Archive | Executive Branch

The Federalist Society’s New Executive Branch Review Blog

The Federalist Society recently unveiled its new Executive Branch Review Blog, which focuses on legal and constitutional issues involving – you guessed it – the executive branch.

One of the regular bloggers there will be my wife Alison Somin, who serves as a special assistant/counsel with the US Commission on Civil Rights. Yesterday, she put up her first post, which focuses on the EEOC’s efforts to curb employers’ use of criminal background checks in hiring on the grounds that such checks might have a disproportionate negative effect on minority job-seekers:

The Equal Employment Opportunity Commission… is making a particular effort to restrict allegedly discriminatory use by employers of criminal background checks. Because African-Americans and Hispanics are more likely to be arrested or convicted of crimes than members of other racial and ethnic groups, the EEOC’s thinking goes, an employer policy that excludes job applicants based on past arrests or convictions will have a disparate impact on African-Americans and Hispanics and, if not job-related and justified by business necessity, may violate Title VII of the Civil Rights Act of 1964.

In April 2012, the EEOC issued a new Enforcement Guidance regarding such employer criminal background checks. Some civil rights advocacy groups praised the document, stating that it will help “remove unfair barriers for people who have moved beyond their pasts” and discourage employers from discriminating against employees who have paid their debt to society.”

But critics raised both substantive and procedural concerns about the new guidance. Substantively, critics noted that the new policy does not do enough to make clear in what circumstances an employer may use a background check; it notably contains no “safe harbors” and may chill some lawful use of checks….

The EEOC appears committed to rigorous enforcement of the new Guidance. At a Chamber of

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No More Transparency, But Less Outside Scrutiny

Paul Thacker writes that the Obama Administration has “failed miserably” to fulfill its promises of more open and transparent government. What’s changed, however, is that the press and self-appointed good-government watchdogs are less interested in covering such questions.

Whether it’s responding to Congress, media questions, or FOIA requests, this administration is no better than its predecessor. The big difference: Obama is a Democrat. And because he is a Democrat, he’s gotten a pass from many of the civil liberty and good-government groups who spent years watching President Bush’s every move like a hawk. . . .

the administration was able to make cosmetic changes and neutralize harsh disapproval with a classic Washington maneuver—inviting potential critics to the White House for meetings. The administration understood that many of these groups would be satisfied by getting meetings with the ethics czar, and would calculate that if they became too critical of the president that their newfound “access” would be in peril. So the watchdogs have scampered up to the White House time and again, hopeful that maybe with the next election, the next initiative, maybe even the next meeting, something would change.

We shouldn’t expect better from any administration — Republican and democratic administrations alike withhold pertinent information, abuse FOIA and resist disinfecting sunlight — but we should expect better from the self-appointed guardians of government transparency and accountability. [...]

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Rick Hasen Read the DoJ Inspector General Report on the Civil Rights Division So You Don’t Have To

As his Election Law Blog Rick Hasen has a fairly thorough summary of the just-released Justice Department Inspector General’s report on the politicization of the Civil Rights division. The bottom line: liberal and conservative employees of the division did not play well with one another. The IG largely absolves attorneys within the division of engaging in improper conduct but (as Hasen notes) there are some close calls. In most cases, however, it appears that what one side considered improper conduct was simply the other side pursuing its vision of how the division should operate, and that such decisions are within the discretion of each administration and its political appointees.

BLT has more on the report here. [...]

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Reactions to the Drone Strike “White Paper”

The release by NBC News of a confidential “white paper” outlining the basis upon which the Obama Administration justifies the use of drones to conduct targeted killings of suspected terrorists, including American citizens, has prompted a substantial amount of commentary — mostly negative. Among other things, critics note the expansive notion of what constitutes an “imminent” threat. So, for instance, the memo provides:

the condition that an operational leader present an “imminent” threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons will take place in the immediate future.

Conor Friedersdorf sees echoes of the early Bush Administration in this rationale (as does Charles at Popehat), and Glenn Greenwald finds it “chilling.” Patterico worries about the slippery slope and Jacob Sullum finds the memo disturbing. But don’t worry. White House spokesman Jay Carney assures us there’s nothing problematic about the administration’s position.

On the academic side of things, Greg McNeal notes “six key points” on the white paper. Kevin Jon Heller comments on the memo’s “confused approach to imminence (and capture)” and its mishandling of al Qaida’s organizational structure.

