Point of Order - A Discussion of Congressional Legal Issues

February 6, 2017

Congressional Staff Work on Transition Matters

At legbranch.com, the website of the Legislative Branch Capacity Working Group, I have a post regarding the House Judiciary Committee staffers who allegedly worked on the Trump travel/immigration executive order during the transition.

January 31, 2017

How the Hamilton Electors Show that an Article V Convention Cannot Run Away

Back in 2011, I wrote a law review article discussing concerns that a limited convention for proposing amendments called under Article V could propose one or more amendments outside the scope of the application upon which it was called. Among the many safeguards against such a “runaway convention,” I pointed to the ability of a state legislature to restrict the authority of its delegates to an Article V convention, to require from its delegates an oath or pledge to restrict their deliberations to the subject of the application, and to provide for disqualification of and/or sanctions against any delegate who violates these restrictions. See Michael L. Stern, Reopening the Constitutional Road to Reform: Toward a Safeguarded Article V Convention, 78 Tenn. L. Rev. 765, 786 (Spring 2011). Since that time, at least seven states have passed such “delegate limitation acts” or “faithless delegate” laws. See David F. Guldenschuh, The Article V Movement: A Comprehensive Assessment to Date and Suggested Approach for State Legislators and Advocacy Groups Moving Forward 19 & n. 77 (Nov. 2015).

The concept of DLAs (as I shall refer to them collectively) was in part based on analogous laws that had been passed or proposed to bind presidential electors. See Stern, 78 Tenn. L. Rev. at 786 n. 111. For example, the Uniform Faithful Presidential Electors Act (UFPEA), completed by the Uniform Law Commission in 2010, “provides a statutory remedy in the event a state presidential elector fails to vote in accordance with the voters of his or her state.” The UFPEA provides “a state-administered pledge of faithfulness, with any attempt by an elector to submit a vote in violation of that pledge, effectively constituting resignation from the office of elector.” While only a handful of states have passed the UFPEA thus far, a total of 30 states plus the District of Columbia have some sort of law purporting to bind presidential electors to vote for their state’s popular vote winner.

The constitutionality of the UFPEA and other “faithless elector” laws has been debated and litigated over the past several months. Following the November 8, 2016 presidential election, a concerted effort was made by the “Hamilton electors” to argue that (a) presidential electors are free, as a constitutional matter, to vote in accordance with their own judgment and conscience; and (b) whatever norms might ordinarily compel electors to vote in accordance with the popular vote in their state were overcome by the unique and extraordinary facts of this election. These facts fell into three categories: (1) the failure of Donald Trump to win a majority or plurality of the national popular vote; (2) facts which allegedly showed Trump’s unfitness for office (some of which cannot be mentioned on this family-friendly blog); and (3) facts which allegedly showed foreign interference in the election.

As best you can, clear your mind of any passion these arguments may incite in it. Our objective here is not to pass judgment on President Trump, the Hamilton electors, or even the merits of their respective legal arguments per se. Instead, it is to see what the effort to secure an unbound electoral college, a “runaway college” if you will, tells us about the practical, real-world prospects for an analogous effort with regard to an Article V convention.

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January 6, 2017January 6, 2017

Scalia, Trump, Tillman and the Foreign Emoluments Clause

Apropos of the debate whether the president holds “any Office of Profit or Trust under [the United States]” within the meaning of the Foreign Emoluments Clause (art. I, § 9, cl. 8), reference has been made to a December 1974 memorandum written by Antonin Scalia, then the Assistant Attorney General for the Office of Legal Counsel. See Memorandum to the Honorable Kenneth A. Lazarus, Assoc. Counsel to the President, re: “Applicability of 3 C.F.R. Part 100 to the President and Vice President” (Dec. 19. 1974). Professors Seth Barrett Tillman and Josh Blackman have suggested that this memorandum is relevant to the debate, presumably in providing support for Tillman’s position that the president is not covered by the Foreign Emoluments Clause. Indeed, Tillman here cites the 1974 memorandum as contrary authority to a subsequent OLC opinion that expressly acknowledges that the Clause applies to the president.

