Bureau of Land Management and the Appointments Clause

As we discussed in class, the solution for Congress facing a President who seeks to avoid advice-and-consent can limit the use of acting officers. I should have mentioned that Congress has done so, with the Federal Vacancies Reform Act of 1998. The law does a lot. For our purposes, it limits who can be made an acting officer (broadly, it must be the Senate-confirmed first deputy in the office or someone Senate-confirmed to a different position--that is, an acting officer still has been Senate confirmed to something), how long someone can serve in an acting capacity, and how long someone who is not an "acting officer" (because not meeting the statutory requirements) can perform the functions of the office even without the title.

The District of Montana has held that William Perry Pendley's year-plus service as acting director of the Bureau of Land Management violates federal law because he did not meet the requirements to be an acting officer and his appointment to perform the functions was invalid. The court enjoins Perry from continuing to perform the functions of the office and will inquire into BLM actions that may be invalid because approved by someone improperly in the office.

The House and the Wall

A panel of the Court of Appeals for the D.C. Circuit (often called the second-highest court) ruled on Friday that the House could sue to stop the President from building the wall when such appropriations were expressly denied in legislation. The decision focused on standing (whether the House suffered a particularized injury so as to be the appropriate plaintiff, another subject we cover in Federal Courts). But the foundation of the opinion is the Appropriations Clause, the power of Congress to control the purse through the power of one house to veto expenditures, and the problem of the President ignoring legislative decisions. As the court put it:

To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands.

For Thursday

Thursday video with transcript. No class Monday; good yom tov to those obvserving. Panel # 7 Reax Papers due at 7 p.m. next Thursday to Donna Yff (yffd@fiu.edu).

Complete and Review all of State Regulation. Be ready to discuss the cases under the standards we discussed tonight, why each case came out as it did, and the distinctions at work. What role does the Privileges and Immunities Clause play? How does it relate to the DCC? How do they contradict or reinforce one another? As part of this, review the 18th and 21st Amendments.

Panel # 6 Reax Papers

Here and here.

I do hope you are reading (if not commenting on) one another's work, both to learn things and for some guidance on how to proceed on your own projects.

One writing tip: Do not use italics/bold/underline/etc. to emphasize words. Trust your language and your reader to know what words are important and what you are trying to say. (And note that I felt no need to italicize any words in that sentence). This is true not only here but in all of your legal writing.

For Thursday

Monday audio (with transcript).

On Thursday, we will hit some final points on the removal power. Be ready to discuss Free Enterprise and Seila and the new analysis of the removal power. Despite prevailing on the constitutional claim, why did the law firm in Seila not get out from under the subpoenas? Finally, recall the reasons behind Senate involvement in some appointments and behind Congress wanting to limiting removal for certain officers--given both of these, what can Congress do to limit presidential (and political) influence on those officers and offices that Congress wants to be independent.

We then turn to State Power to Regulate and Panel # 8. Read the entire section. In addition, take a look at the 21st Amendment. Consider:

    • What is the "Dormant Commerce Clause," why does it exist, and what is the argument that there is no such thing?

    • Know the laws at issues in the various case, why those cases came out as they did, and what distinctions are at work?

    • What is the difference between discriminatory intent and discriminatory effect? Why is one subject to less exacting review than the other?

By the way, note the political conversation as of last night: Fifty Senators have announced intention to vote on any SCOTUS nominee, enough to confirm (the VP breaks any tie), which makes an expanded Court (if Biden wins and the Democrats have a majority in the Senate) more possible. But court-packing is not the only reform on the table. Here is a proposal for functional 18-year term limits with regular appointments. Here is a proposal (made in 2016) for a partisan-split eight-person Court. Here is a proposal for a "Supreme Court lottery," in which the Supreme Court consists of a rotating group of court of appeals judges. And here is a straight term-limits amendment.

All of this is for your information and beyond the scope of the course. We get into the structure of the judiciary in Federal Courts.

Learning Con Law in interesting times

You have the (good?) fortune of studying Constitutional Law in interesting times. Below are some things of interest.

First, unsurprisingly, people on Twitter have some things to say about how the Supreme Court works and about how it is structured.

Second, Twitter aside, you are going to hear a lot of talk about two things in the coming weeks: 1) the constitutional validity of President Trump nominating and/or the Senate confirming RBG's successor prior to the election or between the election and inauguration (if the President loses reelection); and 2) the constitutional validity of expanding the size of the Supreme Court ("court-packing"), as FDR proposed, unsuccessfully in 1937. What constitutional (as opposed to statutory and political) limits, if any, are there on any such efforts?

