D. C. Circuit's Astounding Decision on Recess Appointments

      Senators in both parties had strong doubts when President George W. Bush chose the bombastic conservative John Bolton in 2005 to be the United States ambassador to the United Nations. After the Senate’s Republican majority failed to muster the 60 votes needed to overcome a Democratic filibuster, Bush resorted to the established practice of appointing Bolton to the post anyway while the Senate was taking a summertime recess.
      The recess appointment allowed Bolton to serve, seemingly as provided in the Constitution, until the end of the Senate’s next session — through 2006. But after Bolton again failed to win Senate confirmation, he gave up the post.
      Now, it turns out, Bolton never should have served at all, according to an astounding decision by the federal appeals court for the District of Columbia. In a decision released on Friday [Jan. 25], a three-judge panel headed by the D.C. Circuit’s chief judge, David Sentelle, all but eliminated the president’s prerogative to bypass the Senate to install nominees who cannot win confirmation.
      For extra measure, the ruling also would appear to nullify some 300 orders issued by the National Labor Relations Board (NLRB) during the past year. It also would negate Obama’s appointment of Richard Cordray to head the newly created Consumer Financial Protection Bureau after the Senate refused to act on the nomination.
      The 47-page ruling in Noel Canning v. National Labor Relations Board deals with Obama’s recess appointments to the NLRB, the federal agency charged with enforcing laws that protect union rights and collective bargaining. But the broad holding by a panel of three, Republican-appointed judicial conservatives rejects the legal interpretation that presidents of both parties have invoked hundreds of times in recent decades to keep federal positions filled in the face of Senate inaction.
      The new case arose after Obama put three choices for the NLRB into office by recess appointments on Jan. 4, 2012. Senate Republicans had blocked votes on two nominations that had been pending since August 2010 and August 2011 respectively. When a new vacancy arose on Jan. 3, leaving the five-member board without a quorum of three, Obama said he to act to allow the board to continue to function.
      Obama acted under the authority of a constitutional provision that the Framers inserted as an exception to the normal requirement that presidential nominees to judgeships and high-level executive branch offices be confirmed by the Senate. The next clause provides that 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” (Art. II, § 2, cl. 3).
      As Sentelle explains — and a report by the Congressional Research Service confirms — this clause has been interpreted at least since the 1940s to allow the president to make a recess appointment when the Senate takes a break of at least a few days. That interpretation, Sentelle says, is all wrong. The Constitution refers only to ”the” recess of the Senate, which he and his colleagues construe to mean the intersession recess between the Senate’s end-of-year adjournment and the start of the new session in the next year.
      Sentelle, joined by Judge Karen Henderson, goes a step further to say that this time-constricted power can be used to fill a position only if the vacancy arises (“shall happen”) during this foreshortened period. Judge Thomas Griffith demurred from that part of Sentelle’s opinion, saying it was unnecessary to decide the current case.
      None of the three judges paused over the more evident departure from judicial restraint in their decision. Formally, the Senate was not in recess when Obama made the appointments but was conducting so-called pro forma sessions every three days. Senate Democrats created this legal fiction during the Bush years to block him from making recess appointments. Under Obama, the Justice Department argued that the Senate was in recess anyway because it stipulated that no business was to be conducted during the pro forma sessions.
      A narrow ruling on that issue would have left the recess appointment power in limbo, as it has been for decades: one of many disputes between the president and Congress that courts have steered clear of trying to resolve. Sentelle and his colleagues, however, were on a tear. They viewed the practice that has evolved as fundamentally undermining the constitutional scheme — and their duty, they believed, was to stop it.
      White House press secretary Jay Carney aptly termed the ruling “novel and unprecedented.” He noted that it contradicted “150 years of practice by Democratic and Republican administrations.” Carney did not note the irony that none of the 41 Republican senators who joined in challenging Obama’s appointments had raised any objection to the 171 recess appointments that Bush made during his presidency. President Bill Clinton made 139; Obama has made only 32.
      The D.C. Circuit’s decision conflicts with a ruling in a similar challenge by the Eleventh Circuit in 2004 (Evans v. Stephens). The Supreme Court left that decision alone, but the justices seemingly have no choice but to take up this new ruling if the government appeals — as surely it must. With more deliberation, the justices may not be willing to upend settled practice on the basis of a grammatical distinction that may or may not have been intended by the Framers two centuries ago.

