Obama Recess Appointments Slapped Down by DC Circuit, CFPB At Risk

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What can only be described as a blockbuster opinion was just handed down by the DC Circuit in the case of Canning v NLRB, the validity of President Obama’s recess appointments has been slapped down. Here is the full opinion. The three judge panel was Chief Judge David Sentelle, Karen Henderson and Thomas Griffith, all Republican appointees (one from each Bush and one Reagan).

The immediate effect of the court’s decision is, of course, on the National Labor Relations Board (NLRB). Noel Canning was aggrieved by a decision of the NLRB and petitioned for review, the NLRB cross-petitioned to have its decision upheld. Fairly standard stuff – except the quorum on the NLRB Board was met only because of the fact Barack Obama controversially recess appointed three members in January 2012, as well as concurrently recess appointing Richard Cordray to be the Director of the Consumer Finance Protection Bureau. So, three out of the five members of the NLRB Board were, according to Canning’s argument, not validly sitting and therefore their decision was invalid as to him

Canning had merits arguments on the specific facts of his individual case, but the court found those non-compelling and proceeded on the Constitutional arguments surrounding the validity of the recess appointments. And the Court agreed with Canning that Obama’s recess appointments were invalid. The discussion by the court can be gleaned from these passages:

All this points to the inescapable conclusion that the Framers intended something specific by the term “the Recess,” and that it was something different than a generic break in proceedings.
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It is universally accepted that “Session” here refers to the usually two or sometimes three sessions per Congress. Therefore, “the Recess” should be taken to mean only times when the Senate is not in one of those sessions. Cf. Virginia v. Tennessee, 148 U.S. 503, 519 (1893) (interpreting terms “by reference to associated words”). Confirming this reciprocal meaning, the First Congress passed a compensation bill that provided the Senate’s engrossing clerk “two dollars per day during the session, with the like compensation to such clerk while he shall be necessarily employed in the recess.” Act of Sept. 22, 1789, ch. 17, § 4, 1 Stat. 70, 71.

Not only logic and language, but also constitutional history supports the interpretation advanced by Noel Canning, not that of the Board. When the Federalist Papers spoke of recess appointments, they referred to those commissions as expiring “at the end of the ensuing session.” The Federalist No. 67, at 408 (Clinton Rossiter ed., 2003). For there to be an “ensuing session,” it seems likely to the point of near certainty that recess appointments were being made at a time when the Senate was not in session — that is, when it was in “the Recess.” Thus, background documents to the Constitution, in addition to the language itself, suggest that “the Recess” refers to the period between sessions that would end with the ensuing session of the Senate.
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The Constitution’s overall appointments structure provides additional confirmation of the intersession interpretation. The Framers emphasized that the recess appointment power served only as a stopgap for times when the Senate was unable to provide advice and consent. Hamilton wrote in Federalist No. 67 that advice and consent “declares the general mode of appointing officers of the United States,” while the Recess Appointments Clause serves as “nothing more than a supplement to the other for the purpose of establishing an auxiliary method of appointment, in cases to which the general method was inadequate.” The Federalist No. 67, supra, at 408. The “general mode” of participation of the Senate through advice and consent served an important function: “It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” The Federalist No. 76, supra, at 456.

Then the blow was delivered: Read more →

The Constitutional Argument Against the Platinum Coin Stunt

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They came for the 4th Amendment, but it was necessary for the war on drugs. They came for the 5th Amendment, but due process had to be sacrificed for the war on terror. They came for the 6th Amendment, but confrontation had to succumb to classification and secrecy. They came for the War Powers Act because Libya was “required to be protected”. Now they are coming for one of the most fundamental of Constitutional checks and balances, the Congressional prerogative of the purse.

Who are “they”? They are, of course, the ubiquitous Article II Executive Branch. And they have a never ending thirst for usurping power, all in the name of efficacy. It is always necessary, it is always an emergency, there is always a reason, for them to take the power. They are the Daddy Branch, and it is always best to trust them. So they say.

