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The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson accepts, without necessarily approving, that the two nomination filibusters have been or will be eliminated through use of the so-called “nuclear option,” but he contends that the legislative filibuster should be preserved as an essential tool to fight for limited government.

We will not address here the policy question of whether the preservation of the filibuster, in whole or in part, is a good idea. Instead, I want to discuss the filibuster’s current status under the law of the Senate and the implications of the nuclear option for the Senate and the rule of law.

Senate Rule XXII provides in part:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Note that this rule does not provide for three different filibusters. It applies to ending debate on “any measure, motion, other matter pending before the Senate, or the unfinished business,” and it makes no distinction between matters related to nominations and those related to legislation, much less among different kinds of nominations. The only distinction it makes is between a measure or motion to amend the Senate rules and all other matters, with the former requiring a larger supermajority (two-thirds of senators present and voting) to bring debate to a close.

The idea of three filibusters stems from the Senate’s November 21, 2013 exercise of the “nuclear option.” In that action the Senate purported to eliminate the filibuster with respect to all nominations save those to the Supreme Court. According a February 15, 2016 Washington Post opinion piece by Senator Harry Reid:

In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees—maybe that was a mistake).

(emphasis added).

Similarly, in October 2016, Reid was quoted as saying: “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ‘em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” (emphasis added).

Continue reading ‘The Filibuster, the Nuclear Option and the Rule of Law’ »

Things to do in Dirksen when You’re Dead

If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years ago, following an otherwise partisan and contentious hearing before the House Rules Committee, “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.”

There are, of course, institutional and structural reasons why it is hard for Congress to push back against executive overreach. Congressional Democrats may have agreed in theory about the dangers of an “uber presidency” (as Professor Jonathan Turley puts it), but for the last 8 years they have had little or no interest in doing anything about it. Congressional Republicans, on the other hand, have advanced various proposals for restoring legislative authority, but they have lacked either the ability or the will to put them into effect.

Contrary to popular belief, this is not the result simply of moral failings on the part of our elected representatives. Since at least the end of the Second World War, Congress has been at a substantial disadvantage in advancing its institutional prerogatives vis a vis the executive. Modern presidents “sit atop a vast executive branch and are able to take a wide variety of actions unilaterally.” Bradley & Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 440 (2012). Congress, on the other hand, as a plural body has a serious collective action problem in attempting to respond: “each individual member has relatively little incentive to expend resources trying to increase or defend congressional power, since he or she will not be able to capture most of the gains.” Id. Moreover, the “modern party system further reduces the incentives of individual members of Congress to act systematically in constraining executive power or resisting executive aggrandizement.” Id. at 443. Because “individual members of Congress tend overwhelmingly to act in accord with the preferences of their party,” the president’s co-partisans rarely will cooperate in any effort to constrain his power. Id.

These problems are exacerbated by an imbalance of resources between the two branches. One example, near and dear to the heart of this blog, relates to executive branch’s advantage in the sheer number of lawyers dedicated to advancing its institutional interests. This is perhaps both a cause and a symptom of the legislature’s disadvantage: “The fact that Congress lacks an institutional counterpart to the Office of Legal Counsel (which, among other things, monitors congressional inroads on executive authority) is an illustration of the executive’s greater institutional focus.” Bradley & Morrison, 126 Harv. L. Rev. at 443.

A noted OLC veteran once summarized Congress’s problem thusly:

In any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party.

NLRB v. Noel Canning, 134 S.Ct. 2550, 2606 (2014) (Scalia, J., concurring) (citing Bradley & Morrison).

These observations suggest that expectations for renewed assertions of congressional authority should be low. Congressional Democrats may find a new urgency in aggressive assertion of such authority, but congressional Republicans are just as likely to go in the opposite direction, seeing it to be in their political interest to cooperate with the incoming administration. They may continue in theory to support many of the ideas that have been put forward (establishing and enforcing limits on agency authority, strengthening its exercise of the power of the purse, conducting more robust oversight of the executive branch, and enforcing congressional subpoenas and demands for information), but in practice these goals will be secondary to the political expediency of supporting the new president.

Yet, as Bradley and Morrison note, the weakness and passivity of Congress is historically contingent.  126 Harv. L. Rev. at 446. The “obstacles to effective congressional checks on executive power—including members’ tendency to think more in terms of party than branch, and the President’s greater ability to appeal to the national electorate—are not fixed features of our constitutional order.” Id. at 447. Perhaps the unique qualities of the president-elect, including but not limited to his historically unprecedented disapproval ratings, will change congressional behavior.