Obama Lays Down Markers on Hot-Button Legal Issues

      The weather was warmer, and the oath-taking smoother: Chief Justice Roberts used a cheat sheet both times to avoid any flubs. But the crowd was much smaller, and the drama lower-key. Still, Barack Obama provided a healthy dose of excitement on Monday [Jan. 21] with an agenda-laden inaugural address that cheered his liberal and progressive base while disconcerting the conservative opposition.
      Without providing specifics, Obama began his second term by taking on three of the hottest-button of legal issues: gun control, immigration and gay rights. LGBT groups quickly noted it was the first time the word “gay” had been used in a presidential inaugural — and the closing benediction too.
      At the same time, Obama voiced not a defense but full-throated praise for the social safety net enacted under Democratic presidents: Social Security, Medicare and Medicaid. Obama rejected the Romney-Ryan meme that those programs have turned America into a nation of unproductive “takers.” Instead, Obama said, they actually free Americans to take risks for themselves and provide for future generations without fearing lives of desperation if adversity strikes or old age takes its toll.
      Admirers and critics alike recognized the address for what it was: a bold statement by only the 16th of the 43 men to serve as president to have been elected to consecutive four-year terms. James Fallows, the liberal national correspondent for the Atlantic and former Carter speechwriter, called the speech “the most sustainedly ‘progressive’ statement Barack Obama has made in his decade on the national stage.” Less admiringly, Fox News anchor Chris Wallace sized it up as “a real call to arms for a liberal agenda.”
      The address could be seen as Obama’s answer to begrudging assessments of his administration from the political left, exemplified in opinion pieces published in the Washington Post’s Sunday edition on the official inauguration date: Jan. 20. Frederick Harris, a political scientist and director of the Institute for Research in African-American Studies at Columbia University, complained that Obama had spoken less about poverty and race than any Democratic president in a generation. On foreign affairs, Anne Marie Slaughter, an internationalist-minded professor at Princeton who served as the State Department’s director of policy planning in Obama’s first two years in office, appeared to fault him for lacking consistency or resolution in supporting democracy and human rights abroad.
      Indeed, Obama had much to apologize for in his first-term record on the three legal issues highlighted in the inaugural. Obama was all but silent on gun control and mostly dormant on immigration. True, he took on gay rights issues, winning repeal of the military’s “don’t ask, don’t tell” policy. But he did not put the White House behind the Employment Non-Discrimination Act and took three years plus some to “evolve” into supporting marriage equality for gays and lesbians.
      For the LGBT community and straight alllies, Obama went as far as one could in a speech to make up for the first term’s shortcomings. He gave gays equal billing in the advance toward equal rights by listing Stonewall, the 1969 riot used to mark the birth of the gay rights movement, along with other historic milestones: Seneca Falls (women’s suffrage) and Selma (racial justice).
      The nation’s journey to equality, Obama continued, “is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well.” Obama could not have been unaware that the nine Supreme Court justices seated on the platform to his left will take up the issue in March.
      Immigration reform advocates, who fault the administration for putting more energy into deportations than into reform, could also take encouragement from Obama’s listing of their cause as part of the progression toward equality. “Our journey is not complete,” he continued, “until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country.”
      Dealing with gun violence came next in the president’s litany. Obama called for “all our children,” including those in “the quiet lanes of Newtown,” to be kept “always safe from harm.” In contrast to the other issues, Obama had already laid out his agenda on that subject five days earlier, with a batch of executive orders to improve enforcement of existing laws and a call for Congress to revive the ban on assault weapons and to prohibit large-capacity magazines.
      Foreign policy took a back seat in Obama’s address. He declared an end to “a decade of war” and outlined second-term goals only vaguely if at all. Obama promised to “support democracy from Asia to Africa, from the Americas to the Middle East.” But democratization advocates surely noted the absence of any specifics. And human rights advocates must have noted that the first-term pledge to close Guantanamo, thwarted by Congress, went unrenewed.
      Visibly older, Obama appeared also wizened by experience. He did not talk of changing Washington’s dysfunctional ways, only of setting aside “absolutism” and stressing allegiance to “God and country” instead of “party or faction.” No speech can change how Washington works, but in his second inaugural Obama signaled a change in leadership style. The impact remains to be seen.

