Author: Michael Stern

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Congress’s Responsibilty for the Constitutionality of Healthcare Legislation

           When questions arise about the constitutionality of a proposed piece of legislation, such the healthcare legislation currently pending in Congress, Members of Congress frequently deflect them by saying that any constitutional issues will be dealt with by the courts at a later time.  Senator McCaskill, for example, responded to a question about the constitutionality of the individual mandate by offering assurances “that if anything in this bill is unconstitutional, the Supreme Court will weigh in.”   Senator Conrad similarly suggested that the issue was a technical legal one outside of his responsibility.  

            This approach, however, is misguided for several reasons.  First, Members of Congress have a responsibility, independent of the judiciary, to uphold the Constitution.   They take an oath to uphold the Constitution, and it is difficult to see how this oath is consistent with passing legislation without regard to its constitutionality.  

As Donald Morgan explains in Congress and the Constitution (1966), Congress traditionally has taken quite seriously its obligation to consider constitutional questions.  What Morgan calls the “judicial monopoly theory” (the idea that only the courts have the power and responsibility to address constitutional issues) was unknown to early Congresses and constitutional thinkers.  Even those who argued for judicial primacy in constitutional interpretation acknowledged Congress’s role.  Justice Story, for example, stated that “if a proposition be before Congress, every member of the legislative body is bound to examine and decide for himself whether the bill or resolution is within the constitutional reach of the legislative powers confided to Congress.” 

Second, Congress cannot rely on the courts to determine all constitutional issues.  Some such issues (e.g., impeachment, determining the rules of congressional proceedings) are recognized to be “political questions” exclusively committed to the decision of the political branches.  Even ordinary constitutional issues, moreover, can only be resolved by the courts if they arise in a justiciable case or controversy.  For example, it is not clear that anyone has standing to challenge certain aspects of the healthcare reform legislation, such as the preference given to Nebraska with regard to Medicare reimbursement.  And even when such challenges can be brought, it is likely to be many years before they are finally resolved. 

Finally, and perhaps most importantly purposes of the healthcare bill, it is a mistake to equate a measure’s ability to survive judicial review with its constitutionality.  I refer here not to the possibility that the courts may be wrong, but to the nature of the review that the courts undertake.  As Professor Volokh points out, when the issue is whether a law exceeds Congress’s enumerated powers, the courts don’t decide the issue de novo.  Instead, they defer to Congress’s own judgment on the issue, overturning that judgment only in circumstances where it would be unreasonable for Congress to reach the conclusion that the measure in question falls within a particular enumerated power. 

Thus, if Members of Congress leave the constitutionality of healthcare reform to the courts, the question of constitutionality becomes largely circular.  Members will defer to the judgment of the courts, and the courts will defer to the (supposed) judgment of Congress.  Every exercise of power becomes constitutional, without anyone ever taking responsibility for explaining why.    

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Spin City

           There was a minor flap last week when the White House claimed that this Congressional Research Service report (entitled “Lobbying the Executive Branch: Current Practices and Options for Change”) vindicated the administration’s lobbying policies.  The White House claim was reported rather uncritically by the media, including Kenneth Vogel of Politico.  In an article entitled “President Obama’s lobbying reforms praised by Congressional Research Service,” Vogel wrote that “congressional researchers concluded that the administration’s crackdown has ‘already changed the relationship between lobbyists and covered executive branch officials’ and suggested that Congress might consider enacting similar restrictions on itself.”  On the White House blog, meanwhile, Norm Eisen wrote “[w]e’re pleased that CRS recognized . . . the President’s historic restrictions on lobbying are having a significant impact in making sure that the government serves the public interest and not special interests.” 

            Anyone who has read a lot of CRS reports would understand that how unlikely it is that CRS would make an unqualified judgment about anything, much less express an amorphous and subjective opinion such as that implied by Politico and the White House.  In fact, if one reads the CRS report, it is apparent that CRS makes no judgments about the wisdom, efficacy or significance of the Obama administration’s lobbying policies.  It simply identifies the various policies that have been adopted, summarizes critiques of those policies, and notes several potential options for additional regulation.  The interpretation adopted by the White House and Politico is based solely on part of the first sentence of the following paragraph, which appears at the top of page 13 in the report: 

Creation of restrictions on federally registered lobbyists’ access to executive branch departments and agencies has already changed the relationship between lobbyists and covered executive branch officials. If desired, there are additional options which might further clarify lobbyists’ relationships with executive branch officials. These options each have advantages and disadvantages for the future relationships between lobbyists and governmental decision-makers.  CRS takes no position on any of the options identified in this report. 

