Month: January 2014

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What Senate Legal Counsel’s Silence Says About Noel Canning: Not Much

Writing in Slate last week, Professor Neal Devins, a noted expert on the Constitution and Congress, had several complaints about how Congress presents its legal positions in court. Devins is unhappy that the House, because it operates on a majoritarian basis, may present legal views that are held only by the majority, but he is equally unhappy that the Senate, because it requires bipartisan consensus, may present no legal views at all. And he is particularly unhappy that in the Noel Canning recess appointments case the Supreme Court heard “only from the Senate minority and not from the Senate itself.” As Devins asks plaintively, “why would the Senate’s own lawyer sit on his hands while the minority leader purports to speak for the Senate?”

Why indeed. Let’s begin by reviewing how “the Senate’s own lawyer,” aka the Senate Legal Counsel, operates. As Devins notes, Senate Legal Counsel must, by statute, receive specific authorization before filing any brief on behalf of the Senate. Devins says that “counsel representation of the Senate requires two-thirds support of a leadership group made up of four members of the majority party and three members of the minority party,” but this is incorrect. Appearance as amicus curiae is authorized by Senate resolution, not by the Joint Leadership Group. See 2 U.S.C. § 288b(c). Nothing in the statute requires that such a resolution be bipartisan.

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Seth Barrett Tillman on the Relationship Between the Origination Clause and Recess Appointment Clause Cases

Professor Tillman sends the following thoughts:

I expect one or more, if not all of the Supreme Court’s four liberal members to affirm the DC Circuit’s decision in Noel Canning. The primary issue in Noel Canning is not whether or not the Senate was in recess – but who or what institution gets to decide whether or not the Senate was in recess. Does the Senate make that call or do the President and the courts? In other words, once the Senate has flagged in the traditional way in its traditional records whether or not it is in session or in recess, does anyone (including the President) get to look beyond or behind the record created by the Senate. The President’s position is that the President and the courts are in a better position to make the call than the Senate.

The Origination Clause challenge to the PPACA, which is now making its way through the lower courts, poses a very similar (if not precisely the same) issue. The enrolled bill enacting the PPACA expressly records that the bill originated in the House, not the Senate. The plaintiffs in the Origination Clause case take the position that the courts should ignore the joint determination of the House and Senate in regard to house of origin, in spite of the fact that the relevant constitutional actors have made a final determination using their traditional records in the traditional way. Here too, plaintiffs say the courts could and should look behind the official House-Senate-created-and-verified record.

When is the Senate in recess?

      When the Senate’s records state that the Senate was in recess.

When has a bill originated in the House?

      When the enrolled bill enacting the statute records that the bill originated in the House.

After all, with the demise of the filibuster, the scope of the President’s recess appointment power matters much less. So if the Supreme Court wants to reverse Noel Canning, then “Go ahead, make my day.”

 

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Further Reflections on the Deliberative Process Privilege in the Fast and Furious Investigation

Following up on my last post, the House Committee on Oversight and Government Reform advances several grounds for rejecting the Justice Department’s assertion of deliberative process privilege. The broadest argument is that deliberative process is a common law, not a constitutional, privilege and therefore must give way to Congress’s constitutional power of oversight. As COGR puts it, “[d]eliberative process, a common law evidentiary privilege designed to protect the confidentiality of some intra-agency deliberations in the context of adjudicatory proceedings (and FOIA), simply is not consistent with an overarching constitutional principle that requires the Congress to oversee Executive Branch agencies precisely by peering inside them.” Motion at 27. We have encountered a similar argument before in connection with whether Congress is bound to respect the attorney-client privilege, another common law privilege.

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The Fast and Furious Litigation: High Stakes for Congressional Oversight?

In its recently-filed motion for summary judgment before Judge Amy Berman Jackson, the House Committee on Oversight and Government Reform asks the court to reject the Attorney General’s claims of deliberative process privilege and to order the Justice Department to turn over documents responsive to a committee subpoena in the Fast and Furious investigation.

COGR v. Holder is a bit of a sleeper case. Although it has not received much press coverage, the outcome could have significant consequences for congressional oversight of the executive branch. A broad ruling that deliberative process and other common law privileges are inapplicable to congressional proceedings (or that the decision whether or not to accept these privileges is solely within congressional discretion) could deprive the executive branch of one of the principal tools it uses to slow down or thwart entirely congressional demands for information. On the other hand, if the courts were to endorse the executive’s right to assert such privileges, it could embolden federal agencies to resist congressional oversight, making it even more difficult than it is today for congressional committees to pry information from these agencies.

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