For those unfamiliar with the background, Professor Tillman has long maintained that the president (and vice president) do not hold (1) “any Office of honor, Trust or Profit under the United States” within the meaning of the Disqualification Clause (art. I, § 3, cl. 7); (2) “any Office under the United States” within the meaning of the Incompatibility Clause (art. I, § 6, cl. 2); (3) “an Office of Trust or Profit under the United States” within the meaning of the Elector Incompatibility Clause (art. II, § 1, cl. 2); and, of course, (4) “any Office of Profit or Trust under [the United States]” within the meaning of the aforementioned Foreign Emoluments Clause.

It is fair to say that these claims were greeted with a large degree of skepticism by this blog. See, e.g., here (Disqualification Clause); here (Incompatibility Clause); and here (Foreign Emoluments Clause). At the time, however, the stakes were low with regard to a debate of primarily academic interest.

The stakes are higher now. The president-elect has received some criticism for refusing to divest himself of a large portfolio of international business interests. Among other things, this situation is said to create a high probability or virtual certainty (depending on whom you ask) that Mr. Trump will be in violation of the Foreign Emoluments Clause once he assumes the presidency. This thesis, of course, assumes the Clause applies to the president, and therefore it becomes a matter of some importance to know whether there is anything to Professor Tillman’s position.

Continue reading “Scalia, Trump, Tillman and the Foreign Emoluments Clause”

December 21, 2016December 22, 2016

Going Rogatory: How a Congressional Committee Might Subpoena Julian Assange

Back in 2013, we discussed the possibility that a congressional committee could subpoena Edward Snowden, a U.S. citizen who had fled the country with a lot of defense and intelligence secrets and was living (and still lives) as Mr. Putin’s guest in Russia. As I noted then, congressional committees can attempt to obtain documents or testimony overseas through the use of letters rogatory or requests for legal assistance under applicable treaties, though these are far from guaranteed methods of success. As far as I know, no congressional committee even attempted to subpoena Snowden.

With calls for congressional investigation of Russia’s alleged interference in the 2016 presidential election, one or more committees may now face the issue of attempting to subpoena Julian Assange, the founder of Wikileaks and a key witness in any such investigation. Attempting to secure Assange’s testimony may be even more challenging than trying to get Snowden’s because Assange is not a U.S. citizen and he resides in the sovereign territory of one country (Ecuador) located in another (the UK). Specifically, Assange lives in the Ecuadorian embassy in London.

Before getting into how a committee might attempt to procure Assange’s testimony, it should be noted that the committee would be wise to get authorization from its chamber to seek information abroad. As Mort Rosenberg explains in his forthcoming book, such authorization has traditionally been the first step in requesting international assistance to obtain information:

Since 1974 ten special congressional investigating committees have been vested with authority to request the judicial assistance of U.S. courts to take depositions or access information in foreign jurisdictions through the vehicle of letters rogatory and to seek other means of international assistance in gathering information in foreign countries.

Morton Rosenberg, When Congress Comes Calling: A Study of the Principles, Practices, and Pragmatics of Legislative Inquiry (anticipated January 2017 publication). Such authorization, to be sure, is not a magic wand that entitles the committee to all (or any) foreign discovery it desires. It may not even be legally necessary, but it does give the committee an “imprimatur of authority to utilize formal judicial and international treaty processes,” as well as serve “to give legitimacy to less formal ventures to obtain necessary information.” Id.

Thus, whether the investigation is conducted by a special committee or a permanent committee, it makes sense for the House or Senate to adopt a resolution specifically authorizing the committee in question to use means of international assistance to obtain information overseas. The committee also needs deposition authority (if it doesn’t have it already) since Assange and other foreign witnesses almost certainly cannot be compelled to travel to the United States to participate in a hearing. Finally, for reasons explained below, the committee should be authorized to effectuate service by means other than traditional personal service.

