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Noel Canning: Unanimous Judgment, Divided Reasoning

For a 9-0 decision invalidating the President’s exercise of the recess appointment power, the Supreme Court’s opinion today in Noel Canning revealed a bitter divide among the justices. Justice Breyer, writing for the majority, basically went “full Daugherty,” finding that the Recess Appointment Clause applies to both “inter-session” and “intra-session” breaks, but finding that those breaks must exceed a minimum length to qualify as recesses in which the President may exercise his temporary appointment power. The key quote from Breyer’s decision:

If a Senate recess is so short that it does not require the consent of the House, it is too short to trigger the Recess Appointments Clause. See Art. I, §5, cl. 4. And a recess lasting less than 10 days is presumptively too short as well.

In his concurrence (joined by the Chief Justice and Justices Thomas and Alito), Justice Scalia accuses the majority of adopting an “adverse possession” theory of executive power. In other words, because the executive has long asserted the power to fill vacancies that do not arise during a recess and has maintained that they may be filled during intra-session as well as inter-session breaks and because the Congress has failed to resist these theories on a consistent and effective basis, the executive branch’s theory will prevail. The concurrence would read the RAC to be limited to vacancies that arise during the recess and would hold that only a break between formal sessions constitutes “the recess.”

There will be undoubtedly many other takeaways from a thorough reading of the opinion. But note that this opinion has an important near term effect on the Congress. It appears at first blush that the House can prevent the President from making any more recess appointments simply by refusing to consent to any adjournments of more than three days for the remainder of the Congress.  But one can imagine that the executive branch and the Senate Democratic leadership might look for wriggle room, particularly if the Republicans win control of the Senate in November’s election. In particular, the Senate could try to amend its rules so as to deprive itself of the capacity for doing business during pro forma sessions. We will see whether they get that desperate.

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The Standing Committee Stands Pat

The Standing Committee of Correspondents has again rejected SCOTUSblog’s application for credentials on behalf of Lyle Denniston. To anyone who attended or read the live blog of the Committee’s May 23 hearing (see picture below), it is no surprise to learn that the rejection letter focuses on the issue of “editorial independence.”

In brief, the Standing Committee thinks that Tom Goldstein’s dual role as publisher of SCOTUSblog, on the one hand, and a practicing Supreme Court advocate and law firm partner, on the other, means that the blog is not “editorially independent” of Goldstein’s law firm and practice. Because arguing before the Supreme Court counts, in the committee’s view, as “a form of lobbying the federal government” (an interesting perspective) and because Goldstein and his firm are not “principally a general news organization,” the committee concludes that their relationship to SCOTUSblog violates the provision of the Daily Press Gallery Rules requiring that an applicant’s publication “must be editorially independent of any institution, foundation or interest group that lobbies the federal government, or that is not principally a general news organization.” (As we discussed in a previous post, this provision is found in the version of the rules published in the Congressional Directory, not the version which appears in the Senate Manual).

During the May 23 hearing, Goldstein argued that his relationship to the blog was no different than Jeff Bezos or Rupert Murdoch’s relationship to their respective publications, but the members of the Standing Committee indicated, both verbally and by body language, that they were not buying it. One committee member responded: “There is a clear difference because the publisher of the Washington Post is not Jeff Bezos. Their firewall is enormous by comparison.”

As this quote suggests, the Standing Committee was unimpressed by the firewall SCOTUSblog has put in place to prevent Goldstein’s clients and other interests from affecting the blog’s coverage. To show the ways that Goldstein’s law firm might influence the blog, the Standing Committee pointed to the sharing of office space, personnel and resources between the two entities. It says that “[f]ar from keeping the blog editorially independent of the law practice as the rules require, these policies appear to permit the law practice to blend in with the blog.” The committee also pointed to statements by Goldstein which it viewed as showing he uses the blog as a “client-generating vehicle” and “part of his personal brand.”

Goldstein has responded to the committee’s decision in a blog post (what else?) in which he focuses less on the specifics of the interpretation of the rules and more on the implications for non-traditional media. He argues, reasonably, that the committee’s reasoning would extend “equally to any publication that is produced by someone who plays dual roles, one of which isn’t a news organization.” Thus, he suggests, under the committee’s approach a school superintendent’s blog about education, a physicist’s blog about science or a practicing physician’s blog about medicine would be deemed inherently not “editorially independent” and therefore inferior to the work of traditional media.

