Business groups have already begun to take aim at President Obama’s recess appointments. As SCOTUSBlog reports, a coalition of industry groups filed a motion (and supplementary memorandum) to include a challenge to the constitutionality of President Obama’s recess appointments to the National Labor Relations Board in ongoing litigation against recently adopted “notice posting” rule. According to the industry groups, the NLRB lacks the authority to implement and enforce the new rule because it lacks a quorum due to the unconstitutionality of the recent appointments.
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All electronic devices must be turned off prior to takeoff. If you fly anywhere, you’ve almost certainly heard this message. This requirement was adopted for passenger safety, right? Perhaps. Some electronic devices, phones in particular, can cause problems with the plane’s equipment. But the rule applies across the board, even to iPads in “airplane mode” and Kindles. Does this make sense? Apparently not, as there is no technical or scientific basis for the ban on Kindles during takeoff. Nick Bilton explains:
I’ve spoken with the F.A.A., American Airlines, Boeing and several others trying to find answers. Each has given me a radically different rationale that contradicts the others. The F.A.A. admits that its reasons have nothing to do with the undivided attention of passengers or the fear of Kindles flying out of passengers’ hands in case there is turbulence. That leaves us with the danger of electrical emissions.
And what are the electrical emissions of a Kindle?
When EMT Labs put an Amazon Kindle through a number of tests, the company consistently found that this e-reader emitted less than 30 microvolts per meter when in use. That’s only 0.00003 of a volt.
“The power coming off a Kindle is completely minuscule and can’t do anything to interfere with a plane,” said Jay Gandhi, chief executive of EMT Labs, after going over the results of the test. “It’s so low that it just isn’t sending out any real interference.”
But one Kindle isn’t sending out a lot of electrical emissions. But surely a plane’s cabin with dozens or even hundreds will? That’s what both the F.A.A. and American Airlines asserted when I asked why pilots in the cockpit could use iPads, but the people back in coach could not. Yet that’s not right either.
It turns out the Kindle puts off about the same amount of electrical emissions as a portable shaver — and under the FAAs rules those are allowed during takeoff. So what explains the Kindle ban? According to one expert quoted by Bilton: “agency inertia and paranoia.”
This morning I received a CNN “Breaking News” alert that “President Obama said today he is elevating the Small Business Administration to a Cabinet-level agency.” My first reaction was utter disbelief. The question is whether the SBA should exist, not whether it should be a cabinet-level agency. Fortunately, the CNN report was in error. What the President is, in fact, proposing is to consolidate multiple business-related agencies, including the SBA, into a single agency. As the White House fact sheet explains:
Currently, there are six major departments and agencies that focus primarily on business and trade in the federal government. The six are: U.S. Department of Commerce’s core business and trade functions, the Small Business Administration, the Office of the U.S. Trade Representative, the Export-Import Bank, the Overseas Private Investment Corporation, and the U.S. Trade and Development Agency.
This is redundant and inefficient. Small businesses often face a maze of agencies when looking for even the most basic answers to the most basic questions. There is a whole host of websites, toll-free numbers and customer service centers that at times offer them differing advice. The result is a system that is not working for our small businesses.
The President is proposing to consolidate those six departments and agencies into one Department with one website, one phone number and one mission – helping American businesses succeed.
This is a good idea. To be sure, I would love to see the President go even farther and consider whether the federal government needs to devote taxpayer dollars to business promotion at all. But if the government is going to be engaged in such efforts, it certainly makes sense to do so in as efficient a way as is possible, eliminating duplicative agencies and functions. This plan may only be a small step in the right direction, but given the orgy of spending over the past several years (including during the Bush Administration), a reorganization plan projected to save $3 billion over ten years is certainly a step in the right direction. Brad Plumer has more here.
This morning, the U.S. Court of Appeals for the D.C. Circuit decided U.S. Department of the Navy v. FLRA, resolving a labor dispute over water. Judge Kavanaugh’s opinion for the court begins:
This case turns on whether a government agency may provide employees with free bottled water even when safe and drinkable water is available from water fountains at their work sites. Under federal appropriations law, the answer is no.
Apparently the Navy began providing bottled water to workers at a facility in Rhode Island because some water fountains had been manufactured with lead. After the water fountains were replaced, the Navy discontinued providing the bottled water without charge because “providing bottled water when safe and drinkable tap water was available would violate the legal prohibition against use of appropriated funds for employees’ personal expenses.” But the Navy failed to consult with the facility’s civilian employees’ unions before making its decision. In response, the unions filed a grievance, alleging that the provision of bottled water had become a condition of employment at the facility. An arbitrator and the Federal Labor Relations Authority agreed, only to be reversed by the D.C. Circuit on the following grounds:
Decisions of the Supreme Court and this Court have strictly enforced the constitutional requirement, implemented by federal statutes, that uses of appropriated funds be authorized by Congress. See U.S. CONST. art. I, § 9, cl. 7; 31 U.S.C. § 1301 et seq. Funds appropriated for agency operations may be used for “necessary expenses” but not for employees’ “personal expenses.” As the Comptroller General has long determined, when safe and drinkable tap water is available in the workplace, bottled water constitutes a personal expense for which appropriated funds may not be expended. Under federal collective bargaining law, moreover, an agency has no duty or authority to bargain over or grant benefits that are “inconsistent with any Federal law.” 5 U.S.C. § 7117(a)(1). Therefore, if safe and drinkable tap water was available at the Newport facilities, the Navy had no authority or duty to bargain before removing the bottled water.
We therefore vacate the decision of the Federal Labor Relations Authority and remand this case to the Authority to determine whether the tap water is in fact safe to drink. If the Authority concludes that the tap water is safe to drink, the Authority must rule for the Navy.
SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in “ministerial” positions. The Court was unanimous in the judgment. Chief Justice Roberts wrote the opinion for the Court. Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!). I have not yet read the opinion, but I’m certainly curious to see what united Justices Alito and Kagan. More background on the case can be found here.
Also, FWIW, the Court today also issued another 8–1 opinion in Perry v. New Hampshire.
