Category Archives: The Legislature

Powers ch 3, Short Course ch 4

When government stops working

The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional.  This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.


Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one.  And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed.  Therefore, “the Recess” cannot be equivalent to the intrasession adjournments.  Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses.  The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. USChadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional.  Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.


These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks.  And the legal analysis is well done, as expected.  However, the opinion avoids the approach of pragmatism.  And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause.  As the New York Times reports[1], this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees.  The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.


The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments.  We documented that business only occurs during some of these periods.[2]  And certainly the judiciary is managing to complete cases even though it is woefully understaffed.  Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate.  The US is going to appeal this ruling to the US Supreme Court.  Based upon precedent and jurisprudential philosophies, we would predict the US would lose.  If so, the appointments process is also DOA.  Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?


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Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action, Understanding the U.S. Supreme Court

Tort reform and the right to trial

In Missouri a political battle continues over tort reform.  With a GOP supermajority, the Republicans are examining options after the Missouri Supreme Court declared a tort reform law unconstitutional.  The state law placed a cap on non-economic damages in medical malpractice cases.  The court ruled, in a split ruling, that the right to trial by jury, as codified in the MO constitution, prevents the legislative reform effort.  As reported by the AP[1], the MO court using founders intent noted that there was a right to seek such damages when the state constitution was adopted, therefore, the legislature can’t restrict the fact-finding role of the jury.

The Missouri Supreme Court’s reasoning is applicable to the 6th Amendment right to trial by jury.  The same argument was used by the Court to strike federal mandatory sentencing guidelines and similar guidelines in the state of Washington.  As Justice Scalia wrote in Blakely v. Washington (542 US 296 2004)[2]:

“… [T]he State tries to distinguish Apprendi and Ring by pointing out that the enumerated grounds for departure in its regime are illustrative rather than exhaustive. This distinction is immaterial. Whether the judge’s authority to impose an enhanced sentence depends on finding a specified fact (as in Apprendi ), one of several specified facts (as in Ring), or any aggravating fact (as here), it remains the case that the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.

Because the State’s sentencing procedure did not comply with the Sixth Amendment, petitioner’s sentence is invalid.”

The next term the Court applied the same logic to the federal sentencing guidelines (543 US 220 2005).

For the issue of tort reform, it is more important to determine if the Missouri Supreme Court’s reasoning also applies to the right trial by jury in civil cases in the Missouri Constitution and by extension the the 7th Amendment.[3]  It stands to reason that facts determined by the judge (ground for departure) or by the legislature (an arbitrary cap on damages regardless of the facts of the case) are equivalent.  In neither case does “the jury’s verdict alone” determine the final outcome.  Therefore, whether the case is criminal or civil is irrelevant to the legal analysis.

However, it is also possible that the Court would distinguish tort reform from mandatory sentencing guidelines as the latter are dealing with the infringement of liberty (6th Amendment) rather than the ability to provide additional compensatory damages (i.e. pain and suffering) (7th Amendment).  Is this a legitimate distinction?  The founders did place the two ‘right to trials’ in two different amendments suggesting that they are not necessarily equivalent.  The doctrine of non-superfluous clauses could rear its head once again[4]; if the framers meant the right to trial for criminal cases and civil cases to be equivalent, then they would not have placed them in separate amendments. If the current Court is unwilling to make this distinction, then the hoopla and extensive lobbying efforts on both sides of this issue may be a large waste of time, effort, and money.  The 7th Amendment may make tort reform a moot issue for politicians and interest groups.

[3] The 7th Amendment issue is somewhat hypothetical.  The Court has not incorporated this amendment, and it would have to do so for the tort reform movement to be mooted in all states.  The argument still holds for federal tort reform.

[4] see Hurtado v. CA (page 70 of CLCA: Rights, Liberties, and Justice 8th edition).


Filed under Attorneys, Trials, and Punishments, The Legislature

Its Bigger than DOMA

The twitter and blogospheres are lighting up with the news coming out of the Court of Appeals for the Second Circuit.  Chief Judge Dennis Jacobs has ruled that the Defense of Marriage Act is unconstitutional.  As a conservative judge appointed by H.W. Bush, with a Clinton judge, Chester Straub[1], dissenting, the opinion turns the perceived ideological divide of the debate on its head.

