The Volokh Conspiracy

For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama’s recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.  

The problem was, as Jonathan Adler noted below, that the White House wouldn’t say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC’s conclusions did not support the action it wished to take.  See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.

Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.

Ordinarily, you’d say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don’t make it on to its website for several months after they’re signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration’s rationale in time to be relevant to the ongoing debate.

More on the opinion later when I’ve had a chance to read it.

UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC’s research into the President’s ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic “Pro Forma Sessions” (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn’t at liberty to reveal the nonpublic work I’d done).

The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on “whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions,” Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.

The opinion, concludes, essentially:

Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to “‘receive communications from the President or participate as a body in making appointments.’” Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President’s exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.

Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att’y Gen. 20, 24 (1921)).

A more detailed recitation of the opinion’s contents after the jump.

Continue reading ‘OLC Opinion on Pro Forma Sessions and Recess Appointments Published’ »

It is being reported that President Obama intends to recess appoint Richard Cordray to be the first Director of the Consumer Financial Protection Bureau despite the fact that the Senate has been conducting pro forma sessions for the precise purpose of preventing him from making recess appointments.  Under this procedure, the Senate “gavels in” briefly every three days, calls the house to order, and ordinarily gavels right back out without conducting any business.   The procedure commonly takes less than 30 seconds.  A couple of representative pro forma sessions can be viewed here and here.  The procedure was first used for the purpose of trying to prevent the President from using his recess appointment authority late in President George W. Bush’s second term, and has been used heavily since. 

In October 2010, my former boss at DOJ’s Office of Legal Counsel, Steve Bradbury, and I wrote this op-ed arguing that such pro forma sessions at which no business is conducted do not interrupt a recess of the Senate within the meaning of the Recess Appointments Clause, and thus do not interfere with the President’s recess appointment authority.  I recognize that this is a novel and difficult question of constitutional law, with very few relevant judicial precedents, and there are arguments for both positions. Here is an outline of the basic argument why such pro forma sessions do not interrupt a recess of the Senate.

In addition to the power to make appointments with the advice and consent of the Senate, the President has an auxiliary power under the Recess Appointments Clause “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 few discussions during the ratification debates to broach the subject (during which people argued both for and against such a power) tended to focus on how, absent such a power, the Senate would have to be continually in session to advise the President on the appointment of officers. That was also how Joseph Story framed the issue in his Commentaries on the Constitution: either “the senate should be perpetually in session, in order to provide for the appointment of officers; or, that the president should be authorized to make temporary appointments during the recess, which should expire, when the senate should have the opportunity to act on the subject.”

Both the Senate and the Executive Branch traditionally have given the Recess Appointments Clause a practical construction that focuses on the Senate’s ability to provide advice and consent. The earliest opinion of the Attorney General on the issue (which first took the position, which also has been controversial, that the President can make appointments not only to fill vacancies that arise during the recess, but also which happen to continue to exist during such a recess) focused on the Senate’s ability to provide advice and consent. Executive Authority to Fill Vacancies, 1 Op. Att’y Gen. 631, 633 (1823) (“all vacancies which . . . happen to exist at a time when the Senate cannot be consulted as to filling them, may be temporarily filled by the President”).

One of the most important documents on the scope of the Recess Appointments Clause is the report the Senate Judiciary Committee issued on the question in the wake of President Theodore Roosevelt’s decision to make recess appointments during a truly brief gap between two sessions of Congress. That report likewise advocated a practical interpretation that focused on the ability of the Senate to perform the advise and consent function.

It was evidently intended by the framers of the Constitution that [“recess”] should mean something real, not something imaginary; something actual, not something fictitious. They used the word as the mass of mankind then understood it and now understand it. It means, in our judgment, . . . the period of time when the Senate is not sitting in regular or extraordinary session as a branch of Congress, or in extraordinary session for the discharge of executive functions; when its members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it cannot receive communications from the President or participate as a body in making appointments.

S. Rep. No. 58–4389, at 2 (1905).

The argument is that the sort of pro forma sessions that are now going on don’t give the Senate the opportunity to conduct any business. Indeed, the resolution that preceded this recess specifies that no business will be conducted at these sessions.

Madam President, I ask unanimous consent that when the Senate completes its business today, it adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Tuesday, December 20, at 11 a.m.; Friday, December 23, at 9:30 a.m.; Tuesday, December 27, at 12 p.m.; Friday, December 30, at 11 a.m.; and that the second session of the 112th Congress convene on Tuesday, January 3, at 12 p.m. for a pro forma session only, with no business conducted, and that following the pro forma session the Senate adjourn and convene for pro forma sessions only, with no business conducted on the following dates and times, and that following each pro forma session the Senate adjourn until the following pro forma session: Friday, January 6, at 11 a.m.; Tuesday, January 10, at 11 a.m.; Friday, January 13, at 12 p.m.; Tuesday, January 17, at 10:15 a.m.; Friday, January 20, at 2 p.m.; and that the Senate adjourn on Friday, January 20, until 2 p.m. on Monday, January 23; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved for their use later in the day; further, that following any leader remarks the Senate be in a period of morning business until 4 p.m., with Senators permitted to speak therein for up to 10 minutes each, and that following morning business, the Senate proceed to executive session under the previous order.

Concluding that such pro forma sessions (which by design are not for conducting business) interrupt the recess of the Senate and thus prevent recess appointments would present a risk to separation of powers because it would allow the Senate unilaterally to frustrate the President’s exercise of a power granted him by the Constitution, which the Framers considered to be important to keep the government functioning by filling offices.  Cf. McAlpin v. Dana, No. 82–582, slip op. at 14 (D.D.C. Oct. 5, 1982) (“[T]here is no reason to believe that the President’s recess appointment power is less important than the Senate’s power to subject nominees to the confirmation process.”). 

Congress has its share of legitimate ways to curb the President’s use of recess appointments. For starters, the Pay Act imposes limits on the ability to pay officers who have been recess appointed; the Senate may “punish” the President by moving even slower on nominations; Congress may even reduce or eliminate funding for particular programs or agencies. I suspect that some of that will happen in the wake of this recess appointment. These are the sort of ways that the branches have traditionally wrangled over the use of recess appointments.

A caveat:  Although no business was supposed to be conducted at any of these pro forma sessions, I understand that on December 23, Harry Reid actually did some work at one of them—he asked unanimous consent that the House-passed payroll tax holiday extension be considered read three times and made arrangements for a Conference Committee. But I believe the remainder of the sessions have had no business conducted at them, supporting an argument that the recess was not interrupted during that time.

The decision to make Richard Cordray the first such appointment strikes me as a “high roller” move.  Given the role of the CFPB, it seems likely that Cordray will necessarily take many actions that will give rise to justiciable challenges–i.e., actions that will give people the opportunity to challenge in court the legality of his appointment. Given the importance of historical practice in defining the relationship between the Executive Branch and the Senate in this area, it arguably would have been a safer move to make several recess appointments of officers who would be unlikely to take actions justiciable by private parties, to establish the precedent. But for law nerds like me, the Cordray appointment means there may actually be a court ruling on this interesting (and under-explored) subject.

I expect that OLC will be releasing an opinion explaining the legal rationale supporting the appointment soon. Watch this space for more.