He observes: “The members of the Standing Committee are traditional journalists who come from a proud and treasured tradition of complete independence from anything but their craft. That is a fantastic model for journalism. But it is not the only one. And it is unfortunate that this is a decision in which members of the traditional media exercise their own power over access to the government to categorically exclude a wide range of competitors.”

Goldstein intends to appeal to the Senate Rules Committee. I think it is unlikely that the Rules Committee will be interested in getting in the middle of a specific application for press credentials. Since it has no obligation to do anything, the smart money says it will do nothing (you won’t go broke betting on Congress to do nothing). But there is some possibility that the chairman and ranking member (Senators Schumer and Roberts) will be interested in addressing the broader questions Goldstein raises about the role of non-traditional media. I wouldn’t hold my breath, though.

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The House’s Sovereign Immunity Objection to the SEC Subpoenas

As discussed in my last post, the SEC is suing the House Committee on Ways & Means and Brian Sutter, a committee staffer, to enforce two administrative subpoenas, one to the committee seeking documents and one to Sutter seeking both documents and testimony.

A May 19 letter from the House General Counsel lays out 11 objections to the subpoenas. The first objection, which I want to address today, is that “[e]ach of the subpoenas is barred by the sovereign immunity, never waived, that attaches to the Committee and Mr. Sutter in their official capacities.”

If I understand this objection correctly, it means that the House is asserting that the SEC is barred from compelling the production of official House documents or testimony related to the official functions of the House, even if that information is not constitutionally privileged and no matter how relevant it might be to the SEC’s investigation.

What might be the basis of such an objection? Well, during my time in the House Counsel’s office, we dealt with administrative subpoenas from several different federal agencies. We objected to these subpoenas based on the fact that House Rule VIII, which authorized compliance with subpoenas issued by courts, did not apply to administrative subpoenas. One aspect of this argument (I think) was that Rule VIII’s silence meant the House had not waived its sovereign immunity with regard to administrative subpoenas.

Now frankly sovereign immunity never struck me as exactly the right rubric for this argument. Historically the House (like the Senate) has maintained that its consent is needed before another branch of government can obtain documents from its files or testimony regarding its official functions, but this position has been grounded in the separation of powers. Thus, Deschler explains that the attempt by “another coordinate and coequal branch of government” to exercise authority over the House by serving process upon it “has historically been perceived by the House as a matter intimately related to its dignity and the integrity of its proceedings, and as constituting an occasion for the raising of the question of the privilege of the House.” 3 Deschler’s Precedents § 14. This view held that each branch of government had the constitutional authority to make the final determination regarding the disposition of its own documents and information. See Nixon v. Sirica, 487 F.2d 700, 742 (D.C. Cir. 1973) (MacKinnon, J., concurring in part and dissenting in part) (“It thus appears that the judiciary, as well as the Congress and past Presidents, believes that a protected independence is vital to the proper performance of its specified constitutional duties.”)

Be that as it may, in 1977 the House first adopted the predecessor to Rule VIII, providing standing authority to comply with judicial subpoenas. This rule obviated the need for the House to authorize compliance with such subpoenas on a case-by-case basis (which remains the practice in the Senate to this day). To the extent that the doctrine of sovereign immunity applies, the rule also presumably acts as a waiver of this defense so long as a subpoena meets the criteria set forth in the rule.

As noted, there remained a problem with respect to administrative subpoenas because Rule VIII did not address them. Thus, whether viewed as a question of sovereign immunity, separation of powers, or both, administrative subpoenas to the House were arguably barred and could not be complied with absent a specific House resolution authorizing compliance. (The merit of this position was never tested in court, to my recollection).

In the 107th Congress, however, Rule VIII was broadened to cover administrative subpoenas. This was done at the suggestion of the House Counsel’s office precisely because there seemed to be little sense from a policy standpoint (as well as some legal risk) in maintaining that administrative subpoenas were categorically barred.

Given that Rule VIII now expressly authorizes (and indeed requires, if the rule’s prerequisites are satisfied) compliance with administrative subpoenas, it is a little difficult to understand how the House could sustain a sovereign immunity objection. Perhaps a clue is the citation in the May 19 letter to Lane v. Pena, 518 187, 192 (1996), which it describes as holding “any waiver of sovereign immunity must be ‘unequivocally expressed in statutory text.’” Rule VIII, of course, is not a “statute” and thus, it might be argued, its language does not count for determining whether sovereign immunity has been waived.

