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Tillman on the Disqualification Clause

Professor Seth Barrett Tillman has posted this draft article on the Disqualification Clause of Article I, § 3, cl. 7, which provides that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Long story short, Professor Tillman argues that an “Office of honor, Trust or Profit under the United States” extends exclusively to statutory or appointed offices and excludes elected positions such as President, Vice-President, Senator and Representative. Thus, under his theory if a president, vice-president or a civil officer of the United States is impeached, removed from office and disqualified, that individual remains eligible to serve in any of the aforementioned elected positions. Tillman cites a number of pieces of evidence which he believes support this conclusion (some of which we have discussed in prior posts), and he argues that it is consistent with the “democracy canon” that, all other things being equal, the people should be entitled to vote for whomever they please to represent them.

This particular issue may be of limited practical importance, unless you are planning to work on the Porteous 2016 campaign, but it is of some interest with respect to the methodology of constitutional interpretation as well as other constitutional provisions that apply to “officers of” or “offices under” the United States. Related discussions may be found here (“May the President Accept a Foreign Title of Nobility?”), here (“Tillman’s Puzzles for Amar (or Who You Callin ‘Atextual’?)”) and here (“Six Answers for Six Puzzles”).

 

Two lobbyists and a congressional staffer walk into a strip club called Privilege

This is surely the start of an awesome joke. Email me when you come up with the rest.

Ok, I could have entitled this “D.C. Circuit issues mildly interesting decision on the Speech or Debate Privilege,” but then you wouldn’t be reading it, would you?

Anyway, the court just issued this decision upholding the conviction of Frasier Verrusio, the hapless former policy director for the House Committee on Transportation and Infrastructure, who somehow managed to parlay a night of boring Washington-style debauchery into three felony counts of receiving illegal gratuities.

Basically, there were two lobbyists, Todd Boulanger and James Hirni, who were scheming to get some language inserted into the federal highway bill at the last minute on behalf of a client called United Rentals. They sought assistance from Verrusio and a Senate staffer named Trevor Blackann for this so-called “airmail strategy.” Then the client representative, Todd Ehrlich, snagged some tickets to the first game of the 2003 World Series, and the rest was history:

Hirni invited Blackann and Verrusio to the World Series game and made clear that United Rentals would cover the costs. Both men accepted the invitation. Hirni and Blackann flew to New York together and met Ehrlich there. Over drinks, Blackann described the airmail strategy that he, Verrusio, and the two lobbyists had agreed was “the best course of action.” Shortly thereafter, Verrusio joined them for dinner. According to Hirni, the four men “talked a lot about United Rentals” and “got into a conversation about concepts and ideas United Rentals had for federal legislation.” Verrusio was “the senior guy at the table,” Blackann testified, and was “leading the conversation.” Verrusio “walked them through” the airmail strategy, indicating that it had “the best chance for ultimate success.” Ehrlich paid for the dinner and drinks.

On the way to Yankee Stadium, the chauffeured car carrying the four men stopped at a convenience store, where Hirni bought several small bottles of liquor for the group. The men then went on to the game. On their way out of the stadium, Verrusio signaled to Hirni that he and Blackann wanted souvenir jerseys. Hirni paid for them with his corporate credit card.

After leaving the stadium, the group went to a strip club called Privilege. Hirni paid the cover charge and the cost of drinks, while Ehrlich paid for several lap dances. Hirni also bought Verrusio and Blackann t-shirts from the club. When the group left, they stopped for pizza before returning to their hotel. The next morning, Hirni paid the hotel expenses, and Verrusio, Blackann, and Hirni took a car to the airport and flew to Washington, D.C.

Slip op. at 5-6 (citations omitted).

None of that is particularly important, but I wanted you to know that I didn’t make up the part about the strip club.

So on to the Speech or Debate issue.

