Upcoming Legisprudence Conference in Israel

An international conference co-sponsored by the Bar-Ilan University Faculty of Law and the Knesset Legal Department, which will take place on December 10-11, 2014 in Israel, was brought to my attention by one of the participants. The conference is entitled “Legisprudence and the Legislative Process: From Theory to Practice,” and includes a number of panels that will be of great interest to legislative lawyers and parliamentary experts around the world. The agenda and list of speakers is here.

For those who don’t know, a group which included me before I googled it today, “legisprudence” is defined by Black’s Law Dictionary as “the systematic analysis of statutes within the framework of jurisprudential philosophies about the role and nature of law.”

As long as we are more or less on the subject, I recall that in 2000 the Speaker of the Knesset reached out to Speaker Hastert to inquire about how Congress received legal advice. The letter indicated that the Knesset was considering “making some changes in the structure and role of [its] legal department . . . in order to ensure a clear separation of powers between the branches of government.” (The House Counsel’s response is here.). I wonder what the Knesset’s subsequent experience has been. Anyone with feedback on this or the results of the conference would be welcome.

CRS on the Take Care Clause

This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there is a good deal of “on the one hand, this, and on the other hand, that.”

Here is the summary:

The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a “duty” upon the President and the other viewing the Clause as a source of Presidential “power.” Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law.

In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are “committed to agency discretion” and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”

However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” or where the agency has “’consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing “meaningful standards” for the manner in which the agency may exercise its enforcement powers.

Nevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.

Gaming out the Coming Confirmation War

There is a reasonable possibility that the Republican-controlled Senate will refuse to confirm any of President Obama’s nominees (or any such nominees who fall into particular categories) in the next Congress. By refusing to confirm nominees, the Republicans would be remedying (it might be argued) the illegal use of the “nuclear option” last year, which allowed Senate Democrats to confirm numerous nominees who otherwise would have been blocked by Senate rules. Senator Ted Cruz has also proposed that the Senate refuse to confirm any Obama nominees, except those in “vital national security positions,” as a response to the executive order on immigration announced this week.

Were this to occur, the issue of recess appointments may again rear its ugly head. To my knowledge, there are currently no recess appointees serving in the administration. It is possible that the President could make recess appointments during the lame duck period, but I assume that House Republicans will foreclose this by refusing to adopt any adjournment resolution that might open the door to such appointments. Instead, each house will (I am guessing) formally adjourn for no more than three days at a time, holding pro forma sessions when necessary for the remainder of the 113th Congress.

One might assume that this pattern would continue for the 114th Congress. However, if the Senate is embargoing most or all Obama nominees, the congressional leadership may see an advantage in allowing the administration to use recess appointments as a safety valve to fill critical or emergency vacancies. If that were the case, the House and Senate would “recess” (which now should be taken as a technical term meaning a concurrent adjournment of both houses for more than three days) from time to time, allowing Obama to make recess appointments during this period.

Any recess appointments made subsequent to the commencement of the first session of the 114th Congress (scheduled for January 6, 2015) would last until the end of the next Senate “session,” which, according to the conventional wisdom endorsed by the Supreme Court in Noel Canning, would normally mean that recess appointees would serve until the end of the Obama administration.

But is this necessarily the case? Professor Seth Barrett Tillman, in a colloquy several years ago with Professor Kalt, argues that the Senate may terminate a recess appointment simply by adopting a resolution declaring its session to be at an end and then promptly re-convening in a new session. Kalt disagrees, contending that both the House and Senate must act together in order to end a session and contending that even this would be a “constitutional impropriety” because it would involve the House in matters relating to appointments and confirmations.

I think Kalt is clearly right that once Congress convenes, both the House and Senate must agree before the session can be ended. It should also be noted that the administration may argue (incorrectly, in my view) that convening a new session of Congress prior to the constitutional default date requires enactment of a law.