If that’s the argument, it does not strike me as a winner.

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SEC v. Ways and Means

As reported by the Wall Street Journal, the Securities and Exchange Commission has filed suit against the House Committee on Ways and Means to enforce subpoenas seeking documents as well as the testimony of Brian Sutter, the committee’s staff director. The subpoenas were issued in the course of the SEC’s “investigating whether material nonpublic information concerning the April 1, 2013 announcement by the U.S. Centers for Medicare and Medicaid Services of 2014 reimbursement rates for the Medicare Advantage program was leaked improperly to certain members of the public in advance of CMS’s announcement, and whether such action resulted in insider trading in violation of the federal securities laws.” Apparently the SEC believes that Sutter may have been one source of information relied on by a Greenberg Traurig lobbyist (presumably Mark Hayes, although he is not named in the complaint) who provided advance notice of the rate announcement to a securities firm.

This has the potential to be a really big deal, both from a legal perspective (the House is resisting the subpoenas on Speech or Debate grounds, among other things) and as a political headache for the House and its leadership. For now, I will just post a copy of the complaint, which is pretty interesting.

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The Office of Compliance and a Mysterious Rule VIII Notice

In case you forgot, Rule VIII is the House rule that governs when a judicial or administrative subpoena is served on a member, officer or employee for documents or testimony relating to the official functions of the House.  The rule requires that notice be given to the House, through the Speaker, whenever such a subpoena is properly served. Under paragraph 3 of the rule, the subpoena recipient is required to make three determinations regarding the subpoena: (1) whether it is a proper exercise of jurisdiction; (2) whether it seeks information that is material and relevant; and (3) whether it is consistent with the rights and privileges of the House. These determinations are also supposed to be provided to the Speaker and spread upon the Congressional Record.

Sometime this spring a subpoena from the Office of Compliance was served upon the “House Office of Payroll and Benefits” in the Chief Administrative Officer’s office. The OOC is the entity established to administer and enforce the employment laws as they apply to Congress under the Congressional Accountability Act. OOC administrative proceedings are confidential so there is no publicly available information as to the case that precipitated this subpoena. Nor is there any publicly available information as to what documents were sought by the subpoena.

Although Rule VIII provides that the Speaker “shall generally describe the records or information sought” when informing the House of a subpoena, this provision is routinely ignored. Instead, when a subpoena is initially received, it is forwarded to the House Counsel’s office, which provides written notice to the Speaker, the Minority Leader and the Parliamentarian. When the subpoena was addressed to a House officer, the notice (known as a “3 amigos,” don’t ask me why) will attach a copy of the subpoena. Thus, while the bipartisan House leadership will be informed of the nature of the documents requested, the House at large is not.

We can surmise that the subpoena in question stemmed from an administrative proceeding brought against a House employing office under the CAA. Such proceedings are fairly rare. According to the most recent OOC report, for example, there were a total of 14 requests for administrative hearings in FY 2012. That total includes complaints filed against both House and Senate employing offices, as well as congressional support agencies like the Capitol Police and the Architect of the Capitol. There are probably only a handful of administrative complaints filed each year against a House employing office.

Continue reading “The Office of Compliance and a Mysterious Rule VIII Notice”

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If the Washington Administration Had an Office of Legal Counsel . . .

To:  Edmund Randolph, Attorney General of the United States

From:  Paul Colborn (J.D. expected May 1793), Office of Legal Counsel

Date: April 1, 1792

Re: Assertion of executive privilege in response to congressional requests for information

In preparation for tomorrow’s cabinet meeting, you have requested the opinion of this office on a matter of some delicacy. On March 27, the House of Representatives appointed a special committee to conduct an investigation of recent military operations initiated by Major General Arthur St. Clair, the governor of the Northwest Territory. As this represents the first time the House has authorized an investigation of this sort, our response will set an important precedent.

To briefly review the relevant facts, for the past several years the United States has been engaged in both diplomatic negotiations and military conflict with Indian nations in the Northwest Territory. Pursuant to orders from President Washington, in 1790 St. Clair sent General Josiah Harmar to lead a punitive expedition against the more recalcitrant elements of the indigenous population. This effort did not go well. Harmar lost about 200 men in battle and did not achieve his objective.