Back when “they” were the Bush/Cheney regime, liberals, progressives, and Democrats in general, had a seriously dim view of accumulation and usurpation of power in a unitary Executive. When Dick Cheney, David Addington and John Yoo contorted existing law, gave it application never intended, and manufactured legal and governmental gimmickry to accomplish stunningly naked Executive power grabs, those on the left, especially the blogosphere, screamed bloody murder. Well, that is precisely what is afoot here with the Mint the Coin! push.

Where is that principled set of voices on the left now? Things are different when it is your guy in office I guess. Because the active liberal/progressive left I see out there is currently screaming to “Mint the Coin!” doesn’t seem to realize they are calling for the same type of sham rule of law that John Yoo engaged in.. This is most curious, because “Minting the Coin!” contemplates a naked power grab by the Executive Branch of historic proportions. It is a wholesale taking of the Congressional purse prerogative under the Constitution. But, hey, its an “emergency”. Of course. It always is when the Article II Executive Branch comes to feed in the name of efficacy.

What is the value of Separation of Powers, and constriction of Constitutionally assigned powers to the branch to which they were assigned, and what is the value in insuring that an imperial Executive Branch does not usurp too many powers? Let James Madison, in Federalist No. 47 explain:

No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
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The constitution of Massachusetts has observed a sufficient though less pointed caution, in expressing this fundamental article of liberty. It declares “that the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them. ” This declaration corresponds precisely with the doctrine of Montesquieu, as it has been explained, and is not in a single point violated by the plan of the convention. It goes no farther than to prohibit any one of the entire departments from exercising the powers of another department (Publius, Federalist 47).

What is the import of the Congressional “Power of the Purse”? As James Madison said in Read more →

Wayne LaPierre Demands $5 Billion Subsidy for His NGO

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The central thrust of Wayne LaPierre’s press conference offering “solutions” in the wake of the Newtown massacre is to put armed security in every school.

There were 98,706 public schools in 2008-9 (plus 33,740 private schools, which I’ll leave aside).

Even assuming you underpay these armed security guards until such time as school unions represent them, you would pay at least $50,000 in wages and benefits for these armed guards.

That works out to roughly $5 billion, for just one guard in every public school.

That, at a time when we’re defunding education.

In short, Wayne LaPierre just demanded a $5 billion subsidy for his NGO, the price he presumes we should pay as yet another externalized cost of America’s sick relationship with guns.

I’ve got a better idea. Let’s tax gun owners, to cover thus potential cost and the cost of responding to the massacres the NRA enables. Anything short of such stiff taxes would be socialism.

How Obama’s DOJ Sold Out American Citizens In the Robo-Signing Criminal Plea

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Yesterday afternoon there was a critical guilty plea entered in the ongoing robo-signing mess that lies beneath the festering mortgage crisis.

The former executive of a company that provided documentation used by banks in the foreclosure process pleaded guilty to participating in a six-year mortgage-forgery scheme.

The deal announced Tuesday by the Department of Justice represents one of the only successful criminal prosecutions resulting from the “robo-signing” scandal that surfaced two years ago.

Lorraine Brown, 56 years old, of Alpharetta, Ga., who is a former executive of Lender Processing Services Inc., LPS of Jacksonville, Fla., pleaded guilty to a scheme to prepare and file more than one million fraudulently signed and notarized mortgage-related documents.

A criminal guilty plea to straight on systemic fraud like this (here are the pleas documents) ought to have far ranging consequences for home and mortgage holders, not to mention local county recorders, whose quiet title and fee income, respectively, were damaged by the fraud, or at least so you would think.

