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Miranda, Congress and the Boston Marathon Bombing Suspect

A few years ago the Obama Administration considered asking Congress for legislation to expand the “public safety” exception to Miranda v. Arizona, 384 U.S. 436 (1966), so as to allow law enforcement officials to hold and interrogate suspected terrorists without providing the so-called “Miranda warnings.” I argued that existing Supreme Court precedent did not preclude the courts from giving deference to such a statute, particularly if were supported by reasoned fact-finding and/or included alternative methods of ensuring the voluntariness of statements made by suspected terrorists.

The administration, however, did not pursue such legislation. Instead, it apparently adopted internal guidance to clarify how existing legal rules regarding custodial interrogations should be applied in the case of terrorism suspects. The New York Times published a short FBI memorandum it obtained on the issue (I assume that there are more extensive legal memoranda which have not been made public).

The positions set forth in that memorandum may now get a real life test due to yesterday’s arrest of one of the suspected Boston Marathon bombers, Dzhokhar Tsaraev, age 19. According to this article by Josh Gerstein: “’No Miranda warning to be given’ now, a Justice official told POLITICO Friday night. ‘The government will be invoking the public safety exception.’”

The FBI memorandum states “agents should ask any and all questions that are reasonably prompted by an immediate concern for the safety of the public or the arresting agents without advising the arrestee of his Miranda rights.” This would seem to most obviously cover questions about the location of any explosive devices or materials of which Tsaraev may be aware. More controversially, agents may ask him about other potential plots, other individuals who were involved in planning or executing the Boston Marathon bombings and contacts that he or his brother have had with foreign terrorist organizations.

Furthermore, the FBI memorandum says that “[t]here may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation.” This disadvantage of invoking this further exception (lets call it the “intelligence exception”) is that the fruits of the interrogation would likely be inadmissible in court.

To further complicate matters, the bombing suspect is relatively young and badly wounded. Thus, apart from issues of unwarned custodial interrogation, Tsaraev’s lawyer (when he gets one) will probably argue that any statements by his client were involuntary due to some combination of his age, his medical condition, any medications he is receiving, explicit or implicit threats with regard to pain medication, etc.

As a practical matter, therefore, the FBI is probably all in with regard to questioning Tsaraev. In other words, once the decision is made not to Mirandize him, the agents have to proceed as if nothing that he says will likely be admissible. This may not be much of a problem given the amount of evidence that it had accumulated prior to taking the suspect into custody. Accordingly, law enforcement may feel free to be unusually aggressive in its questioning, which could raise some of issues regarding “coercive interrogations” that arose during the Bush Administration.

It would be hopelessly naïve to suggest that Congress could have obviated all of these problems by enacting legislation to define the scope of permissible interrogations for terrorism suspects. Nevertheless, it is worth noting that Congress, rather than simply complaining about executive branch actions after the fact, could actually take a stab at writing the rules that would govern these interrogations. I guess that would be hopefully naïve.

 

 

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Noel Canning: Does It All Depend On What The Meaning Of “The” Is?

In Noel Canning v. NLRB (Jan. 25, 2013), the D.C. Circuit held that President Obama’s January 4, 2012 recess appointments to the National Labor Relations Board were constitutionally invalid because the Senate was in an intrasession adjournment at the time. The court held that only a period of intersession adjournment constitutes “the Recess” of the Senate within the meaning of the Recess Appointments Clause.

The court has been the subject of some justifiable criticism (see Professors Garrett Epps here and Eric Posner here) for its emphasis on the fact that the RAC refers to “the Recess,” rather than “a Recess.” In the court’s estimation, this fact leads to the “inescapable conclusion” the Framers intended “something specific” by “the Recess.” The court concludes that the Framers must have used “the Recess” to mean something narrower and more specific than any break in the proceedings. It contrasts the Constitution’s use of “the Recess,” which appears only in the RAC and the Senate Vacancies Clause, with its use of the terms “adjourn” and “adjournment” to signify any break in proceedings.

Continue reading “Noel Canning: Does It All Depend On What The Meaning Of “The” Is?”

