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The Filibuster and Obamacare: My Comments on Seth Tillman’s Comments

Seth Barrett Tillman sends in the following thoughts (also posted on The Volokh Consipiracy)  on Obamacare and the Senate’s use of the “nuclear option” to limit the filibuster:

The Nuclear Option and Political Responsibility for Obamacare

 The Senate’s use of the nuclear option pins any defects in the Affordable Care Act (“ACA”) on the Democrats. Until the nuclear option was used, Democrats said that they had to pass an arguably defective bill because they could not get around a minority Republican-led filibuster in the Senate. In other words, although the Senate was able to invoke cloture and pass the ACA when it had Senator Ted Kennedy’s vote, once he died and was replaced by Senator Scott Brown, the Democratic majority in the Senate was unable to pass an alternative bill or substantively amend the ACA.

 But the use of the nuclear option undercuts that narrative. We now know that the Democratic majority always had the ability to change the rules and to end debate on any amendment or amendments to the ACA. The Senate Democratic majority always had the power to terminate debate—it is just that the Senate Democratic majority refused to exercise that power.

 If Obamacare is defective, it is not because the Republicans filibustered or threatened to filibuster any amendments, but because the Senate Democratic majority refused to terminate debate using a power which was always within their reach. It follows that political responsibility for any virtues or defects in the ACA rests entirely with the Democrats who passed it.

I don’t have any comment on the political aspect of this argument, but Tillman raises an interesting legal question. There is no doubt that the Senate majority “had the power” to use the nuclear option in 2010 if by this one means nothing more than it could have acted, as a factual matter, to override any filibuster. This calls to mind the “debate” President Obama had with a heckler the other day, in which the heckler yelled that Obama had the power to stop all deportations by executive order, and Obama replied “Actually I don’t.”

The heckler meant that Obama had the power, as a factual matter, to sign an order halting all deportations, which is certainly true. It is also (virtually) certain that such an order would have the effect, at least in the short term, of stopping deportations and quite likely true that it would prevent any further deportations for the remainder of Obama’s term.

What Obama meant is that although he has the factual power to take this step, he lacks the legal authority to do so. More precisely, Obama believes, or says he believes, that he lacks the legal authority to stop all deportations. On the other hand, Obama believes, or says he believes, that he has the authority to halt certain categories of deportations, and one can see how the heckler might not appreciate the difference.

Which brings us back to the Senate. One might infer from its action last week that a majority of the Senate believes it has the lawful authority to override a filibuster by a simple majority vote, although I cannot identify any coherent legal theory that would support the precise action it took (overriding the filibuster as to non-Supreme Court nominations only). There is a coherent legal theory, advanced by Republicans in 2005, to the effect that the filibuster is unconstitutional as to nominations only (not as to legislation), but it does not appear that the Senate is relying on that theory to support its action.

Leaving that aside, one can say with confidence that if the Senate acted lawfully last week, it could have lawfully overridden the filibuster against the Affordable Care Act in 2010. But it remains possible that a majority of the Senate did not believe in 2010 that it had this authority, and that a majority of the Senate does believe that (due to changes in seats or changes in attitude) today.

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The Senate’s “Neutron Option”?

Roll Call reports this morning:

 The Senate voted, 52-48, to effectively change the rules by rejecting the opinion of the presiding officer that a supermajority is required to limit debate, or invoke cloture, on executive branch nominees and those for seats on federal courts short of the Supreme Court.

At least three Democrats — Carl Levin of Michigan, Joe Manchin III of West Virginia, and Mark Pryor of Arkansas — voted to keep the rules unchanged.

The move came after Majority Leader Harry Reid, D-Nev., raised a point of order that only a majority of senators were required to break filibusters of such nominees. Presiding over the Senate as president pro tem, Judiciary Chairman Patrick J. Leahy of Vermont issued a ruling in line with past precedent, saying that 60 votes were required. Leahy personally supported making the change.

Voting against Leahy’s ruling has the effect of changing the rules to require only a simple majority for most nominations.

There are two interesting aspects of this action. First, Senator Leahy apparently voted to reverse his own ruling, which is puzzling to say the least. Either his initial ruling was correct, or it was not. One would have to infer that he believes his ruling was correct under the existing rules of the Senate, but that the Senate could choose to change the rules by reversing it. But I am not aware of any legal theory that would justify that approach.

Second, the new rule evidently is intended to apply solely to executive branch nominations and to non-Supreme Court judicial nominations. So the filibuster apparently survives only as to one particular type of nomination. Call it the “neutron option.” (If you are too young to get this reference, google it).