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December 14, 2016January 6, 2017

The Right Way to Change the Senate Rules: A Response to Ilya Shapiro and Others

Ilya Shapiro argues here that Senate Majority Leader Mitch McConnell should use the nuclear option to eliminate the filibuster for Supreme Court nominees. Like many others, he does not seem to have any rule of law concerns with the use of the nuclear option, but it is not clear that he fully understands it either.

Shapiro notes that he “had been arguing to colleagues that McConnell should preemptively use his majority to eliminate the judicial filibuster, maybe even before Trump is inaugurated [but] a friend with intimate knowledge of Senate procedure informed me that it couldn’t be done in the abstract regardless”:

That’s because eliminating judicial filibusters isn’t a matter of changing the Senate rule on “cloture,” which says that 60 votes are needed to proceed to any final vote (short of “reconciliation”—see Obamacare—and other special situations). This rule has never been changed: Reid simply had the Senate majority adopt a “precedent,” in the context of D.C. Circuit nominee Patricia Millett, that cloture shall mean 51 votes for non-Supreme Court nominees.

Shapiro is right about what Senator Reid did on November 21, 2013 (Reid raised a point of order in the context of a particular nomination), but he is wrong (or his friend is wrong) that this is the only way to exercise the nuclear option. McConnell could exercise the nuclear option “in the abstract” for two reasons. First, McConnell could simply offer a motion to amend the Senate rules and then raise a point of order that cloture on such a motion is by a simple majority. The presiding officer would then presumably rule against the point of order, McConnell would appeal the ruling to the full Senate, and the Senate (acting by a simple majority) would reverse the presiding officer’s ruling. Following the “logic” of the Senate’s November 21, 2013 exercise of the nuclear option, this action would set a “precedent” permitting the Senate to end debate on motions to amend the rules by simple majority.

Such an action would be wrong because Rule XXII clearly requires a two-thirds vote to end debate on a motion to amend the rules, but it would actually be a less lawless (note I did not say “lawful”) means of changing the filibuster than merely setting a “precedent” that contradicts the plain text of the written rule. For example, suppose the Senate used this method to change Rule XXII so that it now required only a simple majority to end debate on either motions to amend the rules or on any nomination, but continued to require a supermajority to end debate on legislation. If subsequently an attempt were made to use the nuclear option to end the legislative filibuster, it might be persuasively argued that the November 21, 2013 precedent was no longer valid and that the proper means of changing the rules is to amend them, rather than to pretend that they say something else.

The second reason that Senator McConnell could seek to change the filibuster rule outside the context of a particular nomination or other pending measure is that this is how opponents of the filibuster have been trying to change or eliminate it for about a century. In fact, it was in 1917 that Senator Thomas Walsh first argued that the Senate rules could be changed at the beginning of a new Congress by a simple majority acting under “general parliamentary law.” This argument never prevailed in the Senate but it was frequently advanced over the next 100 years by senators who earnestly contended that the beginning of a new Congress was the only time that the rules could be changed by the action of a simple majority. At the start of at least six different Congresses from 1953-75, serious attempts were made on the floor to change Senate rules based on this theory. See Richard A. Arenberg & Robert B. Dove, Defending the Filibuster 117-41 (2012). In more recent years this theory was championed by senators such as Tom Udall and Jeff Merkley, supported by a group of noted legal academics.

As long-time readers may recall, I am not a big fan of this theory. (see this post and the 9 additional posts cited therein). I might even have made a bit of fun of it from time to time. But at least it was an argument, supported by actual reasons and advanced by distinguished senators and academics. True, the procedure for adopting this theory would have been the same as that used on November 21, 2013 (a ruling by the presiding officer followed by an appeal to the full Senate), which gave rise to well-grounded fears that it would soon render Senate rules subject to the whim of the majority. As Senator Vandenberg warned in a related context in 1948, it would mean that “regardless of precedent or traditional practice, the rules, hereafter, mean whatever the Presiding Officer of the Senate, plus a simple majority of Senators voting at the time, want the rules to mean. We fit the rules to the occasion, instead of fitting the occasion to the rules.”

