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Quinnipiac Law Review Symposium on the Disqualification Clause

A forthcoming issue of the Quinnipiac Law Review features four articles responding to Benjamin Cassady’s “You’ve Got Your Crook, I’ve Got Mine”: Why the Disqualification Clause Doesn’t (Always) Disqualify, 32 Quinnipiac L. Rev. 209 (2014). The editors were kind enough to ask me to write the foreword, which you can find here. It’s extremely hilarious and entertaining. (Not really).

The articles by Peter Charles Hoffer, Brian C. Kalt, Buckner F. Melton, Jr. and Seth Barrett Tillman are well worth reading.

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The First House Debate on Admitting Delegates

On November 14, 1794, the House resolved into the Committee of the Whole House to consider the report of an ad hoc committee led by Representative Baldwin. The Baldwin committee had been tasked with considering whether to admit to the House one James White, who had presented his credentials as “Representative of the Territory of the United States south of the river Ohio, in the Congress of the United States.” 4 Annals of Cong. 873. White’s claim to admission was founded indirectly on the Northwest Ordinance, which had promised that the legislature of the Northwest Territory could send a delegate to Congress “with the right of debating, but not of voting.”

Because the Northwest Ordinance preceded the adoption of the Constitution, it refers to “Congress” (meaning the Congress under the Articles of Confederation), rather than the House or Senate. Following the adoption of the Constitution, Congress passed a law providing the Southwest Territory with the same “privileges, benefits, and advantages” as provided in the Northwest Ordinance, but not specifying whether the right to send a delegate to Congress referred to the House, the Senate or both. Continue reading “The First House Debate on Admitting Delegates”

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Delegate Morrissey and the Voters Who Love Him

So when we left off our discussion of Virginia Delegate Joseph Morrissey (D-Henrico turned I-Prison), I noted:

All of this is likely academic as the voters will probably not take up Morrissey’s case as a cause celebre ala Wilkes. But it should be noted that Wilkes was a famous libertine and some of his expulsions were based on his authorship of a pornographic parody that scandalized British society of the time. So you never know.

It’s always a good idea to qualify your predictions so subsequent events don’t make you look like a fool. As it happens, Morrissey’s constituents (at least those who bothered to show up in a low turnout election) were perfectly happy to keep him as their representative in Richmond, even though it means he will be commuting from a jail cell to his seat in the oldest continuous lawmaking body in the Western Hemisphere.

Continue reading “Delegate Morrissey and the Voters Who Love Him”

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Membership Has its Privileges: Participation of DC and Territorial Delegates in House Proceedings

Last week, on the opening day of the new Congress, DC Delegate Eleanor Holmes Norton argued that the House should adopt a rule allowing her and territorial delegates (representing Puerto Rico, Guam, the Virgin Islands and American Samoa) to vote in the Committee of the Whole. Since 1993, the House has had such a rule during periods in which Democrats held the majority. Norton also asked for a special committee to study the issue of delegate voting.

Following the House’s decision to reject her requests, Norton stated: “The audacity of stripping a vote for taxpaying Americans won fairly by vote of the House and approved by the federal courts was outdone today by the refusal of the House majority to restore the vote of District citizens.”

The federal court decisions referred to in Norton’s statement are Michel v. Anderson, 14 F.3d 623 (D.C. Cir. 1994) and the lower court decision by Judge Harold Greene in the same case. Both these courts upheld the practice of allowing delegates to vote in the Committee of the Whole, but only on the ground that the re-vote portion of the rule (requiring, in essence, that the votes of the delegates would not count whenever they would be determinative of the result) made it constitutionally inoffensive. Judge Silberman’s opinion for the appellate court described the vote given to the delegates as “largely symbolic,” while Judge Greene was more blunt, calling it “meaningless.”

These opinions also relied heavily on House practice and precedent with regard to participation by delegates and non-members in its proceedings, but they appear to have overlooked some of the most important precedent. In my next few posts, I will discuss the relevant history and how the House has looked at this constitutional question.

Here is what I tentatively think these posts will show:

  • Because the Constitution provides that “the House of Representatives shall be composed of Members chosen every second Year by the People of the several States,” delegates from DC and the territories, which are not states, cannot be members of the House.
  • Historically, the House has viewed it as constitutionally permissible to allow non-members the right to participate in debate, so long as they cannot vote.
  • More recent practice has allowed delegates to vote in standing committees. This practice can be squared with the traditional view, I believe, because the activities of committees are most reasonably viewed as being on the “debating” side of the debating/voting line. Voting on certain matters, such as issuing subpoenas or holding witnesses in contempt, however, may raise additional issues.
  • The real disagreement between House Republicans and Democrats has come down to voting in the Committee of the Whole. This disagreement is much narrower than it might appear (or Norton’s rhetoric might suggest) because the Democrats only gave the delegates a symbolic vote precisely because of concerns about the constitutionality of the practice. The Republicans presumably believe that giving non-members a vote in the Committee of the Whole is a constitutional impropriety, even if it is effectively harmless error.

