The Executive Watch blog is on indefinite hiatus until Christopher Schroeder, assistant attorney general for the Office of Legal Policy, returns to Duke Law School.
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Executive Watch on Hiatus
April 26, 2010Weekly Web Watch 11/30/09 – 12/6/09
December 7, 2009President Obama announced that 30,000 additional troops will be deployed to Afghanistan. Obama also announced that the U.S. will begin to draw down troop levels in Summer 2011. The New York Times and Washington Post both have descriptions of the deliberation process. James Joyner points out that Obama and Secretary of Defense Robert Gates can’t seem to agree on whether the 2011 timeframe is a deadline or a guideline (nor, perhaps, can Secretary of State Hillary Clinton and Press Secretary Robert Gibbs). Wired has a neat feature on how the strategy is “sold” to the public.
A couple seeking (what else?) a reality show gig crashed the White House state dinner for Indian Prime Minister Manmohan Singh. The Secret Service has promised an investigation, but so has Congress. Now the White House pledges to block the White House social secretary from testifying before Congress, citing separation of powers. The social secretary’s role in the fiasco is already being questioned. Sandy Levinson can’t imagine that the Constitution was written to shield the social secretary from questioning by Congress. Neither can Dana Perino and Bill Burke. Orin Kerr reviews the possible criminal charges that the couple may face and reminds you that “Crashing a White House state dinner, and then bragging about it on Facebook, is really really dumb.”
The Supreme Court vacated an appellate court ruling on detainee abuse photos. The Second Circuit, including Justice Sonia Sotomayor, had ordered the government to turn over the photos to the ACLU. However, the court noted that legislation has since been passed concerning the photographs. The ruling does not end the matter; it was remanded to the district court.
High Court to Consider Separation of Powers in Upcoming PCAOB Case
December 4, 2009(This entry originally appeared on the blog of the American Constitution Society.)
Roughly since the second Reagan administration, separation of powers sophisticates (SOPS) have been held in thrall – whether in joy or dread – by the theory of “the unitary presidency.” Its central claim is that the president is constitutionally entitled to direct personally the exercise of any and all discretionary authority that Congress vests in any officer of the executive branch. Say the Center for Disease Control is told to write a pamphlet about AIDS. The president gets to edit it. NASA scientists are supposed to write a report on climate change. The president gets to tell them if global warming is good science. Maybe the Park Service has been given the discretion to limit certain activities in national parks either through the imposition of user fees or the promulgation of regulatory restrictions. The president gets to pick. And so on. Any and all discretionary decision making in the executive branch would be hypothetically subject to presidential control, even in areas of government activity for which Article II gives the president no inherent authority.
A number of fellow academics for whom I have great personal affection and intellectual respect assert (a) that they are constitutional originalists and (b) that unitary executive theory represents the proper reading of the Constitution. As I wrote in Madison’s Nightmare: How Executive Power Threatens American Democracy (University of Chicago 2009), I don’t think these positions can be squared. Eighteenth century ideas of executive power simply did not include centralized policy control over all of public administration.
The idea of the unitary presidency is a very tough one, however, to test in court. One would have to imagine a case in which a party with standing was injured by an administrative action that the relevant officer avowedly undertook for the sole reason that the President ordered her to do so, but which, she confesses, she otherwise would not have pursued. Hard to see that happening. So, we SOPS are left to read other tea leaves, and the tea leaves we read most assiduously appear in Supreme Court opinions on appointments and removals. That is because the Court’s conclusions on the president’s appointment and removal powers would seem to have some logical connection to its inferences about the president’s supervisory powers, as well.
This is the main reason that even those of us who devote little if any time to thinking about securities regulation care about Fair Enterprise Fund v. Public Company Accounting Oversight Board, 537 F.3d 667 (D.C. Cir. 2008), cert. granted, 77 U.S.L.W. 3625 (U.S. May 18, 2009) (No. 08-861), in which the high court will hear oral argument on December 7. This case involves the constitutionality of the Public Company Accounting Oversight Board (PCAOB), which was created by the Sarbanes-Oxley Act to oversee the activities of public company auditors.
It is an odd institutional creature – a nonprofit private corporation that has been given enforcement, adjudication, and rulemaking powers. The members of the PCAOB are appointed by the Securities and Exchange Commission – presumably because Congress found them to be “inferior officers” and thus subject to appointment, at Congress’s discretion, by the “heads of departments” – and are not directly removable by the president. This is clearly not the unitary executive at work.