In theory, however, the version of the nuclear option promoted by Senator Walsh and his successors had some limiting principles: it could only be employed at the start of the Congress and it involved a formal change to the rules, not merely a re-interpretation. The Walsh nuclear option was a wolf in sheep’s clothing, and a poorly-clad one at that, in part because these limiting principles were unlikely to hold. For example, there was no convincing reason why the nuclear option should be confined to the start of a new Congress.

What the Senate did on November 21, 2013, on the other hand, was supported by no principles, limiting or otherwise. As noted in my previous rant (er, post) on this subject, it seems to stand for nothing more than the proposition that “bad faith adjudication is an acceptable means of ‘changing’ the governing law.” As Justice Scalia would have said, this wolf comes as a wolf.

It is understandable that Shapiro and others are impatient with the Senate’s arcane rules and want to get on with confirming a constitutional conservative to the Supreme Court. Thus, Lew Uhler and Peter Ferrara urge here that Senator Reid’s unilateral termination of the filibuster for other nominations “should now be extended to Supreme Court appointments as well” because “[t]urnabout is fair play.” But this rationale, which is more suited to the schoolyard, will unravel what is left of the Senate’s legal system and further undermine respect for the rule of law. In other words, it will contradict the purpose of putting a constitutionalist on the Court in the first place.

(Incidentally, Uhler and Ferrara’s other suggestion of requiring a “talking filibuster” would be permissible because no rules change is needed for that).

As arduous as it may be, the right way for Senate to move forward is to seek the consensus necessary (meaning two-thirds of the Senate) to enact formal changes to the Senate rules. Whether these rules ultimately modify, repeal or reaffirm the use of the filibuster is up to the Senate. What matters is that the Senate decisively repudiate the use of the nuclear option that occurred on November 21, 2013. Only then will it be able to begin rebuilding its legal system.

December 9, 2016

A Christmas Present for Congress: the Congressional Clerkship Program

On Balkinization, Abbe Gluck and Dakota Rudesill announce that a group of senators, including Ted Cruz and Mike Lee, have revived the idea of a congressional clerkship program:

In this era of gridlock and difficult politics, a bipartisan group of Senators has done something worth celebrating. On Monday, with the introduction of the Daniel Webster Congressional Clerkship Act, S. 3499, the Senate has taken the first step not only toward busting the judicial clerkship monopoly on mentoring fresh young law graduates but also toward bridging the enormous gap–a gap in both information and respect–between Congress and the courts.

The bill, sponsored by Sen. Mike Lee (R-UT), Sen. Patrick Leahy (D-VT), Sen. John Hoeven (R-ND), and Sen. Ted Cruz (R-TX), would create a dozen clerkship positions in Congress for recent law school graduates, equally divided across chambers and political parties. The bill envisions them competitively funded at the same level as their federal judicial counterparts.

We have discussed before the benefits that such a program would provide, particularly with respect to evening the legal playing field between the legislative and executive branches. It is a start toward, as they say in the LBCWG, “making Congress great again.”

November 28, 2016November 28, 2016

The Filibuster, the Nuclear Option and the Rule of Law

Erick Erickson argues here that Senate Republicans would be making a “foolish mistake” if they vote to scrap the filibuster “in its entirety.” He makes a distinction among three different filibusters: (1) the filibuster for executive appointments excluding Supreme Court justices; (2) the filibuster for Supreme Court justices; and (3) the filibuster for legislation. Erickson accepts, without necessarily approving, that the two nomination filibusters have been or will be eliminated through use of the so-called “nuclear option,” but he contends that the legislative filibuster should be preserved as an essential tool to fight for limited government.