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Recess Appointment News

The Justice Department will not seek en banc rehearing of the D.C. Circuit’s decision in Noel Canning, but will seek certiorari instead (the deadline for filing is April 25). Assuming the Court grants the petition (which, pretty much everyone seems to agree, seems likely), arguments will be heard in the fall. It is worth noting that the NLRB recess appointments at issue will expire, even under the administration’s legal theory, no later than January 2014.

A forthcoming student note, by Amelia Frenkel of NYU Law School, argues that the Recess Appointments Clause does not apply to newly-created offices because such unfilled offices are not “vacancies” or are not vacancies that “happen” within the meaning of the RAC. It follows from this argument that President Obama’s recess appointment of Richard Cordray to become the first director of the CFPB was invalid.

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Six Answers for Six Puzzles

Over at The Originalism Blog, Professor Michael Ramsey has given his answers to Professor Seth Barrett Tillman’s “Six Puzzles” on the Constitution’s various uses of the terms “officers” and “offices.” FWIW, I tend to agree with all of Ramsey’s answers with one possible exception.

That relates to the first puzzle, which involves the Succession Clause’s provision that “Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President . . . .” The question is whether the term “Officer” encompasses legislative officers (if the answer is no, then it was unconstitutional for Congress to place the Speaker of the House and the President Pro Tem of the Senate in the line of succession).

Ramsey and Tillman believe that because the Succession Clause uses the broad term “Officer,” rather than a possibly narrower formulation such as “Officer of the United States” or “Officer under the United States,” as the Constitution does elsewhere, legislative officers must be covered. Given the Constitution’s varied usages of the terms “officer” and “office,” I find the term ambiguous. Structural and other evidence casts doubt on whether legislative officers were meant to be included. For example, in Article VI the Oath Clause applies to “Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States.” I find it difficult to believe that the Framers deliberately decided to exclude non-member legislative officers from being bound by oath, yet decided to include them in the Succession Clause. It seems more likely that the term “Officers” standing alone was understood to include either executive officers only, or both executive and judicial officers, but that legislative officers were not understood to be “Officers” in the same sense, or were simply considered so unimportant as to be not worth mentioning.

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The Nuclear Option, the Law of the Senate and the Conscientious Senator

This is my final post (at least for this Congress, hopefully) on the filibuster and the entrenchment of Senate rules. For the first 9 entries in this series, see below:

Legal Scholar Letter to the Senate on Procedures for Changing the Rules

Professor Bruhl and Senate Continuity

Professor Chemerinsky and Senate Precedent on Changing the Rules

Senate Rules from the Internal Point of View

Entrenchment and the Academic “Consensus”

Entrenchment Reconsidered (Part I)

Entrenchment Reconsidered (Part II)

Professor Chafetz and the “Constitutionally Conscientious Senator”

Did the Senate Flub Its Cinderella Moment?

In this post, I will consider the so-called “nuclear option,” its legality or legitimacy under the law of the Senate, and how a “constitutionally conscientious Senator” should vote with respect to its exercise.

The “nuclear option” (also sometimes called the “constitutional option”) may be defined as the use of a parliamentary ruling to declare the Senate rules unconstitutional insofar as they require a supermajority to end debate on a proposed change to the rules. If such a ruling were upheld by a simple majority, it would no longer be possible for a minority of senators to block rules changes (depending on the scope of the ruling, either at the beginning of a Congress or at any time). This would effectively end the (allegedly) unconstitutional entrenchment of the Senate rules claimed by the signatories to the December 12 legal scholar letter.

As explained below, I believe that the “nuclear option” is most reasonably understood as illegal under the existing law of the Senate, in the sense that its use would require overruling a substantial body of Senate precedent. Furthermore, it is believed by most senators, including some that would be willing to invoke the nuclear option if need be, that its use would entail, at the very least, substantial institutional costs in terms of the stability and perceived legitimacy of the Senate’s legal system. At the most, the nuclear option would effectively destroy the Senate’s existing legal system and require the creation of a new system of rules and precedents more or less resembling the House’s majoritarian procedures.