Yale’s Bruce Ackerman, writing in the WSJ, calls for the White House to release the legal memorandum upon which President Obama based his decision to make several recess appointments while the Senate claimed not to be in recess. As Ackerman notes, the Justice Department’s Office of Legal Counsel “traditionally served as the executive branch’s authoritative spokesman on matters of high legal importance,” but no longer. On matters from the constitutionality of proposed legislation to the scope of the President’s authority as commander-in-chief, the White House increasingly looks elsewhere when it wants to ensure it gets a desired legal conclusion. So, here, the President apparently relied upon the White House counsel — who is appointed unilaterally by the President — rather than OLC, which is headed by a Senate-confirmed Assistant Attorney General. Comments Ackerman:
In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. . . .
This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to [OLC head Virginia] Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law. In turning to Ms. Ruemmler, he is asking one of his own appointees to judge whether the Senate can block the appointment of more unilateral appointees.
Within this context, it is hardly enough for him to inform the Senate that Ms. Ruemmler has given the go-ahead. At the very least, he should provide his counsel’s legal opinion explaining why he has the constitutional authority to second-guess the Senate on whether it is in recess.
So far, Ms. Ruemmler has only provided brief media interviews to explain the administration’s “practical, common-sense approach.” On her view, as she explained to NPR, a Senate’s “holiday session” is “just a gimmick” that prevents the president from governing.
Of note, Ackerman finds Ms. Ruemmler’s “casual remarks” wholly insufficient, even though he agrees with her ultimate conclusion that the President’s recess appointments were constitutional. For Ackerman, the issue here is “whether the president has an obligation to make his own constitutional case, or merely announce his judgment by fiat.”
UPDATE: Jack Goldsmith cautions that we should not assume that OLC was not consulted, though he urges. As he notes, it is rare for a President to bypass or overrule OLC. He is correct. The problem is that the White House won’t say whether the Justice Department was consulted and the current administration bypassed OLC on the constitutionality of DC voting rights legislation and overruled OLC on the nature of the military intervention in Libya. In the latter case, the White House also refused to say whether OLC had been consulted until that information was leaked and reported by the NYT’s Charlie Savage. So until the White House is willing to say whether OLC was in the loop, I think skepticism is warranted. In any event, the Administration should be willing to offer a more complete justification of its position. Writes Goldsmith:
I can understand why the administration might not want the OLC opinion itself released, especially if (as is probably the case) the opinion notes the closeness of the issue and acknowledges counterarguments, both of which could be used against DOJ in subsequent litigation. But beyond these concerns, which could be addressed by releasing a suitably summarized legal analysis, arguments based on attorney-client and executive privilege ring hollow in this context. The Obama administration’s supposed commitment to DOJ transparency has applied much more to Bush-era legal work than to Obama-era legal work. That looks bad and it is bad. I believe the President has a prerogative to use all of the constitutional tools at his disposal in fighting against a Congress that he believes is unduly intransigent. But especially in an area like this that is hard for courts to review and that raises no issue of classified information, Congress and the American people should be given an opportunity to judge the validity of the President’s legal arguments.
FURTHER UPDATE: As John Elwood reports, there is an OLC opinion and it has just been posted on the DOJ website.
Back in 2007, Congress created a biofuels mandate under which oil companies are required to use a minimum amount of cellulosic ethanol each year. The mandate was supposed to encourage the development of a domestic cellulosic ethanol industry. This has not happened. Several years after the mandate was imposed, there is still no commercial cellulosic ethanol production. This gets the oil companies off the hook, right? Nope. As the New York Times reports, companies are still paying fines, totaling nearly $7 million, for failing to meet a blending quota for a substance that does not exist. Were that not bad enough, this year the cellulosic ethanol quota will increase, as will the fines for failing to meet it.
Who would defend mandating the use of a substance that, for all practical purposes, does not exist? Not the renewable fuel industry. As the NYT reports, they acknowledge that commercial production of cellulosic ethanol remains years away.
“From a taxpayer/consumer standpoint, it doesn’t seem to make a lot of sense that we would require blenders to pay fines or fees or whatever for stuff that literally isn’t available,” said Dennis V. McGinn, a retired vice admiral who serves on the American Council on Renewable Energy.
The EPA, on the other hand, defends the mandate:
Cathy Milbourn, an E.P.A. spokeswoman, said that her agency still believed that the 8.65-million-gallon quota for cellulosic ethanol for 2012 was “reasonably attainable.” By setting a quota, she added, “we avoid a situation where real cellulosic biofuel production exceeds the mandated volume,” which would weaken demand.
AEI’s Ken Green has trouble making sense of the EPA’s rationalization:
So what’s most important about biofuel quotas is that they prevent us from over-producing a product that we can’t produce so we don’t weaken demand for the product that the government mandates we use.
As Green notes, Congress might as well have mandated oil companies blend gasoline with rainbows and unicorn sweat.
The Supreme Court issued four opinions in argued cases today. Interestingly, all four cases were decided 8–1 (though some featured concurrences or separate opinions). Justice Ginsburg was the lone dissenter in two of the cases (Minneci v. Pollard and Compu-Credit Corp. v. Greenwood). In the other two cases the lone dissenters were Justice Scalia (Gonzales v. Thaler) and Justice Thomas (Smith v. Cain). SCOTUSBlog has more details on the opinions here.
Today’s WSJ features an op-ed by former federal judge Michael McConnell on President Obama’s decision to grant recess appointments to Richard Cordray to head the Consumer Financial Protection Board and three members of the National Labor Relations Board.
It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess. Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office.
It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. If the filibuster is a problem, the Senate majority has power to eliminate or weaken it, by an amendment to Senate Rule 22. They just need to be aware that the same rules will apply to them if and when they return to minority status and wish to use the filibuster to obstruct Republican appointments and policies.
McConnell notes that Harvard’s Laurence Tribe, who is now defending the recess appointments, “dismissed as ‘absurd’ any suggestion that a period of ‘a fortnight, or a weekend, or overnight’ is a ‘recess’ for purposes of the Recess Appointments Clause.” He also observes that the Administration “has offered no considered legal defense for the recess appointments,” suggesting there was no Office of Legal Counsel memo supporting its claim. Writing in the LA Times, Bruce Ackerman likewise expressed doubts that the Justice Department’s OLC backed the decision:
Normally, presidents rely on the Justice Department to present their case on matters of high constitutional importance. But Obama has refused to take this course, probably because traditionalists in the department refused to endorse his collision course with the Senate. Instead, he used his White House counsel, Kathryn Ruemmler, to serve as his legal mouthpiece.
As Ackerman observed, the Administration adopted the same approach when declaring the military intervention in Libya was not a military conflict. The Administration also circumvented OLC when it decided to back the constitutionality of legislation granting voting rights to the District of Columbia.