Some observers suggest reasons for optimism. George Will writes: “For constitutional conservatives, the challenge is exactly what it would have been had Clinton won: to strengthen the rule of law by restoring institutional equilibrium. This requires a Republican Congress to claw back from a Republican executive the legislative powers that Congress has ceded to the administrative state, and to overreaching executives like Obama, whose executive unilateralism the president-elect admires.” Ben Domenech says of the president-elect, “his attitude and character are so abrasive to the sentiments of the American elites that it almost has to result in a reassertion of the powers of the other branches of government, particularly the Congress.”

We will see. If Congress is going to act, it must do so quickly. After all, the president-elect (probably) doesn’t even know what the OLC is yet.

In the meantime, they will soon be erecting the scaffolding on Capitol Hill. For the inauguration, of course.

 

Would a Court Hear a Challenge to Congress’s Article V Convention Call?

Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is challenged in federal court. As this recent New York Times article notes, such a “court battle” is likely to ensue once Congress calls a convention. But how would this lawsuit arise and would a court reach the merits of the claims?

Below I address justiciability hurdles and related pitfalls that such a lawsuit would face.

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Still More on Article V Justiciability: Idaho v. Freeman

The second important district court opinion on the justiciability of Article V claims is Idaho v. Freeman, 529 F.Supp. 1107 (D. Idaho 1981), judgment stayed sub nom. Natl Org. of Women v. Freeman, 455 U.S. 918 (1982), vacated as moot and remanded to dismiss, 459 U.S. 809 (1982). Before turning to Freeman’s justiciability analysis, it is important to understand the facts before the court. In March 1972, Congress proposed the Equal Rights Amendment (acting, of course, by a two-thirds vote in each house as required by Article V) and set a seven-year period for ratification by state legislatures. Congress is not required to set a time limit for ratification, but it has customarily done so since it proposed the 18th amendment in 1917. This practice was upheld by the Supreme Court in Dillon v. Gloss, 256 U.S. 368 (1921).

The Idaho legislature ratified the ERA almost immediately after it was proposed. The resolution ratifying the amendment recited the seven-year time limit for ratification contained in the congressional resolution. By 1977, however, with the ERA not having received the requisite ratification by three-quarters of the state legislatures, Idaho changed its mind and rescinded its prior ratification.

By late 1978, the ERA had still not been ratified by the required supermajority. 35 states had ratified the amendment (three short of the required 38). Moreover, five of those states, including Idaho, had rescinded their ratifications. Faced with this situation, Congress acted to extend the ratification deadline until June 39, 1982, just over three years after the original deadline would expire on March 22, 1979.

A lawsuit challenging this action was brought by the states of Idaho and Arizona, as well as the legislative leadership and individual legislators from those states (joined by some individual legislators from the state of Washington). In essence, Idaho argued that (1) Congress could not extend the deadline for ratification of the ERA; (2) Congress could not count Idaho’s ratification of the ERA because it was predicated on a seven-year ratification period; and (3) Congress certainly could not extend the ratification period and then ignore Idaho’s rescission of its ratification. (A subsidiary issue was whether Congress could extend the deadline by a simple majority vote).

On the merits, these arguments seem extremely powerful. It is hard to see how Congress can set a seven-year ratification period and then unilaterally extend that period, at least without starting ratifications over at zero. It is inconceivable to me that Congress could extend the ratification period and at the same time prohibit states like Idaho, which ratified based on an understanding of a seven-year ratification period, from rescinding their prior ratifications. This would amount to a constitutional fraud on the states. Or so it seems to me and, I suspect, seemed to the district court in Freeman, which was unusually motivated to reach the merits.

It is worth mentioning that the defendants in Freeman twice sought to disqualify the district judge on the grounds that his leadership position in the Mormon Church (which officially opposed both the ERA and Congress’s extension of the ratification deadline) could cause his impartiality to be questioned. See Idaho v. Freeman, 507 F. Supp. 706 (D. Idaho 1981); Idaho v. Freeman, 478 F. Supp. 33 (D. Idaho 1979). In response to the first motion, brought by the Department of Justice, the court observed:

It is rather ironic that defendant should raise the issue of judicial prejudice in this particular action. It is apparent that in this case the district court is only a conduit for passing these issues on to the circuit court and ultimately, the Supreme Court of the United States. It is obvious from the pleadings that the evidence will almost entirely consist of public documents and records about which there is no dispute. In such a case, the rules which the appellate courts follow permit them to utterly disregard the district court’s decision and to review the evidence and the law as if the case had been initially tried before them.

