The Volokh Conspiracy

A very interesting question, raised in Intercollegiate Broadcasting System, Inc. v. Copyright Royalty Board, a certiorari petition now pending before the Court. Profs. John Duffy (Virginia), Peter Strauss (Columbia), and Michael Herz (Cardozo) — an illustrious trio who often take quite different views about other subjects — have an item about this at Concurring Opinions; here’s an excerpt (click on the Concurring Opinions post for links):

Earlier this year, more than 100,000 citizens petitioned the White House to overturn a copyright rule issued by the Librarian of Congress that made unlocking a cell phone a crime. The White House responded by promising to seek legislation to overturn the Librarian’s rule. That was the most the President would or could do because “[t]he law gives the Librarian the authority,” and the Administration would “respect that process,” even though the Librarian acted contrary to the Administration’s views. See here. As the New York Times reported, “because the Library of Congress, and therefore the copyright office, are part of the legislative branch, the White House cannot simply overturn the current ruling.” See here.

There’s only one problem with all of this: The Department of Justice has been vigorously arguing precisely the contrary constitutional position in the federal courts.

According to the Administration’s filings in litigation that has now reached the Supreme Court, the Library of Congress is “an executive Department,” and the Librarian himself is “subject to plenary oversight by the President.” Justice Department lawyers have explained that Congress made a “purposeful decision to place the Library under the President’s direct control and supervision”; that the Librarian of Congress is the “Head” of this “executive Department”; that the President may remove the Librarian “at will” just as he may remove other heads of executive departments; and that this removal power creates the Librarian’s “here-and-now subservience” to the President. See pages 16 & 17 of the Government’s Brief in Opposition filed at the Supreme Court, available here and pages 23, 29 & 37 the Government’s Brief for Appellees filed in the Court of Appeals, available here.

In light of that clear legal position, an obvious question arises: If the Librarian is really a head of an executive Department subject to “plenary oversight by the President,” why hasn’t the President either taken responsibility for criminalizing cell phone unlocking or ordered the Librarian to reverse his decision?

The answer is that no one in the political arena actually believes for one minute that the Librarian is the head of an executive department. The current Librarian has repeatedly testified to Congress that the Library is “arm of the United States Congress,” “a “branch of the Legislative branch,” and “a unique part of the Legislative Branch of the government.” Members of Congress also understand this to be true. To take but one prominent example, Senator Orrin Hatch has noted not only that “the Copyright Office is in the legislative branch of the Government” but also that this arrangement presents difficulty because “whenever the Copyright Office is tasked with an executive-type function, [a] constitutional question arises.”

The President’s supposed powers of “plenary oversight” and at-will removal are utter fiction, as the controversy about cell phone unlocking shows....

Why then are the Administration’s lawyers arguing that the Librarian is a presidential underling? The answer is easy. The Librarian has been vested with the power to appoint all of the officers who execute the copyright laws—including the Registrar of Copyrights and the judges of the Copyright Royalty Board—but the “Appointments Clause” of the Constitution makes clear that such power can be lodged in the Librarian only if he is the head of an Executive Department....

The NYU Journal of Legislation and Public Policy has published my article “Placing Reins on Regulations: Assessing the Proposed REINS Act” in its latest issue.  The arguments I make in this piece should be familiar to readers of this blog.  In the same issue, the NYUJLPP has also published “The REINS Act and the Struggle to Control Agency Rulemaking” by Professor Jonathan Siegel of the GW Law School.  Professor Siegel agrees with me that the REINS Act is constitutional, but thinks it would be a bad idea.  In addition, the NYUJLPP has posted a short response essay by former OIRA Adminsitrator Sally Katzen and Julian Ginos raising constitutional doubts about the proposed reform.

For those interested, my prior posts on the REINS Act can be found here.

Eight more states have joined a lawsuit challenging the constitutionality of various provisions of the Dodd-Frank financial reform law.  The states are Alabama, Georgia, Kansas, Montana, Nebraska, Ohio, Texas and West Virginia. As three states (Oklahoma, Michigan, and South Carolina) had already brought suit, this brings the total number of states involved in the suit to eleven.

For links to Michael Greve’s take on the suits, see here.

“Everyone loves money. That is why they call it MONEY.” – David Mamet.

The trillion-dollar coin is a proposal to avoid the debt ceiling through a loophole in a federal statute that authorizes the U.S. Mint to coin platinum in any denomination. Platinum is reserved for commemorative issues, and the obscure statutory provision was certainly not intended by Congress to authorize the effective borrowing of a trillion dollars, but as a statutory matter, the trillion dollar coin may work.

I have not examined the matter too closely, but at least one constitutional question pops up here.

