recall that in August 2009, OLC published a ten-year-old Clinton-era opinion concluding that section 642(a) of the awkwardly acronymed Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) does not repeal a statutory confidentiality requirement codified at 13 U.S.C. § 9(a).