478 F. Supp. at 37.

While this observation is accurate as a practical matter, it might be seen to indicate the mindset of a judge who expects to issue what in effect is an advisory opinion, rather than a binding resolution of a dispute between the parties. It provides some further evidence, along with the issues discussed in this post and the fact that the district court’s ruling was ultimately vacated by the Supreme Court, that the Freeman decision not only lacks any formal precedential authority, but is likely to be seen as an outlier with regard to its analysis of justiciability. Continue reading ‘Still More on Article V Justiciability: Idaho v. Freeman’ »

More on Article V Justiciability: Dyer v. Blair

In my last post on the justiciability of Article V cases, we discussed the Supreme Court’s 1939 decision in Coleman v. Miller and whether that decision would be applied broadly to block most or all Article V claims as nonjusticiable political questions. Those who would read Coleman narrowly often cite two district court decisions from the 1970s which addressed justiciability of claims related to the ratification of the Equal Rights Amendment. While these cases do provide some support for a narrower application of the political question doctrine, they also illustrate other justiciability issues which may be equally if not more problematic for an Article V plaintiff.

Today I will discuss one of those cases, Dyer v. Blair, 390 F. Supp. 1291 (N.D. Ill. 1975), which was brought by members of the Illinois General Assembly seeking declaratory and injunctive relief regarding the attempt to ratify the ERA during the 78th Session of the General Assembly. During that session, votes in both the house and senate resulted in a majority, but less than three-fifths, supporting ratification of the amendment. Neither house deemed this vote sufficient to pass the ratification resolution. In the house, the speaker ruled that a supermajority was necessary under both a provision of the Illinois constitution and a house rule, each of which declared a three-fifths vote was required to ratify amendments. The senate presiding officer also ruled that a three-fifths vote was needed for ratification, despite a recently adopted senate rule allowing a simple majority vote, presumably on the basis that the state constitutional provision took precedence.

The plaintiffs sought declaratory relief that the Illinois constitutional provision and similar house rule were void and of no legal effect under Article V, which (they argued) requires that ratification of proposed amendments be by a simple majority. The also sought injunctive relief against the house speaker and senate president, prohibiting these officers from applying any supermajority requirement to ratification votes and ordering them to sign and certify the ratification resolutions that had previously received majority approval.

A three-judge court was convened, including then-Judge (and future Justice) John Paul Stevens, who wrote the court’s opinion.

Continue reading ‘More on Article V Justiciability: Dyer v. Blair’ »

Virginia Supreme Court Takes on Speech or Debate

The Virginia Supreme Court recently issued a decision in Edwards v. Vesilind, No. 160643 (Va. Sept. 15, 2016), a case involving the application of the Virginia constitution’s speech or debate clause to a subpoena for documents directed to Virginia state senators and the Division of Legislative Services (DLS), a legislative agency that provides legal and other research services to the Virginia General Assembly. The subpoena, which arose from a lawsuit alleging that certain state house and senate districts violated the Virginia constitution, sought written communications and other documents related to the legislature’s formation of these districts, including documents that discussed (1) compactness, population and other criteria used to form the districts; (2) the role played by partisan or incumbent-protection considerations; and (3) the process of preclearance through the Virginia attorney general.

The Virginia senators and DLS objected to the subpoenas based on the Virginia speech or debate clause, which provides “Members of the General Assembly . . . for any speech or debate in either house shall not be questioned in any other place.” The trial court, however, narrowly construed this privilege as applying only to “purely internal legislative communications solely among legislators, and between legislators and legislative staff.” Moreover, it defined “legislative staff” as “legislative assistants and/or aides who are employed and paid by the individual legislators, a legislative committee, or the legislature as a whole.” It found DLS and its employees to fall outside these parameters and therefore held that agency entirely unprotected by legislative privilege. It further found that the senators could not withhold communications with DLS, political consultants or other third parties.

The trial court’s ruling was certified for direct appeal to the Virginia supreme court because of the importance of the questions presented, which were ones of first impression concerning the scope of the Virginia speech or debate clause. The supreme court’s ruling as to the scope of the privilege and who may invoke it is also of wider interest because it construed the Virginia clause as co-extensive with the federal Speech or Debate Clause. As the court noted, the language in the Virginia constitution is derived from the federal Clause, and “[b]oth provisions afford similar protections because they are based on the same historical and public policy considerations.” Slip op. at 8.