The Senate has previously declined to exercise the nuclear option on a number of occasions, including in 2005 when the Republican majority considered using it to abolish the filibuster with respect to judicial nominations and, most recently, on January 24, 2013, when the Democratic majority considered using it to enact major reforms to the filibuster generally. The evidence from these episodes indicates that many senators, including the “swing senators” (majority senators who refused or were reluctant to support the use of the nuclear option), were concerned about both the legitimacy of the nuclear option under the law of the Senate and the practical effects that it would have on the Senate as an institution.

Rather than trying to convince senators that they misunderstand the Senate’s own traditions and precedents, or that they overstate the likely institutional consequences of the nuclear option, it seems to me that the scholars and academics who have opined on these issues would provide a more useful service to the Senate by proposing constitutional solutions that can reasonably be achieved under the Senate’s existing rules. At the conclusion of this post, I suggest one possible solution.

Continue reading “The Nuclear Option, the Law of the Senate and the Conscientious Senator”

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House Democrats Support BLAG’s Standing in DOMA Case

Probably the most important part of the Bipartisan Legal Advisory Group’s jurisdictional brief in U.S. v. Windsor (the Supreme Court case on the constitutionality of the Defense of Marriage Act) is the first footnote (page ii), which states:

The Bipartisan Legal Advisory Group articulates the institutional position of the House in all litigation matters in which it appears. The Group currently is comprised of the Honorable John A. Boehner, Speaker of the House, Eric Cantor, Majority Leader, the Honorable Kevin McCarthy, Majority Whip, the Honorable Nancy Pelosi, Democratic Leader, and the Honorable Steny H. Hoyer, Democratic Whip. While the Democratic Leader and Democratic Whip have declined to support the position taken by the Group on the merits of DOMA Section 3’s constitutionality in this and other cases, they support the Group’s Article III standing.

(emphasis added).

The fact that the House Democratic Leadership supports BLAG’s standing to defend the constitutionality of DOMA tells the Supreme Court, in no uncertain terms, how vital the House considers its right to defend the constitutionality of statutes where the executive branch refuses to do so.  If the Court is looking for an “easy out” from this case, this makes it harder. Although it is arguable that the House Democrats are only supporting BLAG’s “Article III standing,” as opposed to prudential standing requirements that the Court might decide to apply, it is even more noteworthy that they are supporting BLAG’s standing, not just the House’s. The House Democratic Leadership evidently agrees that BLAG was properly authorized to represent the House in this litigation, which is a key jurisdictional question.

Full disclosure: I am representing 10 Senators in this case on an amicus brief in support of DOMA’s constitutionality.

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Tillman’s Puzzles for Amar (or Who You Callin “Atextual”?)

In this article, Professor Seth Barrett Tillman has six puzzles for Professor Akhil Amar:

Puzzle 1. Does “Officer,” as used in the Succession Clause, Encompass Legislative Officers?

Puzzle 2. Does Impeachment Extend to Former “Officers”?

Puzzle 3. Who are the “Officers of the United States”?

Puzzle 4. Is the President an “Officer of the United States”?

Puzzle 5. Is the Presidency an “Office . . . under the United States”?

Puzzle 6. Is “Officer of the United States” Coextensive with “Office under the United States”?

Tillman explains the background as follows:

The Constitution of 1787 uses a variety of language in regard to “office” and “officer.”

It makes use of several variants on “office under the United States,” and it also uses “officer of the United States,” “office under the Authority of the United States,” and, sometimes, just “officer” without any modifying terminology. Why did the Framers make these stylistic choices (if a choice it was)?

(And what was the Constitution referring to in Article VI’s obscure “public trust under the United States” language?)

From time to time commentators have suggested answers. One such view was put forward in 1995 by Professors Akhil and Vikram Amar. They opined that each of these categories were indistinguishable: each category referred to Executive Branch and Judicial Branch officers, including the President (and, apparently, the Vice President).

I contest their atextual position.

If you are interested in the “officers” dispute, or if you just want to know where the bodies are buried … this paper is for you. “Six Puzzles for Professor Akhil Amar.” Sometimes the title says all you really need to know…

Over at the Originalism Blog, Professor Michael Ramsey says he may take stab at solving these puzzles. I hope he gets them right, or Gotham City is DOOMED!

