Archive | Separation of Powers

Why the Court should uphold Congress’s power in the Jerusalem Passport case

I am not thrilled that the Supreme Court granted certiorari in the Jerusalem Passport Case, Zivotofsky v. Kerry. I continue to think the case is non-justiciable (though not for political question grounds rejected by the Court in their prior encounter with the case), for reasons I will explain in a subsequent post. But I’ve increasingly taken a more generous view of the separation of powers merits.

Recall that Congress passed a law requiring “Israel” to be listed as the country of birth of those Americans born in Jerusalem, but a series of presidents have refused to so, simply letting it say “Jerusalem,” without a country. President Obama claims that complying with the law could have disastrous foreign policy consequences, and possibly lead to war (which itself might be a reason to think the decision belongs to Congress).

The case is widely seen as one about the recognition power, and it is widely thought that the President has a primary role in matters of “recognition.” Recognition comes in two flavors – recognizing countries as sovereign entities and the regimes that run them as proper governments. But the Jerusalem flap involves neither. Congress and the President agree that Israel exists and what its legitimate government is. (And the Executive has been inconsistent in its denials of Jerusalem’s location.)

Nor is this about the terms on which recognition is granted. The question here is an unusual one – the President agrees Israel exists, but just does not want to say that Jerusalem is in it. This is more one of border determination – is West Jerusalem in the recognized country of Israel, or in no country, as the executive sometimes maintains. Seen this way, the issue does not fall within the classic recognition paradigm, and we must consider how [...]

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

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

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

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

And some [...]

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Is Concern about “Czars” Purely a Partisan Issue?

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

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

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

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

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

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

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

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Zachary Price on the Constitution and Enforcement Discretion

People have been passing around this column by Charles Krauthammer criticizing President Obama’s recent campaign of enforcement discretion (with respect the Affordable Care Act and otherwise), calling it “a gross violation of his Article II duty to take care that the laws be faithfully executed.” It reminded me that I’ve been meaning to call attention to an important new article on this subject — Enforcement Discretion and Executive Duty, by UC-Hastings’s Zachary Price. for those interested in a much deeper dive into the text, history and tradition relevant to enforcement discretion, I highly recommend it.

Here’s the abstract (excerpts from the discussion of the ACA are below the fold):

Recent Presidents have claimed wide-ranging authority to decline enforcement of federal laws. The Obama Administration, for example, has announced policies of declining to charge certain drug offenses, abstaining from investigation and prosecution of certain marijuana crimes, postponing enforcement of key provisions of the Affordable Care Act, and suspending enforcement of deportation laws against certain undocumented immigrants. While these examples highlight how exercises of executive enforcement discretion — the authority to turn a blind eye to particular legal violations — may effectively reshape federal policy, prior scholarship has offered no satisfactory account of the proper scope of, and constitutional basis for, this putative executive authority. This article fills that gap.

Through close examination of the text, history, and normative underpinnings of the Constitution, as well as relevant historical practice, the article demonstrates that there is indeed a constitutional authority of enforcement discretion — but it is both limited and defeasible. Presidents may properly decline enforcement of civil and criminal prohibitions in particular cases, notwithstanding their obligation under the Take Care Clause to ensure that “the Laws be faithfully executed.” But this authority does not extend to prospective licensing of prohibited conduct,

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Judge Rejects Immediate Appeal in Fast and Furious Document Case

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

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

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The Constitutionality of the ObamaCare “Fix”

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

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

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

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

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

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James Madison Anticipates the Possibility of Government Shutdown–and Predicts that the House of Representatives Can and Should Prevail

The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.

But will not the House of Representatives be as much interested as the Senate in maintaining the government in its proper functions, and will they not therefore be unwilling to stake its existence or its reputation on the pliancy of the Senate? Or, if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect that in all cases the smaller the number, and the more permanent and conspicuous the station, of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British House of Commons over the other branches of the government, whenever the engine of a money

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

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

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

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

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

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Steven Teles on “Kludgeocracy” and the Role of Government in Society

In the fall issue of National Affairs, Johns Hopkins political scientist Steven Teles has an interesting article on what he dubs the problem of “kludgeocracy” in American government:

In recent decades, American politics has been dominated, at least rhetorically, by a battle over the size of government. But that is not what the next few decades of our politics will be about. With the frontiers of the state roughly fixed, the issues that will define our major debates will concern the complexity of government, rather than its sheer scope.

With that complexity has also come incoherence. Conservatives over the last few years have increasingly worried that America is, in Friedrich Hayek’s ominous terms, on the road to serfdom. But this concern ascribes vastly greater purpose and design to our approach to public policy than is truly warranted. If anything, we have arrived at a form of government with no ideological justification whatsoever.

The complexity and incoherence of our government often make it difficult for us to understand just what that government is doing, and among the practices it most frequently hides from view is the growing tendency of public policy to redistribute resources upward to the wealthy and the organized at the expense of the poorer and less organized. As we increasingly notice the consequences of that regressive redistribution, we will inevitably also come to pay greater attention to the daunting and self-defeating complexity of public policy across multiple, seemingly unrelated areas of American life, and so will need to start thinking differently about government.

Understanding, describing, and addressing this problem of complexity and incoherence is the next great American political challenge. But you cannot come to terms with such a problem until you can properly name it. While we can name the major questions that divide our politics

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A Hands-Tied Presidency?

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

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

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

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

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

The op-ed is here.

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

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NY appellate court rules 5-0 against Bloomberg soda ban

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

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

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

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

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

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The Jerusalem Passport Case – Separation of Powers and Standing

The D.C. Circuit has held the Jerusalem passport law unconstitutional for impermissibly intruding into the Executive’s foreign relations powers. The law requiring the State Department to record “Israel” as the country of birth for those born in Jerusalem. The D.C. Circuit, through extensive and lucid analysis, concluded that recognition was an exclusively executive function, on which the Act impinges. The lawsuit, brought by Menachem Zivotofsky, an American born in Jerusalem, has gone on for a decade, but this will probably be the end.

The D.C. Circuit’s separation of powers analysis was quite strong, though I think the case lacks standing, as Judge Gladys Kessler on the district court first ruled nine years ago.

The plaintiff, claimed the issue was just about passports, and did not involve recognizing foreign countries. The argument was hard to take seriously: refusing to recognize Israeli sovereignty over Western Jerusalem, on passports or elsewhere, is a crucial limitation on the U.S.’s recognition of the State of Israel.

More interesting was the plaintiff’s argument that Congress itself acted through an enumerated power – Immigration and Naturalization. The Court rather convincingly showed that passports were not central to this power, which in any case was concurrent with the Executive’s foreign policy powers. Thus in rock-paper-scissors terms, an exclusive executive power (recognition) beats a concurrent legislative one.

One might think that the Immigration power naturally overlaps with recognition: immigration requires a prior determination of foreignness. The Executive has never taken a position one way or another the sovereignty over Jerusalem. Heck, it might be part of New York, in which case no immigration or naturalization would be needed. Indeed, because of the particular circumstances here – Congress is not contesting a determination of Jerusalem’s status, but rather a non-determination – one might think Congress cannot exercise its powers without [...]

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