Third, take 45 minutes when you have them to listen to this edition of the Lawfare Podcast. The guests are Bob Bauer (White House counsel under President Obama) and Jack Goldsmith (head of the Office of Legal Counsel, the executive branch's legal advisor, under President George W. Bush). They have co-written a book on government reform. The discussion touches on a lot of stuff we have been discussing the past few weeks. This includes appointments and removal, congressional oversight, and congressional delegation of power to the President. For example, there is discussion of President Trump's unilateral trade actions as to China, which he did under the same statutory authority that President Reagan used in Dames & Moore (the Iran sanctions case).

Panel # 5 Reax Paper

 Here.

The Real Constitution in the Real 2020

Video recording of panel is here. For some background on the book The Constitution in 2020, which gave the program title, here is a review of that book by Prof. Baker.

For Monday

 Thursday video (with transcript). Panel # 6 Reax Papers due at 7 p.m. Monday.

We continue with Separation of Powers, focusing on appointments and removal. Consider:

    • What are the differences among the categories Farber & Siegel propose (principal v. inferior, inferior officer v. employee)?

    • What are the purposes of the recess-appointments clause, how has it evolved, and what is left of it after Noel Canning?

    • What is the theory of the unitary executive--what is the textual, structural, and historical basis for it?

    • How does the theory of the unitary executive explain the debate over the removal power and limits on the removal power? Why might Congress limit the removal of certain officers? Can you glean coherent rules for what Congress can and cannot do to limit removal?

We then turn to State Power to Regulate, with Panel # 8. This will take us through next Thursday.

    • What is the "Dormant Commerce Clause," why does it exist, and what is the argument that there is no such thing?

    • Know the laws at issues in the various case, why those cases came out as they did, and what distinctions are at work?

    • What is the difference between discriminatory intent and discriminatory effect? Why is one subject to less exacting review than the other?

    • How does the Privileges & Immunities Clause connect with the DCC?

For Thursday

Monday video (no transcript); with transcript. Panel # 5 Reax Papers due at 7 p.m. Thursday; Panel # 6 Reax Papers due at 7 p.m. next Monday. Again, here is the registration link for the Constitution Day panel.

We continue with the Line Item Veto in Clinton v. New York. Consider which position is taking a formalist approach and which is taking a functionalist approach in that case. How is the "cancellation" allowed in this law different from the President not spending appropriated funds--does it "make a dime's worth of difference"?

Then move to Executive Immunity and Appointments; note the cases on the blog--Vance and Mazars for immunity and Seila Law for appointments. Consider:

    • What is the theory of the unitary executive? What is the textual basis for it? How does that explain the cases in these areas, especially appointments and removal?

    • When and why can Congress limit the President's power to remove an executive official? Why would Congress want to limit presidential power to remove an official?

    • Why did the Court seem to make it easier for the District Attorney in Vance to obtain documents than for Congress in Mazars?

    • Does the President (and the rest of the Executive Branch) have some form of immunity and what is the scope and nature of that immunity?

Panel 4 (Spending Clause) Reax Papers

Here, here, here, and here.

For Monday (Corrected)

Thursday video (correct link--sorry for the confusion, but it will give you a good preview for Evidence next semester). Panel # 5 Reax Papers due at 7 p.m. next Thursday.

We continue with Balance of Legislative and Executive Power: Domestic, starting with Justice Jackson's concurrence in Youngstown Steel. What are the three categories of executive power and what is the scope within in one? How has that framework been applied in Dames & Moore and Medellin and why? Then move to Foreign Affairs; what is the basis for the view that the President must have broad power in foreign affairs and what role does that leave Congress?

We then turn to Executive Power, which will be the beginning of Panel # 7; for Monday do Delegation and Vetoes and prepare to cover the rest on Thursday. Consider:

    • What is the rationale behind the "non-delegation" doctrine? What must Congress do when delegating to the executive? How does delegation square with the various categories in Justice Jackson's Youngstown Steel concurrence?

    • How does the ordinary lawmaking process work in light of the constitutional text? Why were legislative and line-item vetoes reject in Chadha and Clinton? Consider the differences between "formalism" reflected in the Chadha majority and "pragmatism" reflected in the Chadha dissent--which makes more sense in how government operates?

If you are reading for the week, read ahead and complete Dormant Commerce Clause. We will not get to it until late Thursday, but that is the long-term goal.