            It seems clear that the phrase “changed the relationship” is part of an awkwardly worded transitional sentence and signifies nothing more than the undisputed fact that the administration has imposed certain new restrictions and requirements on lobbyists and lobbying communications with the executive branch.  Nowhere in the report is there any attempt by CRS to evaluate the real world impact of these changes or to draw any conclusions regarding their effectiveness.  In other words, CRS is observing that reforms have been made, not “praising” them.  

            One can perhaps understand Norm Eisen’s attempt to spin the CRS report in the most favorable light to the administration.  But what’s Kenneth Vogel’s excuse? 

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House Statement of Disbursements Available Online

 

           The House of Representatives Quarterly Statement of Disbursements is available online today (hat tip: Sunlight Foundation).  This report has been published in hard copy for many years, but this is the first time that it has been made available over the internet, pursuant to a June 3, 2009 directive from Speaker Pelosi. 

            As an example of how this report might be mined for interesting information, I searched the document for the term “town hall.”  This search revealed that 41 Members had submitted reimbursement requests described as being for “town hall” events during the July 1 to September 30 quarter.  Since earlier Statements are not available online (and I am not planning to go through these multivolume sets manually), I can’t say how that compares to prior years.  The party breakdown is noteworthy, though.  Of the 41 Members, 39 were Republicans and 2 were Democrats.   

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Who Would You Have to Kill to Get an Unqualified Admonition?

           The Senate Ethics Committee has issued a letter of “qualified admonition” to Senator Roland Burris regarding sworn and unsworn statements made by the Senator regarding the circumstances of his appointment to the Senate seat vacated by Barack Obama.  Burris, of course, was appointed by then-Governor Rod Blagojevich, who subsequently was impeached and indicted for misconduct that included attempting to sell that same Senate seat.  The Committee informs Senator Burris that “you should have known that you were providing incorrect, inconsistent, misleading, or incomplete information to the public, the Senate, and those conducting legitimate inquiries into your appointment to the Senate.” 

            The Committee points in particular to Burris’s January 5, 2009 affidavit, in which he averred that he was contacted on December 26, 2008 by Sam Adams, Jr., an attorney employed by Governor Blagojevich (and a fine beer), who asked if he would be interested in accepting the Governor’s appointment to the Senate seat.  In the final paragraph of the affidavit, Burris states: “Prior to the December 26, 2008 telephone call from Mr. Adams, Jr., there was not any contact between myself or any of my representatives with Governor Blagojevich or any of his representatives regarding my appointment to the United States Senate.”  (emphasis added) 

            Unfortunately for Burris, this statement is difficult to reconcile with a conversation that he had with Rob Blagojevich, the Governor’s brother, on November 13, 2008.  Even more unfortunately for him, that conversation was tape recorded by federal investigators, and the transcript was produced to the Senate Ethics Committee.  

            The conversation was initiated by Blagojevich, who called Burris to seek his help in raising money for his brother’s campaign.  Burris, however, quickly brought up the subject of the Senate seat, telling Blagojevich “I’m very much interested in, in trying to replace Obama.”  The remainder of the conversation continues in that vein, as Blagojevich and Burris strategize as to how Burris could raise funds for the Governor without creating a public trail which might make it more difficult for Burris to be appointed.  As Burris summarized toward the end of the conversation: “number one, I, I wanna help Rod.  Number two, I also wanna, you know hope I get a consideration to get that appointment.” 

            Burris’s affidavit, therefore, would seem to be clearly false.  Moreover, the November 13 conversation was highly relevant to the inquiries being conducted with regard to Burris’s Senate appointment by Governor Blagojevich, who, as the Committee notes, “had recently been arrested and charged with corruptly using his authority to make a Senate appointment in exchange for campaign contributions and other benefits.”  As the Committee rather mildly puts it, “you should have known that any conversations you had about your desire to seek the Senate seat and about any possible fundraising for the Governor were critical to these inquiries.” 

