FedSoc Blog

Weighing in on the controversy over President Obama's recess appointments, Yale Law Professor Bruce Ackerman has called for Obama to release the legal advice he received justifying his actions.  Ackerman argues in today's Wall Street Journal:

Iowa Sen. Charles Grassley, writing for all eight Republican members on the Judiciary Committee, has asked Attorney General Eric Holder to elaborate the Justice Department's position on the key issues. Their request seems reasonable, since the elite group in the Department's Office of Legal Counsel has traditionally served as the executive branch's authoritative spokesman on matters of high legal importance.

But this is no longer true. Increasingly, it is the White House, not the Justice Department, that is making the tough legal calls—without the disciplined staff work and traditions of independence that have permitted the Office of Legal Counsel to win legal credibility over the past 75 years. . . .

In challenging the Senate on recess appointments, President Obama has only relied on his White House Counsel, not the Justice Department, in reaching his constitutional conclusions. But so far, the current counsel, Kathryn Ruemmler, has failed to publish the written opinion she presumably prepared to advise the president on his responsibilities. The entire Judiciary Committee, Democrats as well as Republicans, should be demanding the immediate publication of her opinion. While it is important to know whether the Office of Legal Counsel dissented, her views were the ones that won presidential endorsement.

Publication is particularly imperative given the nature of the current controversy. Under current law, the president appoints his counsel, along with almost all other White House aides, without the need for Senate approval. In contrast, the head of the Office of Legal Counsel, Assistant Attorney General Virginia Seitz, has gained the Senate's advice and consent.

This is no small difference in a dispute between the president and the Senate on recess appointments. If Mr. Obama had turned to Ms. Seitz as his principal authority, he would have been relying on somebody the Senate itself certified as a suitable official to resolve hotly contested matters of constitutional law.

Last week, President Obama, using his power to make recess appointments, appointed Richard Cordray to head the new Consumer Financial Protection Bureau.  He also appointed three members to the National Labor Relations Board.  Were these appointments in violation of the Constitution's recess appointments clause, which states, "The President shall have power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session”?

Writing in The Wall Street Journal, Professor Michael McConnell argues that the appointments were unconstitutional:

The Obama administration has offered no considered legal defense for the recess appointments. It even appears that it got no opinion from the Office of Legal Counsel in advance of the action—a sure sign the administration understood it was on shaky legal ground. It is hard to imagine a plausible constitutional basis for the appointments. The president has power to make recess appointments only when the Senate is in recess.

Several years ago—under the leadership of Harry Reid and with the vote of then-Sen. Obama—the Senate adopted a practice of holding pro forma sessions every three days during its holidays with the expressed purpose of preventing President George W. Bush from making recess appointments during intrasession adjournments. This administration must think the rules made to hamstring President Bush do not apply to President Obama. But an essential bedrock of any functioning democratic republic is that the same rules apply regardless of who holds office. It does not matter, constitutionally, that congressional Republicans have abused their authority by refusing to confirm qualified nominees—just as congressional Democrats did in the previous administration. Governance in a divided system is by nature frustrating. But the president cannot use unconstitutional means to combat political shenanigans. . . .

Article I, Section 5, Clause 4 requires the concurrence of the other house to any adjournment of more than three days. The Senate did not request, and the House did not agree to, any such adjournment. This means that the Senate was not in adjournment according to the Constitution (let alone in "recess," which requires a longer break).

Others have argued that the president can make recess appointments during any adjournment, however brief, including the three days between pro forma sessions. That cannot be right, because it would allow the president free rein to avoid senatorial advice and consent, which is a major structural feature of the Constitution.

Professor Lawrence Tribe, however, argues in The New York Times that Obama's recess appointments were in fact constitutional:

Presidents have long claimed, attorneys general have long affirmed and the Senate has long acquiesced to the president’s authority to make recess appointments during extended breaks within a Senate session. In 1905, the Senate Judiciary Committee concluded that “recess” referred to periods when, “because of its absence,” the Senate could not “participate as a body in making appointments” — a definition that precludes treating pro forma sessions as true breaks in an extended recess.

Since 1867, 12 presidents have made more than 285 such appointments, without constitutional objection by the Senate. And attorneys general going back to Harry M. Daugherty in 1921 have held that the Constitution authorizes such appointments.

This does not free the president to make recess appointments whenever the Senate breaks for lunch or takes routine weekend vacations that conceal no objective scheme to frustrate presidential appointments. Without limits on both sides, he could bypass the Senate’s “advice and consent” role by routinely recess-appointing controversial nominees.

These limits mean the president can resort to recess appointments of this kind only in instances of transparent and intolerable burdens on his authority.

At the Originalism Blog, Professor Mike Rappaport critiques recess appointments from an originalist perspective.  He also provides some history of the recess clause's interpretation that could serve as a reply to Professor Tribe's appeal to prior practice:

The original meaning of the Recess Appointments Clause is well designed to limit recess appointments to situations when the Senate’s recess prevented the appointment.  The Clause says that the President “may fill up all Vacancies that may happen during the Recess of the Senate.”  As I argue in this paper, this strongly suggests that the vacancy must arise during the recess and the recess appointment must occur during that same recess.  The first Attorney General opinion on the subject, written by Edmund Randolph in 1792, adopted this interpretation.  When the Congress was in recess for long periods – as long as nine months at a time – this recess appointment power worked quite well.  If a vacancy occurred in a needed position, the President filled it quickly.

