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Posts Tagged ‘separation of powers’

OLC’s Skillful Defense of President Obama’s Recess Appointments and Its Possible Aftershocks

Posted by Peter M. Shane on January 13, 2012

The Justice Department’s release of on Office of Legal Counsel (OLC) opinion regarding President Obama’s recess appointments power is a welcome display of public accountability. However one analyzes the bottom line, the opinion is a model of the genre. It is thorough in its analysis, candid about points that are novel or untested, and serious about engaging what it acknowledges to be substantial counterarguments. This is evidence of an OLC that is doing its job.

For separation of powers aficionados, what ought to most interesting is the OLC opinion’s primary line of attack. I had earlier defended the President’s right to make recess appointments even during a three-day recess – an argument that, in a footnote, the OLC opinion holds in reserve. OLC’s main conclusion, however, is that the recent pro forma sessions were of no constitutional significance in interrupting what was effectively a 20-day recess. OLC thus followed earlier Attorney General Opinions that had judged the concept of “recess” functionally, by whether “in a practical sense the Senate is in session so that its advice and consent can be obtained.”

The OLC analysis is arguably the more institutionally modest position because it is better grounded in historical precedent. Its functional approach also resonates with Supreme Court and D.C. Circuit opinions dealing with a structurally similar question, namely, when does Congress “by their adjournment” prevent the President from returning a veto message, thus triggering the President’s power of “pocket veto” – i.e., the power to prevent an enacted measure from becoming law without an actual veto if, on the tenth day following the measure’s presentation to the President, Congress is not in session to receive the President’s message. In the 1938 case of Wright v. United States, the Supreme Court held that, even when the Senate was concededly in a three-day recess, it had not prevented the President from vetoing enacted bills because the Secretary of the Senate remained available to receive the veto message. The OLC opinion, like Wright and, even more conspicuously, Wright ‘s D.C. Circuit progeny, seeks a constitutional reading that most pragmatically facilitates the system of checks and balances by respecting the core powers of each political branch.

(Interestingly, Professor Laurence Tribe had earlier offered yet a different analysis — that the Constitution confers “an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes,” and that pro forma Senate sessions during what would otherwise appear to be a substantial recess could not defeat the President’s power when such sessions “manifestly” served no purpose other than to serve as a “transparently obstructionist tactic.”)

As much as I admire the restraint and thoughtfulness of the OLC opinion, however, I have only a limited hope that it will put a stop to interbranch game-playing. Perhaps the toughest point for OLC to counter was that, during two pro forma sessions – one last summer and one this winter – the Senate actually did pass legislation by unanimous consent, thus seeming to be “in business.” OLC’s counter to this was rather technical, namely, that the scheduling orders during which the pro forma sessions were held explicitly provided that there was to be “no business conducted.” “In our judgment,” the opinion states, “the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions.”

That’s fair enough, but let’s imagine a few scenarios. What if, for example, the Republicans take the Senate in 2012, but President Obama is reelected? It seems quite likely that the pro forma ritual will continue, but with the Senate modifying its scheduling orders to make the possibility of doing business seem more plausible. Perhaps the pro forma sessions will occur daily, rather than every three days.

Or, imagine, as is less likely, that the Democrats retain the Senate but President Obama loses the White House. The Democrats, eager to prevent controversial nominees from getting recess appointments, could well try to prevent them the old-fashioned way – by actually scheduling floor action and voting them down. Will we then see Republicans using the filibuster to prevent such votes, not in the hope that the Senate will ever approve the nominees in question, but to keep the nominations alive and the vacancies open, so President Obama’s Republican successor may appoint them during a recess?

In our analyses of President Obama’s recent appointments, both Professor Tribe and I stressed that the appointments were limited to vacancies that, if they persisted, would prevent the agencies involved from actually executing the laws they were charged with enforcing. Of course, there is no guarantee that any successor to President Obama (or even President Obama himself on another occasion) will observe such restraint.

And, on top of all of this, the President seems to have his own textually explicit nuclear option. He is authorized by Article II to adjourn Congress unilaterally “to such time as he shall think proper.” If courts interpret the Recess Appointments Clause to require adjournments of, say, ten days or more in order to be triggered, there is no obvious bar in the text to the President adjourning Congress for ten days to accomplish precisely that end.

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 our Constitution, of course, it is “the People” who hold the supreme power. But we have effectively delegated the exercise of government power to a set of partly autonomous, partly interdependent institutions to which we have allocated both authorities and dependencies in the hope of effective governance. Yet, “forbearance of those among whom . . . power is distributed” is not much in evidence these days. As much as I applaud the President’s recent actions and the skillful defense OLC has offered, I thus find it difficult not to worry about the aftershocks.

