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The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?

With the background of the last two posts, let’s consider whether “the President acted beyond his authority to execute the laws” by delaying the employer mandate, to paraphrase the question asked at the House Rules Committee hearing. Or, rather, let’s separate this question into two.

The first is whether the delay of the employer mandate was “legal.” This is the question that a court would ask if the issue were properly before it. For example, suppose that an employee sued his employer, alleging that he is entitled to employer-provided health care in 2014. Like Professor Dellinger, I am unsure why an employee couldn’t bring such a suit in reality, but for present purposes just assume that such a suit would present a justiciable controversy.

The employer would argue that its obligation under the ACA is contingent upon regulatory action (implementation of the reporting requirement) that has not yet occurred and further that the Secretary of the Treasury has the authority under IRC Section 7805(a) to provide transition relief in the implementation of a law relating to taxation. Providing a full evaluation of the merits of this argument would require more time and research than I wish to devote to the matter. Suffice to say that I personally would not wager a significant sum on the outcome either way, but I would be particularly loath to bet on the administration’s theory that Section 7805(a), which makes no reference to “transition relief” at all, somehow gives the Secretary authority to provide such relief in contravention of specific statutory mandates.

Note that the issues in my hypothetical lawsuit might be slightly different than if there were a direct challenge to the legality of the Treasury Department’s regulatory action under the Administrative Procedures Act, in which case the court might be more inclined to defer to the agency’s interpretation of its obligations under the law. For example, it is possible, as Professor Bagley observes, that a court would conceptualize the action simply as an exercise of enforcement discretion, rather than an attempt to waive legal obligations set forth in law. In other words, the Treasury Department did not actually delay the employer mandate (the story would go), but merely announced its intention not use scarce resources to collect penalties against employers who violate the mandate in the first year. This may not ultimately be a persuasive argument (Bagley isn’t persuaded), but a court is unlikely to view it as frivolous either.

In short, the courts will likely view the question of the “legality” of the employer mandate delay as the type of routine administrative law issue they face every day. This, more than a full-throated defense of the administration’s legal position, was the point Simon Lazarus and Professor Dellinger were making at the Rules Committee hearing. After all, every administration must interpret and apply thousands of complex statutory provisions (often conflicting and/or poorly drafted, to boot) every day. Even if an administration were just “calling balls and strikes,” to use Chief Justice Roberts’ phrase, it would inevitably be judged to have violated the law on a fairly routine basis. So even if the courts were to declare the administration’s action with regard to the ACA illegal, what’s the big deal?

This merely underscores that the question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Continue reading ‘The Employer Mandate Delay: A Question of Administrative Law or Constitutional Faithfulness?’ »

Who is Responsible for the Employer Mandate Delay?

There were a couple of things missing from the testimony regarding the legal merits of the employer mandate delay at Wednesday’s Rules Committee hearing. The first was any reference to the legal authority claimed by the administration when it announced the initial delay of the employer mandate under the Affordable Care Act. This is surprising because Mark Mazur, Assistant Secretary of the Treasury for Tax Policy, was very specific in explaining the legal basis claimed for the administration’s action.

Mazur’s letter of July 9, 2013 to the Honorable Fred Upton, Chairman of the House Energy and Commerce Committee, explains the decision “to provide transition relief with respect to three provisions of the ACA: reporting by certain employers under section 6056 of the Internal Revenue Code (“the Code”); reporting by insurance companies, self-insuring employers, and other entities that provide health coverage under section 6055 of the Code; and the employer shared responsibility provisions under section 4980H of the Code.” This “transition relief” meant “no employer shared responsibility payments will be assessed for 2014,” although employers were “encouraged” to “maintain or expand health coverage for 2014.” IRS Notice 2013-45. In effect, the Treasury Department waived the legal obligation of the employer mandate, which under the ACA was to take effect January 1, 2014, for a one-year period.

Mazur’s letter is succinct with regard to the legal authority for this action: “The Notice is an exercise of the Treasury Department’s longstanding administrative authority to grant transition relief when implementing new legislation like the ACA. Administrative authority is granted by section 7805(a) of the Internal Revenue Code.”

