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Posts Tagged ‘obama’

Catching Up on My Blog Posts

Posted by Peter M. Shane on June 30, 2014

I’ve tried to be reliable in making sure that there appear on Shane Reactions all blog posts and essays I have contributed to other online venues, but I’ve fallen behind.  In the event anyone is looking for my collected online venting (between October, 2013 and June, 2014, that is), here’s the list of what I neglected to cross-post:

Two Cheers for Recess Appointments, RegBlog (June 26, 2014).

The Non-Constitutional Non-Crisis, Slate (June 5, 2014) — about the Bergdhahl-GITMO detainee trade.

“Privatization” is Not “Privacy,” Huffington Post, Apr. 11, 2014.

The True Spirit of Law School Reform, Chronicle of Higher Education, (Mar. 12, 2014).

The Myth of the Anti-Government Constitution, The Atlantic (Jan. 11, 2014).

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Boehner vs. Obama: A farce, with a point

Posted by Peter M. Shane on June 30, 2014

To the skeptical, Speaker John Boehner’s threatened lawsuit against the President for not faithfully executing the laws seems a cynical attempt to appease a GOP faction that thinks “governing while Obama” is an impeachable offense. We might see the suit more charitably as a misguided stab at attacking a serious issue.

The rest of the analysis appears here.

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The Constitutional Stakes in Debt Ceiling Brinkmanship

Posted by Peter M. Shane on October 14, 2013

If you don’t think the current government shutdown and fight over the debt ceiling are a threat to constitutional government, you’re not paying attention.

In my 2009 book, Madison’s Nightmare, I described a systematic “attack on checks and balances between 1981 and 2009 [that] can very much be seen as an assault on a constitutional culture built on checks and balances norms.” Iran-Contra, the government shutdowns of 1995, the Clinton impeachment, and the efflorescence of presidential power claims under Bush 43 all exemplified that attack.  Each episode was rooted in “the relentless campaign of the right wing of the Republican Party since 1981 to steer the capacities of our national government towards the fulfillment of a conservative social, economic and foreign policy agenda.”

The Republican minority in the Senate and the current GOP House majority are now intensifying that campaign.  Its results portend disaster for checks and balances.  Not only does the effort hurt the economy and undermine the quality of government service, but the GOP’s hostility towards interbranch accommodation positions the President so that he (or his successors) will be more likely to respond with initiatives that can only further corrode an institutional culture of self-restraint that is essential to constitutional government.

Consider, in this respect, the debt limit imbroglio.  Scholars and other commentators have advanced at least five options for a presidential response should Congress not raise the debt limit.

One is the trillion-dollar coin option.  The Treasury would use its facially unlimited statutory power to mint coins to create a platinum coin in a large enough denomination to avoid default and deposit it in the government’s account in the Fed.  The obvious problem with this option, which the Administration has already foresworn, is that the statute’s plain purpose is to authorize the minting of commemorative coins.  Congress could not plausibly have intended the Treasury to use its mint authority to augment the government’s borrowing capacity.  Just as bad, it might be seen as compromising the independence of the Fed, which is indispensable to its credibility.

A second is the Fourteenth Amendment option.  The President would declare the debt limit statute unconstitutional and thus inoperable at the point of default because in violation of the Fourteenth Amendment command: “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”  The obvious problem here, as compelling as the historically based claim may be, is that, even if the President’s constitutional judgment is correct, it is not clear that the Fourteenth Amendment authorizes the President to create a remedy.  The White House has foresworn this option also.

A third option would be some form of prioritization.  The president could claim authority under the Impoundment Control Act to defer government spending other than paying off debt in such amounts as necessary to avoid further borrowing. He would presumably cite as his legal authority 2 U.S.C. sec. 684(b)(1), which authorizes deferrals to the end of the current fiscal year “to provide for contingencies.”  Of course, it would be odd to use the Impoundment Control Act to impose what would amount to the most ambitious presidential impoundment in history.  It would be turning the Impoundment Control Act on its head.

