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Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization:

Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action for Childhood Arrivals first announced in 2012? Or is the President violating the Constitution by refusing to execute the immigration laws?

Schroeder contends that “[w]hatever answer you give to the first question, the answer to the second one is a resounding NO.” He reasons that the Office of Legal Counsel prepared a “careful and thorough analysis” of the legal options available to the administration. While some may disagree with OLC’s conclusions, “this only establishes that people can have honest disagreements over how to interpret a statute.” As long as OLC has plausibly concluded that the actions were within the president’s authority, Schroeder contends that there can be no violation of the president’s duty to “take care” that the laws be “faithfully executed.”

Schroeder is right to distinguish between the administrative law question of whether the administration’s new nonenforcement policy will survive judicial review and the constitutional question of whether the law is being faithfully executed. As Schroeder points out, the former is a “garden variety administrative law question” of the sort courts address every day. If the courts should rule against the administration, “then the action will be consigned to the pile of agency actions that have been overturned by courts over the years as exceeding their authorities under the relevant statutes.” But, he goes on, “[t]o my knowledge, in none of these prior decisions has a court ever even contemplated the question of a constitutional violation by the President.”

I made a similar point several months ago with regard to the House’s decision to sue the Obama administration over the Affordable Care Act:

[T]he 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.

Schroeder is also probably correct that the courts are unlikely to strike down the new nonenforcement policy. I say this based not so much on the legal merits of that policy, which I have not studied, but on the generally deferential nature of judicial review with regard to agency action in general and administrative nonenforcement in particular. See CRS Report to Congress, “The Take Care Clause and Executive Discretion in the Enforcement of Law” 8 (Sept. 4, 2014) (“Where Congress has legislated broadly, ambiguously, or in a nonobligatory manner, courts are unlikely to command or halt action by either the President or his officials.”); id. at 15-17 & n. 104 (“It should be noted that the dismissal of a challenge to an administrative nonenforcement decision under the APA is not necessarily recognition by the court that the agency was acting within its authority.”).

Schroeder seems clearly wrong, however, in suggesting that the president’s constitutional responsibilities under the Take Care Clause are met merely because his lawyers advance a plausible or successful defense of the legality of his nonenforcement policy. The Take Care Clause requires the laws be faithfully executed. As Schroeder acknowledges, this means the laws must be executed “honestly.” Johnson’s dictionary provides another pertinent definition of “faithfully” as “with strict adherence to duty.” Continue reading “Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness”

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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.

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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.

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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.

 

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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.

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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.

 

 

 

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The Speech or Debate Clause and Protection of Informal Information Gathering

A couple months ago we discussed the question of whether informal information gathering is a legislative activity protected by the Speech or Debate Clause. As I noted at the time, there is case law suggesting that some informal information gathering is protected, but significant uncertainty as to how one defines the type of information gathering meriting such protection.

An easy case would be a witness interview conducted by committee investigators. Such an interview would be informal in the sense that the witness’s attendance is voluntary, there would (probably) be no transcript of the interview, and there would be no formal procedures for asking questions and making objections. Yet in function and substance such an interview is very similar to a committee deposition, and thus a strong case can be made that it warrants the same level of protection.

Now extend that to a telephone conversation in which a committee investigator calls a witness to ask the same sort of questions. This is even more informal than a scheduled, in-person interview, but if it is clear from the circumstances that the investigator is gathering information for use in a committee investigation, it would make sense to treat it the same way.

The problem comes in trying to extend this principle to the myriad conversations and meetings that a typical committee staffer (or any congressional staffer) would have during the course of a day. These could include discussions with agency officials, constituents, lobbyists, interest groups, government contractors, legislative support staff and many others. During any one of these conversations a staffer might gather some information of potential use to the committee’s investigatory and oversight activities, but the same conversation might cover many other matters, such as constituent complaints, efforts by lobbyists and others to obtain contracts, favors or other benefits from the legislative or executive branches, or “cajoling” of agencies by members of Congress. One might also distinguish between the type of general background information that might be covered in a typical agency briefing and specific information that might be obtained from a fact witness on a matter the committee is investigating.

One question that might be asked is whether any statements made by the outside individual to the congressional staffer would be covered by the False Statements Act, 18 U.S.C. 1001, which criminalizes false statements to Congress in the course of “any investigation or review, conducted pursuant to the authority of any committee, subcommittee, commission or office of the Congress, consistent with applicable rules of the House or Senate.” That section would seem to presume some sort of structure or formality to connect the false statement to the investigation or review, as opposed to statements that might be made in the course of impromptu conversations with congressional staff.

An interesting recent case on this issue is Williams v. Johnson, Civ. Action No. 06-2076, in which the plaintiff, an employee of the DC Department of Health, sued the DC Government for allegedly retaliating against her for remarks she made in testimony before the DC Council Committee on Health and in a separate meeting with the chairman of that committee, David Catania, and two of his aides. She subpoenaed Catania and one of his aides to testify and produce documents related to these events, and they moved to quash on the basis of DC’s Speech or Debate statute, which has been interpreted to provide the same protection as the federal Speech or Debate Clause. Continue reading “The Speech or Debate Clause and Protection of Informal Information Gathering”

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Senator Ervin on Congressional Discipline and Speech or Debate

I have previously explained that the Speech or Debate Clause does not protect members from discipline by their legislative body, up to and including expulsion. Since the subject arose again in the last couple of days (in the course of a Glenn Greenwald initiated thread on Twitter), it may be worth adverting to Senator Ervin’s argument before the Supreme Court in Gravel v. United States.