Unlike Kalt, though, I see no constitutional impropriety in the House and Senate deciding to formally recess, say, twice a year, once in the summer and once for the Christmas holiday, as clearly intended by the Laws of Nature and of Nature’s God. During these recesses, the President could make recess appointments that would last until the next recess (i.e., the end of the next session). Adopting such “Tillman adjournments” would give the President the ability to fill critical vacancies while limiting the duration of recess appointments to prevent abuse. It would also re-establish the “recess” as the period between “sessions,” as clearly intended by the framers.

The President could make successive recess appointments to keep a particular vacancy filled. But he could not re-appoint the same individual to fill the vacancy, at least not if that person wanted to be paid.


Cannon on Nuking Obamacare

Michael Cannon has made a suggestion, resembling my last post in some respects, that the new Republican majority in the Senate use the nuclear option for purposes of repealing the Affordable Care Act, aka Obamacare. However, for some reason Cannon recommends that the Senate proceed by way of reconciliation, a cumbersome process that is unnecessary if the nuclear option is going to be invoked.

It is true that the nuclear option could be used in conjunction with reconciliation (by, for example, exempting an Obamacare repeal provision from all budget-reconciliation points of order), but it is equally true that it could be used to overcome filibusters of a straight Obamacare repeal bill outside the reconciliation process. For that matter, the Senate could “nuke” all filibusters against measures offered by left-handed senators from states that begin with the letter “M.” That is the joy of making arbitrary exceptions to regular order.

It is also curious that Cannon recommends the Senate formally change the Senate rules in order to repeal Obamacare. This is not how the nuclear option was used last year. The Senate did not change its rules to exempt non-Supreme Court nominations from the filibuster. It simply ruled, for unexplained reasons, that such nominations were not subject to filibuster. What would be the point of formally changing the rules through a procedure premised on the notion that the rules are meaningless?

I suspect we are going to hear many arguments about Senate procedure in the upcoming year. These arguments will be marked by confusion unless they understand the nature of what the Senate did when it invoked the nuclear option. We not in a Cinderella Senate but an Alice in Wonderland Senate.

The Filibuster in a Post-Nuclear Senate

Richard Arenberg, an expert on Senate procedure, wrote an interesting article on Monday asking “Would a new Senate majority abuse the budget reconciliation process?” This question matters if one assumes that the minority still has the power to filibuster in the Senate. But does it?

The Senate “nuclear option” ruling a year ago did not, of course, purport to eliminate the filibuster entirely. The words of that ruling apply only to non-Supreme Court nominations. But these words are meaningless. The only principle that can be derived from the ruling is that the Senate majority is not obliged to comply with Senate Rule XXII (or, presumably, with any other Senate rule) if it chooses not to do so.

The Republicans, it may be noted, have committed publicly to maintaining the filibuster and perhaps even reversing the exercise of the nuclear option. But even if the Republicans want to do so, they cannot restore the status quo ante (at least not by themselves).

Of course, the new Senate majority could refrain from bringing measures to a final vote unless there are 60 votes in favor of doing so. It could do this even if there were no Senate rule regarding the subject. But such restraint would not undo the nuclear option ruling. It would merely establish, as a factual matter, that the current majority does not choose to disregard Senate Rule XXII.

The Senate could formally overturn the nuclear option ruling. Doing so, however, would not have any more precedential value than did similar actions in the past. There is no reason to believe that a formal overruling of the nuclear option would prevent a future Senate from invoking the nuclear option again to prevent filibusters for nominations or any other matters. It would in effect entrench the filibuster only for as long as the Republicans hold the majority, an outcome that the Republicans would presumably find unattractive.

The Senate Republicans may also find that they have a problem with their constituents. If the Democrats filibuster a measure that is important to the Republican base, it will be difficult to explain why the Republican majority is bound to adhere to rules that their opponents do not recognize.

Perhaps there is a way for the Senate to entrench Rule XXII in a way that makes it once again genuinely binding on the body. But this would require the agreement of both parties. Perhaps a formal repudiation of the nuclear option accompanied by enactment of a new process for changing the rules, such as I suggested here, would do the trick. Short of this, Senate Rule XXII should now be considered more of a guideline than a rule.