Again, however, I am not aware of any legal or constitutional theory that would justify distinguishing between Supreme Court and other nominations. By this I don’t mean I am unaware of any good legal theory. As we have discussed before, there are a number of legal arguments that have been invoked to support the nuclear option, including some that I find quite implausible. However, I am not aware of any argument, plausible or implausible, that supports what the Senate apparently did today.

 

 

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How the House Deals with Cocaine Possession

As reported by Roll Call and various other outlets, Representative Trey Radel is to appear in D.C. Superior Court tomorrow to face charges of misdemeanor possession of cocaine. No one seems very clear on how this matter will be treated in the House so I think it is worth pointing out that House rules require the Ethics Committee to take action here.

House Resolution 5, which adopted rules for the 113th Congress, provides in Section 4(e) that “[t]he text of House Resolution 451, One Hundred Tenth Congress, shall apply in the One Hundred Thirteenth Congress in the same manner as such provision applied in the One Hundred Tenth Congress.” House Resolution 451, in turn, requires that:

          [W]henever a Member of the House of Representatives . . . is indicted or otherwise formally charged with criminal conduct in a court of the United States or any State, the Committee on [Ethics] shall, not later than 30 days after the date of such indictment or charge-

 (1)        empanel an investigative subcommittee to review the allegations; or

(2)        if the Committee does not empanel an investigative subcommittee to review the allegations, submit a report to the House describing its reasons for not empaneling such an investigative subcommittee, together with the actions, if any, the Committee has taken in response to the allegations.

As noted in the House Ethics Manual, Resolution 451 thus requires some action by the Ethics Committee whenever a Member is charged with criminal conduct, and “does not distinguish between felony and misdemeanor criminal charges.”

 

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More on Fast and Furious

As mentioned last month, a federal district court has denied Attorney General Holder’s motion to dismiss a lawsuit, brought by the House Committee on Oversight and Government Reform, in which the committee seeks to enforce a subpoena for Justice Department documents related to the “Fast and Furious” investigation. The motion to dismiss advanced a number of grounds for declining jurisdiction, but they all more or less came down to a claim that the court should not intervene in a political dispute between the executive and legislative branches.

Judge Amy Berman Jackson decisively rejected these arguments in her opinion (summarized in more detail below). The court not only found the Justice Department’s arguments to be contrary to longstanding precedent, but inconsistent with the executive branch’s own prior practice. As the court pointed out, the executive branch has “itself invoked the jurisdiction of the courts when it sought to enjoin compliance with a Congressional subpoena” (during the AT&T case in the 1970s) and when it sought “a declaration concerning the validity of a claim of executive privilege asserted in response to a House request” (during the Gorsuch case in the 1980s). Quoting Judge Bates in the Miers litigation, Judge Jackson commented that “[t]he Court does not understand why separation of powers principles are more offended when the Article I branch sues the Article II branch than when the Article II branch sues the Article I branch.”

Reading Jackson’s original decision, it is evident that she did not think this is a particularly close case or difficult legal question. That impression is confirmed by her order yesterday with respect to the Attorney General’s request to certify the decision for interlocutory appeal. Granting such a request requires finding a “substantial ground for difference of opinion” with respect to the question of law, and the court found that the Attorney General had failed to provide any authority or other ground for such a difference of opinion. Accordingly, it declined to certify the question for appeal.

For those who are interested, a summary of the earlier opinion follows.

Continue reading “More on Fast and Furious”

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Senator Vitter, Congressional Health Care, and the Rule of Law

This weekend the Washington Post published an article entitled “A senator’s lonely quest to embarrass Congress,” which describes Senator Vitter’s continuing efforts with regard to the health insurance plans available to Members of Congress and congressional staff. You wouldn’t think that embarrassing Congress would be all that lonely of a quest; perhaps that’s why the online title is changed to “David Vitter’s political quest to embarrass Congress on health care.”

Of specific interest to this blog, Vitter objects to the fact that some committee and leadership office staffers have not been required to obtain insurance on the exchanges. In remarks made on November 13 in the Congressional Record, he states:

Part of [the OPM] rule, which I think is outrageous on its face, says: Well, we don’t know who official staff are. We cannot determine that, so we are going to leave it up to each individual Member of Congress to determine who their official staff are. As long as they deem certain staff nonofficial, then they don’t have to go to the exchanges at all. They don’t have to follow that clear mandate in the statute itself.

Well, again, when we are talking about folks who work on our staff, committee staff, and leadership staff, that is ridiculous. They are clearly official staff.