Continue reading ‘Two lobbyists and a congressional staffer walk into a strip club called Privilege’ »

SSCI’s Approach to Releasing its Classified Report Weakens the Senate’s Prerogatives

Section 8(a) of S. Res. 400 provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” Chairman Feinstein clearly wants to publicly release SSCI’s report on the CIA detention and interrogation program and she believes that disclosure would be in the public interest. Yet she has not asked SSCI to take a vote under Section 8(a). She has not acknowledged any obligation on SSCI’s part to make a determination under Section 8(a) and she has not explained SSCI’s failure to use its authority under Section 8(b) to release classified information. Indeed, she has acted as if Section 8 does not exist, and no one in the media has bothered to ask her why.

The effect of this approach is to make public release of the SSCI report turn entirely on whether the report is declassified, and therefore cedes decision-making power to the President and the executive branch. Thus, when Feinstein announced in April that SSCI had voted to “declassify” its report on the CIA detention and interrogation program, I pointed out that the committee doesn’t have the authority to “declassify” anything. In reality, all the committee could do was ask the executive branch to conduct a declassification review and hope for favorable results.

Shortly after my post, Professor Lederman was able to get this helpful clarification from SSCI staff: Continue reading ‘SSCI’s Approach to Releasing its Classified Report Weakens the Senate’s Prerogatives’ »

A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400

As discussed in my last post, there is (or should be) no serious controversy regarding the Senate’s authority to release classified information unilaterally pursuant to Section 8 of S. Res. 400. Yet the full Senate has apparently never taken a vote to release information under Section 8, perhaps in part because of that section’s elaborate procedural requirements.

At the outset, SSCI must make a determination, by a formal vote, “that the public interest would be served by such disclosure.” Senator Ribbicoff observed that this provision, embodied in Section 8(a), “establishes the basic rule that the committee may disclose information where disclosure is in the public interest.” CRS Legislative History of S. Res. 400 at 88.

Under Section 8(b), however, SSCI must take additional steps where the disclosure involves “any information which has been classified under established security procedures, which has been submitted to it by the Executive branch, and which the Executive branch requests be kept secret.” Such information may only be released pursuant to the process further described in Section 8(b).

The first step in this process is for SSCI to notify and consult with the Senate Majority and Minority Leaders regarding the vote to disclose classified information. The rule specifies that this consultation must take place prior to providing formal notice to the President. The purpose of this step, which was not added to Section 8 until 2004 (by S. Res. 445), is presumably to afford the Senate leadership with an opportunity to resolve the situation before formal notice to the President is given.

Once the President is notified, a five-day clock starts ticking. After five days have expired, SSCI may publicly disclose the information that was the subject of the vote, unless the President properly objects within this period. To do so, he must, “personally” and “in writing,” notify SSCI of his objection to disclosure, provide his reasons therefor, and certify “that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.”

Continue reading ‘A Closer Look at the Senate’s Procedures for Releasing Classified Information under S. Res. 400’ »

Does the Obama Administration Challenge the Senate’s Authority to Release Classified Information under S. Res. 400?

On Friday, August 1, the executive branch returned to SSCI the redacted executive summary of the committee’s study on the CIA detention and interrogation program. Chairman Feinstein announced that there had been “significant redactions” made and that the public release of the report would be held until the committee had time to “understand the basis for these redactions and determine their justification.” Thus, she has chosen not to release the redacted version of the report although SSCI is now legally free to do so (without prejudice to its right to seek release of an unredacted or less redacted version at a later time).

Assuming that Feinstein and her colleagues decide to challenge some or all of the redactions, they have a clear mechanism for doing so in Section 8 of S. Res. 400. As we have discussed before, this provision allows SSCI to vote for public disclosure of classified material the executive branch wishes be kept secret. Unless the President objects within five days, the committee may release the information. If the President does object, the matter may be elevated to the Senate for final decision.

A blog post by Professor Marty Lederman, however, raises the surprising possibility that the Obama administration may not recognize or accept the legitimacy of this mechanism. Lederman cites two FOIA filings by the Obama Justice Department that say SSCI can only publicly release material after declassification review by the executive branch. If these statements were taken literally, they conflict (or arguably conflict) with the Senate’s authority under Section 8.