The limits of outraged argument

This point is tangentially related to this course, but is an important thing to understand about law generally and what a legal education teaches you about how to view the world.

You probably have seen the stories about the Department of Justice stepping into the defamation lawsuit against President Trump arising from his calling a sexual-assault accuser a liar. Many (most) of these stories have come from a position of outrage, as is often the case when political issues make their way into court--how dare DOJ act like the President's private attorney. But this explanatory essay (free registration may be required) explains the legal issues and why this might be legally required and successful.

So this forces you to look at things two ways: Descriptively (how the law is) and normatively (how the law should be). Be careful not to collapse them in your arguments and in how you become outraged.

Constitution Day Panel, Thursday, September 17

September 17 is Constitution Day (marking the day of the signing of the document and the end of the Philadelphia Convention).

Next Thursday, September 17, the College of Law will be hosting a Zoom panel, The Real Constitution in the Real 2020, an exploration of the (non-judicial) constitutional controversies and questions that arose in 2020. The program runs from 12:30-2. The flier is here. Register here.

Worth tuning in. And, to sweeten the deal, class participation credit will be awarded for attending.

21st Century Commerce Clause Reaction Papers (Updated)

Here, here, here, here, here, and here.

I can use the posting of these papers as a good opportunity to clarify some doctrinal things.

Recall that the Court in Lopez and Morrison recast Heart of Atlanta and Katzenbach into a "channels" of interstate commerce case (Category 1), rather than a non-economic-having-substantial-effect case (Category 3). That affects what you would do with that case going forward. It also affects how you would analyze, for example, federal employment-discrimination laws. Your argument would rely less on Heart of Atlanta than on Darby and similar cases--regulating employment practices of companies engaged in interstate commerce.

Your still should be doing CREAC (or at least REA) in these analysis. What is the rule you synthesize from all the cases, then apply that to whatever your factual situation is. Don't simply recite holdings, but figure out what the legal rules are (specific legal rules) that you can put together from these cases.

For Reaction Papers

On your cover page, please include the Panel # and/or the subject from the syllabus, along with the word count and your Blind ID. This will help me keep papers organized.

For Thursday

Thursday audio. No class Monday; enjoy Labor Day. Panel # 3 Reax Papers due at noon Tuesday. Panel # 4 Reax Papers due by 7 p.m. Thursday. Send to yffd@fiu.edu. I don't look, but if you want to ensure no one can see which paper is yours, go under "Properties: Summary" and delete your name from the Author space.

We continue with Regulation of State Governments. How does the Court find an anti-commandeering principle in the Constitution and where does it look and in what order? What are the policy arguments for and against it? If Congress cannot commandeer states, what could it do to achieve its goal in New York, Printz, and Murphy? What if Congress needs state help to enforce federal law? How do the principles in this section resolve current controversies over "sanctuary cities?" What about President Trump's new order to strip funds from "anarchist cities?"

We then turn to Balance of Legislative and Executive Power (Panel #6); read all three sub-parts. What is the difference between a presidential system and a parliamentary system? How did the (unexpected) development of political parties affect the U.S. separation of powers between Congress and the President? What powers does the President have and are there limits? How did Hamilton and Madison disagree on this point? Compare Art. I §§ 1 and 8 with Art. II §§ 1 and 2; what is the textual argument that the legislative power enumerated and the executive power broader?

Look at the majority and Jackson concurrent in Youngstown Steel; what are the three categories of executive power and what is the scope of each? How does Youngstown apply to all of the remaining cases in this section? How can Congress limit the power of the executive and when is the executive power greater?

On good legal writing (or just good writing)

Although focused on judicial writing, this works for everything else you write in law school and as a lawyer. I do not endorse everything the author says (I find Chief Justice Roberts tries too hard to be clever). But the general points stand--avoid legalese, strip your writing down by avoiding unnecessary phrases and throat-clearing, say it in 5 words instead of 15, do not hedge, be specific and precise rather than writing in generalities. Take the time to edit and revise and shorten and sharpen.

Reaction Papers

On Necessary and Proper: I, II, and III. And on Commerce.

You may respond and react via post. Please keep comments substantive, civil, and respectful.

Thanks for this first set of authors in being the first to write something; it hard to be the first one to take on a task.

Several things I want to emphasize in writing these going forward: 1) Be specific and precise in your legal analysis--don't give me generalities ("Congress' power is limited") but explain them; 2) I would prefer you pick a narrow topic and drill down into it than split your 500 words doing cursory analysis of a bunch of different things; 3) Don't overwrite and sound like some issue is the end of the world.