Last year St. Clair personally led another offensive against the Miami Indians in the Ohio region. The results were even worse. On November 4, 1791, St. Clair’s army was surrounded and completely destroyed by Indian forces. In a letter to the Secretary of War, St. Clair described this “as unfortunate an action as almost any that has been fought.” 3 Annals of Congress 1055. St. Clair is now considering an early retirement.

The House has empowered its committee “to call for such persons, papers and records, as may be necessary to assist their inquiries.” 3 Annals of Congress 493. Pursuant to this authority, the committee has made a broad request to the President for documents that might shed light on the causes of St. Clair’s defeat. We view this as a “fishing expedition” for politically explosive or embarrassing information that might gain the committee members some attention in the press.

The President has asked his cabinet for advice on how to respond to the committee request. Specifically, he wishes to know whether the House has the constitutional authority to seek the information requested and whether he may or should withhold any of the responsive documents.

We accept that the House is an inquest and is entitled to request documents and other information from the executive branch. See generally Mort Rosenberg, Congressional Oversight Manual (1st ed. 1791). However, this principle must be limited by a doctrine we have termed “executive privilege,” which subsumes the privileges set forth below: Continue reading “If the Washington Administration Had an Office of Legal Counsel . . .”

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Follow Up on the SCOTUSblog Matter

Note: There will be a meeting of the Standing Committee today at 10:30 am to hear from SCOTUSblog regarding the renewal of Lyle Denniston’s credentials. From what I understand, it is open to the public.

The Reporters Committee for Freedom of the Press and 14 media outlets, including CNN, NPR and Politico, have written this letter to the Daily Press Gallery in support of SCOTUSblog’s position. The letter addresses some of the specific concerns regarding Denniston’s application, including a fairly cursory paragraph regarding his and the blog’s need for direct access to the Senate, but its primary focus is on the question of how the Standing Committee should approach non-traditional media.

The letter states: “The Reporters Committee’s interest in this matter stems in part from our role in assisting the Gallery in earlier years with fine-tuning the very rules that are at issue in the SCOTUSblog application.” I assume this refers to the 2005 revisions discussed in my prior post.

The RCFP urges the Standing Committee to focus on the function that a journalist serves—“providing news and commentary about pressing issues to the public”—rather than on how his or her organization is organized and financed. In construing its rules, the Standing Committee should consider “the changing finances of the media industry” and should not automatically reject non-traditional arrangements such as the Bloomberg sponsorship.

Moreover, it notes pointedly, “it does not seem workable for credentialing rules as applied to focus solely on a blog’s financial and organizational structure when many large media outlets are owned by corporate conglomerates or obtain substantial advertising revenue from individual companies.” It might have added that since the Standing Committee’s 2005 guidelines allow these media outlets and their corporate owners to continue lobbying as usual, it would be a tad unfair to exclude smaller or less established media outlets based on the mere possibility that they could engage in lobbying.

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Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)

SCOTUSblog has filed this letter with the Standing Committee of Correspondents regarding the Standing Committee’s decision not to renew Lyle Denniston’s membership in the congressional Press Galleries. Although the Standing Committee only determines whether an applicant may be admitted to the House and Senate Press Galleries, such admission is apparently required before Denniston can obtain a Supreme Court credential, which is his main objective. For a thorough and interesting discussion of the background of this matter, see this article, which asks “Why Can’t SCOTUSblog Get a Credential?,” by Jonathan Peters in the Columbia Journalism Review.

To answer this question, we need to take a closer look at the rules governing the press galleries, such as they are. As Peters notes, there are actually four types of press galleries: (1) the Press Galleries (which we will refer to as the “Daily Press Galleries” for clarity’s sake); (2) the Periodical Press Galleries; (3) the Radio and Television Correspondents’ Galleries; and (4) the Press Photographers’ Gallery. The photographers’ gallery is different than the others because it is a single gallery, authorized only by the Senate Committee on Rules and Administration (hereinafter “the Senate Rules Committee”), with no counterpart in the House.