Having said all this, I think Norton’s idea of having a committee (it could be a standing committee such as Judiciary’s Subcommittee on the Constitution) look at this issue makes sense. The principle is that delegates can debate, but not vote. But the power to debate can be quite meaningful (as illustrated by the Senate filibuster), while the power to vote at issue here is merely symbolic. Perhaps there is ground for a compromise by, for example, enhancing the authority of the delegates to debate matters that specifically impact their constituents.

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Michael Grimm, John Wilkes and the House’s Power to Punish for Conduct Preceding Election

It is being reported that Representative Michael Grimm has agreed to resign his seat in the next Congress. Grimm was indicted on multiple federal charges in April, was reelected handily in November and last week pled guilty to a single count of tax fraud stemming from his ownership and management of a health food restaurant before his initial election to Congress in 2010. Grimm initially indicated that he would not resign, but he apparently changed his mind after a heart to heart with Speaker Boehner.

I have been looking into some of the legal issues that the House would have faced had Grimm decided to remain in Congress. Since these may now be moot, I will just briefly list the three major problems the House would have encountered in trying to discipline or expel Grimm for the offense to which he pled guilty.

Continue reading “Michael Grimm, John Wilkes and the House’s Power to Punish for Conduct Preceding Election”

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Catching Legislators In Flagrante Delicto

So the important point to take away from this post is that there is a very cool website, Constitute, which allows you to read, search and compare the world’s constitutions. (Hat tip: Lawrence Solum).  When you enter the site, there is a topics section on the left side and if you click on a topic, subtopics appear. For example, the topic “Legislature” is divided into 8 subtopics, one of which is “Legislative Independence and Power.” That subtopic is further divided into categories, one of which is “Immunity of Legislators.” Click on that and you can scroll through the world’s constitutional provisions on legislative immunity, from Afghanistan to Zimbabwe.

Awesome.

Scrolling through a few constitutional provisions on legislative immunity, it became apparent that many nations have constitutionally enshrined the concept of “flagrante delicto.” This term is defined by Black’s Law Dictionary as “in the very act of committing the crime,” but as far as I know it is not a legally significant concept under American or common law. It is better known here as a euphemism for being caught in the midst of sexual activity.

In many countries, however, a legislator’s immunity from arrest may turn on whether he was caught in flagrante delicto (in the legal sense). In France, for example, Title IV, Art. 26 provides: “No Member of Parliament shall be arrested for a serious crime or other major offence, nor shall he be subjected to any other custodial or semi-custodial measure, without the authorization of the Bureau of the House of which he is a member. Such authorization shall not be required in the case of a serious crime or other major offence committed flagrante delicto or when a conviction has become final.”

So basically a French MP can avoid being arrested for a serious crime so long as he leaves the scene quickly enough.

In France the “flagrante delicto” exception applies solely to the arrest privilege, but in some constitutions it appears that it would also apply to prosecution and punishment for whatever period the member would enjoy this protection. In other words, if a member is immune from prosecution during the legislative session or while he remains in office, he would lose this protection if caught in flagrante delicto. At least according to my quick scrolling through a number of constitutions.

I don’t know how often legislators are actually caught in flagrante delicto. (In the legal sense; in the other sense I am sure it happens all the time). But the important thing is that you can learn lots of interesting information at Constitute. Also I have made it through this entire post without mentioning Anthony Weiner.

 

 

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Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness

Professor Christopher Schroeder asks the following question at Balkinization:

Under our constitutional separation of powers, does the President have the authority to defer the deportation of the undocumented parents of children who are lawfully present in the United States, to permit these persons to apply for work authorization and also to expand the Deferred Action for Childhood Arrivals first announced in 2012? Or is the President violating the Constitution by refusing to execute the immigration laws?

Schroeder contends that “[w]hatever answer you give to the first question, the answer to the second one is a resounding NO.” He reasons that the Office of Legal Counsel prepared a “careful and thorough analysis” of the legal options available to the administration. While some may disagree with OLC’s conclusions, “this only establishes that people can have honest disagreements over how to interpret a statute.” As long as OLC has plausibly concluded that the actions were within the president’s authority, Schroeder contends that there can be no violation of the president’s duty to “take care” that the laws be “faithfully executed.”

Schroeder is right to distinguish between the administrative law question of whether the administration’s new nonenforcement policy will survive judicial review and the constitutional question of whether the law is being faithfully executed. As Schroeder points out, the former is a “garden variety administrative law question” of the sort courts address every day. If the courts should rule against the administration, “then the action will be consigned to the pile of agency actions that have been overturned by courts over the years as exceeding their authorities under the relevant statutes.” But, he goes on, “[t]o my knowledge, in none of these prior decisions has a court ever even contemplated the question of a constitutional violation by the President.”