Over a scathing dissent by Judge Brett Kavanaugh, the D.C. Circuit upheld the PCAOB on the grounds that (a) PCAOB members are sufficiently subordinate to the SEC to count as “inferior,” and (b) both the appointments provisions and limited removability under Sarbanes-Oxley are constitutional under Morrison v. Olson. These holdings plainly invite a reconsideration of Morrison, which is the Supreme Court opinion most discomfiting to champions of the unitary executive. Morrison upheld Congress’s decision to create an officer called “independent counsel,” who would be appointed by the judiciary – permissible only for “inferior” officers – and subject to removal only for good cause and only by the attorney general. Following a sort of multi-factor balancing test, the Supreme Court concluded that independent counsels count as “inferior” for constitutional purposes, and that their limited removability did not deprive the president of his capacity to discharge his Article II functions. It is the removal point in Morrison that most gives presidential unitarians heartburn. Were the Supreme Court now to insist that all officers of the United States must be removable at will by the president, that might well signal the president’s entitlement also to command their exercise of discretionary authority. (I say “might well” because the points are analytically distinct. A president entitled to fire officers at will might still be legally required to allow them to exercise their discretion as vested and then fire them post hoc.)
As it happens, however, of the seven Justices in the Morrison v. Olson majority, only one – Justice Stevens – remains on the Court. Justice Scalia has since been joined on the Court by Chief Justice Roberts and Justices Thomas and Alito, all of whom, whether as jurists or as government lawyers, have been notably staunch advocates of the “unitary executive.” The apparent “swing vote,” as is often the case, belongs to Justice Kennedy, who recused himself in Morrison and who, in other contexts, has sometimes seemed sympathetic to categorical claims of inherent executive power. There is thus some real doubt as to the enduring vitality of the Morrison analysis.
Because five Justices may, of course, decide anything, it is technically true that a majority in the PCAOB case would have the option of using the case either to limit Morrison to its facts or overrule Morrison’s approach to the removal issue. The latter especially might seem to bolster unitary executive theorists and would raise doctrinal doubts – at least at the “tea leaf” level – about the constitutionality of independent agencies. Or, the Court might decide the case modestly, leaving Morrison’s broad separation of powers implications untouched. (I assume that the Court did not grant certiorari in the case simply to affirm the D.C. Circuit.)
A modest opinion would likely turn on the “inferior officer” issue. That is, it would be enough to invalidate the PCAOB’s mode of appointment to find its members are “principal,” not “inferior” officers, and can thus be appointed only by the president and with the Senate’s advice and consent. Whether PCAOB members count as inferior officers is, however, not necessarily an easy question. Although they receive substantial SEC supervision and appear to lack significant final, unreviewable policymaking authority, the PCAOB has important investigative and prosecutorial powers that involve genuine discretion.
Commenters predicting that the PCAOB case will provide the occasion to limit Morrison sometimes point to the case of Edmond v. United States, 520 U.S. 651 (1997), in which the Court unanimously (through an opinion by Justice Scalia) overturned the appointment by the Secretary of Transportation of civilian members of the Coast Guard Court of Criminal Appeals. The opinion noted, however, that the civilian members were not “inferior” under at least two of the Morrison v. Olson criteria: they are not limited in “tenure” to a single defined task and they are not limited in “jurisdiction” to focusing on a single individual or set of defendants. The Scalia opinion pointedly went on, however, to state that “‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the advice and consent of the Senate.” The obvious suggestion was that this test, not the Morrison balancing of factors was the better test. Advocates of “unitary executive” theory may be hoping that the PCAOB case at least reads Edmond as overturning Morrison’s approach to inferiority. (It would seem an odd move since Edmond acknowledges that its result is consistent with Morrison.)
Of course, even if Morrison’s approach to inferiority were overturned, the holding would leave independent agencies intact. The commissioners and board members who head our key independent agencies are appointed by the president with Senate advice and consent, so there is no appointments issue raised. Congress, however, whenever it wanted to divest the president of appointments power, would have to render the officer whose duties are at stake substantially subordinate to an officer whom the president does appoint. That would put an end to any prospect of resurrecting the precise model of special prosecution enacted after Watergate – but perhaps Judges Laurence Walsh and Kenneth Starr already accomplished that.