Upon the first blush, more striking to me is the reasoning rather than the result.  Chief Judge Jacobs did not take the states’ rights position to void DOMA; he ruled it unconstitutional under the equal protection clause.  In doing so, he altered where the classification of homosexuality sits on the tripartite equal protection scheme.  Determining that homosexuals as a class have “A)…endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.”  If his reasoning holds, homosexuality will be equivalent to gender and receive intermediate scrutiny rather than rational basis.  Any classifications not allowed for gender would be equally suspect as applied to homosexuals.

Again, if this reasoning is accepted, the first class will be added to the semi-suspect or suspect classification in several decades.  Eschewing rational basis with teeth for this decision, Judge Jacobs opens the door for one Supreme Court decision to alter a whole slew of federal laws.  Under heightened scrutiny, all federal benefits denied to same-sex couples would likely fall, and fall quickly and easily.  The precedents from the 1970’s and decisions regarding benefits for women versus men will pave the way.  This decision is much bigger than DOMA.

[1] Judge Straub dissented essentially stating a classic restrainist rationale.  This is a question for the people and their representatives not the courts.

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Filed under Discrimination, The Judiciary, The Legislature, The Right to Privacy

If it quacks like a recess, is it a recess?

George Will’s column[1] on October 10, 2012 ridiculed and criticized Obama’s use of recess appointments.   As Charlie Savage reported in January, Obama granted recess appointments in January while the Senate was in “pro forma” session.  In a pro-forma session, most of the Senate is away from the chamber and one Senator comes back every few days to bang the gavel.  Thus, the Senate isn’t truly in recess and recess appointments are not allowed—at least this is what Senate Minority Leader McConnell and George Will seem to argue.

As Will frames the problem, it is one of senatorial or congressional power.  The Senate determines when it is and is not in session and the President is acting beyond his powers to make that determination.  The framing of the problem here is very reminiscent of Nixon v. US where the Court demurred under the political question doctrine to the Senate regarding the definition of “try” in Article 1 Section 3.  “Because the Constitution unambiguously gives the Senate the power to regulate its proceedings, Obama’s opinion that the Senate was not in session when it said it was…has no force or relevance.”[2]

The President’s view, not surprisingly, is very different.  It is not an issue of senatorial power, but of presidential power.  The Constitution provides the president with the power to fill vacancies during the recesses of Congress (Art. II Sec. II).  However, the minority keeps the Senate in “pro forma” session, but there is no quorum present for those sessions and no business is completed.[3]  The political maneuver prevents the President from filling vacancies and “taking care” of executing the laws of the nation.  Regardless of the ‘banging of the gavel’ by one member every few days, Obama’s White House Counsel suggests, the Senate is not doing business and thus preventing from fulfilling his “constitutional function”.[4]  And according to cases like Nixon v. Fitzgerald (1982) and Myers v. US (1926), the president must be able to organize the executive branch as he sees fit to fulfill his constitutional duties.

Would this be a political question or would the Court hear this case to decide if it is an issue of executive or legislative power?  For that matter, which is it–an executive or legislative powers question?  And how would the justices decide?  Based on the Chief Justice’s opinion from the Healthcare cases, he would fall on the side of President Obama.  If it acts like a tax it is a tax.  So if it acts like a recess, then it is a recess.  Or is he more likely to revert to form and interpret the constitution more strictly and defer to the Senate?

[2] ibid

[3] Will does note that twice in 2011, legislation was passed during pro forma sessions; however, again there would have been sufficient senators in the chamber to perform business.


Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action

No influence over either the sword or the purse (Federalist 78)

Both National Public Radio and the Wall Street Journal report on a District Court ruling that takes the Federal Elections Commission (FEC) to task for overstepping its powers.  In Chris Van Hollen, Jr v. FEC (Civil Action No. 11-0766(ABJ)), Judge Amy Berman Jackson says, “In other words, the agency did not purport to be responding to a direct delegation of rule-making authority or addressing an ambiguity inherent in the statutory scheme: it specifically undertook to modify existing law to fit the changed circumstances.”  It matters not that the agency promulgated its new rules to reflect a Supreme Court decision[1]; the law is clear and the agency does not have the power to alter it via bureaucratic regulation.  This opinion makes clear that the FEC violated a federal statute[2] and the rule is no longer valid.