Back on the subject of the constitutionality of recess appointments, at the Originalism blog, Michael Rappaport offers a post, “Recess Appointments: The Original Meaning and Its Decline.”
Over at RegBlog (an indispensable resource for those interested in regulatory policy), Lewis & Clark Law Professor William Funk comments on the stakes in the Sackett case:
Many environmentalists fear that a decision by the Court in favor of the Sacketts would hamstring environmental enforcement, on the theory that if defendants may delay compliance during lengthy judicial review proceedings, substantial harm to the environment may occur even if EPA eventually prevails. Moreover, if obtaining judicial review would delay compliance, then defendants might be induced to seek judicial review simply to put off the cost of compliance, even if the defendants knew they were likely to lose in the end. However, this fear is unfounded. The Administrative Procedure Act is clear that obtaining judicial review of a compliance order does not by itself relieve a person from the requirement to comply with that order pending judicial review. Instead, that Act provides that a person may seek a stay of the order first from the agency and then from the court if the agency denies the request, but that request will be judged on its own merits. For example, with respect to the Sacketts, it is unlikely a court would stay EPA’s order to cease and desist from further damage to the alleged wetlands, but it might well stay the requirement that the Sacketts restore the wetlands until a determination of the validity of EPA’s order. Thus, the judicial review the Sacketts seek would not enable continued harm to the environment during the review proceedings.
One need not view EPA as a rogue agency – or even as Dirty Harry – to appreciate the need for providing a judicial check on agency action. Even in good faith EPA has made errors in the past, and it and will again in the future; after all, it is staffed by humans. Knowing that persons may be able to seek judicial review, rather than be coerced into compliance out of fear of large penalties, provides a healthy incentive for EPA officials to ensure that their decisions are based on sound facts and law that will be readily upheld in courts. Absent that incentive, the tendency noted by Lord Acton – that power tends to corrupt and absolute power corrupts absolutely – could lead an agency to rely more on coercion than law. It is an essential element of the rule of law that government action be subject to judicial review, and here EPA’s order likewise should be subject to review.
Here are my prior posts on the Sackett case:
At SCOTUSBlog, Lyle Denniston characterizes the oral argument in Sackett v. EPA as “A Weak Defense of EPA.” Perhaps that’s because the EPA’s position, applied in this case, is difficult to square with traditional notions of due process. Denniston highlights one passage of the oral argument (transcript) that highlighted the nature of the government’s position:
JUSTICE ALITO: Mr. Stewart, if you related the facts of this case as they come to us to an ordinary homeowner, don’t you think most ordinary homeowners would say this kind of thing can’t happen in the United States? You don’t — you buy property to build a house. You think maybe there is a little drainage problem in part of your lot, so you start to build the house and then you get an order from the EPA which says: You have filled in wetlands, so you can’t build your house; remove the fill, put in all kinds of plants; and now you have to let us on your premises whenever we want to. You have to turn over to us all sorts of documents, and for every day that you don’t do all this you are accumulating a potential fine of $75,000. And by the way, there is no way you can go to court to challenge our determination that this is a wetlands until such time as we choose to sue you.
The federal government’s attorney did not have much of an answer other than to say that, in most cases, there would have been some prior communication between the landowner and the EPA or Army Corps alerting the landowner to the potential problem, at which point the landowner could have filed a permit. Yet whether a permit is necessary in the first place is part of what is at issue, which prompted Chief Justice Roberts to characterize the federal government’s position as: Since you didn’t ask us whether we could regulate your property, we get to do it. After all, Roberts noted later, most landowners will not violate the order and risk the resulting accumulation of penalties just to get their day in court. As Justice Scalia noted later, in most cases, if the government is threatening to prosecute you, rather than “wait for the prosecutor to drop the hammer,” you may go to court to seek a declaratory judgment to resolve the question. Yet here, where the government has done more than merely threaten prosecution, no such pre-enforcement review is available. Worse, refusing to comply with the government’s order is, itself, a legal violation. It would be one thing to defend this sort of system where time is of the essence — such as where prompt action is necessary to prevent severe, ongoing contamination, such as from a hazardous waste spill. It’s quite another to try and defend this as “due process” when what is at issue is a the deposit of clean fill on a half-acre plot of land that may not even be within the scope of federal regulatory jurisdiction in the first place.
UPDATE: At Legal Planet, Richard Frank comments:
There seems little doubt from the oral arguments that the Sacketts will prevail before the Supreme Court, and that the lower court decisions will be reversed. (Having attended today’s arguments, I count at least seven justices siding with the Sacketts, and it’s conceivable that the opinion may even be unanimous.) The more difficult–and intriguing–question is how sweeping or narrow a decision will the justices issue? Will the anticipated ruling against EPA be confined to enforcement of the Clean Water Act, or might it extent to a host of other federal environmental laws that EPA frequently enforces through the issuance of ACOs? And will the Court base its decision on exclusively on statutory grounds, or will it follow the urging of several of Sacketts’ amici to find that the lack of judicial review of ACOs represents an unconstitutional deprivation of due process?
Today the Supreme Court hears oral argument in Sackett v. EPA, a challenge to the federal government’s claim that landowners (and other regulated entities) may not obtain pre-enforcement review of an administrative compliance order under the Clean Water Act. I previewed the case before. Here is how the WSJ reports on the case this morning:
Based on “any information”—even a newspaper article or an anonymous tip—the Environmental Protection Agency can issue an administrative compliance order directing a property owner to stop discharging pollutants or restore a damaged wetland. The government says such directives, similar to stop-work orders by local zoning inspectors, allow it to respond rapidly to prevent environmental damage.
But business groups contend that the EPA acts as a judge and jury, forcing property owners either to comply, often at great expense, or risk penalties of up to $37,500 a day if the agency later obtains a court ruling to enforce its directive.
Challengers say that by issuing compliance orders without first giving property owners a chance to contest them in court, the EPA skirts the federal law and the Fifth Amendment guarantee of due process.
The NYT editorializes on the case today as well, suggesting that the Sacketts must lose because (gasp) their position might benefit corporations.
This case goes far beyond the Sacketts’ right to fill in their lot without a permit. If the Supreme Court allows them to seek pre-enforcement review, it will be handing a big victory to corporations and developers who want to evade the requirements of the Clean Water Act.