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Noel Canning Timing

I hear through the grapevine that the Justice Department has decided not to seek en banc review of the Noel Canning decision, but instead will petition for cert on a non-expedited basis, meaning that the case would likely be heard by the Supreme Court next term.

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Recess Appointments Issue Could Reach SCOTUS Sooner than Expected

As explained by the Blog of the Legal Times, an emergency petition has been filed with Justice Ruth Bader Ginsburg raising the validity of the recess appointments to the NLRB. The petition was filed by Paul Clement on behalf of a company that is resisting an NLRB effort to require it to rehire striking nursing care workers in Connecticut. Clement argues that the recess appointments issue will inevitably reach the Supreme Court following the D.C. Circuit’s decision in the Noel Canning case so (I guess) the Court might as well go ahead and consider the issue now.

Justice Alito’s sister appears as counsel on the application which means, I assume, that he would have to recuse himself from the case.

Update: after Justice Ginsberg denied the application, Clement filed the application with Justice Scalia.

Update 2: That didn’t work either.

 

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Did the Senate Flub its Cinderella Moment?

On January 24, 2013, the Senate adopted certain rules changes that, according to published reports, will modestly restrict the use of the filibuster, but will not fundamentally alter the minority’s ability to block cloture on matters covered by Rule XXII. It accomplished these changes by adopting S. Res. 15, which provided a new standing order, and S. Res. 16, which amended the standing rules of the Senate. In addition, the Senate voted down S. Res. 5, offered by Senator Harkin, which would have made more extensive changes to the filibuster.

Professor Akhil Amar is very upset by these developments. According to Amar, “nothing has prevented the Democrats, legally speaking, from exercising their constitutional right (nicknamed the ‘nuclear option’) to insist, by a simple majority vote, that simple majorities should rule in the Senate.”

This strikes me as an oversimplification of Amar’s own position. As suggested in my last post, Amar’s position has not been that the Senate majority is entitled to insist on majority cloture as a pure act of will (or, as Professor Chafetz puts it, by the “application of brute force”). Rather he has argued that each senator has the “right and duty” to “adjudicate” whether “Rule 22 has in fact come to operate as an improper rule of decision rather than a proper rule of debate.”

The Senate may not have framed the legal issues in exactly the same way, but its debate over amending the rules certainly encompassed the questions of whether Rule XXII had been improperly used to block, rather than to facilitate, debate and whether the rules changes would better enable it to fulfill its intended purpose in the future. Professor Amar may not agree with how the Senate resolved these issues, but at least he should acknowledge that it grappled with them.

If Amar has a legitimate gripe, “legally speaking,” it is not with those who opposed the use of the “nuclear option.” Rather it is with the legal argument made by those who advocated the use of this option (which they prefer to call the “constitutional option”).

Senator Harkin, for example, asserted that “[e]ach new Congress—each time the Senate convenes after a new Congress forms—can by majority vote change its own rules.” (S254) This he contrasted with “attempting to change the rules in the middle of a Congress,” which he views as improper. See id. (“I mean, you can’t go changing rules every other week”); see also id. at S267 (Senator Udall) (“I don’t think that looking at our rules and amending them by a majority vote at the beginning of a Congress is dangerous”).

To bolster his legal position, Senator Harkin quoted from the December 12 letter (which, he took pains to note, was signed by “very prominent Republicans” Charles Fried and Michael McConnell). The December 12 letter endorses the distinction between changing the rules at the beginning of a new Congress and changing them at any other time, and Senator Harkin accurately quotes the letter in support of this proposition.

However, as we have seen, there is little constitutional merit in this proposition. Professor Amar agrees (though not for exactly the right reason). Two years ago he mocked the idea that “the Senate like Cinderella [has] the power to transform itself in only one limited moment, at the opening of a new Congress.” Amar found ridiculous the idea that there is something “magical” about “Day One” of a new Congress (a day which, he aptly noted, could be indefinitely extended by the Majority Leader in a “separate piece of magic”).

Continue reading “Did the Senate Flub its Cinderella Moment?”