On Assault Weapons, Logic Collides With Politics

      Just four weeks after the deadly shooting at Sandy Hook Elementary School in Newtown, Conn., a 16-year-old student sneaked into his school in central California on Thursday [January 10], armed with a shotgun, and fired at classmates he blamed for bullying him. In contrast to the 26 students killed in Newtown, however, the casualty count at Taft Union High School was minimal: one student wounded, in critical but stable condition, and a teacher grazed by a shotgun pellet.
      Just as in Newtown, the still unidentified juvenile in California might have killed or wounded many more. Authorities in the Kern County sheriff’s office say the student had a list of other targeted schoolmates. But the student’s 12-gauge shotgun lacked the firepower of the AR-15 assault rifle with a 30-round magazine that Adam Lanza used on Dec. 14 to mow down more than two dozen six- and seven-year-olds in a matter of minutes. And a teacher talked the student into giving up his weapon — in contrast to Lanza, who never had to stop to reload.
      The logic of the two episodes seems inescapable: an effective ban on assault weapons would likely limit the number of deaths and injuries in mass shootings. So it was no surprise that among the first policymaking responses to Newtown was a vow by Sen. Dianne Feinstein, a California Democrat, to introduce legislation in the new Congress to revive the assault weapons ban that the Republican-majority Congress allowed to lapse in 2004.
      Politically, however, an assault weapons ban remains at best a long shot. The brook-no-compromise leadership of the National Rifle Association (NRA) will not hear of it. The NRA’s lock on the Republican Party will doom the proposal in the GOP-controlled House of Representatives unless lawmakers feel heat from the White House. And even after Newtown, a Gallup Poll indicates that a narrow majority of Americans — 51 percent to 43 percent — oppose reinstating the ban.
      Despite the obstacles, Vice President Joe Biden said on Sunday that the interdepartmental task force that Obama appointed him to lead after Newtown is likely to recommend a ban on assault weapons and large capacity magazines. Earlier, some insiders had reported speculation that the task force might drop the assault weapons issue in hopes of marshaling political capital for steps more likely to find bipartisan support.
      In arguing for the assault weapons ban, the administration and outside groups will have to work around booby-traps laid by the gun lobby. Opponents will argue in particular that the ban enacted by a Democratic-controlled Congress in 1994 had no discernible effect on crime or homicide rates during its decade on the books. The argument posits a criterion that the law, limited in scope and purpose, could not be expected to meet.
      To begin, the law banned only the manufacture or sale of new weapons that met the very specific definitions of an assault weapon. Unlike the broad federal ban on machine guns, the law allowed semi-automatic firearms without the requisite combination of lethal features. And the law had no effect on the estimated 1.5 million assault weapons then in circulation. For that reason alone, any effect the law might have had would necessarily have been gradual.
      In any event, the ban — included as one part of the omnibus Violent Crime Control and Law Enforcement Act — was never realistically expected to have a major impact on crime or homicide rates. Assault weapons are not the firearm of choice for day-to-day killings, stick-ups, and break-ins. In a study for the National Institute of Justice as the ban was up for renewal, University of Pennsylvania criminologists concluded that its effects on gun violence were “likely to be small at best and perhaps too small for measurement.”
      Assault weapons are commonly used, however, in assaults on police officers and in mass shooting such as those in Newtown and in the Aurora, Colorado, movie theater. For that reason, the Penn researchers concluded that reducing criminal use of assault weapons and large capacity magazines “could have non-trivial effects” on gun shot victimizations. Attacks with semiautomatics, the researchers wrote, “result in more shots fired, more persons hit, and more wounds inflicted per victim than do attacks with other firearms.”
      More research might have teased out more conclusions about the effects of the ban. But the gun lobby has managed to cut off most federal funding of research into gun violence, its causes and effects.
      Where research fails, common sense nevertheless might prevail, as indicated by the common position taken on assault weapons over the weekend by ideologically opposite columnists. Joe Nocera, a generally liberal columnist for the New York Times, described the experience of firing an assault weapon as “frightening.” From the opposite side, conservative syndicated columnist Kathleen Parker endorsed an assault weapons ban despite a lifetime of growing up with guns and defending gun rights. Forcing a shooter to reload during a rampage, Parker concluded, could limit the toll.
      If polar-opposite columnists can find common ground on the issue, one might think that Republicans and Democrats in Congress could as well. But common ground on gun issues has proved elusive for the past 40 years — and may be elusive yet again this year.