Congress is authorized to “coin money.” The proposed trillion-dollar coin is certainly a coin – but is it money? Money is created for circulation. As Justice Story put it in his Commentary on the constitution, the power to coin money is designed to “preserve a proper circulation of good coin of a known value.” Vol. 2, § 1118. That is why it is put into the convenient form of coins or bills. Specie never intended for circulation, one might argue, is simply not money.

The link between circulation and coinage has been noted by courts, though obviously nothing has been decided, at least as far as my brief inquiry revealed. Veazie Bank v. Fenno, 75 U.S. 533 (1869) (“It cannot be doubted that under the constitution the power to provide a circulation of coin is given to congress.”)

Let us turn to the dictionaries. “Money” is “metal coined for public use,” according to the 1788 edition of William Perry’s The royal standard English dictionary. This may lead to a debate about what a “public use” is, reminscent of the “general welfare” question in the Spending power. I would guess it means “use by the public,” a view supported by “Metal coined for the purposes of commerce,” according to the 1789 edition of Sheridan’s Complete dictionary of the English language.

There are of course many potential rejoinders (aside from the possibility that the money/circulation property is specious.) The transfer to Treasury could be deemed circulation, but this I think weak. More seriously, one would point out that all non-circulating commemorative coins would thus be unconstitutional. OK – but has any court said that they are constitutional? Apparently the making of such coins did not begin until 1892, so as an originalist matter, their long-standing existence does not prove much. Presumably no one ever had reason to make issue over their issue. And not all commemoratives are non-circulating.

In any case, I doubt this proposal will gain currency with President. He has previously dismissed the constitutional legitimacy of formalistic gimmicks and “procedural tricks,” like the Senate declaring itself in session to avoid recess appointments. Back them, the White House counsel said that since the Senate was “functionally” in recess, that is what counts. Presumably here they will see that this is “functionally” a money supply policy not authorized by Congress in evasion of a debt ceiling that was.

UPDATE: I have amended this a bit shortly after posting it.

Yesterday, Judge Emmet Sullivan dismissed Common Cause’s suit attempting to have the use of the filibuster declared unconstitutional. As I explained here, this was always a futile suit. Even if one thinks the substance of the suit has merit, standing and the political quesiton doctrine are major obstacles to getting such claims heard. Sure enough, in yesterday’s decision, Judge Sullivan found that none of the plaintiffs, which included members of Congress and individuals claiming they would benefit from the passage of filibustered legislation, have standing to bring the suit. He further found that the case presents a nonjusticiable political question.

The plaintiffs may well appeal, but I’m willing to bet they will not fare any better in front of the U.S. Court of Appeals for the D.C. Circuit. This is the last court in which to press an aggressive standing claim. This lawsuit may generate good press for filibuster opponents, but it’s a legal nonstarter.

P.S. I can’t help but note that it was not that long ago that Common Cause vehemently opposed any effort to eliminate the filibuster, particularly when used to block judicial confirmations. Now, however, Common Cause not only supports filibuster reform, but it also thinks the filibuster is unconstitutional.

A news release from the Competitive Enterprise Institute notes that the attorneys general of Michigan, Oklahoma, and South Carolina have joined their lawsuit challenging the constitutionality of portions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The original suit challenged several Dodd-Frank provisions, including creation of the Consumer Financial Protection Board. The states’ challenge focuses on Title II’s “orderly liquidation authority,” which allows the federal government to seize allegedly troubled financial institutions with minimal notice or recourse. According to the states, these provisions lack adequate due process and could threaten state pension funds. Here’s the amended complaint.

This morning, in Intercollegiate Broadcast System v. Copyright Royalty Board, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit consisting of Judges Garland, Griffith, and Senior Judge Williams declared the Copyright Royalty Board to be unconstitutional under the Appointments Clause, and adopts a narrow fix. This was not a surprising development, as this issue has been brewing for some time (as I noted in these posts). Senior Judge Williams’ opinion for the court in begins:

Intercollegiate Broadcasting, Inc. appeals a final determination of the Copyright Royalty Judges (“CRJs” or “Judges”) setting the default royalty rates and terms applicable to internet-based “webcasting” of digitally recorded music. We find we need not address Intercollegiate’s argument that Congress’s grant of power to the CRJs is void because the provision for judicial review gives us legislative or administrative powers that may not be vested in an Article III court. But we agree with Intercollegiate that the position of the CRJs, as currently constituted, violates the Appointments Clause, U.S. Const., art. II, § 2, cl. 2. To remedy the violation, we follow the Supreme Court’s approach in Free Enterprise Fund v. Public Company Accounting Oversight Bd., 130 S. Ct. 3138 (2010), by invalidating and severing the restrictions on the Librarian of Congress’s ability to remove the CRJs. With such removal power in the Librarian’s hands, we are confident that the Judges are “inferior” rather than “principal” officers, and that no constitutional problem remains. Because of the Appointments Clause violation at the time of decision, we vacate and remand the determination challenged here; accordingly we need not reach Intercollegiate’s arguments regarding the merits of the rates and terms set in that determination.