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Recess Appointments and President Obama’s Surprising Restraint

Posted by Peter M. Shane on January 6, 2012

For all the brouhaha surrounding President Obama’s recess appointments this week of three new members for the National Labor Relations Board and of Richard Cordray to serve as director of the Consumer Financial Protection Bureau, what is most surprising – and most welcome from a constitutional perspective – is the President’s restraint in his use of the recess appointment power. What’s scary is the precedent it may set for other Administrations’ less judicious use of that power.

Article II of the Constitution authorizes the President “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.” The Constitution does not require that the recess be of any particular length or for any particular reason. The Senate was out on a three-day hiatus when President Obama made his appointments. His act squares neatly with the constitutional text.

Some observers may be confused by the Article I provision stating: “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .” Because the House (at the behest of Republican Senators) is currently not allowing the Senate to adjourn for more than three days, the Senate has been going through a repeated ritual of convening in “pro forma” session every third day, but without any capacity to do legislative business. (Harry Reid invented this technique in 2007 to forestall recess appointments by George W. Bush.) But there is no constitutional requirement that a Senate recess triggering the President’s appointments power be an adjournment to which the House of Representatives has consented.

The most colorable objection to the Obama recess appointments is that they arguably flout a norm, or informal custom, of interbranch interaction. That is, Presidents ordinarily do not resort to their recess appointment power during short recesses. It is understood on both sides that the Framers originally contemplated a Congress that would convene only a few months a year. They gave the President a power of recess appointment so that he could keep the government functioning effectively even when federal legislators had returned to their far-flung farms, law offices, or other places of non-government business. Recognizing that the recess appointments power was thus conferred for a limited purpose and not in order for Presidents to lightly circumvent the Senate’s confirmation role, Presidents have typically – though not invariably – used their recess appointment power sparingly. (A good nonpartisan account appears here.)

As I argued in my 2009 book, Madison’s Nightmare, norms of this sort are essential to the effective functioning of any separation of powers system – perhaps to any non-dictatorial system of government at all. A system of separated powers can work only if each branch refrains from pressing its powers to the utmost limits of textual plausibility under a written Constitution. However aggressive the interbranch competition for policy influence, each branch must ultimately respect the purposes and capacities that the Constitution assigns to its sister branches. From the end of the McCarthy era through the end of the Carter Administration, Congress and the executive typically acted in this spirit of mutual restraint, even as the country navigated its way through the upheavals of Vietnam and the civil rights revolution.

Since the Reagan Administration, however – and most especially since the second Reagan Administration – these norms have been under steady attack. The attackers usually – though not invariably – are right-wing Republicans who quite correctly view a checks and balances system as an obstacle to their capacity to jerk our national government onto a profoundly more conservative course than is warranted by public sentiment.

For example, nothing in the Constitution explicitly forbade the Reagan Administration to circumvent the appropriations process and fund its own foreign policy in Central America. Nothing in the Constitution explicitly rejects lying about a sexual affair as a ground for impeachment. Nowhere does the Constitution impose a time limit on Senate consideration for routine executive and judicial appointments. But the Iran-Contra affair, the Clinton impeachment, and the GOP use of the Senate filibuster to impose unprecedented delays in staffing both the executive and judicial branches nonetheless stand out as breaches of constitutional governance. These practices may or may not be unconstitutional, but they exhibit a glaring disrespect for the purposes and capacities assigned to non-GOP-controlled government institutions.

Seen in this light, President Obama’s recourse to his recess appointment power was really the only plausible way of responding to a pattern of Senate behavior – induced by the Republican minority – that paid no regard to his authority and obligation to appoint officers of the United States to a host of positions critical to effective governance. It is notable that he targeted his latest appointments with just that limiting principle in mind – that is, he filled vacancies only in agencies that were utterly disabled from carrying out their legally assigned missions because leadership nominations were languishing in the Senate.

Constitutionally, President Obama could have gone further. He could have filled other executive branch positions that the Senate has been holding hostage for reasons unrelated to the merits of the nominees. He could have filled judicial vacancies. He could have used his power under Article II to adjourn Congress, thus creating his own recess of the Senate during which he could make these appointments.

That President Obama has not gone to these lengths demonstrates a commendable inclination to continue to respect the Senate’s confirmation power. It also continues a tradition of making recess judicial appointments only in extremely rare circumstances, in large part because – although such appointments are constitutional under the text – their limited duration stands in tension with the Framers’ conspicuous commitment to judicial independence, embodied in the constitutional guarantee of lifetime tenure.

