Eugene Volokh's Blog, page 2634
January 12, 2012
OLC Opinion on Pro Forma Sessions and Recess Appointments Published
For the past week there has been a fair amount of speculation that, because no opinion had yet been posted on its webpage, the Office of Legal Counsel either was not consulted about President Obama's recess appointment on January 4 of Richard Cordray and three NLRB members, or that it had been consulted and said no recess appointment could lawfully be made while the Senate was conducting pro forma sessions.
The problem was, as Jonathan Adler noted below, that the White House wouldn't say publicly whether it had consulted the Justice Department. See here for more. There was understandable concern because of well publicized examples of this Administration obtaining legal opinions from other, less-traditional sources when OLC's conclusions did not support the action it wished to take. See here and here for columns by Prof. Bruce Ackerman, here for one by Prof. Michael McConnell, here for a post by Adam White, and here for a post by Ed Whelan.
Well, as I expected, there was indeed an opinion. The Office published it this morning, and it is available here.
Ordinarily, you'd say release of an opinion within a week of relevant executive action is pretty darned fast. After all, OLC opinions sometimes don't make it on to its website for several months after they're signed. But given congressional interest and public interest in this matter, this is an instance where simultaneous or near-simultaneous publication (which OLC sometimes manages, see here for an example) might have been helpful. Although Congress and the public does at least have a full explanation of the Administration's rationale in time to be relevant to the ongoing debate.
More on the opinion later when I've had a chance to read it.
UPDATE on contents of the opinion: For starters, in an effort to give its analysis a bipartisan sheen (note the number of Republican Administration OLC opinions it cites), the opinion makes plain what may already have been apparent from my past detailed discussions of the subject, which is that I worked on the OLC's research into the President's ability to make recess appointments notwithstanding pro forma sessions back when the Office first considered the subject during the tail end of the Bush Administration. See Op. 4 (citing Memorandum to File, from John P. Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Lawfulness of Making Recess Appointment During Adjournment of the Senate Notwithstanding Periodic "Pro Forma Sessions" (Jan. 9, 2009)). The Bush Administration never made such an appointment, however, and the work was never was finalized (and thus, significantly, I wasn't at liberty to reveal the nonpublic work I'd done).
The OLC opinion was signed January 6, two days after the recess appointments, but the opinion states (Op. 1) that OLC has already advised them about that question, the production of such a detailed opinion on January 6 suggests that the White House Counsel asked the question in advance of the appointments. The opinion formally advises on "whether the President has authority under the Recess Appointments Clause to make recess appointments during the period between January 3 and January 23 notwithstanding the convening of periodic pro forma sessions," Op. 1 (emphasis added), thus carving out the period when Senator Reid actually did conduct business at the December 23, 2011 session (which was scheduled to be a pro forma session), as noted in my original post.
The opinion, concludes, essentially:
Although the Senate will have held pro forma sessions regularly from January 3 through January 23, in our judgment, those sessions do not interrupt the intrasession recess in a manner that would preclude the President from determining that the Senate remains unavailable throughout to "'receive communications from the President or participate as a body in making appointments.'" Thus, the President has the authority under the Recess Appointments Clause to make appointments during this period. The Senate could remove the basis for the President's exercise of his recess appointment authority by remaining continuously in session and being available to receive and act on nominations, but it cannot do so by providing for pro forma sessions at which no business is to be conducted.
Op. 1 (quoting Intrasession Recess Appointments, 13 Op. O.L.C. 271, 272 (1989) (quoting Executive Power–Recess Appointments, 33 Op. Att'y Gen. 20, 24 (1921)).
A more detailed recitation of the opinion's contents after the jump.
Still here?
The opinion notes (Op. 2–3) that the pro forma sessions appear to be forced in this case by the House of Representatives' failure to consent to allow the Senate to recess, thus requiring pro forma sessions to satisfy the requirement of Article I, Section 5, that "[n]either House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days . . . ." The opinion observes (Op. 3) that public statements of the Members of the Senate suggest they do not consider the pro forma sessions to interrupt the recess of the Senate (because they refer to the total duration of the break rather than a series of 3-day breaks), as does the Senate's webpage, and—perhaps most significantly of all—the body takes steps to provide for appointment of congressional personnel, which it usually only does during longer recesses, "indicating that the Senate recognizes that it is not in session during this period for the purpose of making appointments under ordinary procedures." Op. 3.