McCulloch v. Maryland had a very good day at the Supreme Court yesterday, with NFIB relying on and applying McCulloch‘s rules for when an enactment violates the Necessary and Proper Clause. What happened after the McCulloch decision also shows the next steps in battle over the individual mandate, as I suggest in an essay this morning for National Review Online.

In refusing to hold the Second Bank of the United States unconstitutional, the McCulloch Court gave Congress broad latitude in Congress’s own evaluation of whether the Bank was “necessary” in a constitutional sense. Relying on and quoting McCulloch, President Andrew Jackson made his own judgment of constitutional necessity when he vetoed the recharter of the Bank in 1832. After a titanic political struggle, the Bank was gone, and a new term created by Jackson, “equal protection,” had become part of what the American People were coming to believe the Constitution was supposed to mean.

President Jackson dealt the Bank a fatal blow by withdrawing federal deposits from the Bank, and moving them to state banks. President Romney can follow Jackson’s lead on his first day in office, instructing the Acting Secretary of Health and Human Services to use the waiver powers in the ACA statute to issue waivers to everyone for the individual mandate. Because the individual mandate is (supposedly) a tax, it can then be repealed through the budget reconciliation process, which cannot be filibustered.

I predict that the individual mandate will never mandate anyone. Yet the mandate will be long remembered as one of the most consequential laws enacted by a Congress. The result of the “bank battle” was that even though a central bank was judicially permissible, central banking was politically toxic for the rest of the century. The “mandate battle” may have the same effect in deterring any future thoughts of congressionally-imposed mandates. (Putting aside the obvious exception for mandates that have a solid basis in the constitutional text, such as jury service.)

The enactment of the mandate has also significantly increased the probability that the next Supreme Court appointments will be made by a President and confirmed by a Senate which denounces the mandate as unconstitutional, and that the new Justices will be the kind who are inclined to vigorously enforce the many strong constitutional limits on congressional over-reaching which are articulated in NFIB v. Sebelius.

I would have preferred that the mandate had met its end yesterday morning, but the fact that the mandate will have to be finished off by the People in November and their elected officials in January may lead to even better long-term results for advocates of a constitutionally limited federal government.

The State National Bank of Big Spring, Texas, the 60-Plus Association, and the Competitive Enterprise Institute filed suit against the Consumer Financial Protection Board alleging that the CFPB, as currently structured, is unconstitutional. Specifically the suit alleges that the CFPB lacks political accountability because, among other things, the President cannot remove the Bureau’s director save for cause and Congress cannot exercise control over the Bureau’s budget. Further, the suit notes, the Dodd-Frank statute limits judicial review of CFPB actions. “As a whole, Dodd-Frank aggregates the power of all three branches of government in one unelected, unsupervised and unaccountable bureaucrat,” commented former White House counsel C. Boyden Gray, who is representing the plaintiffs. Of note, CEI served as plaintiffs co-counsel in Free Enterprise Fund v. Public Company Accounting Oversight Board, which invalidated limitations on the removal of PCAOB members. CEI has more info on the suit here.

[Note: Corrected]

UPDATE: Boyden Gray and State National Bank of Big Spring CEO Jim Purcell have an op-ed in Friday’s WSJ on the unconstitutional aspects of the CFPB and the Financial Stability Oversight Council. Here’s an excerpt:

Dodd-Frank created both the Financial Stability Oversight Council and the Consumer Financial Protection Bureau, giving each agency effectively unlimited power. The FSOC can declare a financial firm “systemically important”—that is, too big to fail—based on “any” “risk-related factors” that it “deems appropriate.” And the CFPB can punish even responsible lenders who in good faith offer loans that the bureau later deems to be “unfair,” “deceptive” or “abusive.” . . .

Ordinarily, when regulators wield broad power, their discretion is still limited by checks and balances. The Constitution empowers the president and Congress, as well as our courts, to prevent regulators from running amok with excessive, arbitrary or even partisan regulations.

But Dodd-Frank does not honor checks and balances. It eliminates them. The CFPB is not subject to Congress’s “power of the purse,” which James Madison knew to be Congress’s “most complete and effectual weapon.” Instead, Dodd-Frank lets the CFPB claim more than $400 million from the Federal Reserve each year and prohibits Congress from even reviewing that budget. The president’s control over the CFPB is limited because by law he can remove the agency’s director only under strictly limited circumstances. Finally, Dodd-Frank limits the courts’ review of CFPB’s legal interpretations. . . .