Some Senate Republicans have apparently reacted to President Obama by threatening to be even less cooperative with the executive branch. But it’s hard to see how much less cooperation they could offer. The intransigence of the House Tea Party Caucus, plus the GOP Senate minority’s filibuster abuse, has rendered the 2011 session of Congress the least productive in terms of non-trivial legislation since the late 19th century. The White House has correctly discerned that the public has tired of this obstinacy. As Larry Lessig has said, our uncooperative Congress has earned approval ratings probably lower than the approval ratings of Parliament in the thirteen colonies on the eve of the American Revolution. (One suspects, if the public were yet more familiar with the bills the House was trying to pass, its opinion would actually be even lower.) For this reason, the White House is surely undaunted by the prospect of congressional hearings examining its appointments powers. The charts and graphs the Administration can produce illustrating the current Senate’s unprecedented delays for even the most routine appointments would make for impressive video.

The real danger in the latest recess appointments is that subsequent Presidents may well use President Obama’s expansive understanding of “recess” to staff courts and agencies with controversial nominees who they know Senators are opposing on the merits. In a fine analysis of the situation, Larry Tribe has argued that the Cordray and NLRB appointments do not “free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments.” He concludes that “the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority. Article II charges him to ‘take care that the laws be faithfully executed’; this duty, combined with appointment and recess-appointment powers, requires an irreducible minimum of presidential authority to appoint officials when the appointments are essential to execute duly enacted statutes.”

I have two related fears about this speculation, however. The first is that, although Professor Tribe has stated an excellent limiting principle for the exercise of the recess appointments power, it is not clear that courts would enforce it. Federal courts typically resist getting in the middle of power clashes between the elected branches, and sorting out which recess appointments are and are not proper under even a normatively compelling (and easy to enforce) constitutional principle may simply be a job they are unwilling to do.

My second fear is based on the right-wing’s willingness – even eagerness – to accelerate whatever innovations in interbranch struggle that the Democrats originate. The Democrats want to filibuster appellate court nominees? Fine, the Republican will filibuster trial court nominees. A Democratic Senate majority comes up with an “in forma session” ruse to try to stop a Republican President from making recess appointments? Fine, a GOP Senate minority will seek to accomplish the same result by enlisting the GOP House majority to stop the Senate majority from adjourning. Talk about using a constitutional power for an unintended purpose!

President Obama’s most recent recess appointments are themselves a modest counterpunch against attempts by House and Senate Republicans to subvert his capacity to perform his constitutionally assigned role. If the Senate wants the President to back off, it should start performing its confirmation role responsibly. If recent history is any guide, however, Republican leaders – who no doubt hope to control both ends of Pennsylvania Avenue in 2013 – will be thinking up rather different contingency plans should divided government persist. These plans are likely to intensify an already corrosive breakdown of interbranch norms of respect and cooperation that are the key to effective governance.

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What May a President Do if He Cannot Pay Our Bills Without Borrowing and Borrowing More Money is Unlawful?

Posted by Peter M. Shane on July 19, 2011

An obvious question, should Congress not manage to fend off default within the next two weeks, is: What does the President do then?  If the President cannot pay off America’s creditors and keep all government programs running, what legal authority does he have to deal with the crisis?

A little history helps to put the answer in context.  In the nineteenth century, Congress simply did not have a budgeting process.  It appropriated funds for various federal purposes, confident that customs revenues would outpace federal spending.  In the unlikely event – unlikely, that is, before the Civil War – that appropriations outpaced revenues, Congress implicitly left it to the President to keep expenditures and revenues in line by not spending appropriations that were permissive rather than mandatory.

Congress did not adopt a formal budgeting process until 1921, when it created the Bureau of the Budget (now, the Office of Management and Budget) in the White House and the Government Accounting Office (now, the Government Accountability Office).  The 1921 Budget Act was the first to task the President with presenting Congress each year with a proposed budget for its consideration.

Flash forward now to the Nixon Administration.  Congress had created a statutory framework to help structure the exercise of executive branch spending discretion.  But Nixon, misinterpreting nineteenth century practice, insisted he had inherent constitutional authority to “impound” – that is, not spend – government funds that he thought had been unwisely appropriated.

In the wake of Watergate and in response to Nixon’s abuses of impoundment power, Congress rebelled.  It said, in effect, that whatever authority presidents enjoyed to manage government funds was a consequence of authority delegated to the President by Congress, either implicitly or explicitly.  And to prevent any future claims of inherent presidential impoundment authority under the Constitution, Congress enacted the Congressional Budget and Impoundment Control Act of 1974 (ICA).