Continue reading “Senator Vitter, Congressional Health Care, and the Rule of Law”

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The Public Debt Clause and Other Things You Can’t Take to the Bank

Monday the Federalist Society hosted a teleforum on the debt ceiling with Senator Mike Lee, David Rivkin of Baker Hostetler, and Professor Richard Epstein. The call featured an interesting debate between Rivkin and Epstein on Section 4 of the 14th Amendment, also known as the Public Debt Clause. Unfortunately, the sound quality on Epstein’s line was poor. Fortunately, as one of his former students, I have some experience in trying to follow him while only being able to catch every other word or so.

Rivkin took the position that the United States is “constitutionally incapable of default,” relying on the Public Debt Clause and Perry v. United States, 294 U.S. 330 (1935). As a consequence, he maintained, bond investors should be reassured that there will be no default in the event that the debt ceiling is not raised.

It is important to recognize what Rivkin is not saying here. He is not saying that default is factually impossible. If I am a bond investor (which I am, come to think of it), and Jack Lew decides not to write me a check when my interest payment is due, then there is a default on the bond (at least as I understand the meaning of the term). Lew’s failure to write me a check may be illegal or unconstitutional, but I still don’t have the check, and I can’t deposit the Public Debt Clause in my bank account.

What Rivkin is saying is that I can go to the Court of Claims and get a judgment against the United States in the amount of whatever money I am owed under the bond. But even if that is true, the ability to go to the Court of Claims and get a judgment is worth considerably less than the check from Jack Lew. The former involves time, money, and uncertainty, and if/when I get the judgment, I still don’t have something that I can deposit into my bank account.

Continue reading “The Public Debt Clause and Other Things You Can’t Take to the Bank”

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Senate “Official Office” Designations Still a Black Box

Yesterday Roll Call reported on a memorandum issued by the Senate Disbursing Office to guide Senate employees on the considerable intricacies of their health insurance situation. However, with regard to the foundational question of whether any particular employee may continue to receive health insurance through the FEHB or, conversely, must get insurance through the DC Exchange, the memo provides little guidance.

The memo advises:

OPM has stated that the designation of whether an employee is part of a Member’s “official office” is ultimately determined by the Member, unless the Member delegates that designation to the Secretary of the Senate. The Senate Disbursing Office has provided each Member with a form to make “official office” designations regarding personal, committee, and leadership staff. The Disbursing Office will confirm your individual designation status after October 31, 2013 by mail.

This sure sounds as if Senators will have the ability to designate “personal, committee, and leadership staff” as “official office” employees if they so choose. There is nothing in the memo I see to inform the exercise of this discretion or to discourage a Senator from designating all of her personal, committee and leadership staff as “official office” (or, conversely, from designating none).

Now the Roll Call story says:

Leadership staffs and committee staffs are still exempt from the exchanges, as was written into the law (by leadership and committee staffs). It is up to each office, per the Office of Personnel and Management rule stated in the memo, to determine who is qualified for this exemption.

But where does it say that leadership and committee staff are “still exempt from the exchanges”? As far as I can see, it doesn’t say that in the Disbursing Office memo and, as we have discussed, OPM didn’t say that either.

Presumably Roll Call expects that Senators will designate leadership and committee staff as “official office” only if they anticipate the staff will spend some part of the year working in the personal office or on the personal office payroll. But if this is the rule, one would expect to see it appear somewhere in writing. Usually, legal standards are not established by word of mouth or on deep background.

Of course, since Senators have the option of punting (I mean “delegating”) the “official office” designation to the Secretary of the Senate, presumably the Secretary has decided or will decide shortly how she would make the decision. Perhaps this is being communicated to Senators in some private fashion. Maybe it appears in the “official office”  designation form that each Senator has received, a document which is not being shared with Senate employees or the general public. Who knows?

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Tillman on the Origination Clause

Seth Barrett Tillman sends the following comments on the Origination Clause:

The Constitution provides:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

U.S. Const. Art. 1, Sect. 7, Cl. 1.

If the House sends a non-revenue bill to the Senate and the Senate amends the bill, and in the process makes the bill a revenue bill, the bill has become a revenue bill per Senate amendment. But that bill for raising revenue still originated in the House (albeit, it first took its character as a revenue bill via Senate amendment).

The Constitution’s text does not demand that bills for raising revenue originate in the House qua as revenue bills, but only that any bill which has the character of a revenue bill prior to final passage must have originated in the House.

It follows that there is no limit at all in regard to the Senate’s amendment power.

Indeed, the Origination Clause states that the Senate’s power (under Article I, Section 7, Clause 1 to amend revenue bills) is coextensive (“as on other Bills”) with the Senate’s power to amend non-revenue bills (under Article I, Section 7, Clause 2). Unless you are willing to argue that the Senate’s power to amend non-revenue bills per Clause 2 is textually limited, then its follows no such limitation exists under Clause 1. Any other view essentially renders Clause 1’s “as on other Bills” language nugatory. And that cannot be right (at least if you are a textualist).

