January 25, 2013

Court Rebukes Obama’s Overreach

Statement of Committee for Justice President Curt Levey on today’s DC Circuit decision striking down President Obama’s recess appointments:

We commend the U.S. Court of Appeals for the DC Circuit for acting today to protect the Constitution’s separation of powers.
In a landmark decision with broad implications, the DC Circuit struck down President Obama’s controversial December 2011 recess appointments, and the executive actions that flowed from them, as an unconstitutional violation of the separation of powers.  The court ruled that Obama’s extraordinarily broad interpretation of the constitutional provision for recess appointments – allowing him to make recess appointments when the Senate has not declared a recess –“would wholly defeat the purpose of the Framers in the careful separation of powers structure reflected in the [Constitution’s] Appointments Clause.”
Today’s decision in Noel Canning v. National Labor Relations Board vacated the February 2012 NLRB order challenged by the plaintiff.  Without Obama’s three unconstitutional recess appointments to the NLRB, the Board lacked the quorum necessary to make the order valid. However, the broad reasoning of the DC Circuit’s decision also serves to invalidate 1) all NLRB orders issued since the December 2011 recess appointments; 2) the simultaneous recess appointment of Richard Cordray as Director of the Consumer Financial Protection Bureau (CFPB); and 3) Cordray’s rulemaking, including the controversial CFPB mortgage rules announced earlier this month.
Courts are reluctant to strike down an action by one of the three branches of government as a violation of the separation of powers, making decisions like today’s rare.  The fact that the powerful DC Circuit was willing to act here – despite the decision’s broad implications – bodes well for current and future legal challenges to other Obama Administration actions which stretch the power of the executive branch. Examples include Obama’s broad use of czars, his expansive use of executive orders – on immigration and welfare reform for example – and overreach by his executive agencies, including the EPA’s actions on climate change.
That the DC Circuit felt the need to step in here underscores the danger of a “living Constitution,” under which the Constitution’s narrow emergency exception to the requirement for Senate confirmation of appointees was gradually expanded. A constitutional clause that allows the President “to fill up all Vacancies that may happen during the Recess of the Senate” (emphasis added) grew to include vacancies that happen before the recess and any adjournment of the Senate, not just the annual inter-session recess contemplated in the exception. The effect was to allow presidents to use recess appointments, not for emergencies, but as a way to bypass the Senate and the separation of powers for controversial nominations
When Obama tried to expand the recess exception beyond credulity, declaring that he rather than the Senate will determine when the Senate is in recess, then doing so while the Senate was actually passing legislation – the December 2011 extension to the payroll tax – the DC Circuit was forced to act to protect the Constitution’s separation of powers.  We commend the DC Circuit for its decision today restoring the original meaning and intent of the Appointments Clause. 
Assuming the Obama Administration appeals today’s ruling, this case is likely to wind up in the U.S. Supreme Court.


January 24, 2013

Filibuster Survives; Hillary Clinton Wrong

Statement of Committee for Justice President Curt Levey:

Before turning to the filibuster agreement reached today by Senate Leaders Reid and McConnell, we note that D.C. Circuit Judge Merrick Garland recently provided an answer to Hillary Clinton’s now-famous rhetorical question at yesterday’s Benghazi hearing. Clinton asked "Was it because of a protest or was it because of guys out for a walk last night who decided to kill some Americans? What difference at this point does it make?”
It turns out it makes a big difference. Exhibit number one is a case involving a Freedom of Information Act request for photos taken of Osama bin Laden after his death. Reporting on oral argument in the case earlier this month, the Huffington Post notes that Judge Garland “wrongly stated that U.S. Ambassador to Libya Chris Stevens was killed in Benghazi during spontaneous riots sparked by the release of a YouTube video.” Garland was challenging the plaintiff’s assertion that there is little danger that releasing the photos would incite anti-American sentiment.
Mrs. Clinton, the Obama Administration’s false assertion that the Benghazi attack was caused by a protest against a YouTube video succeeded in misleading one of the sharpest judges on the federal bench and may very well affect the decision in this important FOIA case.  This is just one example of why it still matters that the attack was not the result of a YouTube video.
Filibuster Agreement
For those of us concerned about judicial nominations, the takeaway from today’s filibuster agreement is that the judicial filibuster survived untouched, but for a change in the rules on post-cloture debate of district court nominations (details below).
That’s good news. While the judicial filibuster should be used very sparingly, the Committee for Justice supports the Gang of Fourteen’s “extraordinary circumstances” standard – established in 2005 – for when judicial filibusters are appropriate.  Only a few of President Obama’s controversial judicial nominees have met the high threshold of “extraordinary circumstances” and, accordingly, the Committee for Justice has urged the filibuster of only a handful of Obama nominees. Senate Republicans filibustered just six judicial nominees during Obama’s first term and did not filibuster either of his Supreme Court nominees.
However, the GOP may need to use the judicial filibuster if any of the five center-right Justices on the U.S. Supreme Court retire during President Obama’s second term.  Without that threat of a filibuster, there is little to stop Obama from putting a reliable liberal on the Court – no Democratic president has failed to do so since JFK – to fill a center-right vacancy. 
The resulting five-vote liberal majority would mean the end of the ideological balance – big wins and losses for both sides – that has characterized the Court for more than 30 years, a return to the unchecked activist excesses of the Warren Court, and the loss of everything legal conservatives have fought for since Reagan became president.  If that threat doesn’t represent extraordinary circumstances, then nothing does.
Turning to today’s agreement, the one change relevant to judicial nominees is that, if and when cloture is invoked on a district court nomination, the post-cloture debate time has been shortened from 30 hours to two hours.  This change expires at the end of this 113th Congress.
Note that today’s agreement contains no changes relevant to Supreme Court and circuit court nominations, and sixty votes are still required to invoke cloture on all judicial nominees.
The one change will likely speed the confirmation of judges to the district courts, the lowest of the three levels in the federal court system.  The change is a concession to Democrats’ unhappiness that GOP opposition to judicial nominees included district court nominations, which tend to be less controversial as a general rule.  This is despite the fact that GOP senators filibustered only one district court nominee, John McConnell, during Obama’s first term.