Simplifying things a bit, the ICA can be understood as dividing presidential decisions not to spend appropriated money into two categories – rescissions and deferrals.  Rescinding funds means never spending them; deferring funds means not spending them right away.

The ICA basically took away any presidential right of rescission.  If the President wants to cancel altogether some congressionally authorized spending, he must send his recommendation to Congress.  The rescission then occurs only if, within 45 days, Congress enacts a new statute approving the proposed non-spending.  In other words, unless Congress affirmatively approves the President’s decision, sooner or later, he has to spend the money Congress appropriates for mandatory expenditure.

In 1974, however, Congress treated deferrals differently.  Presidents could propose to defer authorized spending for a fixed period of time, and those proposals would take effect unless either the House or the Senate voted to override the proposal – a so-called legislative veto.  The problem with this arrangement turned out to be that legislative vetoes are unconstitutional.  So said the Supreme Court in 1983.

At that point, the question became:  Did the President now retain his authority to defer spending, no longer subject to a legislative veto?  The U.S. Court of Appeals for the District of Columbia Circuit answered, “Sometimes.”

Sometimes, that is, Presidents want to defer spending because they think Congress did the wrong thing in funding a particular project or activity.  Deferring spending on such programs really amounted to a policy objection to Congress’s approved programs or activities.  According to the D.C. Circuit, the Supreme Court’s decision to nullify legislative vetoes effectively took the President’s power of “policy deferral” away.  Congress would never have enacted any policy deferral authority in the wake of the Nixon Administration, unless it knew it could retain legislative veto authority.  In “law-speak,” “policy deferral” authority could not be “severed” from the legislative veto.

Sometimes, however, presidents want to defer spending because, however, unobjectionable a program, deferring spending is necessary to provide for unforeseen contingencies.  Sometimes, for example, deferred spending enables the government to achieve savings through unanticipated efficiencies or changes in program requirements.  Such “programmatic deferrals,” according to the Court of Appeals, were still permissible.  They were instances of good management, not policy resistance.

Reacting to this decision, Congress amended the ICA to reflect the policy-versus- program distinction.  The ICA now basically prohibits “policy deferrals,” but allows “programmatic deferrals.” The President may recommend deferrals to achieve savings or otherwise “to provide for contingencies.”  Such deferrals take effect unless Congress affirmatively legislates to overturn them – which, of course, the President may veto if he chooses.

So, this is where the President would stand on August 2 if informed that government spending at current rates cannot continue without further borrowing, which, in turn, would violate the statutory limit on incurring government debt.  The President could claim authority to defer government spending 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 provide for contingencies.”

Of course, exercising his statutory “programmatic deferral” authority in this way would be deeply ironic; the President could select expenditures to defer or not defer only by making policy judgments about spending levels that are different from the policy judgments that Congress enacted in its appropriations Acts.  In the words of separation of powers scholar Louis Fisher:  “Recognizing a broad power of impoundment by the President to handle the federal government in the absence of a higher debt limit would permit the President to radically change budget priorities by deferring this but not that — precisely the same kind of power that got Nixon into trouble.”

And yet there seems no other option.  If there is not enough money in the till to pay all the bills that are due and further borrowing is impermissible, something has to give.  The idea that the Fourteenth Amendment empowers the President to unilaterally raise the debt limit is implausible.  The President has statutory authority to respond to contingencies; he would have to use it.

Because nothing in the ICA would instruct the President on what basis to choose appropriations to defer – that is, what commitments not to keep — he would have to decide, on his own initiative, what projects and activities to put on hold to keep from violating the law.  Congress would thus have tacitly abdicated to the executive branch a huge swath of the power over government fiscal policy that the Framers quite deliberately vested in Congress.  The results, for good government — and certainly, for government as know it — would be calamitous.

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Madisonianism Misunderstood: A Reply to Professors Posner and Vermeule

Posted by Peter M. Shane on April 8, 2011

I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note.  Theirs is a challenging, provocative work.  Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking.  To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power. 

In addition, two implications emerge from The Executive Unbound that I wholeheartedly support.  One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program.  The second is the importance of strengthening the institutions that check the President politically, not just legally.  I agree enthusiastically.

 For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point.  As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works.  And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either.  Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal.  Our normative ideal should be the strengthening of these extralegal institutional constraints to try to insure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion. 