One fact the NYT (and many commentators) ignore is that allowing pre-enforcement review of administrative compliance orders does not relieve regulated parties of the obligation to comply with such orders. Judicial review does not automatically stay enforcement of the order, so allowing regulated entities their day in court does not necessarily entail allowing them to continue to engage in allegedly polluting behavior. It does, however, prevent agencies from using enforcement leverage to force compliance with rules that may not even apply. In the Sacketts’ case, for instance, the whole question is whether their land is subject to federal regulation in the first place. Granting pre-enforcement review does not automatically entitle them to continue building their house, but it does prevent the EPA from piling on penalties before the jurisdictional question is answered.
The briefs for the case are on SCOTUSBlog, and here’s an article in Regulation by PLF attorney Tim Sandefur, advocating the Sacketts’ position.
One justification for President Obama’s decision to make several recess appointments this week is that the appointments were necessary to prevent partisan obstruction from disabling federal agencies from performing their duties. In the case of Richard Cordray, it was clear that Senate Republicans would block his appointment as head of the Consumer Financial Protection Board (CFPB) due to their opposition to how the Board is structured. A recess appointment was the only way to put Cordray (or anyone else) in place to run the Board.
In the case of the National Relations Board, the President was concerned that the Board would lack a quorum. As the Supreme Court confirmed in New Process Steel v. NLRB, there must be three NLRB members for the Board to have a quorum, and there were only two Board members remaining after Craig Becker’s recess appointment expired on January 3. Yet if the NLRB was to lack a quorum it would not have been because Senate Republicans blocked the President’s most recent nominees.
Two of those given recess appointments — Sharon Block and Richard Griffin — were only nominated to the NLRB on December 15, just before the Senate went into its “pro forma” session during which no business was to be conducted. Yet even had the Senate been conducting business over the holidays, neither Block nor Griffin could have been confirmed. As the Heritage blog reports, the Senate’s Health, Education, and Labor Committee had yet to receive the relevant paperwork and background materials on these two nominees — materials that are typically required, in addition to a background check, for Senate consideration. (The third nominee to receive a recess appointment to the NLRB was Republican Terry Flynn who had been nominated last January.)
It is certainly possible — perhaps even likely — that Senate Republicans would have opposed confirmation of Block or Griffin, but we’ll never know. The two were given recess appointments before they could be considered, let alone opposed. In this regard, the Griffin and Block appointments were something of a preemptive strike.
The recess appointnment claus is an “odd clause” — and perhaps even the “oddest clause of all” in the Constitution, according to BU’s Jay Wexler. However odd it may be, it’s receiving lots of attention due to the President’s decision to make four recess appointments even though the Senate maintains it had not formally recessed.
Michael Rappaport makes the originalist case against the President’s recess appointments here. Likewise, Richard Epstein and John Yoo both argue President Obama’s recess appointments are unconstitutional, as do David Rivkin and Lee Casey. (Note that some of these arguments would have applied to prior recess appointments, including those by President Bush.) At NRO’s Bench Memos, Matthew Franck is unconvinced. Recall our own John Elwood has also taken the opposite view. Yale law student Alexander Platt also has a timely student note on the legality of recess appointments,“Preserving the Appointments Safety Valve,” arguing against the use of pro forma sessions to prevent recess appointments from being made. (Hat tip: Lawrence Solum)
Legal scholars also debated the acceptatbility of recess appointments during the Bush Administration. Marty Lederman, for example, argued that the recess appointments clause can only be used a) during intersession recesses to fill b) vacancies that occurred during the recess. The first argument was used (unsucessfully) in an effort to unseat Judge William Pryor who received a recess appointment to the U.S. Court of Appeals for the 11th Circuit.
Whatever the merits of the respective legal arguments — and whether or not they are ever resolved in court — at the Monkey Cage, Sarah Binder observes that Presidents of both parties have made intrasession recess appointments for quite some time, and sees little reason for the practice to stop. But, as Ezra Klein notes, there are limits to how often this tactic will be used (more here).
While academic commentators seem to have maintained their prior positions, the same cannot be said of political leaders. As The Hill reports, Senate Majority Leader Harry Reid supports President Obama’s recess appointments even though he previously argued pro-forma sessions were sufficient to prevent such appointments from being made.
UPDATE: Here is some additional commentary from Bruce Ackerman, Lawrence Tribe, and Adam White.
The WSJ Law Blog reports on comments by former Senator Rick Santorum (unearthed at RedState) on federalism and the authority of different states to adopt different policies on moral questions.
I’m a very strong supporter of the 10th amendment . . . but the idea that the only things that the states are prevented from doing are only things specifically established in the Constitution is wrong.
Our country is based on a moral enterprise. Gay marriage is wrong. As Abraham Lincoln said, states do not have the right to do wrong. And so there are folks, here who said states can do this and I won’t get involved in that.
I will get involved in that because the states, as a president I will get involved because the states don’t have a right to undermine the basic fundamental values that hold this country together. America is an ideal. It’s not just a constitution, it is an ideal. It’s a set of morals and principles that were established in that declaration, and states don’t have the right, just like they didn’t have the right to do slavery.
If Senator Santorum is a “strong supporter of the 10th amendment,” he might want to read it, as it seems to say precisely what he denies.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Constitution only prohibits states from doing those things the Constitution prohibits, and the federal government may only constrain state autonomy pursuant to those powers delegated to the federal government. Santorum may think same-sex marriage is wrong, but nothing in the Constitution prevents states from recognizing same-sex marriage nor does anything in the Constitution authorize the federal government to stop states from doing so.
The reference to Lincoln is also interesting, and does not exactly support Santorum’s claim that “states don’t have a right to undermine the basic fundamental values” of the nation. Contrary to Santorum’s suggestion, states did have the legal authority to permit slavery prior to adoption of the Thirteenth Amendment (which was adopted, incidentally, well after Lincoln’s death). The Emancipation Proclamation, issued pursuant to the President’s War Powers, only applied in those states that had seceded. The federal government had the authority to limit slavery, such as by ending the slave trade or (prior to Dred Scott) prohibiting slavery in federal territories, but states retained the authority to “do wrong.”
A more charitable interpretation of Santorum’s remarks would be that there is nothing in the 10th Amendment that would prevent a constitutional amendment to prohibit gay marriage. That would be true, but trivially so. There is nothing in the Constitution that prevents the adoption of additional amendments on anything (with one exception still relevant today). But this only makes the point. Were a constitutional amendment adopted prohibiting same-sex marriage, then states would be specifically prohibited from recognizing such marriages by the Constitution, not by some conception of America’s “moral enterprise” or the “basic fundamental values” of the nation.