A fourth option would be a claim of some emergency authority inherent in the Constitution’s grant of “executive power.”  As suggested by Eric Posner: “[T]he president can declare an emergency and justify borrowing by citing reasons of state. . . .The president could invoke his ‘inherent’ executive powers under Article II of the Constitution (which vests the president with mostly undefined ‘executive’ powers).”  Unfortunately, there would be no obvious limit to the reach of such a precedent.  The argument that the Vesting Clause gives the President any robust set of unspecified domestic powers is dubious, to say the least, and Professor Posner’s suggestion could easily give root to a practice of presidential decrees utterly antithetical to a separation of powers.

Finally, the option I and others would favor – but which itself would also be audacious – is what I call the “faithful execution” option.  Professors Neil Buchanan and Michael Dorf have called this the “least unconstitutional” option, but I believe it would not be unconstitutional at all – just destabilizing.  Its premise is that Congress’s failure to raise the debt ceiling would leave the President with two irreconcilable demands – carry out Congress’s spending instructions as contained in current appropriations laws, but do not borrow money sufficient to carry out those instructions and repay debts already incurred.  It is as if he were told to drive simultaneously no faster than 45 miles per hour and no slower than 60.  The President cannot do both.

The solution under this option would be to interpret the appropriations laws as implicitly authorizing sufficient borrowing to allow the President to both carry out those laws and to repay U.S. debts on time, notwithstanding the debt limit statute.  Better he ignore one instruction than many, especially since ignoring many would involve making a host of budgetary prioritization decisions that are plainly matters for Congress, not the President.

Of course, were the President to pursue this option – or any of the others – it would likely remove any incentive for Congress ever again to legislate responsibly regarding a debt ceiling.  What one commentator has written about the trillion dollar coin option is only a slightly exaggerated assessment that applies to any unilateral presidential move to get Congress out of its hole:  “It would effectively mark the demise of the three-branch system of government, by allowing the executive branch to simply steamroller the rights and privileges of the legislative branch.”

A unilateral solution would also no doubt fuel calls for the President’s impeachment, which is currently a right-wing fantasy looking for a plausible legal hook.  For certain, the decline in our pre-1981 culture of interbranch accommodation would accelerate.

A British Prime Minister, Lord John Russell, famously observed: “Every political constitution in which different bodies share the supreme power is only enabled to exist by the forbearance of those among whom this power is distributed.”  Under the U.S. Constitution, the supreme power supposedly belongs to “the People,” but the absence of forbearance among those who exercise power in the People’s name threatens to render “the People” effectively powerless.  If Congress does not relent, believe me, things will get worse.

(This post appeared originally on the blog of the American Constitution Society.)

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In NLRB Recess Appointments Case, Roberts Court Can Now Show It Knows How to Exercise Judicial Restraint

Posted by Peter M. Shane on July 30, 2013

Bloomberg BNA yesterday published a brief essay of mine — a link to the full text appears below — arguing that, if the Senate confirms a full complement of members for the National Labor Relations Board, the Obama administration should ask the Supreme Court in Noel Canning v. NLRB to remand the case, without decision, to be re-heard by the NLRB. The Court should grant the request, showing a judicial restraint for which the Roberts Court is not known—and returning the recess appointments controversy to the elected branches of government, where it belongs.  If the SG does not pursue this course, the Court should use the political question doctrine to avoid unnecessary judicial interference with the dynamics of the President’s and Senate’s shared appointments power.

Peter Shane Argument for Judicial Restraint in Recess Appointments Cases

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Permitting Legislative Repeal by Blocking Nominations: The DC Circuit Recess Appointment Disaster

Posted by Peter M. Shane on January 31, 2013

From early in the 20th century through the 1980s, Congress had a habit of building into some of its legislation a little device called the one-House “legislative veto.” The idea was this: Congress would enact a statute allowing some federal agency to regulate something. But, with the one-House veto, either the House or Senate could take back that authority if it did not like the regulations the agency actually issued. In other words, a majority of one House could just change the law by itself, whether or not the other House (not to mention the president) agreed.

