“If Boehner Sues Obama, John Roberts Wins”: Enhancing Judicial Power At The Expense Of The Elected Branches
The story on House Speaker John Boehner’s lawsuit against President Barack Obama is pretty simple: regardless of whether the administration overstepped, what’s at stake is whether the courts are being empowered at the expense of the elected branches of government.
For starters, there’s zero evidence that Obama has been unusual in his use of executive powers. If he’s overdone it, then all the recent presidents have done so, too. The idea that he’s some sort of tyrant who acts differently than other modern presidents is nonsense.
In fact, It’s perfectly normal for presidents and executive branch departments and agencies to make broad interpretations of law that look a lot like legislating. It’s how the system works, and pretty much how it always worked. Thus Richard Neustadt’s famous claim that the system isn’t “separation of powers,” but separated institutions sharing powers.
Nonetheless, there are rules constraining how laws may be interpreted, and it is possible that in specific instances, the administration may have acted beyond what the law allows.
Indeed, experts have made the case that this kind of overreach occurred with the delayed implementation of the employer mandate in the Affordable Care Act (which, apparently, is going to be central to the House Republicans’ lawsuit), though other experts disagree.
In any case, it would be unprecedented, and in fact would constitute a significant change to the constitutional system, if the courts allowed Congress to sue the president over the ACA delay.
The technical issue is “standing.” For the courts to consider a lawsuit, the person or group bringing the suit has to show they were harmed in some direct way. So, for example, in the recent recess appointment case, Noel Canning Corp. was able to show that it had directly been harmed by an action taken by members of the National Labor Relations Board who had been recess-appointed. Generally, the courts have ruled (Vox has a good explainer on this) that Congress isn’t eligible to sue the president just because it doesn’t like what he’s done.
What Boehner is claiming now is that Congress, or the House of Representatives in this case, should be able to sue the president for not following the law if no one else would be able to do so.
If that succeeds, however, the big winner in the long run wouldn’t be Congress. It would be the courts.
By the logic of Boehner’s own action (despite what he says), this isn’t about a tyrannical president refusing to obey the law. If House Republicans believed that Obama was an out-of-control dictator, then they couldn’t also believe that a court ruling would be sufficient to constrain him.
What’s actually happening is that the House doesn’t interpret the law in the same way as the president, and the question is how to resolve the variance. Normally, each branch has an opportunity to interpret the law (those separated institutions sharing powers again), but doctrines such as standing limit the courts’ ability to intervene.
If, however, they can intervene whenever a house of Congress is unhappy, then the courts get a a much more active role in determining what the laws say. And why just a house of Congress? What if the president sued Congress, for example, if it failed in its obligation to produce appropriations bills on time? Instead of a government shutdown, would we get an injunction and then a judicial act of appropriations, with someone appointed by Bill Clinton or Ronald Reagan making 302(b) allocations by judicial fiat? Or perhaps we’d wind up with individual senators jurisdiction shopping, looking for a friendly judge to overturn some fight they lost in committee or on the Senate floor. Those kinds of setbacks are common for senators and executive branch departments; the only thing that prevents the losers, or whole chambers that lost fights in conference, from directly appealing to the courts is that the courts have a doctrine against intervening.
So what can Congress do? If the problem were simply a president who failed to follow the law, then the only real choices would be either to live with it, or impeachment and conviction. But if the problem is merely that the president interprets a law in a way that Congress doesn’t like, then the obvious remedy, as presidency scholar Andrew Rudalevige said recently, is “for Congress to change the law to remove presidential discretion” (I argue the same here).
So put aside the question of whether the administration improperly interpreted the law (it might have). Put aside, too, the silliness of House Republicans attempting to force the president to impose a policy, the employer mandate, which no Republican actually wants to enforce. And put aside the reality that by the time this lawsuit is decided it may well be moot, at least if the mandate takes effect as currently planned. This is about enhancing judicial power at the expense of the elected branches, and it’s a very bad idea.