            You think?   

            Furthermore, Burris had plenty of further opportunities to disclose the November 13 conversation prior to the time that he was seated by the Senate.  The Committee notes that “despite repeated and specific questioning, you did not disclose [the November conversation]” to the Illinois House Impeachment Committee at a January 8, 2009 hearing.  Similarly, Burris failed to disclose this conversation during meetings with Senate leaders and the press during this time period   

            Finally, the Committee notes that Burris has given “multiple and at times contradictory explanations for failing to disclose all your contacts with the Governor’s associates, which individually and collectively gave the appearance that you were being less than candid.” 

            To put the matter plainly, Burris repeatedly failed to disclose his conversation with Rob Blagojevich, despite knowing that this conversation was critical to both the Illinois legislature and U.S. Senate on matters of the utmost importance to the public interest (the impeachment of a Governor and the seating of a U.S. Senator, respectively).  Moreover, his conflicting and unpersuasive explanations of this failure leave little alternative but to conclude that it was intentional. 

            In deciding nonetheless to give Burris the lightest possible punishment (a “qualified” admonition), the Committee apparently gave great weight to the fact the Sangamon County State’s Attorney found “no actionable violations of law.”  This, however, would seem a slender reed to support the Committee’s action (or inaction).  The state prosecutor decided that there was insufficient evidence to charge Burris with perjury.  It appears that this decision was based largely on the fact that in testifying before the Illinois Impeachment Committee, Burris gave incomplete, but not false, answers to broad questions.  With regard to the January 5 affidavit, the state prosecutor apparently accepted Burris’s explanation that his statement was meant only to refer to discussions regarding his actual appointment, not merely to his interest in getting an appointment.  Although this explanation might be sufficient to avoid a perjury charge, it is also one that the Committee itself found wanting.   

            In the context of intentional withholding of critical information from the Senate about a matter of such importance, one would think that at least a serious slap on the wrist would be warranted.   

But apparently one would be mistaken.

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The Post’s Spin on Leaked Ethics Report

            When the Washington Post published an expose a few weeks ago regarding a House Ethics Committee report that was inadvertently released by a committee employee, I wondered why the Post did not put the actual report on its website so that readers could understand the full context of the information the Post was reporting.   According to this interview with one of the Post reporters, the explanation is as follows: 

“[T]he Post reporters and editors are handling this document and its contents with the utmost care. We recognize, and have made clear in our discussions with the ethics committee leaders and the implicated lawmakers, that these investigations are typically handled in a significant amount of secrecy, at least until action is taken or deadlines for action by the committee are triggered. We want to be sure we do our share of fairly and evenly reporting deeper into the allegations and contact the lawmakers in question before publishing information about allegations in the document we obtained.” 

            In other words, the Post claims it is withholding information from its readers in order to protect the confidentiality of the ethics process in the House.     

            This is just not credible.  If the Post were concerned about the confidentiality of the ethics process, it would not have reported broadly on the contents of the leaked report.  It is difficult to imagine that publishing the full report would have any greater impact on the confidentiality of the process than the reporting that the Post has done.  If there were particular passages of the report that were particularly sensitive, they could have been redacted before the document was made public. 

            It is far more likely that the Post’s refusal to make the document public is motivated by a desire to protect its “scoop,” not by the public interest.  This is unfortunate because publishing the actual document would be more useful to its readers, and might even prompt those readers to provide valuable feedback that could advance the public’s understanding of the issues.

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Conflict over Conflicts

           The newly formed Office of Congressional Ethics has run into a bit of trouble as a result of one of the first matters that it has referred to House Ethics Committee.  In a lengthy report, the Ethics Committee rejected and sharply criticized OCE’s findings with regard to an investigation of Representative Sam Graves.  OCE found “substantial reason to believe” that Representative Graves created the “appearance of a conflict of interest” when he and his staff invited a witness to testify at a 2009 Small Business Committee hearing on renewable fuels.  This appearance was allegedly created by the fact that the witness, Brooks Hurst, owned shares of two biofuel companies in which Graves’ wife was also an investor. 