UPDATE: Ordinarily, when Congress goes out for recess, the two houses pass a concurrent resolution.  They have to do that because Article I, Section 5, Clause 4 says that “Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . .”  I hear that the House of Representatives didn’t consent to a recess, and in poking around the Congressional Record, I haven’t located any concurrent resolution for this recess.  If you have definitive information one way or the other, let me know by email. 

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.

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We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book’s title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman’s admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn’t seem to lead anywhere. So with a sinking feeling, we realized we’d have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. “But keep rolling,” I said, “if we survive it’ll be good footage.”

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman’s book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, “luckily for me, it’s unwieldy to remove plane wreckage.” (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where “entertainment” consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, “There is a movie in this.”

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest’s finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman’s book, I had the same feeling. But I laughed a lot more.

Because of the press of business at my day job, I’ve had less than usual worth saying recently.  In fact, I haven’t posted in months.

But all that blood, toil, tears, and sweat have at least done some good, because yesterday my work was mentioned alongside news that really matters.  An amicus brief I did for the Cato Institute, Center for Democracy & Technology, Electronic Frontier Foundation, Public Knowledge, and TechFreedom in the upcoming FCC v. Fox Television Stations was mentioned in the Hollywood Reporter yesterday in its Hollywood Docket feature that included a story on Kim Kardashian. 

The brief made paragraphs 1 and 2 of the article; Kim wasn’t mentioned until paragraph 6, and yet somehow she is the one who got the photo that ran in the article.  Harrumph.

So as all of you doubtless already know (and probably discussed over lunch), today the D.C. Circuit in In re: Aiken County rejected as unripe a challenge to the Department of Energy’s decision to withdraw its application to the Nuclear Regulatory Commission for a license to build a permanent nuclear waste repository at Yucca Mountain, Nevada (the site Congress selected).

The Bush Administration (after a long delay) filed the application in June 2008, but in March 2010, the Obama Adminstration’s DOE filed a motion to withdraw the application with prejudice.  The NRC’s Licensing Board denied the motion.  The NRC is now simultaneously considering DOE’s license application and reviewing the Licensing Board’s decision to deny the motion to withdraw. The Court, in an opinion by Judge Sentelle, agreed with the government that there is a lack of finality and thus the petition for review is unripe until the independent Nuclear Regulatory Commission grants the motion to withdraw or rules on the license application.

Back in August 2008, Judge Brett Kavanaugh argued that the removal restrictions for members of the Public Company Accounting Oversight Board were “Humphrey’s Executor squared,”  after the Supreme Court decision, Humphrey’s Executor v. United States, that upheld the constitutionality of removal restrictions on personnel at independent agencies.  His conclusion in that case was vindicated by the Supreme Court.  Today, in a scholarly and lengthy (18 pages, vs. 16 for the majority) concurring opinion in Aiken County, Judge Kavanaugh explored the problems that plain old Humphrey’s Executor to the first power causes for “accountability, liberty, and government effectiveness.”  

He wrote:

This case is a mess because the executive agency (the Department of Energy) and the independent agency (the Nuclear Regulatory Commission) have overlapping statutory responsibilities with respect to the Yucca Mountain project. In particular, both agencies have critical roles in interpreting the relevant statutes and in exercising discretion under those laws. Of importance here, the statutes give the independent Nuclear Regulatory Commission the final word in the Executive Branch on whether the Executive Branch may terminate the Yucca Mountain project.

     * * * *
Reading only the text of Article II, one would assume that the Nuclear Regulatory Commission would report to the President, not the President to the Nuclear Regulatory Commission. If two agencies in the Executive Branch were not on the same page (as may happen in this case if the Nuclear Regulatory Commission rejects the Department of Energy’s withdrawal application), the President presumably would have the authority to resolve that disagreement. If an agency were departing from the President’s preferred course (as the Nuclear Regulatory Commission may do), the President presumably would have the authority to prevent that. And if an agency were taking too long to make a critical legal or policy decision (as appears to be the case with the Nuclear Regulatory Commission), the President presumably would have the authority to fix that as well.

But of course, that “turns out to be inaccurate with respect to independent agencies” such as the NRC because of Humphrey’s Executor.  Kavanaugh argued that “[t]his case is a dramatic illustration of the continuing significance and implications of Humphrey’s Executor”:

If the Commission rejects the President’s policy decision . . . by rejecting the pending application by the Department of Energy (the President’s subordinate) to withdraw the licensing application for Yucca Mountain – then the President may be forced to continue with the Yucca Mountain project simply because the Nuclear Regulatory Commission has told him so.

Reproducing ten lengthy block quotes from the Supreme Court’s opinion in Free Enterprise Fund, Judge Kavanaugh concluded that the opinion’s “wording and reasoning are in tension with Humphrey’s Executor and are more in line with Chief Justice Taft’s majority in Myers [v. United States, 272 U.S. 52 (1926)],” which recognized the President’s authority to remove subordinate officers in the Executive Branch.

The most interesting passage of the opinion for me was when Judge Kavanaugh placed Humphrey’s Executor in historical context, noting that the case was “one in a line of decisions issued in 1935 and 1936 . . . by a Supreme Court seemingly bent on resisting President [Franklin] Roosevelt and his New Deal policies.”  Indeed, the case was decided on the day (May 27, 1935) that “became known as Roosevelt’s ‘Black Monday,’” when the Court announced three decisions relevant to FDR’s programs:  Humphrey’s Executor, Louisville Joint Stock Land Bank v. Radford (invalidating provisions of the Frazier-Lemke Farm Mortgage Act), and Schechter Poultry Corp. v. United States.   Judge Kavanaugh noted that “[t]he other cases in that line have long since been discarded as relics of an overly activist anti-New Deal Supreme Court,” but somehow, Humphrey’s Executor is the one product of the age of the Four Horsemen that “lives on.” 

For more on Black Monday, see here, beginning at page 96.  For more on Judge Kavanaugh and Black Monday, see here.

Now that the real business of October Term 2010 is over, I just wanted to say a few words in praise of the cert pool. No, not that cert pool. The certpool.com, a website run by Austin appellate lawyer Don Cruse that tracks the progress of petitions by federal courts of appeals and by state courts of last resort. It is an extremely helpful way of keeping a close eye on the Court’s docket.

The one shortcoming of the website is that its focus on appellate courts doesn’t cover all of the Supreme Court’s docket. Even apart from original actions (which, candidly, are hard for even hardcore Court buffs to get worked up about, although I guess I should speak for myself), every now and again, you get a case that comes straight from a three-judge district court. You won’t find those on certpool.com. But surely, that must only happen once in a blue moon.

Anyhoo, good work, Don.  Keep it up.

That is about how long it has been since DOJ’s Office of Legal Counsel had a confirmed head.  Jack Goldsmith resigned effective July 30, 2004.   But the Senate has just confirmed Virginia Seitz by voice vote to be Assistant Attorney General for the Office, after a relatively “speedy” confirmation process lasting just under six months.*  It may take a little bit to get her sworn in, but now we see the light at the end of the proverbial tunnel.

Best wishes to Virginia in her new post.  Godspeed!

*Yes, I’m kidding.  That isn’t quick, except perhaps by the standards of modern divided Washington.

Back in April, Eugene blogged this book, written by my friend, fellow Justice Kennedy alumnus, and fellow Rolling Stones fan Ward Farnsworth, who is a law professor at Boston University.  I have since been able to read the book, and add my enthusiastic endorsement. 