Denniston is applying for admission to the Daily Press Galleries, which are set aside for newspapers and other news organizations that publish daily. The Daily Press Galleries consist of a House Gallery and a Senate Gallery. Each is separately authorized under House and Senate Rules and each has a separate staff. However, they are jointly administered by the Standing Committee, and there is a single set of rules and a single admissions process for both galleries. The Standing Committee’s authority comes from the House and Senate Rules, and it is ultimately subject to the direction and control of the Speaker, with regard to the House Gallery, and the Senate Rules Committee, with regard to the Senate Gallery.

The Periodical Press Galleries and the Radio and Television Correspondents’ Galleries also consist of separate House and Senate Galleries, but, like the Daily Press Galleries, each has a single administrative body, a single set of rules and a single admissions process. The Periodical Press Galleries, for example, admit journalists employed by “periodicals that regularly publish a substantial volume of news material of either general, economic, industrial, technical, cultural, or trade character.” They are governed by the Periodical Press Gallery Rules and overseen by the Executive Committee of the Periodical Correspondents’ Association.

Why is it necessary to have four different types of press galleries, including a separate administrative body and rules for daily versus periodical reporters? Maybe there is a good reason, but I suspect the answer is the same one that explains why there is still a National Information Technology Service.

In any event, that is the overview of the congressional press galleries: seven galleries, seven sets of staff, four administrative bodies, four sets of rules, and two political overseers. All to govern a population the size of a large public high school. Welcome to Washington.

Now let’s examine the rules that govern Denniston’s application.

Continue reading “Should SCOTUSblog Get a Credential? (Or Everything You Always Wanted to Know About the Congressional Press Galleries But Were Afraid to Ask)”

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Resources on State Recount and Contested Election Laws

[Correction: Professor Tokaji informs me that the page I linked to is no longer accessible from Moritz’s main page and has not been kept updated since 2004 or so. My mistake. If anyone knows of more recent compilations, let me know and I will add them to this post]. 

What’s that you say? Where can I find a 12-year old CRS report listing state recount and contested election statutes? Amazingly enough, I have one right here.

The truth is I am cleaning some files, and the hard copy of this report is going in the recycle bin. I couldn’t find the report or a more recent version of it online and, despite its age, it seems worth preserving. A quick google search reveals a couple of other useful sources (here is a summary of state recount laws that is kept up to date [see correction] by Professor Dan Tokaji at Moritz College of Law and here is a 1990 report on state procedures for resolving contested federal elections from the EAC website).  I add the CRS report for whatever additional value it can provide.

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Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the Grand Jury?

The House has now voted to hold Lois Lerner in contempt for her refusal to testify before the House Committee on Oversight and Government Reform. According to the process established by 2 U.S.C. § 194, the Speaker must now certify the statement of facts reflecting the contempt to the U.S. Attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

The House has consistently viewed this language as requiring the U.S. Attorney to present the contempt matter to the grand jury. (By “the House,” I mean the House leadership, majority and institutional counsel at any particular time. I would not be surprised if particular members have taken different positions when they were not in the majority.). See, for example, this 2008 letter from then-Speaker Pelosi regarding the contempt citations for Josh Bolten and Harriet Miers, explaining that “[u]nder section 194, [the U.S. Attorney] is now required ‘to bring the matter before the grand jury for its action.’” (emphasis added)

The ordinary meaning of “duty” supports the House’s position. Any dictionary will tell you that “duty” refers to an obligation, not an option. See, e.g., Black’s Law Dictionary (5th ed. 1979) (“A human action which is exactly comformable to the laws which require us to obey them. Legal or moral obligation. Obligatory conduct or service. Moral obligation to perform.”). Moreover, it seems highly unlikely that Congress used this term loosely or inadvertently. There can be little doubt that Congress wanted to ensure that its contempt citations were actually presented to the grand jury.

Nevertheless, the executive branch has declined to read section 194 as imposing a mandatory obligation. In this 1984 OLC opinion, then-Assistant Attorney General Ted Olson explained that while the language of the statute “might suggest a mandatory obligation,” the statute must be read in light of the common law doctrine of prosecutorial discretion and separation of powers considerations that preclude Congress from directing that a particular individual be prosecuted. Based on these factors, he concluded “that the United States Attorney and the Attorney General, to whom the United States Attorney is responsible, retain their discretion not to refer a contempt of Congress citation to a grand jury.”

Continue reading “Is the U.S. Attorney Required to Present the Lois Lerner Contempt to the Grand Jury?”