Quantcast

Tag Archives: Congress

In fight against HR 5, AAJ and conservative groups form unusual coalition

As lawmakers prepare to take up the controversial tort reform legislation later this week, the measure is creating a strange coalition of opponents seeking to stop the bill in its tracks.

As we’ve reported in Lawyers USA, the trial lawyers’ group the American Association for Justice has actively opposed H.R. 5, the Help Efficient, Accessible, Low Cost, Timely Health Care (HEALTH) Act. The bill, which would cap non-economic damages in medical negligence cases at $250,000 and repeal part of the federal health care law aimed at cutting Medicare costs, is set for a House vote later this week.

But AAJ officials say the bill affects far more than medical malpractice cases. It is a “far-­reaching bill that would affect caps on damages,  limits on attorneys’ fees, medical negligence law, nursing home cases, medical device and pharmaceutical cases, and bad faith cases against health insurers,” according to a message to AAJ’s membership.

AAJ officials tell me that the bill would also thwart suits against doctors who commit intentional torts, such as sexual abuse.

Meanwhile, conservative groups such as the Heritage Foundation and the Tea Party movement have also attacked the measure, saying it infringes upon states’ rights and violates the Commerce Clause, according to the InjuryBoard’s Andrew Cochran.

Cochran quotes the Heritage Foundation’s Hans von Spakovsky’s statement on the group’s blog The Foundry:

“The problem with most of the proposed reforms in H.R. 5 is that the law governing medical malpractice claims is a state issue, not a federal issue. Despite H.R. 5’s reliance on the Commerce Clause, Congress has no business (and no authority under the Constitution) telling states what the rules should be governing medical malpractice claims,” Spakovsky writes.

Reid tries to make a deal to end judicial nominee backlog

Yesterday, Senate Majority Leader Harry Reid had an offer he hoped Senate Republicans would not refuse: a quick vote on the GOP-backed Jobs Act in exchange for bringing 17 judicial nominations to a vote.

But according to NBC’s Libby Leist (via The Wall Street Journal’s Law Blog) Republicans rebuffed the move, accusing Reid of holding up the jobs bill to force a vote in nominated federal judges. Republicans have been blocking judicial nominees in protest of President Barack Obama’s recent recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau.

In making the offer for a swift vote on the JOBS bill, Reid said on the floor: “The only thing preventing the Senate from moving quickly to tackle [the JOBS Act] is what we’ve had this whole Congress: obstructionism by my friends, the Republicans.”

But Senate Minority Leader Mitch McConnell fired back. “I think most Senators would rather be working on things that the American people believe would actually help create jobs than to see the Senate embroiled in another controversy which I fear my good friend, the majority leader, is seeking to precipitate,” McConnell said.

GOP lawmakers fired up (and ready to sue) over recess appointments

It did not take long for Congressional Republicans to seize on the controversial recess appointments President Barack Obama made last week.

On Friday GOP members of the Senate judiciary Committee, led by Sen. Chuck Grassley, sent a letter to Attorney General Eric Holder pressing him to disclose just what role the Department of Justice played in advising the president on the recess appointments.

As has been well reported, Obama appointed Richard Cordray as director of the Consumer Financial Protection Bureau, and three members – Sharon Block, Richard Griffin and Terence F. Flynn – to the NLRB. The Senate had previously filibustered Cordray’s nomination and stalled the NLRB nominees, allowing the Board to fall below its statutory quorum the day before Obama made the recess appointments.

Obama made the move despite efforts by lawmakers to prevent Congress from recessing by repeatedly gaveling in pro forma sessions over the holiday break.

The lawmakers’ letter stated that the appointments went against opinions issued by past attorneys general, the U.S. Supreme Court and other authorities that “clearly indicate the view that a congressional recess must be longer than three days – and perhaps at least as long as ten — in order for a recess appointment to be constitutional.  These various authorities have reached this conclusion for over 90 years and have become the stated position of the Executive Branch, including multiple representations before the Supreme Court, regarding the required length of time for a recess in order for the President to make a recess appointment.”

Meanwhile, last week Rep. Bill Johnson threatened a lawsuit over the matter.

“Dodd-Frank made it very clear that to set it up it must have Senate approval,” Johnson told Fox Business’ Neil Cavuto (see it here via The Hill). “And the president cannot just arbitrarily change the rules or decide on his own the Senate’s definition of when it’s in session and when it’s not in session.”