A long time attorney involved in the field of mortgage fraud, Cynthia Kouril, writing at Firedoglake, laid out well the paths to recourse plaintiffs damaged by this fraud should have:

At the end, I said that this could be a game changer. In the comments, folks thought that was a reference to the fact that for once we have a Read more →

Sandy’s Teachable Moment on Infrastructure

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In a remarkable development, the devastation from Sandy now is finally moving a least a portion of the national conversation onto the very important topic of infrastructure and how we need to renew our degrading infrastructure in addition to hardening it against new waves of damage due to weather extremes brought on by climate change. Consider this bit of truth-telling from Connecticut Governor Dannel Malloy on Rachel Maddow’s show last night:

But it’s not just Malloy who sees the need to have the future in mind during the recovery from Sandy. Today’s New York Times carries an article in which New York Governor Andrew Cuomo discusses how preventive steps need to be taken in the near future:

On Tuesday, as New Yorkers woke up to submerged neighborhoods and water-soaked electrical equipment, officials took their first tentative steps toward considering major infrastructure changes that could protect the city’s fragile shores and eight million residents from repeated disastrous damage.

Gov. Andrew M. Cuomo said the state should consider a levee system or storm surge barriers and face up to the inadequacy of the existing protections.

“The construction of this city did not anticipate these kinds of situations. We are only a few feet above sea level,” Mr. Cuomo said during a radio interview. “As soon as you breach the sides of Manhattan, you now have a whole infrastructure under the city that fills — the subway system, the foundations for buildings,” and the World Trade Center site.

The Cuomo administration plans talks with city and federal officials about how to proceed. The task could be daunting, given fiscal realities: storm surge barriers, the huge sea gates that some scientists say would be the best protection against floods, could cost as much as $10 billion.

It is sad that such a level of devastation is needed before there is talk of action. As recently as last month, the Times carried yet another warning that exactly this type of damage was becoming increasingly likely:

But even as city officials earn high marks for environmental awareness, critics say New York is moving too slowly to address the potential for flooding that could paralyze transportation, cripple the low-lying financial district and temporarily drive hundreds of thousands of people from their homes.

Only a year ago, they point out, the city shut down the subway system and ordered the evacuation of 370,000 people as Hurricane Irene barreled up the Atlantic coast. Ultimately, the hurricane weakened to a tropical storm and spared the city, but it exposed how New York is years away from — and billions of dollars short of — armoring itself.

“They lack a sense of urgency about this,” said Douglas Hill, an engineer with the Storm Surge Research Group at Stony Brook University, on Long Island.

Instead of “planning to be flooded,” as he put it, city, state and federal agencies should be investing in protection like sea gates that could close during a storm and block a surge from Long Island Sound and the Atlantic Ocean into the East River and New York Harbor.

And it was exactly that storm “surge from Long Island Sound and the Atlantic Ocean into the East River and New York Harbor” that flooded lower Manhattan and the New York subway system. Considering that estimates yesterday on the financial impact of Sandy were already going as high as $25 billion (and I expect that number to go up by a lot as more damage is discovered), an investment of $10 billion for a surge barrier, coupled with a massive push for revitalizing and hardening the electrical and transportation systems behind the barrier, looks like a very wise investment. Sadly, though, as Malloy points out, half the country doesn’t believe in infrastructure investment. At least, that was the case before Sandy. Will infrastructure scrooges who were directly impacted by the storm finally see the importance of being proactive, or will yet another teachable moment be lost?

Provide For the Common Defense or Go Galt?

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We awake to a changed and battered country this morning. CNN’s headline at CNN.com currently blares “Millions wake to devastation”, while AP gives us a state-by-state rundown of the effects of Hurricane (and then Superstorm) Sandy. At a time, though, when the natural American response is to help one another, we have perhaps the strongest example of what is at stake next Tuesday as we go to the polls for a Presidential election. Here is Mitt Romney in the Republican debate hosted by CNN:

[youtube]http://www.youtube.com/watch?v=RTSHxR_4rc8[/youtube]

The idea that an “immoral” FEMA should be disbanded in favor of private sector disaster response did not go over well with the editorial staff of the New York Times. From this morning’s editorial:

Over the last two years, Congressional Republicans have forced a 43 percent reduction in the primary FEMA grants that pay for disaster preparedness. Representatives Paul Ryan, Eric Cantor and other House Republicans have repeatedly tried to refuse FEMA’s budget requests when disasters are more expensive than predicted, or have demanded that other valuable programs be cut to pay for them. The Ryan budget, which Mr. Romney praised as “an excellent piece of work,” would result in severe cutbacks to the agency, as would the Republican-instigated sequester, which would cut disaster relief by 8.2 percent on top of earlier reductions.