Continue reading ‘Virginia Supreme Court Takes on Speech or Debate’ »

Pagliano’s Contumacious Failure to Appear

Last night the House Committee on Oversight and Government Reform (COGR) voted to approve a contempt resolution for Bryan Pagliano, who failed to appear before the committee in response to a subpoena to testify. Pagliano, you may recall, is the IT specialist who was in charge of setting up Secretary of State Clinton’s private email server. Pagliano previously asserted his Fifth Amendment privilege against self-incrimination in both congressional and Justice Department/FBI investigations. He was given use immunity by DOJ/FBI to provide information regarding their investigation into whether the use of the email server by Clinton or others violated laws against the disclosure or mishandling of classified information.

Although the criminal investigation into Clinton’s handling of classified information terminated with FBI Director Comey’s public statement a couple of months ago, COGR says it is continuing to investigate this issue as well as other matters that the FBI investigation did not address. Specifically, the contempt report indicates that COGR’s ongoing investigation includes:

(1) seeking information about former Secretary Hillary Clinton’s use of a private, non-secure email server during her time at the Department of State, as well as the transmittal of classified national security information on that server; (2) examining the circumstances that resulted in the failure to preserve federal records arising during Secretary Clinton’s tenure, as required by the Federal Records Act, and to produce such records pursuant to Congressional requests or request made pursuant to the Freedom of Information and; (3) determining what, if any, changes to the Federal Records Act of 1950, Freedom of Information Act of 1966, Ethics in Government Act of 1978, or any other federal law(s) may be necessary to prevent these or similar circumstances from recurring.

No one, I think, would seriously dispute that these are proper matters for the committee to investigate, nor that Pagliano is a witness with information relevant to them.

Instead, the question is whether Pagliano, having informed COGR through his attorney that he will continue to assert his Fifth Amendment privilege with respect to any questions that the committee asks him about these issues, was required to appear at a hearing to assert the privilege in person. Citing legal ethics opinions, Pagliano’s attorneys at Akin Gump contend that Pagliano is not required to appear at an open hearing, although they said that he was willing to appear at a closed session. Backed by committee Democrats, they argue that requiring Pagliano to appear “in front of video cameras six weeks before the presidential election, betrays a naked political agenda and furthers no valid legislative aim.”

This is not a new issue. Congressional committees have been faced with such objections for decades, at least since a 1977 DC Bar opinion that an attorney serving as counsel to a congressional committee was prohibited by the disciplinary rules from requiring a witness to appear at televised hearings when the committee had been notified in advance that the witness would refuse to answer questions based on the Fifth Amendment right against self-incrimination.

Continue reading ‘Pagliano’s Contumacious Failure to Appear’ »

Coleman v. Miller and the Political Question Doctrine

Following on my last post, our analysis of the justiciability of claims related to the Article V convention will begin with Coleman v. Miller, 307 U.S. 433 (1939) and the political question doctrine. Coleman involved the purported ratification by the Kansas legislature of a child labor constitutional amendment proposed by Congress in 1924. After both houses of the Kansas legislature had rejected the proposed amendment in 1925, the Kansas house passed a resolution of ratification in 1937. The Kansas senate then equally divided (20-20) on the resolution, and the Lieutenant Governor, over the objections of those who opposed the amendment, broke the tie in favor of ratification.

Kansas legislators, including the 20 senators who voted against ratification, challenged this action in state court, and the case was ultimately appealed to the U.S. Supreme Court. The plaintiffs advanced three grounds for invalidating the purported ratification: (1) that the 13 years between proposal and ratification was too long; (2) that the prior rejection of the amendment by the Kansas legislature precluded subsequent ratification and (3) that the Lieutenant Governor was not part of the “legislature” under Article V and therefore could not vote on ratification.

In a famously splintered opinion, the Coleman Court declined to reach the merits of any of these issues. In an opinion by Chief Justice Hughes designated as the “Opinion of the Court” (but joined by only two other justices), the Court held the Kansas legislators had standing to bring the suit, but found that two of the plaintiffs’ claims raised political questions that could only be resolved by Congress.

With respect to the whether the Kansas legislature’s previous rejection of the child labor amendment precluded its subsequent ratification, the Court stated that this “should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the amendment.” 307 U.S. at 450. The Court found no basis for the proposition that it “should restrain the state officers from certifying the ratification to the Secretary of State because of an earlier rejection, and thus prevent the question from coming before the political departments.” Id.