Executive Action Report: 10/14/2009 – 10/20/2009
October 21, 2009Wednesday, October 14
- President Obama signed an executive order reestablishing the President’s Advisory Commission on Asian Americans and Pacific Islanders. The panel was established by President Clinton, but President Bush did not renew its mandate when it expired.
- The White House is asking Congress to approve $250 payments to senior citizens receiving Social Security. Social security recipients normally receive cost-of-living increases, but the Social Security Administration will announce on Thursday that there will be no increases this year due to the low rate of inflation.
Thursday, October 15
- The President signed a bill to provide financial aid to the government of Pakistan. The bill provides $1.5 billion per year for the next five years to be spent on social programs. No conditions are attached to the funds. Congress passed the bill unanimously.
- On a visit to New Orleans, President Obama promised not to repeat the mistakes made by the Bush Administration after Hurricane Katrina devastated the city in 2005.
Executive Action Report: 09/30/2009-10/06/2009
October 7, 2009Wednesday, September 30
- The President declared that a state of disaster exists in several counties in Kansas. The declaration allows state and local agencies to access federal funding in their efforts to repair the damage caused by severe storms at the beginning of July.
Thursday, October 1
- The Associated Press reports that the National Security Council is divided over whether to approve a troop increase in Afghanistan. The Council was apparently unable to reach a consensus on the proposal despite a three-hour meeting held at the White House today.
- The White House announced that Deputy National Security Advisor Mark Lippert will take a leave of absence to return to active duty in the Navy. Mr. Lippert was part of President Obama’s 2008 campaign, and also served as the National Security Council chief of staff.
- President Obama issued an executive order that bans federal employees from text messaging while driving. The order is intended to prevent accidents that occur when drivers are distracted by reading and writing messages. Employees of the federal government may no longer text while driving government vehicles, driving on government property, or driving their own vehicles on official government business.
Friday, October 2
- The President attended a meeting of the International Olympic Committee (IOC) in Copenhagen, Denmark. He was there to lobby for Chicago’s bid to host the 2016 Summer Olympics. The IOC awarded the games to Rio de Janeiro, Brazil.
- President Obama met with General Stanley McChrystal while in Copenhagen. The President discussed the situation in Afghanistan with General McChrystal, who is the commander of U.S. forces in that country. President Obama has not yet decided whether to approve General McChrystal’s request for additional troops.
Executive Action Report: 09/16/2009-09/22/2009
September 23, 2009Wednesday, September 16
- The White House responded to criticism of its policy of appointing “czars” to oversee specific policy areas. A blog post on the White House website points out that many of the “czars” also existed in the Bush Administration, and that several critics of the practice had voiced support for “czars” in the past.
- President Obama said that he will not make a “quick decision” about whether to send additional troops to Afghanistan. Military leaders in Afghanistan and at the Pentagon have called for increasing the number of troops in order to conduct a broader counterinsurgency campaign.
Thursday, September 17
- President Obama announced a shift in United States missile defense policy. The new policy will rely on ship-based missile systems to combat the threat posed by intermediate range missiles launched from Iran. This replaces the Bush Administration’s policy of land-based missiles located in Eastern European countries, a policy that Russia had sharply criticized.
Friday, September 18
- Seven former CIA directors have asked President Obama to halt the Department of Justice investigation into harsh interrogations. The former directors said that the fear of prosecution would “seriously damage the willingness of many other intelligence officers to take risks to protect the country.”
Executive Action Report: 09/02/2009-09/08/2009
September 9, 2009Wednesday, September 2
- President Obama will address a joint session of Congress next Wednesday. The address will attempt to build momentum for the President’s health care reform proposals.
- The State Department announced that former Senator George Mitchell will return to the Middle East next week. Senator Mitchell, the Administration’s special envoy for Mideast peace, met with Israeli Prime Minister Benjamin Netanyahu in New York over the weekend.
- President Obama will chair a session of the United Nations Security Council focusing on nuclear nonproliferation and disarmament. The session will concentrate on broad goals rather than specific problems presented by countries like North Korea. This will be the first time a President of the United States has chaired a session of the Council.
Thursday, September 3
- The Department of Health and Human Services announced the reappointment of John Howard as the coordinator for health issues related to the September 11 Attacks. Mr. Howard served in this capacity from 2006 to 2008, but the Bush Administration chose not to renew his position following disagreements over health policy.