The book is divided into eighteen chapters, each of which analyzes a classical rhetorical technique, explaining how to use it effectively and providing many examples from literature.  There are six chapters on using the repetition of words (e.g., simple repetition/repetition at the start of a sentence, the end, or both/repetition of the root); six chapters on sentence structure (parallel structure/reversal of structure/inversion of words); and six chapters on dramatic devices (rhetorical questions/correcting oneself/breaking off in midstream/saying things by not saying them). 

I have always been a big fan of parallel structure (which I now know is “isocolon,” although I will promptly forget it).  But I had no idea of the breadth of ways it has been used.  Thus, for example, the book discusses the ways the device can be used to make two claims about the same subject.  They can be consistent claims:

He was a morose, savage-hearted, bad man: idle and dissolute in his habits; cruel and ferocious in his disposition. (Dickens, The Pickwick Papers (1837))

But parallel structure can also be used to make comparisons and emphasize contrast (the second example is my particular favorite).

Married in haste, we may repent at leisure. (Congreve, The Old Bachelor (1693))

The louder he talked of his honor, the faster we counted our spoons.  (Emerson, Worship (1860))

All-strong without, he is all-weak within. (Churchill, radio broadcast to the United States (1938))

The book’s use of examples makes reading it doubly enjoyable.  It is not only an interesting book on a fascinating subject (and surprisingly readable given the academic nature of the subject); it is also a collection of great writing that is well edited and organized.  There are many passages that beg to be read aloud—and which, indeed, I have read aloud to my wife—a hallmark of great writing.  The examples both aptly illustrate the principles they exemplify, and also simply entertain. 

Law students and young lawyers sometimes ask me how they can become better writers.  The first thing I tell them is to practice, and to work on becoming a critical reader and self-editor.  The other thing I tell them is to read good writing.  As the Chief Justice told Bryan Garner (p.39), “[t]he only good way to learn about writing is to read good writing.”  Both this book and the excerpts it contains fall into that category. 

My one complaint is the dearth of Stones lyrics in the book.  But I guess you have to leave something for the Second Edition.

One of the commenters to Eugene’s write-up expressed his wish that it were available in electronic form.  It apparently now is, as a Google eBook here (don’t know if it works for Kindle, but apparently works for iPad).

The government’s February 2010 cert. petition in United States v. Juvenile Male, 09–940, presents the question, “Whether application of the registration and notification provisions of the Sex Offender Registration and Notification Act (SORNA) to a juvenile who was adjudicated delinquent under the Federal Juvenile Delinquency Act before SORNA’s enactment violates the Ex Post Facto Clause of the Constitution.”  (In September 2009, the Ninth Circuit, per Reinhardt, Tashima, and McKeown, held as a matter of first impression that it does.  581 F.3d 977 (9th Cir. 2009).)

In June 2010, the Court issued a short per curiam opinion taking the unusual step of certifying an issue to the Montana Supreme Court.  It stated:

Before we can address that question [raised by the government’s cert petition], however, we must resolve a threshold issue of mootness. Before the Ninth Circuit, respondent challenged only the conditions of his juvenile supervision requiring him to register as a sex offender. But on May 2, 2008, respondent’s term of supervision expired, and thus he no longer is subject to those sex-offender-registration conditions. As such, this case likely is moot unless respondent can show that a decision invalidating the sex offender-registration conditions of his juvenile supervision would be sufficiently likely to redress “collateral consequences adequate to meet Article III’s injury-in-fact requirement.” Spencer v. Kemna, 523 U. S. 1, 14 (1998).

Perhaps the most likely potential “collateral consequenc[e]” that might be remedied by a judgment in respondent’s favor is the requirement that respondent remain registered as a sex offender under Montana law.(“By the time of the court of appeals’ decision, respondent had become registered as a sex offender in Montana, where he continues to be registered today.” Pet. for Cert. 29.) We thus must know whether a favorable decision in this case would make it sufficiently likely that respondent “could remove his name and identifying information from the Montana sex offender registry.” Ibid.

The Court therefore certified to the Montana Supreme Court the question whether the juvenile’s duty to remain registered as a sex offender under Montana law was contingent upon the validity of the conditions of his expired federal juvenile-supervision order that required him to register as a sex offender, or is an independent requirement of Montana law that is unaffected by the validity or invalidity of the federal juvenile-supervision conditions.

On May 17, the Montana Supreme Court answered that question by stating that “Respondent’s state law duty to remain registered as a sex offender is not contingent upon the validity of the conditions of his federal supervision order, but is an independent requirement of Montana law.”  The Court discussed the matter at the June 16 Conference.  The docket shows no entry for a supplemental brief from from the Solicitor General’s Office, but it is almost inconceivable to me that OSG wouldn’t have filed one.  Based just on the reasoning of the certification order, this case may be moot; if the Court shares that conclusion, the Government’s petition might be headed for denial. 

 However, the Government might get the relief it seeks anyway, if the Supreme Court vacates the offending Ninth Circuit opinion under United States v. Munsingwear, Inc., 340 U.S. 36 (1950), because it was rendered moot before the government could obtain review.  I believe it’s an open question whether Munsingwear applies in criminal cases—the Ninth Circuit held it did not on the particular facts of United States v. Tapia-Marquez, 361 F.3d 53 (9th Cir. 2004).  By contrast, the en banc D.C. Circuit in United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001) (per curiam), applied Munsingwear to vacate a conviction rendered moot during appeal by a Presidential pardon.  But I’m not aware of any consensus on that issue.

As Charlie Savage notes twice in the article Jonathan discusses below, the President and the Attorney General have the authority, in the hierarchical Executive Branch, to overrule the advice of OLC.  But as the article also notes, it is “extraordinarily rare” for that to happen.  When Senator Whitehouse asked me after a hearing in 2008 for an example, the only one that came to mind was from the Roosevelt Administration. (There must be others, but I’m still drawing a blank.)  If press accounts are correct, together with the D.C. voting rights bill, we now have two recent examples.

Senator Whitehouse was outraged by even the possibility of the President or the Attorney General overruling OLC, which he characterized as being like former President Nixon’s 1977 quote to David Frost that when the “President does it, that means it is not illegal.” Whitehouse’s full quote from the 2008 hearing [http://www.fas.org/sgp/congress/2008/law.html] is below.

The Department of Justice is bound by the President’s legal determinations. I mean, I thought we’d cleared that when President Nixon told an interviewer that if the President does it it’s not illegal. That stands on the proposition that the President has authority to supervise and control the activity of subordinate officials within the executive branch.

But the idea that the Attorney General of the United States and the Department of Justice don’t tell the President what the law is and count on it, but rather it goes the other way, opens up worlds for enormous mischief.

But of course, the outrage now will come from the other side of the aisle. Cue Orin’s Rule.

Going into this Term, the Federal Circuit had a fairly unenviable record—virtually every one of its judgments under review had been reversed or vacated since January 2008.  The sole exception, last Term’s Bilski v. Kappos, was nominally an affirmance, but because basically no one on the Court agreed with the Federal Circuit’s rationale, “it did not feel much like an affirmation,” as Paul Clement said at the time. Thus, Federal Circuit Judge Arthur J. Gajarsa was moved to wonder, “[a]re we becoming the ‘Ninth Circuit’ of the Twenty-First Century?” (No word on whether he received any complaints from the judges of the Ninth Circuit about that.)

