Archive | Executive Branch

Brief Review of Takeover: The Return of the Imperial Presidency and the Subversion of American Democracy

This book, by journalist Charlie Savage was published six years ago, but I just finished it. It’s a well-written, well-researched critique of the George W. Bush’s Administration’s abuse of executive power based on often extremely dubious constitutional theories. If you’re interested in the subject matter, it’s well worth reading, despite its age. Of particular interest to many VC readers is that he traces the intellectual origins of the Bush Administration’s broad assertions of executive power back to (mostly) young conservative lawyers who worked in the Reagan Administration.

I have a few qualms about the book. Most important, for a book that’s all about executive power, you’d hope the author would master what the theory of the unitary executive means, and wouldn’t, as so many Bush Administration critics did, confuse that theory with other issues. Savage, unfortunately, fails that test repeatedly.

Savage also sometimes overstates his case, especially later in the book. For example, Savage notes that Bush issued signing statements indicating that the Administration would decline, for constitutional reasons, to enforce affirmative action preferences in government employment dictated by statute. Savage claims that Bush did so despite the Supreme Court’s holding in Grutter that affirmative actions preferences are constitutionally permissible. Savage indicts the administration for ignoring Grutter in favor of its own interpretation of the Constitution. In fact, Grutter only held that preferences in higher education are permissible. While some scholars think that Grutter’s logic can be applied to employment (I’m not one of them), Grutter didn’t purport to overrule cases unfavorable to preferences, in particular the Adarand case, banning preferences in government contracting. In this instance, I think Bush had the better of the constitutional argument based on Supreme Court precedent, but at the very least Savage significantly overstated the case that Bush was acting lawlessly.

And some [...]

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Is Concern about “Czars” Purely a Partisan Issue?

Quite a few commenters responded to my post about President Obama’s use of high-level appointees not subject to Senate confirmation, colloquially known as “czars,” with some version of the claim that the whole issue is a purely partisan attempt by right-wing Republicans to attack the president. It’s therefore worth pointing out that to their credit, at least two Democratic senators, Robert Byrd and Russell Feingold, expressed concern over the Obama’s use of czars to evade the Senate’s advise and consent power. Of course, Byrd was expressing similar concerns during the Bush Administration, which vastly expanded the use of “czars” exempt from the Senate’s advise and consent role. While many pundits and politicians either switched positions or only criticized one side for using “czars,” Byrd was consistent. [...]

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Can the President Spend Money on Something Congress “Defunds”?

I’ve always thought that when it came to turf wars between the executive and legislature, Congress held the trump card of the “power of the purse.” But here’s what happened back in 2011 when Congress voted to defund several “czar” positions, positions that upset people on both sides of the aisle because they can be an end-run around the appointments clause (requiring a Senate vote) for high-level government officials:

On Friday night, Obama declared that he intends to ignore that part of the budget legislation, issuing a relatively rare “signing statement” after he inked the budget deal in which he argued that the legislative effort to eliminate those positions was an unconstitutional infringement on the executive branch.

“The President has well-established authority to supervise and oversee the executive branch, and to obtain advice in furtherance of this supervisory authority,” Obama wrote in a message to Congress. “The President also has the prerogative to obtain advice that will assist him in carrying out his constitutional responsibilities, and do so not only from executive branch officials and employees outside the White House, but also from advisers within it.

“Legislative efforts that significantly impede the President’s ability to exercise his supervisory and coordinating authorities or to obtain the views of the appropriate senior advisers violate the separation of powers,” he added. “Therefore, the executive branch will construe [the law as to] not to abrogate these Presidential prerogatives.” Put aside that the president broke his campaign promise not to use signing statements to thwart Congress.

How can the executive branch spend money on, say, the climate czar in the face of a law specifically banning funds from being used for that purpose? Could President Reagan have avoided the Iran-Contra scandal (at least the part involving sending money from the arms sales to the Contras) [...]

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House Judiciary Committee Hearing: Take Care Clause

On Tuesday morning at 10:00am, the House Judiciary Committee will hold a hearing about the President’s constitutional duty “to take Care that the Laws be faithfully executed.” Michael Cannon, Simon Lazarus, Jonathan Turley, and I will testify. Video here and possibly on C-SPAN.

UPDATE: I will be discussing this with Greta on Fox News, Tuesday, Dec 3, 7:30pm. [...]

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Judge Rejects Immediate Appeal in Fast and Furious Document Case

Last month, Judge Amy Berman Jackson denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal.  Today, Judge Jackson rebuffed the Justice Department again, refusing to certify her decision for an immediate appeal. According to Judge Jackson, her decision denying the government’s motion to dismiss did not involve “a controlling question of law as to which there is a substantial ground for difference of opinion.” Josh Gerstein of Politico reports on what comes next:

Jackson’s latest ruling means it is likely the Justice Department will have to produce a detailed log of what was withheld from the House Oversight and Government Reform Committee and why. Rounds of protracted litigation over the legitimacy of the withholdings seem all but certain, unless the sides come to an agreement which has heretofore eluded them.