- The White House announced that President Obama intends to nominate Michael Punke to be U.S. ambassador to the World Trade Organization. Mr. Punke is a novelist and history professor who served as White House director for International Economic Affairs from 1993 to 1995.
Executive Action Report: 08/19/2009-08/25/2009
August 26, 2009Wednesday, August 19
- A federal judge issued an order that restricts the government’s ability to use hearsay evidence to support its detention of enemy combatants. Because the government has indicated that much of the evidence supporting dentition is hearsay, this ruling could have a substantial effect on its ability to justify the continued detention of individuals captured since 2001.
- President Obama met at the White House with President Hosni Mubarak of Egypt. This was President Mubarak’s first visit to the White House in five years.
Thursday, August 20
- The White House issued a statement on the release of Abdel Basset Mohamed al-Megrahi. The statement expresses “deep regret” that Mr. al-Megrahi was released after serving eight years of the life sentence he received for taking part in the 1988 bombing of Pan-Am Flight 103.
- Conservative radio talk-show host Michael Smerconish interviewed President Obama at the White House. The President defended his health plan and took calls from several listeners.
Friday, August 21
- President Obama issued a disaster declaration for six counties in Tennessee. The declaration makes federal funding available to state and local governments to repair the damage caused in July by severe storms and flooding.
- The President spoke by telephone with Brazilian President Luiz Inacio Lula da Silva. The Associated Press reports that President Lula urged President Obama to meet with South American leaders to discuss the growing U.S. military presence in Colombia.
- President Obama left the White House to begin a ten-day vacation. He traveled by helicopter to Camp David. The President and his family will depart for Martha’s Vineyard on Sunday.
Executive Action Report: 08/05/2009–08/11/2009
August 12, 2009Wednesday, August 5
- President Obama visited Indiana to highlight the progress of the American Recovery and Reinvestment Act. Indiana has received $400 million in recovery fund grants.
- Before leaving for Indiana, the President made a statement on the release of two journalists from North Korea. He thanked former President Clinton and former Vice President Gore for their efforts to secure the release of the journalists.
- The Associated Press reports that the Department of Transportation has not provided data it has collected on the “Cash for Clunkers” program. The Associated Press requested the data last week in order to verify claims made by the administration about the program’s impact. The White House is asking Congress for an additional $2 billion in funding for the program.
Thursday, August 6
- President delegated his authority under §601 of the American Recovery and Reinvestment Act to the Secretary of Homeland Security. Section 601 mandates the selection of a commission to arbitrate claims arising from hurricanes Katrina and Rita.
- John Brennan, Assistant to the President for Homeland Security and Counterterrorism, outlined the administration’s approach to combating terrorist groups in a speech at the Center for Strategic and International Studies. Mr. Brennan indicated that the administration would take a more comprehensive approach, continuing to move away from the “war on terror” paradigm of the Bush administration.
- The Senate confirmed Sonia Sotomayor by a vote of sixty-eight to thirty-one.President Obama nominated Judge Sotomayor in May to replace Justice David Souter, who retired in June.
Executive Action Report: 07/29/09 – 08/04/09
August 7, 2009Wednesday, July 29
- The United States and China concluded two days high level discussions on a range of topics, although little concrete results were revealed. China stated it would be sending a high ranking general to visit the United States, and welcomed the U.S. to do the same, although China warned the United States against repeating arms sales to Taiwan.
- President Obama signed legislation renewing sanctions against the military regime of Myanmar, following Congress’ authorization last week.
- President Obama held a town hall meeting intended to pitch his health care proposals to consumers. Telling stories from his campaign days, Obama attempted to clarify his proposals for a government run, public option for health care.
- After extensive negotiations, the Blue Dog Democrats, a group of Conservative Democrats, and the Democratic leadership in the House of Representatives reached an agreement on health care legislation. The agreement will allow the bill to move forward, potentially to be voted on in September.
- In a speech, Homeland Security Secretary Janet Napolitano outlined a new strategy to educate and incorporate the public as an asset in terrorism prevention.
Thursday, July 30
- Despite efforts by the Obama administration to trim the Defense Department’s budget, the House of Representatives passed funding for various projects which the administration has threatened to veto, including an expensive new line of presidential helicopters.
- President Obama and Vice President Biden met with Professor Gates and Sgt. James Crowley over a glass of beer, at the much anticipated “beer summit.” The meeting was intended to calm inflamed tensions over the arrest of Professor Gates and President Obama’s comments.