            In evaluating whether Graves had an apparent conflict of interest, it is important to first consider whether Graves’ financial interest in the biofuel industry created an impermissible conflict of interest (actual or apparent) with respect to his legislative activity in the area of renewable fuels.  If so, Graves would be required either to divest himself of any financial interest in the two biofuel companies or to refrain from taking any legislative action that might affect (or be reasonably be perceived as affecting) his financial interest.  Arguably, participating in a Small Business Committee hearing on renewable fuels could constitute such an action. 

            One school of thought would hold that Graves’ financial interest does not create a conflict at all, but rather serves to align his interests with those of the constituents in his rural farming district, who tend to benefit from federal policies that promote biofuels.  Andrew Stark, in his book Conflict of Interest in American Public Life (2000), terms this the “Kerr argument,” so-called after Senator Robert Kerr, who said in 1962: “I represent the oil business in Oklahoma, because it is Oklahoma’s second-largest business and because I am in the oil business . . .  They don’t want to send a man here who has no community of interest with them, because he wouldn’t be worth a plugged nickel to them.” 

            One can criticize the Kerr argument, as Stark does, and it would be going too far to say that Kerr’s position represents the official policy of the U.S. Congress.   Nevertheless, it is a fact that neither the House nor the Senate has sought to prohibit Members from holding financial interests that may be affected by their legislative activities.  In its report on the Graves matter, the Ethics Committee quotes the House Ethics Manual on this point, observing that “’[n]o federal statute, regulation or rule of the House absolutely prohibits a Member or House employee from holding assets that might conflict with  or influence the performance of official duties.’” 

            Instead, Members of Congress are required, by statute and rule, to disclose their financial holdings so that the public can judge whether their actions may have been influenced by these interests.  As the Ethics Committee notes, Graves fully and accurately complied with this requirement.  It is also worth observing that the ownership interest in question amounted to only 0.18% and 0.125% of the two companies respectively, and were valued at a total of between $16,000 and $65,000.  (Hurst’s holdings in the same companies represented about a 0.5% and 0.33% interest respectively). 

The only other relevant provision is House Rule 3, clause 1, which provides “[e]very Member . . . shall vote on each question put, unless having a direct or pecuniary interest in the event of such question.”  However, this provision could not prohibit Graves’ participation in the Small Business Committee hearing because (1) it applies only to actual votes on legislation, not to committee hearings; (2) as interpreted by House precedent, this provision would not apply to the kind of legislation that was discussed in the Small Business Committee hearing because such legislation would have only affected Graves’ financial interests as a member of a class; and (3) the House rule does not actually prohibit anything, but merely leaves it up to the Member to determine whether he or she has a “direct or pecuniary interest” that makes it appropriate to refrain from voting. 

OCE, therefore, did not find that Graves’ financial interest created a conflict with regard to participating in the hearing.  Instead, it found substantial reason to believe that Graves’ financial interest created (the appearance of) a conflict with regard to his role in inviting Hurst to be a hearing witness, given that Hurst had a financial interest in the same two biofuel companies. 

OCE’s position, however, suffers from certain difficulties.  First, OCE does not explain how Hurst’s testimony or participation in the hearing could possibly have advanced Graves’ financial interests, other than the fact that Hurst recommended in the course of his testimony that Congress take certain legislative actions, such as extending the federal Biodiesel Blender’s Credit, which would benefit the biofuel industry.  But these actions, which Hurst advanced as a representative of the Missouri Soybean Association, would benefit the industry as a whole, not just the two biofuel companies in question.  If there would be no impermissible conflict of interest in Graves himself sponsoring, supporting or voting for such legislation, it is difficult to see how Hurst’s testimony could possibly create one. 

Second, it is not obvious why the fact that Graves and Hurst happened to share a financial interest in the same companies has any bearing on the conflict issue.  Why would the issue be any different if Hurst had happened to own shares in a different biofuel company that would benefit from the same legislation?  Or if Hurst had no personal investment at all, but had taken the same position as a representative of the industry?  If there is nothing improper in Graves inviting a witness who supported the same legislative positions as Hurst (and OCE does not suggest otherwise), it is hard to see why it would be improper to invite Hurst. 