We will not address here the policy question of whether the preservation of the filibuster, in whole or in part, is a good idea. Instead, I want to discuss the filibuster’s current status under the law of the Senate and the implications of the nuclear option for the Senate and the rule of law.

Senate Rule XXII provides in part:

Notwithstanding the provisions of rule II or rule IV or any other rule of the Senate, at any time a motion signed by sixteen Senators, to bring to a close the debate upon any measure, motion, other matter pending before the Senate, or the unfinished business, is presented to the Senate, the Presiding Officer, or clerk at the direction of the Presiding Officer, shall at once state the motion to the Senate, and one hour after the Senate meets on the following calendar day but one, he shall lay the motion before the Senate and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

“Is it the sense of the Senate that the debate shall be brought to a close?” And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn — except on a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting — then said measure, motion, or other matter pending before the Senate, or the unfinished business, shall be the unfinished business to the exclusion of all other business until disposed of.

Note that this rule does not provide for three different filibusters. It applies to ending debate on “any measure, motion, other matter pending before the Senate, or the unfinished business,” and it makes no distinction between matters related to nominations and those related to legislation, much less among different kinds of nominations. The only distinction it makes is between a measure or motion to amend the Senate rules and all other matters, with the former requiring a larger supermajority (two-thirds of senators present and voting) to bring debate to a close.

The idea of three filibusters stems from the Senate’s November 21, 2013 exercise of the “nuclear option.” In that action the Senate purported to eliminate the filibuster with respect to all nominations save those to the Supreme Court. According a February 15, 2016 Washington Post opinion piece by Senator Harry Reid:

In response to unprecedented Republican obstruction, Democrats changed the Senate rules in 2013 to allow qualified nominees to be confirmed by a simple majority vote, instead of 60 votes. This change alleviated judicial emergencies across the country by allowing a flood of qualified nominees to be confirmed. (We stopped short of changing the threshold for Supreme Court nominees—maybe that was a mistake).

(emphasis added).

Similarly, in October 2016, Reid was quoted as saying: “I really do believe that I have set the Senate so when I leave, we’re going to be able to get judges done with a majority. It takes only a simple majority anymore. And, it’s clear to me that if the Republicans try to filibuster another circuit court judge, but especially a Supreme Court justice, I’ve told ’em how and I’ve done it, not just talking about it. I did it in changing the rules of the Senate. It’ll have to be done again.” (emphasis added).

Continue reading “The Filibuster, the Nuclear Option and the Rule of Law”

November 11, 2016

Things to do in Dirksen when You’re Dead

If nothing concentrates the mind like the prospect of being hanged, there should be quite a few members of Congress, particularly but not exclusively Democrats, who are having a moment of clarity about the lamentable state of the legislative branch in our constitutional system. These are not new concerns. As I pointed out two years ago, following an otherwise partisan and contentious hearing before the House Rules Committee, “every witness and member who spoke to the issue seemed to agree that there has been a serious erosion of congressional power in recent decades and that Congress has failed to act in self defense when faced with presidents who seek to aggrandize their power at the expense of the legislative branch.”

There are, of course, institutional and structural reasons why it is hard for Congress to push back against executive overreach. Congressional Democrats may have agreed in theory about the dangers of an “uber presidency” (as Professor Jonathan Turley puts it), but for the last 8 years they have had little or no interest in doing anything about it. Congressional Republicans, on the other hand, have advanced various proposals for restoring legislative authority, but they have lacked either the ability or the will to put them into effect.

Contrary to popular belief, this is not the result simply of moral failings on the part of our elected representatives. Since at least the end of the Second World War, Congress has been at a substantial disadvantage in advancing its institutional prerogatives vis a vis the executive. Modern presidents “sit atop a vast executive branch and are able to take a wide variety of actions unilaterally.” Bradley & Morrison, Historical Gloss and the Separation of Powers, 126 Harv. L. Rev. 411, 440 (2012). Congress, on the other hand, as a plural body has a serious collective action problem in attempting to respond: “each individual member has relatively little incentive to expend resources trying to increase or defend congressional power, since he or she will not be able to capture most of the gains.” Id. Moreover, the “modern party system further reduces the incentives of individual members of Congress to act systematically in constraining executive power or resisting executive aggrandizement.” Id. at 443. Because “individual members of Congress tend overwhelmingly to act in accord with the preferences of their party,” the president’s co-partisans rarely will cooperate in any effort to constrain his power. Id.