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The Constitutionality of the ObamaCare “Fix”

President Obama in his speech on “fixing” the Affordable Care Act today did not specify what statutory authority, if any, he thinks authorizes him to make such dictats. Given the gargantuan length of the ObamaCare statute, he might still be looking. Press reports say the President is claiming a broad “enforcement discretion.”

It is true that the Chief Executive has some room to decide how strongly to enforce a law, and the timing of enforcement. But here, Obama is apparently suspending the enforcement of a law for a year – simply to head off actual legislation not to his liking. Congress is working on legislation quite similar to the president’s fix, but with differences he considers objectionable. This further demonstrates the primarily legislative nature of the fix.

Indeed, the fix goes far beyond “non-enforcement” because it requires insurers to certain new action to enjoy the delay. This is thus not simply a delay, but a new law.

The “fix” amounts to new legislation – but enacted without Congress. The President has no constitutional authority to rewrite statutes, especially in ways that impose new obligations on people, and that is what the fix seems to entail. And of course, this is not the first such extra-statutory suspension of key ObamaCare provisions.

UPDATE: Here is the text of the administration’s letter describing the fix. [...]

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Judge Denies DoJ Motion to Dismiss Case Seeking “Fast and Furious” Documents

Yesterday, Judge Amy Berman Jackson of the U.S. District Court for the District of Columbia denied the federal government’s motion to dismiss a suit filed by the House Committee on Oversight and Government Reform to enforce a subpoena for documents related to the “Fast and Furious” scandal.  The Justice Department has refused to turn over relevant material, citing Executive Privilege. Judge Jackson rejected DoJ’s position that this sort of “dispute between the legislative and executive branches must be resolved through negotiation and accommodation” and “the judiciary may not, or at least, should not, get involved.”

From Judge Jackson’s opinion in Committee on Oversight and Government Reform v. Holder:

The fact that this case arises out of a dispute between two branches of government does not make it non-justiciable; Supreme Court precedent establishes that the third branch has an equally fundamental role to play, and that judges not only may, but sometimes must, exercise their responsibility to interpret the Constitution and determine whether another branch has exceeded its power. In the Court’s view, endorsing the proposition that the executive may assert an unreviewable right to withhold materials from the legislature would offend the Constitution more than undertaking to resolve the specific dispute that has been presented here. After all, the Constitution contemplates not only a separation, but a balance, of powers. . . .

The Court is mindful that “federal courts may exercise power only in the last resort . . . and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.” Allen v. Wright, 468 U.S 737, 752 (1984) (internal citations and quotation marks omitted). But here, the narrow legal question posed by the complaint is precisely the sort

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A Hands-Tied Presidency?

In an essay for the NYT Sam Tanenhaus argues that President Obama “holds office at a time when the presidency itself has ceded much of its power and authority to Congress.”  No, really.  This is what he says.  It is, frankly, a rather bizarre claim.  As a great deal of academic work has documented (including an important piece by one Elena Kagan) there has been a distinct trend toward greater executive authority and control over domestic policy.

Tanenhaus notes that Obama, like George W. Bush, has had a difficult time getting major legislation through Congress, particularly in his second term.  Yet it is not as if Congress is pursuing some separate agenda, against the will of the President. Rather, it’s not pursuing any agenda at all.  And congressional abdication — combined with extensive delegation of quasi-legislative authority to the executive branch — has abetted the accumulation of executive power.  Throughout the 1980s and 1990s, Congress regularly adopted all sorts of measures, including appropriations riders, to constrain executive action.  This has been particularly common when Congress was held by the opposition party.  Yet with today’s divided and dysfunctional Congress, relatively little is done to hold the executive in check.  Even arguably illegal executive actions prompt little more than the occasional oversight hearing.

Tanenhaus’ essay is prompted by Obama’s decision to seek congressional approval for intervention in Syria which, he believes “shows a greater deference on war and peace than any president since Franklin D. Roosevelt.”  Really?  The Bush Administration sought Congressional approval for the wars in both Afghanistan and Iraq, did it not?  Admittedly these authorizations were fairly open-ended, but the authorizations were obtained nonetheless.  And lets not forget about Libya.  Not only did the Administration not seek Congressional approval, it also rejected the opinion of this Administration’s own OLC [...]

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Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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NY appellate court rules 5-0 against Bloomberg soda ban

The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of  In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic Chambers opinion begins on page 22, following two other opinions released the same day.)