I think it unlikely, however, that these statements portend any administration challenge to the Senate’s Section 8 authority. First, as far as I know, no prior administration has questioned the Senate’s authority to release classified information under Section 8 (nor the House’s similar authority under Rule X(11)(g)). The provision in question was the subject of some controversy when S. Res. 400 was proposed and adopted in 1976, but it does not appear that the executive branch seriously questioned its constitutionality or legitimacy. This CRS legislative history of S. Res. 400, for example, reflects only that then-DCI George H.W. Bush expressed some reservations about the disclosure provision, feeling that it “might conflict with the statute requiring the DCI to ‘protect intelligence sources and methods.’” (p. 18).

During the floor debate over S. Res. 400, the only constitutional objection to Section 8 was raised by Senator Abourezk, who felt it was too deferential to the executive branch classification system. He argued that the new intelligence oversight committee “will be saddled with formal procedures for declassifying information buttressed by sanctions in contrast to the President who is free to declassify in an ad hoc manner as it suits his political needs.” (CRS-96). No senator, in contrast, questioned the Senate’s constitutional authority to release classified information without executive branch permission.

If the executive branch objected to Section 8, it could have insisted on modification or repeal of this provision (and the analogous House rule, which was adopted in 1977) as a condition of providing SSCI and HPSCI with sensitive intelligence information. Instead, in 1978 President Carter issued Executive Order 12036, which “officially recognized the existence of the two oversight committees and directed that they be kept ‘fully and currently informed’ by the departments and agencies that made up the Intelligence Community.” Britt Snyder, The Agency and the Hill 59. This principle was later enacted into law by the Intelligence Oversight Act of 1980. The executive branch evidently considered the procedures established under Section 8 as an adequate protection for classified information shared with the intelligence committees and undoubtedly preferred them to prior practice in which individual committees could decide to release classified information unilaterally. See id. 200-01 (describing how the Pike Committee in the House unilaterally released classified information that the Ford Administration believed seriously compromised US SIGINT capabilities). Subsequent administrations have continued or strengthened information-sharing practices and laws without challenging (as far as I know) the right of the intelligence committees to use Section 8 or its House counterpart to release classified information.

Furthermore, the two FOIA filings Lederman cites strike me as unlikely vehicles for an Obama administration challenge to Section 8. Both appear in a FOIA case against the CIA in which the ACLU seeks access to the Senate report. The first filing is an affidavit from the director of CIA congressional affairs, who states that “SSCI would be required to submit its Report for a declassification review before it could public release the Report.” The second is a reply brief in which the Justice Department refers to a declassification review of the report as “a necessary precursor to public release.”

Neither of these filings mentions Section 8 of S. Res. 400 or alludes to the possibility of the Senate, as opposed to SSCI, releasing the report. It therefore would seem quite a stretch to suggest that these documents implicitly announce the administration’s rejection of Section 8 as a legitimate mechanism for public disclosure. For all we know, the authors of these documents were not even aware of Section 8. Or perhaps they thought SSCI had committed, formally or informally, to submitting its report for declassification review. Or perhaps they just decided to ignore Section 8 for some other reason.

If the administration really wanted to question the constitutionality of Section 8, one would expect a pronouncement on the issue from the Office of Legal Counsel (not known for being shy about asserting executive prerogatives). I am not aware of any such pronouncement, and Lederman (who served in the OLC as a political appointee in the Obama administration and as an attorney advisor in prior administrations) cites none.

So, in short, I seriously doubt that the administration would challenge the right of SSCI and the Senate to use Section 8. Lederman, with whom I consulted before posting this, assures me that he isn’t predicting this either. Moreover, as indicated in his original post, Lederman doesn’t think there would be much to such a challenge if it were made. Neither do I.

Which begs the question of why SSCI is so skittish about invoking Section 8. A subject I will turn to in a future post.

Is a Lawsuit Really the House’s Only Remaining Option?

In response to the argument that the House needed access to the courts in order to protect the separation of powers and its constitutional prerogatives, Representative Slaughter noted “the Founding Fathers gave to the legislative branch the weapons to defend itself without running to the court.” She then proceeded to list these tools of self-defense, including the power to write new laws, repeal old laws, disapprove regulations and attach riders to appropriations bills. She also noted the specific powers invested in the Senate, such as its ability to “put nominees’ feet to the fire” during the advice and consent process. Finally, she cited the House’s constitutional authorities with respect to the executive: “we investigate, hold oversight hearings and we sometimes impeach.”