Finally, the OCE’s position is further undermined by the fact that there was no realistic possibility that Hurst’s testimony would actually benefit Graves or anyone else.  As the Ethics Committee noted, the Small Business Committee’s hearing was purely informational, and the committee itself had no jurisdiction over the legislation discussed.  Thus, the potential benefit to Graves would seem to be not only indirect, but extremely remote as well. 

           

All in all, I have to agree with the Ethics Committee’s view that inviting Hurst to testify did not create any impermissible conflict, or appearance of a conflict, under the applicable House rules.

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New York 23rd Looking to Extend its Fifteen Minutes of Fame

           According to The Hill newspaper, the special election race in New York’s 23rd congressional district is not quite over, as there remains a (remote) possibility that Conservative Party candidate Doug Hoffman could wind up with more votes than Democrat Bill Owens, who was seated in the House last week.   

            A state election official “said the state sent a letter to the House Clerk last week explaining that no winner had been determined in the 23rd district, and therefore the state had not certified the election. But the letter noted that Owens still led by about 3,000 votes, and that the special election was not contested — two factors that legally allowed Speaker Nancy Pelosi (D-Calif.) to swear in Owens on Friday.” 

            According to 1 Deschler’s Precedents § 3.5, “Where certificates of election have not been received, the House may by unanimous consent authorize the Speaker to administer the oath to Members-elect whose elections are not contested.”  Thus, while the Republicans presumably could have objected to Owens being sworn in, their failure to do so meant that he could be seated prior to the receipt of a certificate of election. 

            What happens if the final count should show Hoffman ahead of Owens?  The state election official says that “all ballots will be counted, and if the result changes, Owens will have to be removed.”  But I am not sure that the matter is so simple.  If Hoffman were to be certified as the winner, the House would still have to take action to remove Owens and seat Hoffman.  Absent unanimous consent to such action, the matter would presumably be referred to the Committee on House Administration to conduct an election contest, which could drag on for months. 

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Is the Pay Czar Unconstitutional?

           Professor (and former judge) Michael McConnell has written this Wall Street Journal op-ed arguing that Kenneth Feinberg, the “pay czar,” is an officer of the United States and therefore subject to the Appointments Clause.   Under the Appointments Clause, all officers must be appointed by the President, with the advice and consent of the Senate, unless Congress has by law provided for a different method of appointment.  Since Congress has not done so, McConnell contends, Feinberg was unconstitutionally appointed and his decisions regarding executive compensation were without legal authority. 

            This appears to be a very powerful argument.  The authority to cap executive compensation, which was given to the Secretary of the Treasury as part of the TARP legislation, would clearly seem to be the type of significant legal authority that can only be exercised by an officer of the United States.  As I have noted before, officers of the United States have included ministerial officials with little, if any, discretionary authority (eg, deputy postmasters or deputy clerks of court),  It is hard to imagine that the authority to limit private sector compensation, even for a limited group of individuals, would not qualify. 

            I can think of only two plausible arguments that the administration might make in response.  First, it might claim that Feinberg has no authority to act on his own and merely makes recommendations to the Secretary of the Treasury.  However, according to McConnell, Feinberg actually signed orders on executive compensation.  If this be true, it would be very hard to argue that his role is purely advisory, even if his orders were subject to review by the Secretary of the Treasury. 

            Second, the administration might argue that Feinberg’s functions are not “continuing” because they only relate to TARP, which is a temporary program.  The Office of Legal Counsel has opined that an officer of the United States must exercise “continuing” legal authority so that being sent on a special diplomatic mission, for example, is not enough to make one an officer.  I tend to doubt that Feinberg’s role is of such a limited and temporary nature so that he would not qualify as an officer, but there is no bright line test that would enable one to make that judgment with complete confidence. 

            This could be the subject of some interesting litigation.    

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Could the Nobel Peace Prize Violate the Illegal Gratuities Statute?