No Transparency on 'Death by Drone' Program

      The Obama administration has given repeated assurances that it is exceedingly careful in its expanded use of unmanned aircraft — drones — for the targeted killing of al Qaeda terrorists. Unnamed officials provided for-publication backgrounders with details of the process for identifying targets and giving the go-ahead for the kill. Defense Secretary Leon Panetta went on the record in a CBS News interview to say that only the president can give the final authorization for the kill.
      The administration has also gone to some lengths to assure Americans that Justice Department and Pentagon lawyers have given the most careful consideration to the delicate issue posed by targeting a U.S. citizen allied with al Qaeda for death by drone. In the most elaborate iteration, Attorney General Eric Holder in March 2012 outlined a three-part test that must be met before a U.S. citizen is targeted; the third part itself includes a check-list of four specified conditions to meet to comply with the international law of war.
      With all this ostensibly careful consideration, one would think that the administration must have a legal document that formally lays out the reasons why the law permits the government to dispense with any sort of judicial procedure or review before a targeted killing. But apparently not. At least that is the seeming conclusion from the government’s position in resisting, successfully so far, lawsuits by the American Civil Liberties Union (ACLU) and the New York Times seeking details about the drone program, including the legal rationale relied on by the administration in carrying it out.
      Between them, the ACLU and the Times have been invoking the federal Freedom of Information Act (FOIA) for nearly three years to force the administration to open up about the drone program. To its credit, the administration has gradually become more forthcoming about the program in speeches, interviews, and not-for-attribution backgrounders. In court, however, government lawyers have pulled out all stops to avoid being forced to turn over the actual documents about the program, including any formal legal opinions to justify it.
      In a ruling last week [Jan. 2], a federal judge in New York City reluctantly sided with the government in rejecting the FOIA requests. In a 70-page opinion, U.S. District Court Judge Colleen McMahon acknowledged that “more fulsome disclosure” of information about the program “would allow for intelligent discussion and assessment of a tactic that (like torture before it) remains hotly debated.” But she said that Freedom of Information Act “precedents” left her no choice but to find the requested materials covered by the act’s broadly written exemptions covering national security (exemption 1), classified documents (exemption 3) and internal legal deliberations (exemption 5).
      Admittedly, the ACLU and the Times had an uphill fight in trying to get around the first two of those exemptions covering national security and classified documents. Formal legal opinions, however, are generally not exempt under the FOIA. And the administration eventually acknowledged the existence of a joint memorandum by the Department of Defense and the Justice Department’s Office of Legal Counsel (OLC) addressing the legal issue.
      In seeking to keep the memo under wraps, the government argued first that it included information about intelligence sources and methods exempted under the FOIA. As McMahon noted, however, the document could have been “redacted” — that is, edited – to black out the properly classified information and the rest of the document released. But the government further argued that the memo was not a formal opinion, but was the kind of “confidential, pre-decisional, and deliberative” legal advice covered by exemption 5.
      Confronted with that position, McMahon said she could not order the memo disclosed. There was “no evidence,” McMahon wrote, that the government had specifically relied on the arguments made in the memo or that it had been “expressly adopted” or “incorporated by reference.”
      McMahon was apt in analogizing the issue to the previous dispute over the Bush administration’s use of torture or torture-like tactics in interrogating al Qaeda members. Justice Department lawyers famously green-lighted the use of so-called “enhanced interrogation techniques,” including waterboarding, in legal memos that came to light only after the fact — indeed, only after a new head of OLC had repudiated them. Exposed to the light of day, the legal opinions were denounced by a range of legal experts and observers as poorly reasoned.
      The Obama administration’s legal justifications for the drone program might or might not survive close scrutiny, but for now they are locked behind a Freedom of Information Act exemption. The ACLU and the Times both say they will appeal McMahon’s ruling. The ACLU is asking not only for the legal memoranda, but also for the information the government used to target Anwar al-Awlaki, the U.S.-born Muslim cleric killed by a drone-fired missile in Yemen in September 2011. McMahon described the ACLU’s laundry-basket FOIA request as “facially overbroad.” But she clearly wanted to grant the Times’s narrower request except for the narrow reading that courts have given to the FOIA in the past.
      In taking office, Obama pledged his administration to greater transparency, but freedom-of-information advocates such as the Sunlight Foundation say the administration’s record has been disappointing. The administration is evidently glad to take credit for using drones to wipe out al Qaeda leaders, but unwilling to allow close scrutiny of the legal reasoning that supposedly justifies the way the program is being carried out.