In a 1983 case  Immigration and Naturalization Service v. Chadha, the Supreme Court put a stop to this. The Court said that any action by Congress purporting to change the rights, obligations or legal relationships of persons outside Congress amounted to an exercise of the power to legislate. The Constitution, the Court said, gives Congress only one way to legislate: Majorities in both the House and the Senate must agree on a text to enact, and the president must sign it, or two-thirds of each House must vote to override the presidential veto. Neither the House, nor the Senate is entitled to make law all by itself.

In a January 25 ruling, however, the U.S. Court of Appeals for the DC Circuit pretty much assured the Senate exactly that power. Even worse, it afforded that power not to a majority of senators, but to a minority.

At stake in the ruling was the constitutionality of three appointments President Obama made to the National Labor Relations Board on January 4, 2012, during a recess of the Senate. Chiefly because of obstruction from the senators in the Republican minority, the Senate had already established a record of allowing administrative nominees to languish before confirming even noncontroversial appointments. (This included blocking a thoroughly qualified labor lawyer from the NLRB in 2010.) Rather than waiting to see that routine repeated, the president gave recess appointments to the NLRB nominees so that the Board could begin clearing a backlog  of hundreds of cases.

The current Senate confirmation process is a well-documented disgrace. A 2010 report  by the Center for American Progress found that, after a year in office, the Obama administration lagged behind all four previous administrations in terms of the percentage of Senate-confirmed executive agency positions. This was true, even though President Obama had actually spent fewer days making nominations than the three previous presidents. The reason: The Senate took longer to confirm President Obama’s nominees to executive agencies than nominees submitted by both Presidents Bush and by President Clinton.

The same rank partisanship is evident in the Senate’s dismal record on judicial appointments. A September, 2012 report by the Congressional Research Service looked at delays in confirming non-Supreme Court nominees deemed uncontroversial. We know they were uncontroversial because (1) their nominations were eventually reported out of the Senate Judiciary Committee favorably either by voice vote or by a unanimous roll call vote, and (2) their nominations were eventually approved by the full Senate by voice vote, or if a roll call vote was held, approved with five or fewer nay votes. The report’s key conclusions regarding post-1980 judicial confirmations were as follows:

“For uncontroversial circuit court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of 227.3 and 218.0 days, respectively, during the Obama presidency…For uncontroversial district court nominees, the mean and median number of days from nomination to confirmation ranged from a low of 69.9 and 41.0 days, respectively, during the Reagan presidency to a high of 204.8 and 208.0 days, respectively, during the Obama presidency.”

Which brings us to the DC Circuit opinion. The Constitution provides that the president may “fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session.” As interpreted by three GOP-appointed judges, this power is triggered, however, only if “the recess of the Senate” happens to be the break between its annual sessions — and then, yet more surprising, only if an office actually becomes vacant during that break. Because the NLRB vacancies had not opened up during the Senate’s intersession break, and the president did not make his recess appointments during that break, the court found them impermissible.

Under this view, however, it is painfully evident what a president may do if (a) he sends to the Senate a timely nomination for an executive branch position that becomes vacant while the Senate is formally convened and (b) a minority of senators just sit on the nomination and refuse to bring it to a vote. In a word, “nothing.”

The constitutional impotence that the DC Circuit would impose on the president means that filibustering senators can prevent an agency from functioning — thus effectively repealing the law that created the agency and authorizing its functions — simply by refusing to confirm an agency head or enough voting members to constitute a quorum.

Stopping law from being enforced as written was precisely the reason why GOP senators blocked Richard Cordray’s 2011 nomination to head the Consumer Finance Protection Bureau — which led to his recess appointment also on January 4, 2012. Having seen a prior NLRB nominee blocked for ideological reasons in 2010, President Obama decided to use the recess appointments power to make sure the agency would be up and doing business throughout 2012. That’s what the DC Circuit stopped.