The first error that was introduced into the law occurred when Attorney General Wirt in 1823 reversed this opinion and concluded that the President “had the power to fill up all Vacancies” during any recess, irrespective of when the vacancy first occurred. 

This was bad, but its effect on the law was still limited because the law and practice still mainly restricted recesses to intersession recesses.  In 1901, Attorney General Knox wrote an opinion adopting that interpretation.  But in 1921, Attorney General Daugherty wrote an opinion, concluding that recesses referred not merely to intersession recesses but also to intrasession recesses, and we were off to the races.  Over time, the executive branch has shortened the length of the recess that would allow a recess appointment from 10 - 30 days down to 3, and the President can now freely circumvent the senatorial advice and consent.

FedSoc's Washington, D.C. Lawyers Chapter invites you to its monthly D.C. Luncheon this Friday, January 20, 2012. It will feature an address by the Honorable Michael H. Posner--Assistant Secretary of the Bureau of Democracy, Human Rights, and Labor at the U.S. State Department--titled "The Arab Spring and Other Places: Democracy and Human Rights in the Obama Administration."

Here are the details:

Start: Friday, January 20, 2012 12:00 PM

End: Friday, January 20, 2012 1:30 PM

Location: Tony Cheng's Restaurant, 619 H St. NW, Washington, DC (Gallery Place Metro)

Registration details: The cost is $15.00 for members and $20.00 for guests. Space is limited, so please register online now. Please call (202) 822-8138 with any questions.

The New York Times reports on the lawsuit against the University of Iowa College of Law for allegedly discriminating against an applicant for being politically conservative, about which we recently noted:

According to [Teresa] Wagner’s lawsuit, the law faculty at Iowa in 2007 included a single registered Republican among its 50 or so members. The Republican professor was appointed in 1984. In 2009, The Des Moines Register found that there were two registered Republicans on the faculty.

Ms. Wagner would have added some balance, her lawyer said.

“My client is an ideologue,” Mr. Fieweger said. “She does believe in conservative values.” Ms. Wagner has worked for the National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which takes conservative positions on social issues.

Walter Olson, a fellow at the Cato Institute, the libertarian group, and the author of “Schools for Misrule: Legal Academia and an Overlawyered America,” said there was nothing unusual about the number of Republicans on Iowa’s law faculty.

“What would count as freakish would be to find two dozen registered Republicans on a big law  faculty,” Mr. Olson said. “Law schools are always setting up committees and task forces to promote diversity on their faculty, which can serve to conceal an absence of diversity in how people actually think.”

A study published in The Georgetown Law Journal in 2005 analyzed 11 years of federal campaign contributions by professors at the top 21 law schools as ranked by U.S. News & World Report. Almost a third of these law professors contributed to campaigns. Of those who gave $200 or more, the study found, 81 percent gave wholly or mostly to Democrats, while 15 percent gave wholly or mostly to Republicans.

The percentages of professors contributing to Democrats were even more lopsided at some of the most prestigious schools: 91 percent at Harvard, 92 at Yale, 94 at Stanford. At the University of Iowa, it was 78 percent. Political affiliations and contributions are, of course, an imperfect proxy for ideology, and political beliefs may in any event have no effect on scholarship and classroom teaching.

In an interview with Thomson Reuters, William Robinson, president of the American Bar Association, made some controversial statements about legal education.  Responding to claims that prospective law students have false expectations about the legal job market, Robinson said:

It's inconceivable to me that someone with a college education, or a graduate-level education, would not know before deciding to go to law school that the economy has declined over the last several years and that the job market out there is not as opportune as it might have been five, six, seven, eight years ago.

As for allegations that ABA-accreditation is one of the factors raising law school tuition, Robinson claimed:

None of the studies show that the ABA rules of certification are what's responsible for the cost of legal education . . . . When I was going to law school, and I sold my Corvair to make first-semester tuition and books for $330, a sizeable portion of the faculty had tenure. They had tenure then and they have tenure now.

At Above the Law, Elie Mystal responded, "how many people in Robinson’s position would be so out of touch that they think prospective law students are driving automobiles that can cover a whole semester of tuition at an American law school[?]"  He sarcastically continued, "That’s right, future 1Ls, don’t get too used to your Jaguar XKR. Don’t become too attached to your Lexus hybrid. You’ll need to sell your luxury automobile to pay for law school."

At FedSoc's 14th Annual Faculty Conference, George Mason University law professor J. W. Verret responds to the question, What do you think of Professor Lynn Stout's claim that derivative contracts are a form of gambling and thus should not be enforced by the government?

