Apropos of my last post, a friend remarks that I have too much time on my hands. Confirming this hypothesis, please find below a list of OLC opinion and memoranda, with commentary and links, regarding recess appointments. Continue reading “OLC Opinions on Recess Appointments”
Attorney General Opinions on Recess Appointments
I know what you’re thinking. Where can I find a comprehensive guide to U.S. Attorney General opinions on recess appointments? Complete with handy summaries and links to explanatory posts?
Look no further. Like Tom Lehrer’s musical rendition of the elements, the listing below may prove useful to some of you someday, under a somewhat bizarre set of circumstances.
Continue reading “Attorney General Opinions on Recess Appointments”
Are You Ready for the Romney-Biden Administration?
The Real Clear Politics Electoral College Map currently has the Obama/Biden ticket with 210 electoral votes and the Romney/Ryan ticket with 181. There are 12 “toss up” states with 156 electoral votes. If the toss up states are given to the slate to which they are currently leaning, Obama/Biden has 294 electoral votes and Romney/Ryan 244.
However, if just three of the closest toss up states (Virginia, Iowa and Nevada) were to switch to the Romney/Ryan camp, it would result in a deadlocked electoral college, with each ticket having 269 electoral votes.
Supposing that were to actually occur, what would happen? Under the Twelfth Amendment, if no person receives a majority of the electoral vote for President, “then from the persons having received the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.” Presumably that list would consist only of President Obama and Governor Romney, although note that any one elector could expand the list by voting for someone else.
The choice of the President would be made by the 113th Congress so we do not know what the exact partisan breakdown of the newly elected House will be. However, the voting for the presidency would be by state, not by individual member, and, as this CNN article suggests, it is highly likely that the Republicans will control a majority of the state delegations, even if the Democrats win back control of the House. Thus, it seems that Governor Romney would be the heavy favorite.
If no person receives a majority of the electoral vote for Vice-President, the Twelfth Amendment provides that “then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.” We do not know who will control the Senate in the next Congress, although the Democrats appear to be the favorites at this point. Thus, the odds suggest that Vice-President Biden would be elected by the Senate.
But what happens if there is a 50-50 tie in the Senate? Could Vice-President Biden vote to break the tie in his own favor? This article says yes, but I am not so sure. One could argue, it seems to me, that the “majority of the whole number” refers to the whole number of Senators, and that the Vice-President’s vote cannot create a majority of that number. There would also be, I imagine, objections raised to the Vice-President voting in his own election. So we can consider that an open issue for the moment.
Update: Writing in the Washington Examiner, Philip Klein also suggests that Biden could cast a tie-breaking vote for himself. However, the more I think about this, the more I tend to think it is wrong. Suppose 50 Democratic Senators vote for Biden, but one or more Republican Senators did not vote, so that Ryan receives 49 or fewer votes. Biden would not be able to vote because the Senate would not be “equally divided,” but no one would be elected because the winner must receive the votes of a majority of the whole number (ie, 51).
Note the additional complication that could occur if a Senate seat were vacant as of January 3, 2013 (because, say, the election was contested and the state had not yet certified a winner). In that case there would be a question whether the “whole number” referred to by the 12th Amendment is 100 or only the total number of Senators seated and sworn (i.e., 99).
Recusal Confusion- A Final Post on the Waters Case
Now I will turn to the other major issue in the Waters case, which relates to Outside Counsel findings that (1) Representative Waters properly recused herself and her office from the OneUnited matter following the September 9, 2008 meeting, and (2) Mikael Moore, her chief of staff (and grandson), violated her instructions and improperly remained involved in the OU matter. As discussed below, both of these conclusions are problematic.
Following the September 9 meeting, Waters realized that her involvement in OneUnited Bank’s “asking for money” would present a conflict of interest or appearance of impropriety. This realization was likely triggered by (1) a telephone call from Treasury Secretary Paulson and (2) learning what had transpired at the September 9 meeting.
Continue reading “Recusal Confusion- A Final Post on the Waters Case”
The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)
Now let us turn to one of the two key issues in the Waters ethics case: whether Representative Waters violated any ethics rules when she called Treasury Secretary Paulson to arrange the September 9 meeting.
Outside Counsel’s ability to analyze this question is compromised by its unwillingness to confront the reality of what happened at the September 9 meeting, as described in my last post. Outside Counsel treats the matter as if NBA (the minority bank trade association) had approached Waters and asked her to set up a routine agency meeting on an issue that widely affected its membership. Based on that framing of the issue, Outside Counsel concludes that there was nothing inappropriate (or even questionable) about Waters’ actions.
Unfortunately, this is not what happened. Waters was not approached by NBA professional staff, or by a group of minority banks, but by two senior officials of a single bank, OneUnited (in which her husband happened to own $350,000 worth of stock). Nor was she merely asked to set up a routine meeting, but to call the Treasury Secretary personally. This is obviously not an everyday constituent service (Waters stated in her OCE interview that “you don’t use your chits for nothing, you call when there is an important issue”) and Outside Counsel does not cite any evidence that Waters had ever arranged a similar meeting for anyone else.
Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting (Part 2)”
The Waters Outside Counsel and the September 9, 2008 Treasury Meeting
To begin unpacking the report of Outside Counsel Billy Martin on the matter of Representative Maxine Waters, I will start with the meeting that took place on September 9, 2008 at the Treasury Department. This meeting is key to understanding the events that took place, and the evidence is very clear as to what transpired. Yet for some reason Outside Counsel seems more interested in obscuring than in illuminating these facts.
The September 9 meeting was memorialized in this one-page memorandum dated that same day and sent by Erika Jeffers, a House Financial Services Committee counsel, to Chairman Barney Frank.
Continue reading “The Waters Outside Counsel and the September 9, 2008 Treasury Meeting”
The Notebook- House Ethics Committee Edition
Fans of the Maxine Waters ethics case (you know who you are) may recall that one of the controversies between Blake Chisam, the former Staff Director and Chief Counsel of the Ethics Committee, and the two senior counsel leading the Waters investigation (Morgan Kim and Stacy Sovereign), involved the binders that were handed out to committee members at a November 18, 2010 meeting. According to Chisam’s late 2010 memorandum to Chairman Lofgren, providing the reasons for terminating Kim and Sovereign:
At that meeting, white binders were handed out to all the Members of the adjudicatory subcommittee, as well as the Chair’s and Ranking Member’s designated counsels. They were being passed out from a box. The Ranking Member’s counsel was helping to hand the binders out. Since the Waters staff [Kim and Sovereign] served as advocates, they could not be present at the ASC [Adjudicatory Subcommittee] discussion absent an invitation for participation by respondent. The binders were prepared by the Waters staff for the meeting. There were copies of the binder that were flagged, highlighted and contained handwritten notes and explanations when they came out of the box. The marked up copies were provided to Republican Members. Democratic Members did not receive annotated binders.
So there you have it. Selective highlighting. Discriminatory annotation. Ex parte flagging. Such serious charges require a full investigation, preferably conducted by an outside lawyer whose hourly fee exceeds the average American’s mortgage payment.
Fortunately, we now have the report of Outside Counsel Billy Martin, who has cracked the case of the great notebook caper wide open. His report states (page 21):
During the course of the Outside Counsel’s review, Outside Counsel located and reviewed what Outside Counsel believes are those very notebooks.
Eureka! (I hear you cry). Outside Counsel has located the very notebooks. The instruments of the crime. The murder weapon itself, so to speak. Surely the perpetrators of this dastardly deed will no longer go unpunished. Read on:
Outside Counsel determined that only one tab and minimal highlighting was placed on the notebooks in question. In addition, the designee to the Ranking Member testified that she had highlighted the binders to assist the Republican Members to more easily locate the documents that were going to be discussed at the meeting. As this was done by the designee to the Ranking Member, who was acting within the scope of her services and authority, and not by a staff member to assist one party, there is nothing noteworthy about the highlighted binders.
Nothing “noteworthy,” get it? Outside Counsel is Hercule Poirot and Jimmy Kimmel rolled into one. Sadly, however, our mystery seems to have gone from Murder on the Orient Express to Murder by Death.
Perhaps even sadder is the fact that absolutely nothing turned on the resolution of this controversy. Even if Kim and Sovereign had been responsible for marking up the binders, and even if the marking had been for a more nefarious purpose than helping the Republican Members more easily locate the relevant documents, it would not have changed the handling of the Waters case going forward. Martin would still have recommended the same action, namely the recusal of those committee members involved in the Waters matter in the prior Congress.
Gee, if only someone could have pointed that out in advance.
Unclear and Not All that Convincing
The long-running ethics investigation of Representative Maxine Waters neared an end today with a public hearing before the “Waters Committee” (a special version of the Ethics Committee set up specifically for the Waters matter). Chairman Goodlatte announced that the committee had received the report and recommendations of Outside Counsel Billy Martin, who advised that there was insufficient evidence to justify establishing an Investigative Subcommittee to proceed further with respect to the matter, but that Martin has made “perfectly clear” that “he believes that certain specific actions of Mikael Moore, the Chief of Staff to Representative Waters are in fact violations of the standards and rules of the House regarding conflict of interest.”
If Martin believes that Moore violated the standards and rules of the House, why didn’t he recommend an Investigative Subcommittee? Goodlatte explained: “To be clear, Outside Counsel does not believe the evidence on the record, without making any credibility determinations, would prove Mr. Moore’s knowledge of the conflict at that time by clear and convincing standards. This is principally because Mr. Moore has explicitly denied such knowledge. However, Mr. Martin has been clear about his concerns regarding Mr. Moore’s credibility throughout this process, and has recommended that the Committee make its own credibility determinations to decide if any action is appropriate.”