The opinion first discusses (Op. 5–8) the lawfulness of an appointment if the recess were a 21-day recess, which is pretty straightforward given the number of recess appointment presidents traditionally have made during far shorter recesses than that. The opinion then briefly discusses (Op. 9–13) the historic understanding of the Recess Appointments Clause and the political branches' treatment of it.
Then comes the meat of the opinion (Op. 13–18), concluding based on three considerations that "the President may determine that pro forma session at which no business is to be conducted do not interrupt a Senate recess for purposes of the Recess Appointments Clause." The three considerations are (1) "the Framers' original understanding of the Recess Appointments Clause and the longstanding views of the Executive and Legislative Branches" (Op. 13–15); (2) "allowing the Senate to prevent the President from exercising his authority under the Recess Appointments Clause by holding pro forma session would be inconsistent with both the purpose of the Clause and historical practice in analogous situations" (Op. 15); and (3) "permitting the Senate to prevent the President from making recess appointments through pro forma sessions would raise constitutional separation of powers concerns" (Op. 16–18).
The opinion then discusses several counterarguments. First is the fact that the Senate has employed pro forma sessions in other contexts, such as to satisfy the Adjournment Clause of Article I , section 5, and to meet the Twentieth Amendment's direction that in the absence of legislation providing otherwise, Congress must convene on January 3. This is an argument that many current critics have made, and I think it's one of the strongest counterarguments to OLC's analysis. The opinion basically concludes (Op. 18–20) that even if such uses of pro forma sessions are valid for congressional purposes, Congress has power to order its internal processes under the Constitution, see, e.g., U.S. Const., art. I, § 5 ("[e]ach House may determine the Rules of its Proceedings"), and that dones't imply an ability to frustrate the ability of another branch of government to operate.
Second, and relatedly, is the argument that the Executive Branch is bound by the Chamber's own understanding of whether the pro forma sessions have the legal effect of interrupting the recess of the Senate. This argument specifically has been cited by critics of the recess appointment. The opinion responds (Op. 20) that the Supreme Court has made clear that Congress's power to set rules for its own proceedings is not unlimited, and Congress "may not by its rules ignore constitutional restraints or violate fundamental rights." United States v. Ballin, 144 U.S. 1, 5 (1892). (The opinion probably should also have discussed Field v. Clark, 143 U.S. 649 (1892), which is a leading case in this area that has been cited by critics of the appointment.)
Third, "it could be argued that the experience of recent pro forma sessions suggests that the Senate is in fact available to fulfill its constitutional duties during recesses punctuated by periodic pro forma sessions," noting, among other things, that (as noted in my original post) Sen. Reid did in fact conduct business during the December 23 pro forma session. The opinion states (Op. 21) that "the President may properly rely on the public pronouncements of the Senate that it will not conduct business (including action on nominations), in determining whether the Senate remains in recess, regardless of whether the Senate has disregarded its own orders on prior occasions." It notes that adjournment resolutions commonly state that the Senate stands in recess until a specified date or "until the time of any reassembly" ordered by the leaders of the two Houses. This is not a terriblyly satisfying answer; the fact remains that only a few weeks before this opinion was signed, the Senate took action during what was to be a pro forma session, and the opinion points to no similar action to bring the Houses back early from a recess to support its conclusion that the President is free to disregard or discount recent practice.
Fourth, "legal precedent addressing the President's authority to pocket veto during a recess a bill passed by Congress conceivably might be viewed as constraining the President's recess appointment authority in the current recess." Op. 22. But OLC argued that the two Clauses serve different purposes and that pro forma sessions at which no business can be conducted "simply do[] not address constitutional concerns arising from the Senate's availability to consider appointments." Id.