In the Washington Post Jack Goldsmith argues the white paper highlights the need for a new “rulebook” for the war on terror, preferably a statute debated and adopted by Congress (a step Gerard Magliocca urges as well), and his colleagues at the Lawfare blog have several more posts on the issue.

UPDATE: John Bolton and Senator Lindsey Graham defend the Obama Administration’s use of drones.  According to Bolton, the current policy is a reasonable extension of the Bush Administration’s anti-terror policies. [...]

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Now THAT Is A Signing Statement!

Today the President issued a signing statement regarding H.R. 4310, the “National Defense Authorization Act for Fiscal Year 2013.”

I haven’t written much on President Obama’s constitutional signing statements recently (those suffering from insomnia, see here here,  here, here, here, and here for examples from 2009-2011), but today’s installment is such a classic of the genre that  I thought it warranted brief comment.

The signing statement is noteworthy in a few respects.  It runs 1,173 words, and by my count mentions 21 provisions, which is a goodly number.  That is pretty long as far as signing statements go, but it probably reflects in part the length of the bill he was signing.  Things with names like “National Defense Authorization Act” tend to be long, and this was no exception–the bill ran 680 pages.

The signing statement also explained in unusual detail why he signed a bill he obviously considers flawed:

Our Constitution does not afford the President the opportunity to approve or reject statutory sections one by one. I am empowered either to sign the bill, or reject it, as a whole. In this case, though I continue to oppose certain sections of the Act, the need to renew critical defense authorities and funding was too great to ignore.

He then goes category by category explaining his constitutional (and practical) concerns with various provisions.

The thing I found most noteworthy is that the statement makes what would be classified as a “unitary executive” objection–basically, the legislation interferes with the President’s ability to direct the exercise of discretion by officials within the Executive Branch.  But perhaps prudently, it avoids using that phrase, which tends to provoke a strong visceral reaction among some people:

Certain provisions in the Act threaten to interfere with my constitutional duty to

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National Security Law in the News

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

— Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

— James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

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Update on Lawsuit Challenging CFIUS Action Blocking Chinese Wind-Farm Development

With my firm’s CFIUS experts, I put together a fuller analysis of the potentially significant CFIUS lawsuit I blogged earlier this month.  For those just tuning in now: the U.S. government’s Committee on Foreign Investment in the United States issued an order that blocked a Chinese-owned developer from proceeding with four wind-farm projects in Oregon; the developer sued, challenging not only the lack of transparency in CFIUS’s procedures and decision making, but also CFIUS’s authority to block  or unwind the transaction.

There have been a few noteworthy developments in the case.  First, just hours before the government was due to file its opposition to Ralls’ motion for a TRO, Ralls withdrew the motion after reaching an agreement with the government that allowed it to resume  preliminary construction at the wind-farm site while the suit is pending; the CFIUS order previously directed Ralls to “cease all [c]onstruction and [o]perations at the site.”  Although correlation does not imply causation, it suggests that the suit has improved Ralls’ position with respect to CFIUS.

Second, although correlation still does not imply causation, the day after the suit was filed, CFIUS sent a report to the President describing its assessment of the risks; by statute, once CFIUS sends such a report, the President has 15 days to  decide whether to take action (e.g., to block or mitigate the transaction).  The deadline runs tomorrow.

Because the  Foreign Investment and National Security Act of 2007 provides that the President’s actions and supporting findings “shall not be subject to judicial review,” there would be a question whether the President’s own actions (if any) would moot the lawsuit.  Ralls has a response (that the suit could continue under the “capable of repetition but evading review” exception to mootness doctrine. as CFIUS reviews each transaction in the first [...]

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Landmark Foreign-Investment Suit Filed

If you deal regularly with the federal government, there are more candidates for the “most important government office that you’ve never heard of” than you can count.  My post tonight concerns not an office, but a federal interagency committee: the Committee on Foreign Investment in the United States, known by its acronym CFIUS, which is undeniably powerful, but sufficiently obscure that even the hardcore law nerds of the Volokh Conspiracy have mentioned it only once before.

On Wednesday, a Chinese-owned wind-farm developer sued CFIUS to seek review of recent CFIUS orders that effectively require the developer to unwind its purchase of four wind-farm projects in Oregon.  The suit is a rarity in a field that has seen virtually no efforts to obtain judicial review.  Even partial success by the plaintiff in obtaining review of CFIUS’s decision could have major implications for foreign direct investment in the United States and increase the transparency of a historically opaque government approval process.  More after the jump. [...]