Does Mr. Romney really believe that financially strapped states would do a better job than a properly functioning federal agency? Who would make decisions about where to send federal aid? Or perhaps there would be no federal aid, and every state would bear the burden of billions of dollars in damages. After Mr. Romney’s 2011 remarks recirculated on Monday, his nervous campaign announced that he does not want to abolish FEMA, though he still believes states should be in charge of emergency management. Those in Hurricane Sandy’s path are fortunate that, for now, that ideology has not replaced sound policy.

A common refrain for the Galt crew is that they want to go back to the basics of the Constitution. And yet, here is the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The simple truth is that if we wish to provide for the common defense and promote the general welfare in the face of such a huge storm, then a Federal agency coordinating the preparations before the storm and the response afterwards is the most efficient plan. Putting disaster capitalists in charge instead would only lead to many more deaths and huge delays in response times.

As the country responds to this terrible blow from the storm, it is worth considering whether we wish to go back to the ineptitude of the Katrina response (or worse) or if we want to work together for the common defense through a properly funded FEMA.

John Brennan Vows to Combat the “Bad Guys” Attacking Our Critical Infrastructure

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John Brennan just gave a speech, purportedly about our policy in Yemen. But it ended up being largely about infrastructure, That’s partly because his speech focused on how, rather than spending 75% of our Yemen funds on bombs, we’re now spending just 50% (having bumped up the total to include an equal amount development assistance). So a good part of his talk focused on whether or not Yemen would be able to do the critical work of rebuilding its infrastructure sufficient to combat AQAP which, in some areas, has done a better job of building infrastructure.

Of course as I noted while he spoke, a number of the infrastructure challenges Brennan confidently assured we could help rebuild–things like access to water–are challenges we are increasingly failing in our own country.

And then, because the DC attention span had had enough of Yemen, moderator Margaret Warner asked Brennan what the Administration will do now that their cybersecurity bills have been defeated. To justify his talk of using Executive Orders to address some of the infrastructure problems, Brennan talked about the “bad guys” who posed a cyberthreat to our critical infrastructure.

Nowhere did Brennan acknowledge the much more immediate threat to our critical infrastructure: in the corporations and politics that let it decline. PG&E and Enbridge, failing to invest the money to fix known defects in their pipelines. Fracking companies, depleting and degrading our water supply. Verizon, eliminating choice for Internet access for rural customers. Republicans who want to gut our Postal Service and passenger rail. And heck, even Fat Al Gore and climate change, which is not only depleting our water supply but stalling key water transport routes.

Brennan promises to help rebuild Yemen’s infrastructure. But not only can’t he implement his plan against the bogeyman “bad buys” threatening our infrastructure, he seems completely unaware that those “bad guys” aren’t anywhere near the biggest threat to our infrastructure.

Don’t get me wrong. I applaud the Administration’s decision to dedicate money to Yemen’s infrastructure, even if I think a 50/50 split, aid to bombs, is still woefully inadequate. But until we begin to see what “bad guys” pose the biggest threat to our own infrastructure, I’m skeptical our efforts in Yemen will be any more successful than they were in Iraq or Afghanistan.

The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

Why The DOJ Can’t Prosecute Banksters: Map of Clemens Investigation

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At a time when there are still no significant prosecutions of major players, banks and investment shops responsible for the financial fraud that nearly toppled the world economy and is still choking the US economy, we get an explanation why from an unlikely source – the Roger Clemens trial in Judge Reggie Walton’s courtroom in the DC District. During defense examination of FBI special agent John Longmire today, a map of the FBI/DOJ investigation of Roger Clemens, who was accused of lying about getting a few steroid shots in the late 90s and early 2000s, was displayed. We are now two full months into the second trial of Roger Clemens stemming from this investigation.

Any more questions on why DOJ cannot get around to prosecuting banksters??

Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

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The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively Read more →

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