Senators Ervin and Saxbe represented the Senate as amicus curiae in the case, and the Court gave the Senate time during oral argument. Ervin’s argument stressed that the Senate “holds no brief” for Senator Gravel or his actions (i.e., reading of the classified Pentagon Papers in a subcommittee meeting). He acknowledged that Gravel’s actions may have been improper and/or in violation of Senate rules, but he contended that the Constitution places these questions exclusively within the jurisdiction of the Senate.

Senator Ervin stressed that a member of Congress is “not accountable” to the executive or judicial branches for his legislative activity, whether that activity is “regular or irregular under the rules of the legislative body of which he is a member.” In Gravel’s case, those questions were the business only of the Senate itself. In response to a justice who asked “That inquiry or discipline or both is something exclusively for the Senate?,” Ervin responded, “That’s right.”

Pointing out that the Rules of Proceedings and Discipline Clauses are in the section of Article I immediately preceding the section in which the Speech or Debate Clause appears, Ervin reiterated: “Our position is that . . . even though Senator Gravel may have violated Senate rules and even though he may have acted improperly, that is a matter for the judgment of the Senate and no other power in our government has the right to make any official pronouncement on that subject.”

Greenwald and his ilk argue that senators who believe (or claim to believe) that classified information should be released should put their money where their mouth is by reading the information on the floor of the Senate, where they would be protected by Speech or Debate immunity from legal punishment (though not from congressional discipline). Whatever one thinks about such congressional “civil disobedience” as a normative matter, I am puzzled that anyone would advocate it when the senators have not yet used, or attempted to use, the established Senate procedure for releasing classified information.

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Renzi Loses Coming and Going on Speech or Debate

As the Ninth Circuit helpfully explained yesterday (hat tip: Zoe Tillman) in affirming former congressman Rick Renzi’s conviction on various corruption charges, “Congressmen may write the law, but they are not above the law.” In doing so, the panel rejected two Speech or Debate arguments Renzi raised on appeal. (For Renzi’s prior unsuccessful trip to the Ninth Circuit on Speech or Debate, see here).

The first issue revolved around two pieces of testimony the prosecution elicited from Joanne Keene, Renzi’s former district director. Keene testified that (1) Renzi’s interest in a potential land exchange bill seemed to depend on whether the tract of land belonging to his secret business partner was included and (2) Renzi indicated to her that he was having second thoughts about the land exchange legislation because of the news about Duke Cunningham’s indictment on corruption charges. The prosecution contended that this testimony did not violate the Speech or Debate Clause because it directly rebutted evidence Renzi had offered to show that his actions in the legislative process were taken for legitimate reasons.

The Ninth Circuit agreed, holding “if a member of Congress offers evidence of his own legislative acts at trial, the government is entitled to introduce rebuttal evidence narrowly confined to the same legislative acts, and such rebuttal evidence does not constitute questioning the member of Congress in violation of the Clause.” This sounds likes a waiver analysis, but the court declined to characterize it as such (in order to avoid Supreme Court caselaw setting a very high bar for waiver of Speech or Debate). Instead, the court concluded somehow that Renzi was not being “questioned” within the meaning of the Clause. Nevertheless, the court’s basic approach, which accords with that of other circuits, seems to make sense. After all, it is hard to see how a member of Congress can introduce exculpatory evidence of legislative acts and not have that evidence subject to some degree of rebuttal or cross-examination. (On the other hand, the D.C. Circuit appears to have adopted something akin to a no cross-examination rule in the context of congressional employment cases).

The more interesting language from the court’s opinion, though, appears in footnote 24, where the Ninth Circuit indicates that the evidence challenged by Renzi would in any event not violate the Speech or Debate Clause because it concerned only Renzi’s performance of future legislative acts. The footnote suggests there is no protection for discussion of potential legislation that has not actually been introduced, while discussion of introduced legislation may be considered part of the legislative process and therefore protected.

As far as I know, this is the first time a court has suggested that the formal introduction of legislation is key to determining the applicability of the Speech or Debate Clause. This would mean, for example, that if Renzi had drafted a land exchange bill, but told his staff to hold off introducing it because of the Duke Cunningham investigation there would be no protection. On the other hand, if Renzi actually introduced the legislation, but told his staff to hold off seeking co-sponsors for the same reason, the Clause would apply. It is hard to see how this distinction makes sense as a matter of constitutional text or purpose. If taken seriously, it would call into question whether legislative activities such as fact-gathering or bill-drafting would be protected.

But the Ninth Circuit panel itself may not take the distinction that seriously. This is shown by the court’s disposition of Renzi’s second Speech or Debate argument. Renzi had wanted to call the former chief of staff to Congressman Kolbe to testify about “conversations between Kolbe and Renzi regarding the proposed [land exchange] bill.” However, “[b]ecause this testimony directly implicated Kolbe’s legislative activities,” the appellate panel concluded that this testimony was properly excluded as violating Kolbe’s Speech or Debate privilege.

The land exchange bill in question, however, was never actually introduced: thus it would seem that Kolbe’s discussions with Renzi should have been unprotected under the court’s own reasoning. It appears that the trial and appellate courts applied the Clause inconsistently to allow evidence the prosecution wanted to introduce but block evidence that Renzi wanted to introduce. Perhaps there is an explanation for this discrepancy, but it is not obvious to me.

Maybe they just don’t like congressmen who think they are above the law.