That’s it. That’s the entire claimed legal justification for the employer mandate delay: section 7805(a) of the Internal Revenue Code. But I did not hear that code section mentioned once during all of the Wednesday’s testimony. Instead, there was a good deal of discussion, much of it in fairly vague terms, about general principles of administrative law that recognize some agency discretion to adjust statutory deadlines in a “reasonable” fashion. Whatever the merits of that legal position, it was not the justification offered by the Obama administration to Congress.

Section 7805(a) provides, in its entirety, as follows:

Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

The one thing that is very clear from this language is the identity of the person empowered to prescribe the regulations referred to by the section. It is the Secretary of the Treasury. Not the President. Not the Assistant Secretary for Tax Policy. Not anyone the Secretary might care to designate. Indeed, one might plausibly read the section as not providing substantive regulatory authority at all, but simply as identifying the Secretary as the default authority for issuing all rules and regulations not expressly delegated to another official.

Yet during the entire Rules Committee hearing, I do not believe I heard a single reference to the Secretary, either by name or title. In contrast, there were many, many statements from both the majority and minority side ascribing the relevant decisions to the President.  See, e.g., Written Statement of Simon Lazarus (“[T]he President has authorized a minor temporary course correction regarding individual ACA provisions, necessary in his Administration’s judgment to faithfully execute the overall statute, other related laws, and the purposes of the ACA’s framers. As a legal as well as a practical matter, that’s well within his job description.”).

This is very peculiar. Whatever the scope of the authority provided by Section 7805(a), that authority clearly falls within the Secretary’s job description, not the President’s. Constitutional scholars, of course, have long argued the extent to which department heads and other executive officials can be given legal duties and authorities insulated from presidential oversight (the “unitary executive” debate), but that is a far cry from treating the Secretary of the Treasury as if he were the Charlie McCarthy to the President’s Edgar Bergen (yeah, I know, I’m old).  Hamilton must be turning in his grave.

Moreover, there is no indication in Mazur’s letter to Chairman Upton that President Obama had anything to do with the decision to extend the employer mandate. The letter is rather sketchy on the details of the decision-making process, but it clearly indicates that the impetus for the decision were “concerns about complying with the reporting requirements and the time needed to implement them effectively.” The Treasury Department evidently felt that there was not enough time to implement the reporting obligations of the law in a way that would avoid imposing burdensome or impractical requirements on the business community.  Moreover, Mazur makes it clear that the decision to extend the employer mandate was simply a necessary result of delaying the reporting requirements. See 7-7-13 Letter at 2 (“We recognize that this transition relief will make it impractical to determine which employers owe shared responsibility payments (under section 4980H) for 2014.”).

If Mazur’s explanation is even close to being true, it is apparent that President Obama could not have played a prominent role in making the decision to extend the employer mandate. Surely no one thinks that Obama was involved in drafting or evaluating the reporting requirements for employers and insurance companies, any more than he was writing code for healthcare.gov. The idea of extending the reporting deadlines, and as a consequence the employer mandate, would have had to originate with the Treasury officials directly responsible for these aspects of the law, and those officials presumably conducted a policy and legal analysis of this alternative among others for consideration by the Secretary of the Treasury. No doubt, given the policy and political importance of the issue, the Secretary presented his decision or proposed decision to the White House for approval, but this should have occurred well after the Treasury Department had thoroughly vetted the issue.

From this it should be apparent that the official accountable to Congress, at least in the first instance, for the decision to delay the employer mandate is Jacob Lew, the Secretary of the Treasury. Any analysis of the House’s remedies with regard to this decision must begin with that understanding.

Some Preliminary Thoughts on the House Rules Hearing

Last Wednesday, July 16, 2014, the House Rules Committee held a five-hour hearing to consider a draft resolution “providing for authority to initiate litigation for actions by the President inconsistent with his duties under the Constitution of the United States.” It has been decided, although it is unclear whether this decision has yet been formalized in any way, that the potential litigation will focus on the Obama administration’s implementation of the Affordable Care Act, particularly the failure to implement the employer mandate in accordance with the January 1, 2014 effective date set forth in the law.

Notwithstanding some media reports that focused on trivialities (see, for example, Dana Milbank’s snarky and unfair coverage of the hearing as “an amateur hour—or an amateur five hours”), there was a good deal of serious discussion and more agreement than might have been expected on some important points. One point in particular stands out: every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.