Although the Supreme Court had previously held that ratification of amendments must take place within a reasonable time, the Coleman Court rejected the notion that “in the absence of a limitation by the Congress, the Court can and should decide what is a reasonable period within which ratification may be had.” 307 U.S. at 452. Determining what constitutes a reasonable time for ratification in any particular case would require “an appraisal of a great variety of relevant conditions, political, social, and economic,” which according to Chief Justice Hughes would involve questions that are “essentially political, and not justiciable.” Id. at 453-54.

With regard to the issue of the Lieutenant Governor’s participation in the ratification process, the Coleman Court declared: “Whether this contention presents a justiciable controversy, or a question which is political in its nature and hence not justiciable, is a question upon which the Court is equally divided, and therefore the Court expresses no opinion upon that point.” Id. at 447. (If you wonder how a 9-member Court came to be “equally divided,” the answer, though not relevant to our analysis, may be found here)

In his concurrence (joined by Justices Frankfurter, Roberts and Douglas), Justice Black suggested that the Court had not gone far enough in denying judicial power to resolve Article V controversies. While agreeing with the Court that Congress has the “exclusive power” to resolve “political questions” such the validity of ratification after prior rejection and the length of time within which an amendment could be ratified, Black criticized the Court for leaving an opening for any judicial resolution of Article V questions. See Coleman, 307 U.S. at 458 (“To the extent that the Court’s opinion in the present case even impliedly assumes a power to make judicial determination of the exclusive constitutional authority of Congress over submission and ratification of amendments, we are unable to agree.”). Instead, Black stressed that all Article V questions should be considered political and not justiciable:

Such a division between the political and judicial branches of the government is made by Article V, which grants power over the amending of the Constitution to Congress alone. Undivided control of that process has been given by the Article exclusively and completely to Congress.  The process itself is “political” in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control, or interference at any point.

Coleman, 307 U.S. at 458-59 (Black, J., concurring).

Two additional opinions were written in Coleman. Justice Frankfurter wrote for himself and Justices Black, Roberts and Douglas in a separate opinion rejecting the Court’s conclusion that the Kansas legislators had standing to sue. See Coleman, 307 U.S. at 460 (Frankfurter, J., concurring). Frankfurter argued that the injury asserted by the plaintiffs, namely that the Kansas legislature had followed unconstitutional procedures in ratifying the child labor amendment, was not the type traditionally redressed by the judiciary and would open the federal courts to “sit[ting] in judgment on the manifold disputes engendered by procedures for voting in legislative assemblies.” Id. at 469-70.

Finally, Justice Butler authored a dissent, for himself and Justice McReynolds, arguing that the Court should have reached the merits and struck down Kansas’s ratification as untimely. Coleman, 307 U.S. at 470 (Butler, J., dissenting). It should be noted, however, that Butler did not actually express an opinion on whether the timeliness of ratification was a political question. Instead, he pointed to the fact that the Court had previously treated it as a justiciable question, and he argued that the Court should not have reversed itself on this point without argument or briefing.

Continue reading ‘Coleman v. Miller and the Political Question Doctrine’ »

The Justiciability of Controversies Related to the Article V Convention

As you may know, there is increasing chatter about the possibility of Congress calling an Article V “convention for proposing amendments” (sometimes referred to, inaccurately, as a “constitutional convention”).

Recently the New York Times featured a front page article by Michael Wines entitled “Inside the Conservative Push for States to Amend the Constitution.” The focus of the article is on the effort to call a convention to propose a federal balanced budget amendment, which I know something about through my association with with the Balanced Budget Amendment Task Force (BBATF), one of the three groups featured in the piece.

If I might digress for a moment, I note that Wines’s suggestion that the balanced budget amendment effort is “often funded by corporations and deeply conservative supporters like the billionaire Koch brothers and Donors Trust” is, unfortunately, not true, certainly with respect to the BBATF. To the contrary, the BBATF operates with little outside funding of any kind and depends on the work of citizen activists who volunteer their time and often pay their own travel expenses. (No need to mention that last part to my wife, though). But if you happen to be a wealthy donor, feel free to click through to the BBATF website and look for the donate button. . .