Lastly, the opinion addressed (Op. 23) the fact that then-Solicitor General Elena Kagan sent the Supreme Court a letter in connection with New Process Steel v. NLRB, 130 S. Ct. 2635 (2010). In arguing that the recess appointment of a member of the NLRB did not moot the controversy there about legal consequences of the absence of a Board quorum, the Solicitor General stated that "the Senate may act to foreclose [recess appointments] by declining to recess for more than two or three days at a time over a lengthy period," using the Senate's 2007 pro forma sessions as an example. Whoops! The opinion takes the position that Solicitor General Kagan's letter "does not answer the question addressed here, whether pro forma sessions at which no business is conducted interrupt a recess that is more than three days long in a manner that would preclude the President from exercising his appointment power under the Clause." Hmmm.
So there it is. This really only marks the beginning of the debate in earnest, but at least there has been a fairly full statement of the Administration's position on this issue.
January 11, 2012
Volokh Conspiracy Scoops Drudge, The Atlantic, and Reuters by ... Two Years
Matt Drudge and The Atlantic are hyperventilating, and Mark Hosenball of Reuters is bragging, about a Reuters "exclusive" report that DHS "routinely monitors dozens of popular websites, including Facebook, Twitter, Hulu, WikiLeaks and news and gossip sites including the Huffington Post and Drudge Report."
There are just two problems with this exclusive news report.
It isn't news and it isn't exclusive.
Readers of this blog could have learned exactly the same thing in one of my posts from, uh, February of 2010.
Here's what I said two years ago:
With his usual nudge-and-wink, Matt Drudge invites us to be dismayed that "BIG SIS" — his moniker for Janet Napolitano — is "Monitoring Web Sites for Terror and Disaster Info." Drudge links to a story saying that DHS will be monitoring social media like Twitter, as well as websites like Drudge, to keep abreast of events during the Winter Olympics. The source of the story is a twelve-page "Privacy Impact Assessment" issued by DHS.
This isn't the first Privacy Impact Assessment (PIA) on DHS's use of social media. A few weeks earlier, DHS wrote a similar assessment of using social media during Haitian rescue operations.
I am indeed dismayed, but not for Drudge's reasons. True, it's disappointing that neither the Volokh Conspiracy nor www.skatingonstilts.com is deemed worthy of government monitoring. But what's really dismaying is that DHS and its Privacy Office felt obliged to labor over two separate and painfully obvious privacy assessments just to do things that you and I would do by simply firing up our browsers.
That's it. The story is that people at DHS are, gasp, browsing the Internet. As I said then, there's no scandal, other than the electrons wasted by DHS agonizing over the privacy implications of browsing public Internet sources to find out what's happening in the world.
And if it was a nonstory in February of 2010, what does that make it in January of 2012?
Actually, it's a lesson — that both the mainstream media and the blogosphere are doggedly overreporting anything that could be deemed a privacy violation by government, especially DHS. If you only followed these things casually, you'd be sure that DHS was constantly violating Americans' rights, and reports like this would be a key bit of evidence. But when you give the "story" a little scrutiny, all you find is an agency that needs to know what's happening in an emergency and that is looking at public social media sites for information, just like the rest of us. There's no privacy issue there at all, despite the heavy breathing and the headlines.
Kind of makes you wonder how many more phony privacy violations you've been conned into believing, huh?
Electronic Frontier Foundation Submits Proposed Amicus Brief in Obsidian Finance Group, LLC v. Cox
I'm pleased to say that the Electronic Frontier Foundation has asked the court for leave to file this amicus brief in our Obsidian Finance Group, LLC v. Cox case. To see links to the district court opinion in that case, and to our motion for new trial in that case, please go here
Ban on "Economic Reprisals" Based on the Target's "Political Activity"
Minn. Stats. Ann. § 10A.36 makes it a gross misdemeanor for "[a]n individual or association" to "engage in economic reprisals or threaten loss of employment or physical coercion against an individual or association because of that individual's or association's political contributions or political activity." There is an exception for "compensation for employment or loss of employment if the political affiliation or viewpoint of the employee is a bona fide occupational qualification of the employment."