This year, the Supreme Court granted cert in a whopping eight Federal Circuit cases (consolidated into seven arguments), which has to be some kind of record. The Federal Circuit has “lost” three cases so far this Term: General Dynamics v. United States, United States v. Tohono O’odham Nation, and Henderson v. Shinseki. But based on oral argument in the Federal Circuit’s three patent cases under review, I thought things were looking promising for the Federal Circuit in its “marquee” subject.

And indeed, the Federal Circuit has had a fairly good Term on patent cases, as the Supreme Court has affirmed in all three patent cases it took. To be sure, the Court did not adopt the same test the Federal Circuit used in Global-Tech Appliances v. SEB S.A.; and the Court adopted a different rationale in Board of Trustees of Stanford v. Roche Molecular Systems (although the Federal Circuit reached the same conclusion the Supreme Court did about the Bayh-Dole Act in an earlier case).

Today the Court affirmed in Microsoft v. i4i Limited Partnership, agreeing with the Federal Circuit’s longstanding position that under § 282 of the Patent Act, the invalidity of a patent must be proved by clear and convincing evidence. The opinion notes the Federal Circuit’s unwavering support of that conclusion (see slip op. at 3, 17) and even quotes approvingly and at length from a Federal Circuit opinion (id. at 17)—the first time the Court has done that (I think; correct me if I’m wrong) since Warner-Jenkinson v. Hilton Davis Chemical Co., 520 U.S. 17 (1997). Given that the Supreme Court ordinarily reverses or vacates in around 70% of cases (71% last Term), the Federal Circuit is on track to have a pretty good Term, although United States v. Jicarilla Apache Nation (argued April 20) is still undecided.

The Supreme Court has relisted the Commonwealth of Virginia’s petition for certiorari before judgment in Virginia, ex rel. Kenneth T. Cuccinelli, II, Attorney General of Virginia v. Kathleen Sebelius, Secretary of Health and Human Services, 10–1014. The Court will take the matter up again at its April 22 Conference, and we may be hearing back from them on Monday, April 25.   Very interesting.  Orin discussed the petition here, and a copy of the petition is here.

I discuss the cases (apparently) relisted by the Supreme Court here.  I’m in the process of adding a couple of state-court cases I mistakenly left off, including one interesting-looking case Greenwire’s Lawrence Hurley told me about involving a warrantless search of private residential property that a state court upheld as an “administrative” search.

In particular, it looks like Felker v. Jackson, 10–797, may be under consideration for summary reversal. The State of California has petitioned for review in a habeas case (check) arguing that the Ninth Circuit (check) disregarded the limitations on its jurisdiction imposed by AEDPA (check). The Ninth Circuit held below that the prosecutor’s proffered race-neutral bases for peremptory challenges were insufficient to counter evidence of purposeful discrimination in jury selection. The Court appears to have relisted the case three times and it requested the record on February 18. The Court is now reviewing the record; we should have a better idea by March 21 or 28 whether this is on a glide path for summary reversal.

Cert was denied in Cooke v. Tubra, 10–559, but the Court has relisted in the other case I bored you about last week, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 10–553, suggesting the Court is taking a careful look at it.  Hosanna-Tabor involves whether the judicially recognized “ministerial exception” to the Americans with Disabilities Act, bars review of the termination of a parochial school teacher who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

I understand that two other cases involving the ministerial exception will be considered at the same conference, Weishuhn v. Catholic Diocese, 10–760, and Skrzypczak v. Roman Catholic Diocese, 10–769.  But I suspect that Hosanna-Tabor is the most likely grant of the three.

UPDATE (3/3): Both of my readers may be interested to know that on March 1, the Court called for a response in Skrzypczak; the Diocese had waived.  It will be interesting to see whether the Court goes ahead and acts on Hosanna-Tabor at tomorrow’s conference or whether it holds all the cases until the opp comes in in Skrzypczak.

I see that two religion cases I’ve been watching are both on for the Supreme Court’s case conference tomorrow.

Cooke v. Tubra, 10–559, which I’ve previously written about here, presents the question whether the First Amendment bars a pastor’s defamation claim against the church that employed him when the claim is based entirely on statements made by church officials within the church explaining to its members why the church disciplined and terminated the pastor. The case appears to implicate a longstanding split about how much courts constitutionally may involve themselves in employment disputes involving clergy.

Here are the petition, the brief in opposition, and the reply brief.

In addition, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, 10–553, involves whether the judicially recognized “ministerial exception” to the Americans with Disabilities Act, bars review of the termination of a parochial school teacher who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship. In addition to the express statutory defenses for religious organizations created by the ADA, courts of appeals have recognized a constitutionally rooted “ministerial exception” barring adjudication of certain claims regarding the employment relationship between religious institutions and ministers and other ministerial employees.  The Sixth Circuit held that the fired teacher’s “primary duties” were secular and not ministerial and so the ministerial exception did not apply.

The petition was filed by UVA Professor Doug Laycock, a respected expert on religion issues, and the case has attracted quite a bit of amicus attention—three amicus briefs have been filed. The government’s opp acknowledges “some variations in courts’ articulations of the governing test,” but maintains that “there is no conflict that warrants this Court’s review.” A harder hurdle to overcome will be the government’s contention that petitioner “did not adequately preserve her challenge to the validity of the ‘primary duties’ test”—it doesn’t take much to scare the Court off a case if there are vehicle problems or if the claim may not have been properly preserved.

Here are the petition , the EEOC’s brief in opposition, the reply brief  (which responds to the SG’s claim that the argument wasn’t preserved), and two of the three amicus briefs.

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

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

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

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

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

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

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

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

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

As an alumnus of the Ninth Circuit, Justice Kennedy has at times been particularly critical of that court when he thinks it has applied the law unreasonably.  That was very much on display in Justice Kennedy’s majority opinion in today’s decision in Harrington v. Richter, in which the Court held that the Ninth Circuit had improperly ordered habeas relief for a convicted murderer on ineffective assistance grounds. The opinion begins with what is (for him at least) unusually strong language, accusing the Ninth Circuit of “judicial disregard” of the principles governing issuance of the writ.

[Judicial] resources are diminished and misspent, however, and confidence in the writ [of habeas corpus] and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.

Justice Kennedy’s majority opinion in today’s other habeas case, Premo v. Moore, begins by noting that “[h]ere, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction.” 

The Ninth Circuit’s opinions in both cases were written by the same judge.  Anyone care to take a complete shot in the dark and guess what the name might be?   But Justice Kennedy’s decision to criticize the Harrington decision so strongly does not implicate only “the usual suspects” on the Ninth Circuit bench that conservatives routinely criticize: the Harrington majority was joined by former Kennedy law clerk Alex Kozinski.

My earlier post on Harrington (back when it had been relisted a couple times, and looked like a possible summary reversal) here.

I posted this week’s Relist Watch over on SCOTUSBlog, which has the virtue of (more or less) built-in hyperlinks to all the relevant documents.  Three new relists this week, plus additional relists in three cases I’ve been watching.  Let me know if you spotted a relist that I haven’t.

Over at the Blog of the Legal Times, Tony Mauro writes of Justice Kagan’s debut opinion today in Ransom v. FIA Card Services, N.A.,

She was joined by all her colleagues except for dissenting Justice Antonin Scalia, thus depriving her of the unanimity that the Court tries to achieve for a justice’s opinion-writing debut.