Not surprisingly, this was most evident from the majority members of the Committee, who repeatedly expressed concern about the increasing power of the executive branch, and the majority’s star witness, Professor Jonathan Turley, who testified that the rise of an “uber-presidency” is causing our constitutional system to change in a “dangerous and destabilizing way.” Turley said the executive branch has “bled away” a lot of congressional authority and argued that the House must “take a stand” to re-establish some degree of constitutional balance.

But these concerns were not limited to the Republican side. For example, when Turley said that the Framers expected that the House would stand up for its institutional prerogatives, Representative Louise Slaughter, the Ranking Member, nodded in agreement. Although Slaughter indicated in no uncertain terms that she would not be supporting the resolution, she also said there were “genuine issues of executive overreach” by “modern presidents,” a category from which she did not exempt the incumbent.

The minority witnesses also acknowledged the problem. Simon Lazarus of the Constitutional Accountability Center recognized the relative decline of Congress with respect to the other two branches as a development that “definitely has occurred” and is “regrettable.” Professor Walter Dellinger, who like Lazarus was called by the minority in opposition to the resolution, also acknowledged that there has in fact been an erosion of congressional power in recent years. At Dellinger’s words, Slaughter and Representative Jim McGovern both nodded in vigorous agreement, with McGovern expostulating “yes, yes” or something to that effect.

There was also a good deal of agreement on the difficulty that the House would face in trying to establish standing to bring such a lawsuit. Although Professor Elizabeth Foley gamely made the case that the courts ought to recognize the House’s standing under the circumstances presented, no one (with the possible exception of Foley herself) appeared to think this was a likely outcome. Turley, for example, acknowledged that the President “has the advantage on standing.” Lazarus suggested that while there was some possibility the courts might recognize the House’s standing, everyone would agree it would be an “uphill climb.” Meanwhile, Slaughter and Dellinger had a field day citing statements by conservatives hostile to legislative standing in general and to this lawsuit in particular. Slaughter, for example, quoted Andrew McCarthy’s description of the lawsuit as “feckless” and his warning that the House’s theory of standing would lead to “vexatious congressional lawsuits.” The Republican members of the committee didn’t so much take issue with these views as argue that they have no other viable options to contain the expansion of executive power.

But is it true that there are no other viable options? To answer that question, we must drill down on the legal issue presented by the extension of the employer mandate. Which I will take up in my next post.

 

Would the House’s Sovereign Immunity Position Bar its Suit against the President?

This is a question that should have, but didn’t, occur to me even as I sat through a good portion of yesterday’s House Rules Committee hearing, in which members and witnesses spent five hours arguing over when, if ever, it was permissible for one branch of the government to sue another. Professor Walter Dellinger testified that the federal courts could not and would not hear an action brought by the House against the president for failing to perform his duties under the laws and Constitution. Dellinger based his conclusion on the House’s lack of standing, but I did not hear him or anyone else raise sovereign immunity as an issue.

But yesterday the SEC also filed its reply brief in its subpoena enforcement action against the House Ways & Means Committee and, as I was reading it, the light bulb went on. If the House were correct in the sovereign immunity position taken in that case, its proposed lawsuit against President Obama would seem to be barred by its own position unless it could take advantage of a express waiver in existing law. It is not at all obvious that any such waiver exists.

Of course, the same could be said of lawsuits that the House has already filed. The SEC notes in its brief that courts “have not applied (let alone discussed) federal sovereign immunity in the myriad cases where one branch of government (sometimes Congress) acting in a sovereign capacity sues another branch of government (sometimes to enforce a subpoena).” In a footnote, it cites two House-initiated suits, Comm. on Oversight and Gov’t Reform v. Holder, 979 F. Supp. 2d 1 (D.D.C. 2013), and Comm. on Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008), which would have been barred by sovereign immunity if it were applicable.  SEC Reply Br. 3 & n.1. In neither case, however, did any party or the court raise sovereign immunity as an issue.

The SEC’s position is that sovereign immunity is simply inapplicable to suits by one part of the federal sovereign against another. The fact that neither party can identify any case in which sovereign immunity was discussed in the context of inter-branch (or intra-branch) lawsuits cuts against the House’s position, not the SEC’s. The House, it argues, is seeking an extension of the sovereign immunity doctrine with no foundation in the case law. See SEC Reply Br. 4 (“While [the House] attack[s] the Commission for not identifying any cases in which a court has rejected such an extension, the Commission should not bear the burden of proving a negative.”).