           At the Volokh Conspiracy, David Kopel discusses whether President Obama needs congressional consent to accept the Nobel Peace Prize, including a check in the amount of more than $1 million (which Obama has said will be donated to charity).  Kopel concludes that the matter is governed by the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342, which provides the congressional consent needed to accept a “present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State” under Article I, § 9, cl. 8 of the Constitution.  Under Kopel’s analysis, Obama may accept the prize without further congressional consent, but only if he signs the check over the government, as the statute requires. 

            Kopel’s analysis seems correct, but only if one assumes that the Nobel Peace Prize Committee constitutes a “foreign government” as defined by the Act.  This is by no means obvious because, while the members of the committee are appointed by the Norwegian Parliament, their acts in awarding the prize would seem to be essentially private in nature and are conducted on behalf of the Alfred Nobel Foundation, rather than on behalf of the Norwegian Government.   

            If, in fact, the Nobel Peace Prize Committee is not a foreign government, however, the legal situation gets even messier.  18 U.S.C. § 201 (c), generally known as the illegal gratuities statute, provides that it is a crime if someone: 

            (1) otherwise than as provided by law for the proper discharge of official duty—  

(A) directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or  

(B) being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person. 

It might be argued that the prize was not given to the President “for or because of any official act,” but only because of the general pro-peace tone of his campaign and/or presidency. This would be a factual question, but I believe that members of the committee have suggested that the prize was given, in part, on account of particular acts taken by Obama as president, including steps to de-nuclearize Europe. In any event, for purposes of this analysis, I will assume that there is evidence to show that the prize was given, in part, for or because of an official act.

This may not be a legal problem for Obama, however, because federal regulations issued by the Office of Government Ethics provide for a number of circumstances under which a federal employee may accept a gift and explicitly declare that such a gift “shall not constitute an illegal gratuity otherwise prohibited by 18 U.S.C. 201(c)(1)(B).”

There are at least two regulatory exceptions that would seem to help Obama here. First, 5 C.F.R. § 2635.204 (d) permits employees to accept gifts “if such gifts are a bona fide award or incident to a bona fide award that is given for meritorious public service or achievement by a person who does not have interests that may be substantially affected by the performance or nonperformance of the employee’s official duties or by an association or other organization the majority of whose members do not have such interests.” If the award is worth more than $200, acceptance requires written authorization from an agency ethics official. The regulations then give the following example: “Based on a determination by an agency ethics official that the prize meets the criteria set for this in § 2635.204 (d)(1), an employee of the National Institutes of Health may accept the Nobel Prize for Medicine, including the cash award which accompanies the prize, even though the prize was conferred on the basis of laboratory work performed at NIH.”

This provision would seem to authorize Obama’s acceptance of the prize, assuming that he obtains the required written authorization. I suppose one could argue, as Kopel does, that the Nobel Peace Prize Committee has an “interest” in influencing U.S. foreign policy, but I doubt that this is the type of interest referred to by the regulation.

Moreover, a second regulatory exception, 5 C.F.R. § 2635.204 (j), provides that “[b]ecause of considerations relating to the conduct of their offices, including those of protocol and etiquette, the President or Vice President may accept any gift on his own behalf or on behalf of any family member, provided that such acceptance does § 2635.202 (c)(1) or (2), 18 U.S.C. 201 (b) or 201 (c) (3), or the Constitution of the United States.” Since the illegal gratuities provision is not mentioned in paragraph (j), this paragraph evidently purports to exempt the President and Vice President from the illegal gratuities statute altogether.

Of course, one might wonder where the Office of Government Ethics got the authority to exempt anyone from a federal criminal law. The Supreme Court has wondered the same thing. See United States v. Sun-Diamond Growers, 526 U.S. 398 (1999) (“We are unaware of any law empowering OGE to decriminalize acts prohibited by Title 18 of the United States Code.”) Nevertheless, these exceptions are recognized by the executive branch and for all practical purposes qualify the prohibitions of the illegal gratuities statute.

It is worth noting, however, that the regulations only purport to exempt certain gifts from the prohibition against receipt of illegal gratuities under 18 U.S.C. § 201(c)(1)(B). They do not address the giving of illegal gratuities under 18 U.S.C. § 201(c)(1)(A). Thus, one could still argue that the Nobel Peace Prize Committee, by offering Obama a gift for or because of an official act, violated the illegal gratuities statute.