The Consumer Financial Protection Board was not the only beneficiary of a recess appointment today. The AP reports the President also made three recess appointments to the National Labor Relations Board — two Democrats and one Republican. The White House release is here.
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 December 23, the President signed an omnibus spending bill and issued a signing statement detailing his objections to various provisions and limitations contained in the bill. Here is coverage from The Hill and the NYT. Several of the bill’s provisions “raise constitutional concerns.” Accordingly, the President announced these provisions would be interpreted in a manner that would minimize potential constitutional conflicts and applied ” in a manner consistent with my constitutional authority as Commander in Chief.” Furthermore, the President explained, he would “not treat these provisions as limiting my constitutional authorities in the area of foreign relations.”
An Englishman makes a confession: He prefers American football to soccer.
In its energy and complexity, football captures the spirit of America better than any other cultural creation on this continent, and I don’t mean because it features long breaks in which advertisers get to sell beer and treatments for erectile dysfunction. It sits at the intersection of pioneering aggression and impossibly complex strategic planning. It is a collision of Hobbes and Locke; violent, primal force tempered by the most complex set of rules, regulations, procedures and systems ever conceived in an athletic framework.
Soccer is called the beautiful game. But football is chess, played with real pieces that try to knock each other’s brains out. It doesn’t get any more beautiful than that.
Like Ilya, I was terribly saddened to learn that Professor Larry Ribstein suffered a stroke and died yesterday. He was on the faculty when I studied at George Mason, though I never had the good fortune to have him as one of my professors. I have, however, learned quite a bit from his scholarly and other writings, as well as from our occasional conversations. He will be missed.
Here is the University of Illinois release and remembrances from many around the blogosphere:
- Larry Solum
- Geoff Manne (with an update collecting comments from others)
- Stephen Bainbridge
- Kim Krawiec
- Jeff Lipshaw
The National Transportation safety Board (NTSB) is supposed to be “an independent federal agency charged with determining the probable cause of transportation accidents” that, among other things, conducts “objective, precise accident investigations and safety studies.” So why is NTSB Chair A.P. Hersman falsely claiming that 3,000 people died in traffic accidents last year due to the use of cellphones or other “portable electronic devices” while driving? As Walter Olson notes, the 3,000-death figure is the National Highway Traffic Safety Administration’s estimate for deaths due to all sorts distracted driving, and only one-third of these deaths were attributed to the use of portable electronic devices.
Even though highway fatalities are down, distracted driving is a problem. But why are cellphones, PDAs, etc. any worse than other sources of distraction? Is the driver who quickly glances at a text more dangerous than the one applying makeup, shaving, reading directions struggling with a map, playing with the radio, or looking at the passenger while immersed in conversation? I don’t think so. Indeed, the federal government’s own data shows other problems, such as aggressive driving, remain a greater problem than driver distraction, and passengers appear to be a greater source of distraction than electronic devices. Nonetheless, as Glenn Reynolds notes, the NTSB is exaggerating the relative risk of using such devices — and misrepresenting the causes of a 2010 pileup in Missouri — to push for a federal ban.
State and local governments are fully capable of adopting such policies, and many have. Yet, as Marc Scribner notes, it’s not clear such bans actually reduce crash risks (in part because some drivers respond by engaging in surreptitious texting). This doesn’t mean all such laws are a bad idea, but there is no need for a federal ban. State and local authorities are fully capable of acting and continued state and local experimentation will help uncover what sorts of restrictions do the most to improve traffics safety. In the meantime, the NTSB should top misrepresenting facts to support an unnecessary federal ban, particularly if it’s going to fulfill its mission of being “objective” and “independent.”
UPDATE: To clarify the above, last week the NTSB called for the “first-ever nationwide ban” on the use of portable electronic devic es while driving. The NTSB is also urging state governments to prohibit texting and other electronic device use while driving. (Thirty-five states have such rules in place now.) In addition, Transportation Secretary Ray LaHood has called for Congress to enact a federal ban.
Former New Mexico Governor Gary Johnson has decided to drop out of the GOP primaries and run for President as a Libertarian. (You didn’t know Johnson was running for President? Didn’t you see him in all the debates? Oh . . wait, the two-term former governor didn’t get to participate.)
Former Florida Governor Jeb Bush in the WSJ:
The right to rise doesn’t seem like something we should have to protect.
But we do. We have to make it easier for people to do the things that allow them to rise. We have to let them compete. We need to let people fight for business. We need to let people take risks. We need to let people fail. We need to let people suffer the consequences of bad decisions. And we need to let people enjoy the fruits of good decisions, even good luck.
That is what economic freedom looks like. Freedom to succeed as well as to fail, freedom to do something or nothing. People understand this. Freedom of speech, for example, means that we put up with a lot of verbal and visual garbage in order to make sure that individuals have the right to say what needs to be said, even when it is inconvenient or unpopular. We forgive the sacrifices of free speech because we value its blessings.
But when it comes to economic freedom, we are less forgiving of the cycles of growth and loss, of trial and error, and of failure and success that are part of the realities of the marketplace and life itself.
Protecting the freedom to engage in business is not the same as protecting business. Advancing the interests of politically connected capitalists does not advance capitalism. It’s a lesson many of those who claim to believe in free enterprise too often forget.
Last week, in United States v. Oaks, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that escaping from a courtroom while in police custody is not a “violent felony” for sentencing purposes under the Armed Career Criminal Act if the courtroom was not a secure facility.” Judge Martin wrote the opinion for the court. District Judge Hood, sitting by designation, dissented, arguing that escape from police custody at a courthouse should be considered a “violent felony.”
Oaks was being held in a secure county jail before being taken by his custodian to the courthouse for an appearance on felony charges of evading arrest, felony reckless endangerment, attempted aggravated robbery, theft over $500.00 and aggravated burglary. Obviously the courtroom is not as secure as the county jail, but I am hard pressed to imagine an individual who is “significantly more likely than others to attack, or physically to resist, an apprehender, thereby producing a ‘serious potential risk of physical injury,’” than someone who flees from law enforcement custody during an appearance in a matter in which he is facing felony charges.