In New York State, the trial courts of general jurisdiction are the Supreme Court. The intermediate courts of appeal are the Appellate Division, which are divided into four geographic Departments, similar to the U.S. Circuit Courts of Appeal. The highest court is the Court of Appeals. Thus, Mayor Bloomberg has the option of trying to bring the case to the Court of Appeals.

The Appellate Division’s decision is quite straightforward: “[T]he Board [of Health] did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” If the Board’s ban on the sale of sodas larger than 16 ounces were actually a health rule (similar, for example, to a ban on the sale of infected meat), there would not be so many exemptions for certain types of vendors.

The Appellate Division applied the four-part separation of powers test from Boreali v Axelrod, 71 NY2d 1 (1989). The Appellate Division summarized the four Boreali factors:

First, Boreali found the PHC [Public Health Council] had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy”. Second, the PHC did not engage in the “interstitial” rule making typical of administrative

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Former Bush Attorney General Alberto Gonzales Responds to my USA Today Op Ed on Unanimous Supreme Court Decisions and Executive Overreach

Former Bush Administration attorney general and White House counsel Alberto Gonzales has written a response to my USA Today op ed on unanimous Supreme Court opinions and executive overreach. Gonzales largely agrees with my assessment of the Obama administration’s record, but – not surprisingly – he takes issue with my argument that Obama’s overreach was paralleled by similar practices in his own administration:

George Mason law professor Ilya Somin… correctly concludes that when a “president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss….”

However, Professor Somin misses the mark when he equates the record of President George W. Bush with the current administration with respect to pushing the limits of federal executive power. Having participated in more discussions than I can count on terrorism-related issues with some of the brightest lawyers in America, I can attest that the legal issues we confronted after the September 11, 2001 attacks were difficult and unique. I concede we did not always accurately anticipate where the Supreme Court would draw the balance between security and liberty. However, I derive some professional satisfaction knowing that, unlike with the 9-0 court shutouts the professor highlights, the justices struggled with the issues presented in the four major terrorism cases decided during my tenure in government: Hamdi v. Rumsfeld, Rasul v. Bush, Hamdan v. Rumsfeld and Boumediene v. Bush.

Collectively these four cases produced 17 opinions, not one of which was able to attract more than five votes. In the Hamdan case alone, six of the eight participating justices felt compelled to author an opinion, thus showing the difficulty of the issues presented….

The Obama era cases identified in Professor Somin’s writing deal primarily with issues in the domestic arena. At least in those cases

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My USA Today Op ed on the Troubling Implications of Cases where the Administration Loses 9-0 Decisions in the Supreme Court

USA Today has just posted my op ed on the troubling implications of cases where the executive branch loses unanimous Supreme Court decisions:

Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines….

But we might do well to pay more attention where the court rules unanimously, particularly when they go against the White House.

When a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.

Such overreach, though, has become a part of our political culture. Administrations of both parties are often unwilling to accept constitutional limits on their authority…

In Horne v. Department of Agriculture, a decision issued in June, the justices unanimously rejected the Obama administration’s argument that raisin farmers did not have the right to go to court to contest the seizure of hundreds of thousands of dollars worth of raisins….

Horne was the administration’s third unanimous defeat in a property rights case in 18 months….

Obama isn’t the first president to promote dubious theories of federal power. George W. Bush’s administration, among others, did so as well….

The fault lies not only with the offending politicians, but also with the voters and political elites who too often excuse or ignore their unconstitutional actions.

Sometimes, the courts can protect us against overreaching administrations. But many abuses of power cannot or will not be litigated. If we want to enforce constitutional limits on government, we cannot rely on judges to do the job alone.

USA Today originally intended to run this op ed around the time the Supreme Court term ended. But I think the broader issues it raises are still timely now.

UPDATE: For those who may [...]

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James Comey Nominated for FBI Director

Yesterday, President Obama nominated Jim Comey to serve as the next FBI Director. One of Comey’s many claims to fame was the dramatic confrontation with White House officials over John Ashcroft’s hospital bed; the New York Times has a compelling account of that episode here. (I was at the Office of Legal Counsel at the time, but the entire incident was, happily, well above my pay grade.) Comey is, by all accounts, an excellent choice for Director of the FBI. [...]

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No, the IRS Is Not an “Independent Agency”

Responding to press questions about the IRS scandal, White House spokesperson Jay Carney claimed that the IRS is an “independent agency.” At the Federalist Society’s new Executive Branch Review blog, former Assistant Attorney General Eileen O’Connor, who oversaw the Justice Department’s Tax Division, explains that Carney was quite wrong on this point.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

Ammon Simon offers more on this point here.

Not only is the IRS not an “independent” agency, but it appears that the substantial bonuses received by the head of the IRS tax-exempt division when the targeting of conservative groups occurred would have been approved by the White House because they exceeded $25,000. This official is now in charge of the IRS’ Affordable Care Act office. [...]

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Justice Department Seized AP Phone Records

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above. [...]

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