In light of the consequences for any lawsuit against the president, maybe the House should hope the SEC is right.

 

The Legislator-Lobbyist Privilege?

We all know that there are certain confidential and intimate relationships that the law deems worthy of special protection. These include the clerical privilege (also known as priest-penitent), the attorney-client privilege, the doctor-patient privilege and of course the spousal privilege. The House of Representatives would like to expand that list to include the legislator-lobbyist relationship, which involves the kind of “pillow talk” that DC considers most precious.

OK, I exaggerate, but not by that much. In its opposition to the SEC subpoena enforcement action, the House argues all the information sought by the SEC, including information about conversations between members or staff of the Ways & Means Committee and private lobbyists, is protected by the Speech or Debate Clause. See House Brief at 30, 34-37.

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The House All In on Sovereign Immunity

The House Ways & Means Committee has filed its response to the SEC’s enforcement action (see here and here). The House’s brief sheds some, though not much, light on its argument that the doctrine of sovereign immunity bars the subpoenas in question.

The House relies primarily on a Second Circuit case, In re SEC ex rel Glotzer, 374 F.3d 184 (2d Cir. 2004), which held that “a party seeking judicial review of an agency’s non-compliance with a subpoena must first exhaust his or her administrative remedies pursuant to APA § 704.” Glotzer involved two subpoenas issued by a party (specifically Martha Stewart) in a federal civil lawsuit to (ironically) SEC attorneys. An SEC official considered the subpoenas in accordance with the agency regulations and determined that the attorneys should not be authorized to testify. Rather than seeking further agency review, as required by the regulations, Stewart sought direct judicial enforcement by the district court in which the civil case was pending.

The Second Circuit found that the district court lacked jurisdiction to enforce the subpoenas. It relied on circuit precedent establishing that a motion to compel an agency to comply with a subpoena implicates the doctrine of sovereign immunity and therefore such compulsion may take place only in accordance with the federal government’s waiver of sovereign immunity in the APA. Because the APA requires exhaustion of administrative remedies before judicial review may occur, the Second Circuit concluded that the jurisdictional pre-requisite for judicial review had not been met.

The House’s application of this decision is straightforward. The doctrine of sovereign immunity applies to Congress (several circuits have so held) and therefore subpoenas cannot be enforced against Congress absent a waiver. The APA does not apply to Congress and so does not waive its sovereign immunity. The SEC having identified no other valid waiver, the House argues, the subpoenas cannot be enforced, period. Notably, the House brief does not discuss the possibility that Rule VIII constitutes a waiver and, in fact, does not mention the rule at all.

It seems to me unlikely that the Second Circuit, which purported to be addressing a narrow question of first impression, would take its decision as far as the House would. The court mostly seemed concerned that a litigant not be able to circumvent an agency’s established procedures for responding to subpoenas. This is not an issue with Rule VIII, where the administrative procedures have already been exhausted. Moreover, the Second Circuit construed Stewart’s motion as one to compel the agency itself, rather than merely the subpoena recipients, see footnote 7, which may provide a ground for distinguishing two cases. In any event, nothing in the Glotzer decision suggests that the court expected it to have the far-reaching implications that are entailed by the House’s interpretation.

If the House were correct, it would mean that no subpoena, administrative or judicial, could be enforced against any legislative entity or a legislative official acting in an official capacity. It would seem, for example, that the grand jury subpoena to a Senate aide in Gravel v. United States, 408 U.S. 606 (1972), would have been barred by sovereign immunity. The same would be true, presumably, of the civil subpoena in Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408 (D.C. Cir. 1995), as well as the subpoenas in many of the other Speech or Debate cases discussed in the House’s brief. None of these cases even discuss sovereign immunity, which, if a substantial jurisdictional question, should have been considered by the courts even if not raised by the parties.

There are other implications of the House’s position which are, to put it mildly, surprising. What about subpoenas to executive branch officials not covered by the APA, such as the criminal trial subpoena to President Nixon? See United States v. Nixon, 418 U.S. 683 (1974). For that matter, what about congressional subpoenas to executive branch officials? Are they barred by sovereign immunity as well?

Perhaps there is a limiting principle in the House’s brief that is not apparent to me. For the moment, lets just say that nothing has changed my deep skepticism about this argument.