By: Jonathan Bernstein, Ten Miles Square, The Washington Monthly, July 12, 2014
“Unable To Win Elections”: They Tried To Break The Federal Government, Now They’re Going After The Courts
The astounding show of Republican recklessness that led to last month’s government shutdown made one thing very clear. The new Republican Party — the one ruled by the Tea Party — isn’t interested in making our government work. They want to break it.
Now, as if shutting down the government of the United States, furloughing hundreds of thousands of government employees, wasting billions of dollars and threatening to wreck America’s economy wasn’t enough, Republicans in Congress have set their sights on a new target: our justice system.
Yesterday, Senate Republicans took their campaign against our government to a whole new level when they blocked the nomination of Nina Pillard to the U.S. Court of Appeals for the District of Columbia Circuit, which is widely considered to be the nation’s second-highest court behind the Supreme Court.
Pillard is one of President Obama’s three nominees to fill vacancies on the D.C. Circuit, which is currently operating with nearly one-third of its active judgeships vacant. All three nominees have extraordinary professional qualifications. All three have support from across the ideological spectrum. Yet Senate Republicans are vowing to filibuster all three simply because they were nominated by President Obama.
One of the most basic functions of the U.S. Senate is to provide “advice and consent” to the president on his nominations to executive agencies and to the federal courts. For most of our country’s history, the Senate has generally taken this constitutional order responsibly, using its power to block only nominees whom senators found unqualified or dangerously far out of the mainstream. That is, until now.
The same party that shut down the government in an attempt to nullify a duly-enacted law that it does not like is now trying to prevent a twice-elected president from filling vacancies on an important court — a duty entrusted to him by the Constitution.
There’s a reason Republican obstructionists have targeted the D.C. Circuit. The court has the last word on important federal laws and administrative rules on issues ranging from clean air regulations to workers’ rights to cigarette labeling requirements to presidential recess appointments. Basically, just about any area that we regulate through our federal government is going to be affected by the D.C. Circuit. And it is currently dominated by conservative ideologues: nine of the 14 judges on the court (including “active” judges and senior judges who participate in panel decisions) were nominated by Republican presidents seeking to remake the courts in their ideological image.
Republicans want to keep it this way. President Obama has nominated five people to the court, yet Senate Republicans have allowed only one of these nominees to so much as receive a confirmation vote. By comparison, the Senate confirmed four of George W. Bush’s nominees to the court and eight of Ronald Reagan’s. In fact, the ninth, tenth, and eleventh seats that Republicans today demand remain vacant are ones that they ensured were filled when George W. Bush was president.
To give you an idea of just how conservative this court is as a result, just this month a George W. Bush nominee and a George H.W. Bush nominee ruled that employers who oppose birth control should be able to deny their employees access to affordable contraception through their insurance plans — an absurd twisting of the true meaning of religious liberty. A few months ago, the court ruled that a law requiring employers to display a poster listing employees’ legal rights violates the free speech rights of the employers. No, really!
Unable to win national elections, Republicans are trying to hold on to what power they still have — and that includes control of the powerful D.C. Circuit. Just like they couldn’t accept that the Affordable Care Act was the law of the land, the Tea Party won’t admit that Americans chose President Obama to be the one making picks to the federal courts.
The Tea Party thinks that it has some sort of intellectual property claim on the U.S. Constitution. But sometimes I wonder if its leaders have even read it.
By: Michael B. Keegan, President, People For The American Way, Published in The Huffington Post Blog, November 13, 2013
“Make Peace With God”: Embattled Federal Judge Called For Texas To Execute 8 To 12 Times As Many Inmates Per Year
According to a complaint filed last week against federal appellate Judge Edith Jones, Jones suggested that African-Americans and Hispanics are predisposed towards violent crime and that the death penalty is a public service because it allows inmates to “make peace with God.” Should these allegations against Judge Jones be proven, they will be only the latest examples of a career’s worth of nonchalance regarding executions. Indeed, as far back as 1990, a much younger Jones proposed a series of reforms to Texas’ execution procedures that would have increased that state’s execution rate by as much as twelve times.