Of course, the Senate is not intended to be a rubber stamp. Senators who believe a presidential nominee is unqualified are entitled, if not obligated, to vote the nominee down. But stalling nomination votes simply to keep laws from being enforced — effectively repealing the laws that cannot be enforced without the nominees in place — is utterly inconsistent with the Senate’s proper confirmation role. It amounts to one-House lawmaking, and violates the spirit, if not the letter of the Constitution.

The DC Circuit opinion licenses something actually worse than the legislative veto. It allows legislation by obstruction. If the court’s ruling stands, we’re surely going to see more of it.

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Two More Reasons Why the D.C. Circuit was “Wrong” and “Wrong” on Recess Appointments

Posted by Peter M. Shane on January 30, 2013

The opinion of the U.S. Court of Appeals for the D.C. Circuit voiding President Obama’s recess appointments to the NLRB is a little like a Rob Schneider movie — the more you think about it, the worse it seems.

The opinion purports to rest on a historically grounded reading of Article II of the Constitution. The relevant text says, “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

All three D.C. judges read this language to mean that the President may fill vacancies only between “sessions” of the Senate – that is, between the period of time between when the Senate adjourns “sine die” (without a date) at the end of one year’s business and when it first assembles for the next year’s business. The first of these dates typically occurs in late fall. Under the Twentieth Amendment to the Constitution, the second date is now January 3 of each year.

Two of the three judges read into the language an additional limitation.  They asserted that the President may fill only those vacancies that first arise during intersession breaks. If an advice-and-consent position becomes vacant, say, on January 4, and the Senate leaves town for the whole summer after sitting on the President’s nomination for six months, the President is just out of luck. As these judges read the Constitution, the President may not even fill the vacancy if it still exists when the Senate finally does adjourn sine die.

This second conclusion is ludicrous as a practical matter, and history utterly refutes it. Felix Frankfurter wrote in his famous Youngstown concurrence: “Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them.” In this case, executive branch interpretation long ago rejected the D.C. Circuit view of appointment-eligible vacancies, and Congress itself has decisively accepted the executive branch view.

In 1823, Attorney General William Wirt concluded in a formal opinion that the Article II phrase refers to all vacancies that happen to exist during “the Recess.” This was, he wrote, “the only construction of the Constitution which is compatible with its spirit, reason, and purpose.” As explained in a recent report  by the Congressional Research Service, beginning in 1855, formal Attorneys General opinions accepted the Wirt interpretation, “even with respect to newly created offices that had never been filled.” The question first reached a federal court in 1880, and that court, like every other court to reach the issue until last week, accepted the Wirt view as proper.

Yet more remarkably, we know that Congress itself has endorsed this interpretation. In 1940, Congress codified a statute, 5 USC 5503, which purports to limit the circumstances under which a recess appointee can be paid from Treasury funds. In general, the statute bars payment to “an individual appointed during a recess of the Senate to fill a vacancy in an existing office, if the vacancy existed while the Senate was in session and was by law required to be filled by and with the advice and consent of the Senate, until the appointee has been confirmed by the Senate.”

But Congress gave its rule three exceptions. A recess appointee may be paid “if the vacancy arose within 30 days before the end of the session of the Senate.” A recess appointee may be paid, “if, at the end of the session, a nomination for the office, other than the nomination of an individual appointed during the preceding recess of the Senate, was pending before the Senate for its advice and consent.” A recess appointee may be paid “if a nomination for the office was rejected by the Senate within 30 days before the end of the session and an individual other than the one whose nomination was rejected thereafter receives a recess appointment.”