The FSOC is similarly free from checks and balances. For example, when the Council—a working group of the Treasury secretary, Federal Reserve chairman, comptroller of the currency, and other unelected regulators—anoints a financial institution as too big to fail, the courts are prohibited from even reviewing whether the regulators properly interpreted the applicable laws.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: This afternoon, the House Oversight and Government Reform Committee voted to hold Holder in contempt, 23-17.  The vote was along party lines.

In non-mandate news, the Supreme Court issued two merits opinions today, including Zivotofsky v. Clinton, a challenge to the State Department’s refusal to follow a federal statute directing the federal government to recognize Jerusalem as a part of Israel specifically by allowing American citizens born in Jerusalem to have “Israel” listed as their birthplace.  The U.S. Court of Appeals for the D.C. Circuit had held that Zivotofsky’s claim presented a non-justiciable political question as it involved a foreign policy question implicating separation of powers questions best resolved by the political branches.  in Zivotofsky, the Supreme Court disagreed.  Chief Justice Roberts wrote the opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, Ginsburg, and Kagan.  Justices Alito and Sotomayor wrote opinions concurring in the judgment and Justice Breyer dissented.

The AP is reporting that President Obama will give former Ohio Treasurer Richard Cordray a recess appointment today to head the new Consumer Financial Protection Board.  Cordray was nominated to the post some months ago but Senate Republicans have blocked his confirmation due to their opposition to the CFPB’s structure, in particular the lack of meaningful legislative or executive oversight.

If the AP’s report is correct, President Obama’s decision is particularly interesting because the Senate has not officially recessed, at least not according to Senate traditions.  As the AP story notes, the Senate has been having pro forma sessions every three days for the express purpose of preventing there from being a recess during which recess appointments could be made.  Though done at Republican insistence now, the practice of adjourning without recessing began in 2007 when Senate Democrats sought to prevent President Bush from making recess appointments.  According to The Hill, an Obama Administration Justice Department official previously said a recess must be at least three days and a CRS report reported that in the past thirty years no recess appointment has been made during a recess of fewer than ten days.  As the CRS report also notes, thus far President Obama has made recess appointments at a significantly slower rate than either of his two immediate predecessors.

UPDATE: From the LA Times:

While the Constitution gives the president the authority to fill executive branch vacancies when the Senate is in recess, a Justice Department opinion in 1993 implied that a recess of more than three days was needed before the president could exercise the power, according to the nonpartisan Congressional Research Service. No such appointments have been made during recesses of fewer than 10 days over the last 20 years, the service said in a December report.

But there is precedent for appointments made during recesses of fewer than three days — President Theodore Roosevelt made more than 160 recess appointments during a Senate break of less than a day in 1903.

SECOND UPDATE: I just noticed John Elwood beat me to it. As one would expect, his post is more informative and erudite than mine (and, importantly, explains why President Obama may have authority to make the appointment despite the Senate’s pro forma sessions).

THIRD UPDATE: It’s official. Here’s a statement from the White House, The Hill on the GOP response, and commentary from WonkBlog.

On Thursday, U.S. District Court Judge Reggie Walton dismissed Kucinich v. Obama, a suit filed by ten members of Congress alleging that President Obama’s use of military force in Libya was unlawful as it violated the War Powers Act and lacked Congressional authorization.   Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.  Judge Walton noted a “long line of cases” that “all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch,” including a relative recent case involving a suit by Rep. Kucinich against then-President Bush. Judge Walton added in a footnote:

Interestingly, Representative Kucinich, the lead plaintiff in Kucinich v. Bush, the case in which these words were written, is the lead plaintiff in this case in which members of Congress are again attempting to bring an action against Executive Branch officials. Indeed, the plaintiffs “acknowledge the contrary result” reached by the District of Columbia Circuit in a case also involving alleged presidential violations of the War Powers Clause and the War Powers Resolution. See Pls.’ Opp’n at 17. While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.

As noted by Politico, Rep. Kucinich’s attorney, GWU law professor Jonathan Turley, objected to Judge Walton’s suggestion this suit should not have been filed.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

Of course it is sometimes necessary to raise claims that are squarely foreclosed by precedent in order to prompt the Supreme Court to revisit its own prior decisions. But such a legal strategy only makes sense where intervening precedents and other decisions raise questions about prior decisions or otherwise expose tensions or contradictions in contemporary doctrine. Simply repeating failed legal arguments in the vain hope the judiciary will alter course, as the plaintiffs did here, borders on the frivolous, and creates the impression those filing suit are more interested in publicity and making a political point than in prevailing in court.

This Wednesday at 12:15 PM, I will be debating the legality of the Libya intervention at the University of Akron Law School with Akron law professor Wilson Huhn.

I previously wrote about these issues here, here, here, and here.