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The looming fight over recess

Washington is looking a bit like a schoolyard, because there is about to be a big fight over recess.

In this case, it’s a battle over the constitutional definition of recess that is poised to head to the courts. On one side, President Barack Obama, who yesterday made four controversial recess appointments despite some Republican lawmakers’ efforts to stop him by gaveling in and out of pro forma sessions over the holiday break. (It’s a move Democrats used to thwart President George W. Bush a few years back as well).

On the other side, Senate Republicans and business groups who say that Obama lacked the congressional authority to make the appointments.

The agencies in question – the Consumer Financial Protection Agency and the National Labor Relations Board – have been political flashpoints between the White House and Congress since Obama took office. Senate Republicans, angered over the agencies’ power and actions, made no bones about their willingness to block the nomination of anyone to either agency until changes were made.

All these factors make a potential court battle over the president’s recess appointment a juicy and almost certain proposition. But who will win?

That is unclear – as is the Constitution, which doesn’t define recess or specify how long one has to be for the recess appointment power to take effect. The White House said the president acted on the advice of counsel, essentially calling the pro forma sessions shams.

“The President’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks,” said White House Press Secretary Jay Carney yesterday. “The Constitution guarantees the President the right, provides the President the right to make appointments during Senate recesses, and the President will use that authority to make this appointment.”

Senate Minority Leader Mitch McConnell had a different view. “This recess appointment represents a sharp departure from a long-standing precedent that has limited the President to recess appointments only when the Senate is in a recess of 10 days or longer,” McConnell said in a statement. “Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’s role in providing a check on the excesses of the executive branch.”

The next stop in the fight will undoubtedly be a courtroom.

Addendum: This statement just landed in DC Dicta’s inbox, and reminds us why we’ll miss Rep. Barney Frank, D-Mass: “Republican’s complaints about the President’s decision to make this recess appointment are equivalent to objections leveled by arsonists at people who use the fire door to escape a burning building.”

The battle of the law-cumentaries

Just weeks after the HBO debut of a film setting out to debunk what it calls the myths of tort reform, the U.S. Chamber of Commerce’s Institute for Legal Reform is set to release its own film examining what it calls America’s “lawsuit industry,” which it says is filled with “greed and corruption.”

The ILR-backed film, called “InJustice,” premiers on the ReelzChannel Monday night.

Last month the documentary “Hot Coffee: Is Justice Being Served?” was screened in Washington for an audience that included members of Congress and civil justice advocates before it debuted on the cable network. That film, by trial lawyer-turned-documentarian Susan Saladoff, took aim squarely at tort reform advocates – including the Chamber – who back  mandatory arbitration clauses, state law damage caps and judicial election systems that civil justice advocates say protect businesses at the expense of consumers, workers and ordinary Americans.

But the film drew sharp criticisms from business groups and tort reform advocates who said it portrayed a skewed vision of the nation’s litigation system and painted trial attorneys as heroes.

According to the Chamber’s blog ChamberPost, filmmaker approached the ILR two years ago with an idea of making a film on haw the “lawsuit industry” has “transformed the practice of law from a calling into a multi-billion dollar a year business.”

Chamber, AAJ battle again over story on proposed tax break

There are a few things in life that one can always rely on  – like death, taxes, and the complete lack of love lost between the U.S. Chamber of Commerce and the trial lawyers group the American Association for Justice.

That lack of love was demonstrated again this week with a story on a Chamber-backed newswire accusing AAJ officials of boasting about a special trial lawyers’ tax break that would be issued by the Treasury Department.

The story in Legal Newsline, which is owned by the Chamber, quoted John Bowman, the Director of Federal Relations for the AAJ, speaking to a delegate at a meeting in Canada. Bowman reportedly said that an administrative order from the Treasury would amend tax law to allow attorneys to deduct certain expenses and costs in contingency fee cases in the year they were incurred. Current law requires lawyers to wait until the case is resolved, which could happen years later.

Legislation introduced by Sen. Arlen Specter that would have done the same thing after being introduced last year.

Last year, Legal Newslaine ran a story about that legislation, citing another AAJ official’s comment that the bill would fail unless it was “tucked into” another larger legislative package.

AAJ shot back, calling that story “inaccurate and purposefully misleading,” and adding that the bill was designed to “treat the trial attorney profession like every other small business in this country, allowing them to deduct their expenses in the year incurred.”

The latest proposed Treasury Department plan has now drawn the scorn the Wall Street Journal‘s editorial board, which ran a piece today citing the Legal Newsline and blasting the proposed tax change. “And Democrats wonder why their performance in office has inspired a tea party revolt,” the editorial says of the plan.

Monday status conference: A fight during recess

Last week, during oral arguments at the Supreme Court, Deputy Solicitor General Neal K. Katyal urged the justices to find that the National Labor Relations Board had authority to act and issue opinions with only two members – as it had for more than two years.

The fact that the Senate had held up the confirmation of President Obama’s three nominees to the board – and had in fact blocked one of the candidates, union attorney Craig Becker, with a failed cloture vote – “underscores the general contentious nature of the appointment process with respect to this set of issues,” Katyal told the justices.

“And the recess appointment power doesn’t work why?” asked Chief Justice John G. Roberts, Jr.

Over the weekend Obama showed that the power does indeed work. With the Senate in recess for more than three days, Obama made 15 recess appointments to administration posts – including Becker to the NLRB.

Late last week Republican senators as well as the U.S. Chamber of Commerce urged Obama not the use the recess appointment power for Becker. They argued that Becker represented a campaign promise made by Obama to unions during the election, and that Becker would essentially push to authorize “card check” unionizations in worplaces after legislation that would have done so lost steam in Congress. Much more on the Becker brouhaha here from Lawyers USA.

