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Tag Archives: Obama

Senate Republicans jump into recess appointment challenge

Republican lawmakers are officially jumping into the legal fight over President Barack Obama’s recess appointments to the National Labor Relations Board and the Consumer Financial Protection Bureau. And leading the GOP senators’ fight is a man who was blocked from a judicial appointment by Senate Democrats years ago.

Senate Republicans said yesterday they plan to file an amicus brief in the case challenging Obama’s authority to make the controversial appointments, according to the Washington Post. The White House has defended the validity of the recess appointments, and said they were necessary to keep the agencies operating as GOP lawmakers stalled nominees’ confirmation votes.

The Republican lawmakers brief will be authored by Miguel Estrada, a partner in the Washington office of Gibson, Dunn & Crutcher whose own judicial nomination to the D.C. Circuit was filibustered by Senate Democrats in 2001. (The news came, interestingly enough, the same day Estrada argued a case before the U.S. Supreme Court.)

“We think it’s the appropriate case,” said Senate Minority Leader Mitch McConnell, R-Ky., according to the Post. “And I thought that Miguel’s own experience with the confirmation process, that it might make particularly good sense for him to represent us in this particular undertaking.”

Holder backs Obama’s statements, says Courts must presume federal laws’ constitutionality

When the 5th Circuit speaks, the Justice Department listens – and responds.

In a memorandum to a panel of federal judges hearing a challenge to the federal health care law, Attorney General Eric Holder backed comments made earlier in the week by President Barack Obama that courts ought to tread lightly when considering challenges to laws passed by Congress.

But Holder said the president’s comments in no way reflected a change in the Justice Department’s views on judicial authority, nor did they imply that courts do not have authority to consider constitutional challenges to federal laws.

Earlier this week, Obama suggested at a news conference that overturning the health care law would amount to “judicial activism.”

For more on Holder’s memo, see the full story on Lawyers USA online.

Meanwhile, Senate Minority Leader Mitch McConnell has chimed in on the matter.

“The president crossed a dangerous line this week. And anyone who cares about liberty needs to call him out on it,” McConnell said during a speech on Thursday, according to CNN. “Respectfully, I would suggest the president back off.”

Holder backs Obama’s ‘judicial activism’ comment on health care case

After President Barack Obama warned that a U.S. Supreme Court decision striking down parts or all of the health care law would be an act of “judicial activism,” Attorney General Eric Holder echoed that sentiment Wednesday.

Speaking at an event in Chicago, Holder called the president’s comments “appropriate.”

“Courts have the final say in the constitutionality of statutes,” Holder said, according to the Chicago Tribune. “Courts are also fairly deferential when it comes to overturning statutes that the duly elected representatives of the people … the Congress … pass.”

Holder’s comments came after 5th Circuit Judge Jerry Smith, part of a panel hearing a challenge to the health care law’s constitutionality, asked the Justice Department to clarify its position on courts’ authority to strike down federal laws. Smith issued the demand after becoming concerned by Obama’s comments, the Washington Post reported.

During a court hearing, Smith demanded that the Justice Department submit the three-page, single-spaced letter by noon Thursday, a lawyer in the courtroom told the Post.

The judge “said the president has been saying that unelected branches of government shouldn’t be activist and strike down federal laws,’’ the lawyer told the Post, speaking on condition of anonymity.

Obama: Striking health care law would be ‘judicial activism’

One week after the U.S. Supreme Court opened oral arguments in the federal challenge to the federal health care law, President Barack Obama expressed confidence that the law would be upheld. Striking the law down, the president warned, would be an act of judicial activism.

“Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress,” Obama said during a news conference Monday.  “And I’d just remind conservative commentators that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint – that an unelected group of people would somehow overturn a duly constituted and passed law.  Well, this is a good example.  And I’m pretty confident that this Court will recognize that and not take that step.”

Obama stressed that the individual mandate at the heart of the constitutional challenge is a crucial element of the law.

“I think it’s important, and I think the American people understand, and I think the justices should understand, that in the absence of an individual mandate, you cannot have a mechanism to ensure that people with preexisting conditions can actually get health care,” Obama said.  “So there’s not only a economic element to this, and a legal element to this, but there’s a human element to this.  And I hope that’s not forgotten in this political debate.”

Goldstein: Harris could be next Supreme Court pick

SCOTUSblog’s Tom Goldstein has pulled out his crystal ball in an effort to figure out who will be President Barack Obama’s next Supreme Court nominee, should the president be elected to a second term.