As I read this, the statute criminalizes pretty much any boycott or other economic retaliation against a person because of his "political activity." Is this a just law? Or should people have the right to take their business elsewhere, whether on their own or together with others, and whether as customers, contractors, or employers, if they disapprove of a person's political activities?
Should the answer be different when we're talking about reprisals by customers, vendors, contractors, landlords, or employers? Many states impose such restrictions on employers' firing employees for certain kinds of political activity, and South Carolina law also bans landlords from evicting their employees, but the Minnesota statute is the only I could find that bans "economic reprisals" more broadly. (I set aside the ban on threats of physical coercion, which I think are rightly prohibited.)
I should note that, under NAACP v. Claiborne Hardware (1982), speech encouraging a boycott is protected by the First Amendment. But this law prohibits the actual economic reprisal, not the speech urging it.
Corporations' Misbehavior, Past and Present
I share David Kopel's disapproval of Mercedes-Benz's use of Che Guevara in its promotional activities. But while I would fault Mercedes for that, I wouldn't fault it for the corporation's activities in World War II.
As I've mentioned before with regard to corporations and speech, we have to recognize that corporate action and corporate responsibility is something of a metaphor. Corporations don't misbehave, speak, think, and so on. People acting on behalf of corporations do. I support applying the First Amendment to the "speech of corporations" because I think the restrictions on such speech end up interfering with the rights of people, both as listeners and as people who associate in order to create an enterprise in which some of the employees speak on the enterprise's behalf. "Corporations have First Amendment rights" is useful shorthand for conveying that, but we have to recognize that it's just shorthand.
And because this is just shorthand, I find it hard to fault the Mercedes-Benz of today for the actions of the Mercedes-Benz of the Nazi era. Whatever Mercedes-Benz officers and employees did then is their responsibility — not the responsibility of the very different people who run the company today. And that action during the Nazi era strikes me as not really relevant to Mercedes-Benz's current actions, or to what should be our attitudes with regard to the company and its products today.
Mercedes-Benz: The car for people who admire mass-murdering racist totalitarian thugs
Mercedes-Benz's latest marketing ploy is to associate itself with Che Guevera. Over at the Huffington Post, Michael Gonzalez (Heritage Foundation) supplies the details.
It's not surprising that a corporation which is currently pro-Che was pro-Hitler, far more so than many other German businesses during the Third Reich. As recounted in Cecil Adams' "The Straight Dope":
Daimler-Benz . . . avidly supported Nazism and in return received arms contracts and tax breaks that enabled it to become one of the world's leading industrial concerns. (Between 1932 and 1940 production grew by 830 percent.) During the war the company used thousands of slaves and forced laborers including Jews, foreigners, and POWs. According to historian Bernard Bellon (Mercedes in Peace and War, 1990), at least eight Jews were murdered by DB managers or SS men at a plant in occupied Poland.
UPDATE: Regarding Eugene's post, immediately above. My own view would be that a corporation is a collection of individuals (and, I agree with him, therefore entitled to free speech and other constitutional rights); in the same sense, a human body is a collection of cells. Over time, all of the individuals in a corporation may change; likewise, the collection of cells that constitute "David Kopel" is today very different from the collection that constituted "David Kopel" 45 years ago. Yet the corporate body, like the human body, has a continuing existence as the same entity. (That's one of the benefits of incorporation.) Corporations sometimes have cultures or other enduring traits that distinguish them even while their individual members may be replaced. It would be accurate to say that Yale Law School is a corporation that places far higher value of scholarly prestige than on teaching ability, and this was true not only today, but also 40 years ago, even though the Yale faculty is now entirely different. (Yes, to be precise, Yale Law School is just a unit within the larger corporation of Yale University.) None of the original personnel at National Review magazine are still there, but one can find many similarities between the corporate culture and mission of NR in 1955 and 2011. That the various corporations of the Ivy League schools discriminated against Jews in the 1920s is, in my view, of some relevance in understanding their current discrimination against Asians. That Mercedes-Benz was, compared to other German corporations, unusually supportive to Hitler then, and is similarly unusual (compared to other German corporations) in its attitude towards Che today, suggests that the corporation may lack an internal self-regulator which recognizes the wrongfulness of extolling totalitarian thugs.