There is no question that these are powerful tools, potentially powerful anyway, and I think I have already made clear my view that a lawsuit is a very poor option for the House to employ. Nonetheless, it is difficult to see how the House could effectively use some of these methods to address the employer mandate delay. Obviously, it cannot use the Senate’s authorities. It is also hard to see how it could rewrite the law (even assuming the Senate and the President’s cooperation) to remedy the problem. After all, the House does not object to the policy embodied in the employer mandate delay; it objects to the fact that the administration adopted the policy without congressional authorization. Indeed, one of the House’s “injuries” is that the administration opposed any congressional effort to change the law so as to authorize the action it was taking.

Most of the discussion of alternative remedies at the Rules Committee hearing revolved around the power of the purse. But no one explained exactly how the House might use the power of the purse in this situation. In the first place, the spending power is just political leverage; it works the same for policy disputes and legal disagreements. But the political leverage only works to the extent it relates to something the public really cares about; abstract institutional disputes between the branches will hardly qualify. Indeed, even when the public supports Congress’s goal, using the spending power as leverage is tricky. Congress wasn’t too successful in using the power of the purse to control the executive’s conduct of an unpopular war in the last administration, as Slaughter may recall.

Now I do like the Scalia/Ginsberg suggestion that funds for White House staff be cut off, and I wonder why the House doesn’t at least try something like that. Presumably the public wouldn’t be outraged by a reduction of the White House travel budget or the like. Maybe Congress is worried that the White House would demand a reduction in leg branch appropriations in return. In any event, using the appropriations process in this way would require majority support in both chambers, if not a supermajority sufficient to overcome a veto. And even if that existed (which it obviously does not), I am not sure how exactly it would be linked to the employer mandate delay.

So as a practical matter, I think the House is left with the unilateral authorities of investigation, oversight and impeachment. Investigation and oversight seem like appropriate responses because, as discussed in a prior post, further information about the decision-making process is needed to determine whether the House’s disagreement with the IRS is simply a garden-variety dispute over administrative law or whether it reflects a true invasion of the House’s constitutional authority

However, an ordinary committee investigation will not suffice here for at least two reasons. First, the Speaker has already made a decision to elevate this matter beyond a routine oversight issue, and he wants the House as a body to weigh in. If it were sent to a committee for investigation, it would just become one of many ongoing investigations and would quickly become bogged down in the partisan muck. Second, it is very likely that the administration would refuse to produce all (or perhaps any) information regarding the decision-making process on grounds of deliberative process, attorney-client and/or presidential communications privilege.

There is another way, though. The House has a well-established and time-honored method of obtaining important information from the executive branch. The resolution of inquiry is a privileged resolution that seeks information from the president or a department head. Although it is not uncommon for such resolutions to be introduced (CRS counts 290 from 1947 to 2011), most often in recent years by members of the minority party, the House has not adopted such a resolution since 1995.

A resolution of inquiry is not a “legal” device like a subpoena, but an assertion of the House’s role in the constitutional structure, which would seem to be what is called for under the circumstances. As CRS notes, “compliance by the executive branch with the House’s request for factual information in such a resolution is voluntary, resting largely on a sense of comity between co-equal branches of government and a recognition of the necessity for Congress to be well-informed as it legislates.”

A resolution of inquiry could be addressed to Secretary Lew, directing him to produce all documents related to the decision to delay the employer mandate. (A similar resolution could be directed to President Obama, although it is traditional that resolutions to the president “request” rather than “direct” the production of information).

Would such a resolution work? Possibly, but only if the House were united in the resolution. The question then is whether Representative Slaughter and her colleagues would support such a resolution. If they are sincere about wanting to protect the House’s institutional prerogatives, I don’t see why they would not. And if they refuse, at least the Speaker would have tried to use more traditional methods before proceeding with his lawsuit.