 So here are my four essential points of disagreement.  First, they misrepresent – or perhaps “ignore” is more accurate – the core aim of Madisonian constitutionalism; it is not just to avoid dictatorship, but chiefly to thwart the spirit of faction and to produce government in the public interest.  Second, I find them too uncritically enamored of a rational choice perspective on how politics operates. Third, I think the wooden checks-and-balances/rule of law vision that the authors dismiss is largely a straw man.  At least, although they do me the honor of including me by name among those whose views they are rebutting, I am quite sure they are not describing the Madisonian vision outlined in my own work.  Fourth, I reject the idea that we should dismiss a normative vision because it cannot be perfectly instituted, especially given that calls for the rule of law and calls for bolstering extralegal forms of accountability are far from mutually exclusive.

 At the heart of the legal tradition that Professors Posner and Vermeule attack is supposedly what the authors call “tyrannaphobia,” a “horror of dictatorship” that, in the American context, the authors think to be largely irrational.  But tyrannaphobia of this sort – a fear of legally unchecked rule by executive authorities who cannot be replaced by democratic means – is not what chiefly animates Madisonianism.  Madison’s central preoccupation was the curbing of faction.  “By a faction,” Madison wrote in his famous Federalist No. 10, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” 

Fears of imminent American dictatorship are plainly overblown in contemporary America – one wishes Glenn Beck’s viewers would take Posner and Vermeule’s argument to heart on this point.  But “faction,” in the Madisonian sense, could hardly be a more serious problem.  Americans who worried about Bush and Cheney calling off elections were paranoid.  But progressives are right on target in worrying whether our politics are driven unduly by the self-interest of the very rich and the corporations through which they wield much of their economic and political power.  What appears to be government’s frequent, even systemic inattention to equity for the poor and for the middle class is a profound democratic defect, and one that Madisonian constitutional design might have been expected to check.

Part of the problem here, I suspect, is that the preferred Posner-Vermeule analytic toolset – chiefly, rational choice political theory – has no convincing way of understanding “the permanent and aggregate interests of the community” apart from the expressed preferences of the citizenry at any given moment.  How to understand the “public interest” is a tough and enduring debate, and the authors pretty much sidestep it.  In appearing to accept public opinion as measured in polling or in elections as a full expression of the public interest, however, the authors run into a very obvious problem.  It is a problem that the authors actually diagnose astutely with regard to Congress. 

Posner and Vermeule argue that members of Congress are likely always to under-protect checks and balances because the benefits of checks and balances will largely inure to later generations and thus cannot be captured by contemporary political actors.  But this is every bit as true of contemporary voters.  Contemporary voters, if they act totally according to rational self-interest, will quite likely under-protect America from the effects of climate change and deficit financing.  They will undervalue education, pure research – and even checks and balances and the rule of law.  But, whatever the public interest is, it must surely involve some degree of care for future welfare even at the cost of short-term sacrifice.  Nudging America towards a yet more plebiscitary politics, as Posner and Vermeule seem to prefer, is thus quite risky for the public interest for just the reasons Madison feared.  This is one of the two most fundamental reasons why I think the authors’ exclusive reliance on rational choice theory to evaluate both political behavior and institutional design is misguided. 

The second reason is that rational choice theory largely ignores the mix of ideology, identity and self-conception that motivates much political behavior. In my own discussions of the rule of law, I emphasize the importance of these factors as they operate within government institutions to undergird the norms, customs and conventions that give life to the rule of law.  Posner and Vermeule dismiss any reliance on such emergent behaviors as having explanatory or normative value because champions of their importance, such as I, have not rigorously specified exactly how such behaviors work.  That is a fair challenge, although I hasten to point out that it’s a challenge to Posner and Vermeule’s own work, as well.  In relying on Americans’ skepticism towards executive overreaching and their practices in becoming informed citizens, Posner and Vermeule are also relying on norms, customs and conventions.  They just locate the relevant norms, customs and conventions in the electorate, not in the government.

The “rule of law” vision that Posner and Vermeule expressly dismiss is a vision in which rules enacted by Congress and enforced by courts are sufficient, in and of themselves, to constrain executive behavior.  The more discretion that the executive enjoys that is unchecked by enforceable rules, the less “law” there is in our “rule of law.”  But the “rule of law” for which I yearn in Madison’s Nightmare: How Executive Power Threatens American Democracy (2009) is not this either/or version.  To quote myself:

“What [I describe] is a version of the rule of law that is not formalistic, but institutional.  Checks and balances, in operation, depend on an assemblage of norms, cooperative arrangements, and informal coordination activities that actually fit the political science definition of an “unstructured institution.”  James March and Johan Olsen have usefully defined an “institution” as “a relatively enduring collection of rules and organized practices, embedded in structures of meaning and resources that are relatively invariant in the face of turnover of individuals and relatively resilient to the idiosyncratic preferences and expectations of individuals and changing external circumstances. Sometimes the relevant “rules and organized practices” are exceedingly clear and documented, like the rules inside the cover of a board game.  But sometimes, as political scientist Kenneth Shepsle has pointed out, these rules and practices “are more amorphous and implicit rather than formalized.”  We still recognize them as institutions because they “may be described as practices and recognized by the patterns they induce,” but compared to, say, a game of golf, they are, relatively speaking, “unstructured institutions.” Understanding the rule of law as an unstructured institution provides a far more attractive account of what citizens expect from a “government of laws” and a far more plausible account of why they might just get it; it provides an account of government behavior that rests on observable patterns of actual human behavior, not just the formal specification of legal rules in the form of written documents.”

Posner and Vermeule may regard this account as insufficiently rigorous, or they may say that “norms, cooperative arrangements, and informal coordination activities” are really politics, not law.  To those who participate in them, however, they are recognizable as law, and that recognition is a great deal of what gives them whatever institutional power they have.

At the proverbial end of the day, it may be that Posner and Vermeule would be content to accede to all these objections, at least for argument’s sake, but might still say: They don’t matter.  In their opening footnote, they are generous enough to group me with Bruce Ackerman and Theodore Lowi as authors of “diagnoses of decline” that are “so convincing” that we should recognize our “prescriptions for revival” of the rule of law as “futile.”  What Ackerman, Lowi, and I describe of political behavior, in other words, “if true, rule[s] out [our] prescriptions.”  It may be that the authors are more about right about this than I would like to acknowledge, although either accepting or rejecting their proposition involves as much faith as analysis, and I have always been the optimist in my particular household. 

I do want to say, however, that the impossibility of vindicating the rule of law at every turn is not a persuasive argument for abandoning the rule of law as a normative vision.  Every ethical system worth its salt aims for a pervasiveness of virtue that no one expects to be realized fully.  Moreover, along with Cynthia Farina (most notably among administrative law scholars), I have long argued that democratic legitimacy cannot be convincingly grounded on any one foundational principle.  The rule of law is important, but not everything.

Abandoning the rule of law as a normative vision seems especially foolish when embracing a political agenda for the reinvigoration of checks and balances is arguably consistent with the reform program that Posner and Vermeule would prefer.  They urge reformers to shift attention away from the rule of law “to the political constraints on the president and the institutions through which those political constraints operate–chief among them elections, parties, bureaucracy and the media.”  But the reform agenda they advocate would significantly enhance the prospects for the rule of law, as well.  Near the end of Madison’s Nightmare, I wrote: “[T]he practice of constitutionalism within the halls of American government will be shaped, most profoundly, by changes in the quality of our collective democratic life in society at large.”  Rule of law advocates would surely be enthusiastic if Americans constructively turned to the checking potential of our extralegal institutions.

To return to my positive note, I do hope readers more sympathetic to my critique than to The Executive Unbound will nonetheless take time to wrestle with the Posner-Vermeule line of reasoning.  They have pitched their ideas in a distinctly academic voice, but the debate they are seeking goes to the heart of American constitutionalism.  At the core of the debate are very different approaches to both democracy and public welfare.  Professors Posner and Vermeule render a service in adding to that debate an important and distinctive set of arguments.

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High Court to Consider Separation of Powers in Upcoming PCAOB Case

Posted by Peter M. Shane on December 4, 2009

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

Roughly since the second Reagan administration, separation of powers sophisticates (SOPS) have been held in thrall – whether in joy or dread – by the theory of “the unitary presidency.” Its central claim is that the president is constitutionally entitled to direct personally the exercise of any and all discretionary authority that Congress vests in any officer of the executive branch. Say the Center for Disease Control is told to write a pamphlet about AIDS. The president gets to edit it. NASA scientists are supposed to write a report on climate change. The president gets to tell them if global warming is good science. Maybe the Park Service has been given the discretion to limit certain activities in national parks either through the imposition of user fees or the promulgation of regulatory restrictions. The president gets to pick. And so on. Any and all discretionary decision making in the executive branch would be hypothetically subject to presidential control, even in areas of government activity for which Article II gives the president no inherent authority.

A number of fellow academics for whom I have great personal affection and intellectual respect assert (a) that they are constitutional originalists and (b) that unitary executive theory represents the proper reading of the Constitution. As I wrote in Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago 2009), I don’t think these positions can be squared. Eighteenth century ideas of executive power simply did not include centralized policy control over all of public administration.