This seems like a good time to dredge up my post from December 2009 on the subject.   The Justices may indeed try to achieve unanimity (I’m trying to trace such reports to a firsthand account of a statement by a Justice, as opposed to lore), but if so, they aren’t doing that great a job.  Five of the current members of the Court had unanimous debut opinions.  Unanimous opinions aren’t that unusual, however; 47% of last term’s decision’s were unanimous; see p. 4 here.  But Justices Ginsburg and Breyer had dissents from their debut opinions, and Sotomayor had a concurrence in part and in the judgment.  So with today’s opinion, the current split between unanimous and non-unanimous debut opinions is 5–4, along party lines no less. 

But before anyone suggests that this is a conspiracy against democratic appointees, the same was true of then-Justice Rehnquist, Justice Blackmun, and (I think) Justice Powell.  I got too lazy to do any further research after that.

UPDATE: One of the commenters has unearthed a firsthand statement by a Justice confirming that the members of the Court try to give a new Justice a unanimous debut opinion.  In response to Brian Lamb’s (inartful) question, “What about the supposed practice that a new justice writes his or her first opinion after it’s been a unanimous decision on a particular case,” Justice Alito replied, “I think that’s something the Court has tried to do. They did that with me, my first opinion was an opinion in which we were unanimous.”  See p.7 of this CNN interview.  Eureka.

I am aware of four new relists today in paid cases.  Those include:

–the three Maxwell-Jolly cases, viz., Maxwell-Jolly v. Independent Living Center of Southern California, 09–958, Maxwell-Jolly v. California Pharmacists Assn., 09–1158, and Maxwell-Jolly v. Santa Rosa Memorial Hospital, 10–283. All are from the Ninth Circuit, and all involve questions arising under 42 U.S.C. § 1396a, a provision governing state plans for medical assistance under the Medicaid Act. The Court CVSG’d in 09–958 and the SG recommended denial, and the Court may need more time to sort through the implications for all the cases.

-Sheets v. Simpson, 10–458, from the Sixth Circuit, which presents two questions: (1) Whether a prison inmate is in “custody” for Miranda purposes if law enforcement officers isolate and question him about criminal conduct occurring outside the prison but impose no additional restraints or coercive pressures beyond those inherent in ordinary prison confinement; and (2) whether a police officer violates clearly established Miranda law by advising a defendant who asks him whether a polygraph examination will confirm the veracity of the defendant’s statements that defendant will not have any trouble if his statements are truthful, but that he should terminate the examination and consult an attorney if he is lying.

In addition, looks like Swartout v. Cooke, 10–333, discussed here, has been relisted a second time.  Looks like the much-relisted Beer v. United States, 09–1395, and Ryan v. Schad, 10–305, are now better deemed “holds” now; the last docket entry for both is the 12/3/10 Conference.  Anyone care to speculate what is going on with those?

The Court on Friday granted in Lafler v. Cooper, 10–209, CA6, and McNeill v. United States, 10–5258, CA4, both discussed here. 

Finally, the relist vigil in Alderman v. United States, 09–1555, ended today after seven relists, with a dissent from denial of cert authored by Justice Thomas and joined (except for a single footnote) by Justice Scalia.  They argued (correctly, I think) that the Court’s more recent Commerce Clause precedents (United States v. Lopez, United States v. Morrison, etc.) conflicted with dicta in Scarborough v. United States, 431 U.S. 563 (1977), which lower courts had relied on in upholding the federal prohibition on felons possessing body armor, and said (correctly, I think), “[i]t is difficult to imagine a better case for certiorari.”  (But as noted from the outset, I worked on the case.)  I was a little surprised that they were not joined by Justice Alito (who is #2 this Term in numbers of dissents from denial of cert).

So Orin and Eugene blogged the motion asking Judge Reinhardt to recuse himself from the Prop 8 case; and Eugene blogged both Judge Reinhardt’s initial order denying the motion to recuse and linked the memorandum opinion in which the Judge discussed his reasons for not recusing himself. But the Conspirators have not, so far as I recall or so far as the search function will remind me, discussed the merits of that opinion at any length.

Taking on that subject would pull me away from my duties of writing posts on signing statements and obscure OLC topics that no one reads.  So for those seeking fuller discussion, Ed Whelan has a five-part series of posts criticizing Judge Reinhardt’s decision not to recuse himself.  Here is the “box set” : 1, 2, 3, 4, and 5.

The Ninth Circuit’s decision to certify the issue to the California Supreme Court has sucked much of the oxygen out of the blogosphere’s interest in the matter, at least for the time being. But substantial discussions of judges’ recusal obligations are relatively rare (the last significant round of debate I can recall was way back in 2004 over Justice Scalia’s decision not to recuse himself in Cheney v. District Court, although there was a brief flurry of comment in 2010 over Justice Thomas’ recusal obligations because of his wife’s work at the time for Liberty Central).  We should take such lessons from these discussions that we can.

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

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

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

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

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

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

I wasn’t planning on blogging the story in the print edition of today’s New York Times (p. A15), reporting that the President may issue a constitutional signing statement “asserting that [the President] has the constitutional power to disregard . . . restrictions” contained in recently enacted legislation that would restrict his ability to transfer detainees from Guantanamo. There has been a fair amount of leaking during this Administration undertaken in an apparent effort to influence decisionmaking, and I assumed that this leak (originally reported by ProPublica) was made to embarrass the White House into foregoing the issuance of such a signing statement.  I figured that there was time enough to cover this story if the President actually issued such a signing statement.

But the following statement in the story caught my eye:

Early in his presidency, [President Obama] issued several signing statements that made relatively uncontroversial challenges. But he has not issued any since June 2009, when lawmakers of both parties expressed outrage over a statement he attached to a bill saying that he could disregard requirements imposed on certain negotiations with international financial institutions.

The online edition of the story included a hyperlink to a January 2010 article reporting that the Administration had adopted a new policy and that henceforth, the President would not issue signing statements “repeating claims of executive power that the White House has previously voiced.”  I discussed that story here.

For the record, the President has issued constitutional signing statements since June 2009. He issued a couple just this fall, this one about the Intelligence Authorization Act for FY10 (which I discussed here) and this one about the Coast Guard Authorization Act, of all things.  (The text of the most recent signing statement, which I haven’t blogged previously, is reproduced after the jump.)

The President’s recent constitutional signing statements are very similar to ones issued by both Presidents Clinton and George W. Bush, although he’s issued many fewer than either.  Although the Intelligence Authorization Act signing statement touches on a theme that that President Obama has addressed in previous signing statements (limits on Congress’s ability to require the Executive Branch to turn information over to it), in most respects, both address concerns that he personally has not voiced in previous signing statements.  Thus, they appear consistent with the policy reported in January 2010.  But it’s simply not the case that the President hasn’t issued any signing statements since June 2009.

UPDATE:  The Times is now reporting that the President’s aides are leaning against a signing statement. As I indicated, I think the link may have helped them lean in that direction, which I suspect was the motivation for it.
 
Another interesting development is that the ACLU has written a letter to the President “urg[ing]” him “to direct all federal agencies with instructions that the restrictions [on transfer of Guantanamo detainees] do not materially restrict the ability of DOJ, DHS, or the State Department to effect transfers from Guantanamo to the United States or to foreign countries,” because the funding restrictions literally only apply to the use of Department of Defense funds. The president could do so, of course, through a signing statement. The ACLU has a point, but this illustrates a corollary to Kerr’s Rule, which is that people’s enthusiasm for relying on technical legal distinctions is directly proportional to whether it achieves a policy goal they favor. I can’t imagine they’d embrace the distinction if Congress had in 2007 prohibited DoD from using its appropriated funds to engage in “enhanced interrogation,” for example.