Anyway, as Wines notes, “Article 5 of the Constitution . . . allows the states to sidestep Congress and draft their own constitutional amendments whenever two-thirds of their legislatures demand it.” Thus far, “28 states have adopted resolutions calling for a convention on a balanced-budget amendment, including 10 in the past three years, and two, Oklahoma and West Virginia, this spring.” Thus, only six additional states are needed to trigger an Article V balanced budget amendment convention.

Wines is also correct that there are substantive legal issues which will undoubtedly be raised if and when the states reach the magic number of 34. For example, Wines says that “[e]ven if the two-thirds threshold were reached, a convention would probably face a court battle over whether the legislatures’ calls for a convention were sufficiently similar.”

What he refers to is the fact that the 28 existing applications for a balanced budget amendment convention do not use identical language, and it can be argued (and undoubtedly will be argued) that some of them are substantively different from the others in terms of the scope of the convention they seek. If Congress calls a convention based upon these applications, someone is likely to go to court to stop the convention from being held. Thus, Wines is right that there probably will be a “court battle” of some kind.

This doesn’t mean, however, that a court would actually consider such a case on its merits. Before doing so, it will have to answer a novel question: when (if ever) are claims related to the Article V convention justiciable?

Continue reading ‘The Justiciability of Controversies Related to the Article V Convention’ »

An Urgent Need to Combat Executive Privilege after COGR v. Lynch

In the Federalist Society Review, Chris Armstrong, the Deputy Chief Oversight Counsel for Chairman Hatch at the Senate Finance Committee, has written an article entitled “A Costly Victory for Congress: Executive Privilege after Committee on Oversight and Government Reform v. Lynch.” (Actually, he wrote this in June, but I am a little behind on everything, as you may have noticed).

Although the House committee mostly “won” this case at the district court level because Judge Amy Berman Jackson ordered DOJ to turn over many of the Fast and Furious related documents the committee was seeking, Armstrong points out the the court’s reasoning actually “lay[s] out a vision of an expansive deliberative process privilege that—if it stands—may diminish Congress’s powers to investigate the Executive Branch.” Specifically, by allowing the assertion of a constitutional privilege against Congress for any records that would reveal aspects of the executive branch’s deliberations with respect to policies or decisions it makes, the court opened the door to a privilege that “can be invoked against producing nearly any record the President chooses.”

Armstrong is right to be concerned about the implications of the district court’s ruling. As I pointed out earlier this year, Congress can expect that agencies will seize upon Judge Jackson’s opinion to resist congressional oversight. Armstrong suggests this is already happening, noting a recent “marked increase” in deliberative process claims “across agencies and to a wide range of congressional committees conducting active investigations.” He further expresses the concern that “we may be entering an era in which fewer disputes are resolved through good faith negotiation and the federal judiciary becomes the primary venue for settling these disputes,” a result that “may not bode well for Congress.”

This would indeed be an unfortunate development. However, as I wrote in my post on this topic, Congress can avoid this result by taking action to limit the types of subpoena enforcement cases that come before the judiciary. Essentially, such cases should be limited to situations where the president has not invoked executive privilege, thereby leaving the courts without any constitutional dispute to resolve (there still could be non-constitutional issues such as the committee’s jurisdiction and the relevance of the information sought).

So how should congressional committees go about enforcing their subpoenas when the president invokes executive privilege? A number of ideas have been floated, including using the appropriations process to restrict funding for agencies that refuse to comply with congressional subpoenas. The Select Committee on Benghazi, for example, recommends that “House and Senate rules should be amended to provide for mandatory reductions in appropriations to the salaries of federal officials held in contempt of Congress.” (see section IV, p. 66 of the Select Committee report). Other ideas include reinvigorating inherent contempt (in which the legislative body itself punishes the recalcitrant official), amending the criminal contempt statute to provide for appointment of a special counsel to prosecute contempt by executive officials (another recommendation of the Select Committee), and impeachment.

Whatever mechanism(s) Congress (and/or the House and Senate individually) settle on, the time to act is now. With the two leading presidential contenders not exactly known for their commitment to transparency, there can be no doubt that the next administration will see a continuation, if not an escalation, of these problems.

Neither is there any reason to wait on the outcome of the appellate process in COGR v. Lynch. The briefing schedule is rather leisurely: appellant’s brief is due October 6, appellee’s brief is due December 20, and any reply brief is not due until January 17, 2017. By the time briefing is complete, it seems likely that the case may be overtaken by events, and I would guess that the D.C. Circuit will never reach the merits of the case. In any event, Congress cannot afford to leave its institutional prerogatives in the hands of the courts.