The idea of the unitary presidency is a very tough one, however, to test in court. One would have to imagine a case in which a party with standing was injured by an administrative action that the relevant officer avowedly undertook for the sole reason that the President ordered her to do so, but which, she confesses, she otherwise would not have pursued. Hard to see that happening. So, we SOPS are left to read other tea leaves, and the tea leaves we read most assiduously appear in Supreme Court opinions on appointments and removals. That is because the Court’s conclusions on the president’s appointment and removal powers would seem to have some logical connection to its inferences about the president’s supervisory powers, as well.

This is the main reason that even those of us who devote little if any time to thinking about securities regulation care about Fair Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 77 U.S.L.W. 3625 (U.S. May 18, 2009) (No. 08-861), in which the high court will hear oral argument on December 7.

This case involves the constitutionality of the Public Company Accounting Oversight Board (PCAOB), which was created by the Sarbanes-Oxley Act to oversee the activities of public company auditors. It is an odd institutional creature – a nonprofit private corporation that has been given enforcement, adjudication, and rulemaking powers. The members of the PCAOB are appointed by the Securities and Exchange Commission – presumably because Congress found them to be “inferior officers” and thus subject to appointment, at Congress’s discretion, by the “heads of departments” – and are not directly removable by the president. This is clearly not the unitary executive at work.

Over a scathing dissent by Judge Brett Kavanaugh, the D.C. Circuit upheld the PCAOB on the grounds that (a) PCAOB members are sufficiently subordinate to the SEC to count as “inferior,” and (b) both the appointments provisions and limited removability under Sarbanes-Oxley are constitutional under Morrison v. Olson. These holdings plainly invite a reconsideration of Morrison, which is the Supreme Court opinion most discomfiting to champions of the unitary executive. Morrison upheld Congress’s decision to create an officer called “independent counsel,” who would be appointed by the judiciary – permissible only for “inferior” officers – and subject to removal only for good cause and only by the attorney general. Following a sort of multi-factor balancing test, the Supreme Court concluded that independent counsels count as “inferior” for constitutional purposes, and that their limited removability did not deprive the president of his capacity to discharge his Article II functions. It is the removal point in Morrison that most gives presidential unitarians heartburn. Were the Supreme Court now to insist that all officers of the United States must be removable at will by the president, that might well signal the president’s entitlement also to command their exercise of discretionary authority. (I say “might well” because the points are analytically distinct. A president entitled to fire officers at will might still be legally required to allow them to exercise their discretion as vested and then fire them post hoc.)

As it happens, however, of the seven Justices in the Morrison v. Olson majority, only one – Justice Stevens – remains on the Court. Justice Scalia has since been joined on the Court by Chief Justice Roberts and Justices Thomas and Alito, all of whom, whether as jurists or as government lawyers, have been notably staunch advocates of the “unitary executive.” The apparent “swing vote,” as is often the case, belongs to Justice Kennedy, who recused himself in Morrison and who, in other contexts, has sometimes seemed sympathetic to categorical claims of inherent executive power. There is thus some real doubt as to the enduring vitality of the Morrison analysis.

Because five Justices may, of course, decide anything, it is technically true that a majority in the PCAOB case would have the option of using the case either to limit Morrison to its facts or overrule Morrison’s approach to the removal issue. The latter especially might seem to bolster unitary executive theorists and would raise doctrinal doubts – at least at the “tea leaf” level – about the constitutionality of independent agencies. Or, the Court might decide the case modestly, leaving Morrison’s broad separation of powers implications untouched. (I assume that the Court did not grant certiorari in the case simply to affirm the D.C. Circuit.)

A modest opinion would likely turn on the “inferior officer” issue. That is, it would be enough to invalidate the PCAOB’s mode of appointment to find its members are “principal,” not “inferior” officers, and can thus be appointed only by the president and with the Senate’s advice and consent. Whether PCAOB members count as inferior officers is, however, not necessarily an easy question. Although they receive substantial SEC supervision and appear to lack significant final, unreviewable policymaking authority, the PCAOB has important investigative and prosecutorial powers that involve genuine discretion.