Also, I think there are good prudential reasons (akin to standing and justiciability) for courts to reject Origination Clause challenges: in other words, strong versions of the enrolled bill rule and a wide interpretation of the Speech & Debate Clause are called for here. Why? In the 18th century, parliamentary journals were quite skeletal. They did not generally include either the full text of bills or the full text of amendments (unless very short). In order to make an Origination Clause challenge, the proponent would have either: (1) to reference modern congressional journals or other congressional documents to establish that the amendment process in the Senate went “too far” in some sense; or (2) to subpoena members of Congress or parliamentary staff (the Clerk, the Secretary, the sergeants-at-arms, the door-keeper, and other staff). That’s a truly bad result.

Why? If you go down path (1), you are punishing the majority for being transparent. Then they will stop being transparent. As to (2), congress members are generally exempt from process. Article I, Section 6, Clause 1. (Perhaps, you could get former members?) As to parliamentary staff – they are exempt (as a constitutional matter) from the Constitution’s Article VI oath. I suggest that the reason for that exemption was to avoid this precise situation – to keep an aggressive judiciary from invading and investigating Congress’ internal procedures. Viz: The enrolled bill rule.

The better interpretation of the Origination Clause is that only House members (i.e., the majority) can make use of the clause during inter-house proceedings. And like other rights, it can be waived, but only by those entitled to assert it.

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Heritage Foundation Panel on Recess Appointments

This Thursday, October 10, at noon, the Heritage Foundation will be hosting an event on recess appointments and the case currently pending in the Supreme Court. Senator Mike Lee will deliver opening remarks, followed by a panel discussion by Professor John Yoo and me. Here is the synopsis of the event:

Recess is over, but the President has been playing around with the Recess Appointments Clause. Earlier this year, President Obama’s alleged recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau came under fire. The problem? The Senate was not in recess at the time of the appointments. Three federal appellate courts have struck down various recess appointments as unconstitutional, and the Supreme Court has agreed to hear National Labor Relations Board v. Noel Canning this term.

In light of these controversial appointments, we are left with many questions. What is the role of the Senate when it comes to recess appointments? How did our Founding Fathers intend for the recess appointment power to be used? Can the Senate block the President from making recess appointments through the use of pro forma sessions? How might the justices rule in the Noel Canning case? Please join us as our panel of experts explores these issues.

The link for registering for this free event is here.

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Judge Jackson’s “Fast” and Furious Decision

Though it might seem like a distant memory (what with everything else going on), the House’s civil contempt lawsuit against Attorney General Eric Holder still percolates in the courts. The House is investigating “Fast and Furious,” but the resulting litigation is more like “Slow and Cranky.”

On September 30, Judge Amy Berman Jackson issued a long-awaited ruling on the Attorney General’s motion to dismiss the complaint on jurisdictional grounds. Her opinion does not reach the merits of the case (which involves the question of whether the President validly invoked executive privilege over certain internal Justice Department documents subpoenaed by the House Committee on Oversight and Government Reform), but it decisively rejects the Attorney General’s argument that the court lacks the power to decide the case at all.

I will summarize the court’s ruling in another post, but the bottom line is this. The Obama Justice Department made almost exactly the same jurisdictional arguments that the Bush Justice Department made in House Committee on the Judiciary v. Miers, 558 F.Supp.2d 53 (D.D.C. 2008), and they left Judge Jackson every bit as unimpressed as Judge Bates was in Miers.

One interesting point to note in Judge Jackson’s ruling. She emphasizes that the House’s complaint “raises a narrow legal question: can the executive properly assert executive privilege to shield an agency’s deliberative processes when the records in dispute do not reveal advice provided to the President himself or address his core constitutional functions?” (slip op. at 27 n.7). She contrasts this “purely legal question” with the messier function of weighing COGR’s need for the documents it seeks against DOJ’s interest in protecting its internal deliberations. Slip op. at 40-41.

But the Fast and Furious lawsuit is limited to a “purely legal question” only if Judge Jackson decides that question in favor of the House. If she concludes that the President may invoke executive privilege with regard to the documents in question, then it would be necessary for the court to engage in the kind of weighing of interests that raise some of the hallmarks of a political question.

This in turn suggests that Jackson may be leaning toward deciding the merits of the legal question in the House’s favor, which would end the litigation and require DOJ to produce the documents. Alternatively, should she decide that the President did properly invoke executive privilege, she may be inclined to send the parties back to the negotiating table before trying to “wad[e] into the murk” of the political wrangling between the parties.