All of these exceptions – crafted by the legislative branch itself – obviously refer to and acquiesce in recess appointments to positions that became vacant while the Senate was in session. This is nothing less than explicit congressional ratification of the position that the D.C. Circuit rejects. To quote Frankfurter again: “[A] systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on ‘executive Power’ vested in the President by § 1 of Art. II.” The D.C. Circuit should have heeded this wisdom.

The court also got the first issue wrong in insisting that the only recess to which Article II refers is “the recess” between formal sessions of Congress. As a wise commenter on one of my earlier posts pointed out, this a plausible reading only if the Framers magically anticipated how Congress, not yet in existence, would organize its calendar. In fact, nothing in the Constitution suggests that the Framers anticipated that a Congress would organize itself into sessions of any particular length, much less sessions that formally begin with an opening call to order and go into “the recess” only by adjourning sine die.

In addition to the Recess Appointments Clause, references to a “session” of Congress occur in two other places in the original Constitution. Under Article I, section 5, “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.” The most natural reading of this clause is that “the Session” refers to whenever Congress is sitting. Nothing dictates that “the Session” referred to will last a day, a month, or a year.

Indeed, if “the Session” is read to refer to an assembly of specific duration, the most natural reading would equate “the Session” with an entire two-year congressional sitting, what we now call, “a Congress.” Importing that meaning into the Recess Appointments Clause would yield the remarkable result that a recess appointee who takes office early in January of an odd-numbered year might be entitled to serve for nearly four years thereafter.

Section 6 of Article I similarly provides that members of Congress “shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses.” Again, “the Session” appears to refer simply to when a House of Congress is actually meeting.

It would seem to follow most naturally from these references to “the Session” that the article “the” does not really have a limiting semantic function in these clauses. The D.C. Circuit’s obsession with “the” in the phrase, “the recess,” is just nonsense. “The Recess” should be understood in the same informal, functionally sensible way as we understand “the session.” That is, when Congress is assembled to do business, it is sitting in “the Session.” When the Senate is not around to do business, it is in “the Recess.”

It might be said that my interpretation of the Constitution licenses too much executive mischief. Presidents might construe the Senate’s lunch hour as a “recess.” Or they might withhold nominations until a Senate break in order to avoid advice and consent altogether. But, of course, as recent history has shown, Congress can work mischief of its own. The Senate can hold up patently qualified nominees interminably. Or a majority of the House of Representatives may disable the Senate from going into “the recess” for no reason other than to preserve the filibustering prerogatives of a Senate minority.  My reading of the Constitution does not create a judicially enforceable route around such mischief, but it does establish parity between the branches when it comes to the appointments process, which is appropriate for a checks and balances system.

As the Supreme Court has said over a century ago and repeatedly since, “the possible abuse of a power is not an argument against its existence.” The restraints on interbranch shenanigans are most powerfully the checks and balances built into the Constitution and the accountability of our political leaders to the electorate. It may be the province of the courts to say what the law is; it is not their province to cut bright-line rules from whole cloth that run counter to text, constitutional history and good sense.

The D.C. Circuit panel just blew it.  Deuce Bigelow anyone?

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Judicial Activism and Recess Appointments

Posted by Peter M. Shane on January 25, 2013

On Wednesday, January 4, 2012, President Obama appointed three new members for the National Labor Relations Board.  He also named Richard Cordray to serve as director of the Consumer Financial Protection Bureau.  To do so, he invoked his recess appointments power under Article II, Section 2, paragraph 3 of the Constitution.  This is the power “to fill up all Vacancies that may happen during the Recess of the Senate.”