 

U.S. House of Representatives v. Obama: The Problem of Standing

There are a number of reasons why the proposed lawsuit by the House against President Obama is likely to be futile (or worse). Andrew McCarthy does an admirable job of laying many of them out here and here. Today I will address only one issue, the question of the House’s standing, from what may be a unique perspective.

This post is not about whether the House “ought” to be found to have standing as a matter of legal theory. I have no strong views on how much of modern standing doctrine can properly be derived from the Constitution’s “case or controversy” language and how much is an ahistorical judicial invention. On these questions see Professor Ramsey here and Professor Epstein here.

Nor would I argue that the House’s standing is foreclosed by controlling Supreme Court precedent. The Court has left the door open to institutional lawsuits by the House or Senate under certain circumstances and I assume that it could, if it wished, open that door wide enough to allow the House’s suit here. As discussed below, the reasoning of Raines v. Byrd, 521 U.S. 811 (1997), cuts against the standing theory offered by David Rivkin and Professor Foley in support of the House’s suit, but that is not my primary point.

The main point of this post is to explain why, IMHO, the courts will not in fact recognize the House’s standing to bring suit “to compel the president to follow his oath of office and faithfully execute the laws of our country,” as the Speaker’s June 25 memo puts it. Whether this result is best explained by a coherent theory of standing, sound constitutional policy, or naked judicial self-interest, I leave to the reader to decide.

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The Declaration of Impotence

On June 25, 2014, the Speaker sent a memorandum to all Members of the House entitled “[T]hat the Laws Be Faithfully Executed. . .” This extraordinary document begins as follows: “For years Americans have watched with concern as President Barack Obama has declined to faithfully execute the laws of our country—ignoring some statutes completely, selectively enforcing others, and at times, creating laws of his own.”

The memo goes on to say that on a wide range of matters, including health care, energy, foreign policy and education, “President Obama has circumvented the Congress through executive action, creating his own laws and excusing himself from executing statutes he is sworn to enforce—at times even boasting about his willingness to do it, as if daring the American people to stop him.”

So what will the People’s House do in response to these repeated injuries and usurpations? The Speaker declares:

I intend to bring to the floor in July legislation that would authorize the House of Representatives—through the House General Counsel and at the direction of the Bipartisan Legal Advisory Group (BLAG)—to file suit in the coming weeks in an effort to compel the president to follow his oath of office and faithfully execute the laws of our country. The legislation would follow regular order and be considered by the Rules Committee following its introduction prior to consideration by the full House.

Wow. It’s like the Declaration of Independence ended with a solemn promise to retain counsel and consider all available legal remedies against George III, including seeking a declaratory judgment against continued collection of that tea tax. (Well, I guess U.S. v. Hanover couldn’t have gone much worse than U.S. v. Windsor).

Now mind you the Speaker is not, as has been widely reported, saying that he will bring suit against the president immediately. Or even in the “coming weeks.” Instead, sometime in July he will introduce legislation, which will go through “regular order” and eventually be considered by the full House.

Only in the “coming weeks” after this legislation is adopted, whenever that may be, will the House be “authorized” to bring suit against the president. And note it is unclear whether by “legislation” the Speaker means a House resolution or a bill. If he means the latter (which is the more common use of the term), the “coming weeks” will be coming in 2017 at the earliest (after the election of a new president who might sign such a bill).

Even if the promised lawsuit were to be filed, however, its chances of success are basically zero. I will explain one reason why in my next post.

In fairness, the Speaker has identified an important problem for which an effective solution will not be easily found. But I am pretty sure this lawsuit is not it.

Noel Canning: Unanimous Judgment, Divided Reasoning

For a 9-0 decision invalidating the President’s exercise of the recess appointment power, the Supreme Court’s opinion today in Noel Canning revealed a bitter divide among the justices. Justice Breyer, writing for the majority, basically went “full Daugherty,” finding that the Recess Appointment Clause applies to both “inter-session” and “intra-session” breaks, but finding that those breaks must exceed a minimum length to qualify as recesses in which the President may exercise his temporary appointment power. The key quote from Breyer’s decision:

If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

In his concurrence (joined by the Chief Justice and Justices Thomas and Alito), Justice Scalia accuses the majority of adopting an “adverse possession” theory of executive power. In other words, because the executive has long asserted the power to fill vacancies that do not arise during a recess and has maintained that they may be filled during intra-session as well as inter-session breaks and because the Congress has failed to resist these theories on a consistent and effective basis, the executive branch’s theory will prevail. The concurrence would read the RAC to be limited to vacancies that arise during the recess and would hold that only a break between formal sessions constitutes “the recess.”