Federalism and Freedom
The editors of the Liberty Fund's new Law and Liberty website recently asked me to write a short article on federalism and freedom commenting on the Supreme Court's decision in Bond v. United States, where a unanimous Court emphasized that "[f]ederalism secures the freedom of the individual" as well as the prerogatives of state governments. My piece is available here:
In Bond v. United States, an otherwise unremarkable recent Supreme Court ruling, a unanimous Court emphasized a profoundly important point: that "[f]ederalism secures the freedom of the individual" as well as the prerogatives of state governments. In addition to setting boundaries "between different institutions of government for their own integrity," constitutional federalism also "secures to citizens the liberties that derive from the diffusion of sovereign power."
The case has important implications for both the immediate future of constitutional law and deeper issues of constitutional theory. For the near future, the decision suggests that the Court is not likely to reject federalism claims merely because they seem to be motivated by a desire to protect individual freedom rather than an interest in state autonomy for its own sake. More broadly, the case focuses attention on the ways in which limits on federal government power really do promote individual liberty.....
is there any reason to believe that federalism protects individual freedom more generally? After all, history shows that state and local governments can also threaten liberty.....
Enforcing limits on federal power is no panacea for freedom. Nonetheless, federalism does promote liberty in several important ways. First, when political power is decentralized, individuals can "vote with their feet" against jurisdictions whose policies are oppressive or heavy-handed.....
The more political power is decentralized, the more areas of government policy will be subject to constraint by foot voting. Thus, limits on federal authority help realize the potential of foot voting as a protection for liberty.
State and local oppression is also less dangerous than federal oppression because it affects fewer people. An oppressive policy enacted by one state usually undermines liberty only for its own residents. By contrast, if Washington adopts the same law, it will cover the entire nation......
Ultimately, a free society must guard against threats to liberty from all levels of government. That requires imposing constraints on both state and federal authority. Liberty needs multiple institutional safeguards. Federalism by itself is not sufficient. In some situations, state and local governments can themselves become threats to our freedom. At the same time, federalism can enhance liberty in many situations by allowing us to vote with our feet and by limiting the reach of oppressive policies.
Other parts of the article describe some of federalism's limitations as a safeguard for freedom, such as its relative ineffectiveness in protecting immobile people and property against abuse.
Summer Clerkships at the Pacific Legal Foundation
The Pacific Legal Foundation, a major conservative/libertarian public interest law firm in California, has some openings for summer clerks. Here's Tim Sandefur's post on the subject:
If you're a law student who's looking to spend the summer advancing freedom, please consider a clerkship at the Pacific Legal Foundation. PLF's law clerks help us with research, drafting pleadings, making presentations to the public, and all sorts of tasks that are critical to our mission of rescuing liberty. And many of our clerks have gone on to important careers in public interest law, either here or in many of our allied organizations. Clerkship positions are unpaid positions — but Pacific Legal Foundation's law clerks don't sit in a back room redacting discovery documents for three months — they make a real difference in real people's lives, defending private property rights, economic freedom, racial equality, sensible environmental policies, and learning more about the constitutional and philosophical framework of freedom.
Applications are due March 1. Applicants must submit a cover letter, resume, writing sample, and references to Tawnda Elling, Hiring Committee Coordinator, by email (attyjobs@pacificlegal.org), fax (916) 419‑7747, or mail 930 G Street, Sacramento, CA 95814.
Applicants are also urged to check out the IHS Koch Summer Fellows program, which can help cover living costs for the summer, and the IJ Law Student Conference, a fantastic weekend crash course on the basics of public interest law.