Meanwhile oral arguments continue today at the Supreme Court. The justices will hear arguments in cases involving double jeopardy and securities law.

In other news:

Predicting Stevens’ replacement: Since no one else is waiting for Justice John Paul Stevens to actually retire before opining about who might replace him, we won’t either. (Lawyers USA)

Gun law ok’d: A a federal court has upheld the gun regulations enacted in the District of Columbia after the Supreme Court’s ruling in D.C. v. Heller. (The BLT Blog)

Money talk: What’s the impact of the latest federal court ruling rejecting a constitutional challenge by the Republican Party to some federal limits on donations to political parties? SCOTUSblog explains. (SCOTUSblog)

Gov. Bush: Med-mal reform requires ‘big boy pants’

“Reforming medical malpractice laws is not for the faint of heart. [In Florida] it was butt ugly, as they say back home. … Put on your big boy pants for this one. I still have scar tissue on my forehead from banging and banging my head against the wall to get this done.”

~ Former Gov. Jeb Bush speaking Wednesday at the U.S. Chamber of Commerce’s Institute for Legal Reform’s annual reform summit.

Now playing at your local theater: Tort reform videos!

DC-area moviegoers can expect to get something a little different as they chomp their popcorn waiting for the film to start: a message about tort reform.

That’s right – along with the normal movie trailers, commercials, and reminders to silence cell phones in the theatres, audience members at select Washington-area theatres will see videos lamenting the problem of lawsuit abuse – care of the U.S. Chamber of Commerce.

The Chamber’s Institute for Legal Reform has been featuring a number of videos assailing what it calls the overabundance of tort suits on its website. One video, for example, tells the story of a 7-year-old who was sued after a collision with an adult on the ski slopes. Now, for the next month or so, the ILR it is taking the videos to the big screen.

“Lawsuit abuse and the harm it brings to our citizens and small businesses is one of the great American tragedies today,” explained ILR President Lisa Rickard. “That’s why the silver screen is the perfect venue for the Faces of Lawsuit Abuse trailers. The only difference between the feature presentation and these short films is that the damage, the costs, the winners and losers that are featured aren’t fiction-they’re true stories.”

What does the trial lawyer group the American Association for Justice think about the Chamber’s theatrical move? Spokesman Ray DeLorenzi told the Wall Street Journal’s Law Blog: “With U.S. Chamber’s core membership receiving all those taxpayer bailouts, they must be flush with cash to waste on PR stunts like this. Like their lobbying agenda, these ads are rated NC – not suitable for consumers.”

Yuletide wrap


DC Dicta will be taking a holiday hiatus until after the New Year. But before you rush off to do all that last-minute gift shopping, here’s one last look at the legal news:

Chamber’s suing mad: The U.S. Chamber of Commerce filed a lawsuit Tuesday challenging the legality of a Bush administration rule requiring all companies working on federal contracts to electronically check the legal working status of their employees through the E-Verify system. (Lawyers USA)

IRA help must wait for New Year: Congress has passed a bill that will suspend the rule requiring retirees over the age of 70 1/2 to withdraw a certain amount from their retirement accounts in 2009. But the Treasury Department announced that no such similar suspension will be made for 2008, meaning anyone who has yet to meet the minimum distribution requirement must do so by Dec. 31. (Lawyers USA)

Holiday Pardons: President Bush issued 19 pardons this week – but none was for Scooter Libby. (Washington Post, New York Times)

FDA takes another look at BPA: First the FDA called the chemical safe, then a wave of scientific reports questioned that finding. Now the FDA is taking another look at the chemical bisphenol-A, a controversial component found in products such as baby bottles. (New York Times)

Pleading the Fifth – a little too late: A witness in convicted Alaska Sen. Ted Stevens’ corruption trial said he should have evoked his constitutional right not to testify instead of taking the stand and incriminating himself. (AP)

Luck be a justice tonight: How does someone become a Supreme Court justice? Says retired Justice Sandra Day O’Connor: be “the right person in the right spot at the right time. Simply stated, you must be lucky.” (USA Today)

The year that was: As the year comes to a close, here’s a look at the most popular online stories of the year from Lawyers USA. (Lawyers USA)

Happy Holidays!

Chamber: Stop lawsuits – but not ours

commerceThe U.S. chamber of Commerce frequently backs efforts to curb lawsuits, something Chamber officials say is necessary to protect businesses.

“The last thing this country needs is more lawsuits sucking from the nation’s economy,” Chamber president and CEO Thomas J. Donohue said just days after the November election, warning that Democrats in the White House and congress could block tort reform efforts.

But in a recent letter from the Chamber’s chief lobbyist R. Bruce Josten to Congress, the group urged lawmakers to protect the right of its member companies to sue.

Josten sent a letter the Washington lawmakers voicing concern about a provision in the proposed rescue plan for U.S. auto companies that would restrict the right of the companies from “participating in, pursuing, funding, or supporting in any way, any legal challenge (existing or contemplated) to State laws concerning greenhouse gas emission standards.”

Leaving that provision in the legislation “would not only deny the manufacturers their basic constitutional right to use the federal courts to redress what they believe are unwise or unfair policy decisions, but it could conceivably also deny the automobile manufacturers the right to participate with trade associations (such as the U.S. Chamber), or environmental groups, in litigation for or against such policies.

“Not only would the terms of the bridge loan remove the automobile manufacturers’ constitutional rights,” Josten continues, “but the terms could force these unrelated third parties to forfeit their constitutional rights to sue as well, because they would be ‘supported in any way’ if the automobile manufacturers are part of their membership.”

Just this week, the Chamber’s Institute for Legal Reform launched a website and television ad campaign against excessive lawsuits.