Commenters predicting that the PCAOB case will provide the occasion to limit Morrison sometimes point to the case of Edmond v. United States, 520 U.S. 651 (1997), in which the Court unanimously (through an opinion by Justice Scalia) overturned the appointment by the Secretary of Transportation of civilian members of the Coast Guard Court of Criminal Appeals. The opinion noted, however, that the civilian members were not “inferior” under at least two of the Morrison v. Olson criteria: they are not limited in “tenure” to a single defined task and they are not limited in “jurisdiction” to focusing on a single individual or set of defendants. The Scalia opinion pointedly went on, however, to state that “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” The obvious suggestion was that this test, not the Morrison balancing of factors was the better test. Advocates of “unitary executive” theory may be hoping that the PCAOB case at least reads Edmond as overturning Morrison’s approach to inferiority. (It would seem an odd move since Edmond acknowledges that its result is consistent with Morrison.) Of course, even if Morrison’s approach to inferiority were overturned, the holding would leave independent agencies intact. The commissioners and board members who head our key independent agencies are appointed by the president with Senate advice and consent, so there is no appointments issue raised. Congress, however, whenever it wanted to divest the president of appointments power, would have to render the officer whose duties are at stake substantially subordinate to an officer whom the president does appoint. That would put an end to any prospect of resurrecting the precise model of special prosecution enacted after Watergate – but perhaps Judges Laurence Walsh and Kenneth Starr already accomplished that.

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Obscure Cases and Important Principles

Posted by Peter M. Shane on October 27, 2009

I am currently participating in on online debate under the auspices of the Federalist Society regarding a case hardly anyone has heard of that is now before the U.S. Supreme Court.  The case is called Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB)It poses the question whether Congress acted permissibly in structuring the PCAOB.  Its members are (a) appointed by the Securities and Exchange Commission, not by the President, and (b) removable only by the Securities and Exchange Commission – not by the President – and only for good cause.

The Federalist Society has asked its debaters to discuss whether these appointment and removal provisions are unconstitutional.  As my colleague Hal Bruff writes in a forthcoming essay, this is the kind of case only separation of powers cognoscenti typically follow, even though it has the potential – albeit, just slight potential – to revolutionize our separation of powers law.  That is because, if the Court overturns the removal provisions, it may well cast into doubt the great many statutes that create administrative agencies throughout the federal government, such as the Federal Trade Commission and the Federal Communications Commission.  It could instead vindicate so-called Unitary Executive Theory, which I try to refute in Madison’s Nightmare.

I have reprinted below my opening entry in the debate.  Anyone intrigued can follow the unfolding conversation here.  The other invited participants are Martin Flaherty, Andrew G. McBride, Gillian E. Metzger, Donna M. Nagy, Tuan Samahon, Christian G. Vergonis, and Christian J. Ward.

* * *

Appointments: There’s no real doubt that members of the PCAOB are “officers of the United States.” That is, they have duties regarding the implementation of public law that go beyond the tasks Congress could assign to one of its own committees. Hence, its members must be appointed pursuant to the Appointments Clause. And, under the Appointments Clause, they must be appointed by the President with the advice and consent of the Senate, unless they are “inferior officers,” in which case they may be appointed by the president alone, by the head of a department, or by a court of law.

This is the PCAOB’s greatest vulnerability. The members of the PCAOB may well not be “inferior” in the constitutional sense. Although members are removable for good cause by the SEC, their jurisdiction is far more wide-ranging than that of the independent counsel upheld in Morrison v. Olson. The Court could leave Morrison and its antecedents intact, and enjoin the enforcement operations of the PCAOB on noninferiority grounds. This is doctrinally the most modest way to overturn the PCAOB, and I predict this will be the result, with hardly any greater implications for separation of powers law.

If PCAOB members are deemed “inferior,” then I do not see any other vulnerability on the appointments side. As the Court observed in Morrison, Congress’s discretion in choosing among the designated modes of appointing inferior officers is not limited by the text. There would not be anything constitutionally anomalous in giving the SEC power to appoint people with expertise in corporate accounting.

Removal: The more controversial question involves the limitation on direct removals by the President. It is not controversial under Morrison v. Olson. Morrison said that limitations on presidential removal powers are permissible unless they interfere with the President’s capacity to discharge his constitutionally assigned functions. The President, of course, is constitutionally obligated to take care that the laws be faithfully executed. If a PCAOB member is derelict in this regard, the President must be able to instigate that member’s discharge. Under Sarbanes-Oxley, he cannot do so directly – which was also true in Morrison v. Olson – but the failure of the SEC to correct any such dereliction would presumably be good cause for the dismissal of any recalcitrant SEC Commissioner. Under Morrison, this holds up.

The rub, of course, is that there may well be five members of the Court who would now like to overrule Morrison – Roberts, Alito, Scalia, and Thomas, almost certainly, and quite possibly, Kennedy, who recused himself in Morrison. Reaching out to limit or reverse Morrison, however, would be a conspicuous piece of judicial immodesty, especially since the PCAOB can be invalidated on the less controversial ground of noninferiority.

I thus predict the Court will not attack Morrison – but this may be wishful thinking on my part because (a) I agree with Morrison and (b) modesty on the Roberts Court is, at best, an occasional virtue.

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