Category Archives: The Separation of Powers System in Action

Powers ch 5

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

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

Pre-emption or police powers? Who wins?

The Court of Appeals for the 10th Circuit issued a fairly standard ruling this week, as reported by the Denver Post.[1]  The issue in the case, as stated by Judge Ebel, “is whether Congress’s mandate that the Army destroy these chemical weapons at the Depot by 2017 preempts Colorado’s enforcement against the Depot of its regulation prohibiting storage of any hazardous waste.”[2]  Given Congress’s clear and continued attention to the destruction of hazardous chemical weapons, the federal government has occupied the area, even though Congress has also granted some authority to the states to deal with the issue as well.

According to the Denver Post, the state is considering whether to appeal this ruling to the Supreme Court.  Given the unanimous affirmance of the District Court opinion, would Colorado have any hope of a reversal by the justices?  Where does this issue fall on the scale of state’s rights versus federal power.  Clearly, there is a significant and compelling health concern here.  The storage of chemical weapons is not foolproof; neither is their destruction.  As the Oregonian reported in 2011 after the Umatilla Depot finished incinerating the last of its chemical weapons, some dating back to WWI, “[a] palpable sense of relief accompanied the final incineration. For the nearby Columbia River towns of Hermiston, Irrigon, Umatilla, Stanfield and Boardman, with a combined population of 40,000, the destruction lifts a decades-old specter of a potential accident or explosion releasing a chemical cloud.”[3]  Similar concerns affect communities across the Columbia River in Washington State.  There the Hanford site stores nuclear waste and this facility is prone to leaks.  The state of Washington is displeased with the pace and the budget allotted to the cleanup of this site.  According to the 10th Circuit’s ruling, neither Washington nor Oregon could not place any demands on the facilities to speed their processes or take greater care.

Now, in Maine v. Taylor 477 US 131 (1986), the Supreme Court allowed a state to infringe on commerce between the states if there was a significant potential harm to the state’s ecology.  However, in this case Congress had been silent.  Given the continued extensions of deadlines for destruction and cleanup in both Colorado and Washington does the state’s interest in significant environmental damage and health risks rise to a point that might tip the scales?  And is the Roberts Court the court that will readjust those scales?  The legacy of the commerce and federalism decisions from the past two decades indicates that states are provided more deference in many of their fights against federal encroachment, Raich v. Gonzalez 545 US 1 (2005), NFIB v. Sebelius No. 11-393 (2012) and Arizona v. US No. 11-182 (2012) notwithstanding.  It seems that if there were an interest that could lead to an exemption to the pre-emption doctrine, this might be it, particularly if there is some ambiguity within congressional law and a documented lack of federal progress on the health concerns of the state.

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Filed under The Commerce Power, 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

End run around Morrison?

In 2000, the Supreme Court ruled the Violence Against Women Act of 1994 unconstitutional.  The decision in United States v. Morrison (529 US 598) followed closely upon the heels of US v. Lopez (514 US 549) and curbed Congress by limiting the reach of the Commerce Clause.  The law was intended to support investigation and prosecution of violence against women; it also provided an avenue of civil redress for the victims.  In Morrison, Christy Brzonkala was using the act to gain recompense after the administration of Virginia Tech did not punish the perpetrator despite an admission of continued sexual contact after being told ‘no’ and the grand jury did not indict.   After the Court’s ruling, Brzonkala had no other legal options.


As of April 2011, there may be a way for victims of sexual violence on college campuses (or any public or private institution receiving federal funds) to gain redress.  On April 4, the Office of Civil Rights issued a ‘Dear Colleague’ letter.  The letter provided guidance to schools covered by Title IX.   In this letter, the OCR outlined that sexual violence is a form of sexual harassment.  In 1980, the Equal Employment Opportunity Commission issued guidelines regarding Title VII and established that sexual harassment is sexual discrimination.  This definition of sexual harassment has also been accepted in Title IX.[1]  Under the broader rubric of sexual discrimination, all remedies under Title IX are available against a school if the school showed deliberate indifference.


Additionally, Section 1983 (42 USC § 1983) allows victims of sexual discrimination (or any other federal statutory right) to sue for damages.  So, if the transitive property of geometry also works in law, then if sexual violence is equal to sexual harassment and sexual harassment is equal to sexual discrimination, then sexual violence is also equal to sexual discrimination and therefore all available remedies available for victims of sexual violence, in schools or workplaces covered by Title IX and Title VII of the Civil Rights laws, are in play.  Under this interpretation, Brzonkala would likely prevail against Virginia Tech under the deliberate indifference standard because Morrison admitted contact after being rebuffed and the school did not sanction him, and she would have a case under §1983.


When we discuss the separation of powers, we consider that Congress or the administration has little ability to alter constitutional rulings.  However, in this situation a broadening of a definition seems to accomplish at least part of the congressional will behind the Violence Against Women Act of 1994.

[1] See Gebser v. Lago Vista Independent School District  524 US 274 (1998) and Davis v. Monroe County Board of Education 526 US 629 (1999).

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Filed under Discrimination, The Commerce Power, The Separation of Powers System in Action