Ok, the Goldstein & Russell partner doesn’t have an actual clairvoyant instrument. Instead, he used a set of factors that Obama would likely consider in choosing a nominee should Justice Ruth Bader Ginsburg resign during his second term. Those factors include, but are not in any way limited to, gender (the nominee almost certainly will be a woman) and race or ethnicity (there’s a good chance the nominee will also be a minority group member) since diversity has been a top priority for the Obama administration.

After considering dozens of possibilities, Goldstein concluded that the most likely candidate would be California Attorney General Kamala Harris.

The former San Francisco District Attorney, whose mother is from India and whose father is Jamaican-American, has “long been well known to the Administration, having been the first California elected official to endorse Barack Obama’s candidacy,” Goldstein writes. At 47, she is also the ideal age to be a Supreme Court nominee in the next three to four years.

But, Goldstein notes, Harris’ own future political plans may not make a Supreme Court nod that appealing to her. By the time Ginsburg retires, he wrote, Harris will either be running for reelection or newly reelected, with her sights possibly set next on the governor’s office.

O’Connor’s got jokes

When retired Justice Sandra Day O’Connor cracks political jokes, people laugh.

That was the case last weekend at an exclusive black-tie gathering of Washington’s elite when O’Connor drew the biggest laugh of the night, according to attendees.

At the Alfalfa Club dinner, which drew President Barack Obama, Chief Justice John G. Roberts, Jr. and Justice Anthony Kennedy among others, O’Connor quipped about GOP presidential candidates Mitt Romney and Newt Gingrich, noting: “one is a practicing polygamist, and he’s not even the Mormon,” the Huffington Post reports.

Brewer and Obama bicker publicly as immigration battle looms

We already knew the pending Supreme Court showdown between Arizona Gov. Jan Brewer and the Obama administration over the controversial Arizona immigration law SB 1070 would be explosive. But yesterday we got a glimpse of the bubbling animosity between the parties.

As the Court prepares to hear the debate over whether the state statute directing police to check the immigration status of detainees believed to be in the country illegally is preempted by federal immigration law, Brewer and President Obama had a heated exchange yesterday.

After Brewer greeted Obama as he stepped off Air Force One outside of Phoenix, she handed him a letter and then the two engaged in a heated discussion. According to the Associated Press, both Brewer and Obama appeared to be smiling, but speaking over each other for several moments. At one point, Brewer waved her finger in the president’s face.

Asked about the exchange afterward, Brewer said: “He was a little disturbed about my book.”

In her recent book “Scorpions for Breakfast,” Brewer described a meeting she had with Obama at the White House to discuss immigration. “I felt a little bit like I was being lectured to, and I was a little kid in a classroom, if you will, and he was this wise professor and I was this little kid, and this little kid knows what the problem is and I felt minimized to say the least,” Brewer said.

According to Brewer, Obama objected to the book’s implication that she was mistreated at the White House

“I said to him, you know, I have always respected the office of the president and that the book is what the book is,” Brewer said. “I said that I was sorry that he felt that way. Anyway, we’re glad he’s here, and we’ll regroup.”

Brewer said the letter she handed Obama was an invitation to have lunch and visit the border.

Here’s hoping oral arguments at the Supreme Court in April are as exciting.

Grassley: Author of DOJ recess appointment opinion may lose her job

Sen. Chuck Grassley, angered by an opinion issued by the Justice Department’s Office of Legal Counsel finding President Barack Obama’s recent recess appointments legal, took aim at the opinion’s author, suggesting that she won’t be confirmed by the Senate again.

The opinion, authored by Assistant Attorney General Virginia A. Seitz earlier this month, found that Congress was in recess when Obama made four recess appointments despite Congressional Republicans’ efforts to gavel in pro forma sessions over the holiday break to prevent such appointments.

“I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination,” Grassley said in a Senate floor speech Monday, according to Politico. “However, after reading this misguided and dangerous legal opinion, I’m sorry the Senate confirmed her. It’s likely to be the last confirmation she ever experiences.”

Those comments rankled some OLC attorneys from previous administrations, who said such blackball threats are dangerous.

“OLC lawyers should be free to render their honest opinion and not be threatened with adverse career consequences by either the White House or Congress,” Richard Painter, a White House ethics lawyer during the Bush administration, told Politico.

“The Senator’s name-calling is misplaced,” said Jack Goldsmith, who helmed the OLC during President George W. Bush’s administration.

President Bill Clinton’s chief OLC attorney Walter Dellinger said he was astonished by Grassley’s comments. “I can’t believe that Senator Grassley has actually read Seitz’s thoughtful and carefully reasoned opinion.  And he may not be aware that attorney’s in the administration of President George W. Bush reached the same conclusion that she reached,” Dellinger told Politico.

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.”