This isn’t all that clear to me, but what I gathered from sitting through the hearing is this: during the course of the investigation, Moore answered certain questions in a way that Martin does not find credible. Martin, however, does not believe that he can prove that these answers are false by “clear and convincing evidence,” which is the evidentiary standard applicable to imposing discipline by the House. Accordingly, Martin suggests (but does not recommend) that the committee consider issuing a letter of reproval, which is a rebuke from the committee itself that need not meet this high evidentiary standard.
This strikes me as an unusual approach. My impression is that letters of reproval are used for conduct the committee considers inappropriate, but not serious enough to warrant action by the House. They may on some occasions be motivated by the committee’s belief that there was more serious misconduct it cannot prove, but this is rather different from charging the misconduct it cannot prove in the letter of reproval itself. (Imagine a letter of reproval that says “Representative X, the committee believes that you took massive bribes from a foreign power, but we can’t prove it by clear and convincing evidence, so we are issuing this letter instead.”)
On the other hand, it seems clear (if you will pardon the expression) that Moore has brought these problems to a large extent on himself. The purpose of the hearing, which was held at Moore’s request, was to give him an opportunity to convince the committee not to issue the letter of reproval. But instead of simply providing factual testimony supporting, clarifying or amending his prior statements that are in question, Moore essentially acted as his own lawyer, making legal arguments and attacking inconsistencies in the committee’s legal and factual positions. Not surprisingly, members of the committee (other than the genial and entertaining Representative Latourette) did not react well to this approach.
Moore had a lawyer with him, but he said almost nothing. One wonders why the lawyer didn’t handle the legal argument, or at least explain to Moore the difference between being a witness and an advocate. Perhaps having counsel representing Moore and Waters jointly was not such a good idea, as the committee has often noted before.
And Now For Something Completely Different
This is not a post about Monty Python (sorry), but a couple of thoughts on the word “amendment.” Over at The Originalism Blog, Professor Michael Ramsey discusses a debate regarding the meaning of the Origination Clause of the Constitution, which provides “All Bills for raising Revenue shall originate in the House of Representatives, but the Senate may propose or concur with Amendments as on other Bills.” A new constitutional challenge to the Affordable Care Act (aka Obamacare) contends that the statute was enacted in violation of this provision because although the bill had a House Bill number, it actually originated in the Senate. As explained in this Volokh Conspiracy post by Professor Randy Barnett, Senate Majority Leader Harry Reid simply took a House bill, struck out all of the text, and replaced it with a Senate-written bill. A new lawsuit now argues that this “strike and replace” procedure does not satisfy the requirements of the Origination Clause.
Professor Jack Balkin points out that using “strike and replace” or a “shell bill” as a means of formally satisfying the requirements of the Origination Clause has been done on a number of occasions in modern history, including the 1986 Tax Reform Act. He acknowledges that the “original expected application” of the Origination Clause probably did not include using the amendment process to substitute a completely different piece of legislation (after all, the Clause would seem to serve little purpose if this is allowed), but argues that it is literally consistent with the requirements of the Clause.
To which Professor Ramsey responds:
Professor Balkin further argues that strike-and-replace is “formally consistent with Article I, section 7, because the Senate has added an amendment to a tax bill that began in the House.” I’m not sure that is right. It depends on the meaning of the word “amendment.” Is the deletion of one whole bill and the substitution of an entirely new bill properly defined (in ordinary use) as an “amendment”? The dictionary I have closest to hand says that an “amendment” is “a correction or an alteration … [a] formal revision of, addition to, or change…” In modern speech, I would think that the word “amendment” might contrast with “substitution” or “replacement.” (Of course, for original meaning what really matters is the 1787-88 definition, if it is different).
Continue reading “And Now For Something Completely Different”
Chief Justice Roberts and the Recess Appointments Clause
I really, truly intend to leave the subject of the Recess Appointments Clause, but, as I was compiling material for a final post to be entitled “The Recess Appointments Clause in One Place,” I came across this interesting and somewhat instructive episode from the Reagan Administration.
On Friday afternoon, January 18, 1985, a young lawyer in the White House Counsel’s office by the name of John Roberts telephoned Herman Marcuse, a very not young lawyer in the Office of Legal Counsel. Marcuse’s memo to the file explains that Roberts:
presented a question about the President’s power to make recess appointments to the Board of Directors of the Export Import Bank. He advised me that the terms of two of the directors would expire on January 20, 1985, and inquired whether the President could make recess appointments to the Board in the morning of January 21, 1985 before the Senate would reconvene from its recess at noon. I asked Mr. Roberts when the recess began, and he stated that it began on January 3.
Marcuse advised Roberts “that the recess period of 18 days was extremely short” and said that in light of “the close and delicate nature of the question,” he would need to consult with his OLC colleagues. Roberts explained that the matter was “rather urgent.” (To those who didn’t go to Harvard Law School, you see, this might not be self evident from a Friday afternoon phone call regarding the constitutionality of an action the President wants to take on Monday morning).
Continue reading “Chief Justice Roberts and the Recess Appointments Clause”