This morning at FedSoc's Annual Faculty Conference, Professor John McGinnis offered his criticisms of public sector unions. Pointing to the opposition to public sector unions from Franklin D. Roosevelt and Fiorello LaGuardia, McGinnis claimed that it was an axiom of Progressive politics that, while private sector unions serve a beneficial purpose, public sector unions do not.  McGinnis agreed with that view and argued that for structural reasons, public sector unions exacerbate what is an inherent problem of politics: the diffuse lose out to the concentrated.  Public sector unions bargain against politicians, who are already responsible to taxpayers. McGinnis sees two main costs of public sector unions: 1) Greater compensation and job security for the employees, along with larger pensions (which politicians like because they are less transparent exactions, the effects of which are often not felt for years); and, more important, 2) Public sector unions degrade the quality of public goods, particularly services that help the less well off members of society.  Public sector unions prevent the experimentation and innovation that would ultimately improve the delivery of public goods.  This, he explained, was at the root of the Progressive opposition to public sector unions.

Today at the Federalist Society's 14th Annual Faculty Conference, Professors David Zaring, Lynn Stout, and J. W. Verret discussed the federal government's taking an ownership stake in private companies as part of the financial bailout.  Zaring said he was "more sanguine" than many regarding the sovereign as shareholder. As for the government's managing the compensation of executives of companies it came to control, Zaring argued that it makes sense that executives should pay a price for putting their company in such a poor position.  He asked: Is the government's behavior in this regard really so different from what a private equity firm would do after it took over a company?

Stout claimed that derivatives are nothing but bets in the strict sense of the term: mutual promises made regarding a future prediction.  She argued that such gambling is at best a zero-sum game, and "adds risk by definition." She said that in the 1800s, the government would not enforce the derivative contracts of the day (called "difference contracts").  These were matters of state, not federal, law and the common law did not enforce gambling contracts.  Instead, private institutions such as commodity exchanges would enforce the agreements among their members, in the same way that gambling clubs in ancient Rome would enforce bets among their members. Such institutions, like casinos of today, made sure their members could not place bets they could not pay.  Stout concluded that better than the Dodd Frank legislation would be returning to the prior system: let state courts and the common law handle the enforcement (or lack thereof) of derivatives contracts.

Verret said in response to Stout, "I have trouble distinguishing between derivatives and everyday stocks and bonds," explaining that he viewed them all as bets of a kind.  He argued that derivatives do have an economically useful function by allowing parties to take advantage of their comparative advantage in handling different kinds of risk.  He was skeptical that the government would be able to accurately identify the difference between investment and mere speculation.

In an op-ed piece in the Wall Street Journal, Professor Richard Epstein highlights what he says might be "a serious constitutional challenge to rent-control and stabilization laws":

The challenge arises from James and Jeanne Harmon, who own a town house on West 76th Street in New York City. The upper floors are occupied by tenants who are entrenched under New York's rent-stabilization law, paying rents at only a fraction of the value of their units. Mr. Harmon, a most persistent man whom I have from time to time advised, is attempting to strike down this law.

The Second Circuit Court of Appeals blew off his suit in March, but Mr. Harmon has filed petition for certiorari in the Supreme Court, and, miracles of miracles, the high court has asked New York City and the tenants to respond. His story has been sympathetically featured in the New York Times, the Daily News and the New York Post. Perhaps there is still some life in the challenge to rent controls. There darn well ought to be.

In broad and emphatic language, the Fifth Amendment to the Constitution provides that "no person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." Rent control collides with the last prohibition, the "takings clause."

All versions of rent-control laws share a single dominant characteristic: They allow a tenant to remain in possession of property after the expiration of a lease at below-market rents. New York even gives the tenant a statutory right to pass on the right to occupy the premises at a controlled rent to family members who have lived with them for two or more years. The tenants in Mr. Harmon's complaint pay rent equal to about 60% of market value.

The Second Circuit recognized that the Harmons would be entitled to just compensation when their property is subject to a "permanent physical occupation." But following the Supreme Court decision in Yee v. City of Escondido (1993), the court insisted that "government regulation of the rental relationship does not constitute a physical taking." That comes as a real surprise to the Harmons when they hear footsteps each night above their bedroom.

ABC News reports that Chief Justice Roberts has defended the Supreme Court's recusal policies in his annual report on judicial ethics:

“I have complete confidence in the capability of my colleagues to determine when recusal is warranted, ” Roberts wrote in his annual report on the Federal Judiciary. “They are jurists of exceptional integrity and experience whose character and fitness have been examined through a rigorous appointment and confirmation process.”

Roberts took the unusual step of devoting the majority of  his annual  report to the issue of judicial ethics,  noting that he wanted to address issues that had “recently drawn public attention.”

The chief justice was responding to public calls for Justices Kagan and Thomas to recuse themselves from the upcoming ObamaCare case.

The Blog of Legal Times used stronger words to describe how unusual Justice Robert's report was:

Roberts' discussion of Supreme Court ethics was extraordinary, taking up all but the final two paragraphs of his 12-page report. He usually touches on several topics facing the federal judiciary in general, rather than focusing on the high court.

Related questions of judicial ethics will be discussed at FedSoc's Annual Faculty Conference this coming Friday.