Continue reading ‘The President’s Recent Signing Statements’ »

The 112th Congress will convene on January 5, 2011.   During his first two years in office, President Obama was at times frustrated by the slow pace of legislation he favored in Congress, but he ultimately had the necessary Democratic votes if he could muster them.  He now faces a solidly Republican House of Representatives, and no legislation will pass without truly bipartisan support. 

For a President who aspires to be a transformational leader in the mold of Ronald Reagan, it is surely a frustrating situation.  How can he continue to advance an ambitious policy agenda in the face of congressional opposition?

Obama is the third President in a row whose party lost control of Congress.  The prior two administrations thus provide a roadmap for a possible way forward.  As former presidential adviser Dick Morris recalled, “[a]fter he lost Congress in 1992, Bill Clinton . . . resorted to executive orders to maintain his momentum as president.  With Congress unwilling to pass anything he proposed, the president canvassed the administration for ideas that could be implemented by executive orders.”  President George W. Bush followed a similar course, although his administration also considered advancing his agenda by using regulations promulgated by executive agencies.  Call it “frustregulation”—when Congress is no longer in friendly hands, Presidents turn to those levers of power still available to them. 

President Obama’s staff undoubtedly began compiling ideas for similar efforts immediately after November 2, if not before.  Indeed, as Charles Krauthammer has noted, the Administration has already made use of regulations to implement initiatives that failed in the Democratic Congress.  The Department of Health and Human Services recently issued a final rule providing Medicare coverage for “voluntary advance care planning” during routine physicals, which is explicitly “based on the definition of ‘end-of-life planning’” (see p. 73406, column 3, of this final rule) and owes much to a provision of the President’s health care reform bill omitted from the final package after it touched off a political firestorm over “death panels.” And although the President’s favored environmental legislation failed, as Jonathan Adler noted, in late December, the Administration announced plans to set greenhouse gas emission limits on refineries and fossil-fuel power plants. So we may expect to see more in this vein as the legislative picture worsens for the Administration.

As a fairly recent alumnus of the Executive Branch, my purpose here is simply to note the phenomenon as we count down to the opening gavel of the 112th Congress, not to condemn it.  But this is becoming a regular feature of modern political life as the houses of Congress continue to change hands.

The President today announced that he would recess appoint James M. Cole as Deputy Attorney General.  His nomination has been pending since May–reportedly the longest delay in confirming a DAG nominee in 30 years, but in the context of nominations in the last decade or so (some of which have dragged on for years), an all-too-typical delay.  A synopsis of the controversy over the Cole nomination here. The President also recess appointed ambassadors to Azerbaijan, the Czech Republic, Turkey, and Syria (the last was controversial because some complained it was rewarding Syria’s bad behavior by sending an ambassador; there has been no ambassador to Syria since 2005).  My favorite of the current crop is the recess appointment of William Boarman to be Public Printer of the United States, mainly because you’d think you could get a printer confirmed without a kerfuffle, but no. Get the skinny here.  Eventually the national security implications of not having a confirmed Public Printer are grave enough that it forces the President’s hand.  The appointments will last until the end of the next session of Congress. 

The Senate rose sine die on December 22, so these are intersession recess appointments. Whether they are intersession or intrasession appointments doesn’t make a material difference here, because the Senate is out for two weeks until January 5, an amount of time that traditionally has been considered (by the Executive Branch, at least) sufficient even to make intrasession recess appointments. The main significance of the inter/intra distinction is that once the Senate rises sine die there’s no question that the Senate is in recess and so everyone isn’t focused on whether the duration of Congress’s adjournment is sufficient that it is a “recess” for purposes of the Recess Appointments Clause. That and the fact that when Congress has gone home for good there is no real mechanism for conducting “pro forma sessions,” which are thought by some to prevent the President from making recess appointments.  My and Steve Bradbury’s contrary view on pro forma sessions here.

Other VC coverage of President Obama’s recess appointments here and here.

In May 2005, Steven G. Bradbury, Principal Deputy Assistant Attorney General for the Office of Legal Counsel, issued a memorandum entitled “Best Practices for OLC Opinions.”  At the time, the Office was the subject of controversy because of leaked national security opinions that were prepared during the months following 9/11.  Bradbury was (and for the remainder of the Bush Administration, would remain) the most senior official in the Office, but he had served as an Attorney-Adviser there under AAGs Mike Luttig and Tim Flanagan.  The memo codified and reaffirmed the Office’s traditional methods for preparing, reviewing, and issuing opinions. 

In July 2010, then-Acting Assistant Attorney General David J. Barron issued a memo entitled “Best Practices for OLC Legal Advice and Written Opinions.” In a gesture of continuity, the memo states that it “updates” (rather than “supersedes” or “replaces”) the May 2005 memo. See 2010 Memo at 1 n.*.  It expands the scope of the 2005 Memo explicitly to include informal advice as well as formal opinions; alters somewhat the process of review and comment for draft opinions (although it’s unclear how much practical effect that has); and codifies the presumption favoring publication that I observed in practice.

I’ve prepared a redline comparing the two documents here.  Because there is nothing people crave on the eve of a major holiday so much as a lengthy missive on the minutiae of the operations of a small government office, I have more detailed thoughts on the differences between the memos after the jump. 

Continue reading ‘OLC’s “Best Practices” In Giving Legal Advice’ »

The Wall Street Journal reports that in January, President Obama will nominate DC’s Virginia Seitz to be Assistant Attorney General for the Office of Legal Counsel.  OLC hasn’t had a confirmed head since July 2004. 

NPR reported back on August 4 that Seitz, who is a respected appellate litigator at Sidley Austin, was the front-runner for that post. And her name had been making the rounds locally for a couple months before that, making this a very long-running trial balloon indeed.

The Journal reports that “[s]everal conservatives contacted Tuesday . . . warned her nomination could run into trouble if Republicans object to her shortage of national-security experience.” National security law has certainly been an increasingly important part of OLC’s docket since 9/11. But while Jack Goldsmith had experience in national security law before coming to OLC, Jay Bybee (who was confirmed in October 2001) did not. (Of course, some critics would say that Bybee’s lack of preexisting experience in the area played a role in the Office’s issuance of national security opinions that have been controversial.)  Before 9/11, OLC heads frequently had no significant pre-existing experience in that area. 

The Journal reports that the Obama Administration will name Caroline Krass as the Principal Deputy in the Office. That may help to blunt the criticism that Ms. Seitz lacks national security experience: Caroline (who was a classmate of mine in law school) has extensive experience in national security law, and during my tenure at OLC, she was one of the foremost OLC experts in the area.  And she’s worked in national security while in her current position in the White House.

On a day when traffic to read about the substantively important decision in Virginia v. Seblius is so heavy that the page is running very slowly, this seems like a great time to post on a subject of interest to practically no one at all. But hey, I amuse myself.

Three apparent new relists:

Swartout v. Cooke, 10–333, CA9 (Reinhardt, Wardlaw, M. Smith), which presents the question whether a federal court may grant habeas corpus relief to a state prisoner based on its view that the state court erred in applying the state-law standard of evidentiary sufficiency governing state parole decisions. Orin may be along shortly to note that given the identity of the author, the Justices are probably taking a close look at this one.