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Obama’s Reversals on Executive Power

New York Times columnist Ross Douthat has an interesting column describing some of President Obama’s evolving positions on executive power. He now engages in many of the same practices that he and numerous other liberal Democrats denounced as unconstitutional in the days of the Bush Administration:

When George W. Bush was president of the United States, it was an article of faith among liberals that many of his policies were not just misguided but unconstitutional as well….

Obama campaigned as a consistent critic of the Bush administration’s understanding of executive power — and a critic with a background in constitutional law, no less. But apart from his disavowal of waterboarding (an interrogation practice the Bush White House had already abandoned), almost the entire Bush-era wartime architecture has endured: rendition is still with us, the Guantánamo detention center is still open, drone strikes have escalated dramatically, and the Obama White House has claimed the right — and, in the case of Anwar al-Awlaki, followed through on it — to assassinate American citizens without trial.

These moves have met some principled opposition from the left. But the president’s liberal critics are usually academics, journalists and (occasionally) cable-TV hosts, with no real mass constituency behind them.

The majority of Democrats, polls suggest, have followed roughly the same path as the former Yale Law School dean Harold Koh, a staunch critic of Bush’s wartime policies who now serves as a legal adviser to the State Department, supplying constitutional justifications for Obama’s drone campaigns. What was outrageous under a Republican has become executive branch business-as-usual under a Democrat.

Douthat does not mention what was perhaps Obama’s biggest reversal on executive power. The man who in 2007 wrote that “[t]he President does not have power under the Constitution to unilaterally authorize a military attack in a [...]

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President Obama’s Deferred Action on Immigration (and OLC)

Charles Krauthammer has a column today taking President Obama to task for his recent decision to “lift the shadow of deportation” from otherwise law-abiding undocumented aliens who came to the U.S. as children and allow them to “request temporary relief from deportations and apply for work authorization.”  (For DHS’s page on the program, see here.)  He argues that it’s impermissible to exercise discretion categorically:  rather, he says it requires review on a “case-by-case basis on considerations of extreme and extenuating circumstances.” I’m a big fan of the good doctor, but I’m not so sure he’s right about whether the exercise of discretion has to be individualized, at least not as a general matter. I think it requires a closer look at the specific statutes at issue.

It’s a background principle of administrative law that, “[a]bsent statutory language to the contrary, agencies are free to decide whether to implement a grant of discretion by means of rules, which provide prospective standards of behavior, or by means of case-by-case decisionmaking (or adjudication).” Agency Rules as Constraints on the Exercise of an Agency’s Statutory Discretion, 7 Op. OLC 39, 44 (1983) (AAG Ted Olson); cf. NAACP v. Fed. Power Comm’n, 425 U.S. 662, 668 (1976) (“As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures.”). So the question then becomes whether the specific provisions of the immigration laws allow the Secretary of Homeland Security to exercise her discretion by rule in this manner.

I’d love to take a more careful look at the immigration laws and determine for myself whether I think they authorize the President’s action, but (1) I have actual paying clients to tend [...]

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In Praise of Obama’s New Immigration Policy

Last week, President Obama issued new guidelines allowing immigrants who illegally entered the United States as children to remain here so long as they are under the age of 30, have not been convicted of any crimes, and have either graduated from a US high school, are currently enrolled in school, or have served in the military. Obama lacks the legal authority to legalize their presence in the US; but he has in effect assured these people that they will not be prosecuted or deported for so long as his new policy remains in place.

This reform strikes me as a major step in the right direction. It allows some 800,000 people to live their lives in peace without the fear of being deported to a life of poverty and oppression in the Third World. It strikes a blow against the grave injustice of current immigration restrictions. All the standard objections to illegal immigration don’t apply here. For example, critics cannot argue that we are letting guilty people off the hook here, since these individuals came to the US as children and were not legally responsible for their actions at the time. Similarly, it is unlikely that these people will become burdens on the welfare state, given their educational credentials. In any event, increased immigration tends to reduce political support for welfare spending rather than raise it.

I do disagree with claims that this decision by Obama is especially bold or politically brave. Polls show that 84% of Americans – including even 79% of Republicans – believe that illegal immigrants who were brought to the United States as children and are either enrolled in college or serving in the military should be allowed to remain (49% believe they should be granted citizenship). Obama’s policy differs from the [...]

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Flip-Flops on Executive Privilege

From Charlie Savage’s NYT report on President Obama’s assertion of Executive Privilege as the basis for the Justice Department’s refusal to turn over internal agency documents concerning the “Fast and Furious” scandal to a house oversight committee:

The invocation of executive privilege by Mr. Obama added a new element to the drama. While there is little dispute that the privilege covers communications made directly to the president and among his White House advisers, it is far less clear that the privilege trumps Congress’s right to subpoena internal communications within an agency. . .