I made a similar point several months ago with regard to the House’s decision to sue the Obama administration over the Affordable Care Act:

[T]he question the House wants answered is not the question the courts will answer, even if a justiciable case were to be brought by a plaintiff with standing. They will not issue a decision on whether the Secretary, much less the President, has “faithfully executed the laws.” They will decide (at most) whether a particular administrative regulatory action complies with the law. Indeed, they may not even decide that, but merely conclude that the action is of the kind where the court should defer to the agency’s judgment as to whether or not it complies with the law.

Schroeder is also probably correct that the courts are unlikely to strike down the new nonenforcement policy. I say this based not so much on the legal merits of that policy, which I have not studied, but on the generally deferential nature of judicial review with regard to agency action in general and administrative nonenforcement in particular. See CRS Report to Congress, “The Take Care Clause and Executive Discretion in the Enforcement of Law” 8 (Sept. 4, 2014) (“Where Congress has legislated broadly, ambiguously, or in a nonobligatory manner, courts are unlikely to command or halt action by either the President or his officials.”); id. at 15-17 & n. 104 (“It should be noted that the dismissal of a challenge to an administrative nonenforcement decision under the APA is not necessarily recognition by the court that the agency was acting within its authority.”).

Schroeder seems clearly wrong, however, in suggesting that the president’s constitutional responsibilities under the Take Care Clause are met merely because his lawyers advance a plausible or successful defense of the legality of his nonenforcement policy. The Take Care Clause requires the laws be faithfully executed. As Schroeder acknowledges, this means the laws must be executed “honestly.” Johnson’s dictionary provides another pertinent definition of “faithfully” as “with strict adherence to duty.” Continue reading “Immigration: Another Question of Administrative Law Versus Constitutional Faithfulness”

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Upcoming Legisprudence Conference in Israel

An international conference co-sponsored by the Bar-Ilan University Faculty of Law and the Knesset Legal Department, which will take place on December 10-11, 2014 in Israel, was brought to my attention by one of the participants. The conference is entitled “Legisprudence and the Legislative Process: From Theory to Practice,” and includes a number of panels that will be of great interest to legislative lawyers and parliamentary experts around the world. The agenda and list of speakers is here.

For those who don’t know, a group which included me before I googled it today, “legisprudence” is defined by Black’s Law Dictionary as “the systematic analysis of statutes within the framework of jurisprudential philosophies about the role and nature of law.”

As long as we are more or less on the subject, I recall that in 2000 the Speaker of the Knesset reached out to Speaker Hastert to inquire about how Congress received legal advice. The letter indicated that the Knesset was considering “making some changes in the structure and role of [its] legal department . . . in order to ensure a clear separation of powers between the branches of government.” (The House Counsel’s response is here.). I wonder what the Knesset’s subsequent experience has been. Anyone with feedback on this or the results of the conference would be welcome.

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CRS on the Take Care Clause

This September 4, 2014 CRS memo entitled “The Take Care Clause and Executive Discretion in the Enforcement of Law,” (hat tip: Mort Rosenberg) is helpful background for understanding both the House lawsuit against the Obama administration and the controversy over the President’s executive action on immigration. However, as is not uncommon for CRS reports, there is a good deal of “on the one hand, this, and on the other hand, that.”

Here is the summary:

The Take Care Clause would appear to stand for two, at times diametrically opposed propositions—one imposing a “duty” upon the President and the other viewing the Clause as a source of Presidential “power.” Primarily, the Take Care Clause has been interpreted as placing an obligation on both the President and those under his supervision to comply with and execute clear statutory directives as enacted by Congress. However, the Supreme Court has also construed the Clause as ensuring Presidential control over the enforcement of federal law. As a result, courts generally will not review Presidential enforcement decisions, including the decision of whether to initiate a criminal prosecution or administrative enforcement action in response to a violation of federal law.

In situations where an agency refrains from bringing an enforcement action, courts have historically been cautious in reviewing the agency determination—generally holding that these nonenforcement decisions are “committed to agency discretion” and therefore not subject to judicial review under the Administrative Procedure Act. The seminal case on this topic is Heckler v. Chaney, in which the Supreme Court held that an “agency’s decision not to take enforcement action should be presumed immune from judicial review.”

However, the Court also clearly indicated that the presumption against judicial review of agency nonenforcement decisions may be overcome in a variety of specific situations. For example, a court may review an agency nonenforcement determination “where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” or where the agency has “’consciously and expressly adopted a general policy’ that is so extreme as to amount to an abdication of its statutory responsibilities.”

As such, it would appear that Congress may overcome the presumption of nonreviewability and restrict executive discretion through statute by expressly providing “meaningful standards” for the manner in which the agency may exercise its enforcement powers.

Nevertheless, legislation that can be characterized as significantly restricting the exercise of executive branch enforcement decisions, in either the criminal, civil, or administrative context, could raise questions under the separation of powers.