The majority Democrat Senate, in this case, had previously convened most recently on Tuesday, January 3, 2013 for a session that lasted 41 seconds.  These 41 seconds were devoted to two items.  The first was a reading by the Senate clerk of a letter from the Senate’s then-President Pro Tem, Senator Inouye.  The letter confirmed the appointment of Senator Mark Warner for the day to perform the duties of the Chair.  The second item was Senator Warner performing exactly one such duty.  Namely, he adjourned the Senate until its 29-second session on Friday, January 6.  Senators living close to D.C. had been performing these rituals at three-day intervals since December 20, 2011.  Their performances implemented a Senate order, adopted by unanimous consent on December 17, providing that the Senate would then adjourn but, until January 23, 2012, convene every three days for “pro forma sessions only, with no business conducted.”  The reason for this ritual was the decision of the majority Republican House of Representatives, under Article I, Section 5, Paragraph 4 of the Constitution to withhold its consent to a Senate adjournment of longer than three days.  The House Republicans were of the view that keeping the Senate on a three-day leash would prevent the President from making recess appointments and doing an end-run around the Senate Republicans’ filibusters.

For all the controversy surrounding these appointments, they were clearly constitutional if either of two things is true.  They were constitutional if, despite the pro forma sessions, the Senate was in recess from December 20 until January 23.  If that hiatus amounted to a “recess” for purposes of Article II, Section 2, then the President’s exercise of his appointment prerogative was permissible.  The appointments would also be constitutional, of course, if the three-day hiatus between January 3 and January 6 was a “recess” for constitutional purposes.  The President had plausible arguments either way.

On Friday, January 25, 2013, however, three GOP-appointed judges on the U.S. District of Columbia Circuit held the NLRB appointments unconstitutional.  The NLRB, the court found, had properly determined that the petitioner, Noel Canning, had committed an unfair labor practice.  However, the Board’s order could not be enforced because three of its members were appointed unconstitutionally and, without those members, the Board lacked a quorum.

This is not a slam dunk legal issue.  The Justice Department’s Office of Legal Counsel had issued a well-reasoned opinion asserting the permissibility of the appointments.  For his part, Charles J. Cooper, a former OLC head under President Reagan, provided a thoughtful rebuttal in testimony to the House Education and Workforce Committee.

What is striking, therefore, about the D.C. Circuit opinion is not its bottom line, but the scope of its reasoning.  Despite a pretense of constitutional modesty, the court decided the Recess Appointments issue — which the appellant had not raised to the NLRB itself — on the broadest possible ground. The court decided not that the Senate’s pro forma sessions prevented it from having a sufficiently long recess or even that its conceded three-day adjournment was too short to count as a recess. Instead, it held that recess appointments may occur only if the Senate is between sessions, for example, after it has adjourned for the first session of the 113th Congress, but before the 2nd session convenes.

Then, for good measure, two of three judges held the appointments impermissible because the NLRB seats did not actually become vacant during such an intersession recess. As they read the Constitution, unless an office actually becomes empty during a recess, it cannot be filled during a recess.  (As the third judge observes in a separate opinion, this second holding disregards about 190 years of contrary understanding by Congress and the Executive.)

Regarding a different body — a judicial appointment, in fact — the U.S. Court of Appeals for the Eleventh Circuit has squarely held that presidents may make recess appointments within sessions of the Senate, not just between them.  Because of the conflict now between two circuits, there seems little doubt that, if the Administration wants to bring the NLRB case to the Supreme Court, the Court will hear it.

The court’s key defense of its interpretation of “recess” to mean only a recess between sessions is that no other interpretation would provide the courts an easy-to-implement bright-line rule.  It is worth noting, however, that – like many bright-line rules – this one makes little sense.  As recounted by Senate associate historian Betty K. Koed (and quoted by reporter Al Kamen), “At high noon on Dec. 7 1903,” the Senate president pro tem brought down the gavel to end one session of the Senate and then immediately brought a second session to order.  “In that moment between sessions,” she wrote, “during that split-second of time it took . . . to wield the gavel, President Theodore Roosevelt made 193 recess appointments.”  These appointments would have satisfied the D.C. Circuit’s bright-line rule.

Conversely, should the 2013 Senate, within a single session, now leave town for three months with key executive branch positions unfilled, the President – according to the D.C. Circuit – may do nothing.  I dissent.