John Goodman in the WSJ: ” There is nothing that can be achieved with a mandate that can’t be better achieved by a carefully designed system of tax subsidies.” Goodman’s argument is strengthened by the fact that the mandate, as structured in the PPACA, would increase coverage, but come nowhere close to achieving universal coverage. The mandate will increase coverage and reduce premiums on the margin, but the same could be said of many other policy options as well.
As I’ve noted before, whether a mandate is “necessary” to increase coverage and control costs absent a single-payer system is a separate question from whether it is a “necessary and proper” means of carrying into execution the federal government’s enumerated powers.
Former Speaker and presidential hopeful Newt Gingrich has been turning heads with his comments on “judicial activism” and the “Arrogant overreach” of federal judges. From the WSJ:
Republican presidential candidate Newt Gingrich came out swinging Saturday against the nation’s legal system, pledging if elected to defy Supreme Court rulings with which he disagrees and declaring that a 200-year-old principle of American government, judicial review to ensure that the political branches obey the Constitution, had been “grossly overstated.”
Courts “are forcing us into a constitutional crisis because of their arrogant overreach,” Mr. Gingrich told reporters in a Saturday conference call. He repeatedly blasted federal judges for imposing “elitist opinion” on the rest of the country. . . .
“Do we really believe that all the intricate systems that we have created should come down to one lawyer?” he said. “The courts are too aggressive, and the courts have been trying to impose an elitist value system on a country that’s inherently not elitist.”
He pointed to a position paper on his campaign website, which states that “should the Supreme Court issue decisions during a Gingrich administration that unconstitutionally empower federal judges with certain national security responsibilities, such decisions will be ignored.”
Here is the campaign white paper to which Gingrich referred.
Asked about these quotes on CBS’ Talk of the Nation this morning, Gingrich did not back off, and suggested that disputes among the three branches on constitutional questions should be decided “two out of three.”
Citing what he describes as “extreme behavior” on the party of the judicial system, Gingrich proposes a system wherein “it’s always two out of three.”
“If the Congress and the court say the president is wrong, in the end the president would lose. And if the president and the court agreed, the Congress loses,” said Gingrich. “The founding fathers designed the Constitution very specifically in a Montesquieu spirit of the laws to have a balance of power — not to have a dictatorship by any one of the three branches.” . . .
Gingrich conceded today that a number of legal experts would not necessarily be comfortable with his take on the separation of power within the American government. But, he says, that’s the point.
“I think many lawyers will find this a very frightening idea,” he said. “They’ve had this run of 50 years of pretending judges are supreme, that they can’t be challenged. The lawyer class defines America. We’ve had rulings that outlawed school prayer, we’ve had rulings that outlawed the cross, we’ve had rulings the outlawed the 10 Commandments, we’ve had a steady secular drive to radicalize this country away from all of its core beliefs.”
Gingrich’s proposals have drawn substantial criticism, including from the Right. On NRO’s Bench Memos, Ed Whelan and Matt Franck tag team the former Speaker’s proposal to abolish judgeships as a way of reining in wayward courts: 1 (Whelan), 2 (Franck), 3 (Whelan), 4 (Franck).
Earlier this month, I posted on Steven Calabresi and Julia Rickert’s new paper, “Originalism and Sex Discrimination.” Published in the Texas Law Review, this article makes an originalist argument that gender discrimination, such as the exclusion of women from VMI, is unconstitutional.
This is an important article, which has already received notice from Lawrence Solum and Jack Balkin, among others. It was also subject to a lengthy critique by Ed Whelan on NRO’s Bench Memos in five parts: 1, 2, 3, 4, and 5. Calabresi and Rickert have written a response to Whelan which I am posting here. It begins below and the continues after the jump.
[UPDATE: Ed Whelan has a brief rejoinder here.]
Steve Calabresi & Julia Rickert Response to Ed Whelan
We recently posted an article on SSRN entitled “Originalism and Sex Discrimination,” which has now been published in the Texas Law Review. We argue in our article that the Fourteenth Amendment outlaws all systems of caste from the Black Codes to European feudalism to the Indian Caste system. We also argue that after the ratification of the Nineteenth Amendment in 1920 giving women the right to vote, it was constitutionally correct to read the Fourteenth Amendment’s ban on caste as outlawing sex discrimination with respect to civil rights. Our position is that originalists reading the text of the Fourteenth Amendment today need to synthesize it with the text of the Nineteenth Amendment. We believe that the political right to vote which the Fifteenth Amendment extends to men of any race, and which the Nineteenth Amendment extends to women of all races, is at the apex of the Constitution’s hierarchy of rights while civil rights, which the Fourteenth Amendment protects form the base of the pyramid. Children, aliens, and former felons have civil rights under the Fourteenth Amendment, but they do not have the political right to vote. No group, however, in our opinion can be granted political rights without also acquiring civil rights under the Fourteenth Amendment.
In five posts on National Review, Ed Whelan, who is one of the most acclaimed conservative legal thinkers and activists of his generation, disagrees with our view. Whelan agrees to assume along with us that the Fourteenth Amendment outlaws systems of caste, as a matter of original meaning, but he disagrees with us that traditional laws that banned married women from owning property, entering into contracts, or working as lawyers or bartenders set up a system of caste even if the Fourteenth Amendment bans systems of caste. Whelan also argues that the Nineteenth Amendment ought not to be read synthetically with the Fourteenth because doing so renders the Fourteenth Amendment superfluous. Whelan makes many additional arguments which we will try to address below, but this is the gist of his argument.
Continue reading ‘Calabresi & Rickert Respond to Whelan on Originalism and Sex Discrimination’ »
As expected, the National Labor Relations Board has dropped its complaint against Boeing in the wake of the machinists’ union’s ratification of a new labor agreement with the airplane manufacturer.
So-called “Plan-B” contraception is currently available for sale over-the-counter to women age 17 and older. Those younger than 17 may only obtain Plan B with a prescription.
Earlier this week, in response to a petition from Teva Pharmaceuticals, the manufacturer of Plan-B One Step, the Food and Drug Administration decided that the age limitations should be lifted. A review by the Center for Drug Evaluation and Research concluded that the drug is “safe and effective” for use by adolescents and that younger women of child-bearing age were able to follow the product’s instructions and use it properly. On this basis, FDA Commissioner Margaret Hamburg decided to make Plan-B One Step available without a prescription to all women of child-bearing potential.