A loss for a federal agency in federal court may not be earth-shattering news—after all there is a great deal of litigation involving challenges to various federal regulations.  The agency now has two choices.  It could appeal the loss to the Court of Appeals for the District of Columbia or it could comply with Judge Jackson’s order and rescind its rule.  And here is the tricky part, as noted by both NPR and WSJ, either action requires a majority vote (4 of 6) of the commissioners on the FEC.  By statute, the six commissioners are bipartisan.  As the FEC website notes, “The six Commissioners, no more than three of whom may represent the same political party, are appointed by the President and confirmed by the Senate.”[3]  Controversy at the FEC, notes NPR’s Peter Overby, “…often end in a 3-to-3 deadlock.”[4]

If this decision results in a stalemate, there is little the courts can do.  The District Court has issued an order, but it cannot enforce that order without the help of the commissioners.  If the commissioners do not agree or half of the commission does not agree with the decision, the order is without affect.  Similarly, if half the commission rejects the idea of an appeal, the Court of Appeals, or even the Supreme Court, cannot review the decision.  The rule will remain in effect–a decision of the judiciary notwithstanding.  This situation, among others, provides a very clear example of how the structure of the judiciary and the laws designed by Congress, at times, do make the courts a less dangerous branch.

[1] FEC v. Wisconsin Right to Life, Inc 551 US 449 (2007)

[2] The statute is the Bipartisan Campaign Reform Act (McCain-Feingold).

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Filed under The Judiciary, The Legislature, The Separation of Powers System in Action

Congressional Power and Section 5

Congressional Power

On September 21, 2011, District Court Judge John D. Bates issued a long opinion in the case of Shelby County v. Holder.  Shelby County challenged the reauthorization of Section 5 of the Voting Rights Act.  In essence, this case is a modern day South Carolina v. Katzenbach.

The issues remain the same.  Did Congress exceed its power when reauthorizing the Voting Rights Act?  Can Congress interfere with state sovereignty by demanding preclearance of new voting laws in jurisdictions that have a history of discrimination at the polls?  Despite the factual and issue similarities, however, the context surrounding this case and the others coming up through the federal court system challenging Section 5 is very different.  The Warren Court decided South Carolina v. Katzenbach in 1966.  The New Deal expanded congressional power in terms of economic regulation and the Great Society pushed congressional and federal power into larger areas of social regulation.  The Warren Court aided this effort by broadly interpreting the commerce power, the necessary and proper clause, and the amendment enforcing powers of Congress.

The current cases may ‘stand on all fours’ with Katzenbach, but the judicial context has changed dramatically.  In the shadow of Lopez and Morrison, Congress overreach is examined more carefully.  The commerce clause combined with the necessary and proper clause is no a longer blank check.  The current Roberts Court, along with its more recent predecessor, seem to be quite unwilling to use the elastic clause and commerce power to expand the reach of Congress and force the legislature to justify further extensions.  The opinion by Judge Bates suggests that this scrutiny may travel to Congress’ amendment enforcing powers as well.

In his opinion, Judge Bates takes a good deal of time discussing whether Section 5 has worked too well to allow reauthorization.  He concludes that his examination of the lengthy record shows that Congress has justified the continuation of Section 5.  “Based on the evidence contained the 15,000-page legislative record, this Court concludes that Congress did just that.”  In other words, Congress compiled a large enough record of continuing discrimination in voting to allow the broad federal powers exerted under Section 5 to continue.

Several questions come to mind in the wake of this decision.  First, if this reauthorization had occurred before the decisions in Lopez and Morrison, would a District Court judge require the depth and breadth of support from Congress before upholding the reauthorization?  Second, has Congress changed its behavior in the aftermath of Morrison to ensure that the record is sufficient to withstand the scrutiny of the new judicial federalism?  Third, when this issue is presented before to the Supreme Court, how will the justices respond?  Will they defer to the legislative record and congressional power as Judge Bates did?  Or will they ignore that record and use the same scalpel on the scope of amendment enforcing powers as they have done in other cases dealing with the commerce clause power?