Of course, there is no legal penalty for refusing to comply with a resolution of inquiry. But if Secretary Lew were to refuse to comply with the resolution, the House would logically proceed to use its last constitutional tool, one where it exercises judicial and not merely legislative authority, namely an investigation into whether the Secretary should be impeached.

 

Halbig/King and the House’s Lawsuit against the President

As you have no doubt heard, two circuit courts issued divergent opinions yesterday on the same administrative law question, namely the validity of an IRS rule extending tax subsidies to health insurance purchased on the federal exchange. These decisions nicely illustrate the point I was making in my last post regarding the nature of administrative law decisions and the extent to which a decision on the merits of the employer mandate delay would or would not vindicate the House’s constitutional interests.

In Halbig v. Burwell, the D.C. Circuit held the IRS rule invalid because it conflicts with the unambiguous language of the Affordable Care Act, particularly section 36B, which authorizes tax subsidies only for insurance purchased on “an Exchange established by the State.” The government argued that the statute taken as a whole reveals Congress’s intent that subsidies be available on both the federal and state exchanges. Any other conclusion, it contended, would generate an absurd result and be inconsistent with the ACA’s purpose and legislative history. Judge Griffith, writing for himself and Judge Randolph, found that the government’s arguments were insufficient to overcome the clear statutory text.

On the other hand, in King v. Burwell, the Fourth Circuit held that the language of the ACA, taken as a whole, was ambiguous on the question of whether tax subsidies applied to the federal exchange. The court acknowledged that the plaintiffs’ position made a “certain sense” and “accords more closely” with “a literal reading of the statute,” but after reviewing all relevant statutory provisions as well as the ACA’s structure, purpose and legislative history, it concluded that “we are unable to say definitively that Congress limited the premium tax credits to individuals living in states with state-run exchanges.” Instead, the court applied Chevron deference to the statutory interpretation adopted by the IRS in its regulation, thus upholding the agency’s decision to extend tax subsidies to insurance purchased on the federal exchange.

The two courts therefore reached different conclusions, but the various judges who have weighed in on the controversy (so far) reflect more than two views. The D.C. Circuit majority thought the ACA unambiguously prohibited the IRS from extending tax subsidies to insurance bought on the federal exchange. The Fourth Circuit majority, along with Judge Edwards dissenting in Halbig, thought that the ACA did not resolve the issue one way or the other and that the IRS was therefore free to determine whether or not tax subsidies should apply on the federal exchange. However, Judge Davis, concurring in King, found that Congress did resolve the question in the ACA and that the IRS was therefore required to adopt the interpretation that it did. And none of the judges appeared to agree with Judge Friedman, the lower court judge in Halbig, who found that the ACA unambiguously supported the IRS’s position.

In his Rules Committee testimony, Professor Turley cited the tax subsidy issue in Halbig as an example of Congress addressing an issue with a “lack of ambiguity” and the administration deciding to change Congress’s policy decision through a regulation. Turley expressed the hope that by bringing such cases to the courts, the House could obtain some sort of clear demarcation of congressional versus executive authority. Certainly the results in Halbig/King so far suggest this is a forlorn hope.

Even if a majority of the Supreme Court ultimately invalidates the IRS regulation, I don’t see that such a decision would expand or protect congressional power in some fundamental way. No one disputes that Congress could have resolved the issue through the ACA; the question is simply whether it did so. Indeed, it is arguable that the Halbig/King cases will expand executive authority by applying Chevron deference to an IRS determination that may not deserve it.

Just as importantly, even Judge Griffith’s opinion does not address, at least in any kind of direct way, the House’s constitutional concern that President Obama is failing to take care that the laws be faithfully executed. The D.C. Circuit concludes that the plaintiffs have the “better of the argument” as the tax subsidy issue, but it does not suggest that IRS (much less the President) promulgated the regulation in bad faith.

In sum, if the House were to sue regarding the employer mandate delay, the best it could hope for would be a court decision holding that delay to be invalid. But as I mentioned before, courts invalidate agency regulations all the time. How would one more such ruling change the balance of power between the branches?

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.