On Wednesday, Health & Human Services Secretary Kathleen Sebelius overruled the FDA Commissioner. As Secretary Sebelius explained in a statement, “the data, submitted by Teva, do not conclusively establish that Plan B One-Step should be made available over the counter for all girls of reproductive age,” largely because a significant percentage of eleven-year olds are capable of bearing children, and that there “are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age.” Yesterday, President Obama said he supported the Secretary’s decision.
“I will say this, as the father of two daughters. I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine,” Mr. Obama said. The president’s daughters, Malia and Sasha, are 13 and 10. “I think most parents would probably feel the same way,” he said.
The usual suspects responded to the decision in the usual ways. Reproductive rights organizations condemned the Administration’s decision. Anti-abortion groups, which consider Plan-B an “abortifacient” because it can prevent a fertilized egg from coming to term, cheered the action.
Some of those critical of the Administration have characterized this decision as the triumph of politics over science. So is this part of an Obama Administration “war on science”? No. Medical science should — and apparently did — inform the Administration’s decision, but a decision of this sort is not — and cannot be — a purely scientific one. Science can illuminate the relevant trade-offs in a policy decision of this sort, but it does not determine how much weight should be placed on which concerns, such as whether it is more important to expand options and sexual autonomy for sixteen-year olds or “protect” girls who are only eleven or twelve. No amount of scientific research will resolve this sort of dispute.
Reproductive rights groups are not angry because the decision represents the politicization of science, but because it places a limitation on the sexual autonomy of young women. Similarly, those groups who support the decision are likewise motivated by something other than science. Insofar as either group frames their objections in scientific terms, they obscure what is really at stake. How much one values the ability of women and girls to control their own reproductive choices or believes in the ability of parents to influence if not control their daughters’ medical and sexual choices are relevant considerations, as is the weight one believes should be placed on the tail ends of the distributions — those most at risk of adverse effects or those girls of child-bearing age least able to make informed decisions for themselves — or the relevance that Plan-B contraception can prevent the implantation of an already fertilized egg. Science is relevant here, but it does not dictate the policy choice.
Barring unusual circumstances, the U.S. Court of Appeals for the D.C. Circuit only releases opinions on Tuesdays and Fridays. Even with this limited release schedule, there are rarely more than a few opinions issued on a single day. I expressed surprise when the D.C. Circuit released ten opinions on a single day in July. Today, however, the court released eleven, one of which was an amended opinion accompanying a denial of a petition for rehearing. Some of the cases are interesting, including the appeal of contempt findings against federal attorneys who handled the Senator Stevens prosecution, a partially successful challenge to the EPA’s NESHAP standards for cement kilns, a dispute between the SEC and Williams & Connolly, and a decision dismissing a challenge to a Clean Water Act jurisdictional determination due to a lack of standing.
Eric Segall, a self-described “liberal constitutional law professor” who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation.
Can Justice Kagan review the ACA without regard for the personal and professional past and the future of President Obama as well as her prior work in the administration? Can she look at the ambiguous and open-ended Commerce Clause precedents of the court and reach a legal answer with no awareness of the political implications for the president who so recently employed and appointed her? If the answer is yes, she is more robot than judge. If the answer is no, she should recuse herself. And the answer, ultimately, is what Americans will think, and a reasonable American would believe she has a stake in this litigation.
I explained why I don’t think Justice Kagan needs to recuse here, though I believe it’s a closer case than some have acknowledged.
Yesterday, the House passed the REINS Act on an almost exclusively party-line vote, 241–184. All the House Republicans voted for the bill, as did four Democrats. Thought the bill passed the House, it’s not about to be enacted into law. The Senate is unlikely to take up the bill and President Obama has promised to veto the REINS Act should it somehow reach his desk.
My posts on the REINS Act are indexed here.
Tags: REINS Act
Today the House of Representatives is expected to vote on the REINS Act, a bill to enhance political accountability over regulatory decisions. The bill has two essential features. First, it bars new “major” regulations (those anticipated to cost more than $100 million annually) from taking effect unless approved by both houses of Congress. Second, it creates an expedited review process that forces each house to vote on each major rule. So while requiring Congressional approval, REINS prevents members of Congress from ducking their responsibility to vote yay or nay.
REINS is a controversial bill, in part because it effectively limits the delegation of broad regulatory authority to federal agencies, but to read some critics, REINS would usher in an anti-regulatory armageddon. While I support the legislation, for reasons detailed in these posts (and summarized in this NRO piece), I recognize that there are reasonable arguments to be made on the other side. What’s so interesting watching this debate, however, is how many opponents refuse to make them, relying instead on inaccurate and fanciful characterizations of the bill. It’s telling when opponents of legislation are unable or unwilling to describe it accurately when making their case.
To take one example, US PIRG’s Ed Mierzwinski argues that the REINS Act would lead to unsafe toys on the market and emasculate the CPSC.
One bill, the REINS Act, would not only allow but require congressional meddling in the implementation of all public health and safety rules. A single member of Congress, at the behest of some powerful special interest or campaign contributor, could block the public database, block science-based lead standards for children’s products, block crib safety rules or any number of protections that provide a safer consumer marketplace.
The idea that REINS would allow a single member of Congress to block new regulations is a common claim. The Center for American Progress makes it here. It’s also false. The bill expressly limits debate, waives procedural objections, and requires a vote on the merits. Under REINS, if some members of Congress wish to block needed safety rules at the behest of a special interest, they will have to do it out in the open, and will only succeed if they can win a majority vote. How could this undermine legislative accountability? It’s true REINS requires that legislative approval occur within a set period of time, but it also ensures the vote occurs before the deadline expires.
The NYT worries REINS will “undermine the executive branch.” Really. Why? Because it will be too easy for a majority in either House to prevent a President from rewriting regulatory requirements. The NYT also argues REINS is “deeply undemocratic.” Got that? Requiring legislative votes on major regulations — that two or three of the most consequential regulatory decisions made by federal agencies — is “undemocratic,” whereas allowing agencies to rely upon decades-old statutes to remake industries and reconfigure whole sectors of the economy is not.
The REINS Act would dramatically alter how major rules are made, but it would do so by making sure the people’s representatives have a greater say on — and greater accountability for — the major regulatory actions our federal government takes. If the public wants greater regulation of environmental or other problems, REINS won’t stand in the way. Only if the public is skeptical of such regulations, or unconcerned by legislative vetoes of proposed rules, will REINS slow down the adoption of new rules. And perhaps that’s what the REINS Act’s opponents are truly afraid of: A regulatory process that more accurately reflects what the public wants.