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Filed under Federalism, The Legislature, Voting and Representation

Health care and the Line Item Veto

Health care and the Line Item Veto

The Fourth Circuit Court of Appeals heard two cases dealing with the ACA or Affordable  Care Act (a.k.a. Obamacare).  Most of the discussion thus far in the courts and before Congress centers on issues related to the individual mandate and its relation to the Commerce Clause.  In the discussion, the challenges to the ACA focus on questioning whether the Act is constitution because it tests the limits of congressional power and the restrictions placed on the breadth of that clause through Lopez and Morrison. 

“The appeals court relied on the Anti-Injunction Act of 1793.  Since the individual mandate has not yet been implemented, the Fourth Circuit panel noted that the Act could not be challenged.  In the earlier case of Raines, the Supreme Court held that members of Congress did not have standing to challenge the line item veto, even though the legislation was written to confer standing on legislators.  It was not until Pres. Clinton actually utilized the veto that the Court addressed the issue in Clinton v. New York.

Here, a panel of three federal judges appointed by Democratic presidents (one appointed by Clinton and two by Obama) have used the flexible doctrine of ripeness, rather than standing to dismiss a challenge to legislation.  This new twist could provide a change in the framing of the case.  Under this change of framing, the issue is not commerce or congressional power, it’s justiciability.  This change in the frame is not a clear victory for the Obama Administration, but it could work to the Administration’s advantage just the same.  The change in frame provided by these three Democratic appointees pushes the issue off the table for three years by allowing the ACA to continue in its current form. The Administration has argued that once the ACA is put into practice and folks see what it does for them, the opposition will wither away.

However, this could be more than a simple stalling tactic.  This could be evidence of strategic action by the Court of Appeals.  The use of the 1793 law and its relationship to justiciability is similar to the Burger Court’s use of justiciability[1] to limit the ability of the Supreme Court to “legislate from the bench”.  Given the clear activism of the Rehnquist and Roberts Courts on issues of congressional power, perhaps it is not surprising to see a Democratic panel using the same tactics to forestall further erosion of congressional power and avert rejection of a key Obama legislative victory.  And this type of action, once again, reveals that judges are sometimes not that different from other political actors or elected representatives.  As Richard Fenno[2] showed us so clearly, the frame and the sequence of decisions in Congress can impact the decisions of later decision-makers, and this applies whether it is a sequence of court decisions within the hierarchy of the judiciary or a vote on the a piece of legislation.

Addendum: Today (September 22, 2011 Linda Greenhouse published an op-ed piece suggesting that the Fourth Circuit’s opinion will NOT change the pathway of the case nor influence the Supreme Court.  However, her piece does give an interesting take on the federalism issue Virginia is trying to create to ensure standing.  See

Addendum #2: On September 23rd, the Court of Appeal for the District of Columbia heard a challenge to the ACA.  During the oral argument, Judge Brett Kavanaugh as reported by ABCnews “…asked a long series of questions on whether a federal law, the Anti-Injunction Act, prevented challenges to the mandate from coming to court until the penalty  actually went into effect in 2014. The questions were significant because another  appeals court in Virginia dismissed a challenge to the law citing the Anti-Injunction Act.”  Kavanaugh is a G.W. Bush appointee.   ( accessed on September 26, 2011.)

Addendum #3: The Supreme Court on Monday November 14th granted certiorari to some of the challenges to the Healthcare law.  The Court will hear over 5 hours of argument; 90 minutes of that time will be spent discussing the justiciability of the suit given the Anti-Injunction Act.  The Court will also address whether states have standing to bring suit at all.

[1] See Floyd, C. Douglas, “The Justiciability Decisions of the Burger Court,” 60 Notre Dame Law Review 862, 1985.

[2] Fenno, Richard. 1986. “Observation, Context, and Sequence.” American Political Science Review 80.

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Filed under The Judiciary, The Legislature