These problems are exacerbated by an imbalance of resources between the two branches. One example, near and dear to the heart of this blog, relates to executive branch’s advantage in the sheer number of lawyers dedicated to advancing its institutional interests. This is perhaps both a cause and a symptom of the legislature’s disadvantage: “The fact that Congress lacks an institutional counterpart to the Office of Legal Counsel (which, among other things, monitors congressional inroads on executive authority) is an illustration of the executive’s greater institutional focus.” Bradley & Morrison, 126 Harv. L. Rev. at 443.

A noted OLC veteran once summarized Congress’s problem thusly:

In any controversy between the political branches over a separation-of-powers question, staking out a position and defending it over time is far easier for the Executive Branch than for the Legislative Branch. All Presidents have a high interest in expanding the powers of their office, since the more power the President can wield, the more effectively he can implement his political agenda; whereas individual Senators may have little interest in opposing Presidential encroachment on legislative prerogatives, especially when the encroacher is a President who is the leader of their own party.

NLRB v. Noel Canning, 134 S.Ct. 2550, 2606 (2014) (Scalia, J., concurring) (citing Bradley & Morrison).

These observations suggest that expectations for renewed assertions of congressional authority should be low. Congressional Democrats may find a new urgency in aggressive assertion of such authority, but congressional Republicans are just as likely to go in the opposite direction, seeing it to be in their political interest to cooperate with the incoming administration. They may continue in theory to support many of the ideas that have been put forward (establishing and enforcing limits on agency authority, strengthening its exercise of the power of the purse, conducting more robust oversight of the executive branch, and enforcing congressional subpoenas and demands for information), but in practice these goals will be secondary to the political expediency of supporting the new president.

Yet, as Bradley and Morrison note, the weakness and passivity of Congress is historically contingent. 126 Harv. L. Rev. at 446. The “obstacles to effective congressional checks on executive power—including members’ tendency to think more in terms of party than branch, and the President’s greater ability to appeal to the national electorate—are not fixed features of our constitutional order.” Id. at 447. Perhaps the unique qualities of the president-elect, including but not limited to his historically unprecedented disapproval ratings, will change congressional behavior.

Some observers suggest reasons for optimism. George Will writes: “For constitutional conservatives, the challenge is exactly what it would have been had Clinton won: to strengthen the rule of law by restoring institutional equilibrium. This requires a Republican Congress to claw back from a Republican executive the legislative powers that Congress has ceded to the administrative state, and to overreaching executives like Obama, whose executive unilateralism the president-elect admires.” Ben Domenech says of the president-elect, “his attitude and character are so abrasive to the sentiments of the American elites that it almost has to result in a reassertion of the powers of the other branches of government, particularly the Congress.”

We will see. If Congress is going to act, it must do so quickly. After all, the president-elect (probably) doesn’t even know what the OLC is yet.

In the meantime, they will soon be erecting the scaffolding on Capitol Hill. For the inauguration, of course.

November 1, 2016

Would a Court Hear a Challenge to Congress’s Article V Convention Call?

Having reviewed the most prominent cases regarding the justiciability of Article V claims, today I will analyze how a court would approach the hypothetical lawsuit discussed in an earlier post. In that case Congress calls a convention based on 34 applications for a balanced budget amendment convention and the validity of this congressional action is challenged in federal court. As this recent New York Times article notes, such a “court battle” is likely to ensue once Congress calls a convention. But how would this lawsuit arise and would a court reach the merits of the claims?

Below I address justiciability hurdles and related pitfalls that such a lawsuit would face.

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