In an article for the Texas Bar Journal entitled “Death Penalty Procedures: A Proposal for Reform,” which is available through the legal research service HeinOnline, Jones decries a capital punishment system in Texas which she views as too inefficient, in large part because judges delay executions by taking time to review death sentences to determine that they were lawfully handed down. Indeed, at one point Jones blames the slow rate of executions on “the frequent, human reaction of most judges . . . to defer a decision if any element of a case raises doubts, or to grant a temporary stay for further consideration.”
To speed along Texas’ ability to kill death row inmates, Jones proposes that Texas schedule “four to six executions per month, commencing six months to one year from the date” those execution dates are made public. Notably, in the five years prior to when Jones wrote this piece, Texas executed an average of just under six inmates per year, so the immediate impact of her proposal would have been to multiply the state’s execution rate eight to twelvefold.
It’s also worth noting that Texas’ execution rate did spike significantly in the years after Jones wrote this piece. Most significantly, during the four years after Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, which limited the ability of death row inmates to challenge their sentences in federal court, Texas executed an average of 33 people per year. Nevertheless, in the modern era of American death penalty law, Texas has never executed the 48 to 72 people per year suggested by Jones’ piece. The deadliest year for Texas inmates was 2000, when 40 people were executed. 15 people were executed last year. Nevertheless, Jones concludes her list of proposals for expediting Texas’ executions by suggesting they could be viewed as “too lenient” because they would “take more than four years to conclude all the currently pending capital cases.”
A decade after publishing this proposal, Jones joined two opinions claiming that a man whose attorney slept through much of his trial could nonetheless be executed.
Even without Jones’ proposal for a wave of executions, Texas has a higher execution rate than any other state. More than one third of all U.S. executions took place in Texas since 1976, when the Supreme Court announced the modern constitutional regime governing death penalty cases.
By: Ian Millhiser, Think Progress, June 10, 2013
“Unfair And Partial”: Federal Judge Edith H. Jones Says Minorities Are Predisposed To Crime
Judge Edith H. Jones of the 5th Circuit Court of Appeals is facing serious allegations this week after controversial remarks the jurist made at Federalist Society in February. According to the conservative group, there is no transcript of recording of Jones’ speech, but affidavits from attendees point to deeply problematic language from anyone, least of all a sitting federal judge.
According to the [ethics] complaint, Judge Jones, 64, who was nominated to the bench by President Ronald Reagan, and who until recently was the chief judge of the Fifth Circuit and mentioned during Republican administrations as a possible Supreme Court nominee, said that “racial groups like African-Americans and Hispanics are predisposed to crime.”
One of the affidavits accompanying the complaint is from Marc Bookman, a veteran death penalty lawyer in Pennsylvania, who attended the lecture. He quoted Judge Jones as saying, “Sadly, some groups seem to commit more heinous crimes than others.” When asked to elaborate, Judge Jones “noted there was no arguing that ‘blacks’ and ‘Hispanics’ far outnumber ‘Anglos’ on death row and repeated that ‘sadly’ people from these racial groups do get involved in more violent crime,” the affidavit said.
A variety of civil rights organizations and legal ethicists this week filed a complaint of misconduct. An affidavit from James McCormack, the former chief disciplinary counsel for the Texas bar, added that he believes Jones “violated the ethical standards applicable to federal judges under the Code of Conduct for United States judges.”
Making matters slightly worse, this wasn’t the only offensive comment Jones made at the event.
Judge Jones is alleged to have said that the defenses often offered in capital cases, including mental retardation and systemic racism, were “red herrings.” She also said, according to the witnesses, that Mexicans would prefer to be on death row in the United States rather than in prison in Mexico.
It would appear that defendants have reason to question whether Jones is a fair and impartial arbiter of justice. Indeed, if I were a criminal defense attorney, and my client’s conviction rested in part on a ruling from Jones, I’d probably have new grounds for an appeal.
The matter will reportedly be reviewed by the 5th circuit’s chief judge. It’s a controversy worth watching.