Blaine Lafler v. Anthony Cooper, 10–209, CA6 (Kennedy, Cole, Jordan (DJ)), presents the question whether a state habeas petitioner is entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

Clifton Terelle McNeill v. United States, 10–5258, CA4 (Traxler, Niemeyer, Kiser (dj)), presents the question whether the plain meaning of “is prescribed by law” which ACCA uses to define a predicate “serious drug offense,” requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.

I say “apparent” because after a couple weeks of promptly posted detailed updates on the Court’s automated system telling callers when they could expect an update about a case, today, everything just says “pending” with no end date. Hopefully, that just reflects the fact that the Clerk’s office is taking a little more time to get the dockets updated, since the Court won’t have grants again for the better part of the month (until January 7 or 10, depending on whether it’s doing Friday grants then), rather than a change in practice or policy.

Still no action on hardy perennials Aldermann v. United States, 09–1555, and Beer v. United States, 09–1395, or on newcomers Ryan v. Schad, 10–305, and Missouri v. Frye, 10–444. The last entries for Beer and Schad are for the 12/3 Conference, which suggests they weren’t relisted at that Conference; ordinarily, when the last entry is for a long-passed conference, it suggests the case is being held for another case or some external event, but I don’t know what that might be. Suggestions?

We finally got action on Allen v. Lawhorn, 10–24, a habeas case presenting the question whether a state court’s determination that trial counsel’s waiver of a penalty-phase closing argument did not prejudice the defendant was “contrary to” clearly established Supreme Court precedent.  The case had been relisted 8 times.  Justice Scalia, joined by Justices Thomas and Alito, dissented from the Court’s decision not to grant certiorari and summarily reverse, concluding that the Eleventh Circuit’s decision was “patently wrong.” The closing paragraph is noteworthy because it reflects a sentiment that explains a lot of the Court’s summary reversals, and indicates lower-court judges are being “lawless[],” so I reproduce most of it below.

I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are “contrary to, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U. S. C. §2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand.

Today the D.C. Circuit (panel of Ginsburg, Tatel, Brown) denied the request of those challenging the EPA’s suite of greenhouse gas regulations to stay the regulations pending the outcome of the litigation. The order is available here.

Last Term, the Supreme Court vacated former executive Conrad Black’s conviction on the ground that the “honest services” fraud instructions given in his case were invalid under Skilling v. United States, and remanded for a determination whether the error was harmless. On remand, the Seventh Circuit (Posner, Kanne, and Sykes–under circuit procedure, the same panel that heard his first appeal) reversed two fraud counts, but affirmed another, as well as an obstruction count.

Black filed a petition seeking only rehearing en banc–not panel rehearing. The court called for a response (indicating that, under Seventh Circuit procedures, one or more judges had requested one), and the government filed one. Because neither the Federal Rules of Appellate Procedure nor the Seventh Circuit rules provide for a reply brief as of right, Black filed it as an attachment to a motion requesting leave to file a reply. The motion was denied two days later (yesterday) in a single-judge order. The author of the order was Judge Posner, author of both of the Seventh Circuit’s opinions in the case.

Former Seventh Circuit clerks, chime in here, and I’ll update this post to correct any misstatements of Seventh Circuit procedures.

Under Seventh Circuit procedures, motions for leave to file a reply are considered “nonroutine,” and, after review by a staff attorney, are submitted to “the motions judge, and if necessary, the motions panel.” The Seventh Circuit’s written procedures don’t specify how the motions judge or panel are assigned. I would have thought that, following the practice for “duty” judges generally, the judge or judges randomly assigned to duty the day the motion was considered would pass on it. But (Seventh Circuit cognoscenti, a little help here please) it may be that motions involving an already-argued case are assigned to the presiding judge for that case, because Judge Posner also wrote the one-judge order denying leave to file a reply brief on rehearing back in 2008, the first time the court had the case (although the then-counsel was seeking a week to prepare the brief, and the Seventh Circuit makes a point of moving pretty expeditiously on rehearing petitions).

The Seventh Circuit does not have a blanket prohibition on reply briefs supporting en banc petitions; indeed, it has received such briefs on quite a number of occasions in the past. See, e.g., Smothers v. McCaughtry, 2005 U.S. App. LEXIS 22923 (Oct. 19, 2005); Chicago v. Dept of Treasury, 2004 U.S. App. LEXIS 28002 (Dec. 21, 2004); Manning v. Miller, 2004 U.S. App. LEXIS 7454 (Apr. 16, 2004); Weinberg v. City of Chicago, 320 F.3d 682 (2003). It also receives amicus briefs at the en banc stage, although it emphasizes they must be timely because the court likes to move quickly. See Fry v. Exelon Corp., 576 F.3d 723 (2009). The tendered reply brief here was only six pages long, arrived the next business day after the government’s opposition, and to my eyes appears to exclusively respond to matters in the government’s opposition, and not simply to repeat stuff already covered in the petition.

There is certainly nothing in the Seventh Circuit procedures that prohibits a member of a panel from acting as the sole judge determining whether his colleagues will receive a reply brief supporting an en banc petition seeking review of his opinion. Indeed, comparing the identity of the author of the two orders in this case with the author of the two opinions in it, that may be the court’s preferred practice. (UPDATE: A former Seventh Circuit law clerk emailed me to confirm that “motions to permit a reply, or for an extension of time to file a petition for rehearing, are routinely referred to the author of the panel opinion for decision.”) But it may not be best for a member of the panel whose decision is under review to be the sole gatekeeper determining whether his colleagues will receive additional argument on whether his panel opinion was correct.

The tendered reply brief didn’t go out of its way to curry favor with the panel members; in response to the government opposition’s repeated references to the panel’s unanimity, the reply brief noted (p.4) “[t]he same unanimous panel previously ruled against the defendants on two independent grounds, neither of which garnered a single vote in the United States Supreme Court.” But I suspect denial of the motion had more to do with Judge Posner’s belief that judges “have heavy caseloads” and so “need to minimize extraneous reading,” as my co-conspirator has discussed with respect to amicus briefs. Maybe so, but it still might be preferable for a judge other than a panel member to determine when the court has had enough argument on an en banc petition.

A bunch of new relists today, and the beat goes on for the group of perennial favorites.

PLIVA, Inc. v. Mensing, 09–993/ Actavis Elizabeth LLC v. Mensing, 09–1039, CA8, present the question whether the Eighth Circuit abrogated the Hatch-Waxman Amendments by allowing state tort liability for failure to warn in direct contravention of the statute’s requirement that a generic drug’s labeling be the same as the FDA-approved labeling for the listed (or branded) drug.  The Court CVSG’d, and the SG recommended denial, but the Court needs more time.

Ryan, Dir., Ariz. Dept of Corrections v. Edward Harold Schad, 10–305, CA9, presents the questions (1) Whether, by awarding a defendant an evidentiary hearing on diligence and a simultaneously hearing on the merits, despite his lack of diligence, the Ninth Circuit’s opinion conflicts with Court precedent and the AEDPA; and (2) whether the Ninth Circuit’s opinion conflicts with Court precedent and AEDPA, by remanding the case for an evidentiary hearing without analyzing whether a colorable ineffective assistance of counsel claim was presented or considering the claim on the merits, when the district court considered the claim in light of the new evidence the defendant presented and concluded it showed neither deficient performance nor prejudice.