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THE HYSTERIA OVER OBAMA EXECUTIVE ORDERS

Posted by Peter M. Shane on January 17, 2013

Not being a psychiatrist, I don’t really understand why the President’s fairly modest efforts at gun policy reform seem to have utterly deranged some of his political opponents.  But talk of impeachment in connection with his gun-related “executive orders” is, to put it mildly, ridiculous.

To put matters in context, it helps to understand “executive orders.”  These are presidential directives – sometimes formally called “executive orders,” sometimes not – that are issued to help manage the federal government.  There is no authoritative definition of “executive orders” that distinguishes them from “presidential memorandums,” “presidential proclamations,” or – as in the case of the George W. Bush first directive on military commissions – just “orders.”  The Federal Register Act lumps them together with “presidential proclamations” as documents that, with some exceptions, must be made public.

Although some news outlets reported that President Obama signed 23 executive orders relating to gun violence in America, he actually signed only three.  Although they were called, “Presidential Memorandums,” two, at least, were indistinguishable from run-of-the-mill executive orders in that they applied to the heads of all executive departments and agencies.  The other, addressed to a single agency, takes a form that would typically be called a “memorandum.”

Executive orders, like any other form of presidential initiative, must be rooted in some form of legal authority.  Some are issued in the President’s constitutional chief executive capacity, and set forth managerial requirements for specified federal operations.  Some are issued pursuant to explicit authority delegated to the President by statute, or are issued as a way of complying with obligations Congress has imposed on the President or the executive branch more generally.

What executive orders cannot do is impose obligations or restrictions on the public, unless Congress, through legislation, has expressly or implicitly conferred authority on the President to do so.  It is worth noting that none of President Obama’s executive orders on gun violence do any such things.

One of these memorandums requires federal agencies to step up their efforts to comply with the NICS Improvement Amendments Act of 2007.  As the memorandum explains, “Among its requirements, the NIAA mandated that executive departments and agencies (agencies) provide relevant information, including criminal history records, certain adjudications related to the mental health of a person, and other information, to databases accessible by the NICS.”  The memorandum puts the Justice Department in charge of coordinating government-wide compliance with the Act, and requires agencies to keep the President and the Justice Department informed of their progress.

Not only is this a constitutionally unremarkable order, but it perfectly comports with the President’s constitutional obligation to take care that the laws be faithfully executed.

A second memorandum directs the Departments of State, the Treasury, Defense, Justice, the Interior, Agriculture, Energy, Veterans Affairs, and Homeland Security, and potentially other agencies and offices that “regularly recover firearms” in the course of their investigative activities to ensure that such firearms are “traced through ATF at the earliest time practicable.”

The memorandum asserts, “Over the years, firearms tracing has significantly assisted law enforcement in solving violent crimes and generating thousands of leads that may otherwise not have been available. . . .If Federal law enforcement agencies do not conscientiously trace every firearm taken into custody, they may not only be depriving themselves of critical information in specific cases, but may also be depriving all Federal, State, and local agencies of the value of complete information for aggregate analyses.”

This memorandum is thus an unremarkable presidential exercise in priority-setting.  Federal agencies have the authority to trace the firearms they take into custody.  The President is saying, “Do it quickly.”

The third memorandum directs the Secretary of Health and Human Services, through the Director of the Centers for Disease Control and Prevention and other scientific agencies within her department “to conduct or sponsor research into the causes of gun violence and the ways to prevent it.”  This also is a pure exercise in agenda-setting.  HHS and the CDC already have legal authority to conduct or sponsor research on public health problems.  The President is telling them to put “gun violence” on the list of things they research.

In short, none of these memorandums requires the public to do anything, expands the powers of the federal executive, or evokes even remotely the ghost of George III.  So, please, let’s get a grip – preferably not pearl-handled.

