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Archive of entries posted on August 2012

Constitutional Settlement through a Senate Rule

Now I will turn to the question of how a new set of rules governing recess appointments, such as those discussed in my prior post, might be put into place. One possibility is that they could be set forth in a new Senate rule. This would seem to raise at least two constitutional questions. First, [...]

Taking the Recess out of Recess Appointments

Another potential means of reaching constitutional settlement with regard to the Recess Appointments Clause would be to design a new set of rules for when and how the President exercises his power under that clause. The question that I will now turn to is whether it would be possible, as a constitutional and practical matter, [...]

CRS on Pro Forma Sessions

Earlier this month Senator McConnell placed in the Congressional Record a CRS memorandum regarding pro forma sessions (hat tip, Mort Rosenberg). The memo makes three points of interest to those who are following the legal challenges to President Obama’s January 2012 recess appointments. First, CRS notes that the term “pro forma” relates to the reason [...]

House Rules on Employment Negotiations and Recusal: the Case of Representative Cardoza

Representative Cardoza of California announced earlier this week that he would be resigning from Congress and joining the law firm of Manatt Phelps. Manatt apparently jumped the gun a bit and listed Cardoza yesterday on its website as a managing director in its public policy practice, even though Cardoza had not actually resigned yet, according to [...]

The Pay Act and the GAO as a Means of Constitutional Settlement

Next on the list of possible mechanisms to achieve constitutional settlement with respect to the Recess Appointments Clause is something that would fall into the category of congressional “self-help.” There are a variety of means by which Congress could express its displeasure with the administration’s use of the RAC; most of these would be political [...]

Can the Chairman of the House Budget Committee Preside Over the Senate?

Update: Professor Tillman responds in the comments Professor Seth Barrett Tillman emails to remind us (among others, see Election Law Blog and the Originalism Blog) of his theory that the President and Vice-President do not hold “offices under the United States” within the meaning of the Incompatibility Clause, and thus that there is no constitutional [...]

Common Cause’s Impossible Dream

When Common Cause filed this lawsuit challenging the constitutionality of the filibuster, the legal establishment scoffed. Critics called it “ridiculous,” “specious,” and “frivolous.” They said the courts would toss the case on jurisdictional grounds without reaching the merits. They said a rag tag bunch of public interest lawyers, Democratic House Members and illegal aliens stood [...]

Privileged Communications in Congressional Investigations

Michael Bopp and DeLisa Lay of Gibson Dunn have recently published an article, “The Availability of Common Law Privilege for Witnesses in Congressional Investigations” in the Harvard Journal of Law & Public Policy. It provides a helpful overview of congressional authority and practice with regard to assertions of attorney-client and other common law privileges in [...]

Recess Appointment Litigation As A Means Of Constitutional Settlement

Today I will begin appraisal of the various methods of achieving constitutional settlement on the question of recess appointments. I will start with the judicial arena. Pending Cases There are currently at least two significant cases challenging the constitutionality of President Obama’s January 4, 2012 recess appointments. A. Challenge to NLRB recess appointments. Noel Canning [...]