Court Reaffirms Ministerial Exception
SCOTUSBlog reports that the Supreme Court has issued its opinion in Hosanna Tabor v EEOC, unanimously reversing the U.S. Court of Appeals for the Sixth Circuit on the question whether the First Amendment precludes employment discrimination suits against religious entities by those in "ministerial" positions. The Court was unanimous in the judgment. Chief Justice Roberts wrote the opinion for the Court. Justice Thomas concurred, and Justice Alito filed a concurring opinion joined by Justice Kagan (!). I have not yet read the opinion, but I'm certainly curious to see what united Justices Alito and Kagan. More background on the case can be found here.
Also, FWIW, the Court today also issued another 8–1 opinion in Perry v. New Hampshire.
How to Fix Copyright, Part Deux
My first post addressed some of the common assumptions about what copyright laws can do. The two syllogisms and one tautology were not an expression of my beliefs, but rather an expression of common views, views I believe are mistaken for reasons I detail in the introduction to and in Chapter 3 of the book. That they are mistaken doesn't mean that copyright serves no purpose: I believe copyright can serve a purpose of protecting against free-riding and in creating conditions under which investments can be made in a stable legal environment.
Agreeing that copyright can serve valuable purposes doesn't, though, tell us about the necessary level of protection. Chapter 8 of the book deals with the term of copyright, how long protection should last. A great deal has been written about this, and court cases have been brought and lost challenging Congress's extension of the term of protection, most notably in the Eldred case, which challenged part of a 1998 law extending the term another 20 years.
I believe the Eldred challenge suffered from poor strategy but the outcome is likely to have been the same, nevertheless. Evidencing a deference to Congress rare in most areas, the Court seemingly granted carte blanche to extend the term of copyright to whatever length the legislature wants so long as Congress merely states a belief that doing so would provide an incentive to create. By contrast, in the area of abrogating sovereign immunity, the Court reacted quite differently, getting into the weeds of how many witnesses there were at hearings and the substance of what they said.
The Eldred Court also engaged in what I regard as an indefensible jettisoning of the Constitutional text: the grant of power in Article I, section 8 clause 8 is to promote the progress of science. The rest of the clause says how this is to be done (by granting exclusive rights) and to whom (authors). The Eldred Court however, recharacterized the grant as a prologue, a series of pretty words signifying nothing.
The effect is dramatic. Congress need not be judged by whether it's laws actually promote the progress of science and in the area of extending copyright, it only has to say doing so will provide an incentive to create, a pro forma word processing chore.
What would I do differently? To begin with, I would rely on the brief that 18 economists submitted in the Eldred case, including George Akerloff, Kenneth Arrow, Ronald Coase, and Milton Friedman. That brief has the great virtue of trying to quantify the expected benefit of different terms of protection by focusing on present and future value. The argument is always made by proponents of extending the duration of copyright that doing so will cause authors to produce more works today based on a judgment that they will receive more money later (that is, during the period of the lengthened term). Alternatively, one could argue that a buyer of copyrights will give the author more money today based on perceived later benefits during the longer term. But in both cases, the assumption is that the later benefits will be significant enough to cause different behavior now.
In Eldred, this is the difference between a term of protection of life of the author plus 50 years and life of the author plus 70 years; the final, later 20 year difference being the alleged source of the expected increased financial benefits. The economists figured out that in the whole period of the extension, assuming very generously that the copyrighted work has a constant stream of revenue, the revenues for the extra 20 years at the end would be 0.33 percent of the present value of the revenue from under the then existing term. Making the term perpetual would increase compensation by at most 0.12 percent. Our current regime is a perpetual regime in all but name, giving rights holders 99.88 percent of the value of a perpetual regime. In a legal system where copyright cannot be perpetual, that's a problem.
But beyond it being a Constitutional problem, it's a policy problem. If copyright does provide an incentive to create, we need to ensure that copyright last long enough for the incentive to work, but not beyond that. Our current term goes well beyond what is necessary. Beyond this we have a one-size-fits all approach that gives an email the same rights and term of protection as a $200 million dollar movie or David Post's Moose book. Incentives works differently for different types of works, and our laws should reflect this. Making copyright laws work effectively means giving the right incentives, not the same ones to everyone. In the next post, Friday, I will go into some specifics as well as the question of reintroducing formalities.
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