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.”

Lawmakers turn up pressure on Thomas, Kagan over health care conflict questions

Members of Congress are amplifying their calls to judicial and Justice Department officials demanding investigations of two Supreme Court justices’ alleged conflicts of interest in the health care reform case pending at the Court.

Since the Court agreed to consider the constitutionality of the federal health care reform law’s individual mandate as well as several other substantive and procedural issues related to the law, calls from members of Congress for Justices Clarence Thomas and Elena Kagan to sit out have grown louder.

Friday New York Democrat Rep. Louise Slaughter sent a letter, signed by 52 House members, to the U.S. Judicial Conference requesting a Justice Department investigation into Thomas’ initial failure to include on financial disclosures his wife’s income from organizations opposing the health care law. It’s the second time the lawmaker has asked the Conference to refer the matter to the U.S. Attorney General.

In January, Thomas amended the disclosure forms, calling the initial omission of his wife, Virginia Thomas’ income from the Heritage Foundation an oversight attributable to a “misunderstanding of the filing instructions.”

Meanwhile Senate Republicans are also pressing Attorney General Eric Holder over the health care case, seeking information on whether Kagan’s work as solicitor general creates a conflict of interest that precludes her involvement in the case.

According to Politico, Sens. Mitch McConnell, R-Ky., Jon Kyl, R-Ariz., Chuck Grassley, R-Iowa, and Mike Lee, R-Utah, sent a letter to Holder saying the Justice Department has handled questions about Kagan in a “highly questionable manner” and demanding clarification on Kagan’s role.

“Your Department’s refusal to provide information to the Congress that could eliminate this apparent conflict of interest only undermines … confidence [in the administration of justice] further,” the letter stated.

Emails recently released from the Justice Department reveal that, in 2010, then-Solicitor General Kagan called Senate support for the health care bill “simply amazing.”

Lawmaker blasts House’s hefty DOMA legal defense tab

Most BigLaw clients would not be surprised by a $1.5 million legal tab. But when that tab is incurred by the House’s defense of the Defense of Marriage Act – and is thus charged to taxpayers – people take notice.

Rep. Honda

As did Rep. Mike Honda, who called the legal bill a “irresponsible, backdoor use of taxpayer money” according to U.S. News and World Report (HT: WSJ’s Law Blog). The California Democrat is calling for a hearing on the issue after House Republicans agreed to increase the pay cap for Bancroft partner Paul Clement’s work on the case.

As a quick recap, after the Attorney General Eric Holder announced that the Justice Department would no longer defend the law, House Speaker John Boehner announced that the House would send its own counsel to defend the law in federal court.

Clement

And not just any counsel. House GOP lawmakers tapped former U.S. Solicitor General Paul Clement – at the time a partner at King & Spalding – to defend the constitutionality of the law.

But then King & Spalding pulled out, causing Clement to abruptly resign the firm in protest and continue the defense of the law with Bancroft.

Now, U.S. News reports, the firm’s legal fees were initially capped at $500,000, but that amount was increased to $750,000. But that “cap may be raised from time to time up to, but not exceeding $1.5 million, upon written notice of the General Counsel to the Contractor.”

That does not make Honda happy. “How long are we going to let this Republican political exercise go on, and at what cost to the American tax payers?” he told U.S. News.

But Michael Steel, spokesman for House Speaker John Boehner, defended House Republicans’ actions, saying they are defending the law is because “the Justice Department chose to shirk its constitutional duty to do so.”

Scalia and Breyer testify, debate before Congress

After oral arguments concluded at the U.S. Supreme Court yesterday, Justices Antonin Scalia and Stephen Breyer had another appearance to make – before Congress.

The justices traveled across the street from the Supreme Court building to testify before the Senate Judiciary Committee yesterday, where Scalia lamented the declining in quality of federal judges. That decline, he said, was caused by Congress’ overzealous criminal lawmaking, which created the need for so many more judges.

“Federal judges ain’t what they used to be,” Scalia told the committee, according to Mark Sherman of the Associated Press. The federal judiciary is “not as elite as it used to be.”

The justices, never afraid to publicly disagree, expressed their different views of constitutional interpretation.

“I’m hoping that the ‘living Constitution’ will die,” Scalia said at one point, according to the Huffington Post’s Mick Sacks. Breyer responded by repeating a nearly 200-year-old quote by Chief Justice John Marshall: “It is a constitution we are expounding” because it is “to be adapted to the various crises of human affairs.””