- The House of Representatives passed far-reaching legislation to reform food safety laws, empowering the FDA with new authority to issue recalls and requiring more stringent and frequent inspections of factories.
- The over-whelmingly successful “Cash-for-Clunkers” program was almost suspended as funds were running out after only a few days. The program was intended to continue until September, however the program’s estimated maximum of 250,000 cars sold had already been reached.
- The United States, through U.N. ambassador Susan Rice, signed a United Nations treaty protecting the rights of disabled persons, which had previously been rejected by the Bush administration. The Obama administration will present the treaty to the Senate for ratification.
Friday, July 31
- Two American soldiers were killed in Afghanistan, which brought to an end the deadliest month for American forces in the eight-year war. Casualities have spiked due to the Obama administration’s push into the southern provinces, held by the Taliban.
- The new national Gross Domestic Product figures showed less loss than anticipated, greatly improved over the previous quarter, which has increased speculation over the decline and end of the recession.
- The Obama administration was reviewing the “Cash for Clunkers” program, in hopes of extending it with additional funds. The program proved to be wildly popular and ran out of funds in only a week of operation. The House of Representatives later approved an additional two billion dollars for the depleted program.
- Saudi Arabia rejected calls from the United States to lessen sanctions on Israel, in exchange for a freeze on Israeli settlements in Palestine, as a step towards peace negotiations. The prime minister rejected the Obama administration’s “incremental” approach, and claimed that the core issues must be dealt with first.
- The House of Representatives voted to impose limitations on pay and bonuses for Wall Street executives, following disclosure of rampant bonuses given with taxpayer money.
Saturday, August 1
- The White House promised to honor “Cash-for-Clunkers” auto sales through the weekend, despite depleted funds and waiting for a Senate vote to extend more money to the program.
- An expected half a million unemployed will exhaust their government benefits by the end of September, and 1.5 million by the year’s end, according to a new report.
Sunday, August 2
- On a tour of numerous nations in Africa, Secretary of State Hilary Clinton is expected to announce increased civilian and military aid to the struggling nation of Somalia. Clinton will meet with the interim president of Somalia, which is intended to continue to show support for the beleagured government.
- President Obama stated that the United States economy will take “many more months” before it clears the current recession. He warned that joblessness will continue to increase in the next weeks, and the current recession is worse than previously expected.
- Showing the signs of the success of the “Cash for Clunkers” program, the Ford Motor Company posted its first monthly sales increase in two years.
Monday, August 3
- President Obama and Congress engaged in discussions considering whether to enact economic sanctions against Iran if it fails to respond to the United States’ offer for negotiations over Iran’s nuclear program.
- President Obama hailed the passing of the first GI bill since 9/11 as an ‘investment.’ The bill will provide public funding for four years of public college for eligible veterans, which would include a stipend and money for books. The new plan offers $78 billion in benefits over the next ten years, making it the most comprehensive since the original GI bill signed by President Roosevelt.
- In an interview with Al Qaeda’s media operation, Osama Bin-Laden’s deputy claimed a conditional truce offer remained on the table to the United States, provided it meets Al Qaeda’s demands. The demands include the withdrawal of all troops from Muslim lands and support from certain regimes.
- Following Saudi Arabia, the country of Jordan also rejected calls from the United States to ease tensions between the countries and Israel by lessening sanctions and beginning a dialogue. Jordan sharply criticized the eviction of two Palestinian families in the increasingly controversial Israeli settlements.
- The Obama administration renewed its campaign promise, stating there would no tax increases on those making less than $250,000, despite increased speculation over the cost of the administration’s health care proposals.
Tuesday, August 4
- The new secretary general of NATO, Anders Rasmussen, called for an increased European presence in the war in Afghanistan, citing that it would achieve an ‘increased balance in the alliance.’
- The Obama administration launched a new internet initiative to combat misplaced rumors about their health care proposals, creating a three minute video which discusses some of claimed misconceptions. The initiative continues the recent expansion of the debate beyond Washington, into the mainstream media through television and internet advertising.
- Former President Bill Clinton negotiated the release of two American journalists who had been convicted in North Korea, and were serving sentences in prison. The trip was private and not an official dialogue between the two nations, however, former President Clinton delivered a message from President Obama for Kim Jong Il.
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