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The Two-Mandate Myth: An Ohio View

Posted by Peter M. Shane on November 8, 2012

Within moments of President Obama’s apparent victory in both popular and electoral votes, Speaker Boehner was claiming that Republicans enjoy their own mandate from the 2012 elections – Republicans kept control of the House. I’m searching in vain for a polite word for this argument.

With unemployment still near 8 per cent and a majority of voters thinking the country is on the wrong track, the Democrats nonetheless not only retained the White House, but increased their majority in the Senate and racked up a string of victories, coast-to-coast, for unmistakably progressive causes and candidates. They won these victories because, in a head to head contest with opposing views, the Democratic or, more generally, the progressive, view proved more appealing.

The reason why the Republicans still have the House is simple: gerrymandering. According to NYU’s Brennan Center for Justice, Republicans used their complete control of 17 state governments after the 2010 elections to pack Democrats into fewer “safe” Democratic districts and create 11 additional “likely” seats for Republicans – that is, seats where the GOP could be expected to routinely receive 55-60% of the vote in a two-party contest.

Not surprisingly, the Rothenberg Report, using its own definitions and polling data, found the GOP with 205 safe seats on the eve of the election; they needed to prevail in only 13 competitive races to maintain control of the House.

Consider the case of Ohio. President Obama won by two points. Sherrod Brown beat  Josh Mandel by a little over 5. With 16 congressional seats up for grabs, it would stand to reason, would it not, that the districts would split perhaps evenly?

Instead, Ohio’s House delegation will go 75% to the Republicans, with only four seats going to Democrats. All four Democrats won in packed Democratic districts. Indeed, the 11th District was so uncompetitive for Republicans, and the 8th District – John Boehner’s – so hopeless for Democrats, that those two representatives ran unopposed. Only 3 of the 16 elected representatives won by under 55 per cent of the vote. Counting the two unopposed incumbents, 8 won by over 60 per cent. Mapmaking is a beautiful thing.

Another way to look at this is to compare the total votes cast for each party’s congressional candidates. Of the 4,849,628 Ohioans who voted for a Democratic or Republican candidate for Congress in 2012, 2,545,368, or 52.5 percent, voted for a Republican and 2,304,260, or 47.5 percent voted for a Democrat. Apply these percentages to a 16-seat delegation and you get an 8-8 split if the delegation is apportioned according to the popular vote.

In gerrymandering the state, Ohio’s Republican legislature and governor not only gave the party an unearned gift of four congressional seats, but probably made it harder to recruit the strongest Democratic candidates for all contested elections. Running as a candidate in a district where voting registration favors the other party by a 20-point margin means you will not only lose, but you are unlikely to get the kind of funding or volunteer support necessary to stave off total embarrassment.

So let’s not be confused. November 6, 2012 provided a conspicuous electoral mandate for a progressive agenda in the United States. The Republicans could stack the deck for House elections (although they still lost seats, mind you). But when the dealer working a stacked deck gets a full house — or, in this case, a full House — it’s not a mandate for the dealer. It’s just the fruit of (in this case, lawful) cheating.

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Why contempt case against Holder may be doomed

Posted by Peter M. Shane on June 21, 2012

(CNN) – For veteran Congress watchers, President Barack Obama’s formal claim of executive privilege regarding certain Justice Department documents related to Operation Fast and Furious will generate a sense of déjà vu.

Disputes over legislative access to executive documents occur in almost every presidential administration. Their resolution inevitably entails a set of legal and political considerations that change from episode to episode.

Unfortunately for the House Committee on Oversight and Government Reform, its legal position is uncertain at best, and almost all political considerations would seem to favor the White House.

Whether or not the full House votes Attorney General Eric Holder in contempt, the likeliest resolution will be an informal settlement in which the Justice Department expands slightly on its current offer of disclosure, the committee narrows the range of documents it is demanding, or both compromise in a mutual, face-saving gesture. . . .

For the rest of my analysis, see http://www.cnn.com/2012/06/21/opinion/shane-holder-contempt/index.html

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