UPDATE: For unhinged commentary on the REINS Act, it’s hard to do better than this piece which, among other things, claims the Act would “essentially return environmental regulation to 1890s standards – when corporations polluted with impunity.” That’s an astounding charge given that REINS a) does not have any effect whatsoever to regulations already on the books and b) would apply equally to deregulatory initiatives, such as any effort by a future President to repeal existing regulations.
Tags: REINS Act
Former federal judge and Attorney General Michael Mukasey argues against the recusal of any SUpreme Court justices in the in the case challenging the constitutionality of the Patient Protection and Affordable Care Act. Ideological partisans have argued that one or more justices on the other side of the ideological divide are sufficiently conflicted to require recusal. The Left has targeted Thomas (and to a lesser extent, Scalia) for alleged spousal conflicts and (choice of dinner companions), while the Right has targeted Kagan due to her work as Solicitor General. To each, Mukasey responds: “upon even a cursory examination of the facts it is clear that neither justice should step aside.”
Of the specific standards, only two—one as to each justice—could conceivably be relevant. The one that potentially relates to Justice Kagan requires disqualification “[w]here [the Justice] has served in governmental employment and in such capacity participated as counsel [or] adviser concerning the proceeding or expressed an opinion concerning the merits of the particular case or controversy.” “Proceeding” is defined to include all stages of the relevant litigation.
In order to run afoul of that provision, Justice Kagan herself would have had to participate in her official capacity as counsel or adviser in the case at any stage, or expressed an opinion in her official capacity about the merits. Asked during her confirmation proceedings whether she had done so, she said no. Absent evidence to the contrary, there is no reason not to credit that denial. Statements of opinion to friends or former colleagues do not count here.
The one provision that could apply to Justice Thomas requires recusal if the spouse of the Justice is known by him “to have an interest that could be substantially affected by the outcome of the proceeding.” Under the applicable law, the “interest that could be substantially affected” does not include a rooting interest, which is the only interest hypothesized even by the justice’s critics.
In my view, the complaints against Justices Thomas and Scalia are frivolous. By the standards traditionally applied by the Supreme Court, there is no question recusal is not required here. Justice Ginsburg did not recuse in tax cases, nor in cases in which the NOW Legal Defense Fund participated, and these presented closer cases than the allegations made here. (Ditto calls for Judge Stephen Reinhardt to recuse from the Prop. 8 litigation in California due to his wife’s work with the ACLU.) And if attending ideologically charged dinners is a problem, some of the liberal justices would have problems here too. Perhaps a more stringent standard should be applied, but the bar for recusal should be quite high in the Supreme Court, as a forced recusal is (for all practical purposes) a vote to affirm the judgment below. This is why I think the bar for recusal should remain high. We all know the justices have ideological priors — indeed, that’s one reason they were chosen in the first place — and, as Kevin Drum noted, excessive focus on spousal career choices could have pernicious effects.
The complaint against Justice Kagan is more superficially plausible, as she worked as Solicitor General while the PPACA was in Congress and the Justice Department began developing its defense strategy. Under normal circumstances, the former SG would need to recuse in a case of this sort. Yet by all accounts, Kagan walled herself from participating in any meetings or strategy discussions about the PPACA, even before she was tapped for the Court. Such discussions, had they occurred, would be grounds for recusal, unquestionably. But Justice Kagan claims to have stayed out, and I see no reason to question her veracity on this point. That she cheered the law’s passage to Lawrence Tribe does not require her recusal either. Even assuming she loves the law, her personal political views do not require her to recuse any more than Justice Scalia’s personal or religious views about abortion require his recusal in cases questioning the constitutionality of abortion laws.
An added note: While I believe Kagan has been forthcoming, I do not think the same can be said for the Justice Department. Documents concerning Kagan’s non-role were withheld from the Senate Judiciary Committee and only later released in response to a FOIA request. Moreover, as I understand it, some documents are still being withheld under the FOIA exemption covering privileged or deliberative documents. This exemption would seem to apply only if Kagan had actually been involved with the case. This cannot help but raise questions, but is not, in itself, a cause for recusal. The Justice Department is notoriously stingy when it comes to the disclosure of documents of this sort, yet the failure to be more forthcoming only fuels the call for Kagan to step aside. Again, however, I believe Kagan should be taken at her word. She has been quite diligent about recusing in cases in which she was involved, and our system relies upon Supreme Court justices to police themselves in the first instance.
UPDATE: The Washington Post likewise believes Justice Thomas presents an “easier call” while Justice Kagan’s situation is “more delicate and difficult.” And, although the WaPo muffs the relevant dates (Kagan was not walled off until later in March, not “early March 2010″ as the editorial claims), reaches the same conclusion: Neither is required to recuse. As the Post concludes:
Justices are not blank slates. They come to the court with personal views on a range of policy and political issues. They have a duty to decide cases, absent an incurable conflict; this is especially true at the Supreme Court, where, unlike lower courts, no other judge may fill the void created by recusal. But they must set aside personal preferences when deciding matters of law. We trust that Justices Thomas and Kagan will do that.
In a column in Saturday’s NYT, Harvard economics professor Greg Mankiw responds to the student “walkout” of his introductory economics class. The column’s title: “Know What You’re Protesting.” Here’s a taste.
Eight minutes into the lecture, about 5 to 10 percent of the class stood up and quietly left. Some other students who had taken the class in previous years then walked into the room as a counterprotest. I have been told that at least one of the students who walked out sneaked back in later: he wanted to support the protest but didn’t want to miss the lecture. After a few minutes, I resumed the class as usual.
So how do I feel about it?
My first reaction was nostalgia. I went to college in the late 1970s, when the memory of the Vietnam War was still fresh and student activism was more common. Today’s college students tend to be more focused on polishing their résumés than on campaigning for social reform. I applaud the protesters for thinking beyond their own parochial concerns and trying to make society a better place for everyone.
But my second reaction was sadness at how poorly informed the Harvard protesters seemed to be. As with much of the Occupy movement across the country, their complaints seemed to me to be a grab bag of anti-establishment platitudes without much hard-headed analysis or clear policy prescriptions. Ironically, the topic of the lecture that the protesters chose to boycott was economic inequality, including a discussion of recent trends and their causes.
Our own Todd Zywicki commented on the walkout here.
[Note: Link to Mankiw column fixed.]