DOMA repeal bill gets White House backing

For the first time, a bill to repeal the Defense of Marriage Act has White House support.

Yesterday the Obama administration announced its support for the Respect for Marriage Act, legislation filed by California Sen. Dianne Feinstein that would wipe the federal law barring recognition of same-sex marriages off the books, the Washington Post reports. The bill would amend the U.S. Code to provide that, for federal purposes, “an individual shall be considered married if that individual’s marriage is valid in the State where the marriage was entered into.”

The endorsement is the most direct opposition the White House has expressed toward DOMA. In February, the Justice Department announced that it would no longer defend constitutional challenges to Section 3 of the law, which defines marriage as between a man and a woman. Feinstein’s proposed legislation would repeal the law in its entirety – including Section 2, which allows states to refuse to recognize same-sex marriages from other jurisdictions.

“This legislation would uphold the principle that the federal government should not deny gay and lesbian couples the same rights and legal protections as straight couples,” said White House press secretary Jay Carney, according to Metro Weekly. “[DOMA] continues to have a real impact on the lives of real people – our families, friends and neighbors.”

The Senate Judiciary Committee will hold its first hearing on the legislation today.

Boehner no fan of trial lawyers, unless he’s hiring them (access required)

Boehner

In his political messages, House Speaker John Boehner hasn’t shown a lot of love to trial lawyers. Boehner has perennially joined his Republican colleagues in supporting tort reform measures they say will “rein in junk lawsuits.”

Yet in practice, Boehner seems to be a big fan of litigation according to a report by Politico. Boehner has used the court system as an essential tool in a number of political battles over his career, and two of those battles are primed to land before the Supreme Court.

As readers know, Boehner spearheaded the effort of House Republicans to defend the constitutionality of the Defense of Marriage Act in federal court after the Obama administration announced that the Department of Justice would no longer do so. Boehner hired outside lawyers to handle the defense (which led to another high-profile legal battle). He then asked for the Justice Department to pay the legal bill.

Boehner also filed legal briefs in the Florida lawsuit challenging constitutionality of last year’s health reform law. Both the health care law challenge and the DOMA case are expected to go to the Supreme Court within the next couple of years.

Boehner has long showed a willingness to take political battles to court – and an ability to win. Following an ethics investigation into then-Speaker Newt Gingrich, Boehner successfully sued Democratic Rep. Jim McDermott and won a $1.2 million judgment.

Supporters say Boehner is simply ensuring proper constitutional procedure.

“He takes very seriously his role under the Constitution and the need to assure that the checks and balances work properly,” Carrie Severino of the Judicial Crisis Network, which filed the health care challenge on Boehner’s behalf, told Politico. “He is making the point that the constitutional limits were exceeded. That’s why we have judicial review.”

A top Democratic staffer stopped short of labeling Boehner’s legal battles hypocritical – noting that “members of Congress have a duty to evaluate the constitutionality of laws that they pass.” Still, the staffer said, “people complain only when their ox is being gored.”

Legal shakeup over House GOP’s DOMA defense (access required)

Clement

After the law firm King & Spalding decided to withdraw from representing House Republicans’ defense of the Defense of Marriage Act, lead attorney and former Solicitor General Paul Clement resigned from the firm in protest – and quickly vowed to continue the defense of the law with the boutique firm Bancroft PLLC.

The move came in a shocking turn of events this morning, which started with the announcement from King & Spalding that it would seek to withdraw as counsel in charge of defending the law, which denies federal benefits to gay married couples.  The firm’s chairman, Robert Hays Jr., said the decision was due to the firm’s “inadequate” vetting of its involvement in the litigation, according to the National Law Journal‘s BLT blog. Gay rights groups have recently criticized the firm for taking up the defense of the law after the Obama administration announced earlier this year that it would no long defend the statute against challenges in federal court.

Clement protested by resigning from the firm, which he joined back in 2008 after leaving the solicitor general’s office. In his letter of resignation, posted by the blog How Appealing, Clement said he decided to leave the firm immediately “not because of strongly held views about this statute.”

“Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s position is extremely unpopular in certain quarters,” Clement wrote. “Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high.”

Soon after, Bankroft released a statement announcing Clement as the firm’s newest partner. The announcement, which touts Clement’s background as a veteran Supreme Court advocate, mentions neither his work at King & Spalding nor his representation in the DOMA case.