There will be undoubtedly many other takeaways from a thorough reading of the opinion. But note that this opinion has an important near term effect on the Congress. It appears at first blush that the House can prevent the President from making any more recess appointments simply by refusing to consent to any adjournments of more than three days for the remainder of the Congress.  But one can imagine that the executive branch and the Senate Democratic leadership might look for wriggle room, particularly if the Republicans win control of the Senate in November’s election. In particular, the Senate could try to amend its rules so as to deprive itself of the capacity for doing business during pro forma sessions. We will see whether they get that desperate.

The Standing Committee Stands Pat

The Standing Committee of Correspondents has again rejected SCOTUSblog’s application for credentials on behalf of Lyle Denniston. To anyone who attended or read the live blog of the Committee’s May 23 hearing (see picture below), it is no surprise to learn that the rejection letter focuses on the issue of “editorial independence.”

In brief, the Standing Committee thinks that Tom Goldstein’s dual role as publisher of SCOTUSblog, on the one hand, and a practicing Supreme Court advocate and law firm partner, on the other, means that the blog is not “editorially independent” of Goldstein’s law firm and practice. Because arguing before the Supreme Court counts, in the committee’s view, as “a form of lobbying the federal government” (an interesting perspective) and because Goldstein and his firm are not “principally a general news organization,” the committee concludes that their relationship to SCOTUSblog violates the provision of the Daily Press Gallery Rules requiring that an applicant’s publication “must be editorially independent of any institution, foundation or interest group that lobbies the federal government, or that is not principally a general news organization.” (As we discussed in a previous post, this provision is found in the version of the rules published in the Congressional Directory, not the version which appears in the Senate Manual).

During the May 23 hearing, Goldstein argued that his relationship to the blog was no different than Jeff Bezos or Rupert Murdoch’s relationship to their respective publications, but the members of the Standing Committee indicated, both verbally and by body language, that they were not buying it. One committee member responded: “There is a clear difference because the publisher of the Washington Post is not Jeff Bezos. Their firewall is enormous by comparison.”

As this quote suggests, the Standing Committee was unimpressed by the firewall SCOTUSblog has put in place to prevent Goldstein’s clients and other interests from affecting the blog’s coverage. To show the ways that Goldstein’s law firm might influence the blog, the Standing Committee pointed to the sharing of office space, personnel and resources between the two entities. It says that “[f]ar from keeping the blog editorially independent of the law practice as the rules require, these policies appear to permit the law practice to blend in with the blog.” The committee also pointed to statements by Goldstein which it viewed as showing he uses the blog as a “client-generating vehicle” and “part of his personal brand.”

Goldstein has responded to the committee’s decision in a blog post (what else?) in which he focuses less on the specifics of the interpretation of the rules and more on the implications for non-traditional media. He argues, reasonably, that the committee’s reasoning would extend “equally to any publication that is produced by someone who plays dual roles, one of which isn’t a news organization.” Thus, he suggests, under the committee’s approach a school superintendent’s blog about education, a physicist’s blog about science or a practicing physician’s blog about medicine would be deemed inherently not “editorially independent” and therefore inferior to the work of traditional media.

He observes: “The members of the Standing Committee are traditional journalists who come from a proud and treasured tradition of complete independence from anything but their craft. That is a fantastic model for journalism. But it is not the only one. And it is unfortunate that this is a decision in which members of the traditional media exercise their own power over access to the government to categorically exclude a wide range of competitors.”

Goldstein intends to appeal to the Senate Rules Committee. I think it is unlikely that the Rules Committee will be interested in getting in the middle of a specific application for press credentials. Since it has no obligation to do anything, the smart money says it will do nothing (you won’t go broke betting on Congress to do nothing). But there is some possibility that the chairman and ranking member (Senators Schumer and Roberts) will be interested in addressing the broader questions Goldstein raises about the role of non-traditional media. I wouldn’t hold my breath, though.