Talk America Inc v. Michigan Bell Telephone Co., 10–313, CA6, presents the question whether a public service commission was barred from requiring incumbent local exchange carriers (ILECs) to offer their competitors telecommunications facilities at cost-based rates under § 251(c)(2) of the Telecommunications Act of 1996 as a result of a Federal Communications Commission rule eliminating ILECs’ obligation to provide similar facilities under § 251(c)(3) when they are used by competitors for a different statutory purpose. This is together with . . .

Isiogu v. Michigan Bell Telephone Company, 10–329, CA6, presents the questions (1) whether the Telecommunications Act of 1996 and the Federal Communications Commission’s Triennial Review Remand Order permit incumbent local telephone companies to charge competing telephone companies rates for entrance facilities used for interconnection; and (2) whether the lower court provided the appropriate level of deference to the FCC’s interpretation of its regulations.

Missouri v. Frye, 10–444, Mo. Ct. Appeals, presents the question whether a defendant who validly pleads guilty successfully can assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel’s failure to communicate a plea offer, he would have pleaded guilty with more favorable terms.

Let me know if you are aware of others.

Williams v. Hobbs, 09–10382, which has been relisted seven times, I believe, and which has been much discussed here, was the subject of another of Justice Sotomayor’s dissents from denial of certiorari, which was again joined by Justice Ginsburg.  Webster v. United States, 10–150, relisted last week, was denied without comment today. Wal-Mart v. Dukes, 10–277, also relisted last week, was of course one of today’s two grants.

Other than that, all of the old favorites are back for another week on the hit parade: Alderman v. United States, 09–1555, Beer v. United States, 09–1395, and Allen v. Lawhorn, 10–24. The one wrinkle is that for Beer, alone among all the relists today, the Court’s automated update line just says the case is “pending” without also saying that “an update may be available December 13, 2010 after 10:15am.”

(And thanks to the great Roy Englert for tipping me off to the fact that the Court’s automated phone line is generally more up-to-date than the online docket.  Go figger.)

UPDATE (12/7, 3:24 pm).  I’ve checked the online dockets, and the dockets for all of the above except Schad and Beer  reflect they’ve been relisted for the 12/10 Conference; for both of those cases, the last docket entries simply state that the cases are on for the 12/3 Conference.  My notes from yesterday indicate that the automated recording for Schad indicated that there would be an update available on 12/13, but today, the recorded update for both Schad and Beer simply says they’re “pending,”  and the dockets for both indicate that the cases haven’t been relisted yet.  Curious.

A couple of important apparent relists today.

First, a closely watched labor class action case: Wal-Mart v. Dukes, 10–277, from the en banc Ninth Circuit (over dissents by Kozinski and Ikuta), presents the questions (1) whether (and under what circumstances) claims for monetary relief can be certified under Fed. R. Civ. P. 23(b)(2), which petitioners argue is by its terms limited to injunctive or corresponding declaratory relief; (2) whether the lower court’s order certifying a class conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Rule 23.

Second, a Medicare case, Maxwell-Jolly v. Santa Rosa Memorial Hospital, 10–283, also from the Ninth Circuit, involving whether Medicaid providers may maintain a cause of action to enforce 42 U.S.C. § 1396a(a)(3)(A) by asserting that the provision preempts a state law that reduces reimbursement rates.  (UPDATE: This is almost certainly being held for the CVSG in Maxwell Jolly v. Independent Living Center, No. 09–958, which has been pending since 5/24.) 

Third, a federal capital case from the Fifth Circuit, Webster v. United States, 10–150, which presents questions about whether the Supreme Court has certiorari jurisdiction to review the court of appeals’ denial of a request for authorization to file a second or successive collateral attack under 28 U.S.C. § 2255.  Because Congress purported to eliminate certiorari review of denials of authorization to file a second or successive collateral attack, and “jurisdiction-stripping” statutes are always controversial, I suspect one or more Justices is preparing a dissent from denial of cert.   Or perhaps someone is penning a concurrence in denial, noting the SG’s concessions in its brief in opposition (see p17) about the various mechanisms petitioner still has for review of his claims by the Supreme Court.

Those are the relists among the cases I have been watching. Anyone aware of any others?

Finally, it looks like the hardy perennials Beer, Alderman v. US, Williams v. Hobbs, and Allen v. Lawhorn , discussed here, here, and here, have been relisted once again. The Court has had the record in Allen v. Lawhorn for over a month, so it is about time for a summary reversal (or a dissent from denial of cert at least) to be forthcoming.

Harper v. Maverick, a relist noted last time, turned into Justice Alito’s dissent from denial of cert issued today.   In other news, Gamache v. California, 10–5196, which was the subject of Justice Sotomayor’s second opinion respecting denial of cert of the term today (the first was denominated a dissent), had been relisted six times (and the record requested after the third relist).  Both Sotomayor and Alito each have two opinions respecting denial of cert this term (mostly dissents); and Justice Ginsburg has one that Sotomayor joined.

The Austin American-Statesman is reporting that Greg Coleman, the former SG of Texas and one of the leading lights of the Supreme Court bar, has died in light plane crash off the coast of Florida. The paper reports:

Coleman, 47, was piloting the Piper Malibu when it crashed into a bayou while approaching the Destin Airport landing strip about 7:40 p.m. on a foggy night, according to the Okaloosa County Sheriff’s Office.

Two passengers also were killed: Coleman’s mother-in-law Charlene Black Miller, 63, and uncle James Patrick Black, 58.

According to the Destin Log newspaper, Coleman’s wife was waiting at the Destin airport for his return from Texas, where he had flown to pick up Miller and Black. The family was attending their annual Thanksgiving holiday in Destin.

Greg clerked with my wife. He was a good guy and a great lawyer. This is a terrible loss. Safe travels to our readers.

The Court may have relisted in Harper v. Maverick Recording Company, 10–94, out of the Fifth Circuit, which presents the question “Should the inadvertent innocent infringer defense to copyright infringement be eliminated for all Internet music downloading?”

I say they “may” have relisted because it’s possible that the Court is holding the case for Global-Tech Appliances v. SEB, S.A., 10–6, granted on October 12, which presents the question whether the legal standard for the state of mind element of a claim for actively inducing patent infringement is “deliberate indifference of a known risk” that an infringement may occur, or “purposeful, culpable expression and conduct” to encourage an infringement. But since that’s patent infringement, and the question presented is not that close, it’s not self evident that they’d hold Harper for it. The situation will become clearer over the next week if the docket is updated (if it’s a “hold,” the last entry will continue to be the 11/12 conference).

Incidentally, the Court appears once again to have relisted Alderman v. US (involving a commerce clause challenge to a criminal prohibition on felons possessing body armor), Beer v. United States (involving salary adjustments for federal judges), Allen v. Lawhorn and Williams v. Hobbs (both ineffective assistance of counsel claims), all of which I blogged here. Alderman may be on course for a dissent from denial of cert. I wouldn’t be surprised if Allen v. Lawhorn or Williams v. Hobbs yielded a summary reversal, as Wilson v. Corcoran did, but I don’t know if the alleged error in the cases is clear enough to support summary reversal; it’s just that ineffective assistance claims are frequently fodder for summary reversals.