Postscript: When Jones was on a very short list of jurists then-President George W. Bush was considering for the U.S. Supreme Court in 2005, the Washington Post published this brief profile, noting, “Known as a strong and outspoken conservative, she has written opinions that called into question the reasoning behind the Roe v. Wade abortion ruling, has been an advocate for speeding up death penalty executions, and is a vocal proponent of ‘moral values.’ She also wrote a 1997 opinion throwing out a federal ban on the possession of machine guns and has been an advocate for toughening bankruptcy laws.”
By: Steve Benen, The Maddow Blog, June 5, 2013
“A Culture Of GOP Obstruction”: When Basic Governance Is Deemed Controversial
The U.S. Court of Appeals for the District of Columbia Circuit, widely seen as the nation’s second most important federal bench, has three vacancies. President Obama yesterday introduced three non-controversial nominees to fill those vacancies. And were it not for the breakdowns of the American political process, none of this would be especially interesting.
Senate Republicans have come up with lots of reasons for not wanting to advance President Barack Obama’s nominees to the powerful U.S. Court of Appeals for the D.C. Circuit, whether it be false accusations of “court-packing” or claims that the court doesn’t need its three vacancies filled because it’s not busy enough.
On Tuesday, Senate Minority Leader Mitch McConnell (R-Ky.) argued there was another problem with moving Obama’s nominees: a “culture of intimidation” being fueled by Democrats.
Sen. Lamar Alexander (R-Tenn.) went further, responding to the nominees by telling reporters, “There is no basis for the president inventing these crises. It’s unpresidential. It’s embarrassing to me.”
Just so we’re clear, we’ve apparently reached the point at which a president nominating judges to fill existing vacancies is seen by Republicans as outrageous. They not only decry “court packing” — a phrase they use but clearly do not understand — they also feel “intimidated” and “embarrassed” by a basic governmental process outlined by the Constitution.
Indeed, according to Lamar Alexander, Obama is creating a “crisis.” Worse, it’s “unpresidential” for the president to exercise his presidential duties. I realize it’s a little unusual for the White House to introduce three judicial nominees at once, but this GOP freak-out is excessive by any sensible standard.
But, Mitch McConnell says, there’s no reason for Democrats to complain. “You know, we’ve confirmed an overwhelming number of judges for President Obama,” the Minority Leader told reporters yesterday. “So the president’s been treated very fairly on judicial [nominees].”
Is this true?
Greg Sargent took a closer look.
It is not easy to conclusively determine whether GOP obstructionism is unprecedented. But there are some data points we can look at. For instance, Dr. Sheldon Goldman, a professor of political science at the University of Massachusetts who focuses on judicial nominations, has developed what he calls an “Index of Obstruction and Delay” designed to measure levels of obstructionism. In research that will be released in a July article he co-authored for Judicature Journal, he has calculated that the level of obstruction of Obama circuit court nominees during the last Congress was unprecedented.
Goldman calculates his Index of Obstruction and Delay by adding together the number of unconfirmed nominations, plus the number of nominations that took more than 180 days to confirm (not including nominations towards the end of a given Congress) and dividing that by the total number of nominations. During the last Congress, Goldman calculates, the Index of Obstruction and Delay for Obama circuit court nominations was 0.9524.
Goldman told Greg, “That’s the highest that’s ever been recorded.” He added, in reference to the most recent Congress, “[I]t is unprecedented for the minority party to obstruct and delay to the level that Republicans have done to Obama in the 112th Congress.”
The Congressional Research Service also found (pdf), “President Obama is the only one of the five most recent Presidents for whom, during his first term, both the average and median waiting time from nomination to confirmation for circuit and district court nominees was greater than half a calendar year (i.e., more than 182 days).”
It appears that by objective standards, McConnell’s boasts have no basis in fact. Imagine that.
Nevertheless, the Minority Leader yesterday refused to commit to allowing the Senate to vote up or down on the new nominees, not because he can think of something wrong with them, but because he thinks the D.C. Circuit isn’t busy enough to need filled vacancies.
With each passing day, the “nuclear option” becomes more viable.
By: Steve Benen, The Maddow Blog, June 5, 2013
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