A White House spokesman cited several examples of Republican presidents asserting executive privilege to withhold agency documents not involving presidential communications.

Still, Mr. Obama appeared to adopt a narrower view of executive privilege during the 2008 campaign. Then a senator, Mr. Obama was asked by The Boston Globe whether he believed that executive privilege covered documents about decision-making within the executive branch not involving confidential advice communicated to the president.

He replied: “With respect to the ‘core’ of executive privilege, the Supreme Court has not resolved this question, and reasonable people have debated it. My view is that executive privilege generally depends on the involvement of the president and the White House.”

House Republicans adopted a more limited view of executive privilege as requiring White House involvement, suggesting it was a victory for their side either way.

For more background on recent assertions of Executive Privilege and those few cases in which courts have wrestled with the doctrine, some may be interested in this this CRS report from 2008.

UPDATE: At Monkey Cage, Andrew Rudalevige summarizes the development and use of Executive Privilege in recent administrations.


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White House Asserts Executive Privilege as Contempt of Congress Vote Looms

I have not been following the “Fast and Furious” scandal all that closely (or even much at all), but this seems like an interesting development for those who are interested in separation of powers questions.

President Obama asserted executive privilege over documents related to the “Fast and Furious” operation Wednesday as a House panel moved to hold Attorney General Eric H. Holder Jr. in contempt for failing to cooperate with a related congressional inquiry. . . .

Sharing the “Fast and Furious” documents “would raise substantial separation of powers concerns and potentially create an imbalance in the relationship” between Congress and the White House, Holder wrote in a letter to Obama delivered late Tuesday.

Releasing the documents “would inhibit candor of such Executive Branch deliberations in the future and significantly impair the Executive Branch’s ability to respond independently and effectively to congressional oversight,” Holder added.

The decision is Obama’s first use of executive privilege, which has been invoked throughout U.S. history by presidential administrations to preserve the confidentiality of information in the face of legislative inquiries. . . .

In response, House Oversight and Government Reform Committee Chairman Darrell Issa (R-Calif.), who led Wednesday’s hearing to review the contempt charges, said he learned of Obama’s decision early Wednesday and believes the move “falls short of any reason to delay today’s proceedings.”

As some may recall, in 2008 the U.S. House of Representatives voted to hold former White House counsel Harriett Miers and White House Chief of Staff Joshua Bolten in contempt of Congress for failing to answer questions about the mass firing of U.S. attorneys by the Bush Administration.  The vote was 223 to 32 because most of the House Republicans left the chamber for the vote.

UPDATE: This afternoon, the House Oversight and Government Reform Committee voted to [...]

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How President Obama Learned to Stop Worrying and Love Executive Power

In today’s NYT, Charlie Savage reports on how President Obama evolved from a fierce critic of unilateral exercise of executive power to a proponent.

As a senator and presidential candidate, he had criticized George W. Bush for flouting the role of Congress. And during his first two years in the White House, when Democrats controlled Congress, Mr. Obama largely worked through the legislative process to achieve his domestic policy goals.

But increasingly in recent months, the administration has been seeking ways to act without Congress. Branding its unilateral efforts “We Can’t Wait,” a slogan that aides said Mr. Obama coined at that strategy meeting, the White House has rolled out dozens of new policies — on creating jobs for veterans, preventing drug shortages, raising fuel economy standards, curbing domestic violence and more.

Each time, Mr. Obama has emphasized the fact that he is bypassing lawmakers. When he announced a cut in refinancing fees for federally insured mortgages last month, for example, he said: “If Congress refuses to act, I’ve said that I’ll continue to do everything in my power to act without them.”

This is not a new phenomenon. Both Presidents Clinton and George W. Bush relied upon executive authority to advance policy initiatives Congress failed to enact, though sometimes these efforts were rebuffed in court. What’s interesting, notes political science professor William G. Howell in the story, is President Obama’s transformation on the issue.

Some of the President’s initiatives involve aggressive assertions of executive authority, many of which are likely to be challenged in court. The D.C. Circuit is currently mulling the legality of the Environmental Protection Agency’s effort to rewrite the Clean Air Act with its “tailoring rule” and a lawsuit is pending against the President’s recess appointments to the National Labor Relations Board. Other initiatives, such [...]

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